The purpose of this paper is to compare the arguments presented in People v. Perry[i] and People v. Raybon.[ii] Both are California appellate court decisions decided in 2019. The cases both examine whether possession of marijuana in a correctional institution is punishable by the Penal Code. Put in the simplest terms, Raybon says Proposition 64 decriminalized possession of cannabis (within the parameters of the law) in correctional institutions and Perry says it did not.
Before addressing the arguments, it is necessary to define several basic provisions that this paper will use. First, Proposition 64 (“Prop 64”) is a California Voter Initiative decided in 2016 that legalized marijuana in certain capacities.[iii] Prop 64 legalized marijuana for recreational use for adults over the age of 21 and allowed adults over age 21 to possess up to 28.5 grams of marijuana.[iv]
Second, Health and Safety Code section 11362.1 (“H&S 11362.1”) is the code section that came about after Prop 64 was passed.[v] Subject to certain exceptions, this section states that it is legal for an adult over age 21 to possess up to 28.5 grams of non-concentrated cannabis.[vi]
Third, Health and Safety Code section 11362.45 (“H&S 11362.45”) is at the heart of both Raybon and Perry. This section states that section 11362.1 does not apply to “laws pertaining to smoking or ingesting cannabis or cannabis products on the grounds of, or within, any facility or institution under the jurisdiction of the Department of Corrections and Rehabilitation or the Division of Juvenile Justices . . .”[vii]
Finally, section 4573.6 (“PC 4573.6”) of the California Penal Code punishes any person who possesses a controlled substance in a correctional institution.[viii]
This article analyzes these two cases in two parts. Part I will compare the three major arguments presented in Raybon and Perry. The first argument looks at the language of H&S 11362.45 and addresses the phrase “pertaining to.” The second argument considers the voters’ intent when they passed Prop 64 and the public policy considerations connected to H&S 11362.45 and PC 4573.6. The last argument focuses on People v. Fenton, which was decided by the Raybon court.
Part II will address California’s long-term goals and the impact Raybon may have on those legislative goals.
I. A General Comparison of Raybon and Perry.
Raybon and Perry share similar fact patterns. Both cases involve appeals by inmates (five inmates in Raybon[ix] and one inmate in Perry[x]) who were convicted of PC 4573.6 who attempted to get their respective convictions overturned. Both opinions focus heavily on the interpreting the statutes.
A. Examining the Language of the Statute
Probably the most significant difference between Raybon and Perry is the interpretation of the phrase “pertaining to” as seen in H&S 11362.45.[xi] If the language is considered ambiguous, then the court is free to consider the voters’ intent to interpret it.[xii]
The court in Perry argued that the language of H&S 11362.45 was ambiguous, and looked to determine the will of the voters.[xiii] The Perry court explained that “pertaining, or to pertain” has a wide reach beyond the plain language of the statute.[xiv] They argue that “pertain” means “to belong as an attribute, feature, or function”[xv]
The definition is key. Although the Perry court acknowledges that possession is not synonymous with consumption, they argue that possession is not unrelated to use.[xvi] Possession of any controlled substance that is banned by prison rules would suggest that its purpose is to be consumed by someone, because it does not have another purpose.[xvii] By that logic, it stands that H&S 11362.45 was meant to apply to possession of cannabis in prison since it specifically addresses cannabis in Correctional Institutions.[xviii]
By contrast Raybon argues that the language of the statute is clear and should be applied based on the plain meaning.[xix] The Raybon court explains that the other exceptions to H&S 11362.1 set forth in H&S 11362.45 all contain plain language, including “possession” when necessary.[xx] Subsection (d) of section 11362.45 states “laws pertaining to the smoking or ingesting” without mentioning possession.[xxi] The Raybon court argues that the intent is clear in that possession was not meant to be affected by H&S 11362.45 and the statute should be interpreted in favor of decriminalizing possession in correctional institutions.[xxii]
The Raybon court refused to expand the phrase “pertaining to” to include possession.[xxiii] In doing so, they continue to point to other examples in the statute that indicate the drafters would have included possession were that their intent.[xxiv] Along these same lines, the Raybon court argued that the language of H&S 11362.45 would still restrict all forms of consumption in prison, not just smoking.[xxv]
Building on Perry’s argument, possession of cannabis in prison implies that someone will consume it. This means without a ban on possession in prison, cannabis dealers cannot be punished as effectively. If it was considered a crime to consume cannabis but not possess it, then the only persons affected by the law are the “customers” who are caught.
It is also worth noting that the language “pertaining to” should have a wide reach. The relevant code sections in the California Penal Code for controlled substances in correctional institutions are sections 4570 to 4577.[xxvi] None of these statutes pertain to consuming cannabis in prison all of them involve some form of possession.[xxvii] Yet the purpose is clearly to prevent prisoners from consuming controlled substances. A statute meant to maintain laws pertaining to consumption in penal institutions would have to include possession because there is no law specifically addressing consumption in correctional institutions.
Addressing the argument presented in Raybon (regarding the intent of the drafters when they excluded possession but still covered all forms of consumption) by excluding the term possession from the statute, it is possible that the drafters did not want to over-complicate the statute by including every iteration of cannabis product or technique in creating cannabis products and instead addressed the issue at the consumption stage. By doing so it is possible they wanted to condemn every act leading up to consumption, including simple possession, building or possessing devices meant to consume controlled substances[xxviii] and selling cannabis to prisoners.[xxix]
B. Considering the Voter’s Intent and Public Policy
The Raybon court addressed certain public policy arguments presented by the Attorney General. In particular, the Attorney General argued that decriminalizing possession would make enforcement in correctional institutions needlessly difficult.[xxx] This argument was rejected.[xxxi] Correctional institutions are able to restrict controlled substances with their own set of rules and punishments.[xxxii] The effectiveness of prison punishments is not discussed in Raybon or Perry, as the purpose of the cases is to determine whether possession in penal institutions violates the penal code.
For the most part Raybon does not apply public policy to its decision. This is because the Raybon court interpreted section 11362.45 as a plain language statute.[xxxiii] Since there is no ambiguity in the statute, Raybon enforces it as the plain meaning requires.[xxxiv]
Perry presents an opposing argument. Since the Perry court believed that the statutory language in section 11362.45 is ambiguous, so the courts must turn to the drafter’s intent to interpret the law.[xxxv] Perry looks at the voters’ guide to proposition 64 and explains that there is no mention of cannabis in prison.[xxxvi] It can be reasoned that the voters were not making a decision regarding cannabis in prison when proposition 64 was passed.[xxxvii] In applying the voter guide, Perry argues that Proposition 64 adopted H&S 11362.1 and PC 4573.6.[xxxviii] Although PC 4573.6 does not address cannabis directly, it can be applied collaboratively with H&S 11632.45 and Prop 64 since it was originally written to address they assumption that controlled substances in correctional institutions cause criminal activity within the penal system.[xxxix]
Because the voters did not decide about possession in prison, it is reasonable to assume that the intent of H&S 11362.45 was to leave correctional policies alone while Prop 64 was implemented.
C. Applying People v. Fenton
Both cases seem to agree that consumption within correctional institutions is problematic.[xl] The opinions differ when “possession” is considered in the law. Since cannabis was legalized by Prop 64, Raybon argues that possession of any substance not banned by Division 10 in a penal institution is not a crime.[xli] Both Perry and Raybon address this argument by applying People v. Fenton.
People v. Fenton involved a prisoner who smuggled his own prescription drugs into jail with him.[xlii] The Third Appellate District Court of Appeal of California held that possession of the drug was not punishable by the penal code because the inmate had a prescription for the drug.[xliii] The drug was not prohibited because valid prescriptions are an exception to Division 10 banned substances.[xliv]
Perry argued that Fenton did not apply to cannabis in prison because H&S 11362.45 can be interpreted to include possession.[xlv] Even if an exception to Division 10 were to apply, H&S 11362.45 negates that exception—cannabis is not considered legal with regard to correctional institutions.[xlvi] The application turns once again on the court’s interpretation of H&S 11362.45.
As such, Raybon’s analysis is easily predicted. Raybon’s court (which is also the court that decided Fenton) applied the plain language of H&S 11362.45 to Fenton and the present issue.[xlvii] Fenton allows controlled substances in penal institutions under the proper circumstances—it follows that cannabis (within the set parameters as defined in H&S 11362.1) is one of the exceptions.[xlviii]
This application also turns on how the court considers H&S 11362.45. When it applies, non-medical cannabis remains a controlled substance. As such, in Perry, Fenton is not applicable but in Raybon, Fenton is relevant case law.
II. Considering California’s Legislative Goals
The law will continue to evolve as more states legalize marijuana. This article does not present a predicative analysis as it is highly likely that People v. Raybon will be reviewed by the California Supreme Court by the time it is published. The article seeks to present an analysis on the two conflicting cases regardless of the ultimate outcome of the case.
People v. Perry presents a more compelling argument. It is unreasonable to expect penal institutions to enforce laws that agree that consumption is illegal but render them incapable of punishing those that trade and possess cannabis. But, it’s important to complete this analysis by addressing California’s legislative goals.
Although Perry is more convincing, applying Perry would only serve to extend prison sentences and deny a higher number of appeals. In 2011, the Supreme Court of the United States ruled on Brown v. Plata which upheld an order to reduce California’s prison population.[xlix] The conditions caused by overcrowding were considered cruel and unusual in violation of the Eighth Amendment.[l]
In response to mounting demands to reduce the prison population, California voters approved proposition 47 to reduce penalties for most low-level crimes.[li] Proposition 47 was supported by “nearly 60 percent of voters” and was effective in reducing the prison population.[lii] The act targeted low-level crimes such as theft of property valued at less than $950.[liii]
If California’s long-term goal is to reduce the prison population, then there is a real value in granting appeals for PC 4573.6 cannabis convictions. Doing so would serve to free those prisoners and reduce the number of extended sentences for possession in prison.
But creating a short-cut to the law is not an effective way to reduce prison populations. It should be up to California voters if they want to decriminalize marijuana in prison—a decision they were unable to make when they voted on Prop. 64.
People v. Raybon should be reversed. The decision may or may not occur before this article is published. The use of the term “pertaining to” in H&S 11362.45 is ambiguous. Although possession does not equal consumption, it is unreasonable to assume that in a controlled environment such as prison where the substance is banned by prison rules that possession is unrelated to consumption.
The Raybon court makes a compelling argument when they say that a prison’s rules can punish a prisoner just as well as the law. But basic criminal procedure tells us that only a court can impose additional time on a prisoner. Taking the threat of an additional conviction away from prison officials would be needlessly burdensome on correctional officers. A potential solution to the detriment of correctional officers is not a compelling enough reason to impose a rule of law that was not decided by California voters.
The argument in Raybon is not as compelling as the one in Perry. Raybon should be reversed and in doing so, the California Supreme Court should adopt the argument presented in People v. Perry.
[i] People v. Perry, 32 Cal. App. 5th 885 (2019).
[ii] People v. Raybon, 36 Cal. App. 5th 111 (2019).
[iii] California Proposition 64, Marijuana Legalization (2016), Ballotpedia, (https://ballotpedia.org/California_Proposition_64,_Marijuana_Legalization_(2016).
[iv] Id. Prop 64 set several other parameters about marijuana use and distribution. For the purposes of this paper, however, the focus will be on possession.
[v] Cal. Health & Safety Code § 11362.1 (Deering 2019).
[vi] Id. § 11362.1(a).
[vii] Id. § 11362.45
[viii] Cal. Penal Code § 4573.6 (LexisNexis 2019).
[ix] People v. Raybon, 36 Cal. App. 5th 111, 113 (2019).
[x] People v. Perry, 32 Cal. App. 5th 885, 888 (2019).
[xi] Cal. Health & Safety § 11362.45 (Deering 2019).
[xii] Perry, 32 Cal. App. 5th at 891.
[xv] Id. (quoting Pertain, Merriam Webster, merriam-webster.com/dictionary/pertain).
[xvi] Perry, 32 Cal. App. 5th at 892.
[xix] People v. Raybon, 36 Cal. App. 5th 111, 115 (2019).
[xxii] Id. at 115–16.
[xxiii] Id. at 121.
[xxv] Raybon, 36 Cal. App. 5th at 122–23.
[xxvi] Cal. Penal Code §§ 4570–4577 (Deering 2019).
[xxviii] Id. § 4573.8.
[xxix] Id. § 4573.9.
[xxx] Raybon, 36 Cal. App. 5th at 120.
[xxxiii] Id. at 122.
[xxxv] Perry, 32 Cal. App. 5th at 892.
[xxxvi] Id. at 895–96.
[xxxviii] Id. at 896.
[xl] Id.; Raybon, 36 Cal. App. 5th at 123.
[xli] Raybon, 36 Cal. App. 5th at 117.
[xlii] People v. Fenton, 20 Cal. App. 4th 965, 966.
[xliii] Id. at 969–70.
[xlv] Perry, 32 Cal. App. 5th at 894.
[xlvii] Raybon, 36 Cal. App. 5th at 117.
[xlix] Adam Liptak, Justices, 5-4, Tell California to Cut Prisoner Population, N.Y. Times (May 23, 2011), https://www.nytimes.com/2011/05/24/us/24scotus.html.
[li] Daniel C. Vock, After Years of Court Orders, California’s Prison Population Finally Hits Target, Governing (Oct. 9, 2015), https://www.governing.com/topics/public-justice-safety/gov-california-prison-population-proposition-47-impact.html.
Heather Elise Razook is a third-year law student at the University of La Verne, College of Law. She currently holds a Bachelor’s Degree in Criminal Justice from California State University San Bernardino and an Associates Degree in Administration of Justice from Riverside City College.