BILL ANALYSIS                                                                                                                                                                                                    

                                                                  SB 791
                                                                  Page  1

          Date of Hearing:   June 26, 2001
          Counsel:                Alice Michel

                               Carl Washington, Chair

                    SB 791 (McPherson) - As Amended:  May 14, 2001
                       As Proposed to Be Amended in Committee

          SUMMARY  :   Reclassifies the first offense of possession of 28.5  
          grams or less of marijuana from a misdemeanor to an infraction,  
          but maintains the existing penalty.  Creates an alternate  
          misdemeanor/infraction for a second offense.  Changes from three  
          to two the number of previous convictions for marijuana  
          possession needed to qualify for drug diversion.   Specifically,  
           this bill  :   

          1)Provides that every person who possesses 28.5 grams or less of  
            marijuana, other than concentrated cannabis, is guilty of an  
            infraction for a first offense, punishable by a fine of $100  
            or less;

          2)Provides an alternate misdemeanor/infraction for a second  
            possession offense, punishable by a fine of $100 or less; and

          3)Changes from three to two the number of prior convictions for  
            marijuana possession within the preceding two-year period  
            needed to qualify for drug diversion.

           EXISTING LAW  provides that: 

          1)Every person who possesses not more than 28.5 grams of  
            marijuana, other than concentrated cannabis, is guilty of a  
            misdemeanor, punishable only by a fine of not more than $100.   
            [Penal Code Section 11357(b).]

          2)Any person who commits the offense of possession of marijuana  
            and has been convicted three or more times of the same offense  
            within the previous two years shall be eligible for drug  
            diversion.  [Penal Code Section 11357(b).]

          3)If a person is arrested for a violation of this subdivision  
            and does not demand to be taken before a magistrate, such  


                                                                  SB 791
                                                                  Page  2

            person shall be released by the arresting officer upon  
            presentation of satisfactory evidence of identity and given a  
            written promise to appear in court, and shall not be subjected  
            to booking.  [Penal Code Section 11357(b).]

          4)Every person who possesses concentrated cannabis shall be  
            punished by imprisonment in the county jail for not more than  
            one year or a fine of not more than $500, or both, or by  
            imprisonment in state prison.  [Penal Code Section 11357(a).]

          5)Every person who possesses more than 28.5 grams of marijuana,  
            other than concentrated cannabis, shall be punished by  
            imprisonment in the county jail for not more than six months,  
            or by a fine not to exceed $500, or both.  [Penal Code Section  

          6)Every person who possesses 28.5 grams of marijuana or less at  
            a school is guilty of a misdemeanor, punishable by a fine of  
            not more than $500, or imprisonment in the county jail for not  
            more than 10 days, or both.  [Penal Code Section 11357(d).]

          7)Every person under the age of 18 who possesses 28.5 grams of  
            marijuana or less at a school is guilty of a misdemeanor,  
            punishable by a fine not to exceed $250 for a first offense,  
            and a fine not to exceed $500, or commitment to juvenile hall  
            for not more than 10 days, or both, for a second or subsequent  
            offense.  [Penal Code Section 11357(e).]

          8)A person charged with an infraction is not punishable by  
            imprisonment, is not entitled to a jury trial, and is not  
            entitled to have the public defender or other counsel  
            appointed at public expense to represent him or her unless he  
            or she is arrested and not released on his or her written  
            promise to appear, his or her own recognizance, or a deposit  
            of bail.  (Penal Code Section 19.6.)

          9)Except in cases where a different punishment is prescribed by  
            any law of this state, every offense declared to be a  
            misdemeanor is punishable by imprisonment in the county jail  
            not exceeding six months, or by a fine not exceeding $1,000,  
            or both.  (Penal Code Section 19.)

          10) In certain drug cases, a defendant can receive deferred  
            entry of judgment.  Under deferred entry of judgment, the  
            defendant pleads guilty, and is required to complete a drug  


                                                                  SB 791
                                                                  Page  3

            counseling program.  If he or she successfully completes a  
            counseling program and maintains a drug and crime-free period  
            for between 18 months and three years, the court dismisses the  
            charge or charges against the defendant.  (Penal Code Section  
            1000 et seq.)
           FISCAL EFFECT  :  Unknown

           COMMENTS  :  

           1)Author's Statement  .  The author states, "Under current law, an  
            individual charged and convicted with the possession of less  
            than 28.5 grams of marijuana is prosecuted as a misdemeanant.   
            A misdemeanor is usually punishable by a fine or by  
            imprisonment for less than one year.  However, the penalty for  
            a misdemeanor conviction of petty marijuana possession is a  
            maximum fine of $100 without the possibility of time spent in  
            county jail or state prison.  This "pure fine" is consistent  
            with the punishment assigned to an infraction.  Simple  
            possession of marijuana is erroneously classified as a  
            "misdemeanor" when the punishment for the offense is  
            consistent with that of an "infraction".  It is this  
            inconsistency between classification and penalty that this  
            piece of clarifying legislation seeks to correct.

          "This inaccurate and anomalous penalty designation adversely  
            affects the efficiency of California courts.  The charge is  
            confusing to both the district attorney in charge of  
            prosecuting the case and the judge should the case be brought  
            to trial.  Additionally, under a misdemeanor charge, the  
            accused is afforded a trial either by judge or jury.  The  
            length of a simple marijuana trial is typically two to three  
            days.  Upon conviction, the offender is instructed by the  
            courts to pay the $100 fine.  There exists no disincentive for  
            the accused to drain the resources of the state and the courts  
            with a lengthy trial.  According to certain estimates, a jury  
            trial of this type could last up to three days at the tune of  
            thousands of dollars per day.  On top of the time and money  
            dispensed by the state, a jury trial burdens the public by  
            wasting time better spent working to provide for oneself and  
            family than in a jury box deliberating a matter of only minor  
            consequence to the defendant and to California's public  
           2)This Bill Will Save the Courts and the Counties Both Time and  


                                                                 SB 791
                                                                  Page  4

            Money Without Lessening the Punishment for the Possession of  
            Marijuana  .  This bill does not change the penalty for  
            marijuana possession.  It simply changes the classification of  
            the offense.  Existing law is anomalous because it labels the  
            offense a misdemeanor, but only provides for a maximum $100  
            fine, and not jail time, as punishment.  However, because the  
            offense is labeled a misdemeanor, the court has to provide  
            offenders with court-appointed attorneys and provide jury  
            trials.  As stated above, these trials can last days and cost  
            thousands of dollars.  
           Under this bill, the offender will no longer have a right to a  
            jury trial or a court-appointed attorney.  This change in law  
            will likely result in considerable savings.  According to the  
            Judicial Council:  "[G]iven the courts' limited resources,  
            appointment of counsel and jury trial should be reserved for  
            defendants who are facing loss of life, liberty, or property  
            greater than $100." 

          Further, this bill may well facilitate marijuana possession  
            prosecutions.  As explained by the California Council of  
            Police and Sheriffs:  "Because of the public costs associated  
            with trials, intake deputy district attorneys and their  
            supervisors are often likely to drop mere possession cases to  
            free up courtrooms for more serious trials.  The defense bar  
            is well aware of this court system management pressure and  
            often will demand a trial to encourage the district attorney  
            to plea bargain [or drop the charges].  Obviously, the defense  
            bar seeks to better the outcome for their clients."

          3)Opposition to this Bill  .  The California Narcotics Officer's  
            Association opposes this bill stating, "The impact of this  
            reduction will be to enable anyone who has been found to have  
            committed an infraction to evade the treatment requirements of  
            Proposition 36."  The California Peace Officer's Association,  
            and the California Police Chief's Association make the same  

          However, Proposition 36 does not require any defendant to  
            participate in drug treatment; it provides the option for  
            defendants to receive treatment rather than being sentenced as  
            otherwise required by law.  Proposition 36 specifically states  
            that if a defendant refuses drug treatment, he does not  
            qualify.  [Penal Code Section 1210.1(b)(4).]  As a practical  
            matter, it is unlikely that a defendant in a marijuana  


                                                                  SB 791
                                                                  Page  5

            possession case will choose to participate in a drug treatment  
            program instead of paying the $100 fine, particularly since  
            the court can require the defendant to contribute to the costs  
            of the treatment program.  In short, contrary to the  
            opposition's statement, nothing in this bill will allow a  
            defendant to evade the treatment provided by Proposition 36;  
            Proposition 36, by its own terms, allows a defendant to reject  

          In addition, the reclassification of the possession of marijuana  
            from a misdemeanor to an infraction does not appear to affect  
            the application of Proposition 36 to the offense.  Proposition  
            36, as codified in Penal Code Sections 1210 and 1210.1,  
            provides that any person convicted of a nonviolent drug  
            possession offense receive probation and participate in an  
            appropriate drug treatment program as a condition of  
            probation.  The language does not require the person to be  
            convicted of a misdemeanor.  Existing law appears to allow the  
            court to grant probation to a person who is convicted of an  
            infraction.  [Penal Code Section 1203(a).] 

          Finally, a person convicted of first-time marijuana possession  
            qualifies for deferred entry of judgment, whereby the  
            defendant would receive drug counseling.  This bill also  
            lowers the bar so that people with multiple convictions may  
            receive the drug counseling through deferred entry of  

           4)Proposed Amendment  .  Existing law exempts a person charged  
            with this offense from being subjected to booking.  This  
            portion of the law was inadvertently removed when this bill  
            was last amended.  SB 791 should be amended to return the  
            previously existing language concerning booking to the  


          California Council of Police and Sheriffs
          Judicial Council of California
          Los Angeles District Attorney's Office
          National Organization for the Reform of Marijuana Laws


                                                                 SB 791
                                                                  Page  6

          California Narcotics Officers' Association
          California Peace Officers' Association
          California Police Chiefs' Association
          Committee on Moral Concerns

           Analysis Prepared by  :  Alice Michel / PUB. S. / (916) 319-3744