P. v. Estacio

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Filed 3/2/21 P. v. Estacio 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.
JEFFREY ESTACIO,
Defendant and Appellant.
C091386
(Super. Ct. No. CC036286)
Pursuant to Proposition 64, defendant Jeffrey Estacio filed a petition to vacate his
conviction for the offense of possession of cannabis while in state prison. The trial court
denied the petition. On appeal, defendant argues he is entitled to relief because
Proposition 64, enacted by the voters in 2016, legalizes the possession of 28.5 grams of
cannabis or less by persons 21 years of age or older, even in prisons and other
correctional facilities.
Currently, there is a split of authority on whether Proposition 64 decriminalizes
the possession of cannabis in correctional facilities. The First, Fourth, and Sixth Districts

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hold Proposition 64 did not affect existing prohibitions against the possession of cannabis
in prison. (People v. Perry (2019) 32 Cal.App.5th 885, 890 (Perry), review den.; People
v. Whalum (2020) 50 Cal.App.5th 1, 6, review granted Aug. 12, 2020, S262935; People
v. Herrera (2020) 52 Cal.App.5th 982, 995 review granted Oct. 14, 2020, S264339
(Herrera).) A different panel of this court reached the opposite conclusion. (People v.
Raybon (2019) 36 Cal.App.5th 111, 113, 121, review granted Aug. 21, 2019, S256978
(Raybon).) The California Supreme Court is currently considering the issue.
Pending a decision by our Supreme Court, we find the analysis in Perry and
Herrera more persuasive. We therefore affirm the denial of defendant’s petition.
I. BACKGROUND
On November 8, 2016, California voters passed Proposition 64, which among
other things, made lawful the possession of not more than 28.5 grams of cannabis by
persons 21 years of age or older “[s]ubject to [Health and Safety Code] Sections 11362.2,
11362.3, 11362.4, and 11362.45, but notwithstanding any other provision of law.”
(Health & Saf. Code, § 11362.1, subd. (a)(1).)1
While the initiative lifted the prohibitions on the possession and use of up to 28.5
grams of marijuana in a number of settings, it specifically left in place prohibitions
“pertaining to” the use of marijuana in prison: “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).)
1 Further undesignated statutory references are to the Health and Safety Code.

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Proposition 64 also established a procedure by which “[a] person currently serving
a sentence for a conviction, whether by trial or by open or negotiated plea, who would not
have been guilty of an offense, or who would have been guilty of a lesser offense under
[Proposition 64] had that act been in effect at the time of the offense may petition for a
recall or dismissal of sentence . . . .” (§ 11361.8, subd. (a).)
On September 14, 2018, defendant pled no contest to possession of cannabis in
state prison in violation of Penal Code section 4573.6, subdivision (a). The trial court
sentenced defendant to three years in state prison to be served consecutively to his current
sentence.
Defendant filed a petition pursuant to section 11361.8, subdivision (a) on January
2, 2020, seeking dismissal of his sentence. The trial court denied it, holding Proposition
64 did not legalize possession of cannabis in prison. Defendant appealed.
II. DISCUSSION
Relying on Raybon, supra, 36 Cal.App.5th 111, review granted, defendant
contends his conviction under Penal Code section 4573.6 must be vacated because it has
been impliedly repealed (at least in part) by Proposition 64. He asserts the “clear and
unambiguous” language in section 11362.45, subdivision (d) leaves intact only those
laws prohibiting “smoking or ingesting cannabis” in prison. Because he was convicted of
possession of cannabis, he contends the limits on Proposition 64’s decriminalization do
not apply to his offense. We disagree.
Proposition 64 made a number of changes in statutes relating to the use of
marijuana. Relevant here, the proposition decriminalized simple possession of not more
than 28.5 grams of marijuana by persons over 21. It does not mention the crime of
possession of marijuana by inmates, except in what has been called the carve-out section
indicating those marijuana-related statutes were not affected by the proposition.
Health and Safety Code section 11362.45, subdivision (d) provides in part, that
section 11362.1 “ ‘does not amend, repeal, affect, restrict, or preempt: [¶] . . . [¶] . . .

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[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 . . . .’ (§ 11362.45, subd. (d).)” (Perry, supra, 32
Cal.App.5th at p. 891.)
The court in Perry specifically rejected the contention that the carve-out does not
apply to Penal Code section 4573.6 because the language of that section deals with
possession and not use. Instead, Perry found that the broad wording of the initiative
evinced an intent to exempt possession in prison from the scope of Proposition 64:
“While section 11362.45, subdivision (d), does not expressly refer to ‘possession,’ its
application to possession is implied by its broad wording—‘[l]aws pertaining to smoking
or ingesting cannabis.’ ” (Perry, supra, 32 Cal.App.5th at p. 891.) Perry further
concluded that the language of the official ballot pamphlet supported this conclusion
because it did not suggest there would be, “any potential impact of the measure on
cannabis in correctional institutions, much less that the voters intended to alter existing
proscriptions against the possession or use of cannabis in those institutions.” (Id. at 895.)
The Herrera court adopted the same analysis as that of the Perry court. (See
Herrera, supra, 52 Cal.App.5th 982, review granted.) In Raybon, a different panel of this
court came to a contrary result, finding the plain language of Proposition 64 no longer
made “possession of less than one ounce of cannabis in prison . . . a felony.” (Raybon,
supra, 36 Cal.App.5th at p. 113, review granted.)
We find the reasoning in Perry and Herrera to be more persuasive. Accordingly,
we adopt their reasoning and conclude that Proposition 64 “did not affect existing

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prohibitions against the possession of [cannabis] in prison . . . .”2 (Perry, supra, 32
Cal.App.5th at p. 890 [italics omitted].)
III. DISPOSITION
The order denying defendant’s petition for relief pursuant to section 11361.8,
subdivision (a) is affirmed.
/S/
RENNER, J.
We concur:
/S/
BLEASE, Acting P. J.
/S/
KRAUSE, J.
2 Because we conclude Proposition 64 does not extend to Penal Code section 4573.6, we
need not address the People’s argument that Proposition 64 does not apply to defendant
because he entered into his plea agreement after Proposition 64’s effective date.

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