Opinion
B305306
03-02-2021
THE PEOPLE, Plaintiff and Respondent, v. MARIO CUMMINGS, 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, Assistant Attorney General, Blythe J. Leszkay and Theresa A. Patterson, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. MA011541) APPEAL from an order of the Superior Court of Los Angeles County, Daviann L. Mitchell, Judge. Affirmed. 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, Assistant Attorney General, Blythe J. Leszkay and Theresa A. Patterson, Deputy Attorneys General, for Plaintiff and Respondent.
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It is a felony to bring into prison a "controlled substance, the possession of which is prohibited by" the Health and Safety Code. (Pen. Code, § 4573, subd. (a).) The Health and Safety Code prohibits possession of marijuana in certain circumstances. (Health & Saf. Code, § 11362.1, subd. (a).)
Undesignated statutory references will be to the Health and Safety Code.
Mario Cummings appeals from the superior court's denial of his petition to dismiss a conviction for bringing marijuana into a prison, contending the recent decriminalization of marijuana possession under certain circumstances decriminalized his offense. We conclude that the crime of bringing unauthorized marijuana into a prison was unaffected by the change in the law, and therefore affirm the order denying Cummings's petition.
BACKGROUND
In 1996, Cummings, an inmate in state prison, was convicted of one felony count of bringing 9.5 grams of marijuana into the prison, and was sentenced to an additional term. (Pen. Code, § 4573.) He was over 21 years of age at the time.
The record does not reflect Cummings's original crime or sentence. For purposes of this appeal we will assume he has been in state prison continuously from 1996 to now.
In 2016, the voters adopted Proposition 64, the Control, Regulate and Tax Adult Use of Marijuana Act, which legalized possession of up to 28.5 grams (one ounce) of adult cannabis except in identified circumstances. (Voter Information Guide, Gen. Elec. (Nov. 8, 2016) text of Prop. 64, § 1, p. 178 (Voter Information Guide); § 11362.1, et seq.)
Cummings filed a petition in the superior court seeking dismissal of his conviction pursuant to Proposition 64. The trial court denied the petition.
DISCUSSION
Cummings argues that his conviction for bringing marijuana into prison should be dismissed because Proposition 64 generally decriminalized possession of less than an ounce of cannabis, including by an inmate. We disagree.
We review a trial court's statutory interpretation de novo. (People v. Taylor (2021) 60 Cal.App.5th ___, ___ [274 Cal.Rptr.3d 204, 210] (Taylor).)
Penal Code section 4573 makes it a felony to bring into a prison "any controlled substance, the possession of which is prohibited by Division 10 (commencing with Section 11000) of the Health and Safety Code" (Division 10). (Pen. Code, § 4573, subd. (a).)
Division 10 lists cannabis as a controlled substance. (§ 11054, subd. (d)(13).) (For purposes of this discussion we will use the terms marijuana and cannabis interchangeably.)
Prior to the passage of Proposition 64, Division 10 prohibited nonmedical use of marijuana. (See Voter Information Guide, text of Prop. 64, § 2 subd. B, p. 178.)
Proposition 64 added section 11362.1, which provides in pertinent part: "Subject to Sections . . . 11362.3 [and] 11362.45, . . . it shall be lawful . . . for persons 21 years of age or older to" possess up to 28.5 grams of cannabis. (Health & Saf. Code, § 11362.1, subd. (a).)
Although section 11362.1 liberalized marijuana possession, it continues to be unlawful to, for example, possess cannabis on the grounds of a school, day care center, or youth center while children are present; to possess an open container of cannabis while driving or riding in the passenger seat of a motor vehicle, boat, or aircraft; to possess more than 28.5 grams of marijuana; or to possess any amount while under the age of 21. (§§ 11362.1, subd. (a), 11362.3, 11362.45.) Accordingly, marijuana remains a controlled substance, the possession of which Division 10 prohibits under certain circumstances.
Because Cummings was convicted for bringing into a prison a "controlled substance, the possession of which is prohibited by Division 10," his offense satisfies the elements of Penal Code section 4573, and the trial court thus properly denied his petition to dismiss his conviction.
Cummings argues that because after Proposition 64 Division 10 now permits possession of marijuana in many circumstances, including his—less than one ounce possessed by a person over 21 years of age—it is not "prohibited by Division 10" for purposes of Penal Code section 4573. We disagree.
"[T]he phrase 'any controlled substance, the possession of which is prohibited by Division 10 . . . ,' " "refers to a general category of controlled substances, rather than a particular instance of possession, and encompasses those controlled substances, the possession of which is in any way prohibited by Division 10." (Taylor, supra, 60 Cal.App.5th at p. ___ [274 Cal.Rptr.3d at pp. 212, 214].)
In other words, Penal Code section 4573 imports only the list of controlled substances from Division 10, not its prohibitions. This makes sense first as a matter of grammar. The relative pronoun "which," standing in for "controlled substance," is unqualified, for example by any weight specification. The subject complement "prohibited" therefore characterizes the essential controlled substance, which does not change when the weight changes. Penal Code section 4573 thus prohibits importation of the controlled substance itself into prison, not any particular amount of it. (See Taylor, supra, 60 Cal.App.5th at p. ___ [the amount need only be usable].)
This being the plain reading of Penal Code section 4573, it also comports with the evident legislative intent, both directly and by implication. If the Legislature had intended to apply Division 10's prohibitions to Penal Code section 4573 it easily could have stated that drug importation to a prison is unlawful only insofar as Division 10 prohibits possession. To do so would have been as simple as inserting "to the extent" between "substance" and "the," thus prohibiting bringing into a prison "any controlled substance, to the extent the possession of which is prohibited by Division 10." That the Legislature did not do so implies it intended to borrow only Division 10's classifications, not its prohibitions.
Nothing in Proposition 64 reflects a contrary intent; in fact, the contrary seems true: Proposition 64 added section 11362.45, which states that the legalization of cannabis "does not amend, repeal, affect, restrict, or preempt" any law "pertaining to smoking or ingesting cannabis" within a prison. (§ 11362.45, subd. (d).) The electorate therefore apparently (and commonsensically) exempted prisons from marijuana legalization.
The courts are split on whether statutes like Penal Code section 4573 are laws "pertaining to smoking or ingesting cannabis" in prison, and the matter will be decided by our Supreme Court. (Compare People v. Perry (2019) 32 Cal.App.5th 885, review den. June 12, 2019, S255148, 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, and Taylor, supra, 60 Cal.App.5th ___ , with People v. Raybon (2019) 36 Cal.App.5th 111, review granted Aug. 21, 2019, S256978.) But for our purposes it suffices to say that nothing in Proposition 64 militates against our conclusion that Penal Code section 4573 uses only Division 10's classifications, not it prohibitions.
Cummings was therefore properly convicted of violating Penal Code section 4573 for importing cannabis into a prison, and the trial court rightly denied his petition to dismiss that conviction.
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED
CHANEY, J. We concur:
BENDIX, Acting P. J.
Judge of the San Luis Obispo County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------