Proposition 64, legalizing possession of up to 28.5 grams of marijuana by adults, did not decriminalize possession of marijuana in prison. In 2010, Perry was convicted of unauthorized possession of marijuana in prison under Penal Code section 4573.6. (See also former Health & Saf. Code, § 11357 [possession of not more than 28.5 grams of marijuana is a misdemeanor].) In 2016, Proposition 64 legalized possession of not more than 28.5 grams of marijuana by persons 21 years of age or older, with certain limitations. (Health & Saf. Code, § 11362.1.) It provided that a person previously convicted of possession of marijuana as specified in enumerated sections of the Health and Safety Code could petition the court to recall the sentence (where Proposition 64 reduced penalties) or dismiss the conviction (where Proposition 64 decriminalized the conduct). The trial court denied Perry’s petition for such relief, finding that Proposition 64 is inapplicable to convictions under section 4573.6. Perry appealed. Held: Affirmed. Under section 4573.6, subdivision (a), it is a felony to knowingly possess a controlled substance (the possession of which is prohibited by Division 10 of the Health and Safety Code) in state prison without authorization. Health and Safety Code section 11362.45, subdivision (d), states that the legalization permitted under section 11362.1 does not apply to “[l]aws pertaining to smoking or ingesting cannabis or cannabis products on the grounds of, or within, any facility or institution under the jurisdiction of the Department of Corrections and Rehabilitation or the Division of Juvenile Justice, or on the grounds of, or within, any other facility or institution referenced in Section 4573 of the Penal Code.” Although section 11362.45 does not specifically use the term “possession,” the Court of Appeal analyzed the relevant statutes and the intent and purpose of Proposition 64 and concluded that cannabis “possession or use in penal institutions is excluded from the initiative’s affirmative legalization provision.” [Editor’s Note: In a more recent case, the Third District disagreed with the opinion in this case, concluding that the plain language of Proposition 64 and relevant case law is clear and “lead to the inescapable conclusion that possession of less than one ounce of cannabis in prison or a similar penal institution is not a felony.” (People v. Raybon (2019) 36 Cal.App.5th 111.)]

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/archive/A153649M.PDF