P. v. Cummings

Filed 3/2/21 P. v. Cummings CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
MARIO CUMMINGS,
Defendant and Appellant.
B305306
(Los Angeles County
Super. Ct. No. MA011541)
APPEAL from an order of the Superior Court of Los
Angeles County, Daviann L. Mitchell, Judge. Affirmed.
Wayne C. Tobin, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Blythe J. Leszkay and Theresa A. Patterson,
Deputy Attorneys General, for Plaintiff and Respondent.
_______________________________

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It is a felony to bring into prison a “controlled substance,
the possession of which is prohibited by” the Health and Safety
Code. (Pen. Code, § 4573, subd. (a).) The Health and Safety Code
prohibits possession of marijuana in certain circumstances.
(Health & Saf. Code, § 11362.1, subd. (a).)1
Mario Cummings appeals from the superior court’s denial
of his petition to dismiss a conviction for bringing marijuana into
a prison, contending the recent decriminalization of marijuana
possession under certain circumstances decriminalized his
offense. We conclude that the crime of bringing unauthorized
marijuana into a prison was unaffected by the change in the law,
and therefore affirm the order denying Cummings’s petition.
BACKGROUND
In 1996, Cummings, an inmate in state prison, was
convicted of one felony count of bringing 9.5 grams of marijuana
into the prison, and was sentenced to an additional term. (Pen.
Code, § 4573.) He was over 21 years of age at the time.2
In 2016, the voters adopted Proposition 64, the Control,
Regulate and Tax Adult Use of Marijuana Act, which legalized
possession of up to 28.5 grams (one ounce) of adult cannabis
except in identified circumstances. (Voter Information Guide,
Gen. Elec. (Nov. 8, 2016) text of Prop. 64, § 1, p. 178 (Voter
Information Guide); § 11362.1, et seq.)
1 Undesignated statutory references will be to the Health
and Safety Code.
2 The record does not reflect Cummings’s original crime or
sentence. For purposes of this appeal we will assume he has been
in state prison continuously from 1996 to now.

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Cummings filed a petition in the superior court seeking
dismissal of his conviction pursuant to Proposition 64. The trial
court denied the petition.
DISCUSSION
Cummings argues that his conviction for bringing
marijuana into prison should be dismissed because Proposition
64 generally decriminalized possession of less than an ounce of
cannabis, including by an inmate. We disagree.
We review a trial court’s statutory interpretation de novo.
(People v. Taylor (2021) 60 Cal.App.5th ___, ___ [274 Cal.Rptr.3d
204, 210] (Taylor).)
Penal Code section 4573 makes it a felony to bring into a
prison “any controlled substance, the possession of which is
prohibited by Division 10 (commencing with Section 11000) of the
Health and Safety Code” (Division 10). (Pen. Code, § 4573, subd.
(a).)
Division 10 lists cannabis as a controlled substance.
(§ 11054, subd. (d)(13).) (For purposes of this discussion we will
use the terms marijuana and cannabis interchangeably.)
Prior to the passage of Proposition 64, Division 10
prohibited nonmedical use of marijuana. (See Voter Information
Guide, text of Prop. 64, § 2 subd. B, p. 178.)
Proposition 64 added section 11362.1, which provides in
pertinent part: “Subject to Sections . . . 11362.3 [and]
11362.45, . . . it shall be lawful . . . for persons 21 years of age or
older to” possess up to 28.5 grams of cannabis. (Health & Saf.
Code, § 11362.1, subd. (a).)
Although section 11362.1 liberalized marijuana possession,
it continues to be unlawful to, for example, possess cannabis on
the grounds of a school, day care center, or youth center while

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children are present; to possess an open container of cannabis
while driving or riding in the passenger seat of a motor vehicle,
boat, or aircraft; to possess more than 28.5 grams of marijuana;
or to possess any amount while under the age of 21. (§§ 11362.1,
subd. (a), 11362.3, 11362.45.) Accordingly, marijuana remains a
controlled substance, the possession of which Division 10
prohibits under certain circumstances.
Because Cummings was convicted for bringing into a prison
a “controlled substance, the possession of which is prohibited by
Division 10,” his offense satisfies the elements of Penal Code
section 4573, and the trial court thus properly denied his petition
to dismiss his conviction.
Cummings argues that because after Proposition 64
Division 10 now permits possession of marijuana in many
circumstances, including his—less than one ounce possessed by a
person over 21 years of age—it is not “prohibited by Division 10”
for purposes of Penal Code section 4573. We disagree.
“[T]he phrase ‘any controlled substance, the possession of
which is prohibited by Division 10 . . . ,’ ” “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, supra, 60 Cal.App.5th at p. ___ [274
Cal.Rptr.3d at pp. 212, 214].)
In other words, Penal Code section 4573 imports only the
list of controlled substances from Division 10, not its prohibitions.
This makes sense first as a matter of grammar. The relative
pronoun “which,” standing in for “controlled substance,” is
unqualified, for example by any weight specification. The subject
complement “prohibited” therefore characterizes the essential

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controlled substance, which does not change when the weight
changes. Penal Code section 4573 thus prohibits importation of
the controlled substance itself into prison, not any particular
amount of it. (See Taylor, supra, 60 Cal.App.5th at p. ___ [274
Cal.Rptr.3d at p. 213] [the amount need only be usable].)
This being the plain reading of Penal Code section 4573, it
also comports with the evident legislative intent, both directly
and by implication. If the Legislature had intended to apply
Division 10’s prohibitions to Penal Code section 4573 it easily
could have stated that drug importation to a prison is unlawful
only insofar as Division 10 prohibits possession. To do so would
have been as simple as inserting “to the extent” between
“substance” and “the,” thus prohibiting bringing into a prison
“any controlled substance, to the extent the possession of which is
prohibited by Division 10.” That the Legislature did not do so
implies it intended to borrow only Division 10’s classifications,
not its prohibitions.
Nothing in Proposition 64 reflects a contrary intent; in fact,
the contrary seems true: Proposition 64 added section 11362.45,
which states that the legalization of cannabis “does not amend,
repeal, affect, restrict, or preempt” any law “pertaining to
smoking or ingesting cannabis” within a prison. (§ 11362.45,
subd. (d).) The electorate therefore apparently (and
commonsensically) exempted prisons from marijuana
legalization.
The courts are split on whether statutes like Penal Code
section 4573 are laws “pertaining to smoking or ingesting
cannabis” in prison, and the matter will be decided by our
Supreme Court. (Compare People v. Perry (2019) 32 Cal.App.5th
885, review den. June 12, 2019, S255148, People v. Whalum

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(2020) 50 Cal.App.5th 1, review granted Aug. 12, 2020, S262935,
People v. Herrera (2020) 52 Cal.App.5th 982, review granted Oct.
14, 2020, S264339, and Taylor, supra, 60 Cal.App.5th ___ [274
Cal.Rptr.3d 204], with People v. Raybon (2019) 36 Cal.App.5th
111, review granted Aug. 21, 2019, S256978.) But for our
purposes it suffices to say that nothing in Proposition 64
militates against our conclusion that Penal Code section 4573
uses only Division 10’s classifications, not it prohibitions.
Cummings was therefore properly convicted of violating
Penal Code section 4573 for importing cannabis into a prison, and
the trial court rightly denied his petition to dismiss that
conviction.
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED
CHANEY, J.
We concur:
BENDIX, Acting P. J.
FEDERMAN, J.*
* Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.

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