People v. Archuleta CA4/1

Filed 8/25/20 P. v. Archuleta CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D077364

Plaintiff and Respondent,

v. (Super. Ct. No. JCF30393)

STEPHEN ARCHULETA,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Imperial County, William D. Lehman, Judge. Affirmed. Alex Coolman, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Natasha Cortina and Melissa Mandel, Deputy Attorneys General, for Plaintiff and Respondent. In 2013, Stephen Archuleta pleaded no contest to possession of an illegal substance (3.3 grams of marijuana) in prison (Pen. Code, § 4573.6) and

admitted two strike priors. The court struck the prior allegations and sentenced Archuleta to a three-year term. In 2019, Archuleta filed a petition to vacate his conviction under Proposition 64. The court denied the petition finding Proposition 64 did not affect Penal Code section 4573.6. Specifically, the trial court relied on People v. Perry (2019) 32 Cal.App.5th 885 (Perry), in determining possession of not more the 28.5 grams of marijuana in prison remained a felony. Since the trial court’s ruling, a different Court of Appeal in People v. Raybon (2019) 36 Cal.App.5th 111, review granted August 21, 2019, S256978 (Raybon)), found that use of marijuana in prison remains a felony under Penal Code section 4573.8, but that a very narrow reading of Proposition 64 renders possession of a small amount of marijuana while in prison no longer a crime. Apparently, under that reasoning, one can bring small amounts of marijuana into the prison and possess it, so long as they don’t use it. Recently in People v. Whalum (2020) 50 Cal.App.5th 1 (Whalum), review granted August 12, 2020, S262935, this court discussed the validity of Penal Code section 4573.8 prohibiting smoking or ingesting controlled substances in prison. We found the section remained valid after Proposition 64. We did not specifically rule on the validity of Penal Code section 4573.6 in cases where less than an ounce of marijuana is possessed in prison. Archuleta appeals, contending we should follow the Raybon decision and declare that possessions of “small amounts of cannabis in prison can no longer be a violation of Penal Code section 4573.6.” As we will discuss, we agree with the court’s analysis in Perry and find Proposition 64 did not affect the section used in this case. Accordingly, we will affirm the denial of Archuleta’s petition.