P. v. Campbell

Filed 12/24/20 P. v. Campbell CA2/3
See concurring opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
ELMER CAMPBELL,
Defendant and Appellant.
B302318
(Los Angeles County
Super. Ct. No. MA067879)
APPEAL from an order of the Superior Court of
Los Angeles County, Charles A. Chung, Judge. Reversed.
Jennifer A. Gambale, 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, Stephanie C. Brenan, Blythe Leszkay and
Toni R. Johns Estaville, Deputy Attorneys General, for Plaintiff
and Respondent.
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Elmer Campbell appeals from an order denying his petition
to have his conviction for possessing marijuana in prison reduced
or dismissed under the Control, Regulate and Tax Adult Use of
Marijuana Act (the act) (Voter Information Guide, Gen. Elec.
(Nov. 8, 2016) Prop. 64, § 1, p. 178 ). We reverse.
BACKGROUND
In 2016, Campbell pleaded nolo contendere to possessing
contraband marijuana in jail (Pen. Code, § 4573.6, subd. (a)). The
trial court sentenced him to three years in prison. Later that
year, the electorate passed the act, which generally reduced
marijuana-related crimes to misdemeanors. In 2019, Campbell
petitioned to have his conviction redesignated and dismissed
under Health and Safety Code section 11361.8,1 which was added
by the act. The trial court, after noting a split of authority
regarding whether section 11361.8 applies to convictions of Penal
Code section 4573.6, denied the petition. Campbell thus appeals,
contending that the act applies to convictions of Penal Code
section 4573.6.
DISCUSSION
Penal Code section 4573.6, subdivision (a), provides that
any person who knowingly possesses in prison any controlled
substance, the possession of which is prohibited by division 10 of
the Health and Safety Code, is guilty of a felony. As pertinent
here, the act decriminalized possessing less than 28.5 grams of
marijuana for people 21 years of age or older. (§ 11362.1,
1 All further statutory references are to the Health and
Safety Code unless otherwise indicated.

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subd. (a).) A person currently serving a sentence for a conviction
who would not have been guilty of an offense or who would be
guilty of a lesser offense under the act may petition for recall or
dismissal of the sentence. (§ 11361.8, subd. (a).) Here, Campbell
possessed 0.1 grams of marijuana. He therefore contends he is
entitled to have his conviction recalled or dismissed under the
act, as he pleaded guilty to possessing less than 28.5 grams of
marijuana in prison.
Appellate courts are split on whether the act applies to
Campbell’s crime of possessing cannabis in a correctional facility,
and the issue is pending review in the California Supreme Court.
(See, e.g., People v. Raybon (2019) 36 Cal.App.5th 111, review
granted Aug. 21, 2019, S256978 (Raybon); People v. Whalum
(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.)
Several courts have found that the act does not apply to a
conviction of Penal Code section 4573.6. (See, e.g., People v. Perry
(2019) 32 Cal.App.5th 885; People v. Herrera, supra,
52 Cal.App.5th 982.) In reaching that conclusion, they rely on
the carve-out provision in section 11362.45, which provides that
section 11362.1 “does not amend, repeal, affect, restrict, or
preempt” laws “pertaining to smoking or ingesting cannabis or
cannabis products” in a facility under the jurisdiction of the
Department of Corrections and Rehabilitation (§ 11362.45,
subd. (d), italics added). Perry, at pages 891 to 892, broadly
interpreted “ ‘pertaining to’ ” to include possessing cannabis,
saying it would be “hard pressed to conclude that possession of
cannabis is unrelated to smoking or ingesting the substance.”

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The court 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.” (People v. Perry, supra,
32 Cal.App.5th at p. 893.) The court found that this argument
rendered meaningless the carve-out provision’s statement that
the act did not “ ‘amend, repeal, affect, restrict, or preempt’ ” laws
pertaining to smoking or ingesting cannabis in correctional
facilities. (Id. 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.)
Raybon, supra, 36 Cal.App.5th 111 disagreed with Perry
and concluded that possessing less than an ounce of marijuana in
prison is no longer a felony per the act. Raybon, at pages 121 to
122, interpreted section 11362.45’s carve-out provision more
restrictively. That is, laws pertaining to smoking or ingesting
cannabis in a penal facility (§ 11362.45, subd. (d)) do not include
possessing cannabis under Penal Code section 4573.6. 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

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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.” (Raybon, at p. 122.)
We need not delve deeply into this dispute, as the Supreme
Court will resolve it. Pending resolution of the issue, we will
follow Raybon, finding its statutory analysis compelling, and
reverse the order denying Campbell’s petition.
DISPOSITION
The order is reversed.
NOT TO BE PUBLISHED.
DHANIDINA, J.
I concur:
LAVIN, Acting P. J.

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EGERTON, J., Concurring.
I agree with my colleagues that—pending guidance from
our Supreme Court—the reasoning of People v. Raybon (2019)
36 Cal.App.5th 111, review granted Aug. 21, 2019, S256978—
is more persuasive than the cases that have reached the opposite
conclusion. I write to add two observations. First, propositions
often are poorly drafted. Proposition 64 is a good example. Who
knows what “pertaining to smoking or ingesting cannabis or
cannabis products” is supposed to mean? As the courts that have
disagreed with Raybon note, a person must “possess” cannabis
in order to smoke or ingest it. On the other hand, as the Raybon
court points out, had the authors of Proposition 64 wanted to
include “possessing” with “smoking” and “ingesting,” they could
have done so. (Raybon, at p. 121.) This sloppiness in drafting
is unfortunate, as the presence of a controlled substance like
cannabis in prison plainly is problematic.
Finally, the amount of cannabis that Campbell possessed
in this case was one-tenth of a gram. That is about the weight
of one-tenth of a small paper clip or a plastic cap on a pen, or
one twenty-fifth of a penny. (<https://en.wikipedia.org/wiki/
Gram> [as of Dec. 22, 2020], archived at <https://perma.cc/
E5JE-QMZ5>.) While the validity of Campbell’s plea is not
before us, a violation of Penal Code section 4573.6 requires that
the controlled substance “was a usable amount.” (CALCRIM
No. 2748.)
EGERTON, J.

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