TRACY v. MUNICIPAL COURT OF GLENDALE JUDICIAL DISTRICT OF LOS ANGELES COUNTY

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Court of Appeal, Second District, Division 3, California.

Jonathan Wayne TRACY, Petitioner and Respondent, v. MUNICIPAL COURT OF GLENDALE JUDICIAL DISTRICT OF LOS ANGELES COUNTY, Appellant;

The PEOPLE of the State of California, Real Party in Interest. Gary Donald LOISEAU, Petitioner and Respondent, v. MUNICIPAL COURT OF CITRUS JUDICIAL DISTRICT OF LOS ANGELES COUNTY, Appellant;

The PEOPLE of the State of California, Real Party in Interest and Appellant. Jonathan Wayne TRACY, Petitioner and Respondent, v. MUNICIPAL COURT OF the GLENDALE JUDICIAL DISTRICT OF LOS ANGELES COUNTY, Respondent; The PEOPLE of the State of California, Real Party in Interest and Appellant.

Civ. 49854, 50143 and 50604.

Decided: March 08, 1978

John H. Larson, County Counsel of Los Angeles County, David B. Kelsey, Deputy County Counsel, Los Angeles, for appellant Municipal Courts. John K. Van de Kamp, Dist. Atty. of Los Angeles County, Harry B. Sondheim, Head, App. Div., Donald J. Kaplan and George M. Palmer, Deputy Dist. Attys., for appellant People of the State of California. Wilbur F. Littlefield, Public Defender of Los Angeles County, Harold E. Shabo, Anita S. Brenner, Dennis A. Fischer, Deputy Public Defenders, for petitioners and respondents Tracy and Loiseau.

These three consolidated appeals challenge two judgments of the Superior Court of Los Angeles County issuing peremptory writs of mandate governing the further conduct of proceedings in the Municipal Court of Glendale Judicial District and the Municipal Court of Citrus Judicial District. The petitioners in both matters were defendants in municipal court proceedings brought by the People to determine their guilt of violation of the provisions of Health and Safety Code section 11357, subdivision (b) (possession of less than one ounce of marijuana). Both municipal courts had ruled that petitioners (who had not waived that right) were not entitled to be represented by court-appointed counsel at public expense though financially unable to employ private counsel. In the Loiseau case, the municipal court also ruled that although Loiseau had not waived his right to trial by jury, the matter would “proceed as a court trial.”

The mandate proceedings in superior court were heard on the petitions and the returns which admitted the essential facts and upon points and authorities. The court found the facts as above stated and concluded as follows:1

“1. The Legislature has provided for trial by jury and for the appointment of counsel for indigent defendants in all prosecutions for misdemeanors under state law. (Penal Code section 689; Cal.Const. Article 1, section 16; Mills v. Municipal Court (1973) 10 Cal.3d 288 (110 Cal.Rptr. 329, 515 P.2d 273).)

“2. Possession of less than one ounce of marijuana is presently defined as a misdemeanor, the Legislature having expressly declined to classify the offense an infraction or to otherwise ”decriminalize“ the offense. Compare People v. Oppenheimer (1974) 42 Cal.App.3d Supp. 4 (116 Cal.Rptr. 795).

“3. Petitioner enjoys the rights to appointed counsel and trial by jury.”

Accordingly, the judgment directed the municipal court in Loiseau to “reinstate its appointment of the public defender as attorney for petitioner, and to try the charge against petitioner to a jury unless trial by jury be affirmatively and intelligently waived.” The judgment in the Tracy matter directed the municipal court “to permit the Public Defender to resume its representation of petitioner.” The municipal courts and the People as real parties in interest have appealed from both judgments.

The briefs of appellants were filed in December 1976. Thereafter, in February 1977, petitioner Loiseau appeared in the municipal court (Citrus) and was represented by a deputy public defender. At that time, he moved to change his plea to guilty. This motion was granted and he was fined $100. The motion by Loiseau to dismiss the appeal as moot was opposed by appellants upon the grounds that (1) the right to jury trial was not involved in the Tracy appeal, (2) that issue had already been briefed by the appellants, and (3) the question “is one of broad public interest, likely to recur” and has “importance beyond the instant case” to establish uniformity among the municipal courts. We denied the motion to dismiss without prejudice. The briefs of petitioners accordingly have fully argued both contentions asserted in the court below; that is, that in a prosecution pursuant to Health and Safety Code section 11357, subdivision (b), both trial by jury and counsel appointed at public expense are applicable. The motion to dismiss the appeal is not renewed or reargued. Both contentions present questions of broad public interest which recur virtually on a daily basis. Thus, though Loiseau's plea of guilty renders the jury trial issue technically moot, we conclude that we should dispose of both contentions. (Ferrara v. Belanger, 18 Cal.3d 253, 259, 133 Cal.Rptr. 849, 555 P.2d 1089; In re Law, 10 Cal.3d 21, 23, 109 Cal.Rptr. 573, 513 P.2d 621; In re William M., 3 Cal.3d 16, 23, 89 Cal.Rptr. 33, 473 P.2d 737.)

Issues

Health and Safety Code section 11357, subdivision (b),2 deals with the possession of less than one ounce of marijuana. It labels the offense a “misdemeanor” but limits punishment to a “fine of not more than one hundred dollars ($100),” no matter how many times the offense is repeated. However, if three prior offenses have occurred within a two-year period immediately preceding the alleged commission of a fourth violation, diversion to a program for education, treatment or rehabilitation is mandatory, if available.

These appeals present four issues with respect to prosecutions pursuant to this section. They are:

1. Does the applicable California statutory law require appointment of counsel at public expense for indigent defendants?

2. Is such appointment of counsel mandated by the Sixth and Fourteenth Amendments to the United States Constitution, or the applicable provisions of the California Constitution?

3. Does the applicable California statutory law require trial by jury?

4. Do the Sixth and Fourteenth Amendments to the United States Constitution, or the provisions of the California Constitution, mandate trial by jury?

Discussion

The answer to all of the above questions is in the negative. The Legislature has specifically exempted infractions from the requirements of appointment of counsel at public expense and jury trial, and for that purpose has classified offenses “not punishable by imprisonment” as infractions. Attachment of the misdemeanor label is immaterial. Neither the California Constitution nor the United States Constitution requires appointment of counsel at public expense or jury trial in respect of such offenses.

Appointment of Counsel at Public Expense Is Not Provided by Applicable California Statutory Law

Since 1968, there have been three classifications of “crimes and offenses” in California. Penal Code section 16, enacted that year, provides:

“Crimes and public offenses include:

“1. Felonies;

“2. Misdemeanors; and

“3. Infractions.”

Before Penal Code section 16 was so amended, it provided:

“Crimes are divided into:

“1. Felonies; and,

“2. Misdemeanors.”

At the time of the amendment to section 16 of the Penal Code, section 17, subdivision (a), was amended to read as follows:

“A felony is a crime which is punishable with death or by imprisonment in the state prison. Every other crime or public offense is a misdemeanor except those offenses that are classified as infractions.”

Before such amendment, every crime not punishable by death or imprisonment in the state prison was a misdemeanor.

The 1968 statutory scheme also included the addition of Penal Code section 19c, reading as follows:

“An infraction is not punishable by imprisonment. A person charged with an infraction shall not be entitled to a trial by jury. A person charged with an infraction shall not be entitled to have the public defender or other counsel appointed at public expense to represent him unless he is arrested and not released on his written promise to appear, his own recognizance, or a deposit of bail.” (Emphasis added.)

Section 19c was and is the only section stating how offenses “are classified as infractions” as contemplated by the 1968 amendment to Penal Code section 17. It is apparent that the first sentence defines infractions for the purpose of determining when a person shall not be entitled to a jury trial or the appointment of counsel at public expense.

The Legislature apparently did not see any inconsistency between the provisions of Penal Code section 19c and then existing Penal Code section 689, for no amendment to the latter section was made. Since 1951 it had read:

“No person can be convicted of a public offense unless by verdict of a jury, accepted and recorded by the court, by a finding of the court in a case where a jury has been waived, or by a plea of guilty.”

There was no conflict between the general provisions of section 689 and the specific provisions of section 19c because the former was included in Part 2 of the Penal Code. That part was governed by section 690, which stated:

“The provisions of Part 2 of this code shall apply to all criminal actions and proceedings in all courts, except where jurisdictional limitations or the nature of specific provisions prevent, or special provision is made for particular courts or proceedings.” (Emphasis added.)

Section 1042 of the Penal Code had already been amended in 1939 to a form with which new Penal Code section 19c was consistent. Before the amendment, section 1042 read:

“Issues of fact must be tried by jury, unless a trial by jury be waived in criminal cases not amounting to felony, by the consent of both parties expressed in open court and entered in its minutes. In cases of misdemeanor the jury may consist of twelve, or any number less than twelve upon which the parties may agree in open court.” 3

As amended, the section read:

“Issues of fact shall be tried in the manner provided in Article I, section 7 of the Constitution of this State.” 4

The 1968 amendments also included new Penal Code section 1042.5, providing:

“Trial of an infraction shall be by the court, but when a defendant has been charged with an infraction and with a public offense for which there is a right to jury trial and a jury trial is not waived, the court may order that the offenses be tried together by jury or that they be tried separately with the infraction being tried by the court either in the same proceeding or a separate proceeding as may be appropriate.”

The 1968 legislation clearly evidenced the Legislature's intent to qualify the right to jury trial as defined in the earlier legislation by withholding that right in prosecutions for infractions as defined in Penal Code section 19c.

A similar pattern of prior legislation existed with respect to the right to counsel at public expense. At the time Penal Code section 19c was adopted, Penal Code sections 858, 859 and 987 (all of which were in Part 2 of the Penal Code) dealt with the defendant's right to counsel. Section 858 provided that when a defendant was brought before a magistrate “on a charge of having committed a public offense,” the magistrate must “immediately inform him . . . of his right to the aid of counsel . . . .” Section 859 governed preliminary hearings “(w)hen the defendant is charged with the commission of a public offense, over which the superior court has original jurisdiction . . . .” It also required that the defendant be informed of his “right to the aid of counsel” and that “(i)f the defendant desires and is unable to employ counsel, the court must assign counsel to defend him. . . . ” Section 987 governed arraignments at which the defendant appeared without counsel. It provided:

“If the defendant appears for arraignment without counsel, he must be informed by the Court that it is his right to have counsel before being arraigned, and must be asked if he desires the aid of counsel. If he desires and is unable to employ counsel, the Court must assign counsel to defend him.”

The subsequent history of these three sections is also pertinent. Section 858 has remained unchanged. The pertinent provisions of sections 859 and 987, however, have been in effect reenacted subsequent to 1968. In the case of section 859, such reenactment occurred twice: first, in 1971, and later in 1975. In each case, however, the section remained applicable only where the defendant is “charged with the commission of a public offense, over which the superior court has original jurisdiction . . . .”

In the case of section 987, the reenactment occurred in 1971. The 1971 amendments to both sections were part of the same act which was keyed to the pending legislative constitutional amendment on the ballot at the next general election. This ballot proposal amended Article I, section 13, of the California Constitution to express defendant's right in criminal prosecutions “to have the assistance of counsel for his defense” and to authorize legislation “to require the defendant in a felony case to have the assistance of counsel.” Also included in the amendatory act was an amendment which reenacted without change Government Code section 27706, subdivision (a), providing as follows:

“The public defender shall perform the following duties:

“(a) Upon request of the defendant or upon order of the court, he shall defend, without expense to the defendant, any person who is not financially able to employ counsel and who is charged with the commission of any contempt or offense triable in the superior, municipal or justice courts at all stages of the proceedings, including the preliminary examination. The public defender shall, upon request, give counsel and advice to such person about any charge against him upon which the public defender is conducting the defense, and shall prosecute all appeals to a higher court or courts of any person who has been convicted, where, in his opinion, the appeal will or might reasonably be expected to result in the reversal or modification of the judgment of conviction.”

The foregoing extensive legislative history demonstrates that Penal Code section 19c is the only section dealing specifically with the relationship between the fact that an offense is not punishable by imprisonment and the right to appointment of counsel at public expense or the right to jury trial. As the “special provision” “made for particular . . . proceedings” of that nature, it is expressly (Pen.Code, s 690) given precedence over the general provisions of the Penal Code which govern proceedings not within its scope. This is true, whether those general provisions were enacted or reenacted before or after the enactment of section 19c since section 690 governs new as well as old provisions of Part 2 of the Penal Code.

Government Code section 27706 cannot reasonably be construed as overriding Penal Code section 19c. It was originally enacted, prior to the enactment of Penal Code section 19c, and although other portions of it have been amended, the pertinent subdivision (a) has not. Though each amendment resulted in reenactment of the entire section (Cal.Const., art. IV, s 9), an implied amendment to section 19c cannot reasonably be found therein.

“As a general rule, an implied amendment of one code section by an express amendment of another code section is not to be favored and may be only upheld where there is no reasonable basis for harmonizing the former with the latter as amended. (Cf. 82 C.J.S. 418 Statutes, s 252; People v. Leong Fook, 206 Cal. 64, 69-70, 273 P. 779; People v. Phair, 137 Cal.App. 612, 613, 614, 31 P.2d 421.)”

(Lambert v. Conrad, 185 Cal.App.2d 85, 93, 8 Cal.Rptr. 56, 61.)

In addition, it would be wholly inappropriate to effect an amendment to a Penal Code section by reenacting a provision of the Government Code. There is, in any event, a “reasonable basis for harmonizing” the two sections. Nothing about the reenactment of Government Code section 27706, subdivision (a), indicates that the Legislature had in mind the intervening enactment of Penal Code section 19c, withholding the right to employment of counsel at public expense in the case of offenses not punishable by incarceration. Government Code section 27706 simply does not deal expressly with such offenses, whereas section 19c does. The two provisions are therefore reconcilable on the basis that Government Code section 27706 applies to prosecutions generally (like the provisions of Part 2 of the Penal Code), and Penal Code section 19c applies to infractions. A contrary interpretation would necessarily make section 27706 applicable to all infractions, with the bizarre result that an indigent defendant with a speeding ticket would be entitled to demand that counsel be provided at public expense. We cannot reasonably ascribe to the Legislature any such intent, which would frustrate the whole purpose of the 1968 legislation to reduce the cost to the public of dealing with such offenses.

The question which remains is whether a violation of Health and Safety Code section 11357, subdivision (b), is an infraction within the terms of Penal Code section 19c, or a misdemeanor as defined in Penal Code section 17. Section 17 makes an offense that is not a felony, a misdemeanor, “except those offenses that are classified as infractions.” It does not, however, tell us how offenses are so “classified.” It is patent that for the purposes of Penal Code section 19c, dealing with the right to counsel and to a jury trial, the labeling of an offense punishable by life imprisonment as an infraction could not make it such. For those purposes the Legislature chose to make the classification depend upon availability of imprisonment as a punishment. That means of classification having been chosen, the label attached is immaterial to the determination whether the rights to jury trial and appointment of counsel at public expense are available.

Such an approach to the matter is consistent with the general rule distinguishing misdemeanors and felonies. As stated in People v. Trimble, 18 Cal.App.2d 350, 351, 63 P.2d 1173, 1174:

“The characterization given a penalized act by the legislature is immaterial in determining whether or not it is a misdemeanor or a felony, the sole test being the nature and extent of the punishment imposed. (People v. Sacramento Butchers' Assn., 12 Cal.App. 471, 489, 107 P. 712.)”

In People v. Marshall, 48 Cal.2d 394, 396-397, footnote 1, 309 P.2d 456, 457, our Supreme Court said:

“1 Section 503 refers to the offense thereby denounced as a ‘felony,’ but provides that the offense is punishable ‘by imprisonment in the state prison . . . or in the county jail . . . or by a fine . . .’ Even though the judgment refers to defendant's conviction as a ‘felony,’ it appears that the imposition of the statutorily authorized lesser punishment of imprisonment in the county jail renders the conviction one of misdemeanor only. (Pen.Code, s 17; People v. Wilson (1943), 59 Cal.App.2d 610, 611(1), 139 P.2d 673; People v. Rowland (1937), 19 Cal.App.2d 540, 541(1), 65 P.2d 1333; People v. Trimble (1936), 18 Cal.App.2d 350, 351(1), 63 P.2d 1173; People v. Pryor (1936), 17 Cal.App.2d 147, 152(4, 5), 61 P.2d 773.)”

Thus, the fact that a violation of Health and Safety Code section 11357, subdivision (b), is labeled a “misdemeanor” cannot deprive it of its character as an infraction under Penal Code section 19c any more than the labeling of an offense as an infraction could make it such if the punishment could include imprisonment.

Nor does such label indicate that the Legislature intended that the rights to jury trial and to counsel at public expense were applicable. Two other offenses similarly mislabeled have been brought to the attention of the court. They are Penal Code sections 374b and 374e which prohibit littering. The Legislature has also failed to amend some pre-1968 statutes labeling the pettiest of offenses misdemeanors (see, e. g., Labor Code, s 2263; Health & Saf.Code, ss 3704, 3803), but the vast majority of new provisions establishing offenses for which no incarceration is provided have properly labeled such offenses as infractions. (See Bus. & Prof.Code, s 9889.21; Food & Agr.Code, s 31401; Gov.Code, ss 25132, 36900; Veh.Code, ss 40000.1, 42001; Health & Saf.Code, s 1909.)

There is no pattern in the above history of legislation subsequent to the 1968 adoption of Penal Code section 19c to suggest that the label “misdemeanor” is intended by the Legislature to exempt an otherwise qualifying offense from the operation of Penal Code section 19c. The offenses newly labeled misdemeanors or permitted to retain old misdemeanor labels do not differ in any significant respect from those labeled infractions. Since the Legislature has not indicated what purpose is to be served by the misdemeanor label, we decline to speculate except to note that various reasons unrelated to the purposes of section 19c might be involved. For example, the Legislature might have wished to avoid possible overreaction by the public if the decriminalization of possession of less than an ounce of marijuana was interpreted as legislative approval of its use. Thus, though the label “infraction” was in the enactment as originally proposed and was designedly replaced by the label “misdemeanor” in subsequent amendments, there is nothing in the legislative history remotely suggesting that the purpose of this change was to preserve the rights of counsel appointed at public expense and of jury trial in prosecutions of this patently petty offense.

We, therefore, conclude that the applicable California statutory provisions do not entitle petitioners to the appointment of counsel at public expense.

Appointment of Counsel at Public Expense Is Not Required by the Sixth and Fourteenth Amendments to the United States Constitution or the California Constitution

The requirements of the Sixth Amendment to the United States Constitution (made applicable to the states by the Fourteenth Amendment) relating to appointment of counsel are set forth in the majority opinion of the United States Supreme Court in Argersinger v. Hamlin (1972), 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530. In that case, the court held (407 U.S. at p. 37, 92 S.Ct. at p. 2012): “(A)bsent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial. (Fn. omitted.)” The majority referred to the opinion of Mr. Justice Powell concurring in the result in which he stated that issues requiring the presence of counsel to insure the accused a fair trial “are raised even in situations where there is no prospect of imprisonment.” (Ibid.) The court nonetheless announced a rule which made the possibility of incarceration the determining factor. The majority opinion concluded (id. at p. 40, 92 S.Ct. at p. 2014):

“Under the rule we announce today, every judge will know when the trial of a misdemeanor starts that no imprisonment may be imposed, even though local law permits it, unless the accused is represented by counsel. He will have a measure of the seriousness and gravity of the offense and therefore know when to name a lawyer to represent the accused before the trial starts.

“The run of misdemeanors will not be affected by today's ruling. But in those that end up in the actual deprivation of a person's liberty, the accused will receive the benefit of ‘the guiding hand of counsel’ so necessary when one's liberty is in jeopardy.” (Emphasis added.)

Moreover, the court quoted with apparent approval the commentary to Standard 4.1 of the American Bar Association's standards relating to providing defense services. That standard reads:

“4.1 Criminal cases.

“Counsel should be provided in all criminal proceedings for offenses punishable by loss of liberty, except those types of offenses for which such punishment is not likely to be imposed, regardless of their denomination as felonies, misdemeanors or otherwise.”

As quoted in the opinion of Argersinger v. Hamlin, supra, 407 U.S. at page 39, 92 S.Ct. at p. 2014, the commentary reads:

“ ‘As a matter of sound judicial administration it is preferable to disregard the characterization of the offense as felony, misdemeanor or traffic offense. Nor is it adequate to require the provision of defense services for all offenses which carry a sentence to jail or prison. Often, as a practical matter, such sentences are rarely if ever imposed for certain types of offenses, so that for all intents and purposes the punishment they carry is at most a fine. Thus, the standard seeks to distinguish those classes of cases in which there is real likelihood that incarceration may follow conviction from those types in which there is no such likelihood. It should be noted that the standard does not recommend a determination of the need for counsel in terms of the facts of each particular case; it draws a categorical line at those types of offenses for which incarceration as a punishment is a practical possibility.’ Providing Defense Services 40 (Approved Draft 1968).”

There is no “real likelihood that incarceration may follow conviction” (ibid.) of a violation of Health and Safety Code section 11357, subdivision (b). Repeated violations do not even result in an increase in the fine, and if an appropriate community program is available which will accept the defendant, he may not be convicted of a fourth offense within a two-year period. We realize that consequences of a serious nature can result from a conviction of this offense. Such also is the case in many other petty offenses. These consequences were referred to in the concurring opinion of Mr. Justice Powell in Argersinger wherein he said (407 U.S. at p. 48, 92 S.Ct. at p. 2018):

“Serious consequences also may result from convictions not punishable by imprisonment. Stigma may attach to a drunken-driving conviction or a hit-and-run escapade. Losing one's driver's license is more serious for some individuals than a brief stay in jail. In Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971), we said:

“ ‘Once licenses are issued, as in petitioner's case, their continued possession may become essential in the pursuit of a livelihood. Suspension of issued licenses thus involves state action that adjudicates important interests of the licensees. In such cases the licenses are not to be taken away without that procedural due process required by the Fourteenth Amendment.’ Id., at 539, 91 S.Ct. 1586. (Fn. omitted.)”

We note, however, that the majority of the court, while not disagreeing with these observations, nonetheless instructed our judges “when to name a lawyer to represent the accused” and in this connection adopted a “measure of the seriousness and gravity of the offense” which related solely to “actual deprivation of a person's liberty.” (Id., at p. 40, 92 S.Ct. at p. 2014.) It, therefore, appears that appointment of counsel at public expense is not mandated by the provisions of the Sixth and Fourteenth Amendments to the United States Constitution in a prosecution for violation of Health and Safety Code section 11357.

Consideration, however, must also be given to the requirements of our California Constitution. In 1971, article I, section 13, was amended in pertinent part to provide: “In criminal prosecutions, in any court whatever, the party accused shall have the right to a speedy and public trial and to have the assistance of counsel for his defense; . . .” (Emphasis added.) In 1974, this provision was incorporated in article I, section 15. It reads in this respect: “The defendant in a criminal cause has the right to a speedy public trial, to compel attendance of witnesses in the defendant's behalf, to have the assistance of counsel for the defendant's defense . . . .” (Emphasis added.)

The applicability of this provision to the trial of an infraction has not been determined by any appellate court. It does not appear that it is intended to apply to such trials. Its applicability is limited to “criminal” prosecutions. Inasmuch as creation of the category of offenses denominated “infractions” required amending section 16 to encompass “crimes and public offenses,” rather than merely “crimes” and this distinction between crimes and other offenses had been established for some years prior to the adoption of the constitutional provision, it is appropriate to assume that the term “criminal” causes was therein used advisedly to refer to felony and misdemeanor trials.

It is well established that the defendant in the usual misdemeanor prosecution, where there is a possibility of imprisonment, is entitled to counsel at public expense if he is indigent. In re Smiley, 66 Cal.2d 606, 614-615, 58 Cal.Rptr. 579, 584, 427 P.2d 179, 184, our Supreme Court said:

“Under article I, section 13, of the California Constitution, there can be no doubt that the fundamental right to the assistance of counsel is guaranteed to all persons, such as the present petitioner, charged with a misdemeanor in a justice or other inferior court. (E. g., In re McCoy (1948) 32 Cal.2d 73, 76, 194 P.2d 531 (city police court); In re Jingles (1946) 27 Cal.2d 496, 498, 165 P.2d 12 (same); see generally, In re Johnson (1965) supra, 62 Cal.2d 325, 329, 42 Cal.Rptr. 228, 398 P.2d 420.) This guarantee, of course, is meaningless unless the defendant is made fully aware of it: not only must he be advised of his right to counsel, he must also be advised that the court will appoint an attorney to represent him if he is unable to afford one. . . . ”

In Mills v. Municipal Court, 10 Cal.3d 288, 110 Cal.Rptr. 329, 515 P.2d 273, our Supreme Court dealt with the question whether Boykin-Tahl5 waivers were required for guilty pleas in “all misdemeanor prosecutions” or “only to those which actually result in the defendant's imprisonment.” (10 Cal.3d at p. 299, 110 Cal.Rptr. at p. 337, 515 P.2d at p. 285.) As the court stated (ibid.):

“The People rely on the United States Supreme Court's recent opinion in Argersinger v. Hamlin (1972) 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530, as authority for drawing the line at cases of ‘actual imprisonment.’ ”

Our Supreme Court criticized and rejected the “predictive determination suggested by Argersinger ” in favor of a rule requiring the waivers “in all felony and misdemeanor proceedings whether actual imprisonment is to follow or not . . . .” (Id., at p. 301, 110 Cal.Rptr. at p. 338, 515 P.2d at p. 286.) However, in so stating, the court made it clear that its holding did not apply to cases in which there was no possibility of imprisonment, saying (id., at p. 302, fn. 13, 110 Cal.Rptr. at p. 339, 515 P.2d at p. 287):

“The Legislature has specifically provided for different procedures in infraction cases, in which incarceration is not an applicable sanction. Misdemeanor procedures apply except that there is no right to jury trial or right to appointed counsel (Pen. Code, ss 19c and 19d; Cal.Stats. 1973, ch. 1162). Nothing in this opinion is intended to apply to infractions.” (Emphasis added.)

By specifically referring to the fact that infraction cases are those “in which incarceration is not an applicable sanction” (id., at p. 302, 110 Cal.Rptr. at p. 339, 515 P.2d at p. 287), thus eliminating any aspect of “predictive determination,” the court acknowledges that where there is no prospect of imprisonment, the California Constitution does not require that a defendant be advised of his right to state-appointed counsel.

In People v. Prince, 55 Cal.App.3d Supp. 19, 127 Cal.Rptr. 296, the court held that, in the absence of special circumstances, not here involved, defendants in infraction cases were not required to be advised of their right to assistance of counsel. The court referred to the statement in In re Johnson, 62 Cal.2d 325, 336, 42 Cal.Rptr. 228, 235, 398 P.2d 420, 427, that “(p)ractical considerations,” including “the typically crowded arraignment calendars of our courts” posing “urgent problems in the administration of justice in California” dictate that “the convenience of the parties and the court should be given considerable weight.” (Ibid.) Reference was also made to the statement in the concurring opinion of Mr. Justice Powell in Argersinger that a requirement that all petty offenders be furnished counsel at public expense bore a “high” “price” in “terms of its adverse impact on the administration of the criminal justice systems of 50 States.” (407 U.S. at p. 51, 92 S.Ct. at p. 2019.) The Prince court concluded “that pragmatic, common sense, considerations” (55 Cal.3d Supp. at p. 34, 127 Cal.Rptr. 296, 306) supported it holding. One such consideration was stated as follows: “The most aggravated infraction case, where multiple and repeated offenses are charged, could rarely, if ever, involve financial punishment equal to the cost to defendant of employing an attorney.” (Id., at p. 33, 127 Cal.Rptr. at p. 306.)

Similar pragmatic, common sense considerations are applicable to the question at bench. In view of the maximum fine of $100 applicable, few nonindigent defendants could justify the expense of retaining an attorney to represent them, but the taxpayers would be saddled with the cost of providing public defender services to any indigent willing to take the time to undertake a defense.

It is manifest that a major objective in the reduction of the penalty for possession of small amounts of marijuana was to relieve the burden on the courts inherent in trying the great volume of marijuana possession cases.6 Utilization of all of the paraphernalia of full-scale criminal proceedings would frustrate this objective. The appointment of counsel at public expense would tend to increase the likelihood that all such paraphernalia would be employed.

Petitioners urge that appointed counsel would be particularly helpful to defendants in possession cases because of the likely occurrence of search and seizure issues. This may be so, but it is questionable that there is any kind of infraction proceeding in which a defendant might not benefit from representation by competent counsel.

Petitioners also urge that counsel at public expense is required in view of the adverse collateral effects of conviction of a violation of Health and Safety Code section 11357, subdivision (b). That such collateral effects may result is undeniable, but the Legislature has ameliorated them to a large degree by provisions of the Health and Safety Code and Labor Code confining such collateral consequences to a two-year period. Health and Safety Code section 11361.5 requires automatic destruction of the record of any such conviction two years after the date thereof. Health and Safety Code section 11361.7 prohibits any public agency from imposing any disability because of any such conviction, two years from the date thereof. Labor Code section 432.7 prohibits any employer “whether a public agency or private individual” from requiring applicants for employment to disclose any information concerning convictions for violation of Health and Safety Code section 11357, subdivision (b). This prohibition is also applicable two years from the date of the conviction.

These provisions do not totally ameliorate the collateral consequences of a conviction of possession of a small quantity of marijuana. There probably are some elements of the population who attach considerable opprobrium to any such conviction. However, the same may be said of substantially any other conduct which might appropriately be classified as an infraction. The fact that it has been so classified indicates that at least a majority of the population does not regard it as so opprobrious as to justify serious consequences. We conclude, therefore, that violation of Health and Safety Code section 11357, subdivision (b), should not fall into a special category of infraction requiring appointment of counsel at public expense.

The Applicable California Statutory Law Does Not Require Trial By Jury

What has been said above as to the history of Penal Code section 19c and related provisions demonstrates that section 19c is the specific statutory provision governing the availability of jury trials of offenses not punishable by imprisonment, and that the label placed upon the offense is immaterial in this respect. Though Penal Code section 689 may appear to conflict with section 19c by providing that “(n)o person can be convicted of a public offense unless by verdict of a jury, . . . ” it does not. Section 689 is in Part 2 of the Penal Code and is expressly limited in its application to proceedings in respect of which no “special provision” is made. (Pen.Code, s 690.) Penal Code section 19c is such a special provision; it, therefore, controls proceedings relating to infractions.

Petitioners argue, however, that Health and Safety Code section 11357 expressly refers to jury trials of issues and proceedings pursuant to said section. The reference to jury trial is to the determination of a charge of three prior convictions (during a two-year period) in an accusatory pleading charging a fourth violation. The issue to be determined by the jury is whether the three prior convictions have occurred, not whether the fourth offense occurred. The result of the determination of three priors is mandatory diversion pursuant to the provisions of Penal Code sections 1000.1 and 1000.2. No trial of the issue of guilt on the fourth charge is contemplated, for a diversion is not within the court's jurisdiction after a trial and conviction. (People v. Wright, 47 Cal.App.3d 490, 493, 120 Cal.Rptr. 899.) The reference in Health and Safety Code section 11357, subdivision (b), to a jury trial is therefore merely a recognition of the fact that the existence of three prior convictions (which, together with the existence of a fourth charge, subjects defendant to diversion to a community program for education, treatment or rehabilitation) is an issue triable to a jury. Such diversion is a consequence which is probably far more onerous than the payment of a $100 fine. The Legislature's recognition that it calls for a jury trial of the existence of the priors in no way suggests that a jury trial is required as to guilt on each individual charge.

Trial By Jury Is Not Required by the Sixth and Fourteenth Amendments to the United States Constitution or by the California Constitution

In Baldwin v. New York (1970), 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437, the United States Supreme Court drew the line between “petty offenses” which may be tried without a jury and “serious crimes” requiring jury trial. It stated (id. at pp. 68-69, 90 S.Ct. at pp. 1887, 1888):

“In Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), we held that the Sixth Amendment, as applied to the States through the Fourteenth, requires that defendants accused of serious crimes be afforded the right to trial by jury. We also reaffirmed the long-established view that so-called ‘petty offenses' may be tried without a jury. Thus the task before us in this case is the essential if not wholly satisfactory one, see Duncan, at 161, 88 S.Ct. 1444, of determining the line between ‘petty’ and ‘serious' for purposes of the Sixth Amendment right to jury trial.

“Prior cases in this Court narrow our inquiry and furnish us with the standard to be used in resolving this issue. In deciding whether an offense is ‘petty,’ we have sought objective criteria reflecting the seriousness with which society regards the offense, District of Columbia v. Clawans, 300 U.S. 617, 628, 57 S.Ct. 660, 81 L.Ed. 843 (1937), and we have found the most relevant such criteria in the severity of the maximum authorized penalty. Frank v. United States, 395 U.S. 147, 148, 89 S.Ct. 1503, 23 L.Ed.2d 162 (1969); Duncan v. Louisiana, supra, at 159-161, 88 S.Ct. 1444; District of Columbia v. Clawans, supra, 391 U.S. at 628, 57 S.Ct. 660. Applying these guidelines, we have held that a possible six-month penalty is short enough to permit classification of the offense as ‘petty,’ Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216, 220, 88 S.Ct. 1472, 20 L.Ed.2d 538 (1968); Cheff v. Schnackenberg, 384 U.S. 373, 86 S.Ct. 1523, 16 L.Ed.2d 629 (1966), but that a two-year maximum is sufficiently ‘serious' to require an opportunity for jury trial, Duncan v. Louisiana, supra. The question in this case is whether the possibility of a one-year sentence is enough in itself to require the opportunity for a jury trial. We hold that it is. More specifically, we have concluded that no offense can be deemed ‘petty’ for purposes of the right to trial by jury where imprisonment for more than six months is authorized. (Fns. omitted.)”

In Mills v. Municipal Court, supra, 10 Cal.3d at page 298, footnote 8, 110 Cal.Rptr. 329, 336, 515 P.2d 273, 280, our Supreme Court characterized the decision in Baldwin as follows:

“Under the federal Constitution, the right to trial by jury is guaranteed only for ‘non-petty’ offenses, involving a potential punishment of more than six months' imprisonment. (See Baldwin v. New York (1970) 399 U.S. 66, 69, 90 S.Ct. 1886, 26 L.Ed.2d 437, (440).) Thus, a defendant's federal constitutional ‘jury trial’ right does not extend to all misdemeanors, but only to those involving a potential of more than six months' incarceration. . . . ”

Health and Safety Code section 11357, subdivision (b), holds no “potential” for punishment by imprisonment. It is, therefore, clear that a jury trial is not required of such offense under the provisions of the United States Constitution.

In Mills, supra, 10 Cal.3d at page 298, footnote 8, 110 Cal.Rptr. 329, 336, 515 P.2d 273, 280, the court noted that the California Constitution contains a broader guarantee of jury trial, saying: “(I)n California our state Constitution guarantees every defendant faced with misdemeanor or felony charges a right to trial by jury. . . . ” The court, however, expressly acknowledged that this requirement had no application “in infraction cases, in which incarceration is not an applicable sanction” (id., at p. 302, fn. 13, 110 Cal.Rptr. at p. 339, 515 P.2d at p. 283), saying in this respect: “Misdemeanor procedures apply except that there is no right to jury trial or right to appointed counsel . . . ” (ibid.).

In People v. Oppenheimer, 42 Cal.App.3d Supp. 4, 116 Cal.Rptr. 795, the court went into this question in great detail. After noting the holding in People v. One 1941 Chevrolet Coupe, supra, 37 Cal.2d 283, 231 P.2d 832, that the right to trial by jury as preserved in our Constitution encompasses that right as it existed at common law in 1850, the court stated the historical facts as follows:

“Examination of the historical fact to which we are directed discloses that a bewildering variety of offenses were subject to summary trial without a jury at the common law. An exhaustive collection of them is found in a classic article by Felix Frankfurter and Thomas G. Corcoran in 39 Harvard Law Review 917 (1926), Petty Federal Offenses and the Constitutional Guarantee of Trial by Jury, (hereafter ‘Frankfurter and Corcoran’). As there pointed out: ‘ . . . Eliminating all penal enforcements in which the informer or the ”party aggrieved“ shared the fine with the Crown, we find at least one hundred offenses for which the Crown prosecuted before a justice and without a jury. Violations of the laws relating to liquor, trade and manufacture, labor, smuggling, traffic on the highway, the Sabbath, ”cheats,“ gambling, swearing, small thefts, assaults, offenses to property, servants and seamen, vagabondage and disorderly conduct were largely in the justices' hands . . . .’ (39 Harv.L.Rev. at p. 928.) (Italics added.)

“These offenses included some where, as here, only a fine could be imposed. ‘Another branch of summary proceedings is that before justices of the peace, in order to inflict divers petty pecuniary mulcts . . . .’ (4 Blackstone's Commentaries 281 (p. 399 of the 1857 New Edition adapted by Kerr).)” (42 Cal.App.3d Supp. at p. 9, 116 Cal.Rptr. at p. 798.)

Clearly, violation of Health and Safety Code section 11357, subdivision (b), is a “petty” offense of the nature which was triable without a jury at common law in 1850. Consequently, trial by jury is not required.

The judgments appealed from are reversed, and the causes are remanded to the trial court which is directed to enter judgments discharging the alternative writs of mandate and denying peremptory writs of mandate.

I dissent.

These consolidated cases involve the question of the Legislature's intent with respect to the classification of certain public offenses as infractions or misdemeanors.

We are not concerned here with the power of the Legislature to deny an accused the right to a trial by jury or the right to a lawyer appointed at public expense for a violation of a public offense not punishable by imprisonment.1 The California Legislature has the authority to deny a person charged with a “petty offense” where the punishment does not include imprisonment the right to a jury trial or to court-appointed counsel. The Legislature can accomplish this result by classifying a particular minor public offense as an “infraction.”2

The Legislature has classified the “petty offense” of a violation of Health and Safety Code section 11357, subdivision (b)3 (possession of less than one ounce of marijuana) as a misdemeanor even though the punishment is limited to a “fine of not more than one hundred dollars ($100)” no matter how many times an individual has committed the offense, although diversion is mandated if there is a fourth violation within a two-year period. The dispute in these cases points out the confusion which exists as to the rights of a defendant charged under this marijuana possession statute. Is a person accused of violating its prohibitions entitled to a jury trial and a court-appointed lawyer because the Legislature has called the violation a misdemeanor or are those rights denied because the Legislature has limited the punishment to a fine? The construction given to the language of the marijuana possession code section by this court will have significant consequences to the persons accused and to the courts where the violations are to be tried.

It may be argued that there is no uncertainty, ambiguity or confusion in the marijuana statute and that the use of the word “misdemeanor” permits only one construction: the Legislature intended that all provisions of the law relating to misdemeanors shall apply to violations of the statutory prohibitions against possession of less than one ounce of marijuana without exception.4 However, the language of the marijuana possession statute, when considered in light of the general tenor and scope of the legislative scheme relating to infractions, is not so clear that reasonable minds cannot differ on the import of the Legislature's classification of this offense as a misdemeanor.

In 1968 the Legislature enacted and changed a number of Penal Code sections and modified certain provisions of the Vehicle Code. One result of these changes is that Penal Code section 17, subdivision (a) (see fn. 2, supra ) now provides that every crime or public offense not punishable with death or by imprisonment in the state prison is a misdemeanor except those offenses that are classified as infractions. Penal Code section 19c (fn. 2, supra ) was added, defining an infraction as a public offense not punishable by imprisonment and providing that a person accused of an infraction is to be denied the right to a trial by jury or to court-appointed counsel. These statutory additions and modifications were enacted primarily to effect a radical change in the law governing the prosecution of minor traffic offenses by classifying them as infractions.5 The changes in both the Penal Code and the Vehicle Code had been proposed by the Judicial Council as a procedure designed to alleviate the burdens imposed on the courts by the huge volume of minor traffic cases.6

When statutory language is not clear, the Legislature's intent must be ascertained from all the relevant circumstances including the historical background of the statute. (See People v. Yoshimura (1976) 62 Cal.App.3d 410, 415, 133 Cal.Rptr. 228.) As aids in the determination of legislative intent, the courts give great weight to legislative committee reports (People v. Wiley (1976) 18 Cal.3d 162, 171, 133 Cal.Rptr. 135, 554 P.2d 881), to Attorney General Opinions, and to contemporaneous administrative statutory constructions (Worthington v. Unemployment Ins. Appeals Bd. (1976) 64 Cal.App.3d 384, 388-389, 134 Cal.Rptr. 507). Reports of the Judicial Council must also be given great weight in ascertaining what a statute means, particularly when the report proposes legislation which is then enacted by the Legislature. (See Jolicoeur v. Mihaly (1971) 5 Cal.3d 565, 573, 96 Cal.Rptr. 697, 488 P.2d 1; In re Corey (1968) 266 Cal.App.2d 295, 297-299, 72 Cal.Rptr. 115; see also Gordon v. Justice Court (1974) 12 Cal.3d 323, 330, fns. 7, 8, 115 Cal.Rptr. 632, 525 P.2d 72.)

The 1967 Judicial Council Report recommended to the Legislature a system for classifying minor traffic violations as noncriminal traffic infractions, emphasizing that infractions should be treated as noncriminal minor public offenses in which the offender would not be subject to imprisonment as punishment and would have no right to a jury trial or to the appointment of a lawyer. The Report is in two parts, a recommendation for specific legislative action and a study. The study, which traces the history of the infraction concept in other jurisdictions, defines infractions as “non-criminal offenses for which the sentence authorized upon conviction would be a fine or other civil penalty” and for which “(j)ail would not be authorized as a sanction.” The Judicial Council study points to efforts of the drafters of the Model Penal Code to fashion an enforcement procedure of public sanctions for minor public offenses which could not be condemned as criminal. In the Model Penal Code drafters' view, “the proper way to satisfy that need is to use a category of noncriminal offense, for which the sentence authorized upon conviction does not exceed a fine . . . or other civil penalty. . . . This plan . . . will serve the legitimate needs of enforcement, without diluting the concept of crime. . . . ”7

The Legislature adopted the concept recommended by the Judicial Council in 1968 when it classified certain minor traffic offenses as infractions in the statutory changes discussed previously. The way was left open for the classification of other noncriminal, petty public offenses as infractions.

A review of the history of the pertinent marijuana possession statute (Health & Saf.Code, s 11357, subd. (b) ) shows that the Legislature's first proposed bill, Senate Bill No. 95 (1975-1976 Reg. Sess.) sought to decriminalize the simple possession of three or less avoirdupois ounces of marijuana, other than “concentrated cannabis,” by classifying the offense as an infraction punishable by a fine of not more than one hundred dollars. After a series of hearings before the Senate Select Committee on Control of Marijuana, including hearings on November 10, 1973, January 10, 1974 and February 14, 1974, the final version of Senate Bill No. 95, which included the modification of Health and Safety Code section 11357, provided that unlawful simple possession of less than one ounce of marijuana is a misdemeanor punishable by a fine of not more than one hundred dollars. While the Final Report of the Senate Select Committee on Control of Marijuana (May 1974) concluded that the use of marijuana is not a major threat to public health, safety or morals, it also found that marijuana is not an innocuous drug and that there is disagreement among scientists studying the drug as to its effects upon the nerve centers controlling emotions, alertness, sensation and behavior as well as the possible harmful effect on the unborn. The Select Committee's Final Report reveals exceptionally strong views by persons testifying before it both for and against classifying any marijuana possession or use as noncriminal conduct which would be controlled only by civil penalties. The Report makes no recommendation as to whether possession of a small amount of marijuana should be classified as criminal or noncriminal.8

The fact that the Legislature in the final version of Senate Bill No. 95 changed the classification of the public offense from an infraction to a misdemeanor is a clear statement that the Legislature did not intend to decriminalize the unlawful possession of any amount of marijuana. The history of the statute thus discloses a legislative choice to continue to treat all marijuana possessions as crimes. In so classifying the offense, the Legislature must have intended that all of the incidents of a misdemeanor violation attach to the trial of a person accused of violating Health and Safety Code section 11357, subdivision (b), including the right to a jury trial and the right of an indigent accused to have court-appointed counsel at public expense (see Pen.Code, ss 19c and 19d, fns. 2 and 4, supra ).

The key word in Penal Code section 17, subdivision (a) (fn. 2, supra ) is “classified.” The word “classify” is defined in Webster's Third New International Dictionary (1966 unabridged) at page 417, as “to group or segregate in classes that have systematic relations . . . .” The word “classify” is defined in 2 Oxford English Dictionary (1933) at page 468, as “(t)o arrange or distribute in classes according to a method or system.” Black's Law Dictionary (rev. 4th ed. 1968) at page 316, defines the word “classification” as “the grouping of things in speculation or practice because they agree with one another in certain particulars and differ with others in those particulars.” Under these definitions the classifier has a certain amount of discretion. The use of the word “classified” in Penal Code section 17, subdivision (a) thus denotes that the Legislature has retained the power to arrange or group certain public offenses as either criminal or noncriminal.

The Legislature appears to have used its discretion as a classifier subsequent to the 1968 changes in the Penal Code by enacting statutes classifying certain minor public offenses as misdemeanors even though the punishment did not include imprisonment. See, for example, the discussion by the majority of two littering statutes, Penal Code sections 374b and 374e. One other littering statute, Health and Safety Code section 13002, has been similarly classified. By classifying these public offenses and the marijuana possession violation before us as misdemeanors, the Legislature has in its discretion determined that they are minor criminal offenses and reserved to the accused all of the rights available to persons accused of a misdemeanor (see Pen.Code, ss 19c and 19d, fns. 2 and 4, supra ).

There are additional factors which compel the conclusion that the Legislature meant to preserve to a person accused of violating Health and Safety Code section 11357, subdivision (b) the right to a jury trial and court-appointed counsel by classifying the offense as a misdemeanor.

The ultimate interpretation of a statute is the responsibility of the judiciary, and a legislative act must be viewed so as to avoid an infringement upon constitutional guarantees. (See Rees v. Layton (1970) 6 Cal.App.3d 815, 822, 86 Cal.Rptr. 268; Stribling v. Mailliard (1970) 6 Cal.App.3d 470, 473, 85 Cal.Rptr. 924.) In determining legislative intent, the court should presume that the Legislature intended to enact a statute which does not deny an accused the right to a jury trial or to a court-appointed counsel unless it expressly states that those constitutional guarantees are being specifically eliminated. (See Braxton v. Municipal Court (1973) 10 Cal.3d 138, 145, 109 Cal.Rptr. 897, 514 P.2d 697; Charles S. v. Board of Education (1970) 20 Cal.App.3d 83, 94, 97 Cal.Rptr. 422.) The failure of the Legislature to label the minor public offense before us an infraction so as to specifically eliminate the constitutional guarantees of a jury trial and the right of an indigent to court-appointed counsel requires that we interpret the statute in a manner which preserves those guarantees.

Another fundamental principle of construction is that a penal statute should be construed as favorably to the defendant as its language and application reasonably permit. (People v. Provencher (1973) 33 Cal.App.3d 546, 549, 108 Cal.Rptr. 792.) Under this rule, a defendant is entitled to the benefit of every reasonable doubt as to the true interpretation of words and construction of the language used in the statute. (People v. Walker (1976) 18 Cal.3d 232, 242, 133 Cal.Rptr. 520, 555 P.2d 306.) An interpretation of Health and Safety Code section 11357, subdivision (b), which preserves the right to a jury trial and court-appointed counsel is obviously the most favorable construction of the statute that can be given the defendants in these consolidated cases. (See also People v. Bennett (1976) 60 Cal.App.3d 112, 120, 131 Cal.Rptr. 305.

The rule announced in People v. Trimble (1936), 18 Cal.App.2d 350, 351, 63 P.2d 1173, stating that the “characterization” given a crime or public offense by the Legislature is immaterial in determining whether or not it is a misdemeanor or a felony and that the sole test is the nature and extent of the punishment imposed, is not determinative of whether the marijuana possession statute under review is a misdemeanor or an infraction. While the Trimble penalty rule may continue to be a valid test for determining whether an offense is a major or minor crime, i.e., a felony or a misdemeanor, we should not be bound by the single factor of penalty in determining whether the Legislature has intended to classify an offense as either criminal or noncriminal, i.e., a misdemeanor or an infraction, when so many other factors compel the conclusion that the Legislature intended the former classification.

In addition to the historical background and rules of construction discussed above, there are several special consequences of a drug possession prosecution which further necessitate a finding that the marijuana possession statute before us is a “true” misdemeanor with all the “paraphernalia” which attaches to that grade of offense.

First is the fact that a conviction of any drug-related offense, including even simple possession of a small amount of marijuana, carries with it social and economic implications that could have influenced the Legislature to designate the offense as a criminal misdemeanor. A person convicted of the public offense of possession of marijuana will be burdened by social and economic sanctions that are not associated with a conviction of a motor vehicle infraction. While the present laws relating to marijuana do promise some relief from the stigma of a record indicating an arrest and conviction under both the former law and the new marijuana law, nevertheless some handicaps remain. During the two-year period before records are destroyed, a convicted person must live with the public's traditional image that a marijuana possessor is a “dope fiend” or worse. Furthermore, the destruction of records does not automatically erase the negative image of the defendant which may have been created in the eyes of his or her family, friends, employers, and others, such as law enforcement officers, who have knowledge of the defendant's conviction for possession of marijuana.

In discussing the public attitude toward heroin addicts, the California Supreme Court recently stated: “. . . the heroin addict is widely believed to be a self-indulgent social parasite who caters to his uncontrolled craving for the drug at the expense of his family and community obligations; a member of a criminal subculture who feeds his habit by engaging in theft, prostitution, or worse; and a dangerous proselytizer who corrupts and enslaves the young and the weak in order to gratify his own needs.” (People v. Thomas (1977) 19 Cal.3d 630, 640-641, 139 Cal.Rptr. 594, 600, 566 P.2d 228, 234, fn. omitted.) While the public's repulsion toward heroin addicts is no doubt much greater than that displayed with respect to marijuana users, there are still many in our society who harbor similar feelings toward both. While these attitudes may be changing, as is evidenced by the passage of Health and Safety Code section 11357, subdivision (b), it must be recognized that possession of any amount of marijuana will continue to be cause for social ostracism and disapprobation among many people in our society. The Legislature was no doubt aware of the feelings of this segment of the population when it refused to completely decriminalize simple possession of small amounts of marijuana and classified the offense as a misdemeanor. By continuing to treat marijuana possession as a criminal offense, the Legislature must surely be deemed to have intended that all of the safe-guards applicable to a criminal prosecution, including the right to jury trial and court-appointed counsel, should also continue.

The prosecution and trial of a marijuana possession case may also involve significant legal issues not generally present in noncriminal cases such as those resulting from simple traffic violations. For example, marijuana possession cases quite frequently present difficult search and seizure issues not encountered in most minor offense situations. As one commentator has noted: “There may be justification other than linguistic gamesmanship for treating these offenses as misdemeanors, rather than infractions, despite their light penalty. The appointment of counsel at least insures that some attention will be paid to the circumstances under which the marijuana was seized. If defendants were not entitled to appointment of counsel, it is unlikely that they would ever raise Fourth Amendment objections in marijuana possession cases, and the limitations which the constitution imposes upon police searches could quickly become a dead letter in marijuana possession cases precisely the kind of cases where the protection may be needed most.” (Uelman, California's New Marijuana Law: A Sailing Guide for Unchartered Waters (1976) 51 State Bar J. 27, p. 78; cited hereinafter as “Uelman”.)

Furthermore, the pre-trial investigation and trial of a marijuana possession case may occasion questioning and investigation which could lead to the defendant being charged with other offenses with significantly greater penalties, including those involving the transportation and sale of marijuana and other drugs.9 To deprive an indigent of the right to court-appointed counsel under these circumstances is to invite the possibility that law enforcement officials and prosecutors will take advantage of the situation to seek incriminating information which is beyond the scope of any investigation pertinent to the simple marijuana possession violation.10

It cannot be questioned that treating this statute as an infraction would be a great aid in “unclogging” the courts. (See fn. 6 of majority opinion; Uelmen, supra, at p. 78.) The denial of the right to jury trial and court-appointed counsel would obviously expedite prosecutions under the new marijuana possession statute before us. While the Legislature was no doubt aware of this possible benefit when it contemplated a change in the marijuana laws, it appears to have chosen to forego such benefit in favor of retaining the criminal nature of the offense by labeling it a misdemeanor.

In closing, it must be emphasized that the rights of an accused to a jury trial and to a court-appointed lawyer are sensitive, important safeguards that should not be dispensed with lightly. Courts should always construe an ambiguous or unclear statute as including these basic rights. We should leave it to the Legislature to enact a marijuana possession statute classified as an infraction in clear and unmistakable language if it wants to take away such basic rights. The Legislature, after a full debate, appears to have expressed its intent not to eliminate these rights by expressly stating that the minor marijuana possession offense before us is a misdemeanor. (See Pen.Code, ss 19c and 19d, fns. 2 and 4, supra.) It is not the function of this court to question the wisdom or propriety of the Legislature's decision. (Estate of Horman's (1971) 5 Cal.3d 62, 77, 95 Cal.Rptr. 433, 485 P.2d 785.)11

I would affirm the judgments of the Appellate Department of the Superior Court requiring the municipal courts to permit those persons charged with a violation of Health and Safety Code section 11357, subdivision (b) to be represented by the public defender or other court-appointed counsel at public expense and to have the benefit of a jury trial unless that right is affirmatively and intelligently waived.

FOOTNOTES

1.  These are the conclusions in the Loiseau matter. The conclusions in the Tracy matter are identical except that they omit reference to trial by jury.

2.  Health and Safety Code section 11357, subdivision (b), as enacted in 1975 and as now in effect, reads as follows:“(b) Except as authorized by law, every person who possesses not more than one avoirdupois ounce of marijuana, other than concentrated cannabis, is guilty of a misdemeanor and shall be punished by a fine of not more than one hundred dollars ($100). Notwithstanding other provisions of law, if such person has been previously convicted three or more times of an offense described in this subdivision during the two-year period immediately preceding the date of commission of the violation to be charged, the previous convictions shall also be charged in the accusatory pleading and, if found to be true by the jury upon a jury trial or by the court upon a court trial or if admitted by the person, the provisions of Sections 1000.1 and 1000.2 of the Penal Code shall be applicable to him, and the court shall divert and refer him for education, treatment, or rehabilitation, without a court hearing or determination or the concurrence of the district attorney, to an appropriate community program which will accept him. If the person is so diverted and referred he shall not be subject to the fine specified in this subdivision. If no community program will accept him, the person shall be subject to the fine specified in this subdivision. In any case in which a person is arrested for a violation of this subdivision and does not demand to be taken before a magistrate, such person shall be released by the arresting officer upon presentation of satisfactory evidence of identity and giving his written promise to appear in court, as provided in Section 853.6 of the Penal Code, and shall not be subjected to booking.”

3.  Taylor v. Reynolds, 92 Cal. 573, 28 P. 688, relied upon by petitioners was decided under this statute (see p. 575, 28 P. 688) before the amendment. Consequently, it no longer states the law.

4.  Article I, section 7, of the California Constitution (now Art. I, s 16) did not require a jury trial of petty offenses since it only guaranteed the right to trial by jury “as it existed at common law at the time the Constitution was adopted. . . . ” (People v. One 1941 Chevrolet Coupe, 37 Cal.2d 283, 286-287, 231 P.2d 832, 835.)

5.  Boykin v. Alabama (1969) 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274; In re Tahl (1969) 1 Cal.3d 122, 81 Cal.Rptr. 577, 460 P.2d 449.

6.  See California Legislature Senate Select Committee on Control of Marijuana, Final Report, May 1974, page 5, where the committee concludes: “18. The great number of marijuana possession arrests each year clog and overload the criminal justice system.”

1.  See Article I, section 16 of the California Constitution; Argersinger v. Hamlin (1972) 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530; Baldwin v. New York (1970), 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437; Mills v. Municipal Court (1973), 10 Cal.3d 288, at page 298, footnote 8, and page 302, footnote 13, 110 Cal.Rptr. 329, 515 P.2d 273; People v. Oppenheimer (1974), 42 Cal.App.3d Supplement 4, 116 Cal.Rptr. 795.

2.  Penal Code section 17, subdivision (a) reads as follows:“A felony is a crime which is punishable with death or by imprisonment in the state prison. Every other crime or public offense is a misdemeanor except those offenses that are classified as infractions.”Penal Code section 19c reads as follows:“An infraction is not punishable by imprisonment. A person charged with an infraction shall not be entitled to a trial by jury. A person charged with an infraction shall not be entitled to have the public defender or other counsel appointed at public expense to represent him unless he is arrested and not released on his written promise to appear, his own recognizance, or a deposit of bail.”

3.  See footnote 2 of the majority opinion setting forth Health and Safety Code section 11357, subdivision (b).

4.  See Penal Code section 19c (fn. 2, supra ); compare Penal Code section 19d, which provides as follows:“Except as otherwise provided by law, all provisions of law relating to misdemeanors shall apply to infractions, including but not limited to powers of peace officers, jurisdiction of courts, periods for commencing action and for bringing a case to trial and burden of proof.”

5.  See Assembly Bill No. 1118 (1968 Reg. Sess.), enacted as Statutes 1968, chapter 1192. Vehicle Code section 40000 was modified (Stats.1968, ch. 1192, s 10.5, p. 2261) along with the Penal Code changes to provide that such minor traffic offenses as improper turning, stopping, parking and equipment violations were to be classified as infractions. Vehicle Code section 40000 has since been repealed (Stats.1971, ch. 1178, s 2, p. 2245, operative May 3, 1972); its subject matter is now covered by Vehicle Code section 40000.1 et seq.

6.  Judicial Council of California Annual Report to the Governor and the Legislature (1967) A System for Classifying Minor Traffic Violations as Noncriminal Traffic Infractions, Part 1, chapter 1, page 13 (cited hereinafter as “1967 Judicial Council Report”).

7.  Model Penal Code, section 1.05, comment at pages 8-9 (Tent. Draft No. 2, 1954).

8.  The Final Report discusses the problem of court congestion in connection with its recommendation for a change in the marijuana law, but does not mention anything about taking away the right to a jury trial or a court-appointed lawyer. (Final Report of the Senate Select Committee on Control of Marijuana (May, 1974) pp. 4-5.)

9.  The presence of counsel could insure that the following rights of the defendant are protected:A person arrested for possessing less than one ounce of marijuana cannot be taken into custody and booked by the arresting officer and must be released if that person (1) presents satisfactory evidence of identity and (2) gives written promise to appear in court. (Pen.Code, s 853.6.) An arresting officer must give the person arrested his “Miranda ” rights (Miranda v. Arizona (1966) 384 U.S. 436, 479, 86 S.Ct. 1602, 16 L.Ed.2d 694) before that person can be properly questioned. The “search” is limited to a pat-down weapons search and then only after a showing of specific facts and circumstances giving the officer reasonable grounds to believe that such weapons are present. (See People v. Longwill (1975) 14 Cal.3d 943, 123 Cal.Rptr. 297, 538 P.2d 753; People v. Superior Court (1972) 7 Cal.3d 186, 199-208, 101 Cal.Rptr. 837, 496 P.2d 1205. If the person accused is not immediately released because he has a “prior” minor marijuana conviction or fails to properly identify himself or sign the promise to appear, he must be taken before a magistrate without unnecessary delay. (See Pen.Code, s 853.6.) If the accused then cannot, within a reasonable time and with aid of a telephone call, post bail or obtain an “own recognizance” release, he can be jailed and subjected to the normal booking search. (Cal.Search and Seizure Practice (2d ed. 1977 Cont.Ed.Bar) s 4.9, pp. 137-139.)

10.  One may argue that to permit an indigent to have a public defender represent him on a charge for which there can be no more than a $100 fine would result in discrimination as to those persons who are accused of the crime who do not qualify for the services of a public defender. This problem is not one that is limited to violations of Health and Safety Code section 11357, subdivision (b), and is beyond the scope of this dissent.

11.  Should the Legislature again decide to review the marijuana laws, it is suggested that they give some further thought to the definition of “marijuana,” which is currently defined in Health and Safety Code section 11018 as “cannabis sativa L.” It has been pointed out that there are at least three different species of the marijuana plant: cannabis sativa L., cannabis ruderalis, and cannabis indica. (Fullerton & Kurzman, The Identification and Misidentification of Marijuana (Fall 1974) 3 Contemp. Drug Prob. Q 291-344; Breecher, Licit and Illicit Drugs (1972) p. 443; but see People v. Van Alstyn (1975) 46 Cal.App.3d 900, 909-917, 121 Cal.Rptr. 363, holding that the term “cannabis sativa L” as used in Health & Saf.Code, s 11018 must be construed to include all plants popularly known as marijuana which contain the toxic agent THC.) For an excellent discussion of the many questions raised by the new marijuana law, see Uelmen, supra.

POTTER, Associate Justice.

ALLPORT, Acting P. J., concurs.

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