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
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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.
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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
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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
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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.
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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
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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.