People v. Shepherd CA1/4

Filed 2/18/21 P. v. Shepherd CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, Plaintiff and Respondent, A160232 v. (Solano County CAMERON SHEPHERD, Super. Ct. No. FCR335753) Defendant and Appellant.

I. On February 14, 2018, the Solano County District Attorney filed a felony complaint charging Cameron Shepherd, an inmate housed in a state prison facility, with possessing illegal substances in a jail facility (Pen. Code, § 4573.6), to wit, heroin, methamphetamine, and marijuana. After pleading not guilty, Shepherd withdrew his initial plea and pleaded no contest to possessing marijuana in a jail facility (Pen. Code, § 4573.6) in exchange for a maximum of four years in state prison and a recommendation of the low term of two years in state prison. On the same day, the court sentenced appellant to the low term of two years in state prison for possessing an illegal substance in a jail facility (Pen. Code, § 4573.6). The court imposed various fines and fees but stayed them.

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On November 20, 2019, Shepherd filed a petition pursuant to the procedure established by Proposition 64 to have his conviction dismissed. (Health & Saf. Code, § 11361.8, subd. (a).) The People filed an opposition. The court entertained argument at a hearing and denied relief. This appeal followed. Shepherd contends that his conviction for illegally possessing marijuana in prison in violation of Penal Code section 4573.6 should have been dismissed because Proposition 64 legalized possession of marijuana under certain conditions for the general public and did not specifically except provision possession by prisoners. (Health & Saf. Code, § 11362.1.) The savings clause in Health and Safety Code section 11362.45, subdivision (d), however, did enact a carve-out that addresses prisoners. Specifically, it states that Health and Safety Code section “11362.1 does not amend, repeal, affect, restrict, or preempt: [¶] . . . [¶] (d) Laws pertaining to smoking or ingesting cannabis” in prison. (Health & Saf. Code, § 11362.45, subd. (d).) The question Shepherd raises is whether “[l]aws pertaining to smoking or ingesting cannabis” include possession of cannabis. He relies on the Third District’s opinion in People v. Raybon (2019) 36 Cal.App.5th 111, review granted Aug. 21, 2019, S256978 (Raybon), which holds that it does not. The trial court chose to follow the opinion from our First District, Division Two colleagues in People v. Perry (2019) 32 Cal.App.5th 885 (Perry), which concluded that it does. We, too, shall follow Perry. II. In November 2016, the voters passed Proposition 64, also known as the “Control, Regulate and Tax Adult Use of Marijuana Act,” which reduced or eliminated certain offenses involving marijuana. (Prop. 64, approved by voters, Gen. Elec. (Nov. 8, 2016).) Proposition 64 amended division 10 of the