People v. Nix CA4/2

• Court: California Court of Appeal
• Decided: July 29, 2021
• Docket: E076607
• Status: Unpublished

Opinion

Filed 7/29/21 P. v. Nix CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E076607

v. (Super.Ct.No. RIF1605777)

DEONDRE DELONE NIX, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. Ronald L. Taylor, Judge.

Affirmed.

Robert F. Somers, under appointment by the Court of Appeal, for Defendant and

Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Teresa

Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.

1 In 2017 Deondre Delone Nix pled guilty to possessing marijuana in prison.

In 2020, Nix moved to vacate his conviction under Proposition 64, which legalized

possession of less than 28.5 grams of marijuana by any person over the age of 21 and

allowed those currently serving sentences for possession to modify or dismiss those

convictions. The trial court denied Nix’s motion.

On appeal, Nix argues Proposition 64’s legalization of certain kinds of marijuana

possession applies to simple possession of marijuana inside a prison. The People argue

Proposition 64’s legalization of marijuana possession did not legalize possession inside

prisons. We affirm.

I

FACTS

On July 7, 2017, Nix pled guilty to possession of marijuana while in the California

Rehabilitation Center. (Pen. Code, § 4573.8.) The trial court sentenced Nix to two years,

to be served consecutive to the sentence he was already serving.

In June 2019, Nix petitioned to vacate his conviction under Health and Safety

Code 11361.8, subdivision (b) (unlabeled statutory citations refer to this code). The

Riverside County District Attorney opposed the petition. The trial court denied the

petition.

Nix timely appealed.

2 II

ANALYSIS

The issue Nix asks us to decide is whether Proposition 64 legalized a person over

21 years old possessing less than 28.5 grams of marijuana while incarcerated.

In 2016, voters passed Proposition 64, which amended Division 10 of the Health

and Safety Code. In particular, Proposition 64 added section 11362.1, which made it legal

for a person over 21 to possess less than 28.5 grams of marijuana. It also allowed certain

people currently serving sentences for such possession to petition for recall and

resentencing. (§ 11361.8.) However, Proposition 64 also added section 11362.45, which

enacted a set of savings clauses. These savings clauses state that section 11362.1’s

legalization of marijuana possession “does not amend, repeal, affect, restrict, or preempt”

certain other laws regarding possession of marijuana, including “[l]aws 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 Justice.” (§ 11362.45, subd. (d).)

Nix acknowledges that Proposition 64’s savings clause means that anybody

smoking or ingesting cannabis within a prison may still be convicted of a felony under

Penal Code section 4573.8. However, Nix argues that he was not convicted for smoking

or ingesting marijuana, only for possession. He points out that the savings clause doesn’t

specifically save the prohibition on possessing marijuana in a prison and argues this

means Proposition 64 legalized possession within a state prison along the same lines as

3 those outside it. According to Nix, he is entitled to seek recall and resentencing under

Health and Safety Code section 11361.8 because his simple possession, whether inside or

outside prison, would be legal under the law as it exists now.

California courts have addressed versions of Nix’s argument and reached

competing conclusions. The first, People v. Perry (2019) 32 Cal.App.5th 885 (Perry),

rejected Nix’s argument as it relates to Penal Code section 4573.6, which differs from

Penal Code section 4573.8 only in that it applies to controlled substances alone while

Penal Code section 4573.8 applies to all drugs and alcohol. In that case our colleagues in

the First District held “Proposition 64 did not affect existing prohibitions against the

possession of marijuana in prison or otherwise affect the operation of Penal Code

section 4573.6.” (Id. at p. 890.) The court so held because “[w]hile [Health and Safety

Code] section 11362.45, subdivision (d), does not expressly refer to ‘possession,’ its

application to possession is implied by its broad wording,” in particular its use of the

phrase “ ‘pertaining to.’ ” (Id. at p. 891, italics omitted.) The court held that

Proposition 64’s exception for “ ‘[l]aws pertaining to smoking or ingesting cannabis’ ” in

a prison may reasonably be read to include laws regarding possession of cannabis alone,

even without evidence of smoking or ingestion. It reasoned this was the appropriate

reading of section 11362.45, subdivision (d), because possession is imminently related to

smoking or ingesting, there is no reason for an inmate to possess cannabis but to

eventually ingest it, and possession has historically been treated as more culpable than

simple use, not less. (Perry, at pp. 891-892.) Accordingly, it concluded that “[i]t is

4 apparent that Proposition 64 . . . was intended to maintain the status quo with respect to

the legal status of cannabis in prison.” (Id. at pp. 892-893.)

Division One of this court and two cases out of the Sixth District have also

embraced this interpretation. (See People v. Whalum (2020) 50 Cal.App.5th 1, review

granted Aug. 12, 2020, S262935 (Whalum); People v. Herrera (2020) 52 Cal.App.5th

982, review granted Oct. 14, 2020, S264339 (Herrera); People v. Taylor (2021) 60

Cal.App.5th 115, review granted Apr. 14, 2021, S267344 (Taylor).) In particular

Division One explicitly found this interpretation applies equally to Penal Code

section 4573.8 as to Penal Code section 4573.6. (Whalum, at p. 3 [“We conclude that the

crime of possessing unauthorized cannabis in prison in violation of Penal Code

section 4573.8 was not affected by Proposition 64.”].)

However, in People v. Raybon (2019) 36 Cal.App.5th 111 (Raybon), review

granted August 21, 2019, S256978, the Third District explicitly rejected the court’s

holding in Perry. Instead, the court decided that Proposition 64’s savings clause was not

ambiguous, and that the plain meaning should prevail. That is, the Raybon court

concluded “it stretches the imagination to conclude that the drafters listed two distinct

activities, ‘smoking or ingesting,’ intending to include a third distinct activity,

possession, by using the vague reference ‘pertaining to.’ ” (Id. at p. 121.) They concluded

the purpose of the “ ‘pertaining to’ ” language “is to describe the vast array of means of

consumption and consumption, not possession, is the act the voters determined should

remain criminalized if the user is in prison.” (Id. at p. 122.) In particular the court noted

5 the “ ‘pertaining to’ ” language would continue to criminalize the ways “inhaled as a

nonburning vapor or applied topically such that it is absorbed through the skin.” (Id. at

p. 122.).

We agree with Perry and decline to follow Raybon. In particular, we agree with

the former cases that section 11362.45, subdivision (d), is ambiguous, and disagree with

Raybon that it either has a plain meaning or that the plain meaning is what they say it is.

Perry correctly argues the phrase “pertaining to” renders subdivision (d) both more broad

and more ambiguous than similar provisions in section 11362.45 because the question of

what pertains to smoking or ingesting marijuana is open-ended. As the court in Perry

pointed out, the word pertain throws a wide net, as it can mean “ ‘to belong as an

attribute, feature, or function’ [citation], ‘to have reference or relation; relate’ [citation],

[or] ‘[b]e appropriate, related, or applicable to’ [citation].” (Perry, supra, 32 Cal.App.5th

at p. 891.) Given this, we are “hard pressed to conclude that possession of cannabis is

unrelated to smoking or ingesting the substance.” (Ibid.)

Moreover, Raybon does not properly address Perry’s most compelling argument:

that there is no reason for any prisoner to possess marijuana without a medical

prescription except to consume it illegally or allow another prisoner to consume it

illegally. Circumstances where possessing and use are decoupled do exist elsewhere and

are regulated separately in those circumstances. For instance, we can imagine innocent

scenarios in which a responsible marijuana user could want to possess marijuana without

intending to use it, likely because they are legally transporting it from one location to

6 another. This explains why section 11362.45 would save laws prohibiting possession in

drug-free workplaces under subdivision (f), or why section 11362.3 subdivision (a)(5),

prohibits possessing cannabis on school grounds. This is because there may be reasons

someone could possess marijuana at work or school without intending to smoke or ingest

it, and the voters of California wanted to make clear that such possession was still

prohibited.

No such similar reasons exist in prison. Prisoners do not possess marijuana merely

to transport it legally from one location to another. Smoking or ingesting are always

criminal regardless of the location within the prison. “ ‘ “[I]n interpreting a voter

initiative . . . , [t]he [initiative’s] language must . . . be construed in the context of the

statute as a whole and the [initiative’s] overall . . . scheme.” ’ ” (Whalum, supra, 50

Cal.App.5th at p. 10.) “In the context of possession in prison, it is particularly obvious

that possession must ‘pertain’ to smoking or ingesting. For what purpose would an

inmate possess cannabis that was not meant to be smoked or ingested by anyone?”

(Perry, supra, 32 Cal.App.5th at p. 892.) Indeed, Nix doesn’t offer any proposed

scenarios where possession of marijuana in a prison would be unrelated to the

consumption or ingestion of that marijuana. Because there is no reason to possess

marijuana in a prison except to consume it illegally, section 11362.45, subdivision (d),

didn’t need to specify that possession was still prohibited in prisons. In that context,

prohibiting smoking or ingesting and those activities “pertaining to” the same necessarily

prohibits possession.

7 Similarly, the absence of such “pertaining to” language in other subdivisions of

section 11362.45 demonstrates that the drafters, and the voters, were capable of saving

only those laws strictly related to consumption and chose not to. For instance,

subdivision (a) saves “[l]aws making it unlawful to drive or operate a vehicle . . . while

smoking, ingesting, or impaired by, cannabis.” (§11362.45, subd. (a).) The drafters of

Proposition 64 could have phrased subdivision (d) the same way, saving only those laws

prohibiting smoking or ingesting cannabis in a prison. They did not. Instead, they saved

any law “pertaining to” smoking or ingesting marijuana. That the statute does not use this

phrasing in one case where it would make sense to do so, but does in another, implies the

drafters, and the voters who approved Proposition 64, intended to save more of the

relevant laws regulating marijuana in prison than those regulating marijuana elsewhere.

The absence of “pertaining to” language in subdivision (a) of section 11362.45

also directly contradicts one of Raybon’s conclusions. Namely, Raybon found that the

“ ‘pertaining to’ ” language is not surplusage because it “describe[s] the vast array of

means of consumption,” as “consumption can be achieved in ways not strictly involving

smoking or ingesting.” (Raybon, supra, 36 Cal.App.5th at p. 122.) If so, the lack of any

“pertaining to” language in subdivision (a) would compel us to conclude it only applies to

smoking or ingesting marijuana. In other words, reading the “pertaining to” language in

subdivision (d) to have the narrow meaning ascribed to it in Raybon also narrows

subdivision (a). This would mean subdivision (a) only saves those laws regulating

smoking or ingesting marijuana while operating a vehicle and not those laws regulating,

8 for instance, vaping, dabbing, or absorbing marijuana through the skin while operating a

vehicle. Thus, under Raybon’s interpretation, the “pertaining to” language is either

surplusage, or subdivision (a) prohibits consuming marijuana while operating a vehicle

only if you are smoking or ingesting it. We think both conclusions are absurd.

Instead, we agree with our colleagues in Perry, Whalum, Herrera, and Taylor that

section 11362.45, subdivision (d), continues to criminalize marijuana possession in

prison, because such possession necessarily pertains to smoking or ingesting it.

III

DISPOSITION

We affirm.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

SLOUGH J. We concur:

MILLER Acting P. J.

FIELDS J.