People v. Watkins CA6

Filed 4/20/21 P. v. Watkins CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H047453 (Monterey County Plaintiff and Respondent, Super. Ct. No. SS011298A)

v.

JAMES WATKINS,

Defendant and Appellant.

Proposition 64, also known as the Control, Regulate and Tax Adult Use of Marijuana Act (the Act or Proposition 64), made various changes to California’s regulation of marijuana.1 The Act generally permits adults (with certain exceptions) to engage in conduct that was previously criminal—including the use, possession, purchase, or cultivation of nonmedical marijuana. The Act also created a statutory procedure, codified at Health and Safety Code section 11361.8,2 which allows individuals currently serving a sentence for an offense subsequently decriminalized by Proposition 64 to

1 Proposition 64 was enacted in 2016. In 2017, the Legislature changed references to marijuana in the Health and Safety Code to cannabis. (See People v. Herrera (2020) 52 Cal.App.5th 982, 987, fn. 2, review granted Oct. 14, 2020, S264339 (Herrera).) In this opinion, we use the terms marijuana and cannabis interchangeably. 2 Unspecified statutory references are to the Health and Safety Code.

request resentencing for or dismissal of the conviction. This appeal turns on whether possession of 28.5 grams or less of marijuana in prison is such an offense. Appellant James Watkins appeals from a trial court order denying his petition under section 11361.8 to dismiss his conviction for possession of a controlled substance in prison (Pen. Code, § 4573.6). For the reasons explained below, we affirm the trial court’s order. I. FACTS AND PROCEDURAL BACKGROUND The parties agree that on March 11, 2001, Watkins—then an inmate of Salinas Valley State Prison—was found with a 5-inch sharpened piece of metal and three marijuana cigarettes. On June 27, 2001, the Monterey County District Attorney filed an information charging Watkins with possession of a deadly weapon by a prisoner (Pen. Code, § 4502, subd. (a); count 1) and possession of a controlled substance in prison (Pen. Code, § 4573.6; count 2). The information also alleged that Watkins had four “strike” priors (Pen. Code, § 1170.12, subd. (c)(2)) and had served a prior prison term (Pen. Code, § 667.5, subd. (b)). On September 13, 2001, a jury found Watkins guilty of counts 1 and 2. On October 31, 2001, the trial court found true the allegations that Watkins had incurred four prior strike convictions and had served a prior prison term. The trial court denied Watkins’s motion to strike the prior strike convictions and sentenced him to 25 years to life with the possibility of parole on counts 1 and 2, to be served concurrently, and one year on the Penal Code section 667.5 enhancement, to be served consecutively to counts 1 and 2. On October 1, 2019, Watkins filed a petition for resentencing or dismissal under section 11361.8, arguing that his conviction for count 2 qualified for dismissal under that provision as interpreted in People v. Raybon (2019) 36 Cal.App.5th 111, 119, review granted Aug. 21, 2019, S256978 (Raybon). Watkins further maintained that granting his petition for dismissal of the conviction would not pose an unreasonable risk of danger to public safety. The district attorney opposed Watkins’s petition, contending that 2