SUNDANCE v. PEOPLE

Reset A A Font size: Print

Court of Appeal, Second District, Division 4, California.

Robert SUNDANCE, et al., Plaintiffs and Appellants, v. MUNICIPAL COURT OF the LOS ANGELES JUDICIAL DISTRICT, et al., Respondents. The PEOPLE, Real Party in Interest.

Civ. 54634.

Decided: March 30, 1983

Center for Law in the Public Interest and Public Justice Foundation, Timothy B. Flynn, Pacific Palasades, Carlyle W. Hall, Jr., Lucas Guttentag, Los Angeles, Joel R. Reynolds, Riverside, Fredric D. Woocher and Bruce Williamson, Los Angeles, for plaintiffs and appellants. Burt Pines and Ira Reiner, City Atty., James H. Pearson, Senior Asst. City Atty., and Denise M. Beaudry, Deputy City Atty., for respondent City of Los Angeles. John H. Larson, County Counsel, and Philip S. Miller, Deputy County Counsel, Los Angeles, for respondent Municipal Court. No appearance for real party in interest.

This is an appeal by parties who filed a class action and taxpayer action seeking declaratory and injunctive relief.   Plaintiffs and appellants are four public inebriates and one taxpayer.   The action was brought against various governmental agencies and officers.   These defendants are respondents herein.   The subject matter of the complaint is the manner in which those charged with violation of Penal Code section 647, subdivision (f) (herein 647(f)) are handled and processed.1

 By its judgment filed March 17, 1978, some relief was granted in the trial court.   The governmental agencies have not perfected an appeal from the judgment.2  Many aspects of the requested relief were not granted by the trial court.   Appellants argue on appeal that they are entitled to relief beyond that granted.   The standard for review in such a case is that the denial of declaratory relief will not be disturbed unless an abuse of discretion is clearly shown.  (Cutting v. Bryan (1929) 206 Cal. 254, 257, 274 P. 326.)

FACTS

Robert Sundance, Charles Linston Majors, Leroy Wheeler and John Cecil Youngblood are inebriates.   They have repeatedly been arrested and incarcerated in the City of Los Angeles and prosecuted in the County of Los Angeles in instances when the only criminal charge against them was an alleged violation of 647(f).3

In the four years preceding the filing of the action, Sundance averaged 226 days per year in custody as an outgrowth of 80 separate arrests.   In the four years preceding filing of the action, Majors averaged 344 days per year in custody as an outgrowth of 117 separate arrests.   In the four years preceding filing of the action, Youngblood averaged 249 days per year in custody as an outgrowth of 106 separate arrests.   In the four years preceding filing of the action, Wheeler averaged 48 days per year in custody as an outgrowth of 30 separate arrests.

Brent N. Rushforth is a citizen, resident and taxpayer of the City and County of Los Angeles.   His taxes support the system which funds the activities of respondents described herein.

These five parties brought a class action and taxpayer action against the Los Angeles Municipal Court and its presiding judge, the City of Los Angeles and its chief of police and city attorney and against the County of Los Angeles and its sheriff and supervisors.

Agents of the city arrest inebriates, transport them for booking, book them and house them until they are to be taken to court.

The county first assumes responsibility for inebriates by taking them to the court facility.   The county, through its court system, is responsible for arraignment, trial and sentence.   The city prosecutes inebriates.   Once inebriates are sentenced, the county again assumes responsibility for sentenced inebriates.

After a trial lasting almost two months, the court made 65 pages of detailed findings of fact with a total of 139 separate findings.   In its judgment the trial court imposed upon the city certain requirements on incarceration and transportation of those arrested only for 647(f) violation.   As to county defendants, certain standards were imposed concerning the manner in which such persons were detained awaiting arraignment.   In addition, the court imposed certain requirements on all defendants to ensure that the processing of persons charged only with violations of 647(f) would comport with principles of due process.

Finally, the court declared, “(6) Section 647(f) is not unconstitutional on its face or as applied to the class of chronic, homeless, indigent alcoholics.   However, certain alcoholics charged with a violation of Section 647(f) have a defense under the cruel and/or unusual punishment clauses of the state and federal constitutions to the charge if such defendant, on an individual and not class basis, shows by a preponderance of the evidence that by reason of the disease of alcoholism, the defendant is (1) unable to refrain from drinking alcohol to the point where he is able to care for the safety of himself or others, and (2) unable (a) by reason of the disease, or (b) indigency, to refrain from being in public while intoxicated.   The existence of the defense does not detract from the power of the police to arrest or the People to prosecute a violation of Section 647(f) upon ascertaining reasonable cause to do so (which does not include ascertainment of facts pertaining to the defense set forth above).”

CONTENTIONS

Appellants argue that:

A. Enforcement of 647(f) must be enjoined as a violation of the cruel and/or unusual punishment clauses of the federal and state Constitutions because it imposes criminal penalties that are without penological justification.

B. Enforcement of 647(f) must be enjoined as a violation of the due process clauses of the federal and state Constitutions because defendants' enforcement practices coerce guilty pleas and impose punishment without trial.

C. Enforcement of 647(f) must be enjoined as a violation of the cruel and/or unusual punishment clauses of the federal and state Constitutions because it punishes a status and inflicts excessive punishment in an arbitrary, capricious, and discriminatory manner.

D. The conditions of confinement under which defendants transport and incarcerate 647(f) arrestees constitute deliberate indifference to the health and safety of such arrestees in violation of the cruel and/or unusual punishment clauses of the federal and state Constitutions.

E. Enforcement of 647(f) must be enjoined and referral under section 647, subdivision (ff) (herein section 647(ff)) to civil detoxification facilities be mandated as the only effective remedy for the violations inherent in defendants' enforcement practices.

F. Enforcement of 647(f) must be enjoined and referral mandated to prevent actionable waste of public funds.

G. In the absence of an order enjoining the enforcement of 647(f), the superior court erred in failing to provide affirmative injunctive relief sufficient to remedy the numerous constitutional violations resulting from defendants' 647(f) enforcement practices.

DISCUSSION

A. Penological Justification

Appellants urge that enforcement of 647(f) should be enjoined on the grounds that it imposes criminal penalties that are without penological justification and thereby violates the cruel and unusual punishment clause of the federal Constitution (8th Amend.) and the cruel or unusual punishment clause of the state Constitution (art. I, § 17).

In Powell v. Texas (1968) 392 U.S. 514, 88 S.Ct. 2145, 20 L.Ed.2d 1254, the United States Supreme Court declined to declare unconstitutional as violative of the cruel and unusual punishment provision of the 8th Amendment, the public drunkenness statute of Texas.   This result was reached in part because of the inadequacy of the record before the court.   The court observed, “․ In the first place, the record in this case is utterly inadequate to permit the sort of informed and responsible adjudication which alone can support the announcement of an important and wide-ranging new constitutional principle.   We know very little about the circumstances surrounding the drinking bout which resulted in this conviction, or about Leroy Powell's drinking problem, or indeed about alcoholism itself.   The trial hardly reflects the sharp legal and evidentiary clash between fully prepared adversary litigants which is traditionally expected in major constitutional cases.   The State put on only one witness, the arresting officer.   The defense put on three—a policeman who testified to appellant's long history of arrests for public drunkenness, the psychiatrist, and appellant himself.”  (At pp. 521–522, 88 S.Ct. at 2148–2149.)

Appellants argue that the findings and record in this case distinguish it from Powell.   While that may be true, there is another important distinction between Powell and the case under review.   The Texas statute (Tex.Pen.Code, art. 477 (1952)) provided, “Whoever shall get drunk or be found in a state of intoxication in any public place, or at any private house except his own, shall be fined not exceeding one hundred dollars.”  (Powell v. Texas, supra, 392 U.S. 514, 517, 88 S.Ct. 2145, 2146, 20 L.Ed.2d 1254.)   This statute punished the act of being drunk in a public place or private house other than that of the person who was intoxicated.   The California statute, by contrast, imposes criminal punishment upon one who is (1) under the influence, and (2) in a public place and, either (3) is in such a condition that he is unable to exercise care for his own safety or the safety of others or (4) by reason of his being under the influence interferes with or obstructs or prevents the free use of a public street, sidewalk or other public way.

 Appellants rely on Driver v. Hinnant, 356 F.2d 761 (4th Cir.1966).   In Driver, the North Carolina statute (N.C.Gen.Stat. § 14–335) provided, “ ‘If any person shall be found drunk or intoxicated on the public highway, or at any public place or meeting, in any county ․ herein named, he shall be guilty of a misdemeanor, and upon conviction shall be punished as is provided in this section ․’ ”  (At p. 763.)   The court determined that the statute violated the 8th and 14th Amendments to the U.S. Constitution when applied to chronic alcoholics.   As noted above, the California statute does not punish simply the status of being under the influence of alcohol in public.4  It requires, above and beyond such condition, that the person charged be unable to care for his own safety or the safety of others or that the person be obstructing or preventing the use of a public access route.   It is these acts which bring a person under the ambit of 647(f).   It is these additional requirements which distinguish 647(f) from the North Carolina statute in Driver.  (In re Spinks (1967) 253 Cal.App.2d 748, 61 Cal.Rptr. 743.)

In In re Lynch (1972) 8 Cal.3d 410, 105 Cal.Rptr. 217, 503 P.2d 921, the California Supreme Court held that a certain penalty violated the state constitutional provision against cruel or unusual punishment.   In explaining the problem, the court observed,

“Whether a particular punishment is disproportionate to the offense is, of course, a question of degree.   The choice of fitting and proper penalties is not an exact science, but a legislative skill involving an appraisal of the evils to be corrected, the weighing of practical alternatives, consideration of relevant policy factors, and responsiveness to the public will;  in appropriate cases, some leeway for experimentation may also be permissible.   The judiciary, accordingly, should not interfere in this process unless a statute prescribes a penalty ‘out of all proportion to the offense’ (citations), i.e., so severe in relation to the crime as to violate the prohibition against cruel or unusual punishment.”  (At pp. 423–424, 105 Cal.Rptr. 217, 503 P.2d 921.)

 In our view the policy determination as to whether or not to impose criminal sanctions upon one who is under the influence of alcohol but is in a public place and unable to care for his own safety or the safety of others or obstructing a public way is one to be made by the Legislature.  Section 647(f) does not violate the cruel and unusual punishment provision of the federal Constitution.  Section 647(f) does not violate the cruel or unusual punishment provision of the state Constitution.

B. Coerced Pleas and Punishment Without Trial

Appellants urge that the enforcement practices of respondents have created a condition under which guilty pleas are coerced and for this reason enforcement of 647(f) must be enjoined as a violation of due process.

In response to the complaint of appellants and based on the evidence, the trial court afforded relief.   The relief included individual medical screening of each arrestee, monitoring in holding tanks by a medically trained person of those unconscious or in withdrawal, nutritional requirements for arrestees, rest facilities for each arrestee, limiting the time arrestees can be confined in certain tanks and limiting the number of arrestees who can be confined in those tanks, furnishing blood alcohol tests to arrestees who request them, limitations on the use of B-wagons for transportation of arrestees, minimum requirements for confinement of arrestees in holding tanks of arraignment courts, requiring that at the time of arrest evidence be preserved and witnesses noted, requiring that individual waivers be taken upon a plea of guilty, requiring that notice of probable cause detention hearings be communicated to each person being arraigned, requiring that the elements of the offense be communicated to each person being arraigned and requiring that trials for those who plead not guilty be set within five court days of arraignment.

The trial court as a part of declaratory relief afforded to each defendant charged with violation of 647(f) the defense that, “by reason of the disease of alcoholism, the defendant is (1) unable to refrain from drinking alcohol to the point where he is able to care for the safety of himself or others, and (2) unable (a) by reason of the disease, or (b) indigency, to refrain from being in public while intoxicated.”

 Appellants cite statistics which demonstrate that few 647(f) trials have been conducted since the entry of judgment in this case and compliance by respondents with the procedural reforms of the judgment.   That is not germane.   The question we face is whether the judgment of the court, based on the practices it found to exist at the time of trial, was appropriate.   Stated otherwise, based on the then existing conditions, was it an abuse of discretion for the trial court to refrain from enjoining enforcement by respondents of 647(f)?  (Cutting v. Bryan, supra, 206 Cal. 254, 274 P. 326.)

 We believe the judgment was a reasoned response to the evidence presented.   Changes were ordered in areas where the court discerned a problem to be present.   This relief was adequate.   It was not an abuse of discretion for the trial court to refrain from enjoining altogether enforcement of 647(f) by respondents.

We do, however, modify the judgment before us to prohibit the application of section 849, subdivision (b)(2) and Special Order 23 to those arrested under 647(f).5

In 1957 the Legislature added subdivision (b) to section 849 of the Penal Code.  Penal Code section 849, subdivision (b) provides, “Any peace officer may release from custody, instead of taking such person before a magistrate, any person arrested without a warrant whenever:  [¶] ․  [¶] (2) the person arrested was arrested for intoxication only, and no further proceedings are desirable.”   Under section 849.5, those released where no accusatory pleading has been filed are deemed to have been only detained and not arrested.

Section 849, subdivision (b)(2) was adopted by the Legislature at a time when prosecution under the Penal Code was for vagrancy under section 647, subdivision 11, for being a “common drunkard” and prosecution for intoxication in public was under local ordinances.   In In re Newbern (1960) 53 Cal.2d 786, 3 Cal.Rptr. 364, 350 P.2d 116, the Supreme Court held unconstitutionally vague the term “common drunkard”.   The following year the Legislature repealed section 647 as it then read, including subdivision 11, and replaced it with section 647 in the format currently in use.

In People v. Lopez (1963) 59 Cal.2d 653, 30 Cal.Rptr. 813, 381 P.2d 637, the Supreme Court held that by adopting 647(f), the state had occupied the field and prosecution under local ordinance for being intoxicated in public was no longer permissible.

 Viewed in this historical context, it becomes apparent that section 849, subdivision (b)(2) was intended to apply in cases of arrest for and was adopted at a time when there was prosecution for “intoxication only”.   However, section 849, subdivision (b)(2) has remained unchanged by the Legislature even after the definition of the crime has been changed and there is no longer any prosecution for “intoxication only.”

As we have pointed out, arrests for a violation of 647(f) are not ones for “intoxication only.”   There are other elements to the crime defined in 647(f).   Thus, any application of section 849, subdivision (b)(2) to 647(f) arrests is misplaced.   A statutory release procedure applicable to those arrested for intoxication only cannot apply to a person arrested for being (1) under the influence, and (2) in a public place and, either (3) in such a condition that he is unable to exercise care for his safety or the safety of others or (4) by reason of his being under the influence interferes with or obstructs or prevents the free use of a public street, sidewalk or other public way.

Enforcement officers are left, then, with two alternatives for virtually all 647(f) arrestees—referral to section 647(ff) detoxification facilities or criminal processing.   We recognize that in the case before us enforcement of criminal processing under the terms of the judgment (which we uphold in the main) will inevitably result in increased expenditures by the City of Los Angeles and the County of Los Angeles.   Referral of massive numbers of arrestees to civil detoxification facilities under section 647(ff) will require increased expenditures by the County of Los Angeles to establish those facilities.   Solution of this problem is a legislative matter, to be addressed by the respective legislative bodies.

C. Arbitrary Punishment

Appellants urge that enforcement of 647(f) must be enjoined as a violation of the cruel and/or unusual punishment clauses of the federal and state Constitutions because it punishes a status and inflicts excessive punishment in an arbitrary, capricious, and discriminatory manner.

 We reject the notion that enforcement of 647(f) inflicts excessive punishment in an arbitrary, capricious, and discriminatory manner.   The cases cited by appellants in support of their contention are distinguishable.  In re Lynch, supra, 8 Cal.3d 410, 105 Cal.Rptr. 217, 503 P.2d 921, declared unconstitutional a potential life sentence for second conviction for indecent exposure, violation of section 314.  In re Rodriguez (1975) 14 Cal.3d 639, 122 Cal.Rptr. 552, 537 P.2d 384, held a term of imprisonment excessive for lewd conduct, violation of section 288.  In re Foss (1974) 10 Cal.3d 910, 12 Cal.Rptr. 649, 519 P.2d 1073, held unconstitutional a 10-year minimum sentence for a second violation of a narcotics offense, former Health and Safety Code section 11501.

The potential maximum incarceration for a violation of the misdemeanor, 647(f), is six months in the county jail.  (§ 19.)   According to the findings, the vast majority of those arrested are sentenced at time of arraignment.   Of that category, the average sentence in 1970 was 23 to 30 days.   In 1973–1976, the average sentence ranged from 5 to 8 days.   For the two months while this action was in trial, the average sentence was 1.87 days.   Those who plead not guilty and are sentenced later could reasonably expect periods of incarceration three to five times longer, because most of them remained in custody until the date set for trial (typically 21 to 25 days after arraignment).

These statistics do not demonstrate anything “so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.”  (In re Lynch, supra, 8 Cal.3d 410, 424, 105 Cal.Rptr. 217, 503 P.2d 921.)

As we have noted above, 647(f) does not punish status.   It reaches acts.   Additionally, the judgment affords to any arrestee the defense that he or she is unable to refrain from drinking and unable to refrain from being in public.   It follows, therefore, that enforcement of 647(f) does not violate the cruel and/or unusual punishment provisions of the federal and state Constitutions.

D. Indifference

 It is appellants' position that the conditions under which 647(f) arrestees are transported and incarcerated constitute deliberate indifference to the health and safety of the arrestees and thereby violates the cruel and/or unusual punishment clauses of the federal and state Constitutions.   We agree with this concept only in one limited area—the use of B-wagons.

B-wagons are used primarily for purposes of transporting 647(f) arrestees.   B-wagons are step vans with an enclosed steel compartment eight feet long by six feet high by six feet wide for housing prisoners.   There are wooden benches on each side.   The prisoners are loaded through double doors in the rear.   There are no toilet facilities.   Persons arrested when in a comatose or semi-comatose condition are routinely transported in B-wagons.   Prisoners who cannot care for the safety of themselves or others are transported in B-wagons.   Fights between prisoners cause injury to other prisoners.   Prisoners who are ill defecate, urinate and vomit in B-wagons, sometimes on other prisoners.

In the course of the journey from the site of arrest to the jail, prisoners are jostled in the B-wagons.   Because many prisoners are unsteady of gait and have poor balance and coordination, they trip and fall on their way into or out of the B-wagon and while the B-wagon is in transit.   In B-wagons there are no seat belts and arrestees are not handcuffed.   Thievery can and does occur in the B-wagon because some arrestees are passed out while others are not.

The remedy of the trial court was to require that B-wagons be padded, that B-wagons not transport over 10 arrestees at one time and that B-wagons not hold an arrestee for more than 30 minutes before the trip to jail is commenced.

This did not provide sufficient relief based on the record before the trial court.   It was, in our view, an abuse of discretion to fail to enjoin use of B-wagons for transport of 647(f) arrestees as a matter of due process under the federal Constitution.

In Rhem v. Malcolm, 507 F.2d 333 (2d Cir.1974), the court considered conditions under which pretrial detainees were kept at a New York facility, the Tombs.   The argument of the state that because these detainees were not convicted prisoners, the cruel and unusual punishment prohibition of the 8th Amendment did not apply was rejected.   The court stated, “․ Accordingly, we prefer to adopt the approach ․ that a detainee is entitled to protection from cruel and unusual punishment as a matter of due process and, where relevant, equal protection.  [Citations.]”  (At p. 337.)   The court noted, with approval, the comments of the trial judge that, “[t]he demands of equal protection of the laws and of due process prohibit depriving pre-trial detainees of the rights of other citizens to a greater extent than necessary to assure appearance at trial and security of the jail;  and the same constitutional provisions prevent unjustifiable confinement of detainees under worse conditions than convicted prisoners․”  (At p. 336.)

Here, the conditions of pretrial detention of 647(f) arrestees in B-wagons do amount to punishment of the arrestees.  (Bell v. Wolfish (1979) 441 U.S. 520, 535, 99 S.Ct. 1861, 1871, 60 L.Ed.2d 447.)   There is no reasonable relationship between inflicting this condition on 647(f) arrestees and any legitimate governmental goal.   We may, therefore, infer that the purpose of B-wagon transit of 647(f) arrestees is punishment and must be enjoined.6  (At p. 539, 99 S.Ct. at 1874.)

 With this exception, we find no abuse of discretion in the relief afforded by the trial court, which relief covered, inter alia, nutrition, medical supervision and rest for 647(f) arrestees.   By its judgment, the court otherwise adequately addressed the problems presented.

E. Detoxification

Appellant's position is that enforcement of 647(f) must be enjoined and referral under section 647(ff) to civil detoxification facilities must be mandated because this is the only effective remedy for the constitutional violations shown at trial.

Section 647(ff) provides,

“(ff) When a person has violated subdivision (f) of this section, a peace officer, if he is reasonably able to do so, shall place the person, or cause him to be placed, in civil protective custody.   Such person shall be taken to a facility, designated pursuant to Section 5170 of the Welfare and Institutions Code, for the 72-hour treatment and evaluation of inebriates.   A peace officer may place a person in civil protective custody with that kind and degree of force which would be lawful were he effecting an arrest for a misdemeanor without a warrant.   No person who has been placed in civil protective custody shall thereafter be subject to any criminal prosecution or juvenile court proceeding based on the facts giving rise to such placement.   This subdivision shall not apply to the following persons:

“(1) Any person who is under the influence of any drug, or under the combined influence of intoxicating liquor and any drug.

“(2) Any person who a peace officer has probable cause to believe has committed any felony, or who has committed any misdemeanor in addition to subdivision (f) of this section.

“(3) Any person who a peace officer in good faith believes will attempt escape or will be unreasonably difficult for medical personnel to control.”

This section was added in 1971 and affords counties an alternative to criminal prosecution for 647(f) arrestees.  (People v. McNaught (1973) 31 Cal.App.3d 599, 107 Cal.Rptr. 566.)   The County of Los Angeles has one section 647(ff) facility.   It is located near skid row, the general area where most 647(f) arrests in the city take place.

This civil detoxification facility has limited capacity.7  Since it opened in 1974, the Los Angeles Police Department has been referring arrestees to the facility in such numbers that it is filled to its capacity almost all of the time.

Appellate decisions which have considered section 647(ff) have stressed the experimental nature of the program.   In Johnson v. Municipal Court (1977) 70 Cal.App.3d 761, 764–765, 139 Cal.Rptr. 152, the court observed, “Section 647, subdivision (ff) is an experiment in an effort to devise a method of dealing with the problem of alcoholism.   Jailing of inebriates has been recognized as a futile sort of ‘revolving door’ solution.   Doubts as to efficacy of the experimental alternative can be resolved only by trying it․”

In People v. Ambellas (1978) 85 Cal.App.3d Supp. 24, 39–40, 149 Cal.Rptr. 680, the appellate department of the superior court noted, “It may well be that elimination of ‘simple’ 647, subdivision (f) violations from the criminal system and the substitution therefor of detoxification facilities able to accommodate all arrestees would be more effective, more humane and less costly than the present outmoded criminal procedures.   That, however, is a subject for attention of the board of supervisors in its capacity as the legislative and executive body of county government.   The judiciary should not mandate an end to otherwise constitutional criminal procedures because there may be something better which the executive and legislative branches of government have not seen fit to provide.  [¶] ․  [¶] ․ There is much to be said for the value of the experimental program.   The widespread nature of the evil of alcoholism should be attacked on all possible fronts.   The detoxification facility is one of them․”

 As we have noted, for the abuses presented, a remedy was fashioned by the trial court.   We do not find that remedy to be a chimera.   The changes forced by the judgment of the trial court together with the modifications concerning section 849, subdivision (b)(2) release and B-wagon transit are an effective remedy for the problems found by the trial court.   There was no abuse of discretion in declining to order referral under section 647(ff) to civil detoxification facilities when the civil detoxification facility provided was already being used to capacity.8

In People v. McNaught, supra, 31 Cal.App.3d 599, 107 Cal.Rptr. 566, the court rejected the contention that because the County of Santa Barbara did not have a civil detoxification facility, there was a denial of equal protection for those arrested in Santa Barbara County for violation of 647(f).   The court observed, “It might be tragic if section 647, subdivision (ff), had the effect contended for by defendant.   While a decision in his favor would not invalidate the section, the result would necessarily be that simple section 647, subdivision (f), arrestees in counties like Santa Barbara must be released.   It is anybody's guess how the Legislature would react to such a holding.   The possibility that the net result would simply be a repeal of section 647, subdivision (ff), cannot be overlooked.”  (At p. 609, 107 Cal.Rptr. 566.)

That same specter is as appropriate today in these times of limitations on all forms of government expenditures as it was when made 10 years ago.

F. Waste of Funds

Appellants urge that the civil detoxification facility is a more cost efficient method of handling the problem created by alcoholics than is handling of alcoholics in the criminal courts.   Indeed, there was evidence that the cost per case of criminal processing was significantly higher than the cost per case for referral to civil detoxification facility.

 In considering whether the expenditure of public funds must be enjoined as waste, however, we must not lose sight of the fact that the funds are being spent for prosecution under 647(f), a criminal statute enacted by the Legislature.   Until the Legislature changes the statute or the statute is declared unconstitutional, respondents have the obligation to enforce 647(f).

The taxpayer action under Code of Civil Procedure section 526a,9 complaining about funds spent on its enforcement is not well founded.

In City of Ceres v. City of Modesto (1969) 274 Cal.App.2d 545, 79 Cal.Rptr. 168, the taxpayer challenge was to a plan to construct a sewage disposal system on land outside the City of Modesto.   In holding that the taxpayer might be able to state a cause of action against the city, the court observed, “Admittedly, the term ‘waste’ as used in section 526a means something more than an alleged mistake by public officials in matters involving the exercise of judgment or wide discretion.   To hold otherwise would invite constant harassment of city and county officers by disgruntled citizens and could seriously hamper our representative form of government at the local level.   Thus, the courts should not take judicial cognizance of disputes which are primarily political in nature, nor should they attempt to enjoin every expenditure which does not meet with a taxpayer's approval.   On the other hand, a court must not close its eyes to wasteful, improvident and completely unnecessary public spending, merely because it is done in the exercise of a lawful power․”  (At p. 555, 79 Cal.Rptr. 168.)

There is no authority for utilization of Code of Civil Procedure section 526a procedures for enjoining enforcement of a valid criminal statute.   We will not go that far.

G. Sufficiency of Relief

As we have set out, with the exception of enjoining as to 647(f) arrestees application of section 849, subdivision (b)(2) and Special Order 23 and the use of B-wagons to transport 647(f) arrestees, the relief of the trial court was adequate and appropriate in response to the facts presented.   Each violation in enforcement practice was addressed by the trial court.   Each constitutional problem was met.   There was no insufficiency in the relief granted.

Appellants, of course, are not precluded from requesting additional relief in the trial court based on evidence derived since the entry of judgment on March 17, 1978.   Action of the trial court in response thereto would be subject to appellate review.

DISPOSITION

The judgment is modified so that respondent City of Los Angeles and its agents are enjoined from using B-wagons for transport of 647(f) arrestees and to delete reference to utilization of section 849, subdivision (b)(2) procedures.   In all other respects, the judgment is affirmed.   The matter is remanded for further proceedings consistent with this opinion.

FOOTNOTES

1.   All references are to the California Penal Code.

2.   Notice of appeal was filed by one of the defendants, but that appeal has been abandoned.

3.   Section 647(f) provides, “Disorderly conduct [¶] Every person who commits any of the following acts is guilty of disorderly conduct, a misdemeanor:  [¶] (f) Who is found in any public place under the influence of intoxicating liquor, any drug, toluene, any substance defined as a poison in Schedule D of Section 4160 of the Business and Professions Code, or any combination of any intoxicating liquor, drug, toluene, or any such poison, in such a condition that he is unable to exercise care for his own safety or the safety of others, or by reason of his being under the influence of intoxicating liquor, any drug, toluene, any substance defined as a poison in Schedule D of Section 4160 of the Business and Professions Code, or any combination of any intoxicating liquor, drug, toluene, or any such poison, interferes with or obstructs or prevents the free use of any street, sidewalk, or other public way.”

4.   Until its amendment in 1961, section 647 punished as a vagrant, “11.   Every common drunkard.”   After In re Newbern (1960) 53 Cal.2d 786, 3 Cal.Rptr. 364, 350 P.2d 116, the section was revised in 1961 to punish as guilty of disorderly conduct a person “who is found in any public place under the influence of intoxicating liquor, or any drug, or the combined influence of intoxicating liquor and any drug, in such a condition that he is unable to exercise care for his own safety or the safety of others, or by reason of his being under the influence of intoxicating liquor, or any drug, or the combined influence of intoxicating liquor and any drug, interferes with or obstructs or prevents the free use of any street, sidewalk, or other public way.”

5.   On July 8, 1977, before the trial commenced below on July 26, 1977, the Los Angeles Police Department issued its Special Order No. 23.   That order provides for release after a minimum of four hours, of an adult who is booked only for violation of 647(f), unless a reason for nonrelease exists.   The reasons for nonrelease are that the arrestee has a want or warrant, he requests that he be taken before a magistrate, the safety of the arrestee or others may be jeopardized by the release or there are specific articulated facts justifying continued detention and/or prosecution.From the implementation of this new policy to the time of judgment, approximately 90 percent of 647(f) arrestees were released pursuant to the policy.Under our analysis it is not necessary to reach claimed defects in Special Order 23 itself, insofar as it requires before release four hours minimum detention without any non-police intervention.

6.   The practical effect of barring use of B-wagons for transit of 647(f) arrestees is that such arrestees will be transported by patrol car or other means.

7.   At its maximum, the facility can accept 20 new referrals each day.   Approximately 10 percent of the persons arrested for 647(f) violations in the skid row area are referred to the facility.

8.   Whether or not to increase the capacity of such facilities to treat inebriates in Los Angeles County is a legislative matter.   If such additional facilities existed, and the police department did not make referrals to them, a separate problem would be presented.  (See Johnson v. Municipal Court, supra, 70 Cal.App.3d 761, 139 Cal.Rptr. 152.)

9.   Code of Civil Procedure section 526a provides, “An action to obtain a judgment, restraining and preventing any illegal expenditure of, waste of, or injury to, the estate, funds, or other property of a county, town, city or city and county of the state, may be maintained against any officer thereof, or any agent, or other person, acting in its behalf, either by a citizen resident therein, or by a corporation, who is assessed for and is liable to pay, or, within one year before the commencement of the action, has paid, a tax therein.   This section does not affect any right of action in favor of a county, city, town, or city and county, or any public officer;  provided, that no injunction shall be granted restraining the offering for sale, sale, or issuance of any municipal bonds for public improvements or public utilities.  [¶] An action brought pursuant to this section to enjoin a public improvement project shall take special precedence over all civil matters on the calendar of the court except those matters to which equal precedence on the calendar is granted by law.”

AMERIAN, Associate Justice.

KINGSLEY, Acting P.J., and WISOT, J.*, concur.