Opinion
2d Crim. B303998
11-15-2021
THE PEOPLE, Plaintiff and Respondent, v. KIWANTE GEROME ANSLEY, Defendant and Appellant.
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, Senior Assistant Attorney General, Blythe J. Leszkay, Peggy Z. Huang, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Superior Court County No. 18F-00238 of San Luis Obispo Jacquelyn H. Duffy, Judge
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, Senior Assistant Attorney General, Blythe J. Leszkay, Peggy Z. Huang, Deputy Attorneys General, for Plaintiff and Respondent.
YEGAN, ACTING P. J.
Kiwante Gerome Ansley appeals an order denying his petition to recall and dismiss his 2018 two-year consecutive prison sentence for violating Penal Code section 4573.8. We affirm based on the California Supreme Court's recently filed opinion, People v. Raybon (2021) 11 Cal.5th 1056 (Raybon).
Discussion
The information alleged that appellant had knowingly possessed "Marijuana [cannabis], while in the California Men[']s Colony." The petition was filed pursuant to Health and Safety Code section 11361.8, enacted in 2016 by Proposition 64, the initiative known as the Control, Regulate and Tax Adult Use of Marijuana Act (Marijuana Act). Section 11361.8, subdivision (a) provides, "A person currently serving a sentence for a conviction . . . who would not have been guilty of an offense . . . under the . . . Marijuana Act had that act been in effect at the time of the offense may petition for a recall or dismissal of sentence before the trial court that entered the judgment of conviction . . . ."
Unless otherwise stated, all statutory references are to the Health and Safety Code.
Appellant contends that his sentence "should have been recalled and dismissed as his possession of less than one ounce of Cannabis has been decriminalized under section 11362.1," also enacted by Proposition 64. (Capitalization omitted.) Section 11362.1 "makes it lawful for persons aged 21 years and older to engage in various types of conduct involving cannabis, including the possession of up to 28.5 grams of cannabis (approximately one ounce), subject to certain exceptions." (Raybon, supra, 11 Cal.5th at p. 1060.)
In Raybon our Supreme Court held: Proposition 64 "is intended 'to maintain the status quo with respect to the legal status of cannabis in prison.' [Citation.] Thus, possession of cannabis in prison remains a violation of Penal Code section 4573.6," which "makes it a felony to possess a controlled substance in a state correctional facility." (Raybon, supra, 11 Cal.5th at pp. 1059-1060.) Possession of cannabis in prison also remains a felony violation of Penal Code section 4573.8, the statute under which appellant was convicted. (Raybon, supra, at p. 1085 ["In cases where prosecutors do elect to pursue criminal punishment [for possession of cannabis in prison], they may consider a charge under Penal Code section 4573.8, which carries a lower sentence than Penal Code section 4573.6"].) "Two different statutes make it illegal to possess cannabis in a correctional institution, with the difference being that one of the statutes applies to all drugs and alcohol (Pen. Code, § 4573.8) and the other applies only to controlled substances, the possession of which is prohibited under [D]ivision 10 of the Health and Safety Code (Pen. Code, § 4573.6). As cannabis is a drug and a controlled substance regulated in [D]ivision 10 of the Health and Safety Code (§§ 11007, 11054, subd. (d)(13), 11357), both statutes have been used to convict prisoners who possess[] cannabis." (People v. Whalum (2020) 50 Cal.App.5th 1, 5, review granted Aug. 12, 2020, S262935.)
Disposition
The order denying appellant's petition is affirmed.
We concur: PERREN, J., TANGEMAN, J.