P. v. Holmes CA4/1

Filed 11/19/20 P. v Holmes CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, D076560

Plaintiff and Respondent,

v. (Super. Ct. No. JCF27104

COREY HOLMES,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Imperial County, L. Brooks Anderholt, Judge. Affirmed. Alex Kreit, 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, Eric A. Swenson, Allison V. Acosta and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent. In 2011, Corey Holmes pleaded no contest to possession of an illegal substance (marijuana) in prison (Pen. Code, § 4573.6). The court sentenced Holmes to a two-year prison term.

In August 2019, Holmes filed a petition to vacate his conviction under Proposition 64. The court appointed counsel and held a hearing. 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 than 28.5 grams of marijuana in prison remained a felony. The trial court declined to adopt the reasoning in People v. Raybon (2019) 36 Cal.App.5th 111, review granted August 21, 2019, S256978 (Raybon), to the effect 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 do not use it. Holmes appeals, contending we should follow the Raybon decision and declare that possession of “small amounts” of marijuana in prison is no longer a crime. 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 Holmes’s petition. DISCUSSION A. The Contentions Relying on Raybon, Holmes contends his conviction under Penal Code section 4573.6 must be vacated because it has been impliedly repealed (at least in part) by Proposition 64. He recognizes there is no specific language in the proposition indicating it impacts statutes that prohibit either the possession or use of marijuana by prison or jail inmates. Holmes’s challenge has two principal anchors. First, he contends the proposition makes possession of not more than 28.5 grams of marijuana