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SR-09-23-1980-5CCA:SSS:se Council Meeting 09/09/80 Santa Monica, STAFF REPORT TO: Mayor and City Council FROM: City Attorney SUBJECT: Report regarding proposed amendment to Municipal Code Section 4204{a), Prohibiting Drinking Upon Public Property INTRODUCTT_ON This report recommends that Santa Monica Municipal Code Section 4204(a) be amended to reduce the offense from a misdemeanor to an infraction, with a reservation of the :misdemeanor-=penalty for repeat."offenders. STATEMENT OF "i'HE PROBLEM Section 4204 (, a) of the Santa P^.onica Municipal Code t® 5~Pa2~ 3 t9~0 prohibits drinking of alcoholic beverages upon public property. This offense is presently classified as a misdemeanor with a maximum penalty of six months imprisonment, a $500.00 fine, or both. Thus, all defendants charged with Section 4204(a) violations are entitled to appointed co~insel and to a trial by jury. The City prosecutes approximately 300 to 400 cases per month during the summer, and about 200 to 300 cases per month during the rest of the year. Persons convicted of drinking in public are typically fined between $20.00 and $40.00; imprisonment is almost never imposed. SEP 2 3 t~u~ 1l~ CEP 9 198 California ~~ ~A®® Defense attorneys are increasingly demanding jury trials in Section 4204 (a) cases. This is causing a sub- stantial burden and expense on Citv staff and the Muni- cipal Court. Thus, we recommend that Section 4204{a) be reduced front a misdemeanor to an infraction, except for repeat offenders. If this were done, a defendant would have no right to demand a trial by jury or receive appointed counsel unless he was arrested and not released prior to trial. The cases could then be handled in a summary fashion in the same manner as routine 'lehicle Code violations. The Chief of Police and Judges A2inter and Thomas of the Municipal Court concur in this recommendation,-and agree that its implementa- tion would produce more efficient administration of justice. ANALYSIS OF ISSUES I. CA*S A DEFENDANT CHAR.GFD r..+?I `^H AN INFRACTION OTHER THAN VEHICLE CODE INFRACTIONS BF DENIED THE R.If>Hm-TO A JURY°'TRIAL? Yes. California renal Code Section 19 (c) provides that those persons charged with infractions are not entitled to a trial by'jury as a matter of right. Section 19 (c) defines infractions as those offenses not punishable by imprisonment, and states: "An infraction is not punishable by immprisonment. A person charged with an infraction shall not be entitled to a trial by jury. A person charged with an infraction shall not be entitled to have the. public defender or other counsel -2- appointed at public expense to represent him unless he is arrested and not released on his written promise to appear, his own recognizance, or a deposit of ba:i.l." Further, Penal Cade Section 1042.5 states that. the trial of an infraction shall be by the court. The United States Supreme Court has held that "petty offenses" (i.e., those not resulting in imprisonment., or the possibility of imprison- ment) may be tried without a jury. Baldwin v.-New York, 399 U.S. 66, (1970). II. MAY A PEACE OFFICER PHYSICALLY ARREST AND TAKE Ct?STODY OF A DEFENDANT CHARGF,D WITH AN INFP.ACTION, OTHER TITAN A ~?EHICLE CODE INFRACTION? Yes, Except as otherwise provided by statute, all provisions of law relating to misdemeanors are applicable to infractions. Cal. Penal Code Sec. 19(d). A peace officer may make an arrest for an infraction or misdemeanor whenever he reasonably velieves that a public offense has been committed in his presence. Cal. Penal Code Sec, 836. Under Penal Code Sec, 353.5, if a person is arrested for an offense declared to be an infraction, the person may be released by following the procedures set for the release of persons arrested for misdemeanor violations. The release and non-release provisions for a person charged with an in- fraction closely parallel those governing misdemeanors; the police must offer justification for a non-release of an arrested suspect. Penal Code Sec. 853.6(1), Thus, a peace -3- officer may physically arrest a person who he observes violating Sec. 4204(a), misdemeanor nr infraction, and if justified by statute, may detain the suspect for a reason- able period of time until he can be brought before a magistrate. III. WHAT CAN BE DONE TO DEAL WITH REPEAT OFFED7DERS IF SECTION 4204(a) IS REDUCED TO AN INFRACTION? It is recommended that a provision similar to California Vehicle Code Section 40000.28 be incorporated into any amended version of Section 4204(a). This section allows a defendant convicted of three or more infractions within the past twelve months to be charged with a misde- meanor for the fourth offense, and thus subjected to the possibility of incarceration as well as a fine. ht is further recpmmended that the maximum possible fine be reduced from $500.00 to $100.00. The local judges all treat Section 4204 (a} violations as infractions when it comes to the matter of sentence, usually fining in the $20.00 to $40.00 range. Thus, no loss of revenue will occur should the fine be lowered to $100.00, which amount seems more in keeping with the seriousness of the offense and traditional notions of fairness in the handling of infractions. It appears that the fine could, however, legally be left at $500.00 and no jury trial would be mandated. -4- ALTERNATIVES The City Council may direct the City Attorney to prepare an ordinance amending Municipal Code Section 42.04(a) to reduce the offense to an infraction. The Council may further provide that repeated violations may be prosecuted. as misdemeanors; may consider reducing the fine from its present $500.00. Alternatively, the Council may take no action; the offense will continue to be prosecuted as a misdemeanor. RrCnMMENDATION It is respectfully recommended that the Citv Council direct the City Attorney to prepare an ordinance amending Seciton 4204(a) of the Municipal Code to reduce the offense from a misdemeanor to an infraction, punishable by a maximum fine of $100.00 provided that a fourth offense within a twelve month period shall be punishable as a misdemeanor. Prepared by Stephen Shane Stark, Acting City Attorney Charles E. Horan, Chief DetSuty, Criminal Division -5- PROPOSED ANLE'NDMENT Section 4204(a): DRINKING UPON PIJBLZC PROPERTY No person shall drink any malt, spiritous or vinous liquor containing more than one-half of one percent alcohol by volume upon any public street, alleyway, sidwalk, or parkway, or in any public buildings, public lavatories, auto park, public park, beach, or lobby or entranceway to any building within the City; provided that this section shall not apply to public property occupied by private persons under lease, permit, or license from the City when such lease, permit or license permits the sale and consumption of such beverages. Any person violating this Section shall be guilty of an infraction. Anv person convicted of an infraction under the provisions of this Section shall be punishable by a fine of not more than"One-Hundred Dollars (S100.00). Nothwithstanding the above provisions relating to punishment for violatinn of this Section, if a defendant has been convicted of three or more violations of this Section within the twelve month period immediately preceding the commission of the offense and such prior convictions are pleaded and proven by the prosecution, or are admitted by the defendant, then the violation of this section shall be a misdemeanor. For purposes of_ this Section, a bail forfeiaure shall be deemed to be a conviction of the offense charged.