People v. Millsap CA2/8

Filed 8/27/20 P. v. Millsap CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE, B302075

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. MA063684) v.

KEVIN L. MILLSAP,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County. Christopher G. Estes, Judge. Affirmed. Richard L. Fitzer, 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, Michael R. Johnsen and Blythe J. Leszkay, Deputy Attorneys General, for Plaintiff and Respondent. _____________________________

Kevin Millsap appeals from the denial of his petition to dismiss his six-year sentence for the offense of possession of cannabis while in state prison. Millsap argues he is entitled to relief because Proposition 64, enacted by the voters in 2016, legalizes the possession of 28.5 grams of cannabis or less by persons 21 years of age or older, even in prisons and other correctional facilities. There exists a split of authority on whether Proposition 64 extends its reach to possession of cannabis in correctional facilities. The First, Fourth, and Sixth Districts hold Proposition 64 did not affect existing prohibitions against the possession of cannabis in prison. (People v. Perry (2019) 32 Cal.App.5th 885, 890 (Perry), review denied; People v. Whalum (2020) 50 Cal.App.5th 1, 6 (Whalum); People v. Herrera (July 31, 2020, H046631) __Cal.App.5th__ [2020 WL 4383480] (Herrera).) The Third District reached the opposite conclusion. (People v. Raybon (2019) 36 Cal.App.5th 111 (Raybon).) The California Supreme Court has granted review in Raybon (Aug. 21, 2019, S256978) and Whalum (Aug. 12, 2020, S262935) to resolve the issue. Pending a decision by the Supreme Court, we will follow Perry, Whalum, and Herrera. We therefore affirm the denial of Millsap’s petition. DISCUSSION In 2015, a jury found Millsap guilty of possession of a controlled substance (2.1 grams of cannabis) in state prison in violation of Penal Code section 4573.6, subdivision (a).1 The trial