PEOPLE v. BOYD

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Court of Appeal, Third District, California.

The PEOPLE of the State of California, Plaintiff and Appellant, v. Clint Cleo BOYD, Defendant and Respondent.

Cr. 9245.

Decided: April 21, 1978

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Michael Franchetti, and G. Michael Gates, Deputy Attys. Gen., for plaintiff and appellant. Kenneth M. Wells, Public Defender, Roy V. Williams, Supervising Asst. Public Defender, and Roy K. Simmons, Asst. Public Defender, for defendant and respondent.

The People appeal from an order setting aside an information (Pen.Code, s 1238, subd. (a)(1)), charging defendant with being an ex-felon in possession of a firearm.

Defendant was originally charged with assault, kidnap, and with being an ex-felon in possession of a firearm. At the preliminary hearing, the prosecution, for reasons not here evident, failed to present any evidence relating to the kidnap and assault charges; evidence of a prior felony conviction was presented which revealed that defendant had been convicted in 1966 of possession of marijuana, at that time a felony (Health & Saf.Code, s 11530). Pursuant to Penal Code section 995, defendant sought dismissal of the weapons charge asserting that by reason of the 1976 amendment to Health and Safety Code section 11361.5 and the enactment of section 11361.7,1 his only prior felony conviction of possession of marijuana (Health & Saf.Code, s 11530) had been obliterated and would not support the possession of weapons charge. The trial court granted the motion and dismissed the information. The People have appealed.

The sole question presented is whether the 1976 amendment to Health and Safety Code section 11361.5 and the enactment of 11361.7 were legislatively directed only to removal of civil disabilities resulting from prior marijuana possession convictions or to the removal of both civil and penal disabilities. In order to resolve this question, we must consider the sections in conjunction with each other. Section 11361.5 as amended in 1976 provides in pertinent part:

“(a) Records of any court of this state, any public or private agency that provides services upon referral under Section 1000.2 of the Penal Code, or of any state agency or local public agency pertaining to the arrest or conviction of any person for a violation of subdivision (b) or (c) of Section 11357 or subdivision (c) of Section 11360, shall not be kept beyond two years from the date of such a conviction, or from the date of the arrest if there was no conviction. It shall be the duty of each court and each such agency having custody of such records to provide for the timely destruction thereof in accordance with the provisions of subdivision (c). The requirements of this subdivision shall not apply to records of any conviction occurring prior to January 1, 1976, or records of any arrest not followed by a conviction occurring prior to such date.

“(b) This subdivision shall be applicable only to records of convictions and arrests not followed by conviction occurring prior to January 1, 1976, for any of the following offenses:

“(1) Any violation of Section 11357 or a statutory predecessor thereof.

“(2) Unlawful possession of a device, contrivance, instrument or paraphernalia used for unlawfully smoking marijuana, in violation of Section 11364, as it existed prior to January 1, 1976, or a statutory predecessor thereof.

“(3) Unlawful visitation or presence in a room or place in which marijuana is being unlawfully smoked or used, in violation of Section 11365, as it existed prior to January 1, 1976, or a statutory predecessor thereof.

“(4) Unlawfully using or being under the influence of marijuana, in violation of Section 11550, as it existed prior to January 1, 1976, or a statutory predecessor thereof.

“Any person subject to such an arrest or conviction may apply to the Department of Justice for destruction of records pertaining thereto if two years or more have elapsed since the date of the conviction, or since the date of the arrest if not followed by a conviction. . . .

“. . . co

“(d) Notwithstanding subdivision (a) or (b), written transcriptions of oral testimony in court proceedings and published judicial appellate reports shall not be subject to the provisions of this section. . . .”

Health and Safety Code section 11361.7, added in 1976 in conjunction with the amendments to section 11361.5, provides in pertinent part:

“(a) Any record subject to destruction or permanent obliteration pursuant to Section 11361.5, or more than two years of age, or a record of a conviction for an offense specified in subdivision (a) or (b) of Section 11361.5 which became final more than two years previously, shall not be considered to be accurate, relevant, timely, or complete for any purposes by any agency or person. The provisions of this subdivision shall be applicable for purposes of the Privacy Act of 1974 (5 U.S.C. Section 552a) to the fullest extent permissible by law, whenever any information or record subject to destruction or permanent obliteration under Section 11361.5 was obtained by any state agency, local public agency, or any public or private agency that provides services upon referral under Section 1000.2 of the Penal Code, and is thereafter shared with or disseminated to any agency of the federal government.

“(b) No public agency shall alter, amend, assess, condition, deny, limit, postpone, qualify, revoke, surcharge, or suspend any certificate, franchise, incident, interest, license, opportunity, permit, privilege, right, or title of any person because of an arrest or conviction for an offense specified in subdivision (a) or (b) of Section 11361.5, or because of the facts or events leading to such an arrest or conviction, on or after the date the records of such arrest or conviction are required to be destroyed by subdivision (a) of Section 11361.5, or two years from the date of such conviction or arrest without conviction with respect to arrests and convictions occurring prior to January 1, 1976. As used in this subdivision, ‘public agency’ includes, but is not limited to, any state, county, city and county, city, public or constitutional corporation or entity, district, local or regional political subdivision, or any department, division, bureau, office, board, commission or other agency thereof.

“. . . ot

“(d) The provisions of this section shall be applicable without regard to whether destruction or obliteration of records has actually been implemented pursuant to Section 11361.5.”

The amendment to section 11361.5 provides for the destruction of court records as well as records of certain public and private agencies pertaining to arrests or convictions for various narcotic offenses, including possession of marijuana; excepted from the destruction provisions were written transcriptions of oral testimony in court proceedings and published judicial reports.

Section 11361.7 provides the utility to the destruction of records authorized by 11361.5. It makes its provisions applicable for purposes of the Federal Privacy Act (5 U.S.C., s 552a) and prohibits any public agency from acting on any license, franchise, interest, opportunity, or privilege of any person because of an arrest or conviction for an offense specified in section 11361.5 for which the records are subject to destruction upon request.

Defendant argues that 11361.7 inherently applies to penal disabilities arising out of such prior marijuana convictions as well.

We conclude that the Legislature intended to the contrary.

The report to the Senate, submitted by the Senate Select Committee on Control of Marijuana, indicated the underlying purpose of section 11361.7 to be to reform disproportionate collateral civil sanctions applicable to marijuana offenses under prior laws. Prime examples cited by the committee included dismissal from employment and loss of professional credentials or refusal of licensing or admission to various professions. (See Sen. Select Com. on Control of Marijuana, Marijuana: Beyond Misunderstanding (1974) pp. 40-41.) By enacting section 11361.7, the Legislature rectified such civil abuse by providing that public agencies may not enforce any collateral sanctions on the basis of possession of marijuana convictions or arrests encompassed by the statute. (See Governing Board v. Mann (1977) 18 Cal.3d 819, 828, 135 Cal.Rptr. 526, 558 P.2d 1.)

It is equally discernible from the legislative history leading to the 1976 amendments to sections 11361.5 and 11361.7 that the Legislature did not intend to remove penal disabilities associated with prior marijuana convictions.

The Legislature initially considered the provisions of sections 11361.5 and 11361.7 in a single bill (Assem.Bill No. 3050 (1975-76 Reg.Sess.)). That bill introduced in February 1976 was described in its preamble as “An act to amend Section 11361.5 of, and to add Section 11361.7 to, the Health and Safety Code, . . .” and contained the following language, “11361.5 . . . (b)(1) Notwithstanding any other provision of law, no conviction for a violation of Section 11357 or a statutory predecessor thereof, or of Section 11364, 11365, or 11550 as they related to marijuana prior to January 1, 1976, or a statutory predecessor thereof, shall be charged as a prior offense or used to enhance a sentence or punishment in a subsequent criminal proceeding.”

After referral to the committee on criminal justice and prior to its adoption, the bill underwent several amendments resulting in the deletion of the provisions removing penal disabilities relating to prior marijuana convictions.

The removal of references to penal disabilities associated with prior marijuana convictions is overwhelmingly indicative that the underlying legislative intent behind the amendment to 11361.5, and the enactment of section 11361.7, was directed solely to the removal of collateral civil sanctions previously associated with marijuana arrests and convictions.

Our conclusion is buttressed by the provisions of the final report of the Senate Select Committee on Control of Marijuana. That report in part states, “The employability of an individual is limited and curtailed in some instances. There is likelihood of loss of employment. Arrest or conviction may prevent a person from entering such professions as medicine, law, and teaching, or if not, it subjects them to more scrutiny. Difficulty arises in obtaining a responsible position in business or industry. Sometimes special hearings are necessary to hold a government job.

“People may find their education interrupted and their future shadowed or altered by having a police record. An arrest or conviction complicates lives and plans at many turns. For example, in many states a person with a record must meet special conditions to obtain or renew a driver's license. Also, many states require a felon to register with the police or sheriff's department when they come or move into a town.

“Expulsion from professional groups, membership in organizations, societies or fraternal orders may occur, or entrance into such groups denied.

“Lastly, the effect of an arrest is often underestimated. A great deal of personal tragedy and social waste occurs as a result of an arrest. . . .” (Sen. Select Com. on Control of Marijuana, Final Report, Marijuana: Beyond Misunderstanding, supra, pp. 40-41.) The committee report fails in any way to discuss or deal with criminal penalties or disabilities associated with a marijuana conviction.

Consideration of the express language of the 1976 amendment to section 11361.5 and the enactment of 11361.7, the legislative history (Madrid v. Justice Court (1975) 52 Cal.App.3d 819, 825, 125 Cal.Rptr. 348), and the final report of the Senate Select Committee (Governing Board v. Mann, supra, 18 Cal.3d at pp. 826-827, 135 Cal.Rptr. 526, 558 P.2d 1) compels the conclusion that the Legislature intended only the removal of collateral civil sanctions related to prior marijuana convictions; it did not intend to nor did it accomplish removal of criminal sanctions which allow the changing of prior marijuana convictions as prior offenses in subsequent criminal proceedings.

The order setting aside the information is reversed.

I dissent. The Legislature has applied Health and Safety Code section 11361.7 to criminal as well as civil sanctions. As applied to this case, that section prevents records of conviction for possession of marijuana from being used as a basis for charging a violation of Penal Code section 12021 (ex-felon with a firearm).

Our duty is to interpret the plain meaning of the statute. (Wisdom v. Eagle Star Ins. Co. (1963) 211 Cal.App.2d 602, 27 Cal.Rptr. 599; Madrid v. Justice Court (1975) 52 Cal.App.3d 819, 824, 125 Cal.Rptr. 348.) We cannot consider what the Legislature did not enact as tantamount to an express legislative intent. Absent an express intent to the contrary, we are duty bound to give effect to the plain meeting of the terms used in a statute.

Let us examine section 11361.7, subdivision (a). It reads that no record of a marijuana conviction shall be utilized “for any purposes by any agency or person. . . .” It further provides that this subdivision shall be applicable “to the fullest extent permissible by law, . . .” That is, it must be liberally construed.

Subdivision (b) is even more specific. It proscribes a “public agency” from denying any “incident, interest, license, opportunity, permit, privilege, right, or title” to any person because of a marijuana related “arrest or conviction” (offense specified in subdivision (a) or (b) of section 11361.5). The public agencies are specifically prohibited from assessing collateral sanctions for a prior arrest in connection for possession of marijuana.

Finally, subsection (c) illustrates the statute's breadth. Any person convicted of an offense of possession, two years prior, is authorized to answer a question concerning his prior criminal record in the negative. He may say that he was not arrested or convicted for such offense, though, in fact, the contrary is true. The Legislature authorized obliteration of records of conviction, for any purpose by any agency, to the fullest extent possible.

The terms seem straightforward and clear. I find no language in section 11361.7 which confines its applicability to civil sanctions. Every indication supports the notion that section 11361.7 applies to both civil and criminal collateral sanctions. Nor does the majority claim to find such language. The majority incorrectly goes beyond the plain meaning and seeks guidance from legislative history and decisional law. Upon review of that “history” and that decision law, I am persuaded that it is consistent with the statute's plain meaning.

The majority's reliance on the legislative report and on a purported “legislative history” is misplaced. Unlike the majority, I find ample concern with criminal (as well as civil) sanctions in the Senate Select Committee on Control of Marijuana. Thus, it cites the “consequences of marijuana criminalization (as) . . . the clogging of the judicial calendars and the overloading of the criminal justice system.” (Sen. Select Com. Report on Control of Marijuana: Beyond Misunderstanding, p. 41 (1974).) In addition, the report analyzes the effect on those arrested of the very fact of arrest (without considering conviction). Finally, it comments upon (and laments) the harshness and severity of the penalties after conviction.

The legislative history cited by the majority refers to an early draft of a bill which ultimately was not enacted into law. The vagaries of the legislative process are such that I would hesitate to place great weight in what the Legislature did not do to explain what it did do.1 It may be that the early draft was not accepted “because the bill in substance already includes those provisions” (Sutherland, Statutory Construction (4th ed. 1972), s 48.18, p. 506).

We do not interpret section 11361.7 in a decisional law vacuum. Governing Board v. Mann (1977) 18 Cal.3d 819, 135 Cal.Rptr. 526, 558 P.2d 1, gave careful consideration to the intent of the new legislation. There, the court held that collateral civil sanctions are legislatively proscribed. While the issue of collateral criminal sanctions was not posed, the court gave us some guidance. It refers to section 11361.7 as “an entirely new comprehensive statutory scheme to govern the treatment of marijuana offenses and offenders.” (Id., at p. 826, 135 Cal.Rptr. at p. 530, 558 P.2d at p. 5.) And the court noted that: “. . . one of the most significant arguments advanced in favor of the reform of marijuana laws was that under prior statutes persons convicted of relatively minor marijuana offenses were subjected to disproportionately severe sanctions.” (Id., at p. 828, 135 Cal.Rptr. at p. 531, 558 P.2d at p. 6.) The severe sanctions, the court tells us, were both criminal and civil. A fair reading of Governing Board v. Mann, supra, is that criminal collateral sanctions, too, are proscribed.

If despite the statutory wording, the Legislature meant to retain criminal and proscribe civil collateral sanctions it could have said so. Instead, the very language it used is as broad as outstretched arms surely both sanctions are included. This comprehensive scheme for treating possession of marijuana conviction is such that it affected a limited repeal of Penal Code section 12021. (See Governing Board v. Mann, supra, at p. 828, 135 Cal.Rptr. 526, 558 P.2d 1.)

I would affirm.

FOOTNOTES

1.  Unless otherwise noted, all future code references shall be to the Health and Safety Code.

1.  The majority cites Madrid v. Justice Court for the proposition that we deal with legislative history. Madrid dealt with a rejected legislative amendment. We deal with an early legislative proposal. If Madrid dealt with an amendment made on the floor of the California Assembly or Senate and there rejected, it comes closer to being helpful in interpreting a statute. However, I am not sure. Those familiar with the California legislative process know that an analogy to the federal “legislative history” is made with peril. The state Legislature has no equivalent to the Congressional record. Since our task is to seek legislative intent, we must be mindful of the many reasons amendments are offered and rejected. Often those reasons are unrelated to the intent of the legislation. In my view, we show the greatest respect to the legislative process if we interpret statutory language in a reasonable manner without placing the language under undue stress or strain. (Wisdom v. Eagle Star Ins. Co., supra, 211 Cal.App.2d 602, 27 Cal.Rptr. 599; Madrid v. Justice Court, supra, 52 Cal.App.3d, at p. 824, 125 Cal.Rptr. 348.)

EVANS, Associate Justice.

REGAN, Acting P. J., concurs.