People v. Raybon

IN THE SUPREME COURT OF

CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

GOLDY RAYBON,

Defendant and Appellant.

[And four other cases*]

S256978

Third Appellate District

C084853

Sacramento County Superior Court

09F08248

August 12, 2021

Justice Groban authored the opinion of the Court, in which

Chief Justice Cantil-Sakauye and Justices Corrigan, Liu,

Cuéllar, and Jenkins concurred.

Justice Kruger filed a concurring and dissenting opinion, in

which Justice Cuéllar concurred.

*

People v. Cooper (No. C084911 [Super. Ct. No. 13F03230]);

People v. Davis (No. C084960 [Super. Ct. No. 08F07402]); People

v. Haynes (No. C084964 [Super. Ct. No. 12F00411]); People v.

Potter (No. C085101 [Super. Ct. No. 06F11185]).

PEOPLE v. RAYBON

S256978

Opinion of the Court by Groban, J.

This case requires us to interpret Proposition 64, the

Control, Regulate and Tax Adult Use of Marijuana Act (Prop.

64, as approved by voters, Gen. Elec. (Nov. 8, 2016) (Proposition

64 or the Act)). The question we must answer is whether

Proposition 64 invalidates cannabis-related convictions under

Penal Code section 4573.6, which makes it a felony to possess a

controlled substance in a state correctional facility. Although

Proposition 64 generally legalizes adult possession of cannabis, 1

it contains several exceptions. One such exception provides that

the Act does not amend or affect “[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 . . . .” (Health &

Saf. Code, § 11362.45, subd. (d).) The Attorney General

contends this exception applies to violations of Penal Code

section 4573.6, meaning that possession of cannabis in a

correctional facility remains a felony. Defendants2 disagree,

1

In 2017, the Legislature replaced all references to

“marijuana” in the Health and Safety Code with the term

“cannabis.” (Stats. 2017, ch. 27, §§ 113–160.) Thus, although

Proposition 64 used the term “marijuana,” we refer to the

amended terminology “cannabis” throughout this opinion.

2

Defendants are Goldy Raybon (No. C084853), Anthony L.

Cooper (No. C084911), Dwain Davis (No. C084960), Scott

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Opinion of the Court by Groban, J.

arguing that because the exception only refers to “[l]aws

pertaining to smoking or ingesting cannabis,” it does not apply

to laws that merely criminalize possession of cannabis.

Ultimately, we find the Attorney General’s proposed

reading of Health and Safety Code section 11362.45, subdivision

(d)3 to be more persuasive. As discussed below, the phrase

“[l]aws pertaining to smoking or ingesting cannabis” (ibid.) is

broad enough to encompass statutes that criminalize

possession. Moreover, there is no law that makes it a crime to

smoke, ingest or use cannabis (or any other form of drug) in

prison. Instead, the Legislature has taken a “ ‘ “prophylactic” ’ ”

approach to the problem of drug use in prison by criminalizing

only the possession of such drugs. (People v. Low (2010) 49

Cal.4th 372, 388 (Low).) Thus, under defendants’

interpretation, section 11362.45, subdivision (d)’s carve-out

provision would fail to preserve any preexisting law regulating

cannabis in prisons from being “amend[ed], repeal[ed],

affect[ed], restrict[ed], or preempt[ed]” (§ 11362.45), and would

instead render the possession and use of up to 28.5 grams of

cannabis in prison entirely lawful. It seems unlikely that was

the voters’ intent. Stated differently, it seems implausible that

the voters would understand the requirement that Proposition

64 does not “amend, repeal, affect, restrict, or preempt” any

“[l]aws pertaining to smoking or ingesting cannabis” (§

11362.45, subd. (d)) to convey that, as of the date of the

initiative’s enactment, possessing and using up to 28.5 grams of

Wendell Haynes (No. C084964), and James Potter (No.

C085101).

3

Unless otherwise noted, all further statutory citations are

to the Health and Safety Code.

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PEOPLE v. RAYBON

Opinion of the Court by Groban, J.

cannabis would now essentially be decriminalized in prisons. In

our view, the more reasonable interpretation of section

11362.45, subdivision (d) is that the statute is intended “to

maintain the status quo with respect to the legal status of

cannabis in prison.” (People v. Perry (2019) 32 Cal.App.5th 885,

893 (Perry).) Thus, possession of cannabis in prison remains a

violation of Penal Code section 4573.6.

I. BACKGROUND

The five defendants in this case were each found in

possession of less than 28.5 grams of cannabis in a state prison

and were subsequently convicted of violating Penal Code section

4573.6. Most of the defendants were serving time for a prior

serious or violent felony at the time of their possession offenses,

resulting in second-strike sentences that added several years to

their current term.4

In 2016, the voters passed Proposition 64, which makes it

lawful for persons aged 21 years and older to engage in various

types of conduct involving cannabis, including the possession of

up to 28.5 grams of cannabis (approximately one ounce), subject

to certain exceptions. (See Voter Information Guide, Gen. Elec.

4

Four of the five defendants were incarcerated at the time

of their possession violation: defendant Goldy Raybon, who

admitted a prior strike and was sentenced to a consecutive term

of four years; defendant James Potter, who was found to have a

prior strike and was sentenced to a consecutive term of six years;

defendant Anthony Cooper, who was found to have a prior strike

and was sentenced to a consecutive term of six years; and

defendant Dwayne Davis, whose sentence is not indicated in the

record. The fifth defendant, Scott Haynes, brought concentrated

cannabis into a prison to give to an inmate. Haynes’s sentence

is not stated in the record, but he was on probation at the time

he filed his petition for relief.

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Opinion of the Court by Groban, J.

(Nov. 8, 2016) text of Prop. 64, § 4.4, p. 180 (Voter Guide); Health

& Saf. Code, § 11362.1, subd. (a).)5 The initiative also includes

a remedial provision that allows persons currently serving a

sentence for a cannabis-related crime that is no longer an

offense under Proposition 64 to file a petition requesting the

dismissal of their sentence. (Voter Guide, supra, text of Prop.

64, § 8.7, p. 207; § 11361.8, subd. (a).) Acting pursuant to that

new provision, defendants filed petitions in the Sacramento

County Superior Court arguing that their sentences for

violating Penal Code section 4573.6 should be dismissed because

adult possession of less than an ounce of cannabis in prison no

longer qualifies as a crime.

The district attorney opposed the petitions, asserting that

Penal Code section 4573.6 falls within an exception set forth in

Health and Safety Code section 11362.45, subdivision (d) stating

that Proposition 64 has no effect on laws “pertaining to smoking

or ingesting cannabis or cannabis products” in state correctional

facilities. (§ 11362.45, subd. (d) (hereafter section 11362.45(d)).)

The trial court agreed and issued orders denying the petitions.

Defendants appealed to the Third District and their cases were

consolidated for purposes of argument and decision.

While the appeal was pending, the First District issued

Perry, supra, 32 Cal.App.5th 885, which held that “Proposition

64 did not affect existing prohibitions against the possession of

marijuana in prison or otherwise affect the operation of Penal

5

The Voter Guide is available at

<https://vig.cdn.sos.ca.gov/2016/general/en/pdf/complete-

vig.pdf> (as of Aug. 10, 2021); all Internet citations in this

opinion are archived by year, docket number, and case name at

<http://www.courts.ca.gov/38324.htm>.

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Opinion of the Court by Groban, J.

Code section 4573.6.” (Id. at p. 890, italics omitted.) Like the

trial court in this case, the First District concluded that the

phrase “ ‘[l]aws pertaining to smoking or ingesting cannabis [in

prison]’ ” implicitly extends to possession under Penal Code

section 4573.6 because the possession of cannabis is directly

related to smoking or ingesting the substance. (Perry, at p. 891.)

The Third District disagreed with Perry and held that the

phrase “pertaining to smoking and ingesting” was not

“intend[ed] to include a third distinct activity, possession.”

(People v. Raybon (2019) 36 Cal.App.5th 111, 121 (Raybon).)

The court further held that the clear and unambiguous intent of

the phrase “pertaining to” was “to describe the . . . means of

[cannabis] consumption” that do “not strictly involv[e] smoking

or ingesting, such as inhal[ing] as a non-burning vapor or

appl[ying] topically such that it is absorbed through the skin.”

(Ibid. [“there is no ambiguity [in section 11362.45(d)]”].) Having

found the “conduct underlying [defendants’] convictions is no

longer criminal under Penal Code section 4573.6,” the Court of

Appeal directed the superior court “to enter orders granting the

petitions for relief.” (Raybon, at p. 126.)

The Attorney General filed a petition for review seeking

resolution of the following question: “Did Proposition 64, which

generally legalized the simple possession of less than an ounce

of cannabis, also legalize such possession in state prisons and

other custodial institutions?”6

6

During the pendency of our review, the Fourth and Sixth

Districts issued published decisions rejecting Raybon, supra, 36

Cal.App.5th 111, and agreeing with Perry’s conclusion that

Proposition 64 was not intended to affect laws criminalizing the

possession of cannabis in prison. We granted review in those

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Opinion of the Court by Groban, J.

II. DISCUSSION

A. Legal Framework

1. Statutory prohibitions on cannabis possession prior

to Proposition 64

Division 10 of the Health and Safety Code comprises the

California Uniform Controlled Substances Act. (§ 11000 et seq.)

Chapter 2 of the act contains schedules listing the controlled

substances that are subject to the provisions of division 10,

which includes cannabis.7 (See § 11054, subd. (d)(13).) Chapter

6 of the act describes offenses associated with controlled

substances, and article 2 (§ 11357 et seq.) sets forth offenses

related to cannabis. Prior to Proposition 64, section 11357 made

it a crime to possess nonmedical cannabis and set forth the

applicable punishments for such conduct. (See former § 11357,

subd. (a); Voter Guide, supra, text of Prop. 64, § 8.1, pp. 204–

205.)

Penal Code section 4573 et seq. “place restrictions

on possessing and importing drugs and other contraband in

custody.” (Low, supra, 49 Cal.4th at p. 382.) Two of these

provisions target the possession of drugs in custodial settings.

The offense at issue here, Penal Code section 4573.6 , makes it

a felony to knowingly “possess[] in any state prison, . . . or in any

county . . . or city jail, . . . any controlled substances, the

matters and deferred further action pending our resolution of

this case. (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).) To date, no published Court of Appeal

decision has agreed with Raybon.

7

Unspecified statutory references to “division 10” in this

majority opinion are to this act.

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PEOPLE v. RAYBON

Opinion of the Court by Groban, J.

possession of which is prohibited by Division 10 . . . of the

Health and Safety Code . . . , without being authorized to so

possess . . . by the rules of the Department of Corrections, [the]

rules of [the correctional facility] or by the specific authorization

of the [persons in charge of the facility] . . . .” (Pen. Code, §

4573.6, subd. (a).) A violation of this section is “punishable by

imprisonment pursuant to subdivision (h) of Section 1170 for

two, three, or four years.” (Ibid.) Penal Code section 4573.8 has

broader application, making it a crime to possess “in any state

prison . . . drugs in any manner . . . or alcoholic

beverages, without being authorized to [so] possess the same by

[the] rules of the [prison].” This latter section is also a felony,

but carries a lesser sentencing range of 16 months, two or three

years. (See Pen. Code, §§ 18, 4573.8.) Because both offenses are

felonies, persons convicted under Penal Code section 4573.6 or

4573.8 who have previously been convicted of a serious or violent

felony — likely a common situation given that both statutes

involve conduct committed while on the grounds of a

correctional facility — will have their sentence doubled unless

the trial court elects to remove the prior strike. (See Pen. Code,

§§ 667, subd. (e)(1), 1385, subd. (b); People v. Romero (1996) 13

Cal.4th 497, 504 (Romero).) Other similar provisions prohibit

bringing controlled substances and other forms of drugs into

prisons or causing such substances to be brought into prisons.

(See Pen. Code, §§ 4573, 4573.5.)

These statutes, which target the possession rather than

the consumption of unauthorized drugs in prison, “flow from the

assumption that drugs . . . and other contraband promote

disruptive and violent acts in custody, including gang

involvement in the drug trade. Hence, these provisions are

viewed as ‘ “prophylactic” ’ measures that attack the ‘ “very

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PEOPLE v. RAYBON

Opinion of the Court by Groban, J.

presence” ’ of such items in the penal system.” (Low, supra, 49

Cal.4th at p. 388.) There is no law that criminalizes the actual

consumption of drugs in a custodial setting.

2. Proposition 64

In November 2016, voters enacted Proposition 64, which

was intended “to establish a comprehensive system to legalize,

control and regulate the cultivation, processing, manufacture,

distribution, testing, and sale of nonmedical marijuana,

including marijuana products, for use by adults 21 years and

older, and to tax the commercial growth and retail sale of

marijuana.” (Voter Guide, supra, text of Prop. 64, § 3, p. 179.)

In addition to regulating the production and sale of nonmedical

cannabis, the Act was intended to “[p]ermit adults 21 years and

older to use, possess, purchase and grow nonmedical marijuana

within defined limits . . . as set forth in [the Act].” (Id., § 3, subd.

(l).)

Proposition 64’s legalization provision, set forth in newly

added section 11362.1, subdivision (a), provides in relevant part:

“Subject to Sections 11362.2, 11362.3, 11362.4, and 11362.45,

but notwithstanding any other provision of law, it shall be

lawful under state and local law, and shall not be a violation of

state or local law, for persons 21 years of age or older to: [¶] (1)

Possess . . . not more than 28.5 grams of cannabis not in the

form of concentrated cannabis; [¶] (2) Possess . . . not more than

eight grams of cannabis in the form of concentrated

cannabis . . . ; [¶] (3) Possess, plant, cultivate, harvest, dry, or

process not more than six living cannabis plants . . . ; [¶] (4)

Smoke or ingest cannabis or cannabis products; and [¶] (5)

Possess, . . . use, . . . or give away cannabis accessories to

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Opinion of the Court by Groban, J.

persons 21 years of age or older without any compensation

whatsoever.”

Section 11362.3, subdivision (a) places limitations on the

possession and use of cannabis, directing that “[s]ection 11362.1

does not permit any person to” (among other things): “Smoke or

ingest cannabis or cannabis products” in a public place (§

11362.3, subd. (a)(1)); “Smoke cannabis or cannabis products

within 1,000 feet of a school” while children are present (id.,

subd. (a)(3)); “Possess an open container . . . of cannabis or

cannabis products” while in a car or other form of motor vehicle

(id., subd. (a)(4)); “Possess, smoke, or ingest cannabis or

cannabis products” on the grounds of a school when children are

present (id., subd. (a)(5)); “Smoke or ingest cannabis or cannabis

products while driving” a motor vehicle or while “riding in the

passenger seat or compartment of a motor vehicle” (id., subd.

(a)(7), (8)).

The penalties for engaging in any of these prohibited

activities are set forth in newly added section 11362.4. (See

Voter Guide, supra, text of Prop. 64, § 4.7, pp. 181–182.)

Proposition 64 also amended former section 11357, which had

previously criminalized the possession of nonmedical cannabis.

(See ante, at p. 6.) As amended, section 11357 now sets forth the

penalties for possessing cannabis in quantities that exceed the

limits described in section 11362.1 or by persons under the age

of 21. (See Voter Guide, supra, text of Prop. 64, § 8.1, pp. 204–

205.)

Section 11362.45, also added by Proposition 64, describes

various categories of laws and rules the Act does not affect or

restrict. Of particular importance here, the section provides:

“Section 11362.1 does not amend, repeal, affect, restrict, or

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Opinion of the Court by Groban, J.

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(d).)

Other subdivisions of section 11362.45 exempt “[l]aws

making it unlawful to drive or operate a vehicle . . . while

smoking, ingesting, or impaired by, cannabis or cannabis

products . . .” (§ 11362.45, subd. (a)) and “[l]aws providing that

it would constitute negligence or professional malpractice to

undertake any task while impaired from smoking or ingesting

cannabis or cannabis products” (§ 11362.45, subd. (e)). The

section also preserves the “rights . . . of public and private

employers to maintain a drug and alcohol free workplace . . . .”

(§ 11362.45, subd. (f)) and allows government and private

entities to prohibit any of the conduct permitted under section

11362.1 in government buildings or on private property (§

11362.45, subds. (f) & (g)).

Finally, Proposition 64 added remedial provisions for

persons convicted of a cannabis-related crime “who would not

have been guilty of an offense, or who would have been guilty of

a lesser offense under [the Act].” (§ 11361.8, subd. (a); see id.,

subd. (e).) Section 11361.8, subdivision (a) allows persons

currently serving a sentence for such an offense to “petition for

a recall or dismissal of sentence before the trial court that

entered the judgment of conviction in his or her case to request

resentencing or dismissal in accordance with Sections 11357,

11358, 11359, 11360, 11362.1, 11362.2, 11362.3, and 11362.4 as

those sections have been amended or added by [the Act].”

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B. Rules of Construction Governing Voter

Initiatives

“ ‘In interpreting a voter initiative . . . , we apply the same

principles that govern statutory construction.’ [Citation.]

Where a law is adopted by the voters, ‘their intent governs.’

[Citation.] In determining that intent, ‘we turn first to the

language of the statute, giving the words their ordinary

meaning.’ [Citation.] But the statutory language must also be

construed in the context of the statute as a whole and the overall

statutory scheme. [Citation.] We apply a presumption, as we

similarly do with regard to the Legislature, that the voters, in

adopting an initiative, did so being ‘aware of existing laws at the

time the initiative was enacted.’ ” (People v. Buycks (2018) 5

Cal.5th 857, 879–880.)

“ ‘Absent ambiguity, we presume that the voters intend

the meaning apparent on the face of an initiative measure

[citation] and the court may not add to the statute or rewrite it

to conform to an assumed intent that is not apparent in its

language.’ [Citation.]” (Professional Engineers in California

Government v. Kempton (2007) 40 Cal.4th 1016, 1037.)

However, where “statutory ambiguity exists,” our role is “to

ascertain the most reasonable interpretation.” (People v. Canty

(2004) 32 Cal.4th 1266, 1277 (Canty).) In making that

determination, we may “ ‘refer to other indicia of the voters’

intent, particularly the analyses and arguments contained in

the official ballot pamphlet.’ [Citation.]” (People v. Rizo (2000)

22 Cal.4th 681, 685 (Rizo).)

C. Analysis

The question we must decide in this case is whether, after

Proposition 64, possession of less than an ounce of cannabis in a

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state correctional facility remains a violation of Penal Code

section 4573.6. The Attorney General argues Proposition 64 has

no effect on section 4573.6 offenses because the statute qualifies

as a “[l]aw[] pertaining to smoking or ingesting cannabis” within

the meaning of Health and Safety Code section 11362.45(d).

Defendants disagree, contending that section 11362.45(d) only

exempts laws “involving [the] consumption of marijuana in

prison,” and therefore does not extend to possession offenses.

As an initial matter, we disagree with the Court of

Appeal’s conclusion that “there is no ambiguity” (Raybon, supra,

36 Cal.App.5th at p. 121) in section 11362.45(d). In our view,

both parties have presented reasonable interpretations of the

statute. (See People v. Dieck (2009) 46 Cal.4th 934, 940 [“A

statutory provision is ambiguous if it is susceptible of two

reasonable interpretations”].) As the defendants argue, had the

drafters intended to carve out laws that prohibit possession of

cannabis in prison, they could have simply included the word

“possession” in section 11362.45(d), just as they did in other

sections of the Act. (See, e.g., § 11362.3, subd. (a)(5) [the Act

does not permit a person to “[p]ossess, smoke, or ingest cannabis

or cannabis products” on school grounds].) On the other hand,

as the Attorney General asserts, had the drafters meant to limit

section 11362.45(d)’s application to laws that actually prohibit

smoking or ingesting cannabis in prison, they could have simply

used the phrase “laws prohibiting smoking or ingesting.”

Instead, the drafters chose the modifying term “pertaining to”

(ibid.), suggesting they intended some broader application of the

provision. Complicating matters further, apart from the text of

section 11362.45(d) itself, the Act and the Voter Guide do not

contain any other statements referencing how Proposition 64

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was intended to affect laws relating to cannabis in correctional

facilities.

Despite such ambiguity, we must nonetheless attempt to

discern which of the parties’ interpretations is most reasonable.

(See Canty, supra, 32 Cal.4th at p. 1277.) For the reasons that

follow, we agree with the Attorney General that Proposition 64

is most reasonably construed as having no effect on section

4573.6 offenses.

1. Section 11362.45(d) is most reasonably construed

as encompassing laws that prohibit the possession

of cannabis in prison

Section 11362.45 expressly provides that Proposition 64

does “not amend, repeal, affect, restrict, or preempt” various

categories of laws and rules related to cannabis, including “(d)

Laws pertaining to smoking or ingesting cannabis [in

correctional facilities].” As Perry and other decisions have

observed, on its face, the phrase “laws pertaining to smoking or

ingesting cannabis” is broad enough to encompass statutes that

prohibit the possession of cannabis. (See Perry, supra, 32

Cal.App.5th at p. 891 [the term “pertain” has “wide reach”];

Whalum, supra, 50 Cal.App.5th at p. 11, rev. granted; Herrera,

supra, 52 Cal.App.5th at p. 991, rev. granted.) In interpreting a

statute, we generally “accord words their usual, ordinary, and

common sense meaning.” (In re Rojas (1979) 23 Cal.3d 152,

155.) Black’s Law Dictionary defines “pertain” to mean “[t]o

relate directly to; to concern or have to do with.” (Black’s Law

Dict. (11th ed. 2019) p. 1383, col. 1.) Webster’s Third New

International Dictionary defines the term to mean, among other

things, “to have some connection with or relation to something:

have reference: relate.” (Webster’s 3d New Internat. Dict.

(2002) p. 1688, col. 1.) Numerous other dictionary sources

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similarly define “pertain” in terms of having reference to or a

relation to.8 As the Fourth District has aptly explained, “[a]ll of

these definitions demonstrate that ‘pertaining to’ has a

definition similar to the phrase ‘relating to.’ The phrase is

plainly meant to refer to a relation between two things rather

than an exact correspondence.” (Whalum, at p. 11; see Garner,

Dict. of Modern American Usage (1998), p. 47 [“pertain usually

means ‘to relate to; concern’ ”].) Thus, the text of section

11362.45(d) suggests the drafters did not intend the statute to

encompass only laws that explicitly regulate ingesting or

smoking cannabis in prison, but rather intended it to include

laws that relate to smoking or ingesting cannabis in prison.

We think it clear that laws barring possession of cannabis

in prison relate to drug use. The act of possessing cannabis and

the act of using cannabis have an obvious relation insofar as “a

person has to possess cannabis to smoke or ingest it.” (Whalum,

supra, 50 Cal.App.5th at p. 12, rev. granted; see Perry, supra, 32

Cal.App.5th at p. 891 [“[w]e would be hard pressed to conclude

that possession of cannabis is unrelated to smoking or ingesting

the substance”].) Long before Proposition 64 was passed, our

8

See Dictionary.com

<https://dictionary.com/browse/pertains?=1> (as of Aug. 10,

2021) (“to have reference or relation; relate”); Oxford English

Dictionary Online

<https://www.oed.com/view/Entry/141585?redirectedFrom=pert

ain#eid> (as of Aug. 10, 2021) (“To relate to; to refer to.

Frequently in present participle in pertaining to” (boldface

omitted)); Cambridge Dict.

<https://dictionary.cambridge.org/us/dictionary/english/pertain

-to-something?q=pertain> (Aug. 10, 2021) (defining “pertain to

something” to mean “to relate to or have a connection with

something” (boldface omitted)).)

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courts had repeatedly observed that while Penal Code section

4573.6 and its ancillary provisions (see Pen. Code § 4573 et seq.)

target possession of drugs in prison rather than their use, the

primary purpose of those provisions is nonetheless to deter drug

use in such facilities: “ ‘[T]he ultimate evil with which the

Legislature was concerned [when enacting Penal Code section

4573 et seq.] was drug use by prisoners. Nevertheless, it chose

to take a prophylactic approach to the problem by attacking the

very presence of drugs and drug paraphernalia in prisons and

jails.’ [Citation.]” (People v. Harris (2006) 145 Cal.App.4th 1456,

1461 (Harris); see Low, supra, 49 Cal.4th at p. 388; People v.

Parodi (2011) 198 Cal.App.4th 1179, 1186, fn. 4; People v.

Gutierrez (1997) 52 Cal.App.4th 380, 386.) Indeed, there is no

statute that specifically criminalizes the use of cannabis or any

other type of drug in prison, nor did any such provision exist

when Proposition 64 was adopted. Instead, through the

adoption of Penal Code section 4573 et seq., the Legislature has

aimed to eliminate drug use in prison by targeting the

possession of those illicit substances. In that way, the Penal

Code’s prohibitions on drug possession in prison directly pertain

to drug use.

The Attorney General’s proposed reading of section

11362.45(d) finds further support in the text of the other

subdivisions within that statute. Unlike subdivision (d), several

of section 11362.45’s other subdivisions utilize the terms “laws

prohibiting” or “laws making it unlawful” when describing the

categories of statutes that Proposition 64 does not amend or

affect. Section 11362.45, subdivision (a), for example, exempts

from Proposition 64’s legalization provision laws making it

“unlawful to” operate a vehicle while “smoking, ingesting, or

impaired by, cannabis”; subdivision (b) exempts laws

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“prohibiting” the sale or furnishing of cannabis to persons under

21 years of age; and subdivision (c) exempts laws “prohibiting”

minors from engaging in any of the activities listed in section

11362.1. Had the drafters intended to limit subdivision (d) in

the manner defendants suggest, they could have incorporated

language similar to that used in subdivisions (a) through (c) by

exempting laws that “prohibit” smoking or ingesting cannabis

in prison, or laws that make it “unlawful” to do so. Instead, the

drafters chose to use the modifying term “pertaining to,” which

implies an intent to encompass not only laws that actually

prohibit smoking or ingesting cannabis, but also laws that have

a relation to smoking or ingesting cannabis.

We also find it significant that the only existing laws

regulating cannabis use and possession in correctional facilities

target the act of possession, rather than use. Thus, if section

11362.45(d) is interpreted to apply only to laws that bar the use

of cannabis, the statute would not preserve any existing law

relating to cannabis in prison from being “amend[ed], repeal[ed],

affect[ed], restrict[ed], or preempt[ed].” (Ibid.) To the contrary,

the statute would effectively operate to remove all of the central

existing criminal prohibitions on cannabis in prisons, making it

lawful to both possess and use the drug while incarcerated.9

Stated differently, defendants contend that the phrase “[s]ection

11362.1 does not amend, repeal, affect, restrict, or preempt” any

9

Smoking (but not ingesting) cannabis in a correctional

facility would presumably remain chargeable as an infraction

under section 11362.3, subdivision (a)(2), which prohibits

smoking cannabis “in a location where smoking tobacco is

prohibited.” (See § 11362.4, subd. (b) [violation of § 11362.3,

subd. (a)(2) is an infraction].)

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“[l]aws pertaining to smoking or ingesting cannabis or cannabis

products” in prison (§ 11362.45(d)) is intended to convey that, as

of the date of the initiative’s enactment, possessing and using

up to 28.5 grams of cannabis would now essentially be

decriminalized in prisons. We agree with the Attorney General

that if the drafters had intended to so dramatically change the

laws regarding cannabis in prison, we would expect them to

have been more explicit about their goals. Moreover, we think

it likely that voters, who we must assume were aware that

existing laws governing cannabis in prisons targeted possession

rather than use (see People v. Orozco (2020) 9 Cal.5th 111, 118;

Williams v. County of San Joaquin (1990) 225 Cal.App.3d 1326,

1332 [electorate is “conclusively presumed to have enacted the

new laws in light of existing laws having direct bearing upon

them”]), would have read section 11362.45(d) to retain those

laws, rather than repeal them.

Finally, between the parties’ two proposed

interpretations, we find the Attorney General’s construction to

be more “ ‘compatible with common sense.’ ” (In re Estate of

Todd (1941) 17 Cal.2d 270, 275 [“ ‘the language of a statute must

be given a reasonable interpretation . . . and . . . , when

opportunity arises, made compatible with common sense’ ”]; City

of Chula Vista v. Sandoval (2020) 49 Cal.App.5th 539, 560

[“ ‘ “ ‘if the clear meaning of the statutory language is not

evident . . . , we will “apply reason, practicality, and common

sense to the language at hand. If possible, the words should be

interpreted to make them workable and reasonable

[citations], . . . practical [citations], in accord with common

sense . . . ” ’ ” ’ ”].) While perhaps not illogical to distinguish

between the possession and use of cannabis, it is nonetheless

difficult to understand why the electorate would want to

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preclude laws criminalizing cannabis possession in prison, but

permit laws criminalizing cannabis consumption in prison.

Defendants theorize that voters may have wanted to

“decriminalize[] simple possession” while “retaining sanctions

for those who actually use it” because “it is the consumption of

marijuana that is the problem . . . .” But if voters were truly

concerned about cannabis use in prison, why would they want

to remove the existing penal provisions that target that very

problem? Moreover, defendants have not identified any reason

why a person might possess cannabis within a correctional

facility other than to have it consumed by someone. (See Perry,

supra, 32 Cal.App.5th at p. 892 [“For what purpose would an

inmate possess cannabis that was not meant to be smoked or

ingested by anyone?”].) Simply put, we are dubious that the

voters intended to legalize the possession of cannabis in prison

but permit laws that criminalize the use of cannabis in prison

(of which there are currently none).

2. Defendants’ counterarguments

Defendants raise numerous counterarguments in support

of their assertion that Proposition 64 invalidates cannabis-

related convictions under Penal Code section 4573.6. We find

these arguments unavailing.

a. Defendants’ arguments regarding the text of

section 11362.45(d)

Defendants’ primary contention is that if the drafters had

meant section 11362.45(d) to extend to offenses involving the

possession of cannabis, they would have expressly stated as

much, just as they did in other provisions of Proposition 64.

(See, e.g., §§ 11362.1, subd. (a)(1), (2), (3) & (5), 11362.3, subd.

(a)(4), (5), 11362.45, subd. (f).) Section 11362.3, subdivision (4),

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for example, states that persons are not permitted to “possess”

an open container of cannabis in a vehicle, while subdivision (5)

states that persons are not permitted to “possess, smoke or

ingest cannabis” on school grounds while children are present.

In defendants’ view, these provisions demonstrate the “drafters

knew how to reference possession when they wanted to. A voter

would view possession outside the purview of section

11362.45(d) because the distinct acts of ‘smoking or ingesting’

are explicitly flagged but possession is not.”

If section 11362.45(d) merely stated that Proposition 64

was not intended to affect laws prohibiting or criminalizing

smoking or ingesting cannabis in prison, we would attach more

significance to the absence of the term “possession.” But the

drafters chose broader language, exempting “[l]aws pertaining

to smoking and ingesting” cannabis in prison. (Ibid., italics

added.) While using the word “possession” may well have

provided a simpler means of encompassing laws that bar

possession of cannabis in prison, we must nonetheless give effect

to “pertaining,” a term that generally “signals a relation to

something.” (Whalum, supra, 50 Cal.App.5th at p. 12, rev.

granted.) And as explained above, we think it clear that

possession of cannabis is directly related to smoking or ingesting

the substance. (See ante, at pp. 13–15.) The conclusion that

laws prohibiting possession of cannabis relate to cannabis

consumption accords with our courts’ long-standing

acknowledgment that the primary intent of section 4573.6’s

prohibition of possession is in fact to stop “drug use by

prisoners.” (Harris, supra, 145 Cal.App.4th at p. 1461.) Indeed,

there is no criminal provision that makes it unlawful to use

cannabis or other controlled substances in prison; instead, the

Legislature has elected to attack drug use in correctional

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facilities by prohibiting “the ‘ “very presence” ’ of such

[substances] in the penal system.” (Low, supra, 49 Cal.4th at p.

388.) For all those reasons, we reject defendants’ assertion that

the absence of the term “possession” precludes section

11362.45(d)’s application to possessory offenses. 10

10

Defendants similarly argue that if “pertaining to” was

meant to include possession, the drafters could have used the

phrase “pertaining to marijuana.” In their view, reading

possession into the statute effectively “writes the limiting words

[‘smoking or ingesting’] out of the statute completely.” We do

not agree that interpreting the term “pertaining to smoking or

ingesting cannabis” to include possession offenses necessarily

renders the words “smoking or ingesting” meaningless. Rather,

the inclusion of that language seems intended to signal that

section 11362.45(d) is meant to encompass laws that relate to

the use of cannabis. The drafters could quite logically endeavor

to limit the possible range of laws in this way (i.e., to all laws

pertaining to smoking or ingesting of cannabis) to avoid

invoking the much broader category of laws that relate in any

conceivable way to cannabis, many of which would have no

applicability in a prison setting, such as laws related to labeling,

advertising, packaging, or transporting in an automobile.

Moreover, “like all . . . interpretive canons, the canon

against surplusage is a guide to statutory interpretation and is

not invariably controlling.” (People v. Valencia (2017) 3 Cal.5th

347, 381 (conc. opn. of Kruger, J.) (Valencia), citing People v.

Cruz (1996) 13 Cal.4th 764, 782; see In re J.W. (2002) 29 Cal.4th

200, 209; Arlington Central School Dist. Bd. of Ed. v. Murphy

(2006) 548 U.S. 291, 299, fn. 1; Lamie v. United States Trustee

(2004) 540 U.S. 526, 536.) To the extent our interpretation

results in some level of redundancy, we nonetheless believe it “is

more consistent with voter intent” than defendants’ proposed

reading (Rizo, supra, 22 Cal.4th at p. 687 [canon against

surplusage “is only a ‘guide[] and will not be used to defeat

legislative intent’ ”]), which would render section 11362.45(d)

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Recognizing that the term “pertaining to” cannot be read

out of the statute entirely, defendants posit that such language

was simply intended to “encapsulate” other methods of cannabis

consumption that “do not strictly involve smoking or ingesting.”

Defendants assert those alternative means include, for example,

vaping and absorption through the skin. The Court of Appeal

found this argument persuasive, explaining that “[b]y including

the language ‘pertaining to smoking and ingesting,’ the drafters

allowed for these various [additional] forms of consumption in

prison to remain unlawful.” (Raybon, supra, 36 Cal.App.5th at

p. 122 [“We agree with defendants that consumption can be

achieved in ways not strictly involving smoking or ingesting,

such as inhaled as a nonburning vapor or applied topically such

that it is absorbed through the skin”].)

We find defendants’ proposed interpretation of “pertaining

to” in section 11362.45(d) unpersuasive. First, we question

defendants’ unexamined assumption that the term “smoking or

ingesting” is not broad enough to encompass the alternative

means of consumption they have identified. Section 11362.3,

subdivision (b)(2), for example, demonstrates that regardless of

whether vaping is technically a form of smoking, the drafters

appear to have equated those activities. (See ibid. [“ ‘Smoke’

includes the use of an electronic smoking device that creates an

aerosol or vapor, in any manner or in any form, or the use of any

oral smoking device for the purpose of circumventing the

prohibition of smoking in a place”].) Moreover, the term “ingest”

is commonly defined to mean “to take in: swallow, absorb.”

inapplicable to any existing statute and effectively legalize the

possession and use of cannabis in prison.

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(Merriam-Webster’s Unabridged Dict. Online

<https://unabridged.merriam-webster.com/unabridged/ingest>

[as of Aug. 10, 2021], italics added; see Webster’s 3d New

Internat. Dict. (1993) p. 1162, col. 2; Roget’s Thesaurus (5th ed.

1992) p. 938 [listing “absorb” as synonym of “ingest”].) That

definition seems broad enough to incorporate cannabis

consumed through topical applications or other forms of

absorption.

Second, and more importantly, other sections of

Proposition 64 strongly suggest the drafters intended the words

“smoking or ingesting” to encompass all forms of consumption.

Section 11362.1, subdivision (a)(4), for example, makes it legal

to “[s]moke or ingest cannabis.” Similarly, section 11362.3

prohibits “[s]mok[ing] or ingest[ing] cannabis” in public (id.,

subd. (a)(1)), while on school grounds when children are present

(subd. (a)(5)) and while driving or operating a motor vehicle (id.,

subd. (a)(7)). Section 11362.45, subdivision (e) additionally

provides that Proposition 64’s legalization provision does not

affect “[l]aws providing that it would constitute negligence or

professional malpractice to undertake any task while impaired

from smoking or ingesting cannabis.”

In each of these circumstances, we believe the drafters

intended “smoking or ingesting” to cover all forms of cannabis

consumption. We find it doubtful, for example, that the drafters

meant to prohibit people from smoking or eating cannabis while

driving but permit them to vape or absorb cannabis products

while driving. We are equally dubious that the drafters

intended to allow laws providing that it would constitute

professional negligence to undertake a task while impaired from

smoking or eating cannabis, but not while impaired from vaping

or absorbing cannabis. Because numerous other sections of

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Proposition 64 appear to use the phrase “smoking or ingesting”

to refer to all methods of consumption, we are not persuaded

that the term “pertaining to” was merely intended to capture

alternative means of consumption that do not strictly involve

smoking or ingesting. Instead, as described above, we conclude

that term is most reasonably construed as intending to broaden

the scope of section 11362.45(d) to laws that relate to cannabis

use, which necessarily includes possession offenses. 11

Defendants also discount the absence of any law making

it a crime to smoke, ingest or consume cannabis in prison or jail.

They argue that section 11362.45(d) was never intended to carve

out preexisting laws involving cannabis in prison, but rather was

meant to authorize the Legislature to pass future laws that

“proscrib[e] smoking or ingesting (or other forms of consuming)

marijuana on jail or prison grounds, should legislators consider

them appropriate.” Defendants contend that in the absence of

11

Moreover, if the drafters were truly concerned that

“smoking or ingesting” was not broad enough to encompass

different forms of consumption, adding the term “pertaining to”

would seem an odd way of trying to capture those alternative

means of consumption. As we have explained, the term

“pertain” generally signifies a direct relationship with

something else. (See ante, at pp. 13–14.) Thus, using the phrase

“laws pertaining to smoking or ingesting” seems a

counterintuitive way to convey the concept that the law was

intended to capture smoking or ingesting cannabis, along with

any other different forms of consumption. (See Whalum, supra,

50 Cal.App.5th at p. 12, fn. 8, rev. granted [“Because ‘pertaining

to’ means ‘relating to,’ someone would not normally describe the

topical application or vaporizing of cannabis as ‘pertaining to’

the smoking or ingesting of cannabis, as they are different ways

of using cannabis and therefore do not relate to one another”].)

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section 11362.45(d), our Constitution would prevent the

Legislature from passing such laws without the electorate’s

approval. (See Cal. Const. art. 2, § 10, subd. (c) [Legislature

must obtain the electorate’s approval before amending “an

initiative statute by another statute . . . unless the initiative

statute permits amendment . . . without [their] approval”].)

Assuming arguendo that the language of section

11362.45(d) permits the Legislature to pass or repeal laws that

pertain to cannabis use in prison without electorate approval,

we are not persuaded a reasonable voter would interpret that to

be the sole intent of the provision. As explained above, if section

11362.45(d) were only meant to permit the Legislature to pass

future laws criminalizing cannabis use in prison, one would

expect some language clarifying that prospective intent.

Instead, the statute states only that Proposition 64 does not

“amend, repeal, affect, restrict, or preempt” any “[l]aws

pertaining to smoking or ingesting cannabis” in prison.

(§ 11362.45(d).) The clear implication is that the initiative

would leave intact some existing restriction on cannabis in

prison. We find defendants’ proposed reading of this

language — to convey that the initiative would remove existing

penal restrictions regulating cannabis in prison but authorize

the Legislature to pass future laws criminalizing cannabis use

in prison — to be far more strained. (See People v. Nuckles

(2013) 56 Cal.4th 601, 611–612 [a reviewing court should “ ‘not

strain to interpret a penal statute in defendant’s favor if it can

fairly discern a contrary legislative intent’ ”].)12

12

Although multiple subdivisions of section 11362.45 are

clearly intended to preserve preexisting laws (see § 11362.45,

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Defendants next contend that section 11362.1, subdivision

(a)’s use of the statutory phrase “notwithstanding any other

provision of law” makes clear that adult possession of less than

28.5 grams of cannabis in prison no longer qualifies as a

violation of Penal Code section 4573.6. The relevant clause of

section 11362.1, subdivision (a)(1) states: “Subject to Sections

11362.2, 11362.3, 11362.4, and 11362.45, but notwithstanding

any other provision of law, it shall be lawful . . . for persons 21

years of age to . . . [¶] . . . [p]ossess . . . not more than 28.5 grams

of cannabis.” As defendants note, “ ‘[t]he statutory phrase

“notwithstanding any other provision of law” has been called a

“ ‘term of art’ ” [citation] that declares the legislative intent to

override all contrary law.’ [Citation.]” (Arias v. Superior Court

(2009) 46 Cal.4th 969, 983.) Defendants assert that because

Penal Code section 4573.6’s prohibition on cannabis possession

in prison conflicts with Health and Safety Code section 11362.1’s

subds. (a), (i)), other subdivisions seem intended to operate on a

prospective basis. Subdivisions (g) and (h), for example,

preserve public and private entities’ “ability . . . to prohibit or

restrict any of the actions or conduct otherwise permitted under

Section 11362.1” within government buildings and on private

property. Subdivision (d), however, does not speak in terms of

retaining the Legislature’s “ability” to act, and the preexisting

statutory provisions barring drug possession in prison (see Pen.

Code, §§ 4573.6, 4573.8) have long been understood as

prophylactic measures intended to deter drug use in such

facilities (see ante, at pp. 14–15). In light of these factors, we

think section 11362.45(d) is more reasonably construed as

incorporating preexisting possessory offenses, rather than

operating solely to allow the Legislature to adopt laws

prohibiting cannabis consumption in the future.

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legalization provision, it is necessarily rendered inapplicable by

the “notwithstanding” clause. This argument, however,

overlooks the limiting language in section 11362.1 that

expressly lists section 11362.45 as an exception to the

“notwithstanding any other provision of law” clause. For the

reasons discussed above, we are of the view that section

11362.45, subdivision (d) carves out from Proposition 64’s

legalization provision offenses involving the possession of

cannabis in prison. Accordingly, the “notwithstanding”

provision is of no aid to defendants’ interpretation.

Finally, defendants argue the Voter Guide provides

“rich . . . support” for the conclusion that Proposition 64 was

intended to legalize the possession of cannabis in prison. They

note that the Voter Guide contains no language informing voters

that Proposition 64 would leave in place existing prohibitions on

cannabis possession in prison. Defendants also cite to a table in

the Legislative Analyst’s summary listing what activities would

become lawful under the measure and what activities would

remain unlawful. The section of the table addressing possession

states that while it would be allowable for persons 21 or over to

possess up to 28.5 grams of cannabis, it would not be allowable

to possess cannabis on school grounds while children are

present. (See Voter Guide, supra, analysis of Prop. 64 by the

Legis. Analyst, p. 92, figure 2.) According to defendants, the

electorate would have likely inferred from this table that

possession in prison would become legal because such conduct

was not listed as an activity that would remain unlawful.

We find nothing in the Voter Guide that provides

substantial support for either side’s interpretation. As

defendants acknowledge, the Voter Guide does not contain a

single reference to laws regulating cannabis in prisons nor does

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it explain how Proposition 64 would impact those laws. While

defendants argue voters would have inferred from such silence

that possession in prison would become legal, we think it just as

likely they would have interpreted such silence to mean that

Proposition 64 would have no effect on existing laws prohibiting

the possession of cannabis in prison. Moreover, it is clear the

table that defendants have identified provided only an

incomplete summary of what forms of conduct the Act would

preclude. That table, for example, fails to note that possession

of an open container of cannabis in a vehicle would remain

unlawful and omits numerous other forms of conduct and laws

that fall outside Proposition 64’s purview, including most of the

activities referenced in section 11362.45. Given the Voter

Guide’s total silence on the issue of cannabis in prison, we do not

believe it would have any appreciable effect on voters’

understanding of section 11362.45(d).

b. Defendants’ arguments regarding the text of

Penal Code section 4573.6

Defendants additionally argue that even if section

11362.45(d) does generally extend to possession offenses, their

convictions should nonetheless be dismissed because the act of

possessing cannabis in prisons no longer falls within the

category of conduct proscribed under Penal Code section 4573.6.

Defendants note that the text of Penal Code section 4573.6 does

not state that it is unlawful to possess any controlled substance

in prison; rather, the statute states that it is unlawful to possess

“a[] controlled substance[ ], the possession of which is prohibited

by Division 10 . . . of the Health and Safety Code.” In defendants’

view, this statutory language means that Penal Code section

4573.6 applies only when the circumstances of the person’s

possession in prison would also violate an independent

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prohibition on possession set forth in division 10. They further

contend that while cannabis remains listed as a controlled

substance, Proposition 64’s addition of section 11362.1 and its

amendments to section 11357 mean that there is no longer any

provision in division 10 that prohibits an adult from possessing

less than 28.5 grams of cannabis (except in limited

circumstances not at issue here). As a result, defendants reason,

their conduct no longer constitutes a violation of Penal Code

section 4573.6, and their convictions must be dismissed.13

13

The Attorney General argues that even if cannabis

possession no longer violates Penal Code section 4573.6 on a

prospective basis, we must nonetheless reject defendants’

petitions because “the remedial procedure in Health and Safety

Code section 11361.8” does not extend retroactive relief to

persons who were previously convicted of violating that statute.

Section 11361.8, subdivision (a) allows any person “who would

not have been guilty of an offense, or who would have been guilty

of a lesser offense” under Proposition 64 to file a petition seeking

dismissal or resentencing “in accordance with Sections 11357,

11358, 11359, 11360, 11362.1, 11362.2, 11362.3, and 11362.4 as

those sections have been amended or added by that act.” The

Attorney General appears to argue that because Penal Code

section 4573.6 is not among the statutes listed in section

11361.8, subdivision (a), persons convicted of violating that

section are not eligible for relief. We disagree with that analysis.

If defendants are correct that cannabis possession is no longer a

violation of Penal Code section 4573.6, that is a result of

Proposition 64’s new legalization provision (§ 11362.1) and the

Act’s amendments to section 11357, which had previously made

it unlawful to possess nonmedical cannabis. Thus, defendants

are in fact seeking relief “in accordance with” two of the statutes

listed in section 11362.8, subdivision (a) “as those sections have

been amended or added by the act.” (Ibid.)

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Our Courts of Appeal are currently divided as to the

meaning of the phrase “any controlled substance[], the

possession of which is prohibited by Division 10 . . . of the

Health and Safety Code,” which appears in multiple Penal Code

sections regulating drugs in prisons. (Pen. Code, § 4573.6, subd.

(a); see Pen. Code, §§ 4573, subd. (a) [“any controlled substance,

the possession of which is prohibited by Division 10 . . . of the

Health and Safety Code”], 4573.9 [same].) In People v. Fenton

(1993) 20 Cal.App.4th 965 (Fenton), the Court of Appeal

considered the meaning of that phrase within the context of

Penal Code section 4573, which makes it unlawful to bring or

send into a prison “any controlled substance, the possession of

which is prohibited by Division 10.” (Pen. Code, § 4573, subd.

(a).) The defendant, who was found smuggling hydrocodone into

a jail, argued that he could not be convicted under Penal Code

section 4573 because he had had a physician’s prescription for

the substance, and thus his possession was not “prohibited by

Division 10” of the Health and Safety Code. (See § 11350, subd.

(a) [prohibiting possession of hydrocodone “unless upon the

written prescription of a physician”].) The Fenton court agreed,

concluding that Penal Code section 4573 was inapplicable

because the manner of defendant’s possession did not violate

any provision in division 10. (Fenton, at p. 969.)

In People v. Taylor (2021) 60 Cal.App.5th 115, review

granted April 14, 2021, S267344 (Taylor), the defendants relied

on Fenton in arguing that Proposition 64’s amendments to

section 11357 mean that possession of less than 28.5 grams of

cannabis in prison by an adult no longer qualifies as a violation

of Penal Code section 4573.6. The court rejected that argument

(and Fenton), concluding that “[b]ased on the entire statutory

scheme, . . . the phrase ‘any controlled substance, the possession

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of which is prohibited by Division 10 . . .’ [citation] refers to a

general category of controlled substances, rather than a

particular instance of possession, and encompasses those

controlled substances, the possession of which is in any way

prohibited by Division 10.” (Taylor, at p. 130.) In the Taylor

court’s view, because cannabis possession remains unlawful

under some circumstances, possession of cannabis in prison

continues to qualify as a violation of Penal Code section 4573.6.

We need not resolve that dispute here. Regardless of how

Penal Code section 4573.6 might apply with respect to other

controlled substances, the unique language of Health and Safety

Code section 11362.45(d) makes clear that the voters intended

cannabis possession to remain a violation of that felony

provision. There is no question that before the enactment of

Proposition 64, possession of cannabis in prison qualified as a

violation of Penal Code section 4573.6. Section 11362.45(d), in

turn, expressly directs that Proposition 64’s newly added

legalization provision, which declares it is now lawful for adults

to possess up to 28.5 grams of cannabis in most circumstances

(§ 11362.1, subd. (a)(1)), does not “amend” or “affect” any laws

pertaining to cannabis use in prison, which we have found to

include possessory offenses. (See ante, at pp. 13–18.) Voters

would have reasonably understood this language to mean that

any preexisting laws regulating cannabis possession in prison

would remain in place. Under that view, voters would expect

cannabis possession to remain a violation of Penal Code section

4573.6 unless and until further amendments are made to the

statutory scheme. (See Voter Guide, supra, text of Prop. 64, §

10, p. 210 [authorizing the Legislature to “amend, add, or repeal

any provisions to further reduce the penalties for any of the

offenses addressed by this [Act]”].) Under defendants’

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interpretation of Penal Code section 4573.6, in contrast,

Proposition 64 would directly “amend” or “affect” a law

pertaining to smoking of ingesting cannabis. More specifically,

their interpretation would “amend” and “affect” the scope of

Penal Code section 4573.6 by making it no longer applicable to

cannabis possession. (See Perry, supra, 32 Cal.App.5th at p.

896 [“We decline to adopt an interpretation of . . . Penal Code

section 4573.6 that appears to be so at odds with the intent

behind and language of Proposition 64”]; Herrera, supra, 52

Cal.App.5th at pp. 994–995, rev. granted [adopting Perry’s

reasoning].)14

The dissent takes a different view, though for reasons that

are distinct from the arguments made by defendants or any

other court that has addressed this issue. While agreeing that

Health and Safety Code section 11362.45(d)’s carve-out

provision operates to preserve cannabis-related convictions

under Penal Code section 4573.8 (which makes it a felony to

14

The Court of Appeal concluded that this case was

controlled by its prior decision in Fenton, supra, 20 Cal.App.4th

965. (See Raybon, supra, 36 Cal.App.5th at pp. 116–119.) As

the Perry court explained, however, the situation in Fenton was

substantially different than the one presented here.

Specifically, Fenton’s conclusion that Penal Code section 4573

“ ‘permit[s] controlled substances to be in penal institutions

under proper circumstances’ [citation] . . . . did not conflict with

any other provision of law. Here, a conclusion that Division 10

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. (§ 11362.45, subd.

(d).)” (Perry, supra, 32 Cal.App.5th at p. 894.)

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possess any drug or alcohol in prison), the dissent does not

believe the carve-out provision preserves cannabis-related

convictions under Penal Code section 4573.6, subdivision (a)

(which applies to “controlled substances, the possession of which

is prohibited in Division 10”). (See conc. & dis. opn. of Kruger,

J., post, at pp. 1, 7.) According to the dissent, whether cannabis

possession remains a violation of Penal Code section 4573.6

turns instead solely on the meaning of the clause, “controlled

substance[], the possession of which is prohibited by Division

10.” (Id., subd. (a).) As noted above, the meaning of that

language has divided our courts. (See ante, at pp. 28–30.) The

dissent, however, declines to choose a side in that debate and

would leave the question open. (See conc. & dis. opn. of Kruger,

J., post, at p. 6.)

Before turning to the merits of the dissent’s proposed

interpretation of Proposition 64, we first address the dissent’s

assertion that there is no reason for this court to even decide

whether cannabis possession remains a violation of Penal Code

section 4573.6. The dissent reasons that it is unnecessary to

address that issue because the defendants’ petitions seek

dismissal of their sentences, but the most relief they could

possibly obtain under Proposition 64 would be resentencing

pursuant to Penal Code section 4573.8’s “relatively lighter”

(conc. & dis. opn. of Kruger, J., post, at p. 8, fn. 3) triad of

penalties. That reasoning rests on the assumption that Penal

Code section 4573.8 might qualify as a “lesser offense” of Penal

Code section 4573.6 within the meaning of Proposition 64’s

remedial provision. (See § 11361.8, subd. (a) [persons “currently

serving a sentence for a conviction . . . who would not have been

guilty of an offense, or who would have been guilty of a lesser

offense [under Proposition 64]” may petition for “resentencing or

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dismissal”].) In the dissent’s view, regardless of whether the

defendants would be entitled to resentencing had they sought

that remedy (another issue the dissent would leave open), they

are not entitled to dismissal, negating the need to address

Proposition 64’s effect on Penal Code section 4573.6.

While the dissent concludes that we should avoid this

issue entirely based on the manner the defendants have styled

their request for relief, we think the question is properly before

us and should be decided now. Indeed, the defendants’ briefs in

both the Court of Appeal and this court include an entire section

expressly arguing that even if section Health and Safety Code

section 11362.45(d) generally extends to possessory offenses, the

other changes Proposition 64 made to division 10 mean that

cannabis possession no longer qualifies as a violation of Penal

Code section 4573.6. Moreover, whether cannabis possession

remains a violation of Penal Code section 4573.6 is an issue that

has already divided our lower courts and therefore requires

resolution by this court. We think the better course is to decide

this fully briefed legal question now rather than avoid it merely

because defendants described their request for relief as one

seeking dismissal rather than resentencing.15

15

Deciding whether cannabis possession remains a violation

of Penal Code section 4573.6 now also furthers the interest in

judicial economy. During the pendency of this case, we have

granted and held over 40 cases addressing whether Proposition

64 legalized possession of cannabis in prisons. A vast majority

of those cases involve defendants who were convicted of

violating Penal Code section 4573.6. The dissent’s proposed

course would effectively force the five defendants in this case

(along with every other similarly situated person seeking relief

under Proposition 64) to refile new petitions under section

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Turning to the merits of the dissent’s interpretation, a

brief review of Proposition 64’s structure is helpful. The central

provision of Proposition 64 is newly added section 11362.1,

which declares that, subject to certain exceptions, it is now legal

for persons age 21 years or older to engage in a wide array of

cannabis-related conduct, including possessing up to 28.5 grams

of the drug. To conform to section 11362.1’s broad legalization

provision, Proposition 64 also amended language in section

11357 that had previously made possession of up to 28.5 grams

of cannabis an infraction. That amended language modifies

section 11357 to state the penalties for conduct that falls outside

the parameters of section 11362.1’s legalization provision (i.e.,

possessing more than 28.5 grams of cannabis or possession by

persons under the age of 21). Section 11362.45(d), in turn, states

11361.8 seeking resentencing (rather than dismissal), requiring

our lower courts to decide anew whether cannabis possession

remains a violation of Penal Code section 4573.6. Given that the

defendants have expressly raised and briefed whether cannabis

possession remains a violation of Penal Code section 4573.6, we

see no need to force them to relitigate (and for our lower courts

to redecide) that pure question of law. The dissent suggests

there might be some benefit to proceeding in that way because

our lower courts would then be able to consider defendants’

entitlement to resentencing “in a case in which the relevant

arguments had been appropriately raised and litigated, which is

not the case here.” (Conc. & dis. opn., Kruger, J., post, at p. 8,

fn. 3.) But whether cannabis possession remains a violation of

Penal Code section 4573.6 is a precursor question our lower

courts would have to answer before considering any possible

entitlement to resentencing. The resolution of the Penal Code

section 4573.6 issue here means our lower courts do not need to

even reach the resentencing issue.

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that Proposition 64’s affirmative legalization provision has no

effect on laws pertaining to cannabis use in prison. 16

As described above, we think the key statutory language

is not that complicated: Section 11362.45(d) references section

11362.1, which is the broadly worded catch all provision from

Proposition 64 that declares it is now legal for adults to possess

up to 28.5 grams of cannabis under most circumstances.

Section 11362.45(d) then says that this broad legalization

provision does not “amend, repeal, affect, restrict, or preempt”

any “[l]aws pertaining to smoking or ingesting cannabis,” which

the dissent agrees encompasses possessory offenses. We think

that when voters were told the broad pronouncement legalizing

cannabis contained in section 11362.1 would not affect laws

16

While at times referencing to section 11362.1 as a

“legalization provision” (see, e.g., conc. & dis. opn. of Kruger, J.,

post, at p. 4), the dissent characterizes it as “in essence, a

preemption provision” (ibid.), while describing section 11357 as

a separate “legalization provision” (conc. & dis. opn. of Kruger,

J., post, at p. 11). We disagree with those characterizations.

Although section 11362.1 contains a preemption clause, that

new provision — one of the very first provisions presented in

Proposition 64 — also broadly pronounces that a wide range of

cannabis-related conduct is now lawful, including the possession

of not more than 28.5 grams of cannabis by persons over the age

of 21. The amendments to section 11357, in comparison, appear

far later in the text of Proposition 64 and in our view were made

to conform to the broad legalization pronouncement made in

section 11362.1. Stated differently, section 11362.1, not section

11357, is the “legalization provision” and the amendments to

section 11357 simply ensure consistency with section 11362.1.

Indeed, it would seem to make little sense to adopt a new

provision declaring cannabis possession generally legal (section

11362.1), while leaving in place a preexisting statute declaring

cannabis possession generally unlawful (section 11357).

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prohibiting possession in prison, they would understand this

language to mean that existing laws prohibiting cannabis

possession in prison would remain in place.

The dissent disagrees, concluding that the language is, in

fact, quite complicated. The dissent concludes that the voters

were asked to journey through a phalanx of complex statutory

cross-references and legal conclusions and, at the end of the

journey, would have concluded that Proposition 64 might

actually “amend, repeal, affect, restrict, [and] preempt” some

laws prohibiting the possession of cannabis in prisons, but not

others. The journey goes something like this: The dissent first

contends that when voters were told Proposition 64’s key

legalization provision would have no effect on in-prison

possession offenses, they would have understood that language

to mean the initiative would have no effect on convictions under

Penal Code section 4573.8, but might have an effect on

convictions under Penal Code section 4573.6. In the dissent’s

view, voters would have come to this conclusion because they

would have understood that section 11362.45(d)’s “no effect”

clause references Proposition 64’s legalization provision (§

11362.1), but not the amendments made to section 11357. They

then would have understood that Proposition 64 removed

section 11357’s previous general prohibition on cannabis

possession and replaced it with more narrow prohibitions. They

then would have realized that section 11357 is part of division

10 of the Health and Safety Code. And they would have noted

that Penal Code section 4573.6 cross-references the prohibitions

in division 10. (See Pen. Code, § 4573.6, subd. (a) [making it a

felony to possess a “controlled substance[], the possession of

which is prohibited under Division 10”].) Voters would then

realize that because division 10 no longer contains a general

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Opinion of the Court by Groban, J.

prohibition on cannabis possession (it instead conforms to

Proposition 64’s legalization provision by prohibiting a more

narrow class of cannabis-related crimes involving persons under

the age of 21 and quantities in excess of 28.5 grams), and

because section 11362.45(d) fails to state that the amendments

to section 11357 were not intended to affect prison offenses (it

only cross-references section 11362.1’s general legalization

prohibitions), cannabis possession might no longer qualify as a

violation of Penal Code section 4573.6.

But the work of the voter would still not be done. From

that, the voters would then deduce that whether Proposition 64

affects convictions under Penal Code section 4573.6 will

ultimately depend on how courts interpret the phrase “the

possession of which is prohibited under Division 10” (which the

dissent declines to do here). More specifically, they would

understand that if the courts ultimately side with the Fenton’s

line of analysis (see ante, at pp. 28–29), then criminal

convictions under Penal Code section 4573.6 would be

prohibited under most circumstances, but if courts side with

Taylor’s line of analysis (see ante, at pp. 29–30) criminal

convictions under Penal Code section 4573.6 would remain

unaffected by Proposition 64.

While the dissent has come up with an intricate

interpretation, we do not think it is the most reasonable

interpretation of the initiative. (See People v. Jones (1993) 5

Cal.4th 1142, 1150 (Jones) [when faced with ambiguous

statutory language, our duty is to discern “the most reasonable

reading of” the law].) Simply put, we are dubious that when

voters were told Proposition 64’s new legalization provision

would have no effect on laws regulating possession of cannabis

in prison, they would have understood that language to require

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the complex series of deductions and statutory cross-references

that the dissent’s interpretation is built upon. (See Valencia,

supra, 3 Cal.5th at pp. 370, 371 [while voters are presumed to

“ ‘study and understand the content of complex initiative

measures’ ” “it is unreasonable to presume that the voters had

such a ‘degree of thoroughness’ that they . . . analyzed various

provisions using the acumen of a legal professional”].) We do

not read the language, “Section 11362.1 does not amend, repeal,

affect, restrict, or preempt . . . [¶] . . . [¶] . . . [l]aws pertaining to

smoking or ingesting cannabis . . .” (§ 11362.45(d)) as meaning,

as the dissent seems to read it: “We hereby (might) do away

with the more serious criminal sanctions for cannabis

possession in a penal setting under Penal Code section 4573.6,

but people in prison may continue to be prosecuted and receive

shorter sentences pursuant to Penal Code section 4573.8.” If

Proposition 64 were truly intended to have no effect on

possessory offenses under Penal Code section 4573.8, but

potentially preclude possessory offenses under Penal Code

section 4573.6, we would expect the text to say so in a less

convoluted manner.17

17

The dissent finds it significant that while two published

appellate decisions have concluded that Health and Welfare

Code section 11362.45(d) operates to preserve cannabis

convictions under Penal Code section 4573.6 (see Perry, supra,

32 Cal.App.5th at p. 896; Herrera, supra, 52 Cal.App.5th at

pp. 994–995, rev. granted), the Attorney General did not

expressly rely on that argument here and his briefing appears

to leave open whether cannabis possession remains chargeable

under that provision. (See conc. & dis. opn., Kruger, J., post, at

pp. 8–9.) At oral argument, however, the Attorney General

clarified that the People do believe cannabis possession remains

a violation of Penal Code section 4573.6, citing the Sixth

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The dissent’s reading of section 11362.45(d) would also

have curious consequences regardless of how our courts

ultimately interpret the language in Penal Code section 4573.6

(which again, the dissent has declined to take a position on).

Under the view espoused in Taylor, supra, 60 Cal.App.5th 115,

review granted, cannabis possession, regardless of the

defendant’s age, would remain a violation of Penal Code section

4573.6 because division 10 still prohibits possession under some

circumstances. (See ante, at pp. 29–30.) But under the view

espoused in Fenton, only inmates under the age of 21 could be

prosecuted under Penal Code section 4573.6, and therefore

inmates under the age of 21 would face harsher felony treatment

for possession of cannabis than inmates over the age of 21.18

This means that if the dissent’s theory ultimately came to

fruition, culminating in the application of Fenton, 20-year-old

inmates (or any 20 year old who happens to be on prison

grounds) could be prosecuted under Penal Code section 4573.6,

District’s decision in Taylor, supra, 60 Cal.App.5th 115 (see ante

at pp. 29–30). Having embraced Taylor’s conclusion that

cannabis possession remains a violation of Penal Code section

4573.6, we find little significance in the fact that the Attorney

General did not expressly approve of an alternative legal theory

that results in the same outcome.

18

As discussed above, Fenton, supra, 20 Cal.App.4th 965,

concluded that Penal Code section 4573 (which includes the

same operational language as Penal Code section 4573.6)

applies only when the circumstances of defendant’s possession

would independently violate a provision in division 10. (See

ante, at pp. 28–29.) Section 11357, in turn, retains prohibitions

on possession by persons under the age of 21 (see § 11357, subd.

(a)), meaning that possession by such persons would violate a

provision in division 10. Thus, under Fenton, persons under the

age of 21 could still be prosecuted under Penal Code section

4573.6.

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but 21 year olds could not. We find it unlikely that the voters

would have understood the text of sections 11362.45(d) and

11357 to mean that a 20-year-old inmate found in possession of

cannabis would remain chargeable under Penal Code section

4573.6, but a 21-year-old inmate — perhaps in the same

correctional facility and even sharing the same cell — who

engaged in the same conduct would not. Indeed, such an

outcome, particularly punishing less mature inmates more

harshly than more mature inmates, would seem to make little

sense in a penological setting. 19 So in the end, the dissent’s

interpretation either ends in the same place as the majority view

(albeit, through a more winding road) or would mean that

possession of cannabis in prison by persons under the age of 21

would face harsher felony treatment than persons over the age

of 21.

It is true that the amendments Proposition 64 made to

division 10 have created tension between the “no effect”

principle set forth in Health and Safety Code section

11362.45(d) and Penal Code section 4573.6, subdivision (a)’s

reference to controlled substances “the possession of which is

prohibited under Division 10.” When faced with such ambiguity,

however, our task is “ ‘to identify the interpretation that best

effectuates the [voters’] intent.’ ” (Rossa v. D.L. Falk

19

While the dissent contends “the possibility that

Proposition 64 affected charging under Penal Code section

4573.6 is not so far-fetched that we can dismiss it out of hand”

(conc. & dis. opn., Kruger, J., post, at p. 13), it offers no

justification for why the electorate would want to punish

younger people more harshly for cannabis offenses in prison

than more mature people. (See Jones, supra, 5 Cal.4th at p.

1150 [when interpreting ambiguous language, court’s role is to

ascertain “the most reasonable reading of” the law].)

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Construction, Inc. (2012) 53 Cal.4th 387, 392; see Lungren v.

Deukmejian (1988) 45 Cal.3d 727, 735 [“The intent prevails over

the letter, and the letter will, if possible, be so read as to conform

to the spirit of the act”].) In this case, we think a more plausible

conclusion is that when voters read language stating that the

newly added statute legalizing adult possession of cannabis in

most situations would have no effect on laws prohibiting

possession of cannabis in prison, they would have understood

that language as an assurance that Proposition 64 would not

affect any preexisting laws prohibiting possession of cannabis in

prison. (See Perry, supra, 32 Cal.App.5th at pp. 895–896;

Herrera, supra, 52 Cal.App.5th at p. 995, rev. granted.)

Indeed, as far as we are aware, no court has ever

concluded (nor has any party ever argued) that voters would

construe section 11362.45(d)’s reference to Proposition 64’s

central legalization provision, but not to the conforming

amendments made to section 11357, as a signal that the

initiative was intended to have different effects on convictions

under Penal Code section 4573.6 versus those under Penal Code

section 4573.8. Or rather, that the initiative might have

different effects on those two provisions depending on how our

courts ultimately interpret the language of Penal Code section

4573.6. By offering an interpretation that no other court or

party has ever articulated, it seems it is the dissent that has

“step[ped] out on its own.” (Conc. & dis. opn. of Kruger, J., post,

at p. 9.)

c. Defendants’ policy arguments

Defendants also raise a series of policy-related arguments,

contending that the consequences of continuing to treat

possession of small amounts of cannabis in prison as a violation

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of Penal Code section 4573.6 is inconsistent with the public’s

evolving attitude toward the drug and its “changing views about

the societal costs of incarceration.” (See, e.g., Prop. 215, as

approved by voters, Gen. Elec. (Nov. 5, 1996) [decriminalizing

possession of cannabis possession if the person has a physician’s

oral or written recommendation]; Stats. 2010, ch. 708, § 1

[reclassifying possession of less than 28.5 grams of cannabis as

an infraction]; Prop. 36, as approved by voters, Gen. Elec. (Nov.

6, 2012) [removing three strikes life sentences for those

committing nonviolent felonies]; Prop. 47, as approved by voters,

Gen. Elec. (Nov. 4, 2014) [reducing certain drug-related and

theft-related offenses that previously were felonies or wobbler

offenses]; Prop. 57, as approved by voters, Gen. Elec. (Nov. 8,

2016) [reducing prison terms for nonviolent offenders by

advancing parole consideration dates].) They note that while

possession of cannabis is now generally legal outside the

confines of prison, the Attorney General’s interpretation would

subject inmates (and potentially anyone else on prison grounds)

to two to four years of imprisonment for engaging in that same

conduct when inside a custodial facility. Adding to the severity,

for many inmates found in possession of cannabis, a section

4573.6 offense can constitute an in-custody second strike,

resulting in a consecutive sentence adding anywhere from four

to eight years of incarceration to their present term. This is

likely to be a common result given that Penal Code section

4573.6 involves conduct committed on the grounds of a

correctional facility. The present case is illustrative. As the

result of strike enhancements, two of the five defendants

received six-year consecutive sentences for possessing small

amounts of cannabis, while a third defendant received a four-

year consecutive sentence. (See ante, at p. 3, fn. 4.) In Herrera,

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supra, 52 Cal.App.5th 982, review granted, the defendant was

punished even more harshly, receiving an eight-year prison

term after being found in possession of less than one gram of

cannabis. (See id. at pp. 985–986.)

We are sympathetic to the view that section 11362.45(d)

creates extreme disparity between how our legal system treats

the possession of cannabis generally versus the possession of

such a substance inside a correctional facility. That is also true

of many other substances, including alcohol. (See Pen. Code, §

4573.8 [unauthorized possession of alcohol in prison constitutes

a felony].) Some may well view an eight-year prison sentence

for the possession of less than one gram of cannabis (one gram

is the approximate weight of a single paper clip or a quarter

teaspoon of sugar) as unduly harsh. The wisdom of those policy

judgments, however, are not relevant to our interpretation of

the statutory language. (See Superior Court v. County of

Mendocino (1996) 13 Cal.4th 45, 53 [“The judiciary, in reviewing

statutes . . ., may not undertake to evaluate the wisdom of the

policies embodied in such legislation; absent a constitutional

prohibition, the choice among competing policy considerations

in enacting laws is a legislative function”].) Rather, our role is

limited to determining the most reasonable construction of

Proposition 64. For the reasons set forth above, we believe

section 11362.45(d) is most reasonably construed to leave in

place the prohibitions against cannabis possession in prison.

Our interpretation notwithstanding, prosecutors of course

retain discretion whether a person found in possession of a small

quantity of cannabis on prison grounds warrants felony

treatment. (See People v. Lucas (1995) 12 Cal.4th 415, 477

[“Prosecutors have broad discretion to decide whom to charge,

and for what crime. . . . ‘[A] district attorney’s enforcement

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PEOPLE v. RAYBON

Opinion of the Court by Groban, J.

authority includes the discretion either to prosecute or to decline

to prosecute an individual when there is probable cause to

believe he has committed a crime’ ”].) As defendants note, “there

are already [prison] regulations in place . . . to punish and deter

this conduct.” Cannabis possession in prison remains classified

as a serious rules violation that is subject to a custody credit

forfeiture of between 121–150 days (see Cal. Code Regs., tit. 15,

§ 3323, subd. (d)(7)), which effectively translates into an

additional four to five month jail sentence. Such conduct can

also result in substantial loss of visitation rights, including up

to three months of no visitation and three additional months of

no contact visitation for a first offense, with increasing loss of

visitation rights with each consecutive offense. (See Cal. Code

Regs., tit. 15, § 3315, subd. (f).) Moreover, depending on the

nature of the defendant’s sentence, a rules violation involving

the possession of cannabis could also impact parole eligibility.

(See Cal. Code Regs., tit. 15, § 2281, subd. (c)(6) [circumstances

tending to show unsuitability for parole for life prisoners include

“Institutional Behavior. The prisoner has engaged in serious

misconduct in prison or jail”].)

In cases where prosecutors do elect to pursue criminal

punishment, they may consider a charge under Penal Code

section 4573.8, which carries a lower sentence than Penal Code

section 4573.6.20 (See ante, at p. 7; see also Whalum, supra, 50

Cal.App.5th at p. 5, rev. granted [“As cannabis is a drug and a

20

The Attorney General appears to agree with this

suggestion, arguing that while possession of cannabis in prison

remains chargeable under either Penal Code section 4573.6 or

Penal Code section 4573.8, “going forward [such conduct] might

be better charged . . . as a violation of Penal Code section

4573.8.”

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controlled substance regulated in division 10 of the Health and

Safety Code [citations], both statutes have been used to convict

prisoners who possesses cannabis” (italics omitted)].)

Alternatively, depending on the defendant’s circumstances, a

prosecutor might recommend a disposition that does not require

a prison term. (See Pen. Code, § 1170, subd. (h)(4) [“Nothing in

this subdivision shall be construed to prevent other dispositions

authorized by law, including pretrial diversion, deferred entry

of judgment, or an order granting probation pursuant to Section

1203.1”].) Similarly, in cases where a defendant is convicted

under Penal Code section 4573.6 and has a prior strike (as most

of the defendants here did), the prosecution may move to dismiss

the strike allegation, or the trial court may elect to do so on its

own motion. (See Pen. Code, § 1170.12, subd. (d)(2), 1385, subd.

(a); Romero, supra, 13 Cal.4th at pp. 529–530.) Finally, in cases

where the defendant is already serving a sentence for a prior

conviction under Penal Code section 4573.6, the prosecution or

prison officials might recommend that the court recall the

sentence previously ordered and resentence the defendant in the

interests of justice pursuant to Penal Code section 1170,

subdivision (d). (See Cal. Code Regs., tit. 15, §§ 3076–3076.2.)

The Legislature, in turn, remains free to revisit whether

the harm associated with possessing small quantities of

cannabis in or on the grounds of a correctional facility, conduct

that is now generally lawful outside the confines of a

correctional facility, continues to justify the substantial

penalties set forth in Penal Code section 4573.6. (See Voter

Guide, supra, text of Prop. 64, § 10, p. 210 [permitting the

Legislature, by majority vote, to reduce the penalties for any

offense addressed in Prop. 64]; People v. Wilkinson (2004) 33

Cal.4th 821, 840 [“ ‘The Legislature is responsible for

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determining which class of crimes deserves certain punishments

and which crimes should be distinguished from others’ ”]; In re

Lynch (1972) 8 Cal.3d 410, 414 [“it is the function of the

legislative branch to define crimes and prescribe punishments,

and that such questions are in the first instance for the

judgment of the Legislature alone”].)

III. DISPOSITION

The judgment of the Court of Appeal is reversed, and the

case is remanded for further proceedings consistent with this

opinion.

GROBAN, J.

We Concur:

CANTIL-SAKAUYE, C. J.

CORRIGAN, J.

LIU, J.

JENKINS, J.

46

PEOPLE v. RAYBON

S256978

Concurring and Dissenting Opinion by Justice Kruger

I agree with the majority that Proposition 64, fairly read,

did not legalize cannabis possession in California’s prisons and

jails, even as it either overrode or lifted state and local

prohibitions on possessing small quantities of cannabis in most

other places.

It is, however, a separate question whether, after

Proposition 64, prosecutors may continue to charge in-prison

cannabis possession exactly as they have been — that is, by

choosing at will between two overlapping felony statutes, one of

which carries steeper penalties than the other, and whose

coverage is expressly tied to the scope of state-law prohibitions

applicable outside of prison. The majority concludes that

prosecutors are still permitted to choose (though the majority

encourages them to make their choices wisely). (Maj. opn., ante,

at pp. 30–31, 43–45.) Because I do not think the particular

reasons the majority gives for extending this permission can be

squared with the statutory text, and because the majority’s

conclusions on this subject are unnecessary to resolve this case

in any event, I do not join this portion of the majority opinion.

I.

For many decades, Penal Code section 4573.6 (section

4573.6) served as a general criminal prohibition on possessing

contraband substances in prisons, jails, and other detention

facilities. As originally enacted in 1949, former section 4573.6

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Kruger, J., concurring and dissenting

made it a felony to possess “any narcotics, or drugs . . . , or

alcoholic beverage” without authorization. (Stats. 1949, ch. 833,

§ 3, p. 1583.) So it remained (with occasional modifications not

pertinent here) until 1990, when the Legislature determined

that possession offenses involving controlled substances

generally should be punished more harshly than the possession

of other drugs or alcohol. (Legis. Counsel’s Dig., Sen. Bill

No. 2863 (1989–1990 Reg. Sess.) 5 Stats. 1990, Summary Dig.,

pp. 647–648; see Stats. 1990, ch. 1580, § 4, pp. 7555–7556.)

The result was a new two-part scheme for addressing the

in-prison possession of contraband substances. As currently

written, Penal Code section 4573.8 (section 4573.8) provides the

basic prohibition, making it a felony to possess “drugs . . . or

alcoholic beverages” without authorization. Like violations of

the old version of section 4573.6, violations of section 4573.8 are

punishable by imprisonment for 16 months, or two or three

years in state prison. (Pen. Code, § 18.)

Section 4573.6, meanwhile, was recast as a prohibition on

the possession of controlled substances, punishable by a steeper

triad of penalties: two, three, or four years in state prison. By

its terms, however, the revamped section 4573.6 does not

purport to punish the possession of all controlled substances;

rather, it punishes the possession of substances “the possession

of which is prohibited by Division 10 (commencing with Section

11000) of the Health and Safety Code” — a division otherwise

known as the California Uniform Controlled Substances Act.

(Pen. Code, § 4573.6, subd. (a); see Health & Saf. Code, § 11000.)

Possession of other drugs — i.e., drugs the possession of which

is not prohibited by division 10 — may be prosecuted only under

section 4573.8.

2

PEOPLE v. RAYBON

Kruger, J., concurring and dissenting

Since 1990, both section 4573.8 and section 4573.6 have

been used to prosecute prisoners found in possession of

cannabis. (See People v. Whalum (2020) 50 Cal.App.5th 1, 5,

review granted Aug. 12, 2020, S262935.) Cannabis is, of course,

a drug within the meaning of the basic prohibition in section

4573.8. (Whalum, at p. 5.) And before Proposition 64, division

10 also generally prohibited the unauthorized possession of

cannabis (Health & Saf. Code, former § 11357), making

cannabis a controlled substance “the possession of which is

prohibited” for purposes of section 4573.6 (Pen. Code, § 4573.6,

subd. (a)). (See also Health & Saf. Code, § 11054, subd. (d)(13)

[provision of div. 10 listing cannabis as a Schedule I

hallucinogenic drug]; id., § 11007 defining “ ‘[c]ontrolled

substance’ ” to include Schedule I drugs.)

Enter Proposition 64, the Control, Regulate and Tax Adult

Use of Marijuana Act (the Act), which amended division 10 to

substantially loosen cannabis restrictions. 1 In enacting the

statute, voters found and declared an intent to, among other

things, “incapacitate the black market” in cannabis “and move

[cannabis] purchases into a legal structure with strict

safeguards against children accessing it.” (Voter Information

Guide, Gen. Elec. (Nov. 8, 2016) text of Prop. 64, § 2, subd. D.,

p. 178.) Voters also declared an intent to “alleviate pressure on

the courts” handling nonviolent drug offenses, “but continue to

allow prosecutors to charge the most serious [cannabis]-related

offenses as felonies, while reducing the penalties for minor

[cannabis]-related offenses.” (Id., § 2, subd. G., p. 179.)

1

Like the majority, I use the term “cannabis” instead of the

original statutory term “marijuana,” in keeping with

subsequent legislative revisions to the statutory text. (See maj.

opn., ante, at p. 1, fn. 1.)

3

PEOPLE v. RAYBON

Kruger, J., concurring and dissenting

Three provisions of Proposition 64 are particularly

relevant to our analysis here, listed in the order in which they

appear in the current version of the Health and Safety Code.

First, voters amended Health and Safety Code section 11357 to

lift its prohibitions on possessing small amounts of cannabis

(28.5 grams or less) for most adults (prohibitions remain in place

for individuals under 21) in most places (prohibitions remain for

possession on school grounds). (Health & Saf. Code, § 11357, as

amended by Prop. 64, § 8.1.)

Second, voters added a legalization provision displacing

other state and local prohibitions on cannabis possession:

“Subject to” various provisions, including newly added Health

and Safety Code section 11362.45, “but notwithstanding any

other provision of law, it shall be lawful under state and local

law, and shall not be a violation of state or local law, for persons

21 years of age or older to” possess 28.5 grams of cannabis or

less. (Id., § 11362.1, subd. (a)(1), added by Prop. 64, § 4.4.) This

legalization provision is also, in effect, a preemption provision;

through the use of the “notwithstanding” clause, section 11362.1

signals that “its provisions prevail over all contrary laws

prohibiting the activities that it legalizes, except as ‘[s]ubject

to’ ” certain other provisions, including section 11362.45.

(People v. Whalum, supra, 50 Cal.App.5th at p. 7, review

granted, citing In re Greg F. (2012) 55 Cal.4th 393, 406.)

Third, voters enacted Health and Safety Code section

11362.45, which specifies certain exceptions from the

legalization provision in section 11362.1 for various categories

of laws. It provides, as relevant here: “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

4

PEOPLE v. RAYBON

Kruger, J., concurring and dissenting

under the jurisdiction of the Department of Corrections and

Rehabilitation or the Division of Juvenile Justice,” or on the

grounds of, or within, other detention facilities including local

jails. (Health & Saf. Code, § 11362.45, subd. (d), added by Prop.

64, § 4.8 and amended by Stats. 2017, ch. 27, § 133.)

The central question presented in this case concerns the

relationship between these latter two provisions, the

legalization provision in Health and Safety Code section 11362.1

and the savings provision in Health and Safety Code section

11362.45, subdivision (d). Petitioner Goldy Raybon argues,2 and

the Court of Appeal below agreed, that the legalization

provision — which says that “notwithstanding any other

provision of law, it shall be lawful under state and local law” to

possess 28.5 grams of cannabis or less (Health & Saf. Code,

§ 11362.1, subd. (a)(1)) — by its plain terms overrides any

statute prohibiting possession of small amounts of cannabis,

including both sections 4573.6 and 4573.8. Raybon further

argues, and the Court of Appeal further agreed, that the savings

provision in Health and Safety Code section 11362.45,

subdivision (d), for prisons and other detention facilities does

not apply because that provision refers only to “[l]aws pertaining

to smoking or ingesting,” and does not speak of laws pertaining

to possession. It follows, in Raybon’s telling, that in-prison

cannabis possession is now lawful, and because it is lawful, he

is entitled to have his prior section 4573.6 conviction wiped away

under Proposition 64’s resentencing provision. (Health & Saf.

Code, § 11361.8, subd. (a).)

2

Raybon’s case has been consolidated in this court with that

of four other petitioners; references in this opinion to arguments

made by Raybon include those made by the petitioners in the

consolidated cases.

5

PEOPLE v. RAYBON

Kruger, J., concurring and dissenting

I agree with the majority that Raybon takes too cramped

a view of the savings provision, and thus too broad a view of the

preemptive effect of the legalization provision. The phrase

“[l]aws pertaining to smoking or ingesting” (id., § 11362.45,

subd. (d)) is perhaps inartful. But, fairly read, the language

indicates that voters did not wish for section 11362.1’s

legalization provision to override laws prohibiting cannabis

possession in prison — laws that bear an obvious and close

logical relationship to smoking or ingesting cannabis in prison.

(Maj. opn., ante, at pp. 13–27.)

The majority goes on, however, to answer the separate

question whether, after Proposition 64, in-prison cannabis

possession remains chargeable under section 4573.6. As the

majority explains, this question raises an interpretive dilemma.

Section 4573.6 incorporates the scope of prohibitions in division

10 of the Health and Safety Code, which Proposition 64

largely — but not completely — eliminated. The issue, then, is

how section 4573.6 applies to the possession of controlled

substances that division 10 prohibits in some situations but not

others. This is an interpretive issue that predates Proposition

64, but which Proposition 64’s regime of partial legalization has

brought to the fore, and that has now become the subject of a

conflict in the Courts of Appeal. (Compare People v. Fenton

(1993) 20 Cal.App.4th 965, 966–967 [identical language in Pen.

Code, § 4573 criminalizes the possession of substances only to

the extent possession would be prohibited in like circumstances

by div. 10] with People v. Taylor (2021) 60 Cal.App.5th 115, 131,

review granted Apr. 14, 2021, S267344 [§ 4573.6 criminalizes

possession of substances that are prohibited in any

circumstances under div. 10]; see maj. opn., ante, at pp. 29–31.)

6

PEOPLE v. RAYBON

Kruger, J., concurring and dissenting

The majority decides to avoid this interpretive dilemma —

which has not been adequately briefed in this court in any

event — because it sees in Proposition 64’s savings provision an

alternative path to answering the charging question. In the

majority’s view, Health and Safety Code section 11362.45,

subdivision (d), means not only that prison laws are exempt

from the provision of Proposition 64 generally making it lawful

to possess small quantities of cannabis (id., § 11362.1), but that

prison laws are not affected in any way by any other provision

of the Act — not even indirectly, through section 4573.6’s

express incorporation of other provisions that were amended by

Proposition 64.

For a number of reasons, I do not join this portion of the

majority opinion. For one thing, it is unnecessary. We do not

need to answer questions about post-Proposition 64 charging

practices to resolve Raybon’s claim concerning his pre-

Proposition 64 conviction. Raybon’s only argument here is that

he is entitled to the retroactive dismissal of his prior conviction

under Proposition 64 because he is a person “who would not

have been guilty of an offense” had Proposition 64 been in effect

at the time. (Health & Saf. Code, § 11361.8, subd. (a).) As the

Attorney General notes, it is a full answer to observe that

Proposition 64 did not legalize cannabis possession in prison;

whatever indirect effect Proposition 64 may have had on future

prosecutions under section 4573.6, cannabis possession remains

punishable as a felony under section 4573.8. Because Raybon

would have been guilty of that offense even had Proposition 64

7

PEOPLE v. RAYBON

Kruger, J., concurring and dissenting

been in effect at the time, he is not entitled to the only form of

relief he has sought in this proceeding.3

The majority’s alternative resolution of the issue also

depends entirely on an argument about the import of

Proposition 64’s savings provision that none of the parties have

made. While the Attorney General relies on the savings

provision to argue that Proposition 64 did not legalize cannabis

possession in prison, he expressly acknowledges that

Proposition 64 might still “have an effect on future charging

decisions.” He explains that “due to the removal of certain

3

Perhaps we would have needed to address the future of

section 4573.6 if Raybon had asked the court for resentencing

based on the differences between section 4573.6’s relatively

heavier penalties and section 4573.8’s relatively lighter ones.

(See Health & Saf. Code, § 11361.8, subd. (a) [authorizing

resentencing for a person “who would have been guilty of a

lesser offense under [Proposition 64] had that act been in effect

at the time of the offense”].) But Raybon did not do so, instead

opting to seek outright dismissal. There is therefore no need for

us to decide here whether in-prison cannabis possession remains

punishable under section 4573.6 as well as section 4573.8. Nor

is there any reason for us to address any other interpretive issue

that might arise in a case involving a request for resentencing

under section 4573.8, including whether section 4573.8 qualifies

as a lesser offense of section 4573.6. (Cf. maj. opn., ante, at

p. 32.)

The majority observes that it is more efficient to reach this

question here; were we instead to reserve it, Raybon and others

like him would have to file new petitions seeking this more

modest form of relief. (Maj. opn., ante, at pp. 33–34, fn. 15.)

True. But were they to do so, we would presumably be able to

address their statutory entitlement to that form of relief in a

case in which the relevant arguments had been appropriately

raised and fully litigated, which is not the case here.

8

PEOPLE v. RAYBON

Kruger, J., concurring and dissenting

prohibitions from division 10 of the Health and Safety Code,

going forward, the possession of cannabis in a custodial

institution might be better charged prospectively as a violation

of Penal Code section 4573.8 (which prohibits the possession of

drugs) rather than of Penal Code section 4573.6 (which prohibits

the possession of controlled substances ‘the possession of which

is prohibited by Division 10’).” Despite ample encouragement

from the two published appellate decisions adopting arguments

much like the majority’s (see maj. opn., ante, at pp. 31–32 &

fn. 14 [citing cases]), the Attorney General has studiously

avoided arguing that Proposition 64’s savings provision for

prison-related laws means that prosecutors may treat section

4573.6 as though it were partly suspended in amber, preserving

division 10’s cannabis-related prohibitions as they existed

before the proposition passed. In reaching this conclusion

anyway, the majority steps out on its own.

But the most fundamental reason I do not join the

majority on this issue — and the crux of our disagreement

here — is that the majority’s resolution of the issue depends on

a reading of the savings provision that departs from its plain

text. As noted, Health and Safety Code section 11362.45,

subdivision (d), is written as an exception to Proposition 64’s

legalization and preemption provision, providing that

“Section 11362.1 does not amend, repeal, affect, restrict, or

preempt” prison laws. The majority reads this language as

though it instead provided that the Act — as a whole — should

not be understood to amend or affect laws relating to in-prison

cannabis. (E.g., maj. opn., ante, at pp. 40–41.) This subtle but

important substitution is what leads the majority to conclude

that no matter how section 4573.6 “might apply with respect to

other controlled substances,” the “unique language” of the

savings provision in section 11362.45, subdivision (d), requires

9

PEOPLE v. RAYBON

Kruger, J., concurring and dissenting

applying Health and Safety Code division 10’s restrictions on

cannabis precisely as they existed before Proposition 64. (Maj.

opn., ante, at p. 30.)

The “unique language” of the savings provision is more

limited than the majority acknowledges. The provision does not

preserve prison-related laws from the Act in its entirety.

(Accord, maj. opn., ante, at pp. 40–41.) Rather, by its terms, the

savings provision carves prison laws out from only the

legalization provision in Health and Safety Code section

11362.1, which had made cannabis possession lawful

notwithstanding state and local laws to the contrary. This

means prison laws are not subject to the preemptive effects of

section 11362.1. But it says nothing about other effects that

other provisions of Proposition 64 might have on the operation

of prison-related laws such as section 4573.6. And it is

ultimately the operation of those other provisions — in

particular, the dramatically narrowed scope of restrictions on

cannabis possession in Health and Safety Code section 11357 —

that matters here.

Recall that section 4573.6 was written in a manner that

explicitly ties its prohibition on in-prison possession of

controlled substances to whether possession of that controlled

substance is prohibited outside of prison under division 10.

Recall also that before Proposition 64, it was understood that

former section 4573.6 could be used to prosecute in-prison

cannabis possession because division 10 (in Health & Saf. Code,

former § 11357) generally prohibited cannabis possession

without authorization. (See People v. Whalum, supra, 50

Cal.App.5th at p. 5, review granted.) Now, finally, recall that

one of the many changes made by Proposition 64 was to lift the

prohibitions in section 11357 on the possession of small

10

PEOPLE v. RAYBON

Kruger, J., concurring and dissenting

quantities of cannabis, for most people and in most settings.

(See ante, at p. 3.)

Had Proposition 64 repealed all of Health and Safety Code

division 10’s restrictions on cannabis possession, then, as a

textual matter, there could be no genuine question about

whether in-prison cannabis possession could be prosecuted

under section 4573.6. The answer would be no — possession

could be punished only under section 4573.8, and the savings

provision in Health and Safety Code section 11362.45,

subdivision (d), would have nothing to do with it. The savings

provision is not more relevant because Proposition 64 stopped

short of full repeal.

The majority acknowledges the textual limitations of the

savings provision, but dismisses them as a technicality. Yes,

Health and Safety Code section 11362.45, subdivision (d), does

no more than carve prison laws out from preemption through

Proposition 64’s affirmative legalization provision, Health and

Safety Code section 11362.1. But, the majority argues, the

amended Health and Safety Code section 11357 is a kind of

legalization provision, too, as are various other provisions of the

measure. (Maj. opn., ante, at p. 35, fn. 16 [arguing that the

amendments to § 11357 were necessary “to conform to the broad

legalization pronouncement made in section 11362.1”]; accord,

People v. Perry (2019) 32 Cal.App.5th 885, 894.) Surely the

voters who chose to save prison laws from preemption under

section 11362.1 would also have wished to save prison

possession laws from the indirect effects of cannabis legalization

in these other provisions. (See maj. opn., ante, at pp. 35–36.)

The initial difficulty with this argument is that there is

nothing in the materials before us to support this set of

11

PEOPLE v. RAYBON

Kruger, J., concurring and dissenting

assumptions about voter intent. Had voters intended to wall off

prison laws from Proposition 64 entirely, it would have been

easy enough to say so. Instead of referring specifically to Health

and Safety Code section 11362.1, the savings provision in

Health and Safety Code section 11362.45 could have been

written to say that the Act as a whole “does not amend, repeal,

affect, restrict, or preempt” prison laws, period. That is not how

the provision was written, and the ballot materials contain no

indication that this is how voters would have understood it. To

the extent the ballot materials shed any light on voter intent at

all, they point to a general intent to prescribe more lenient

treatment for possessing small quantities of cannabis. While

the savings provision indicates that voters intended to maintain

restrictions on cannabis possession in prison, nothing in the

ballot materials indicates that voters also intended to foreclose

any possible, limited measure of leniency for individuals

prosecuted under the harsher of two potentially applicable

felony statutes forbidding cannabis possession in prisons and

jails.

But the difficulty is even greater than attributing this sort

of unexpressed intent to Proposition 64 voters, because here it

is not only the voters’ intent that counts; it is also the intent of

the legislators who enacted the current versions of sections

4573.6 and 4573.8. The legislators who enacted the current set

of prison possession laws deliberately chose to make possession

of drugs in prison a felony offense punishable by the default

penalties prescribed in Penal Code section 18, while reserving

heightened felony punishment for possession of controlled

substances whose possession would be prohibited under division

10. Even if we accepted for argument’s sake that the voters who

enacted Proposition 64 assumed no aspect of the measure would

12

PEOPLE v. RAYBON

Kruger, J., concurring and dissenting

have an effect on prison possession laws, it is unclear why, in

the event of a conflict between the two sets of provisions, that

assumption would or should prevail over legislators’ intent to

reserve harsher punishment for possession cases where

possession would also be prohibited outside of prison under

Health and Safety Code division 10.

The majority’s remaining justifications for its approach

focus on what the majority sees as its practical advantages over

concluding that Proposition 64 did, in fact, affect charging under

section 4573.6. The majority worries that the relationship

between section 4573.6 and Proposition 64 is overly complicated,

and that giving effect to that relationship could yield some

“curious” results (maj. opn., ante, at p. 39). The majority also

worries about the various additional questions we would need to

answer, none of which have been briefed here, should a

defendant in Raybon’s position seek resentencing based on the

different penalties prescribed in section 4573.6 and section

4573.8. None of these points, in my view, justifies refusing to

read Health and Safety Code section 11362.45, subdivision (d),

in accordance with its plain text.

As to the first point, the relationship between Penal Code

section 4573.6 and Proposition 64 is not, near as I can tell,

appreciably more complex than issues we have seen in other

cases concerning the relationship between voter-initiated

reform measures and preexisting criminal laws. (See, e.g.,

People v. Romanowski (2017) 2 Cal.5th 903; People v. Gonzales

(2017) 2 Cal.5th 858.) Sometimes statutes are, in fact,

complicated. And our cases have recognized that the most

faithful reading of a statutory scheme is not always the simplest

one — even when the scheme has been enacted in whole or in

part by voters.

13

PEOPLE v. RAYBON

Kruger, J., concurring and dissenting

As to the majority’s second point, the possibility that

Proposition 64 affected charging under section 4573.6 is not so

far-fetched that we can dismiss it out of hand. The practical

result would be that prosecutors would be limited in most cases

to charging cannabis possession in prison the same way the

possession of other drugs or alcohol is charged, instead of

charging it the same way as the possession of, say, heroin or

methamphetamines. That result creates no obvious

inconsistency with the overarching objectives of Proposition 64.

But to the majority’s final point, I do share many of the

majority’s concerns about the various questions that could arise

in future cases concerning the relationship between Proposition

64 and section 4573.6. This is precisely why I would not attempt

to answer these questions here, and would instead await an

appropriate case where the necessary arguments have been

briefed and the issues joined. I write separately here because I

do not think we should foreclose further exploration of these

issues by leaning on Proposition 64’s savings provision. The text

will not withstand the weight.

II.

The practical upshot of the majority opinion is this: Even

though the heightened penalties under section 4573.6 are

directly tied to the scope of prohibitions that were dramatically

scaled back by Proposition 64, prosecutors may continue to

charge in-prison cannabis offenses under that provision (at least

in the absence of further legislation directing otherwise). For

individuals previously convicted under section 4573.6 who

might wish to have their sentences adjusted downward to the

less harsh penalties prescribed by section 4573.8, any pathway

that might otherwise have existed for resentencing under

14

PEOPLE v. RAYBON

Kruger, J., concurring and dissenting

current law has been closed off. All this in a case that did not

require laying down a rule with these broad consequences.

Because I do not think the majority’s reasons for reaching

this result fit with the relevant statutes, and because it is

unnecessary to resolve the issue in this case in any event, I do

not join this portion of the majority opinion. In all other

respects, I concur.

KRUGER, J.

I Concur:

CUÉLLAR, J.

15

See next page for addresses and telephone numbers for counsel who

argued in Supreme Court.

Name of Opinion People v. Raybon

__________________________________________________________

Procedural Posture (see XX below)

Original Appeal

Original Proceeding

Review Granted (published) XX 36 Cal.App.5th 111

Review Granted (unpublished)

Rehearing Granted

__________________________________________________________

Opinion No. S256978

Date Filed: August 12, 2021

__________________________________________________________

Court: Superior

County: Sacramento

Judge: Curtis M. Fiorini

__________________________________________________________

Counsel:

Paulino G. Durán and Steven Garrett, Public Defenders, David Lynch

and Leonard K. Tauman, Assistant Public Defenders, for Defendants

and Appellants.

Xavier Becerra and Rob Bonta, Attorneys General, Michael J. Mongan,

State Solicitor General, Gerald A. Engler and Lance E. Winters, Chief

Assistant Attorneys General, Janill L. Richards, Principal Deputy

State Solicitor General, Michael P. Farrell, Assistant Attorney

General, Ryan B. McCarroll, Deputy State Solicitor General, Julie A.

Hokans, Nicholas M. Fogg and Barton Bowers, Deputy Attorneys

General, for Plaintiff and Respondent.

Counsel who argued in Supreme Court (not intended for

publication with opinion):

David Lynch

Assistant Public Defender

700 H Street, Suite 0270

Sacramento, CA 95814

(916) 874-6958

Ryan B. McCarroll

Deputy State Solicitor General

1300 I Street

Sacramento, CA 95814

(916) 210-7668