Filed 6/5/20
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`CERTIFIED FOR PUBLICATION
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`COURT OF APPEAL, FOURTH APPELLATE DISTRICT
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`DIVISION ONE
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`STATE OF CALIFORNIA
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` D076384
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` (Super. Ct. No. JCF33890)
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`THE PEOPLE,
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`ARTEMIS WHALUM,
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`Plaintiff and Respondent,
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`v.
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`Defendant and Appellant.
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`APPEAL from a judgment of the Superior Court of Imperial County, Poli Flores,
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`Judge. Remanded with instructions to correct abstract of judgment, and in all other
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`respects affirmed.
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`Kenneth J. Vandevelde, under appointment by the Court of Appeal, for Defendant
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`and Appellant.
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`Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
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`General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and Tami
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`Falkenstein Hennick, Deputy Attorneys General, for Plaintiff and Respondent.
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`Artemis Whalum, who is serving a prison sentence for possessing cannabis in a
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`correctional institution in violation of Penal Code section 4573.8, appeals from the trial
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`court's denial of his petition to dismiss and recall his sentence. Whalum's petition was
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`based on the fact that, after his conviction, the voters adopted Proposition 64, making it
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`legal for persons at least 21 years of age to possess up to 28.5 grams of cannabis except
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`in specifically identified circumstances, and giving persons currently serving a sentence
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`for a cannabis-related crime that is no longer an offense after Proposition 64, the ability
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`to petition for relief in the form of recall or dismissal of their sentence. (Prop. 64, § 4.4,
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`approved Nov. 8, 2016; Health & Saf. Code, § 11361.8, subd. (a).)1
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`We conclude that the crime of possessing unauthorized cannabis in prison in
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`violation of Penal Code section 4573.8 was not affected by Proposition 64. Accordingly,
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`the trial court properly determined that Whalum was not entitled to relief. We therefore
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`affirm the order denying Whalum's petition.
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`In reviewing the record we noted a clerical error in the abstract of judgment,
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`which erroneously states that Whalum's sentence for his conviction under Penal Code
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`section 4573.8 is to run concurrently with, rather than consecutively to, the sentence he
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`was already serving. We therefore remand with instructions that the trial court correct
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`1
`Unless otherwise indicated, all further statutory references are to the Health and
`Safety Code.
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`In 2017, the Legislature replaced all references to "marijuana" in the Health and
`Safety Code with the term "cannabis." (Stats. 2017, ch. 27, §§ 113-160.) Thus, although
`Proposition 64 used the term "marijuana," we refer to the amended terminology
`"cannabis" throughout this opinion for all purposes.
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`the error and forward the amended abstract of judgment to the Department of Corrections
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`and Rehabilitation.
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`I.
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`FACTUAL AND PROCEDURAL BACKGROUND
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`On October 3, 2014, an indictment accused Whalum of possessing an illegal
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`substance in prison in violation of Penal Code section 4573.6, along with alleging prior
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`convictions, including one prior strike. The indictment was based on Whalum's
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`possession of 0.4 grams of cannabis in his prison cell in Centinela State Prison on
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`September 18, 2013.
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`On August 11, 2015, Whalum pled no contest to unauthorized possession of drugs
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`in prison in violation of Penal Code section 4573.8 and admitted a prior strike. The trial
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`court imposed a sentence of two years, eight months, to run consecutive to the time he
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`was currently serving in prison.2
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`On July 19, 2019, the public defender, on behalf of Whalum, filed a petition to
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`dismiss and recall Whalum's sentence based on the electorate's adoption of
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`Proposition 64 in 2016, which enacted laws legalizing the possession of up to 28.5 grams
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`of adult cannabis except in specifically identified circumstances. Whalum's petition
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`relied on section 11361.8, subdivision (a), which states that "[a] person currently serving
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`2
`The abstract of judgment states that the sentence would be served concurrently to
`the time already being served in prison. At the oral pronouncement of sentence, the trial
`court imposed a consecutive sentence, and a consecutive sentence was also agreed to in
`the plea agreement.
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`3
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`a sentence for a conviction, whether by trial or by open or negotiated plea, who would not
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`have been guilty of an offense, or who would have been guilty of a lesser offense under
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`[the law enacted by Proposition 64] had that act been in effect at the time of the offense
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`may petition for a recall or dismissal of sentence before the trial court that entered the
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`judgment of conviction in his or her case to request resentencing or dismissal . . . ."
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`At a hearing held August 20, 2019, the trial court denied the petition, concluding
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`that it was persuaded by the First District's opinion in People v. Perry (2019) 32
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`Cal.App.5th 885 (Perry). Perry held that in enacting Proposition 64 the voters did not
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`intend to affect statutes making it a felony to possess cannabis in a correctional
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`institution. (Id. at p. 890 ["Proposition 64 did not affect existing prohibitions against the
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`possession of [cannabis] in prison."].)
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`The trial court granted Whalum's request for a certificate of probable cause, and
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`Whalum filed an appeal from the order denying his petition.
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`II.
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`DISCUSSION
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`The issue of whether Proposition 64 affected the existing prohibitions against the
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`possession of cannabis in a correctional institution is currently pending before our
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`Supreme Court. Specifically based on a disagreement between the First District in Perry,
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`supra, 32 Cal.App.5th 885 and the Third District in People v. Raybon (2019) 36
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`Cal.App.5th 111 (Raybon), our Supreme Court granted review in Raybon to resolve the
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`issue. (People v. Raybon, review granted Aug. 21, 2019, S256978.) As we will explain,
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`4
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`we agree with Perry that Proposition 64 did not affect laws specifically directed at
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`criminalizing the possession of cannabis as contraband in a correctional institution.
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`A.
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`Relevant Statutory Provisions
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`We begin with the relevant statutory provisions.
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`1.
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`Statutes Criminalizing Cannabis Possession in Correctional Institutions
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`Two different statutes make it illegal to possess cannabis in a correctional
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`institution, with the difference being that one of the statutes applies to all drugs and
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`alcohol (Pen. Code, § 4573.8) and the other applies only to controlled substances, the
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`possession of which is prohibited under Division 10 of the Health and Safety Code (Pen.
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`Code, § 4573.6). As cannabis is a drug and a controlled substance regulated in Division
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`10 of the Health and Safety Code (§§ 11007, 11054, subd. (d)(13), 11357), both statutes
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`have been used to convict prisoners who possesses cannabis.
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`Specifically, Penal Code section 4573.6, subdivision (a), which applies only to
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`controlled substances, provides in pertinent part: "Any person who knowingly has in his
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`or her possession in any state prison . . . any controlled substances, the possession of
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`which is prohibited by Division 10 (commencing with Section 11000) of the Health and
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`Safety Code, . . . without being authorized to so possess the same by the rules of the
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`Department of Corrections, rules of the prison . . . or by the specific authorization of the
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`warden, superintendent, jailer, or other person in charge of the prison . . . is guilty of a
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`felony punishable by imprisonment pursuant to subdivision (h) of Section 1170 for two,
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`three, or four years." The defendants in Raybon and Perry were convicted under this
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`statute (Perry, supra, 32 Cal.App.5th at p. 888; Raybon, supra, 36 Cal.App.5th at p. 113),
`5
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`and in our case, the indictment originally charged Whalum with a violation of this
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`provision.
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`Penal Code section 4573.8, which applies to all drugs and alcohol, provides in
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`relevant part: "Any person who knowingly has in his or her possession in any state
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`prison . . . drugs in any manner, shape, form, dispenser, or container, any device,
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`contrivance, instrument, or paraphernalia intended to be used for unlawfully injecting or
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`consuming drugs, or alcoholic beverages, without being authorized to possess the same
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`by rules of the Department of Corrections, rules of the prison or jail, institution, camp,
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`farm, or place, or by the specific authorization of the warden, superintendent, jailer, or
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`other person in charge of the prison, . . . is guilty of a felony." (Pen. Code, § 4573.8.)3
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`Whalum pled no contest to a violation of this statute.
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`We are unaware of any statute that explicitly states that it is a crime to use
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`cannabis in prison. Instead, as case law has observed, although "[o]bviously, the ultimate
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`evil with which the Legislature was concerned was drug use by prisoners," the
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`Legislature " 'chose to take a prophylactic approach to the problem by attacking the very
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`presence of drugs and drug paraphernalia in prisons and jails.' " (People v. Harris (2006)
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`145 Cal.App.4th 1456, 1461 (Harris), quoting People v. Gutierrez (1997) 52 Cal.App.4th
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`380, 386.) Accordingly, the Legislature enacted specific laws criminalizing the act of
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`possessing drugs and drug paraphernalia in prison (Pen. Code, §§ 4573.6, 4573.8), and
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`the acts of selling, furnishing or smuggling such items in prison (id., §§ 4573, 4573.5,
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`The term "drug" is defined broadly in Health & Safety Code section 11014.
`6
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`3
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`4573.9). As our Supreme Court has observed, the laws making it a crime to possess,
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`smuggle, sell and furnish drugs in prison "flow from the assumption that drugs, weapons,
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`and other contraband promote disruptive and violent acts in custody, including gang
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`involvement in the drug trade. Hence, these provisions are viewed as ' "prophylactic" '
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`measures that attack the ' "very presence" ' of such items in the penal system." (People v.
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`Low (2010) 49 Cal.4th 372, 388.)
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`2.
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`Proposition 64
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`In the November 8, 2016 election, the voters adopted Proposition 64, the Control,
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`Regulate and Tax Adult Use of Marijuana Act. (Prop. 64, § 1, approved by voters, Gen.
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`Elec. (Nov. 8, 2016).) Among other things, the act included a provision legalizing certain
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`activity involving 28.5 grams or less of cannabis by persons 21 years of age or older.
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`(§ 11362.1, added by Prop. 64, § 4.4.) As relevant here that provision states,
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`"(a) Subject to Sections 11362.2, 11362.3, 11362.4, and 11362.45, but
`notwithstanding any other provision of law, it shall be lawful under state
`and local law, and shall not be a violation of state or local law, for persons
`21 years of age or older to:
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`"(1) Possess, process, transport, purchase, obtain, or give away to persons
`21 years of age or older without any compensation whatsoever, not more
`than 28.5 grams of cannabis not in the form of concentrated cannabis;
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`[¶] . . . [¶]
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`"(4) Smoke or ingest cannabis or cannabis products[.]" (§ 11362.1.)
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`The phrase "notwithstanding any other provision of law," which appears in
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`section 11362.1, subdivision (a), is commonly used to signal that "the Legislature intends
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`for a statute to prevail over all contrary law." (In re Greg F. (2012) 55 Cal.4th 393, 406.)
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`7
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`Accordingly, the preemptive effect of section 11362.1, subdivision (a) is clear: its
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`provisions prevail over all contrary laws prohibiting the activities that it legalizes, except
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`as "[s]ubject to Sections 11362.2, 11362.3, 11362.4, and 11362.45."
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`The exceptions set forth in sections 11362.2, 11362.3, 11362.4, and 11362.45
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`specify the extent to which certain activities related to cannabis remain subject to legal
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`regulation.4 As particularly relevant here, section 11362.45 lists certain laws that
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`"[s]ection 11362.1 does not amend, repeal, affect, restrict, or preempt." The laws that are
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`carved out from Proposition 64's legalization of adult cannabis include "[l]aws making it
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`unlawful to drive or operate a vehicle, boat, vessel, or aircraft, while smoking, ingesting,
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`or impaired by, cannabis or cannabis products" (§ 11362.45, subd. (a)); "laws prohibiting
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`the sale, administering, furnishing, or giving away" of cannabis to a person under 21
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`years of age (§ 11362.45, subd. (b)); "[l]aws prohibiting a person younger than 21 years
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`of age from engaging in any of the actions or conduct otherwise permitted under
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`Section 11362.1" (§ 11362.45, subd. (c)); and (e) "[l]aws providing that it would
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`constitute negligence or professional malpractice to undertake any task while impaired
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`from smoking or ingesting cannabis or cannabis products." (§ 11362.45, subd. (e).) The
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`4
`Section 11362.2 contains certain restrictions on the personal cultivation of
`cannabis. Section 11362.3 contains restrictions on the places where cannabis may be
`smoked and ingested, restrictions on possessing an open container of cannabis while
`driving, and regulation of a specific method of manufacturing concentrated cannabis.
`Section 11362.4 provides the penalties that apply for violation of sections 11362.2 and
`11362.3.
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`8
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`carve-out specifically applicable in this case appears in subdivision (d) of
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`section 11362.45:
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`"Section 11362.1 does not amend, repeal, affect, restrict, or preempt:
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`[¶] . . . [¶]
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`"(d) 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 or the Division of
`Juvenile Justice, or on the grounds of, or within, any other facility or
`institution referenced in Section 4573 of the Penal Code."5 (§ 11362.45.)
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`This carve-out language is the only reference in the text of Proposition 64 as to
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`how adult cannabis legalization was intended to affect criminal laws concerning the
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`regulation of cannabis in correctional institutions. Further, except for the inclusion of the
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`statutory language of section 11362.45, subdivision (d) in the Official Voter Information
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`Guide for the November 8, 2016 election (Voter Guide), the electorate was provided with
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`no additional information about the existing laws prohibiting the possession of cannabis
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`in correctional institutions or how Proposition 64 would impact those laws.6 (Perry,
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`supra, 32 Cal.App.5th at p. 895 [summarizing the contents of the Voter's Guide by
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`5
`Penal Code section 4573 contains a broad description of numerous types of
`correctional institutions, namely, "any state prison, prison road camp, prison forestry
`camp, or other prison camp or prison farm or any other place where prisoners of the state
`are located under the custody of prison officials, officers or employees, or . . . any county,
`city and county, or city jail, road camp, farm or other place where prisoners or inmates
`are located under custody of any sheriff, chief of police, peace officer, probation officer
`or employees." (Pen. Code, § 4573.)
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`The Voter Guide is available at <https://vig.cdn.sos.ca.gov/2016/general/en/pdf/
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`complete-vig.pdf> [as of June 5, 2020].
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` 6
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`9
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`stating that the only mention of the "potential impact of the measure on cannabis in
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`correctional institutions" was "in the text of the measure itself."].)
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`Proposition 64 also enacted the provision that Whalum relied upon in filing his
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`petition. Specifically, "A person currently serving a sentence for a conviction, whether
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`by trial or by open or negotiated plea, who would not have been guilty of an offense, or
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`who would have been guilty of a lesser offense under the Control, Regulate and Tax
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`Adult Use of Marijuana Act had that act been in effect at the time of the offense may
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`petition for a recall or dismissal of sentence before the trial court that entered the
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`judgment of conviction in his or her case to request resentencing or dismissal . . . ."
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`(§ 11361.8, subd. (a).)
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`Whalum contends that he should be granted relief under this provision. According
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`to Whalum, because Proposition 64 legalized adult possession of up to 28.5 grams of
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`cannabis except in specifically identified circumstances, it is no longer a crime under
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`Penal Code section 4573.8 to possess a drug in a correctional institution if that drug is
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`cannabis. Further, although Whalum acknowledges that section 11362.45,
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`subdivision (d) states that Proposition 64 did not affect "[l]aws pertaining to smoking or
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`ingesting cannabis or cannabis products" in a correctional institution, he contends that
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`this carve-out does not save laws criminalizing possession of cannabis in such a setting
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`because it refers only to smoking or ingesting, not possession.
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`Whether Whalum's conviction rendered him eligible for relief under
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`section 11361.8, subdivision (a), presents a question of statutory interpretation, which we
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`review de novo. (People v. Medina (2018) 24 Cal.App.5th 61, 66.)
`10
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`B.
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`The Case Law Applying Proposition 64 to Laws Criminalizing the Possession of
`Cannabis in Correctional Institutions
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`Perry and Raybon both considered whether Proposition 64 affected the crime of
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`possessing cannabis in a correctional institution in violation of Penal Code section 4573.6
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`and reached different conclusions: Perry concluded that the crime of possessing cannabis
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`in violation of Penal Code section 4573.6 survived Proposition 64. (Perry, supra, 32
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`Cal.App.5th at p. 887.) Raybon concluded it did not. (Raybon, supra, 36 Cal.App.5th at
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`p. 126.)
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`Some of the analysis in Perry and Raybon is uniquely applicable to the crime of
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`possessing a controlled substance in violation of Penal Code section 4573.6, which was
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`the crime for which the Perry and Raybon defendants were convicted. (Perry, supra, 32
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`Cal.App.5th at p. 888; Raybon, supra, 36 Cal.App.5th at p. 113.) Specifically, because
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`that provision applies only to the "any controlled substances, the possession of which is
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`prohibited by Division 10 (commencing with Section 11000) of the Health and Safety
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`Code" (Pen. Code, § 4573.6, subd. (a)), Perry and Raybon both focused a significant part
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`of their discussion on the extent to which, after Proposition 64, the possession of cannabis
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`is prohibited under Division 10 of the Health and Safety Code as a controlled substance.
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`(Perry, at pp. 893-894, 896 & fn. 10; Raybon, at pp. 116-121, 125-126.)7 That
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`7
`Specifically, Proposition 64 amended the crime of possession of cannabis in
`Division 10 of the Health and Safety Code insofar as it amended section 11357 to
`eliminate the penalty for the simple possession of not more than 28.5 grams of cannabis,
`or not more than eight grams of concentrated cannabis, by a person 21 years of age or
`older. (§ 11357, as amended by Prop. 64, § 8.1.) The possession of cannabis remained
`an infraction for adults under the age of 21 and for juveniles under the age of 18.
`11
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`discussion is not pertinent to the issue presented in this case, however, as Whalum was
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`not convicted of possessing a controlled substance in a correctional institution in
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`violation of Penal Code section 4573.6. Instead, Whalum was convicted of violating
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`Penal Code section 4573.8. That provision makes it a crime to possess any drug in a
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`correctional institution unless otherwise authorized by prison authorities, regardless of
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`whether the drug is a controlled substance that a person is prohibited from possessing
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`under Division 10 of the Health and Safety Code. We therefore need not, and do not,
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`weigh in on the issues unique to the impact of Proposition 64 on Penal Code
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`section 4573.6.
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`However, both Perry and Raybon also discussed an issue that directly applies in
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`this case. Specifically, both addressed the carve-out in section 11362.45, subdivision (d),
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`which states that Proposition 64 did not affect "[l]aws pertaining to smoking or ingesting
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`cannabis or cannabis products" in a correctional institution. Raybon concluded that the
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`carve-out did not apply to a law that criminalizes the possession of cannabis in a
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`correctional institution, because the plain language of the statute refers solely to
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`"smoking and ingesting." (Raybon, supra, 36 Cal.App.5th at pp. 121-122.) Perry,
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`however, interpreted the carve-out as sufficiently broad to cover possession of cannabis
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`in a correctional institution because it uses the term "pertaining to." (Perry, supra, 32
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`(§ 11357, subds. (a)(1), (2), as amended by Prop. 64, § 8.1.) It also remained a crime to
`possess cannabis "upon the grounds of, or within, any school providing instruction in
`kindergarten or any of grades 1 to 12, inclusive, during hours the school is open for
`classes or school-related programs." (§ 11357, subds. (c), (d); see also § 11362.3,
`subd. (a)(5).)
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`12
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`Cal.App.5th at p. 891.) Accordingly, Perry concluded that Proposition 64's carve-out in
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`section 11362.45, subdivision (d) was written "in extremely broad terms," which
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`encompassed a law that criminalizes the possession of cannabis in a correctional
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`institution. (Perry, at pp. 892-893.)
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`
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`As we will explain, we agree with Perry's analysis regarding the scope of the
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`carve-out in section 11362.45, subdivision (d), and we accordingly conclude that
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`Proposition 64 does not affect laws, including Penal Code section 4573.8, which make it
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`a crime to possess cannabis in a correctional institution.
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`C.
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`
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`
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`The Carve-Out in Section 11362.45, Subdivision (d) Encompasses Laws Making it
`a Crime to Possess Cannabis in a Correctional Institution
`
`1.
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`Rules of Statutory Interpretation
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`" '[I]n interpreting a voter initiative . . . , we apply the same principles that govern
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`statutory construction. . . . Thus, "we turn first to the language of the [initiative], giving
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`the words their ordinary meaning." . . . The [initiative's] language must also be
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`construed in the context of the statute as a whole and the [initiative's] overall . . . scheme.'
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`. . . 'Absent ambiguity, we presume that the voters intend the meaning apparent on the
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`face of an initiative measure . . . and the court may not add to the statute or rewrite it to
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`conform to an assumed intent that is not apparent in its language.' . . . Where there is
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`ambiguity in the language of the measure, '[b]allot summaries and arguments may be
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`considered when determining the voters' intent and understanding of a ballot measure.' "
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`(Professional Engineers in California Government v. Kempton (2007) 40 Cal.4th 1016,
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`1037, citations omitted.) " 'We cannot presume that . . . the voters intended the initiative
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`
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`13
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`to effect a change in law that was not expressed or strongly implied in either the text of
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`the initiative or the analyses and arguments in the official ballot pamphlet.' " (People v.
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`Valencia (2017) 3 Cal.5th 347, 364 (Valencia).)
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`
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`
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`2.
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`Interpretation of the Relevant Statutory Language
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`We turn first to the language of the applicable provision, which carves out "[l]aws
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`pertaining to smoking or ingesting cannabis" in correctional institutions from
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`Proposition 64's legalization of adult cannabis. (§ 11362.45, subd. (d), italics added.)
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`
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`Focusing on the dictionary definition of the word "pertain," Perry concluded that
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`the phrase "pertaining to" has "wide reach." (Perry, supra, 32 Cal.App.5th at p. 891.)
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`We agree. Black's Law Dictionary defines "pertain" as "[t]o relate directly to; to concern
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`or have to do with." (Black's Law Dictionary (11th ed. 2019).) The most applicable
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`definition in Webster's Third New International Dictionary is "to have some connection
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`with or relation to something: have reference: relate. (Webster's 3d New Internat. Dict.
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`(2002) p. 1688, col. 1), and Merriam Webster's online dictionary similarly contains the
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`definition "to have reference" (<https://merriam-webster.com/dictionary/pertain> [as of
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`June 5, 2020]). Dictionary.com defines pertain as "to have reference or relation; relate"
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`(<https://dictionary.com/browse/pertains?=1> [as of June 5, 2020].) The most applicable
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`definition of pertain in the Oxford English Dictionary is "[t]o relate to; to refer to."
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`(<https://www.oed.com/view/Entry/141585?redirectedFrom=pertain#eid> [as of June 5,
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`2020].) Yet another dictionary defines "pertain to something" as "to relate to or have a
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`connection with something." (Cambridge Dict. <https://<dictionary.cambridge
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`14
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`.org/us/dictionary/english/pertain to something> [as of June 5, 2020].) All of these
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`definitions demonstrate that "pertaining to" has a definition similar to the phrase "relating
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`to." The phrase is plainly meant to refer to a relation between two things rather than an
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`exact correspondence.
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`
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`The role of the phrase "pertaining to" in section 11362.45, subdivision (d) as
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`signaling a relation rather than an exact correspondence is highlighted by the different
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`statutory language in other subdivisions of section 11362.45. Several of those
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`subdivisions identify carve-outs for laws "prohibiting" or "making unlawful" certain
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`conduct. Specifically, those subdivisions refers to "[l]aws making it unlawful to drive or
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`operate a vehicle, boat, vessel, or aircraft, while smoking, ingesting, or impaired by,
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`cannabis or cannabis products" (§ 11362.45, subd. (a), italics added), "[l]aws prohibiting
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`the sale, administering, furnishing, or giving away" of cannabis to a person under 21
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`years of age (§ 11362.45, subd. (b), italics added), and "[l]aws prohibiting a person
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`younger than 21 years of age from engaging in any of the actions or conduct otherwise
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`permitted under Section 11362.1" (§ 11362.45, subd. (c), italics added). In
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`section 11362.45, subdivision (d) the drafters of Proposition 64 easily could have, but did
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`not, use the phrase "laws prohibiting smoking or ingesting cannabis" in a correctional
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`institution or "laws making it unlawful to smoke or ingest cannabis" in a correctional
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`institution, which would have tracked the language in the three preceding carve-outs.
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`Instead, section 11362.45, subdivision (d) uses the term "pertaining to," signaling an
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`intent to broadly encompass laws that have only a relation to smoking or ingesting
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`cannabis in a correctional institution, rather than strictly limiting the carve-out to laws
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`that "prohibit" or "make unlawful" the act of smoking or ingesting cannabis.
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`Because the phrase "pertaining to" signals a relation to something, we agree with
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`Perry that laws prohibiting the possession of cannabis fall within the scope of the
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`statutory carve-out for laws "pertaining to smoking or ingesting cannabis" in a
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`correctional institution. (§ 11362.45, subd. (d).) As Perry observed, "[w]e would be
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`hard pressed to conclude that possession of cannabis is unrelated to smoking or ingesting
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`the substance." (Perry, supra, 32 Cal.App.5th at p. 891.) Indeed, a person has to possess
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`cannabis to smoke or ingest it. Further, as Perry explained, "In the context of possession
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`in prison, it is particularly obvious that possession must 'pertain' to smoking or ingesting.
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`For what purpose would an inmate possess cannabis that was not meant to be smoked or
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`ingested by anyone?" (Perry, at p. 892.) Moreover, as we have pointed out, long before
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`Proposition 64 was adopted, case law recognized that although "the ultimate evil with
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`which the Legislature was concerned was drug use by prisoners," the Legislature " 'chose
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`to take a prophylactic approach to the problem by attacking the very presence of drugs
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`and drug paraphernalia in prisons and jails.' " (Harris, supra, 145 Cal.App.4th at
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`p. 1461.) Thus, even though Penal Code section 4573.8 criminalizes possession rather
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`than use of drugs in a correctional institution, it is nevertheless properly described as a
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`law "pertaining to smoking or ingesting cannabis" in such a setting, as it is part of
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`prophylactic approach to prevent prisoners from using drugs.8
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`Further, it is reasonable to understand the phrase "laws pertaining to smoking or
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`ingesting cannabis" in a correctional institution to encompass laws criminalizing the
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`possession of cannabis in such a setting because " '[t]he words of the statute must be
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`construed in context, . . . and statutes or statutory sections relating to the same subject
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`must be harmonized, both internally and with each other, to the extent possible."
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`(Valencia, supra, 3 Cal.5th at p. 358.) The electorate is generally presumed to be aware
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`of existing laws when adopting an initiative. (People v. Orozco (2020) 9 Cal.5th 111,
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`118.) Thus, we presume the electorate understood that no statute existed at the time it
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`8
`Raybon had a different view of the significance of the phrase "pertaining to" in
`section 11362.45, subdivision (d). As Raybon explained, "it stretches the imagination to
`conclude that the drafters listed two distinct activities, 'smoking or ingesting,' intending to
`include a third distinct activity, possession, by using the vague reference 'pertaining to.' "
`(Raybon, supra, 36 Cal.App.5th at p. 121.) As to why the drafters choose to use the
`phrase "pertaining to" rather than simply "prohibiting," Raybon explained, "The purpose
`of the language is to describe the vast array of means of consumption . . . . We agree
`with defendants that consumption can be achieved in ways not strictly involving smoking
`or ingesting, such as inhaled as a non-burning vapor or applied topically such that it is
`absorbed through the skin. By including the language 'pertaining to smoking and
`ingesting,' the drafters allowed for these various forms of consumption in prison to
`remain unlawful." (Raybon, supra, 36 Cal.App.5th at p. 122.) We do not find Raybon's
`explanation to be persuasive. Because "pertaining to" means "relating to," someone
`would not normally describe the topical application or vaporizing of cannabis as
`"pertaining to" the smoking or ingesting of cannabis, as they are different ways of using
`cannabis and therefore do not relate to one another. In contrast, it does not strain the
`meaning of "pertaining to" for someone to say that a law criminalizing the possession of
`cannabis is a law "pertaining to" the smoking or ingestion of cannabis, as one has a
`causal relationship to the other. Specifically, it is necessary to possess cannabis in order
`to smoke or ingest it, and cannabis is usually possessed in prison because someone wants
`to use it.
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`adopted Proposition 64 that specifically made it a crime to smoke or ingest cannabis in a
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`correctional institution. Instead, the Legislature took the prophylactic approach of
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`enacting statutes criminalizing possession, smuggling and drug trafficking in correctional
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`institutions. (Harris, supra, 145 Cal.App.4th at p. 1461.) If the carve-out for "laws
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`pertaining to smoking or ingesting cannabis" in correctional institutions is to have any
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`meaning at all in light of the preexisting statutory landscape, it must necessarily be
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`intended as a carve-out of laws criminalizing the possession of cannabis in such a setting.
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`When section 11362.45, subdivision (d) is construed as carving out only laws that
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`criminalize smoking or ingesting cannabis in custodial institutions, it is an empty
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`provision that does not serve to carve out any preexisting law from being "amend[ed],
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`repeal[ed], affect[ed], restrict[ed], or preempt[ed]." (§ 11362.45.)
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`To support his contention that the phrase "laws pertaining to smoking or ingesting
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`cannabis" in correctional institutions does not encompass laws making it a crime to
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`possess cannabis in a correctional institution, Whalum relies on three principles of
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`statutory interpretation. As we will explain, none of those principles persuade us to reach
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`a different interpretation of section 11362.45, subdivision (d).
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`First, the principle of "[e]xpressio unius est exclusio alterius means that 'the
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`expression of certain things in a statute necessarily involves exclusion of other things not
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`expressed.' " (Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d
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`1379, 1391, fn. 13.) Whalum contends that because section 11362.45, subdivision (d)
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`refers to "smoking or ingesting" but omits "possession," the statute must be read as
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`excluding possession. Perry considered and rejected the same argument based on the
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`principle of expressio unius est exclusio alterius. "In our view, that interpretation