BILL ANALYSIS
SB 791
Page 1
Date of Hearing: June 26, 2001
Counsel: Alice Michel
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
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
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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
11357(c).]
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
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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
safety."
2)This Bill Will Save the Courts and the Counties Both Time and
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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
argument.
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
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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
treatment.
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
judgment.
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
statute.
REGISTERED SUPPORT / OPPOSITION :
Support
California Council of Police and Sheriffs
Judicial Council of California
Los Angeles District Attorney's Office
National Organization for the Reform of Marijuana Laws
Opposition
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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