Filed 8/25/20 P. v. Archuleta CA4/1
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                COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                 DIVISION ONE

                                         STATE OF CALIFORNIA



 THE PEOPLE,                                                          D077364

           Plaintiff and Respondent,

           v.                                                         (Super. Ct. No. JCF30393)

 STEPHEN ARCHULETA,

           Defendant and Appellant.


         APPEAL from an order of the Superior Court of Imperial County,
William D. Lehman, Judge. Affirmed.
         Alex Coolman, under appointment by the Court of Appeal, for
Defendant and Appellant.
         Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Natasha
Cortina and Melissa Mandel, Deputy Attorneys General, for Plaintiff and
Respondent.
         In 2013, Stephen Archuleta pleaded no contest to possession of an
illegal substance (3.3 grams of marijuana) in prison (Pen. Code, § 4573.6) and
admitted two strike priors. The court struck the prior allegations and
sentenced Archuleta to a three-year term.
      In 2019, Archuleta filed a petition to vacate his conviction under
Proposition 64. The court denied the petition finding Proposition 64 did not
affect Penal Code section 4573.6. Specifically, the trial court relied on
People v. Perry (2019) 32 Cal.App.5th 885 (Perry), in determining possession
of not more the 28.5 grams of marijuana in prison remained a felony.
      Since the trial court’s ruling, a different Court of Appeal in People v.
Raybon (2019) 36 Cal.App.5th 111, review granted August 21, 2019, S256978
(Raybon)), found that use of marijuana in prison remains a felony under
Penal Code section 4573.8, but that a very narrow reading of Proposition 64
renders possession of a small amount of marijuana while in prison no longer
a crime. Apparently, under that reasoning, one can bring small amounts of
marijuana into the prison and possess it, so long as they don’t use it.
      Recently in People v. Whalum (2020) 50 Cal.App.5th 1 (Whalum),
review granted August 12, 2020, S262935, this court discussed the validity of
Penal Code section 4573.8 prohibiting smoking or ingesting controlled
substances in prison. We found the section remained valid after
Proposition 64. We did not specifically rule on the validity of Penal Code
section 4573.6 in cases where less than an ounce of marijuana is possessed in
prison.
      Archuleta appeals, contending we should follow the Raybon decision
and declare that possessions of “small amounts of cannabis in prison can no
longer be a violation of Penal Code section 4573.6.” As we will discuss, we
agree with the court’s analysis in Perry and find Proposition 64 did not affect
the section used in this case. Accordingly, we will affirm the denial of
Archuleta’s petition.


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                                DISCUSSION
                              A. The Contentions
      Archuleta contends his conviction under Penal Code section 4573.6
must be vacated because it has been impliedly repealed (at least in part) by
Proposition 64. He recognizes there is no specific language in the proposition
indicating it impacts statutes that prohibit either the possession or use of
marijuana by prison or jail inmates.
      Archuleta’s challenge has two principal anchors. First, he contends
because the proposition makes it unlawful to possess not more than 28.5
grams of marijuana outside of a prison or jail by persons who are at least 21
years old, under the language of Penal Code section 4573.6, possession of
such small amount of marijuana in prison is no longer a crime.
      The second basis for his contention is the so-called carve-out provision
in the proposition that exempts statutes “pertaining” to use of controlled
substances in prison means Penal Code section 4573.6, which deals with
possession, does not “pertain” to the use or ingestion of controlled substances.
      Both arguments, which Archuleta makes here, were correctly rejected
in Perry, supra, 32 Cal.App.5th 885. As we will explain, we agree with the
decision in Perry and decline to follow the contrary views expressed in
Raybon.
                              B. Legal Principles
      Proposition 64 made a number of changes in statutes relating to the
use of marijuana. Relevant here is the modification that the proposition
decriminalized simple possession of not more than 28.5 grams of marijuana
by persons over 21 outside of prisons or jails. It does not mention the crime of
possession of marijuana by inmates, except in what has been called the carve-




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out section, indicating those marijuana related statutes not affected by the
proposition.

      Health and Safety Code1 section 11362.45, subdivision (d) provides in
part, that its section 11362.1 “ ‘does not amend, repeal, affect, restrict, or
preempt: [¶] . . . [¶] . . . [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 . . . .’ (§ 11362.45, subd. (d).)” (Perry, supra, 32 Cal.App.5th at
p. 891.)
      The court in Perry specifically rejected Archuleta’s contention that the
carve out does not apply to Penal Code section 4573.6 because the language of
that section deals with possession and not use, thus a contention it does not
pertain to smoking or ingestion. The court in Perry recognized the theoretical
possibility that one could use drugs in prison without “possessing” them in a
legal sense. However, someone must possess the physical product in order for
anyone to use it. The court there found limitation of possession of marijuana
in prison clearly pertained to the ultimate goal of preventing the unlawful
use of controlled substances by inmates. (Perry, supra, 32 Cal.App.5th at
p. 892.)
      The court in Perry also rejected the contention that Penal Code
section 4573.6 is no longer valid because it prohibits possession of controlled
substances in prison if they are regulated by Division 10 of the Health and
Safety Code. (Perry, supra, 32 Cal.App.5th at p. 893.) The contention is
premised on the fact that personal possession of less than 28.5 grams by
persons 21 years old is no longer criminal. Thus, the argument continues


1     All further statutory references are to the Health and Safety Code
unless otherwise specified.
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that possession of small amounts of marijuana is not regulated by
division 10.
        In Perry, the court rejected the argument and stated: “Here, a
conclusion that division 10 [of the Health and Safety Code] does not prohibit
the possession of not more than 28.5 grams of cannabis for purposes of Penal
Code section 4573.6 would make meaningless the express provision of
Proposition 64 that its legalization of cannabis did not ‘amend, repeal, affect,
restrict, or preempt: [¶] . . . [¶] . . . . [l]aws pertaining to smoking or
ingesting cannabis’ in penal institutions.” (Perry, supra, 32 Cal.App.5th at p.
894.)
        The court went on to say that cannabis remains controlled by
division 10 and declined to adopt the interpretation offered that would
impliedly exclude possession of “small amounts” as not being subject to the
statute. (Perry, supra, 32 Cal.App.5th at p. 896.)
        Our Supreme Court has granted review in Raybon, supra, 36
Cal.App.5th 111, which takes a contrary position to Perry on both facets of
Archuleta’s argument. Ultimately, the high court will resolve the differences
in the opinions.
                                    C. Analysis
        In Whalum, supra, 50 Cal.App.5th 1, review granted August 12, 2020,
S262935, we addressed Penal Code section 4573.8, a more broadly worded
prohibition on use or ingesting of unauthorized drugs in prison. We found
the statute had not been preempted or amended by Proposition 64. We found
the carve-out provisions of the proposition retained the validity of the statute.




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We did not address the validity of Penal Code section 4573.6, as it was not
challenged in that case.
      We did discuss the Perry opinion at length. In regard to the carve out
provision, we said: “[W]e agree with Perry’s analysis regarding the scope of
the carve-out section 11362.45, subdivision (d), and we accordingly conclude
that Proposition 64 does not affect laws, including Penal Code section 4573.8,
which make it a crime to possess cannabis in a correctional institution.”
(Whalum, supra, 50 Cal.App.5th at p. 10.)
      We are faced with choosing between the analysis in Perry and the
opposing views expressed in Raybon. Pending direction to the contrary from
our high court, we will follow the reasoning of Perry and hold that Penal Code
section 4573.6 remains valid after Proposition 64, and, therefore, we will
affirm the order denying Archuleta’s petition to vacate his conviction.
                                DISPOSITION
      The order denying the petition to vacate Archuleta’s conviction of
violating Penal Code section 4573.6 is affirmed.




                                                                HUFFMAN, J.

WE CONCUR:




McCONNELL, P. J.




GUERRERO, J.


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