California Court of Appeal Jul 29, 2021 No. E076607Unpublished
Filed 7/29/21 P. v. Nix CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E076607
v. (Super.Ct.No. RIF1605777)
DEONDRE DELONE NIX, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Ronald L. Taylor, Judge.
Affirmed.
Robert F. Somers, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Teresa
Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
1
In 2017 Deondre Delone Nix pled guilty to possessing marijuana in prison.
In 2020, Nix moved to vacate his conviction under Proposition 64, which legalized
possession of less than 28.5 grams of marijuana by any person over the age of 21 and
allowed those currently serving sentences for possession to modify or dismiss those
at p. 891.) Given this, we are “hard pressed to conclude that possession of cannabis is
unrelated to smoking or ingesting the substance.” (Ibid.)
Moreover, Raybon does not properly address Perry’s most compelling argument:
that there is no reason for any prisoner to possess marijuana without a medical
prescription except to consume it illegally or allow another prisoner to consume it
illegally. Circumstances where possessing and use are decoupled do exist elsewhere and
are regulated separately in those circumstances. For instance, we can imagine innocent
scenarios in which a responsible marijuana user could want to possess marijuana without
intending to use it, likely because they are legally transporting it from one location to
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another. This explains why section 11362.45 would save laws prohibiting possession in
drug-free workplaces under subdivision (f), or why section 11362.3 subdivision (a)(5),
prohibits possessing cannabis on school grounds. This is because there may be reasons
someone could possess marijuana at work or school without intending to smoke or ingest
it, and the voters of California wanted to make clear that such possession was still
prohibited.
No such similar reasons exist in prison. Prisoners do not possess marijuana merely
to transport it legally from one location to another. Smoking or ingesting are always
criminal regardless of the location within the prison. “ ‘ “[I]n interpreting a voter
initiative . . . , [t]he [initiative’s] language must . . . be construed in the context of the
statute as a whole and the [initiative’s] overall . . . scheme.” ’ ” (Whalum, supra, 50
Cal.App.5th at p. 10.) “In the context of possession in prison, it is particularly obvious
that possession must ‘pertain’ to smoking or ingesting. For what purpose would an
inmate possess cannabis that was not meant to be smoked or ingested by anyone?”
(Perry, supra, 32 Cal.App.5th at p. 892.) Indeed, Nix doesn’t offer any proposed
scenarios where possession of marijuana in a prison would be unrelated to the
consumption or ingestion of that marijuana. Because there is no reason to possess
marijuana in a prison except to consume it illegally, section 11362.45, subdivision (d),
didn’t need to specify that possession was still prohibited in prisons. In that context,
prohibiting smoking or ingesting and those activities “pertaining to” the same necessarily
prohibits possession.
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Similarly, the absence of such “pertaining to” language in other subdivisions of
section 11362.45 demonstrates that the drafters, and the voters, were capable of saving
only those laws strictly related to consumption and chose not to. For instance,
subdivision (a) saves “[l]aws making it unlawful to drive or operate a vehicle . . . while
smoking, ingesting, or impaired by, cannabis.” (§11362.45, subd. (a).) The drafters of
Proposition 64 could have phrased subdivision (d) the same way, saving only those laws
prohibiting smoking or ingesting cannabis in a prison. They did not. Instead, they saved
any law “pertaining to” smoking or ingesting marijuana. That the statute does not use this
phrasing in one case where it would make sense to do so, but does in another, implies the
drafters, and the voters who approved Proposition 64, intended to save more of the
relevant laws regulating marijuana in prison than those regulating marijuana elsewhere.
The absence of “pertaining to” language in subdivision (a) of section 11362.45
also directly contradicts one of Raybon’s conclusions. Namely, Raybon found that the
“ ‘pertaining to’ ” language is not surplusage because it “describe[s] the vast array of
means of consumption,” as “consumption can be achieved in ways not strictly involving
smoking or ingesting.” (Raybon, supra, 36 Cal.App.5th at p. 122.) If so, the lack of any
“pertaining to” language in subdivision (a) would compel us to conclude it only applies to
smoking or ingesting marijuana. In other words, reading the “pertaining to” language in
subdivision (d) to have the narrow meaning ascribed to it in Raybon also narrows
subdivision (a). This would mean subdivision (a) only saves those laws regulating
smoking or ingesting marijuana while operating a vehicle and not those laws regulating,
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for instance, vaping, dabbing, or absorbing marijuana through the skin while operating a
vehicle. Thus, under Raybon’s interpretation, the “pertaining to” language is either
surplusage, or subdivision (a) prohibits consuming marijuana while operating a vehicle
only if you are smoking or ingesting it. We think both conclusions are absurd.
Instead, we agree with our colleagues in Perry, Whalum, Herrera, and Taylor that
section 11362.45, subdivision (d), continues to criminalize marijuana possession in
prison, because such possession necessarily pertains to smoking or ingesting it.
III
DISPOSITION
We affirm.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH J. We concur:
MILLER Acting P. J.
FIELDS J.
9
AI Brief
AI-generated · verify before citing
Holding. Proposition 64 did not legalize the possession of marijuana within state prisons, as the statute's savings clause for laws "pertaining to" smoking or ingesting cannabis encompasses the possession of marijuana in a carceral setting.
Issues
Whether Proposition 64 legalized the possession of less than 28.5 grams of marijuana by a person over 21 while incarcerated.
Whether the savings clause in Health and Safety Code section 11362.45, subdivision (d), includes the prohibition of marijuana possession in prison.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“Proposition 64 did not affect existing prohibitions against the possession of marijuana in prison or otherwise affect the operation of Penal Code section 4573.6.”