P. v. Braganza

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Filed 4/9/21 P. v. Braganza CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Lassen)
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THE PEOPLE,
Plaintiff and Respondent,
v.
ALEX JONATHAN BRAGANZA,
Defendant and Appellant.
C091158
(Super. Ct. No. CH030105)
Defendant Alex Jonathan Braganza pleaded guilty to possessing less than an
ounce of cannabis in 2011 while in prison, in violation of Penal Code section 4573.6. In
2017 voters passed Proposition 64, decriminalizing adult possession of less than an ounce
of cannabis in most situations. Defendant filed a petition in superior court requesting
dismissal of his conviction under Proposition 64, which the trial court denied. On appeal,
defendant argues Proposition 64’s reach includes decriminalization of cannabis
possession in prison. We will affirm.

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BACKGROUND
In August 2012, defendant was charged with possession of cannabis while an
inmate at High Desert State Prison (Pen. Code, § 4573.6) and resisting an executive
officer using force or violence (Pen. Code, § 69) on or about October 11, 2011. It was
further alleged as to both counts defendant had two prior convictions for serious or
violent felonies (Pen. Code, §§ 667, subds. (b)-(i), 1170.12). Defendant possessed 0.68
grams of cannabis.
Defendant pleaded guilty to possession and admitted one prior conviction; the
remaining charges were dismissed. The court sentenced defendant to the middle term of
three years for possession in prison, doubled to six years for the prior strike.
In October 2019, defendant petitioned for resentencing under Health and Safety
Code section 11361.8, subdivision (b).1 After an initial denial without prejudice and
further research, the court denied the petition.
DISCUSSION
Defendant argues on appeal the trial court erred in not dismissing his conviction
for possessing 0.68 grams of cannabis. Defendant contends Proposition 64
decriminalized possession of less than an ounce2 of cannabis in all but specific
exceptions not relevant to him, invalidating his Penal Code section 4573.6 conviction.
Though ingestion and smoking cannabis in prison remain illegal, defendant asserts there
is no such exception from Proposition 64’s decriminalization for possessing cannabis in
prison. We disagree.
Penal Code section 4573.6 provides: “Any person who knowingly has in his or
her possession in any state prison . . . any controlled substances, the possession of which
1 Undesignated statutory references are to the Health and Safety Code.
2 An ounce equals about 28.5 grams. (People v. Trippet (1997) 56 Cal.App.4th 1532,
1547, fn. 10.)

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is prohibited by Division 10 (commencing with Section 11000) of the Health and Safety
Code . . . is guilty of a felony . . . .” (Pen. Code, § 4573.6, subd. (a).) In October 2011, at
the time of defendant’s offense, and immediately prior to Proposition 64 passing, section
11357, subdivision (b) made possession of not more than 28.5 grams of cannabis “an
infraction punishable by a fine of not more than one hundred dollars ($100).” (§ 11357,
former subd. (b), eff. Oct. 1, 2011, to Nov. 8, 2016.)
On November 8, 2016, voters approved Proposition 64, the Control, Regulate and
Tax Adult Use of Marijuana Act. Among other things, Proposition 64 decriminalized
cannabis3 possession and ingestion for adults over 21 years old in most circumstances. It
accomplished this in several ways including adding section 11362.1. This section
provides: “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 not more than 28.5 grams of unconcentrated cannabis or eight grams of
concentrated cannabis, cultivate up to six cannabis plants, smoke or ingest cannabis
products, or give away cannabis to other persons 21 years or older without compensation.
(§ 11362.1, subd. (a).) Proposition 64 also amended section 11357, the provision
prohibiting cannabis possession within division 10, to conform to section 11362.1.
(Voter Information Guide, Gen. Elec. (Nov. 8, 2016) text of Prop. 64, pp. 204-205.)
Individuals who would not have been guilty of an offense had Proposition 64 been in
effect at the time of their offense may petition to have their sentence recalled or
dismissed. (§ 11361.8, subd. (a).)
There are several exceptions to the reach of section 11362.1’s decriminalization
under section 11362.45. This provision states, “Section 11362.1 does not amend, repeal,
3 In 2017, the Legislature substituted the term “cannabis” for “marijuana” in the Health
and Safety Code. (Stats. 2017, ch. 27, §§ 113-160.) Consequently, we use the term
“cannabis” throughout this opinion for all purposes.

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affect, restrict, or preempt,” and then it enumerates several classes of laws involving
cannabis possession and consumption in certain circumstances. Relevant to this appeal,
subdivision (d) states: “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).)
This appeal poses the question: Is possession of less than 28.5 grams of cannabis
in prison still illegal after Proposition 64? Several courts, including this court, have
already addressed this question, but there has not been uniformity. We follow those
opinions concluding Proposition 64 does not permit possession of cannabis in prison.
This is a question of statutory interpretation, which we review de novo. (People v.
Medina (2018) 24 Cal.App.5th 61, 66.) “ ‘In interpreting a voter initiative . . . , we apply
the same principles that govern statutory construction.’ ” (Robert L. v. Superior Court
(2003) 30 Cal.4th 894, 900.) “Under fundamental rules of statutory construction, we
must ascertain the intent of the Legislature, or the electorate, from examining the statute
as a whole in order to effectuate the purpose of the law.” (People v. Saelee (2018)
28 Cal.App.5th 744, 752.) “ ‘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.] Where there is ambiguity in the language of the measure, ‘[b]allot
summaries and arguments may be considered when determining the voters’ intent and
understanding of a ballot measure.’ ” (Professional Engineers in California Government
v. Kempton (2007) 40 Cal.4th 1016, 1037.)
The court in People v. Perry (2019) 32 Cal.App.5th 885 (Perry) concluded
possession of cannabis in prison is still illegal. Perry found important the use of
“pertaining to” in section 11362.45, subdivision (d). “Definitions of the term ‘pertain’

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demonstrate its wide reach: It means . . . ‘[b]e appropriate, related, or applicable to’
[citation]. We would be hard pressed to conclude that possession of cannabis is
unrelated to smoking or ingesting the substance.” (Perry, at p. 891.) It also emphasized,
“Section 11362.45, subdivision (d), states the exception to the legalization provision of
section 11362.1 in extremely broad terms.” (Id. at p. 892.) From this, “It is apparent that
Proposition 64, in sections 11362.1 and 11362.45, was intended to maintain the status
quo with respect to the legal status of cannabis in prison.” (Id. at pp. 892-893.) The
Perry court also rejected the defendant’s argument that Penal Code section 4573.6 no
longer applies to possession of less than 28.5 grams by an adult prisoner because
Proposition 64 modified division 10. The court reasoned that such an interpretation
“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.” (Perry, at p. 894.)
Finally, the court concluded if there was any ambiguity, the lack of any reference to
reformation of cannabis laws in prison within Proposition 64’s voter information
confirms this reform was not intended. (Perry, at pp. 894-895.)
In People v. Raybon (2019) 36 Cal.App.5th 111, review granted August 21, 2019,
S256978 (Raybon), a different panel of this court reached a different conclusion. The
court relied on Proposition 64’s elimination of cannabis from division 10: “the insertion
of the qualifier ‘prohibited by’ before the reference to division 10 [in Penal Code section
4573.6] means that it limits the criminalized controlled substances to those prohibited by
division 10. Possession of less than one ounce of cannabis is no longer prohibited by
division 10, and therefore, according to the plain language of Penal Code section 4573.6,
it is no longer a felony to possess less than one ounce in prison.” (Raybon, at pp. 120-
121.) The court also found no ambiguity in “pertaining to smoking or ingesting” in
section 11362.45, subdivision (d) -- it only includes smoking and ingesting. Conversely,
“it stretches the imagination to conclude that the drafters listed two distinct activities,

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‘smoking or ingesting,’ intending to include a third distinct activity, possession, by using
the vague reference ‘pertaining to.’ ” (Raybon, at p. 121.) This does not render
“pertaining to” surplusage because it describes “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.” (Raybon, at p. 122.) This includes acts of
consumption other than smoking or ingesting, such as inhaling nonburning vapor or
topical application. (Ibid.) “Had the drafters intended for possession to remain a felony,
along with consumption, they would have said so.” (Ibid.)
In People v. Whalum (2020) 50 Cal.App.5th 1, review granted August 12, 2020,
S262935 (Whalum), and People v. Herrera (2020) 52 Cal.App.5th 982, review granted
October 14, 2020, S264339 (Herrera), the courts agreed with Perry and disagreed with
Raybon. These cases apply substantially similar reasoning, including that “pertaining to
smoking or ingesting” must include possession. (Whalum, at pp. 11-12; Herrera, at
p. 991.) The plain meaning of “pertaining to” is broad and relational, not an exact
correspondence. (Whalum, at pp. 11-12; Herrera, at p. 991.) And the other exceptions in
section 11362.45 use more precise language, such as “prohibiting” or “making it
unlawful,” confirming the relational nature of “pertaining to.” (Whalum, at pp. 11-12;
Herrera, at pp. 991-992.) Further, there was no statute specifically making it a crime to
smoke or ingest cannabis in a correctional institution. (Whalum, at p. 13; Herrera, at
p. 992.) This confirms the voters’ intent to exempt provisions prohibiting possession in
prison, such as Penal Code section 4573.6, from Proposition 64’s decriminalization.
(Whalum, at p. 13; Herrera, at p. 992.) Herrera also adopted Perry’s analysis about
Proposition 64’s modifications to division 10.4 (Herrera, at pp. 994-995.) Finally, both
4 Whalum examined Proposition 64’s effect on Penal Code section 4573.8, which
prohibits possession of all drugs and alcohol within correctional institutions. This section

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cases also agreed with Perry that if there is any ambiguity, the lack of references to
reform of cannabis possession in prison in the voter guide or other information provided
to voters confirms Proposition 64 did not decriminalize cannabis possession in prison.
(Whalum, at pp. 14-15; Herrera, at p. 993.)
We conclude the analysis in Perry, Herrera, and Whalum better conforms to the
plain language of Proposition 64. The specific inclusion of “smoking or ingesting” in
section 11362.45, subdivision (d) cannot be analyzed in a vacuum. These words are
modified by “pertaining to,” which most clearly indicates a relational list, not an
exhaustive list. So focusing on “smoking or ingesting” would require ignoring the import
of “pertaining to.” And disallowing section 11362.45, subdivision (d)’s application to
“possession” would render this provision surplusage because there are no laws
specifically addressing smoking or ingesting in prison. Though it may have been clearer
to specifically include the word “possession” and all other possible acts “pertaining to”
smoking and ingesting, it was not necessary to do so because of the wide reach of
“pertaining to.”
Finally, Proposition 64’s modifications to division 10 did not eliminate Penal
Code section 4573.6’s prohibition against cannabis possession in prison. This can best be
understood by contrasting our opinion in People v. Fenton (1993) 20 Cal.App.4th 965, a
case defendant asserts we must follow. There, a prisoner was convicted for violating
Penal Code section 4573, which proscribes smuggling into jail a controlled substance,
“the possession of which is prohibited by Division 10 (commencing with Section 11000)
of the Health and Safety Code.” (Pen. Code, § 4573, subd. (a).) The prisoner brought a
controlled substance into prison, but he had a prescription for it and section 11350,
subdivision (a) permits possession of a controlled substance “upon the written
does not incorporate division 10 so Proposition 64’s effect on division 10 was not
relevant in Whalum. (Whalum, supra, 50 Cal.App.5th at pp. 9-10, review granted.)

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prescription of a physician.” Overturning the conviction, the court reasoned “the
reference to division 10 must include the prescription exception because [Penal Code]
section 4573 imports the prohibition against possession of controlled substances not the
list of controlled substances.” (Fenton, at p. 969.) Therefore, Penal Code “[s]ection
4573 permits controlled substances to be in penal institutions under proper
circumstances.” (Fenton, at p. 969.)
This reasoning is inapposite here because section 11362.45, subdivision (d),
specifically excludes application of Proposition 64’s decriminalization provisions in
prison, and therefore excludes its modifications to division 10. So here, possession of
cannabis in prison is not a “ ‘proper circumstance[].’ ” (Perry, supra, 32 Cal.App.5th at
p. 894 [contrasting Fenton]; Herrera, supra, 52 Cal.App.5th at p. 994 [same], review
granted.) Ultimately, we do not believe the voters intended to eliminate felony liability
under Penal Code section 4573.6 through elimination of an infraction in section 1357
without saying so and in contradiction to the plain language of the enacted statutory
provisions. (C.f. People v. Buford (2016) 4 Cal.App.5th 886, 903 [“Had voters intended
to permit retention of an indeterminate term only in extraordinary cases, they would have
said so in subdivision (f) of section 1170.126, rather than employing language that
affords courts broad discretion to find dangerousness.”].)

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DISPOSITION
The judgment is affirmed.
/s/
HOCH, J.
We concur:
/s/
MAURO, Acting P. J.
/s/
DUARTE, J.

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