People v. Garcia CA6

Filed 5/25/21 P. v. Garcia CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, H047466 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C1894274)

v.

ALEJANDRO GARCIA,

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 request resentencing for or dismissal of the conviction.

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.

Appellant Alejandro Garcia appeals from a trial court order denying his petition under section 11361.8 to dismiss his conviction for bringing a controlled substance into a prison or jail (Pen. Code, § 4573). For the reasons explained below, we conclude Garcia is not entitled to relief under section 11361.8 because he was convicted after Proposition 64 took effect. We therefore affirm the trial court’s order. I. FACTS AND PROCEDURAL BACKGROUND Garcia is serving a four-year prison sentence for possessing approximately one gram of marijuana in jail. On June 27, 2018, the Santa Clara County District Attorney filed a complaint charging Garcia with bringing a controlled substance into a prison or jail (Pen. Code, § 4573; count 1) and misdemeanor resisting, delaying, or obstructing an officer (Pen. Code, § 148, subd. (a)(1); count 2). The complaint also alleged that Garcia had one “strike” prior (Pen. Code, §§ 667, subds. (b)–(i) & 1170.12, subd. (c)(2)). On August 30, 2018, Garcia entered into a written plea agreement in which he agreed to plead guilty or no contest to count 1, in exchange for promises that he would receive four years in state prison and count 2 would be dismissed. That same day, he entered a plea of no contest to count 1. On September 28, 2018, consistent with the plea agreement, the trial court sentenced Garcia on count 1 to four years in state prison for the violation of Penal Code section 4573 and dismissed count 2. On July 9, 2019, Garcia filed a petition for resentencing or dismissal under section 11361.8, arguing that his conviction qualified for dismissal under that provision as interpreted in People v. Raybon (2019) 36 Cal.App.5th 111, 119 (Raybon), review granted Aug. 21, 2019, S256978. The district attorney opposed Garcia’s petition, contending that he did not qualify for relief under section 11361.8 On August 29, 2019, the trial court denied Garcia’s petition, relying on the authority of People v. Perry (2019) 32 Cal.App.5th 885 (Perry), review den. June 12, 2019, S255148, which concluded Proposition 64 did not decriminalize possession of marijuana in jail or prison. (Id. at p. 891.) Garcia timely appealed the trial court’s order. 2