This article appears in the Spring 2023 Inmate Litigation Reporter, an exclusive quarterly digest analyzing new legal developments affecting the rights of people in prison -- developed specifically for people in prison.  

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Is marijuana legal in California prisons? 

Short Answer: No. The California law that allows legal possession of marijuana does not change the law that prohibits its possession in the state's prisons. 

In People v. Raybon, five defendants were each found in possession of less than 28.5 grams of cannabis in a state prison and were subsequently convicted of violating Penal Code § 4573.6.  

Most of the defendants were serving time for a prior serious or violent felony at the time of their possession offenses, resulting in second-strike sentences that added several years to their current term. 

 
In 2016, California voters passed Proposition 64, which made it lawful for persons aged 21 years and older to engage in various types of conduct involving cannabis, including the possession of up to 28.5 grams of cannabis (approximately one ounce), subject to certain exceptions. The initiative also includes a remedial provision that allowed persons currently serving a sentence for a cannabis-related crime that was no longer an offense under Proposition 64 to file a petition requesting the dismissal of their sentence. 

Acting in accordance with that new provision, defendants filed petitions in the Sacramento County Superior Court arguing that their sentences for violating Penal Code § 4573.6 should be dismissed because adult possession of less than an ounce of cannabis in prison no longer qualified as a crime. 

The district attorney opposed the petitions, asserting that Penal Code § 4573.6 fell within an exception set forth in Health and Safety Code § 11362.45(d), which stated that Proposition 64 had no effect on laws "pertaining to smoking or ingesting cannabis or cannabis products" in state correctional facilities. The trial court agreed and issued orders denying the petitions. Defendants appealed to the Third District and their cases were consolidated for purposes of argument and decision. 

 While the appeal was pending, the First District issued a decision ( People v. Perry, 32 Cal. App.5th 885 (2019)), that held that Proposition 64 did not affect existing prohibitions against the possession of marijuana in prison or otherwise affect the operation of Penal Code § 4573.6. Like the trial court in this case, the First District concluded that the phrase "laws pertaining to smoking or ingesting cannabis in prison" implicitly extended to possession under Penal Code § 4573.6 because the possession of cannabis was directly related to smoking or ingesting the substance. 

The Third District disagreed with Perry and held that the phrase "pertaining to smoking and ingesting" was not intended to include a third distinct activity, possession. ( People v. Raybon, 36 Cal. App. 5th 111, 121 (2019)).  

The court further held that the clear and unambiguous intent of the phrase "pertaining to" was "to describe the means of cannabis consumption that did not strictly involve smoking or ingesting, such as inhaling as a non-burning vapor or applying topically such that it was absorbed through the skin. Having found the conduct underlying defendants' convictions to be no longer criminal under Penal Code § 4573.6, the Court of Appeal directed the superior court "to enter orders granting the petitions for relief." 

The Attorney General filed a petition for review seeking resolution of the following question: "Did Proposition 64, which generally legalized the simple possession of less than an ounce of cannabis, also legalize such possession in state prisons and other custodial institutions?" 
[a]California Supreme Court Interprets Proposition 64. 

In People v. Raybon, 11 Cal. 5th 1056 (2021), The Supreme Court of California stated that they were being asked to interpret Proposition 64, the Control, Regulate and Tax Adult Use of Marijuana Act (Prop. 64, as approved by voters, Gen. Elec. (Nov. 8, 2016). The question they had to answer was whether Proposition 64 invalidated cannabis-related convictions under Penal Code § 4573.6, which made it a felony to possess a controlled substance in a state correctional facility.  

Although Proposition 64 generally legalizes adult possession of cannabis, it contains several exceptions. One such exception provides that the Act does not amend or affect "laws pertaining to smoking or ingesting cannabis or cannabis products on the grounds of, or within, any facility or institution under the jurisdiction of the Department of Corrections and Rehabilitation." (Health & Saf. Code, § 11362.45(d).)  

The California Attorney General contended that the exception applied to violations of Penal Code § 4573.6, meaning that possession of cannabis in a correctional facility remained a felony. The defendants disagreed, arguing that because the exception only refers to "laws pertaining to smoking or ingesting cannabis," it did not apply to laws that merely criminalized possession of cannabis. 

The court found that, as between the parties' two proposed interpretations, they leaned towards the Attorney General's construction to be more "compatible with common sense."  

While perhaps not illogical to distinguish between the possession and use of cannabis, in the court's estimation it was nonetheless difficult to understand why the electorate would want to preclude laws criminalizing cannabis possession in prison, but permit laws criminalizing cannabis consumption in prison.  

Defendants theorized that voters might have wanted to "decriminalize simple possession" while "retaining sanctions for those who actually use it" because it was the consumption of marijuana that was the problem. However, the court stated that if voters were truly concerned about cannabis use in prison, why would they want to remove the existing penal provisions that targeted that very problem?  

Moreover, defendants had not identified any reason why a person might possess cannabis within a correctional facility other than to have it consumed by someone. Simply put, the court stated that they were dubious that the voters intended to legalize the possession of cannabis in prison but permit laws that criminalize the use of cannabis in prison. 
Ultimately, the court found that the phrase "laws pertaining to smoking or ingesting cannabis" was broad enough to encompass statutes that criminalized possession. Moreover, there was no law that made it a crime to smoke, ingest or use cannabis (or any other form of drug) in prison. The Third District Court of Appeals decision was reversed. 

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