People v. Ward CA5

Filed 6/22/21 P. v. Ward CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE, F080283 Plaintiff and Respondent, (Super. Ct. No. CRF59747) v.

BRIAN JOSEPH WARD, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Tuolumne County. Donald I. Segerstrom, Jr., Judge. Eric E. Reynolds, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Ivan P. Marrs, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Levy, Acting P.J., Poochigian, J. and Snauffer, J.

INTRODUCTION In 2016, the voters adopted Proposition 64, which (with certain limitations) legalized possession of “not more than 28.5 grams of cannabis” by persons 21 years of age or older. (Health & Saf. Code, § 11362.1, subd. (a)(1);1 People v. Perry (2019) 32 Cal.App.5th 885, 888 (Perry).) In 2019, appellant Brian Joseph Ward pleaded guilty to felony possession of marijuana in a prison in violation of Penal Code section 4573.6, subdivision (a). Appellant subsequently filed a motion to dismiss, arguing the offense had been decriminalized because he had possessed less than 28.5 grams of marijuana. The trial court recognized that California Courts of Appeal have split on the issue. (Compare Perry, supra, 32 Cal.App.5th 885 [Proposition 64 did not decriminalize possession of cannabis in prison] with People v. Raybon (2019) 36 Cal.App.5th 111 (Raybon) [Proposition 64 decriminalized possession of less than 28.5 grams of marijuana in prison], review granted Aug. 21, 2019, S256978.)2 The trial court agreed with Perry and denied appellant’s motion. Appellant received a stipulated prison sentence of two years. In the present appeal, appellant contends we should reverse his conviction. We disagree and affirm. DISCUSSION Appellant relies on Raybon, supra, 36 Cal.App.5th at page 113, review granted, to establish Proposition 64 modified Penal Code section 4573.6 so that possession of less than 28.5 grams of marijuana in prison is no longer criminal. The People contend we should instead accept the reasoning of Perry, supra, 32 Cal.App.5th at page 887, for the