People v. Herrera

Filed 7/31/20 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, H046631 (Monterey County Plaintiff and Respondent, Super. Ct. No. 17CR00630)

v.

JESSE HERRERA,

Defendant and Appellant.

I. INTRODUCTION In 2018, defendant Jesse Herrera was convicted by jury of possession of marijuana in jail (Pen. Code, § 4573.6, subd. (a) (hereafter Pen. Code, § 4573.6(a)). The jury also found true allegations that he had suffered a prior strike conviction (id., § 1170.12, subd. (c)(1)), and that he had served three prior prison terms (id., § 667.5, former subd. (b)). The trial court sentenced defendant to eight years in prison, which included consecutive one-year terms for two of the three prison priors. The court also imposed various fees and fines, including a $300 restitution fine, but stayed all amounts. On appeal, defendant contends that his conviction must be reversed because the possession of cannabis in jail is no longer a crime after the passage of Proposition 64 in 2016. Second, defendant argues that the prior prison term enhancements must be stricken because the enhancements no longer apply to him based on legislation that went into effect after he was sentenced. (See Pen. Code, § 667.5, subd. (b).) Third, defendant contends that the abstract of judgment must be corrected to reflect that the trial court stayed the restitution fine.

For reasons that we will explain, we determine that Proposition 64 did not decriminalize the possession of cannabis in a penal institution, and that defendant was properly convicted under Penal Code section 4573.6 for possession of cannabis in jail. However, because the prior prison term enhancements no longer apply to defendant, we will reverse the judgment and remand with directions to strike the prior prison term enhancements and resentence defendant. II. BACKGROUND Defendant was charged by amended information with bringing a controlled substance, methamphetamine, into jail (Pen. Code, § 4573, subd. (a); count 1) and possession of a controlled substance, marijuana, in jail (id., § 4573.6(a); count 2). The amended information also alleged that defendant had suffered a prior strike conviction (id., § 1170.12, subd. (c)(1)), and that he had served four prior prison terms (id., § 667.5, former subd. (b)). The trial court granted defendant’s request to bifurcate the trial on the prior allegations. Regarding the count for possession of marijuana in jail, the evidence at trial reflected the following. On July 8, 2017, a deputy sheriff assigned to the county jail observed a group of inmates congregating around two other inmates who were sitting on a bunk in a dorm. One of the seated inmates was defendant. The deputy smelled marijuana upon approaching the group. The deputy had everyone removed from the area except defendant and the other seated inmate. The deputy kept his eyes on the pair except for a few seconds when he turned to check whether anyone was behind him. Surveillance tape of the incident showed defendant at this point putting his hands over his shoulder and turning his head around to look behind himself as if he had thrown something. Eventually defendant and the other seated inmate were removed from the area. The deputy conducted a search and found a bindle of marijuana in the area where it appeared from the surveillance video that defendant had dropped something. Subsequent testing revealed 0.59 grams of marijuana.