P. v. Livingston

Filed 8/31/20 P. v. Livingston CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
DONEISHA RENEE LIVINGSTON,
Defendant and Appellant.
D076418
(Super. Ct. No. JCF001578)
APPEAL from an order of the Superior Court of Imperial County,
Marco D. Nunez, Judge. Affirmed.
Richard J. Moller, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney
General, Michael Pulos, Kathryn Kirschbaum, and Britton B. Lacy, Deputy
Attorneys General, for Plaintiff and Respondent.
In February 2019, Doneisha Renee Livingston was convicted of
violating Penal Code section 4573.8, which prohibits possession of drugs or

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drug paraphernalia (in her case, marijuana) in prison.1 Livingston contends
this is no longer a felony under Health and Safety Code section 11362.1,
subdivision (a), which was enacted pursuant to the passage of Proposition 64
and which decriminalizes possession of small amounts of cannabis. (Prop. 64,
§ 4.4, approved Nov. 8, 2016, eff. Nov. 9, 2016; amended by Stats. 2017,
ch. 27, § 129 (Prop. 64).) Livingston petitioned the trial court for recall or
dismissal of her 2019 conviction. (Health & Saf. Code, § 11361.8, subd. (a).)
The trial court concluded Penal Code section 4573.8 remains a felony
following the passage of Proposition 64 and denied Livingston’s petition. We
agree with the trial court and affirm the order denying Livingston relief.
FACTS
In 2016, California voters decriminalized the possession of less than
28.5 grams (approximately one ounce) of marijuana, or cannabis, by a person
over 21 years of age.2 (Prop. 64; Health & Saf. Code, § 11362.1, subd. (a); see
People v. Perry (2019) 32 Cal.App.5th 885, 888 (Perry), People v. Raybon
(2019) 36 Cal.App.5th 111, 114, review granted, Aug. 21, 2019, S256978
(Raybon).)
In February 2018, Livingston brought four grams of marijuana into the
Calipatria State Prison. She was subsequently charged with three felony
counts: bringing contraband into a prison (§ 4573, subd. (a); count 1),
possession of contraband in a prison (§ 4573.6, subd. (a); count 2), and
1 Unless otherwise indicated, statutory references are to the Penal Code.
2 In 2017, the Legislature replaced references to “marijuana” in the
Health and Safety Code with the term “cannabis.” (See, e.g., Stats. 2017,
ch. 27, § 121, eff. June 27, 2017.) For consistency, we use the amended
terminology of “cannabis” throughout this opinion.

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unauthorized possession of drugs or drug paraphernalia in prison (§ 4573.8;
count 3).
In February 2019, Livingston pled guilty to one count of violating
section 4573.8. The trial court subsequently placed Livingston on three years
of formal probation, ordered her to perform 80 hours of community work
service, and ordered her to participate in a “cognitive based counseling and
educational program as directed by the probation officer.”
In August 2019, Livingston petitioned the trial court for a recall of
sentence and dismissal of her Penal Code section 4573.8 conviction pursuant
to Health and Safety Code section 11361.8, subdivision (b), on the ground
that Health and Safety Code section 11362.1 provides that possession by an
individual 21 years of age and older of not more than 28.5 grams of cannabis
is not a felony. Livingston argued that, under Raybon, possession of less
than one ounce of cannabis in prison is no longer a felony. The District
Attorney opposed Livingston’s petition, contending that Penal Code
section 4573.8 remained a felony following the passage of Proposition 64 and
encouraged the trial court to follow Perry, which concluded Proposition 64 did
not decriminalize possession of cannabis in prison. After hearing oral
argument, the trial court denied Livingston’s petition, concluding it would
follow the opinion in Perry. Livingston requested and obtained a certificate of
probable cause to pursue this appeal.
DISCUSSION
Livingston was convicted of violating section 4573.8, which provides in
relevant part: “Any person who knowingly has in his or her possession in any
state prison, . . . drugs in any manner, . . . any device, . . . or paraphernalia
intended to be used for unlawfully injecting or consuming drugs, or alcoholic

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beverages, without being authorized to possess the same by rules of the
Department of Corrections, . . . is guilty of a felony.”
Proposition 64, approved by voters on November 8, 2016, enacted the
Control, Regulate and Tax Adult Use of Marijuana Act, which decriminalized
the possession of small quantities of cannabis for persons 21 years of age or
older. (See Perry, supra, 32 Cal.App.5th at p. 894.) Among other things, it
added Health and Safety Code section 11362.1, which provides in part:
“Subject to Section[] . . . 11362.45, but 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: [¶]
(1) Possess . . . not more than 28.5 grams of cannabis not in the form of
concentrated cannabis; [¶] . . . [¶] (3) Possess . . . not more than six living
cannabis plants and possess the cannabis produced by the plants; [¶]
(4) Smoke or ingest cannabis or cannabis products; and [¶]
(5) Possess . . . cannabis accessories . . . .” (Health & Saf. Code, § 11362.1,
subd. (a).)
Decriminalization is expressly subject to Health and Safety Code
section 11362.45, which states in relevant part: “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 . . . any other facility or institution
referenced in Section 4573 of the Penal Code.”3 The facilities referenced in
3 Section 11362.45 provides in full: “Section 11362.1 does not amend,
repeal, affect, restrict, or preempt:

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Penal Code section 4573 include state prisons and county jails. (Pen. Code,
§ 4573, subd. (a).)
“(a) Laws making it unlawful to drive or operate a vehicle, boat, vessel, or
aircraft, while smoking, ingesting, or impaired by, cannabis or cannabis
products, including, but not limited to, subdivision (e) of Section 23152 of the
Vehicle Code, or the penalties prescribed for violating those laws.
“(b) Laws prohibiting the sale, administering, furnishing, or giving away of
cannabis, cannabis products, or cannabis accessories, or the offering to sell,
administer, furnish, or give away cannabis, cannabis products, or cannabis
accessories to a person younger than 21 years of age.
“(c) Laws prohibiting a person younger than 21 years of age from engaging in
any of the actions or conduct otherwise permitted under Section 11362.1.
“(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.
“(e) Laws providing that it would constitute negligence or professional
malpractice to undertake any task while impaired from smoking or ingesting
cannabis or cannabis products.
“(f) The rights and obligations of public and private employers to maintain a
drug and alcohol free workplace or require an employer to permit or
accommodate the use, consumption, possession, transfer, display,
transportation, sale, or growth of cannabis in the workplace, or affect the
ability of employers to have policies prohibiting the use of cannabis by
employees and prospective employees, or prevent employers from complying
with state or federal law.
“(g) The ability of a state or local government agency to prohibit or restrict
any of the actions or conduct otherwise permitted under Section 11362.1
within a building owned, leased, or occupied by the state or local government
agency.
“(h) The ability of an individual or private entity to prohibit or restrict any of
the actions or conduct otherwise permitted under Section 11362.1 on the
individual’s or entity’s privately owned property.
“(i) Laws pertaining to the Compassionate Use Act of 1996.”

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A person serving a sentence for a conviction which would not have been
an offense after passage of Proposition 64 may petition the trial court for a
recall or dismissal of his or her sentence. (Health & Saf. Code, § 11361.8,
subd. (a).) Livingston seeks relief under this provision, contending that,
because Proposition 64 legalized adult possession up to 28.5 grams of
cannabis (except in specifically identified circumstances), it is no longer a
crime under Penal Code section 4573.8 to possess cannabis in a prison. She
observes that the carve out in Health and Safety Code section 11361.45,
subdivision (d) refers only to laws criminalizing the “smoking or ingesting [of]
cannabis” in prison, and does not reference possession of cannabis.
The issue of whether Proposition 64 affected the existing prohibitions
against the possession of cannabis in prison is currently pending before our
Supreme Court in Raybon, supra, 36 Cal.App.5th 111 (review granted) which
expressly disagreed with the opinion in People v. Perry.4
In Perry, a panel of the First District Court of Appeal addressed the
question of whether an inmate’s conviction for possessing cannabis in prison
under Penal Code section 4573.6 was subject to dismissal after the passage of
4 We decline Livingston’s invitation to delay our ruling until Raybon is
decided by the Supreme Court.

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Proposition 64.5 (Perry, supra, 32 Cal.App.5th at p. 890.) The Perry court
reviewed the provisions added and amended by Proposition 64 and observed
that the phrase “ ‘pertaining to’ ” as used in Health and Safety Code
section 11362.45, subdivision (d) has “wide reach.” (Perry, at pp. 890-891.)
The court acknowledged that possession was “not necessarily an inherent
aspect of smoking or ingesting [cannabis],” but observed that possessing
cannabis was certainly “related” to smoking or ingesting it, and found that
“possession must ‘pertain’ to smoking or ingesting.” (Id. at p. 892.) The court
concluded that Proposition 64, which decriminalized possession of not more
than 28.5 grams of cannabis (Health & Saf. Code, § 11362.1, subd. (a)) but
did not affect “[l]aws pertaining to smoking or ingesting cannabis” in prison
(id., § 11362.45, subd. (d)), did not affect Penal Code section 4573.6’s
prohibition against the possession of cannabis in prison. (Perry, at pp. 891-
893.)
In Raybon, a panel of the Third District Court of Appeal addressed the
same question and came to the opposite conclusion as Perry. The Raybon
court declined to construe so widely the “pertaining to” language within the
exception to the decriminalization of cannabis laws (Health & Saf. Code,
5 Both Perry and Raybon addressed convictions under Penal Code
section 4573.6, subdivision (a), a statute similar, but not identical, to
section 4573.8, which is at issue in this appeal. Penal Code section 4573.6,
subdivision (a) provides: “Any person who knowingly has in his or her
possession in any state prison . . . any controlled substances, the possession of
which is prohibited by Division 10 (commencing with Section 11000) of the
Health and Safety Code, . . . without being authorized to so possess the same
by the rules of the Department of Corrections, . . . is guilty of a felony
punishable by imprisonment pursuant to subdivision (h) of Section 1170 for
two, three, or four years.” Even after the passage of Proposition 64, cannabis
remains a controlled substance under Division 10 of the Health and Safety
Code. (Health & Saf. Code, § 11054, subd. (d)(13).)

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§ 11362.45, subd. (d)), and concluded that, pursuant to the plain language of
the statutes, only smoking or ingesting cannabis in prison remains a felony.
(Raybon, supra, 36 Cal.App.5th at p. 113, review granted.)
In People v. Whalum (2020) 50 Cal.App.5th 1 (Whalum), this court
addressed the issue identical to that presented in this appeal, and similar to
the one presented in Perry and Raybon: whether an inmate convicted of
Penal Code section 4573.8 (unauthorized possession of drugs in prison) is
eligible for relief under Health and Safety Code section 11361.8,
subdivision (a).6 (Whalum, at p. 3.) Whalum concluded that a conviction
under Penal Code section 4573.8 remained a felony after Proposition 64, and
the petitioner was not eligible for relief. (Whalum, at p. 3.) Whalum noted it
“need not, and d[id] not, weigh in on the issues unique to the impact of
Proposition 64 on Penal Code section 4573.6.” (Id. at p. 10.) However,
Whalum expressly “agree[d] with Perry’s analysis regarding the scope of the
carve out in [Health and Safety Code] section 11362.45, subdivision (d) . . . .”
(Id. at p. 10.) Whalum observed that “even though Penal Code section 4573.8
criminalizes possession rather than use of drugs in a correctional institution,
it is nevertheless properly described as a law ‘pertaining to smoking or
ingesting cannabis’ in such a setting, as it is part of prophylactic approach to
prevent prisoners from using drugs.” (Id. at p. 12.) Whalum concluded “that
Proposition 64 does not affect laws, including Penal Code section 4573.8,
6 Whalum was filed after the parties filed their opening briefs on appeal.
The Attorney General submitted a letter of additional authority citing the
case; Livingston did not file a reply brief and has not sought to file a
supplemental brief.

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which make it a crime to possess cannabis in a correctional institution.” (Id.
at p. 10.)7
We find no reason to depart from this court’s holding in Whalum, which
is dispositive of the issue presented in this appeal. Based on Whalum, we
conclude the trial court properly determined that Proposition 64 does not
impact the crime of possessing unauthorized cannabis in prison in violation of
Penal Code section 4573.8. We therefore affirm the trial court’s order
denying Livingston’s petition for relief pursuant to Health and Safety Code
section 11361.8.
7 More recently, the Sixth District Court of Appeal addressed the
question of whether Penal Code section 4573.6 remains a felony following the
approval of Proposition 64 in People v. Herrera (2020) 52 Cal.App.5th 982.
The Herrera court adhered to the analysis in Perry and Whalum and rejected
the analysis in Raybon, concluding that “possession of a controlled substance
in jail under Penal Code section 4573.6[, subdivision] (a) is a ‘[l]aw[]
pertaining to smoking or ingesting’ cannabis in prison or jail (Health & Saf.
Code, § 11362.45[, subd.] (d)).” (Herrera, at p. 995.)

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DISPOSITION
The order is affirmed.
GUERRERO, J.
WE CONCUR:
McCONNELL, P. J.
O'ROURKE, J.

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