People v. Keshishian CA4/1

Filed 10/15/20 P. v. Keshishian CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA THE PEOPLE, D076284 Plaintiff and Respondent, v. (Super. Ct. No. JCF30252) SHAHEN KESHISHIAN, Defendant and Appellant. APPEAL from an order of the Superior Court of Imperial County, William D. Lehman, Judge. Affirmed. Russell S. Babcock, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Daniel Rogers, Christopher P. Beesley, and Joy Utomi, Deputy Attorneys General, for Plaintiff and Respondent. In 2013, Shahen Keshishian was convicted of violating Penal Code section 4573.6, which prohibits possession of controlled substances (in his case, marijuana) in prison. Keshishian contends this is no longer a felony under Health and Safety Code section 11362.1, subdivision (a),1 which was enacted pursuant to the passage of Proposition 64 and which decriminalizes possession of small amounts of cannabis. (Prop. 64, § 4.4, approved Nov. 8, 2016, eff. Nov. 9, 2016; amended by Stats. 2017, ch. 27, § 129.) In 2019, Keshishian petitioned the trial court for recall or dismissal of his 2013 conviction. (Health & Saf. Code, § 11361.8, subd. (a).) The trial court concluded Penal Code section 4573.6, subdivision (a) remains a felony following the passage of Proposition 64 and denied Keshishian’s petition. We agree with the trial court and affirm the order denying Keshishian relief. FACTS In March 2012, a correctional officer searched Keshishian’s cell at Calipatria State Prison and discovered a bindle containing 0.08 grams of marijuana and a pipe fashioned from foil. A first amended indictment charged Keshishian with two felony charges: possession of illegal substances (marijuana) in a prison facility (Pen. Code, § 4573.6, count 1) and possession of drug paraphernalia (pipe) in prison (id., § 4573.6, count 2). The indictment also alleged two serious or violent felony priors as to counts 1 and 2 (id., §§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)) and further alleged that Keshishian committed the offenses while confined in state prison (id., § 1170.1, subd. (c)). In June 2013, Keshishian pled no contest to one count of violating Penal Code section 4573.6 with the following agreement: “Probation denied[.] Lower term: 24 months/consecutive sentence[.] All other counts dismissed/strike struck for sentencing[.] People will agree to dismiss [a second case,] JCF-30253.” 1 Unless otherwise indicated, statutory references are to the Health and Safety Code. — 2 — In August 2013, the trial court sentenced Keshishian to state prison for the lower term of two years, to run consecutive to his current sentence. In 2016, California voters decriminalized the possession of less than 28.5 grams (approximately one ounce) of marijuana, or cannabis.2 (Prop. 64; § 11362.1, subd. (a); see People v. Perry (2019) 32 Cal.App.5th 885, 888 (Perry), People v. Raybon (2019) 36 Cal.App.5th 111, 114 , review granted, Aug. 21, 2019, S256978 (Raybon).) In June 2019, Keshishian petitioned the trial court for a recall of sentence and dismissal of his Penal Code section 4573.6 conviction pursuant to Health and Safety Code section 11361.8, subdivision (b), on the ground that Health and Safety Code section 11362.1, provides that possession by an individual 21 years of age and older of not more than 28.5 grams of cannabis is not a felony. Keshishian encouraged the court to follow Raybon, which concluded that, after Proposition 64, possession of small amounts of cannabis in prison is no longer a felony. The district attorney opposed Keshishian’s petition, contending that Penal Code section 4573.6 remained a felony. The district attorney encouraged the trial court to follow Perry, which concluded Proposition 64 did not decriminalize possession of cannabis in prison. After hearing oral argument, the trial court denied Keshishian’s petition, concluding Perry was the “better decided” case. Keshishian obtained a certificate of probable cause to pursue this appeal. On appeal, Keshishian contends that the passage of Proposition 64 entitles him to relief from his Penal Code section 4573.6 conviction. He urges 2 In 2017, the Legislature replaced references to “marijuana” in the Health and Safety Code with the term “cannabis.” (See, e.g., Stats. 2017, ch. 27, § 121, eff. June 27, 2017.) For consistency, we primarily use the amended terminology of “cannabis” throughout the remainder of this opinion. — 3 — this court to adopt the reasoning of Raybon, which he contends “is much more persuasive and better reasoned than [Perry].” DISCUSSION The question before this court is whether, as a result of Proposition 64, it is permissible to possess small quantities of cannabis in prison. The Courts of Appeal have reached contrary conclusions on this issue. We outline the conflicting appellate decisions below and adopt the reasoning of cases holding it remains illegal to possess small amounts of cannabis in prison. We therefore conclude the trial court correctly denied Keshishian’s petition to recall or dismiss his sentence pursuant to section 11361.8. A. Governing Legal Principles Keshishian was convicted of violating Penal Code section 4573.6, which provides: “Any person who knowingly has in his or her possession in any state prison . . . any controlled substances, the possession of which is prohibited by Division 10 (commencing with Section 11000) of the Health and Safety Code . . . or paraphernalia intended to be used for unlawfully injecting or consuming controlled substances, without being authorized to so possess the same by the rules of the Department of Corrections . . . is guilty of a felony punishable by imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years.” (Pen. Code, § 4573.6, subd. (a).)3 Proposition 64 decriminalized the possession of small quantities of cannabis for persons 21 years of age or older. (See Perry, supra, 32 Cal.App.5th at pp. 889-890.) Among other things, it added Health and 3 Penal Code section 4573.8 similarly proscribes “knowingly . . . possess[ing] in any state prison . . . drugs in any manner . . . .” Cannabis remains a controlled substance under Division 10 of the Health and Safety Code. (Health & Saf. Code, § 11054, subd. (d)(13).) — 4 — Safety Code section 11362.1, which provides in part: “Subject to 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: [¶] (1) Possess . . . not more than 28.5 grams of cannabis not in the form of concentrated cannabis.” (§ 11362.1, subd. (a).)4 Decriminalization is expressly subject to Health and Safety Code section 11362.45, which has been characterized as an exception or “carve out” provision—i.e., section 11362.45 limits what is otherwise made lawful by section 11362.1. (See, e.g., Perry, supra, 32 Cal.App.5th at p. 895 [section 11362.45 is “an exception to the legalization of possession and use authorized by section 11361.2”]; People v. Herrera (2020) 52 Cal.App.5th 982 , 991 (Herrera) [“section 11362.45[, subd.] (d) carves out from Proposition 64’s legalization of cannabis ‘[l]aws pertaining to smoking or ingesting’ cannabis in a penal institution”].) This carve out provision states in relevant part: “Section 11362.1 does not amend, repeal, affect, restrict, or preempt: [¶] . . . [¶] (d) Laws pertaining to smoking or ingesting cannabis or cannabis products on the grounds of, or within, any facility or institution under the jurisdiction of the Department of Corrections and Rehabilitation or . . . any other facility or institution referenced in Section 4573 of the Penal Code.” (Health & Saf. Code, § 11362.45, subd. (d).) The facilities referenced in Penal Code section 4573 include state prisons and county jails. (Pen. Code, § 4573, subd. (a).) 4 As noted, Proposition 64 legalizes certain activity involving 28.5 grams or less of cannabis by persons 21 years of age or older. When we refer to the decriminalization of the use and possession of cannabis in this opinion, for ease of reference, we do not always restate these age restrictions and amounts. (See Perry, supra, 32 Cal.App.5th at p. 890, fn. 8 .) — 5 — A person serving a sentence for a conviction which would not have been an offense after passage of Proposition 64 may petition the trial court for a recall or dismissal of his or her sentence. (§ 11361.8, subd. (a).) “If the petitioner satisfies the criteria in subdivision (a), the court shall grant the petition to recall the sentence or dismiss the sentence because it is legally invalid unless the court determines that granting the petition would pose an unreasonable risk of danger to public safety.” (§ 11361.8, subd. (b).) Whether a petitioning party is eligible for relief under section 11361.8, subdivision (a), presents a question of statutory interpretation which we review de novo. (People v. Whalum (2020) 50 Cal.App.5th 1 , 9 (Whalum); Raybon, supra, 36 Cal.App.5th at p. 113 , review granted.) In Perry, the First District Court of Appeal addressed the question of whether an inmate’s conviction for possessing cannabis in prison under Penal Code section 4573.6 was subject to dismissal after the adoption of Proposition 64. (Perry, supra, 32 Cal.App.5th at p. 890 .) The Perry court concluded Proposition 64 did not change any existing “prohibitions against the possession of marijuana in prison or otherwise affect the operation of Penal Code section 4573.6.” (Ibid.) The court explained that Proposition 64 legalized possession of not more than 28.5 grams of cannabis, but it was expressly subject to the exception carved out by Health and Safety Code section 11362.45, subdivision (d) for “ ‘[l]aws pertaining to smoking or ingesting cannabis or cannabis products,’ ” which remain prohibited. (Perry, at p. 891.) The court addressed the parties’ competing contentions as to whether this exception applies to “possession,” as well as “smoking or ingesting” cannabis, and concluded that it does. (Id. at pp. 890-891.) In response to the defendant’s argument that possession was “not necessarily an inherent aspect of smoking or ingesting [cannabis],” the court found the — 6 — concepts of possession and use were related, noting in “the context of possession in prison, it is particularly obvious that possession must ‘pertain’ to smoking or ingesting. For what purpose would an inmate possess cannabis that was not meant to be smoked or ingested by anyone?” (Id. at p. 892.) The court also rejected defendant’s argument premised on Penal Code section 4573.6’s reference to what is prohibited under Division 10 of the Health and Safety Code—i.e., “that Penal Code section 4573.6 no longer applies to possession by an adult in prison of not more than 28.5 grams of cannabis because the offense is defined by reference to ‘controlled substances, the possession of which is prohibited by Division 10,’ and Proposition 64, by its amendment of Health and Safety Code section 11357, eliminated the prohibition against such possession that previously existed in division 10.” (Id. at p. 893.)5 The court rejected this argument because it would render the exception, or carve out language, meaningless: “Here, a conclusion that division 10 [of the Health and Safety Code] does not prohibit the possession of not more than 28.5 grams of cannabis for purposes of Penal Code section 4573.6 would make meaningless the express provision of Proposition 64 that its legalization of cannabis did not ‘amend, repeal, affect, restrict, or preempt: [¶] . . . [¶] . . . [l]aws pertaining to smoking or ingesting cannabis’ in penal institutions.” (Id. at p. 894.) By contrast, interpreting Penal Code section 4573.6’s language (“controlled substances, the possession of which is prohibited by Division 10”) as including possession of cannabis in prison, “does no violence to the words of the” statute. (Perry, at p. 896.) 5 “As amended by Proposition 64, section 11357 no longer defines possession of not more than 28.5 grams of marijuana by a person age 21 or older as an offense.” (Perry, supra, 32 Cal.App.5th at p. 889 ; see § 11357, subd. (a).) — 7 — “Cannabis remains a controlled substance under division 10.[6] Under the Health and Safety Code provisions affected by Proposition 64, all of which are part of division 10, cannabis possession is prohibited in a number of specific circumstances and its possession or use in penal institutions is excluded from the initiative’s affirmative legalization provision.” (Ibid.) In Raybon, the Third District Court of Appeal addressed the same question of whether possession of cannabis in prison remains a crime after the passage of Proposition 64, and it came to the opposite conclusion of Perry. The Raybon court concluded “the plain language of Health and Safety Code section 11362.1, enacted as part of Proposition 64,” compelled a finding that “possession of less than an ounce of cannabis in prison is no longer a felony.” (Raybon, supra, 36 Cal.App.5th at p. 113 , review granted.) The court found support for its position in two prior cases, People v. Fenton (1993) 20 Cal.App.4th 965 (Fenton) and People v. Harris (2006) 145 Cal.App.4th 1456 (Harris), which the court noted rejected many of the same arguments the Attorney General was asserting that were “at odds with the plain meaning of the statute.” (Raybon, at pp. 117-119.)7 With regard to the scope 6 Section 11054, subdivision (d)(13). 7 In Fenton, the Court of Appeal ruled that the defendant did not violate Penal Code section 4573, which prohibits bringing into a jail “ ‘any controlled substance, the possession of which is prohibited by Division 10 (commencing with Section 11000) of the Health and Safety Code,’ ” because he had a physician’s prescription for the controlled substance in his possession. ( Fenton, supra, 20 Cal.App.4th at pp. 966-967, 971.) In Harris, the appellate court reversed the defendant’s conviction for violating Penal Code section 4573.5, prohibiting bringing “drugs ‘other than controlled substances’ ” into a correctional facility, because the statute does not apply to controlled substances such as the “ ‘medical marijuana’ ” which the defendant brought into the prison. ( Harris, supra, 145 Cal.App.4th at pp. 1460-1461, 1465.) — 8 — of the carve out in section 11362.45, subdivision (d), the court rejected the notion that the “drafters of Proposition 64 intended to include possession not by naming it, but by the use of a tangential reference ‘pertaining to.’ ” (Raybon, at p. 121.) The court further explained “it stretches the imagination to conclude that the drafters listed two distinct activities, ‘smoking or ingesting,’ intending to include a third distinct activity, possession, by using the vague reference ‘pertaining to.’ ” (Ibid.)8 The court rejected the Attorney General’s arguments based on public policy grounds, and his claim that allowing the possession of small amounts of cannabis in prison leads to absurd results, stating: “None of the policy arguments he advances can undermine the will of the electorate and none of the disasters he foresees constitute the type of absurdity that allows us to disregard the voters’ clear intent.” (Id. at p. 124.) In response to concerns about the loss of control over correctional facilities resulting from the decriminalization of cannabis in prisons, the court concluded “rules prohibiting the possession of cannabis can be established and managed administratively.” (Id. at p. 119.) In Whalum, this court addressed the similar issue of whether an inmate convicted of possessing cannabis in prison under Penal Code section 4573.8, which prohibits possession of “drugs in any manner” in prison, was eligible for relief under Health and Safety Code section 11361.8, subdivision (a). (Whalum, supra, 50 Cal.App.5th at p. 3.) Whalum concluded that a conviction under Penal Code section 4573.8 remained a felony after Proposition 64, and the inmate was not eligible for relief. (Whalum, at p. 3.) 8 According to the court, the purpose of the “ ‘pertaining to’ ” language was to “describe the vast array of means of consumption,” such as “inhal[ing] . . . a nonburning vapor” or topical application resulting in “absor[ption] through the skin,” which remain unlawful. (Raybon, supra, 36 Cal.App.5th at p. 122 , review granted, italics added.) — 9 — The court noted it “need not, and d[id] not, weigh in on the issues unique to the impact of Proposition 64 on Penal Code section 4573.6.” (Id. at p. 10.) However, the court agreed with Perry that “Proposition 64 did not affect laws specifically directed at criminalizing the possession of cannabis as contraband in a correctional institution.” (Id. at p. 5.) Whalum further “agree[d] with Perry’s analysis regarding the scope of the carve out in [Health and Safety Code] section 11362.45, subdivision (d), and . . . accordingly conclude[d] that Proposition 64 does not affect laws, including Penal Code section 4573.8, which make it a crime to possess cannabis in a correctional institution.” (Id. at p. 10.) Whalum concluded that “even though Penal Code section 4573.8 criminalizes possession rather than use of drugs in a correctional institution, it is nevertheless properly described as a law ‘pertaining to smoking or ingesting cannabis’ in such a setting, as it is part of [a] prophylactic approach to prevent prisoners from using drugs.” (Id. at p. 12.) More recently, the Sixth District Court of Appeal addressed the question of whether Penal Code section 4573.6 remains a felony following the approval of Proposition 64 in Herrera. The Herrera court adhered to the analysis in Perry and Whalum and rejected the analysis in Raybon, concluding that “Proposition 64 did not decriminalize the possession of cannabis in a penal institution.” (Herrera, supra, 52 Cal.App.5th at p. 985.) The Herrera court reasoned that Health and Safety Code section 11362.45, as enacted by Proposition 64, contains an exception to “the general provision authorizing adult possession of cannabis” (Herrera, at p. 990)—which expressly states that “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” prison or jail. — 10 — (Health & Saf. Code, § 11362.45, subd. (d).) Because Penal Code section 4573.6, subdivision (a) is a “ ‘[l]aw[] pertaining to smoking or ingesting cannabis’ in jail within the meaning of Health and Safety Code section 11362.45[, subdivision] (d),” the Herrera court held that “Proposition 64 did ‘not amend, repeal, affect, restrict, or preempt’ Penal Code section 4573.6[, subdivision] (a), and possession of cannabis in jail remains a crime under that Penal Code provision.” (Herrera, at p. 990.) B. Analysis Keshishian’s arguments are largely based on the contention that this court should follow Raybon, rather than Perry. He claims he is entitled to relief because he could not be convicted under section 4573.6 if he were prosecuted today, and the prosecution presented no evidence to rebut the presumption that he is entitled to relief under section 11361.8, subdivision (a). We reject Keshishian’s claims and conclude he is not entitled to relief. Pending further guidance from the Supreme Court, and recognizing that Raybon reached a different conclusion, we agree with Perry, Whalum, and Herrera that Proposition 64’s decriminalization of cannabis “does not amend, repeal, affect, restrict, or preempt” “[l]aws pertaining to smoking or ingesting” cannabis in prison (Health & Saf. Code, § 11362.45, subd. (d)), and possession of cannabis in prison under Penal Code section 4573.6, subdivision (a) is a “[l]aw[] pertaining to smoking or ingesting” cannabis in prison or jail under Health and Safety Code section 11362.45, subdivision (d). In other words, the wide scope of the carve out in Health and Safety Code section 11362.45, subdivision (d)—for “[l]aws pertaining to smoking or ingesting cannabis” in prison—encompasses possession as well as use of cannabis in prison. We therefore conclude the possession of cannabis in — 11 — prison, in violation of Penal Code section 4573.6, remains a felony after the passage of Proposition 64. Keshishian argues his conduct would not be a crime if Proposition 64 had been in effect when he committed his offense because Proposition 64 removed small amounts of cannabis from the category of “controlled substances, the possession of which is prohibited by Division 10” of the Health and Safety Code (Pen. Code, § 4573.6). (See Raybon, supra, 36 Cal.App.5th at pp. 121-122, review granted.) We disagree because this position disregards the overall structure of Proposition 64 and the statutes which it added and amended. Although Proposition 64 generally decriminalized the possession of less than an ounce of cannabis, it did not change those laws prohibiting the possession of cannabis in prisons and other correctional facilities. (Perry, supra, 32 Cal.App.5th at p. 890 [“Proposition 64 did not affect existing prohibitions against the possession of [cannabis] in prison.”]; Whalum, supra, 50 Cal.App.5th at p. 5.) Keshishian contends that, because section 11362.45, subdivision (d) refers to smoking cannabis in prison but omits “possession,” “it can be inferred that possession of [cannabis] in prison was not intended to be exempted” and is therefore not unlawful. Keshishian’s argument is consistent with the Raybon court’s interpretation of the carve out language in section 11362.45, subdivision (d), and contrary to Perry, Whalum, and Herrera, which we find persuasive. As correctly stated in Perry, in view of the “wide reach” of the phrase “ ‘pertaining to,’ ” “[w]e would be hard pressed to conclude that possession of cannabis is unrelated to smoking or ingesting the substance.” (Perry, supra, 32 Cal.App.5th at p. 891 ; accord, Whalum, supra, 50 Cal.App.5th at pp. 11-12; Herrera, supra, 52 Cal.App.5th at p. 991.) Based on the breadth of the carve out provision, it defies logic to conclude — 12 — Proposition 64 was intended to leave intact prohibitions against smoking and ingesting cannabis in prison, while allowing inmates to possess cannabis. Indeed, “[i]n the context of possession in prison, it is particularly obvious that possession must ‘pertain’ to smoking or ingesting. For what purpose would an inmate possess cannabis that was not meant to be smoked or ingested by anyone?” (Perry, at p. 892.) Keshishian additionally argues that he is presumptively entitled to relief and the prosecution failed to present any evidence to rebut the presumption. Unlike Propositions 36 and 47, Proposition 64 specifies that “the court shall presume the petitioner satisfies the criteria in subdivision (a) unless the party opposing the petition proves by clear and convincing evidence that the petitioner does not satisfy the criteria.” (§ 11361.8, subd. (b).)9 We conclude Keshishian’s reliance on this language is misplaced here. The prosecutor opposed Keshishian’s petition for relief on the ground that he was not entitled to relief as a matter of law; further evidence in support of the prosecutor’s legal position was not necessary. Moreover, the trial court was authorized to grant Keshishian’s petition “[i]f the petitioner satisfie[d] the criteria in subdivision (a).” (§ 11361.8, subd. (b).) Relief is warranted only for those persons “who would not have been guilty of an offense, or who would have been guilty of a lesser offense under the Control, Regulate and Tax Adult Use of Marijuana Act had that act been in effect at the time of the offense . . . .” (Id., subd. (a).) As we have concluded, 9 Compare People v. Sherow (2015) 239 Cal.App.4th 875, 878-879 [holding that under Proposition 47 the petitioner has the “burden of showing that he or she is eligible for resentencing of what was an otherwise valid sentence”]; People v. Johnson (2016) 1 Cal.App.5th 953, 963 [“[U]nder both Proposition 36 and Proposition 47, the petitioning defendant has the initial burden of establishing eligibility, and if that burden is met, then the prosecution has the opportunity to establish ineligibility on other grounds.”]. — 13 — Keshishian’s offense under Penal Code section 4573.6 remains punishable as a felony even after the passage of Proposition 64, and Keshishian is therefore not entitled to relief under the statute. In sum, the trial court properly determined that Proposition 64 did not impact the crime of possessing unauthorized cannabis in prison in violation of Penal Code section 4573.6. We therefore affirm the court’s order denying Keshishian’s petition for relief from his prior conviction pursuant to Health and Safety Code section 11361.8, subdivision (a). DISPOSITION The order is affirmed. GUERRERO, J. WE CONCUR: McCONNELL, P. J. BENKE, J. — 14 —