Opinion
2d Crim. B303134
11-15-2021
THE PEOPLE, Plaintiff and Respondent, v. EDDIE JOE HEWITT, 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, Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
San Luis Obispo County Super. Ct. No. F230079002 Craig B. Van Rooyen, 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, Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.
YEGAN, J.
Eddie Joe Hewitt appeals an order denying his petition to recall and dismiss his 1996 sentences for conspiracy to bring a controlled substance into prison (Pen. Code, §§ 182, subd. (a)(1), 4573) and possession of marijuana (cannabis) in prison. (Id., § 4573.6.) We affirm based on the California Supreme Court's recently filed opinion, People v. Raybon (2021) 11Cal.5th 1056 (Raybon).
Discussion
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 1 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 argues: "[T]he amount of marijuana involved in the underlying offenses was approximately seven grams." "[His] possession of a small amount of marijuana did not constitute an offense under Penal Code section 4573 [bringing a controlled substance into prison] or section 4573.6 [possession of a controlled substance in prison] because such possession has been expressly decriminalized [by Proposition 64]." "Since the target offense of the charged conspiracy has been decriminalized, there was no underlying foundation for the conspiracy charge. Therefore, the sentence [for the conspiracy conviction] should have been recalled."
The decriminalization was allegedly accomplished by Proposition 64's section 11362.1, which "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.)
But in Raybon our Supreme Court held that there has been no decriminalization of cannabis possession in a prison setting: "Section 11362.45(d) . . . expressly directs that Proposition 64's newly added legalization provision . . . (§ 11362.1, subd. (a)(1)), does not 'amend' or 'affect' any laws pertaining to cannabis use in 2 prison, which we have found to include possessory offenses. [Citation.] Voters would have reasonably understood this language to mean that any preexisting laws regulating cannabis possession in prison would remain in place." (Raybon, supra, 11 Cal.5th at p. 1076.) Thus, Proposition 64 "is intended 'to maintain the status quo with respect to the legal status of cannabis in prison.' [Citation.] . . . [P]ossession of cannabis in prison remains a violation of Penal Code section 4573.6." (Raybon, at p. 1060.) It follows that bringing cannabis into a prison, which is a form of possession, remains a felony violation of Penal Code section 4573.
Disposition
The order denying appellant's petition is affirmed.
We concur: GILBERT, P. J., PERREN, J. 3