People v. Gonzalez ( 2020 )

Filed 7/7/20
CERTIFIED FOR PUBLICATION
APPELLATE DIVISION OF THE SUPERIOR COURT
STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
THE PEOPLE, ) BR 054679
)
Plaintiff and Respondent, ) Central Trial Court
)
v. ) No. 9CJ00243
)
STEVE P. GONZALEZ, )
)
Defendant and Appellant. ) OPINION
)
Appeal from a Judgment of the Superior Court of Los Angeles County, Central Criminal
Trial Court, Kimberley Baker Guillemet, Judge. Affirmed.
Steven Slavitt, Esq., for Defendant and Appellant.
Michael N. Feuer, City Attorney, City of Los Angeles; Meredith A. McKittrick,
Supervising Deputy City Attorney; and Lisabeth A. Shiner, Deputy City Attorney, for Plaintiff
and Respondent.
* * *
1
INTRODUCTION
We hold here City of Los Angeles provisions which make it a misdemeanor for persons
to establish, or operate, or participate in unlicensed commercial cannabis establishments
(Los Angeles Mun. Code (LAMC), § 104.15, subds. (a)(1) (104.15(a)(1)), (b)(2)
(104.15(b)(2))) are not unconstitutionally vague. Because the crimes constitute public welfare
offenses, we further hold the prosecution is not required to prove the accused either knew the
businesses were unlicensed or had the intent to operate them without a license.
Defendant Steve P. Gonzalez was found guilty in a jury trial of violations of
104.15(a)(1) and 104.15(b)(2) after he was arrested in the unlicensed “Keep ‘Em Lit” cannabis
store for selling its products from the business’s counter.1 The court suspended imposition of
sentence and placed him on probation, and he appeals the judgment. As discussed below, we
affirm.
BACKGROUND
The complaint alleged defendant committed the violations on March 21, 2019, in the
City of Los Angeles (City). It was alleged he violated 104.15(a)(1), making it a misdemeanor
to “establish, operate, or participate as an [e]mployee, contractor, agent or volunteer, in any
unlicensed [c]ommercial [c]annabis [a]ctivity in the City,” and 104.15(b)(2), which provides it
is a misdemeanor for a person to “[p]articipate as an [e]mployee, contractor, agent or volunteer
or in any other capacity in an [u]nlawful [e]stablishment.”
Defendant pleaded not guilty, and moved to dismiss the charges, arguing they violate
due process of law because they are vague on their face. The court denied the motion, finding
104.15(a)(1) and 104.15(b)(2) provide sufficient notice to persons of the prohibited conduct,
and they contain appropriate guidelines to prevent arbitrary and discriminatory enforcement.
On the day trial was to start, the prosecutor argued the court should determine the crimes
are strict liability offenses, not requiring proof of scienter or mental state for a conviction.
Defense counsel contended the offenses are simply “crimes involving the sale of drugs,” and
1
The jury found defendant not guilty of the unpermitted use of land (LAMC, § 12.21,
subd. (a)(1)).
2
such offenses always require knowledge or intent. The court ruled the 104.15(a)(1) and
104.15(b)(2) charges pertain to regulating how a business is being run, and are strict liability
offenses.
At trial, Corey Blake, a management analyst with the City Department of Cannabis
Regulation’s Business and Licensing section, testified the City can issue licenses and temporary
approvals for the operation of retail commercial cannabis sales. “Temporary approval allows
those businesses that have [submitted] an application to go through the vetting process while
they go through the licensing phase.” As of the date of the trial (June 2019), no retail
commercial cannabis sales licenses had been issued, but approximately 300 retailers had
received temporary approval to conduct storefront sales.
To obtain a license or temporary approval, a retailer must submit an online application,
and information concerning the status of the application and whether a license or temporary
approval has been provided is available in a database. Blake searched the database to find out
if a business located at 1345 West Manchester Avenue in the City had received temporary
approval to operate, and determined it had not. He also looked for the name of a retailer called
Keep ‘Em Lit and defendant’s full name (Steve Patrick Gonzalez), and found no temporary
approval had issued. Blake further testified he searched the database under the address, name
of the store, and defendant’s name and did not find any application to operate a retail cannabis
establishment.
City Police Department Salvador Reyes testified he had been an officer for 22 years and
had extensive training and expertise in investigating narcotics and conducting storefront
cannabis sales enforcement. On March 21, 2019, at approximately 4:55 p.m., he participated
with other officers in the execution of a search warrant on the Keep ‘Em Lit cannabis business
in a strip mall at 1345 West Manchester. The location had a green cross sign outside used to
advertise cannabis sales. As he entered, he noted there was a sales lobby with vaping inserts
and glass jars containing green leafy substances resembling cannabis in display cases. One of
the cases had a sign saying “25 cap,” indicating the cannabis was being sold for no more than
3
$25 per gram. The police found a digital scale on a counter, and $2,075 in currency in a cash
drawer.
Defendant was located inside, and $717 in cash and keys opening the store’s doors were
found on his person. All told, $9,357 and approximately 29 pounds of material resembling
cannabis were recovered in executing the warrant. Reyes testified he found video cameras
throughout the business, along with a surveillance monitor next to a money counting machine
and a safe in a back room. He viewed video captured by the cameras, and saw footage of
defendant in the store, shortly prior to when the officers entered.2
Alysa Gonzalez Castaneda, a City Police Department Criminalist, testified she analyzed
green plant material seized from the 1345 West Manchester location. She determined the
material tested positive for cannabis.
After the jury’s verdicts and his sentencing, defendant filed a timely notice of appeal.
DISCUSSION
Due Process
We review the constitutionality of a statute or ordinance on appeal de novo. (In re
Brian J. (2007) 150 Cal. App. 4th 97, 124.) “The starting point of our analysis is ‘the strong
presumption that legislative enactments “must be upheld unless their unconstitutionality
clearly, positively, and unmistakably appears. [Citations.]” [Citation.]’” (Williams v. Garcetti
(1993) 5 Cal. 4th 561, 568.)
Defendant only asserts the ordinances at issue are unconstitutionally vague on their face,
not as applied to his own conduct. Accordingly, we consider solely the provisions themselves,
not their application to the particulars of defendant’s participation in the crimes. (Tobe v. City
of Santa Ana (1995) 9 Cal. 4th 1069, 1084.)
“That no person shall be deprived of life, liberty or property without due process of law
is, of course, a cornerstone of our jurisprudence.” (People v. Superior Court (Caswell) (1988)
2
The video was admitted into evidence, but not transmitted to this court. (See Cal. Rules of
Court, rule 8.870.) According to the prosecutor’s description of the video during closing argument, it
appears to be undisputed the video showed defendant selling cannabis to a person from the counter of
the store.
4
46 Cal. 3d 381, 389.) Due process under the Fourteenth Amendment to the United States
Constitution “require[s] ‘a reasonable degree of certainty in legislation, especially in the
criminal law . . . .’ [Citation.] ‘[A] penal statute [must] define the criminal offense with
sufficient definiteness that ordinary people can understand what conduct is prohibited and in a
manner that does not encourage arbitrary and discriminatory enforcement.’ [Citations.] [¶] It
is established that in order for a criminal statute to satisfy the dictates of due process, two
requirements must be met. First, the provision must be definite enough to provide a standard of
conduct for those whose activities are proscribed. [Citations.] . . . [¶] Second, the statute must
provide definite guidelines for the police in order to prevent arbitrary and discriminatory
enforcement. [Citations.]” (People v. Heitzman (1994) 9 Cal. 4th 189, 199-200; see Grayned v.
City of Rockford (1972) 408 U.S. 104, 108.)3
The provisions were enacted as part of City Ordinance No. 185,343 effective
December 19, 2017. LAMC, section 104.15, subdivisions (a) and (b), provide, in full:
“(a) Prohibitions on [u]nlicensed [c]ommercial [c]annabis [a]ctivity and [c]ertain [m]edical
[m]arijuana [c]ollectives. [⁋] 1. It is unlawful for a [p]erson to establish, operate, or participate
as an [e]mployee, contractor, agent or volunteer, in any unlicensed [c]ommercial [c]annabis
[a]ctivity in the City. [⁋] 2. It is unlawful for a [p]erson to establish, operate or participate in a
medical marijuana collective or cooperative unless in a dwelling unit with three or fewer
qualified patients, persons with identification cards or primary caregivers, or any combination
thereof. [⁋] 3. The prohibitions in [s]ubsections (a)1. and (a)2., include renting, leasing to or
otherwise allowing any unlicensed [c]ommercial [c]annabis [a]ctivity or a medical marijuana
collective or cooperative to occupy or use any building or land. [⁋] (b) Starting on January 1,
2018, it is unlawful to: [⁋] 1. Own or operate an [u]nlawful [e]stablishment; [⁋] 2. Participate
as an [e]mployee, contractor, agent or volunteer or in any other capacity in an [u]nlawful
[e]stablishment; [⁋] 3. Use any portion of any parcel of land as an [u]nlawful [e]stablishment;
3
The California Constitution contains similar protections (Cal. Const., art. I, § 7), but defendant
does not assert any state constitutional violation.
5
or [⁋] 4. Lease, rent to, or otherwise allow an [u]nlawful [e]stablishment to occupy any portion
of parcel of land.”
Terms used are defined with specificity. “‘Unlawful [e]stablishment’ means any
[p]erson engaged in [c]ommercial [c]annabis [a]ctivity if the [p]erson does not have a City
issued [t]emporary [a]pproval or [l]icense.” (LAMC, § 104.01, subd. (a)(29).) “‘License’
means a City license issued under this article.” (LAMC, § 104.01, subd. (a)(14).) “‘Temporary
[a]pproval’ means a [Department of Cannabis Regulation]-issued temporary license that
authorizes an [a]pplicant to engage for a limited period of time in [c]ommercial [c]annabis
[a]ctivity as would be permitted under the privileges of a non-temporary [l]icense of the same
type.” (LAMC, § 104.01, subd. (a)(27).) “‘Commercial [c]annabis [a]ctivity’ includes the
cultivation, possession, manufacture, distribution, processing, storing, laboratory testing,
packaging, labeling, transportation, delivery or sale of [c]annabis or [c]annabis products in the
City . . . .” (LAMC, § 104.01, subd. (a)(7).) “‘Employee’ means a person who works for
compensation and is under the control of an employer. Employee as defined herein includes
seasonal and contract employees.” (LAMC, § 104.01, subd. (a)(13).)
Words not defined by the ordinances have straightforward meanings that are
readily comprehensible. For example, in the present context, “participates” is commonly
understood to mean “to take part [in]” (< http://www.merriam-webster.com/dictionary/
participate >); a “contractor” is “one that contracts to perform work or provide supplies” (ibid.
< /contractor >); “agent” means “one who is authorized to act for or in the place of another”
(ibid. < /agent >); a “volunteer” is “[a] person who works for an organization without being
paid” (< http:// www.oxforddictionaries.com/definition/english/volunteer >; see People v.
Whitlock (2003) 113 Cal. App. 4th 456, 462 [when interpreting a provision, “[t]o ascertain the
common meaning of a word, ‘a court typically looks to dictionaries’”].)
Due to the staggered effective dates of 104.15(a)(1) and 104.15(b)(2), there is a certain
amount of overlap by the ordinances with respect to the outlawed conduct. 104.15(a)(1) applies
to “unlicensed [c]ommercial [c]annabis [a]ctivity,” whereas 104.15(b)(2), starting on January 1,
2018, applies to “an [u]nlawful [e]stablishment.” Such an establishment is defined as “a
6
[p]erson engaged in [c]ommercial [c]annabis [a]ctivity if the [p]erson does not have a City
issued [t]emporary [a]pproval or [l]icense.” (LAMC, § 104.01, subd. (a)(29).) Since
“[t]emporary [a]pproval” is defined as a [Department of Cannabis Regulation]-issued
temporary license” (LAMC, § 104.01, subd. (a)(27)), both 104.15(a)(1) and 104.15(b)(2) apply
to establishments that lack a license.4
The prohibited conduct is plainly stated. Establishing or operating or participating—
whether as an employee or contractor or agent or volunteer—at a cannabis business lacking a
license constitutes a 104.15(a)(1) offense. Participating—as an employee or contractor or agent
or volunteer or in any other capacity—at an unlicensed cannabis business is a 104.15(b)(2)
violation. Simply put, if a commercial cannabis establishment does not have a license, it is
unlawful to engage in any of the provisions’ enumerated activities.
104.15(a)(1) and 104.15(b)(2) thus give a “person of ordinary intelligence a reasonable
opportunity to know what is prohibited, so that he, [she or they] may act accordingly.”
(Grayned v. City of Rockford, supra, 408 U.S. at p. 108.) By setting forth what conduct is
barred with particularity, the statutes also provide clear guidelines to law enforcement,
delineating a standard for the police to determine what activity violates the provisions. (See
Kolender v. Lawson (1983) 461 U.S. 352, 358 [to comport with due process, legislation must
“establish minimal guidelines to govern law enforcement” so as to prevent “a standardless
sweep [that] allows policemen, prosecutors, and juries to pursue their personal predilections”].)
Defendant posits 104.15(a)(1) and 104.15(b)(2) may be vague as applied to hypothetical
situations, asking “would a third party vendor, for example, who delivers marijuana to an
unlawful commercial cannabis business be acting as an agent [or] contractor?” “[W]hat if a
plumber or maid comes to this unlawful establishment and provides services as a plumber or
maid, are they violating this statute?” But, in a facial challenge to a provision, the potential
uncertain applicability of the ordinance in hypothesized scenarios is of no constitutional
concern.
4
An argument could be made that, starting January 1, 2018, only LAMC section 104.15,
subdivision (b) applies to owning, operating, or participating in an unlicensed cannabis business. But,
as the parties have made no such argument, we do not further address the issue.
7
A facial challenge is “‘the most difficult challenge to mount successfully, since the
challenger must establish that no set of circumstances exists under which the [law] would be
valid.’ [Citation.]” (Hatch v. Superior Court (2000) 80 Cal. App. 4th 170, 193, italics omitted.)
In a facial attack, a person “‘“cannot prevail by suggesting that in some future hypothetical
situation constitutional problems may possibly arise as to the particular application of the
[provision].”’ [Citation.]” (Coffman Specialties, Inc. v. Department of Transportation (2009)
176 Cal. App. 4th 1135, 1145. See United States v. Salerno (1987) 481 U.S. 739, 745 [“The fact
that the [statute being reviewed] might operate unconstitutionally under some conceivable set
of circumstances is insufficient to render it wholly invalid, since we have not recognized an
‘overbreadth’ doctrine outside the limited context of the First Amendment”].) Instead, a person
challenging an ordinance must show the “provisions inevitably pose a present total and fatal
conflict with applicable constitutional prohibitions.” (Tobe v. City of Santa Ana, supra, 9
Cal.4th at p. 1084, citations omitted.) Defendant has failed to so demonstrate. The provisions
are unquestionably not vague in all situations, including when a person sells cannabis from the
counter of an unlicensed business.
Defendant cites City of Chicago v. Morales (1999) 527 U.S. 41 (Morales) in support of
his argument that the ordinances are vague. His reliance is misplaced.
The provision in Morales was materially different than the legislation in the case
sub judice. The ordinance provided, in relevant part, “Whenever a police officer observes a
person whom he reasonably believes to be a criminal street gang member loitering in any
public place with one or more other persons, he shall order all such persons to disperse and
remove themselves from the area. Any person who does not promptly obey such an order is in
violation of this section.” (See id. at p. 47, fn. 2.) With regard to the requirement that the
statute provide guidelines to law enforcement, Morales noted “the principal source of the vast
discretion conferred on the police in this case is the definition of loitering [in the ordinance] as
‘to remain in any one place with no apparent purpose.’” (Id. at p. 61.) Morales found that
allowing the police to ascertain when a person had “no apparent purpose” for remaining in a
place with a gang member ran afoul of due process, because the ordinance “‘provides absolute
8
discretion to police officers to decide what activities constitute loitering.’” (Ibid.) In contrast,
104.15(a)(1) and 104.15(b)(2) do not contain terms that leave it to the unfettered discretion of
law enforcement to decide who should be prosecuted for violating the provisions.
We reach the same conclusion on the vagueness issue as the trial court. Defendant was
not entitled to dismissal based on the provisions being unconstitutional.
Strict Liability
Because the question of whether the provisions amount to strict liability crimes is
based on the legal issue of the interpretation of the ordinances, we exercise de novo review.
(People v. Kurtenbach (2012) 204 Cal. App. 4th 1264, 1276.) To determine whether the
provisions require proof of scienter, “‘our primary task is to determine the [enacting
body’s] intent. [Citations.]’” (In re Carr (1998) 65 Cal. App. 4th 1525, 1530; see Lyles v.
Sangadeo-Patel (2014) 225 Cal. App. 4th 759, 765 [same rules of construction apply to
interpretation of statutes and local ordinances].)
“‘[W]e turn first to the statutory language, since the words the [enacting body] chose are
the best indicators of its intent.’ [Citations.]” (Ibid.) We examine the ordinances’ language to
ascertain if they specify that intent is required to violate its provisions because “[s]trict liability
offenses are denoted where ‘“. . . qualifying words such as knowingly, intentionally, or
fraudulently are omitted from provisions creating the offense . . . .”’ [Citation.]” (People v.
Martin (1989) 211 Cal. App. 3d 699, 713.)
The provisions prohibit activities without specifying intent or knowledge is required.
The ordinances make it unlawful to “establish, operate, or participate . . . in any unlicensed
Commercial Cannabis Activity” (104.15(a)(1)), and to “[p]articipate as an [e]mployee,
contractor, agent or volunteer or in any other capacity in an [u]nlawful [e]stablishment”
(104.15(b)(2)) without requiring a person must know that a cannabis business lacks a license,
and without any need to show an accused intended to operate a business without a license. The
absence of words such as “knowingly,” “intentionally,” or “wilfully” in the statutes indicates a
legislative intent that the offenses described be considered strict liability crimes. (See People v.
Allen (1993) 20 Cal. App. 4th 846, 850; People v. Martin, supra, 211 Cal.App.3d at p. 713.)
9
The lack of a scienter requirement in the text of a provision is not always dispositive of
the question. (In re Jorge M. (2000) 23 Cal. 4th 866, 872 (Jorge M.).) But, it is commonly the
case that, with regard to public welfare offenses, a legislative body will intend guilt can be
proved without proof of any scienter or wrongful intent. (Ibid.) “‘“Such offenses generally are
based upon the violation of statutes which are purely regulatory in nature and involve
widespread injury to the public. [Citation.] ‘Under many statutes enacted for the protection of
the public health and safety, e.g., traffic and food and drug regulations, criminal sanctions are
relied upon even if there is no wrongful intent.’”’ [Citation.]” (In re Jennings (2004) 34
Cal. 4th 254, 267.) Regulation of a specific trade or business by providing for criminal penalties
is the hallmark of a public welfare offense. (See, e.g., id. at pp. 267-268 [selling alcohol to a
minor is a strict liability offense]; People v. Guinn (1983) 149 Cal. App. Supp. 3d 1, 9-10
[selling alcoholic beverages without a valid license held to require no mens rea].)
104.15(a)(1) and 104.15(b)(2) qualify as such offenses. The provisions were enacted as
part of Ordinance No. 185,343 by the City Council on December 19, 2017, “to regulate
commercial cannabis activities in the City” and to establish a licensing scheme for commercial
sales of marijuana. (See LAMC, § 104.00.) Ordinance No. 185,343’s stated purpose was to
allow the City “to issue licenses in an orderly and transparent manner to eligible applicants
according to the requirements of this article and the [r]ules and [r]egulations, and to mitigate
the negative impacts brought by unregulated [c]annabis businesses.” (L.A. Ord. No. 185,343,
§ 1.) The ordinance provides, “Without comprehensive regulations, consumers in the City were
vulnerable to the dangers inherent in ingesting and using a substance that was not subject to
basic rules of safety for ingestible substances. Nor were the businesses penalized for
unscrupulous practices utilized against defenseless consumers. Further, unregulated cannabis
businesses remain a source of danger for unsuspecting neighbors when fires or other
catastrophes take place at those locations.” (LAMC, § 104.00.) The provisions were intended
10
to be an integral part of a comprehensive regulatory scheme involving cannabis establishments
in the City.5
Jorge M. sets forth a list of factors a court considers in ascertaining whether a provision
is a strict liability offense. As we noted in People v. Optimal Global Healing, Inc. (2015) 241
Cal. App. Supp. 4th 1, 13, “In re Jorge M. found consideration of the following factors useful:
‘(1) the legislative history and context; (2) any general provision on mens rea or strict liability
crimes; (3) the severity of the punishment provided for the crime . . . ; (4) the seriousness of
harm to the public that may be expected to follow from the forbidden conduct; (5) the
defendant’s opportunity to ascertain the true facts . . . ; (6) the difficulty prosecutors would
have in proving a mental state for the crime . . . ; [and] (7) the number of prosecutions to be
expected under the statute . . . .’[6] [Citation.]” (See Jorge M., supra, 23 Cal.4th at p. 872.)
(1) With regard to the history of the provisions, 104.15(a)(1) and 104.15(b)(2) were
enacted in 2017 to replace an ordinance adopted by voters of the City of Los Angeles as part of
Proposition D in 2013 to regulate medical cannabis businesses. (See People v. Onesra
Enterprises, Inc. (2018) 24 Cal. App. Supp. 5th 9, 16.)7 Former LAMC section 45.19.6.2 made
it a misdemeanor to “own, establish, operate, use, or permit the establishment or operation of a
[medical marijuana business], or to participate as an employee, contractor, agent or volunteer,
5
Scienter is implied in general statutes making it unlawful to sell narcotics. (See People v.
Corkrean (1984) 152 Cal. App. 3d 35, 38-39.) But, contrary to defendant’s argument, this rule is
inapplicable to 104.15(a)(1) and 104.15(b)(2), because they involve sales and related activity in a
public welfare regulatory context.
6
“‘The fewer the expected prosecutions, the more likely the [L]egislature meant to require the
prosecuting officials to go into the issue of fault.’ [Citation.]” (Jorge M., supra, 23 Cal.4th at p. 873.)
7
The medical cannabis ordinance in Proposition D was repealed by Ordinance No. 185,343
because the California voters in 2016 enacted the Adult Use of Marijuana Act. (The 2016 act provided
that it does not violate California law for a person 21 years of age or older to possess and purchase no
more than specified amounts of cannabis and concentrated cannabis, and that cannabis may be sold at a
retail level with a license.) The City enacted the new provisions to regulate all retail sales of cannabis.
(See People v. Onesra Enterprises, Inc., supra, 24 Cal.App.5th at pp. Supp. 15-Supp. 16.) We grant
the People’s motion on appeal to judicially notice the ordinance enacted by Proposition D and
Ordinance No. 185,343.
11
or in any other manner or capacity in any [medical marijuana business],” or to rent, lease, or
otherwise permit [such a business] to occupy or use a location.8
As with the similarly worded 104.15(a)(1) and 104.15(b)(2) provisions, former LAMC
section 45.19.6.2 contained no express scienter requirement, and we held in People v. Optimal
Global Healing, Inc., supra, 241 Cal.App.4th at page Supp. 13, that it was a strict liability
offense. “Generally, we presume that [a legislative body] is aware of appellate court
decisions.” (City and County of San Francisco v. Strahlendorf (1992) 7 Cal. App. 4th 1911,
1915; accord, Harris v. Capital Growth Investors XIV (1991) 52 Cal. 3d 1142, 1155-1156.) The
enactment of provisions lacking any reference to scienter which govern the same general
subject matter, and use similar language, as an ordinance which was judicially interpreted to be
a strict liability offense indicates 104.15(a)(1) and 104.15(b)(2) were intended to be strict
liability crimes.
(2) California’s general mens rea statute, Penal Code section 20, states, “‘[i]n every
crime or public offense there must exist a union, or joint operation of act and intent, or criminal
negligence.’” (Jorge M., supra, 23 Cal.4th at p. 879.) But, “[t]he interpretive rule embodied in
this statute is by no means inflexible.” (Ibid.) The statute does not apply when the purpose of
laws is to protect public health and the penalties are not substantial. (See ibid.) As discussed
previously, the provisions were intended to safeguard public health, and as we note below, the
penalties provided are comparatively light.
(3) Relatively light penalties are associated with strict liability offenses. (People v.
Simon (1995) 9 Cal. 4th 493, 521.) LAMC section 104.15, subdivision (d), sets forth the
penalties for violations of 104.15(a)(1) and 104.15(b)(2): “Any Person violating this section
shall be guilty of a misdemeanor punishable by a fine of not more than $1,000 or by
imprisonment in the County Jail for a period of not more than six months, or by both a fine and
8
Former LAMC section 45.19.6.3 provided limited immunity from prosecution for the offense
where the business satisfied several criteria, including having been in operation since 2007 and having
previously registered with the City.
12
imprisonment.”9 This punishment is more than that provided for committing an infraction,
which is not punishable by imprisonment (Pen. Code, § 19.6), but far less than that provided for
felonies, which can subject a defendant to years in state prison (Pen. Code, § 17, subd. (a)).
The Court of Appeal has found that a law constituted a strict liability crime despite the crime
being a misdemeanor with a possible sentence of up to one year in jail. (People v. Allen, supra,
20 Cal.App.4th at p. 855 [failure to file state income tax return].) In People v. Optimal Global
Healing, Inc., supra, 241 Cal.App.4th at page Supp. 14, we found six months punishment in jail
and up to a $1,000 fine for a violation of former LAMC section 45.19.6.2 was sufficiently light
to militate against finding an intent to require mens rea, and we find the same here.
(4) As to the seriousness and widespread nature of the harm at issue, we already
alluded to the fact the provisions were enacted “to mitigate the negative impacts brought by
unregulated [c]annabis businesses” (L.A. Ord. No. 185,343, § 1). Ordinance No. 185,343’s
urgency clause vividly spells out the dangers involved: “the proliferation of unauthorized
cannabis businesses, with the attendant crime and negative secondary impacts, poses a current
and immediate threat to the public welfare; that despite aggressive enforcement by the office of
the City Attorney, an unknown number of unauthorized cannabis businesses, including
growers, delivery apps and delivery services, continue to open, close, and reopen within the
City, and the proliferation of these unauthorized businesses has led to increased crime and
negative secondary impacts in neighborhoods, including but not limited to violent crimes,
robberies, the distribution of tainted marijuana, and the diversion of marijuana; . . . .” (L.A.
Ord. No. 185,343, § 3.)
(5) A person can readily ascertain if a cannabis operation is licensed or has a temporary
approval license to operate. The City operates a publicly accessible website where a person
may check if a cannabis store may lawfully operate (https://cannabis.lacity.org/resources/
9
Although not at issue in this case because defendant was convicted of misdemeanor violations,
LAMC section 104.15, subdivision (d), further provides, “A violation of this section by an [e]mployee,
contractor, agent or volunteer, who has no financial interest in the [u]nlawful [e]stablishment, may be
punishable by means of a [civil penalty] citation issued under the City’s Administrative Citation
Enforcement Program.”
13
authorized-retail-businesses). The State of California also has a website where a person can
check to determine if a business has a state license (http://capotcheck.com).10 In
addition, LAMC section 104.11, subdivision (b), provides, “A [l]icense must be prominently
displayed at the [b]usiness [p]remises in a manner that makes it readable from the exterior of
the [b]usiness [p]remises.” A person can check the storefront window and determine if the
business is lawfully operating.
(6) Proving a mental state for the offenses in some situations could be problematic. As
observed by People v. Optimal Global Healing, Inc., supra, 241 Cal.App.4th at page Supp. 14,
with regard to the former LAMC ordinance, “other than by inferring or presuming defendants
knew what they were doing when they [operated an establishment], prosecutors might well
have a difficult time proving defendants knew what they were doing was prohibited.”
(7) As to the number of prosecutions involved, when the trial court was considering the
Jorge M. factors, the prosecutor told the court, “My supervisor just confirmed that last year we
filed 170 cases and we have filed 116 cases to date this year.”11 The court stated it had “no way
of verifying that number,” but concluded that, “As an officer of the court, I presume that [the
prosecutor’s] representations are as accurate as possible to the best of her knowledge.” Indeed,
it was largely due to the “the proliferation of unauthorized cannabis businesses” that the
provisions were enacted as part of an urgency measure (see L.A. Ord. No. 185,343, § 3). There
thus appears to be numerous expected prosecutions involving the provisions.
All seven factors weigh in favor of finding the provisions are strict liability offenses.
There was no error when the trial court found defendant could be convicted without requiring
the prosecution to prove knowledge or intent.
10
A license from a local government entity is needed to obtain a state license. (See, e.g.,
LAMC, § 104.00.) We grant the People’s motion to judicially notice the existence of the City and
California websites.
11
“[T]o date this year” was a reference to the number of cases as of June 27, 2019. Hence, the
numbers were on track to pass the previous year by about 62 cases; approximately a 36.5 percent
increase.
14
DISPOSITION
The judgment is affirmed.
_________________________
Ricciardulli, J.
We concur:
_________________________ _________________________
Kumar, Acting P. J. Richardson, J.
15