People v. PerryAnnotate this Case
In 2010, appellant pled no contest to unauthorized possession of marijuana in prison (Penal Code 4573.6). A charge of bringing drugs into a prison and an alleged prior conviction for first-degree robbery were dismissed. Appellant was sentenced to the low term of two years, consecutive to the prison term he was already serving. In 2016, the voters adopted Proposition 64, which, with 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) The new law provides that a person “serving a sentence for a conviction . . . who would not have been guilty of an offense, or who would have been guilty of a lesser offense” had that act been in effect at the time of the offense may petition for a recall or dismissal of sentence. Appellant filed such a petition, alleging that his Penal Code 4573.6 offense involved only 14 grams of marijuana and was eligible for expungement under Proposition 64. The trial court denied the petition. The court of appeal affirmed. Proposition 64 did not remove possession of marijuana in prison from the reach of Penal Code section 4573.6, the statute under which appellant was convicted.