People v. Cardenas CA5

Filed 6/22/21 P. v. Cardenas 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F079697 Plaintiff and Respondent, (Super. Ct. No. DF014073A) v.

DAVID CARDENAS, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Kern County. David Wolf, Judge. Rex Adam Williams, 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, Julie A. Hokans and Jeffrey A. White, 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 David Cardenas pleaded no contest2 to felony possession of marijuana in a prison in violation of Penal Code section 4573.6, subdivision (a).3 At the sentencing hearing, appellant petitioned to dismiss this charge or reduce it to a misdemeanor, contending 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.)4 The trial court agreed with Perry and denied appellant’s motion. Appellant received a stipulated prison sentence of six years.

1 All future statutory references are to the Health and Safety Code unless otherwise noted. 2 In court, appellant orally pleaded “guilty” to this charge. The court’s minute order, however, shows that a plea of “nolo contendere” was entered. The written change of plea form indicates appellant pleaded no contest. 3 The amount of the possessed marijuana was not established below. At the change of plea hearing, the parties stipulated a factual basis existed for the plea. According to the criminal complaint, appellant possessed marijuana while incarcerated. 4 In granting review of Raybon, the Supreme Court stated it would decide the following issue: “Did Proposition 64 [the ‘Adult Use of Marijuana Act’] decriminalize the possession of up to 28.5 grams of marijuana by adults 21 years of age or older who are in state prison as well as those not in prison?”