Filed 8/27/20 P. v. Millsap CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                         SECOND APPELLATE DISTRICT

                                      DIVISION EIGHT


THE PEOPLE,                                                  B302075

         Plaintiff and Respondent,                           (Los Angeles County
                                                             Super. Ct. No. MA063684)
         v.

KEVIN L. MILLSAP,

         Defendant and Appellant.


      APPEAL from an order of the Superior Court of
Los Angeles County. Christopher G. Estes, Judge. Affirmed.
      Richard L. Fitzer, under appointment by the Court of
Appeal, for Defendant and Appellant.
      Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Michael R. Johnsen and Blythe J. Leszkay,
Deputy Attorneys General, for Plaintiff and Respondent.
                 _____________________________
       Kevin Millsap appeals from the denial of his petition to
dismiss his six-year sentence for the offense of possession of
cannabis while in state prison. Millsap argues he is entitled to
relief because Proposition 64, enacted by the voters in 2016,
legalizes the possession of 28.5 grams of cannabis or less by
persons 21 years of age or older, even in prisons and other
correctional facilities.
       There exists a split of authority on whether Proposition 64
extends its reach to possession of cannabis in correctional
facilities. The First, Fourth, and Sixth Districts hold Proposition
64 did not affect existing prohibitions against the possession of
cannabis in prison. (People v. Perry (2019) 32 Cal.App.5th 885,
890 (Perry), review denied; People v. Whalum (2020) 50
Cal.App.5th 1, 6 (Whalum); People v. Herrera (July 31, 2020,
H046631) __Cal.App.5th__ [2020 WL 4383480] (Herrera).) The
Third District reached the opposite conclusion. (People v. Raybon
(2019) 36 Cal.App.5th 111 (Raybon).) The California Supreme
Court has granted review in Raybon (Aug. 21, 2019, S256978)
and Whalum (Aug. 12, 2020, S262935) to resolve the issue.
Pending a decision by the Supreme Court, we will follow Perry,
Whalum, and Herrera. We therefore affirm the denial of
Millsap’s petition.
                           DISCUSSION
       In 2015, a jury found Millsap guilty of possession of a
controlled substance (2.1 grams of cannabis) in state prison in
violation of Penal Code section 4573.6, subdivision (a).1 The trial


1     Penal Code section 4573.6, subdivision (a), provides in
pertinent part: “Any person who knowingly has in his or her
possession in any state prison . . . any controlled substances, the
possession of which is prohibited by Division 10 (commencing




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court sentenced Millsap to six years in state prison to be served
consecutively to his current sentence.
       On November 8, 2016, California voters passed Proposition
64, which among other things, made lawful the possession of not
more than 28.5 grams of cannabis by persons 21 years of age or
older “[s]ubject to Sections 11362.2, 11362.3, 11362.4, and
11362.45, but notwithstanding any other provision of law[.]”
(Health & Saf. Code, § 11362.1, subds. (a)(1).)2
       Relevant to this appeal, section 11362.45, subdivision (d),
sets forth a carve out which provides: “Section 11362.1 does not
amend, repeal, affect, restrict, or preempt: [¶] . . . [¶] (d) 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 Justice, or on the grounds of, or
within, any other facility or institution referenced in Section 4573
of the Penal Code.” (§ 11362.45, subd. (d).)
       Proposition 64 also established a procedure by which
“[a] person currently serving a sentence for a conviction, whether
by trial or by open or negotiated plea, who would not have been
guilty of an offense, or who would have been guilty of a lesser

with Section 11000) of the Health and Safety Code, . . . without
being authorized to so possess the same by the rules of the
Department of Corrections, rules of the prison . . . or by the
specific authorization of the warden, superintendent, jailer, or
other person in charge of the prison . . . is guilty of a felony
punishable by imprisonment pursuant to subdivision (h) of
Section 1170 for two, three, or four years.”
2    All further section references are to the Health and Safety
Code unless otherwise specified.




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offense under [Proposition 64] had that act been in effect at the
time of the offense may petition for a recall or dismissal of
sentence . . . ” (§ 11361.8, subd. (a).)
       Millsap filed a petition pursuant to section 11361.8,
subdivision (a), on August 8, 2019, seeking dismissal of his
sentence. The trial court denied it, holding Proposition 64 did not
legalize possession of cannabis in prison.
       Millsap appealed and argues he is entitled to relief because
Proposition 64 decriminalizes cannabis-related offenses such as
his. He asserts the “clear and unambiguous” language in section
11362.1 makes lawful the possession of not more than 28.5 grams
of cannabis by persons 21 years of age or older “notwithstanding
any other provision of law.” (§ 11362.1, subd. (a).) According to
Millsap, the phrase “notwithstanding any other provision of law”
is a term of art that declares the voters’ intent to override any
contrary law. He asserts Penal Code section 4573.6, subdivision
(a), the statute under which he was convicted, is the contrary law
that is overridden by Proposition 64.
       Millsap discounts the carve-out provision found in section
11362.45, subdivision (d), arguing it applies only to laws
prohibiting “smoking or ingesting cannabis” in prison. Because
he was convicted of possession of cannabis, he contends the carve-
out provision does not apply to his offense.
       Perry, Whalum, and Herrera expressly rejected Millsap’s
interpretation of the carve-out provision found in section
11362.45, subdivision (d). Perry and Herrera interpret the carve-
out provision to include Penal Code section 4573.6, subdivision
(a), as a statute “pertaining to smoking or ingesting cannabis” in
prison. Whalum, interpreting a related statute, agrees.
Thus, Proposition 64 does not “amend, repeal, affect, restrict, or




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preempt” Penal Code section 4573.6, subdivision (a). Raybon,
on the other hand, supports Millsap’s position. We find the
reasoning in Whalum, Perry, and Herrera to be persuasive and
decline to follow Raybon. The courts in Perry, Whalum, and
Herrera thoroughly examined Proposition 64 and the statutory
scheme prohibiting cannabis in correctional facilities to conclude
Proposition 64 did not legalize the possession of cannabis in state
prison. We thus adopt their reasoning without the need to repeat
it.
                         DISPOSITION
      The order denying Millsap’s petition for relief pursuant to
section 11361.8, subdivision (a) is affirmed.




                                          BIGELOW, P. J.

We Concur



                  GRIMES, J.




                  STRATTON, J.




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