P. v. Alexander

Filed 5/25/21 P. v. Alexander CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a).
This opinion has not been certified for publication or ordered published for purposes of rule
8.1115(a).
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
AVERIAL ALEXANDER,
Defendant and Appellant.
B305299
Los Angeles County
Super. Ct. No. MA052748
APPEAL from an order of the Superior Court of
Los Angeles County, Daviann L. Mitchell, Judge. Reversed and
remanded with directions.
Wayne C. Tobin, by appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Michael R. Johnsen and Blythe J. Leszkay,
Deputy Attorneys General, for Plaintiff and Respondent.
_______________________________________

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INTRODUCTION
After defendant Averial Alexander pled no contest to
possessing marijuana in prison, California voters passed
Proposition 64, which made it legal for adults 21 years of age or
older to possess up to 28.5 grams of marijuana. The trial court
denied Alexander’s petition to dismiss his conviction filed under
Health and Safety Code1 section 11361.8 without reaching the
merits, finding Proposition 64 did not repeal or otherwise change
the laws prohibiting the possession of marijuana in correctional
facilities. Alexander appeals. We reverse and remand the matter
with directions for the court to consider the merits of Alexander’s
petition.
BACKGROUND
In 2012, while serving a 37-year sentence for a prior
conviction, Alexander pled no contest to possessing marijuana in
prison (Pen. Code, § 4573.6). The court imposed a two-year
sentence.2
In 2016, California voters passed Proposition 64, which
added section 11362.1. That statute makes it lawful for people 21
years of age or older to possess marijuana in certain
circumstances. (§ 11362.1, subd. (a).) For example, it is now
lawful to purchase, obtain, possess, give away without
1 All undesignated statutory references are to the Health and Safety
Code.
2 The reporter’s transcript, the sentencing minute order, and the
abstract of judgment do not indicate whether the court ordered
Alexander’ sentence for possessing marijuana in prison to run
consecutively to, or concurrently with, Alexander’s sentence for his
prior conviction.

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compensation, or transport 28.5 grams or less of nonconcentrated
marijuana. (§ 11362.1, subd. (a).)
In 2020, Alexander filed a petition under section 11361.8,
subdivision (a) asking the court to dismiss his conviction for
violating Penal Code section 4573.6, arguing Proposition 64
makes it legal for people at least 21 years of age to possess
marijuana in prison. The court denied Alexander’s petition,
finding Proposition 64 “did not legalize the possession of
marijuana in prison or otherwise affect the operation of Penal
Code section 4573.6, and that Prop[osition] 64 did not remove
possession of marijuana in prison from the reach of Penal Code
section 4573.6.”
Alexander appeals.
DISCUSSION
A defendant serving a sentence for a marijuana-related
offense may petition the court to, among other things, dismiss his
conviction if he would not have been guilty of the offense had
Proposition 64 been in effect at the time it was committed. (§
11361.8, subd. (a).) When it receives a petition under section
11361.8, subdivision (a), the court shall presume the defendant
satisfies the statute’s criteria for relief unless the opposing party
“proves by clear and convincing evidence” that the defendant does
not meet that criteria. (§ 11361.8, subd. (b).)
Alexander was convicted of violating Penal Code section
4573.6, subdivision (a), which makes it a felony for any person to
knowingly possess in a state prison “any controlled substances,
the possession of which is prohibited by Division 10 … of the
Health and Safety Code [(Division 10)].” Cannabis, commonly
referred to as marijuana, is listed as a controlled substance under
Division 10. (§§ 11007, 11054.)

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As we noted above, Proposition 64 makes it legal for adults
21 years of age or older to possess up to 28.5 grams of
nonconcentrated marijuana for recreational purposes. (§ 11362.1,
subd. (a)(1).) It is still illegal under Division 10, however, to
possess more than 28.5 grams of nonconcentrated marijuana
unless otherwise authorized to do so. (§ 11357.)
Section 11362.1, subdivision (a) includes various carve outs
to Proposition 64’s legalization of recreational marijuana,
including section 11362.45, which provides 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 facility or institution
under the jurisdiction of the Department of Corrections and
Rehabilitation or the Division of Juvenile Justice, or on the
grounds of, or within, any other facility or institution referenced
in Section 4573 of the Penal Code.” (§ 11362.45, subd. (d).)
The court in this case found that under section 11362.45,
subdivision (d), all possession of marijuana in prison remains
illegal. The courts of appeal are split on this issue, which is
currently pending before the California Supreme Court. (See e.g.,
People v. Raybon (2019) 36 Cal.App.5th 111, review granted Aug.
21, 2019, S256978 (Raybon) [possessing up to 28.5 grams of
marijuana in prison is no longer a felony]; People v. Whalum
(2020) 50 Cal.App.5th 1, review granted Aug. 12, 2020, S262935
[Proposition 64 did not change laws directed at criminalizing
possession of marijuana in prison].)
Several courts have held that Proposition 64 does not affect
Penal Code section 4573.6’s prohibition against possessing
marijuana in prison. (See, e.g., People v. Perry (2019) 32
Cal.App.5th 885 (Perry); People v. Herrera (2020) 52 Cal.App.5th
982.) In reaching that conclusion, these courts have relied on the
carve-out provision in section 11362.45. (See e.g., Perry, at pp.

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891–892.) By way of example, the court in Perry broadly
interpreted the phrase “ ‘pertaining to’ ” as used in section
11362.45, subdivision (d) to include possessing cannabis,
explaining it would be “hard pressed to conclude that possession
of cannabis is unrelated to smoking or ingesting the substance.”
(Perry, at pp. 891–892.)
The court in Perry also rejected the defendant’s argument
that Penal Code section 4573.6 no longer applies to an adult who
possesses not more than 28.5 grams of cannabis in prison
“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 ... section 11357,
eliminated the prohibition against such possession that
previously existed in division 10.” (Perry, supra, 32 Cal.App.5th
at p. 893.) The court reasoned that the defendant’s argument, if
accepted, would render meaningless section 11362.45,
subdivision (d)’s statement that the act did not “ ‘amend, repeal,
affect, restrict, or preempt’ ” laws pertaining to smoking or
ingesting cannabis in correctional facilities. (Perry, at p. 894.)
Rather, cannabis “remains a controlled substance under division
10. 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.” (Perry, at p.
896.)
The court in Raybon disagreed with Perry and concluded
that possessing less than an ounce of marijuana in a correctional
facility is no longer a felony after Proposition 64 went into
effect. The court in Raybon interpreted section 11362.45’s carve-
out provision more restrictively. (Raybon, supra, 36 Cal.App.5th
at pp. 121–122.) Specifically, the court reasoned that laws

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pertaining to smoking or ingesting cannabis in a penal facility
(see § 11362.45, subd. (d)) do not include Penal Code section
4573.6’s prohibition against possessing cannabis in a correctional
facility. (Raybon, at pp. 121–122.) The court said, “The purpose of
the language is to describe the vast array of means of
consumption and consumption, not possession, is the act the
voters determined should remain criminalized if the user is in
prison. 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. By including the language
‘pertaining to smoking and ingesting,’ the drafters allowed for
these various forms of consumption in prison to remain
unlawful.” (Id. at p. 122.)
We need not add anything more to this split amongst the
appellate courts because the Supreme Court will resolve it.
Pending resolution of the issue, we will follow Raybon, finding its
statutory analysis compelling. We therefore conclude the court
erred in finding Proposition 64 did not legalize possessing up to
28.5 grams of nonconcentrated marijuana in a correctional
facility.
The People nevertheless urge us to affirm the court’s order
denying Alexander’s petition, arguing that even if Proposition 64
makes it legal to possess up to 28.5 grams of marijuana in prison,
Alexander possessed more than that amount and was therefore
ineligible for relief under section 11361.8. (See People v.
Smithey (1999) 20 Cal.4th 936, 971–972 [“ ‘ “ ‘[A] ruling or
decision, itself correct in law, will not be disturbed on appeal
merely because given for a wrong reason.’ ” ’ ”].) We decline to
make a finding, in the first instance, that Alexander is ineligible
for relief under Proposition 64.

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Nothing in the record indicates the court made any
findings, express or implied, concerning the amount of marijuana
Alexander possessed. The People point to three reports included
in the clerk’s transcript—an incident report, a criminalist’s
report, and a probation report—that they argue contain reliable
hearsay statements establishing Alexander possessed more than
28.5 grams of marijuana in his prison cell. But there is nothing to
suggest the court considered those reports, let alone made any
credibility determinations concerning the statements made in the
reports, before denying Alexander’s petition. For instance, the
court didn’t mention any of the reports, or discuss the issue of
how much marijuana Alexander possessed, in its written
statement of decision or during the hearing on Alexander’s
petition. Nor did any of the parties discuss or otherwise reference
the amount of marijuana Alexander possessed before the court
denied his petition.
It is a fundamental principle of appellate practice that trial
courts, not appellate courts, are finders of fact. (People v.
Young (2005) 34 Cal.4th 1149, 1181.) Because nothing in the
record indicates the court made any finding concerning the
amount of marijuana Alexander possessed, we will not make that
finding in the first instance. (See ibid. [appellate courts do not
resolve credibility issues]; see also Packer v. Sillas (1976) 57
Cal.App.3d 206, 221 [“Where the trial court has made no [factual]
findings, the reviewing court will not on such a record make
independent findings of its own.”].) We therefore decline to
conclude that Alexander is not entitled to relief based on the
contents of the reports cited by the People.

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DISPOSITION
The order denying Alexander’s petition to dismiss his
conviction for violation of section 4573.6, subdivision (a) is
reversed. The matter is remanded for a new hearing at which the
trial court shall consider the petition on its merits.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, Acting P.J.
WE CONCUR:
EGERTON, J.
KALRA, J. *
* Judge of the Los Angeles Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.

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