BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair S
2009-2010 Regular Session B
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SB 1449 (Leno) 9
As Amended April 5, 2010
Hearing date: April 20, 2010
Health & Safety and Vehicle Codes
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POSSESSION OF NO MORE THAN AN OUNCE OF MARIJUANA
HISTORY
Source: Author
Prior Legislation: SB 797 (Romero) - 2006, died on the Assembly
Floor
SB131 (Sher) - 2003-04, died on Assembly Floor
SB 791 (McPherson) - 2002, died on Assembly Floor
Support: Judicial Council of California; California District
Attorneys Association; California Attorneys for
Criminal Justice; National Organization for the Reform
of Marijuana Laws - California
Opposition: California Narcotics Officers
Association; California Peace Officers Association;
California Police Chiefs Association
KEY ISSUE
A MISDEMEANOR IS DEFINED AS A CRIME FOR WHICH THE MAXIMUM JAIL TERM
IS ONE YEAR.
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AN INFRACTION IS A CRIME THAT CANNOT BE PUNISHED BY IMPRISONMENT.
SHOULD THE EXISTING OFFENSE OF POSSESSION OF NOT MORE THAN ONE OUNCE
(28.5 GRAMS) OF MARIJUANA - CURRENTLY DESCRIBED AS A MISDEMEANOR FOR
WHICH THE MAXIMUM FINE IS $100 AND FOR WHICH INCARCERATION IS
PROHIBITED - BE DESCRIBED AS AN INFRACTION?
PURPOSE
The purpose of this bill is to specifically define possession of
not more than one ounce of marijuana as an infraction, an
offense that under existing law is only punishable by a fine of
up to $100, and not jail time.
Existing law provides that possession of not more than 28.5
grams of marijuana is a misdemeanor, punishable by no more
than a maximum fine of $100, without the possibility of
imprisonment. (Health & Saf. Code 11357.)
Existing law provides that possession of not more than 28.5
grams of marijuana by a person driving a vehicle is a
misdemeanor, punishable by no more than a maximum fine of $100,
without the possibility of imprisonment. (Veh. Code 23222.)
Existing law provides that an infraction is not
punishable by imprisonment. (Pen. Code 19.6.)
Existing law provides that a person charged with an
infraction is not entitled to a trial by jury or a public
defender or other counsel appointed to represent him or her
at public expense. (Pen. Code 19.6.)
Existing law provides: "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." (Pen. Code 19.7.)
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This bill explicitly defines possession of not more than 28.5
grams of marijuana, other than concentrated cannabis, as an
infraction.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
The severe prison overcrowding problem California has
experienced for the last several years has not been solved. In
December of 2006 plaintiffs in two federal lawsuits against the
Department of Corrections and Rehabilitation sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
federal three-judge panel issued an order requiring the state to
reduce its inmate population to 137.5 percent of design capacity
-- a reduction of roughly 40,000 inmates -- within two years.
In a prior, related 184-page Opinion and Order dated August 4,
2009, that court stated in part:
"California's correctional system is in a tailspin,"
the state's independent oversight agency has reported.
. . . (Jan. 2007 Little Hoover Commission Report,
"Solving California's Corrections Crisis: Time Is
Running Out"). Tough-on-crime politics have increased
the population of California's prisons dramatically
while making necessary reforms impossible. . . . As a
result, the state's prisons have become places "of
extreme peril to the safety of persons" they house,
(Governor Schwarzenegger's Oct. 4, 2006 Prison
Overcrowding State of Emergency Declaration), while
contributing little to the safety of California's
residents, California "spends more on corrections
than most countries in the world," but the state
"reaps fewer public safety benefits." . . . .
Although California's existing prison system serves
neither the public nor the inmates well, the state has
for years been unable or unwilling to implement the
reforms necessary to reverse its continuing
deterioration. (Some citations omitted.)
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. . .
The massive 750% increase in the California prison
population since the mid-1970s is the result of
political decisions made over three decades, including
the shift to inflexible determinate sentencing and the
passage of harsh mandatory minimum and three-strikes
laws, as well as the state's counterproductive parole
system. Unfortunately, as California's prison
population has grown, California's political
decision-makers have failed to provide the resources
and facilities required to meet the additional need
for space and for other necessities of prison
existence. Likewise, although state-appointed experts
have repeatedly provided numerous methods by which the
state could safely reduce its prison population, their
recommendations have been ignored, underfunded, or
postponed indefinitely. The convergence of
tough-on-crime policies and an unwillingness to expend
the necessary funds to support the population growth
has brought California's prisons to the breaking
point. The state of emergency declared by Governor
Schwarzenegger almost three years ago continues to
this day, California's prisons remain severely
overcrowded, and inmates in the California prison
system continue to languish without constitutionally
adequate medical and mental health care.<1>
The court stayed implementation of its January 12, 2010, ruling
pending the state's appeal of the decision to the U.S. Supreme
Court. That appeal, and the final outcome of this litigation,
is not anticipated until later this year or 2011.
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<1> Three Judge Court Opinion and Order, Coleman v.
Schwarzenegger, Plata v. Schwarzenegger, in the United States
District Courts for the Eastern District of California and the
Northern District of California United States District Court
composed of three judges pursuant to Section 2284, Title 28
United States Code (August 4, 2009).
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This bill does not appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
1. Need for This Bill
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The author states:
This bill reclassifies the possession of small amounts
of marijuana as an infraction, rather than a
misdemeanor, thereby bringing the classification of
the offense into alignment with the penalty. This
reclassification will allow prosecutors to expedite
hearings and free up much-needed court resources for
more serious offenses.
The penalty for possession of less than an ounce of
marijuana is a fine of $100, with no jail time. If
the penalty is $100, with no jail time, that is an
infraction. That is not a misdemeanor.
Marijuana possession has a unique status under current
law, as it is the only misdemeanor that is not
punishable by any jail time. Serious unintended
consequences have surfaced as a result of this
mischaracterization. As the number of misdemeanor
marijuana possession arrests have surged in recent
years, reaching 61,388 in 2008, the burden placed on
the courts by these low level offenses are just too
much to bear at a time when resources are shrinking
and caseloads are growing. Defendants may demand en
entire jury trial - including the costs of jury
selection, defense, and court time - for a penalty of
only $100.
Keeping this misclassification in the Penal Code lacks
common sense, especially in light of the fact that
minor marijuana offenses can be completely expunged
from the criminal record just two years after
conviction.
The Judicial Council recognizes that the existing
misdemeanor classification wastes scarce judicial
resources. In the current budget crisis, this is
something we cannot do.
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2. Issues and Problems Arising Under Existing Law
Because possession of no more than an ounce of marijuana is
classified as a misdemeanor, a defendant is entitled to a jury
trial. Indigent defendants are entitled to an attorney at state
expense. A jury trial for any drug trial can be particularly
expensive and time-consuming. Jury selection in a drug trial
may be protracted, as many jurors have used marijuana
themselves, have family members who use marijuana, or have
family members who have been prosecuted for marijuana offenses.
Many jurors have particularly deep-seated opinions about drugs
that would prevent them from being impartial. Thus, simply
choosing a jury in a marijuana possession case can occupy a
courtroom, a prosecutor and a judge for many days.
Under this bill, the offender will no longer have a right to a
jury trial or a court-appointed attorney. Defendants would
still be entitled to a trial in front of a judge.
3. Support Position of Judicial Council
The Judicial Council of California argues in support:
The Judicial Council supports SB 1449, which
reclassifies from a misdemeanor to an infraction
possession of not more than 28.5 grams of marijuana.
The Judicial Council supports SB 1449 to correct the
inconsistency between the classification and penalty
for the possession of not more than 28.5 grams of
marijuana.
Though classified as a misdemeanor, conviction of
marijuana possession subjects a defendant to no
greater punishment than that associated with being
found guilty of an infraction. Jail time cannot be
imposed, nor can the penalty exceed $100. Normally,
the Judicial Council does not take a position on
questions of punishment. In this case, however, the
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offense is an infraction in everything but name. This
mischaracterization comes at too great a cost for the
courts at a time when resources are shrinking and
caseload is growing. Given the comparatively light
consequences of the punishment and the courts' limited
resources, the council believes that appointment of
counsel and jury trial should be reserved for
defendants who are facing loss of life, liberty, or
property greater than $100.
SHOULD POSSESSION OF NO MORE THAN AN OUNCE OF MARIJUANA - A
CRIME FOR WHICH A JAIL TERM MAY NOT BE IMPOSED - BE
EXPLICITLY DEFINED AS AN INFRACTION?
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