EMILY WHEELER, Petitioner, v. APPELLATE DIVISION OF THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; THE PEOPLE, Real Party in Interest.
B310024
In the Court of Appeal of the State of California, Second Appellate District, Division Three
December 15, 2021
CERTIFIED FOR PUBLICATION.
Erika C. Anzoategui, Alternate Public Defender, Reid S. Honjiyo, Brock Hammond and Alvin Yu Deputy Alternate Public Defenders, for Petitioner.
No appearance for Respondent.
Michael N. Feuer, City Attorney, Meredith A. McKittrick, Supervising Deputy City Attorney, and Hannah M. Barker, Deputy City Attorney, for Real Party in Interest.
Michael N. Feuer, City Attorney (Los Angeles), David J. Michaelson, Chief Assistant City Attorney, Taylor C. Wagniere and Kabir Chopra, Deputy City Attorneys, for the Los Angeles Department of Cannabis Regulation as Amicus Curiae on behalf of Real Party in Interest.
Susana Alcala Wood, City Attorney (Sacramento), for
Best Best & Krieger and Jeffrey V. Dunn for League of California Cities and California State Association of Counties as Amici Curiae on behalf of Real Party in Interest.
Petitioner Emily Wheeler (Wheeler) seeks a writ of mandate directing the appellate division of the Los Angeles County Superior Court to set aside its opinion reversing the trial court‘s dismissal of her criminal case under
We hold that the local ordinances are not preempted by state law. We further hold that the appellate division did not err in concluding that the trial court abused its discretion by dismissing the charges primarily based on Wheeler‘s lack of knowledge or intent, because the ordinances impose strict liability and do not require proof of knowledge or intent.
FACTUAL AND PROCEDURAL HISTORY
Wheeler and her son are the owners of a commercial storefront building in the City of Los Angeles (the City). They leased the storefront to another person. During the lease term, Omar Brown allegedly was selling cannabis illegally from the Wheelers’ property. In June 2019, Wheeler, her son, and Omar Brown were charged with misdemeanor violations of various provisions of the LAMC.1 The charges relevant to this appeal are that Wheeler leased or rented her building to an unlicensed cannabis business in violation of LAMC section
Wheeler moved to dismiss the charges, arguing that the LAMC provisions were unconstitutionally vague, and that the charges should be dismissed in furtherance of justice under
The trial court did not grant Wheeler‘s motion, but on its own motion dismissed the charges against Wheeler pursuant to
The People appealed the dismissal. Citing People v. Gonzalez (2020) 53 Cal.App.5th Supp. 1, 6 (holding that LAMC section 104.15(b)2 does not require proof of mens rea), the appellate division reversed, holding that the trial court‘s “reliance on [Wheeler]‘s lack of knowledge as a mitigating circumstance was improper” given that the ordinances are strict liability offenses. The appellate division further held that the
The appellate division also considered Wheeler‘s argument, raised for the first time on appeal, that the dismissal should be affirmed because the ordinances were preempted by
Wheeler filed a petition for transfer, which our court denied. Wheeler then filed a petition for writ of mandate, which our court also denied. Wheeler then filed a petition for review. The Supreme Court granted the petition and transferred the matter to our court, with directions to vacate the order denying mandate and to issue an order to show cause.
I. Principles of review
Our court‘s prior order denying Wheeler‘s transfer motion was not reviewable. (
Although the procedural route taken by this case is unusual, the matter is properly before us. In Barajas v. Appellate Division of Superior Court (2019) 40 Cal.App.5th 944, as in this case, a criminal defendant filed a petition for writ of mandate seeking to challenge the appellate division‘s order reversing the dismissal of his case, which was denied. The Supreme Court granted review and transferred the matter to the Court of Appeal with directions to vacate the denial and issue an order to show cause. (Id. at p. 950.) The court noted that ” ‘[t]he Supreme Court may order review . . . [¶] . . . [¶] [f]or the purpose of transferring the matter to the Court of Appeal for such proceedings as the Supreme Court may order.’ (
A. Forfeiture
The People contend that the preemption issue is not properly before this court because Wheeler forfeited it by failing to raise it at trial. As the People correctly observe, preemption is a purely legal issue properly raised by demurrer (Wells Fargo Bank, N.A. v. Superior Court (2008) 159 Cal.App.4th 381, 385), so Wheeler could have raised it by demurrer below (Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1091, fn. 10 [“if a statute under which a defendant is charged . . . is invalid, the complaint is subject to demurrer“]). However, as stated in People v. Hamilton (2018) 30 Cal.App.5th 673, 678, footnote 2, when concluding that a claim of federal preemption was not waived by the defendant‘s failure to raise it below, “The People have cited no authority that would allow us to conclude that a criminal defendant waives the ability to argue on appeal that he has been convicted for engaging in conduct that the state has no authority to punish.” (Accord Molina v. Retail Clerks Unions Etc. Benefit Fund (1980) 111 Cal.App.3d 872, 878 [since preemption is purely legal issue not involving disputed facts, it may be raised for the first time on appeal].)
Moreover, the preemption issue has now been fully briefed, both by the parties and by amici curiae. Considerations of judicial economy favor addressing the preemption issue on the merits.
II. State law does not preempt LAMC sections 104.15 and 12.21
A. The LAMC provisions at issue
Section
The ordinance requires all businesses that manufacture, distribute, or sell medicinal and/or adult-use cannabis in the City to have a city-issued license. (LAMC § 104.02.) It requires that the license be “prominently displayed at the Business Premises.” (LAMC § 104.11(b).) The City maintains a website listing all businesses that have a license to sell cannabis, including a map feature allowing the public to search by address to determine whether a business at a particular location has a license.
The ordinance imposes criminal penalties for establishing, operating, or participating in “any unlicensed Commercial Cannabis Activity in the City,” which includes “renting, leasing to or otherwise allowing any unlicensed Commercial Cannabis Activity . . . to occupy or use any building or land.” (LAMC § 104.15(a)1 & (a)3.) The ordinance also provides that “it is unlawful to[ ] [¶] . . . [¶] . . . [l]ease, rent to, or otherwise allow an Unlawful Establishment to occupy any portion of parcel of land.” (LAMC § 104.15(b)4.) “Unlawful Establishment” is defined as a commercial cannabis activity that does not have a city-issued license. (LAMC § 104.01(a)27.) Violations of these provisions are subject to nuisance abatement procedures and to civil penalties of up to $20,000, and are punishable as
Wheeler was also charged with a violation of LAMC section
B. State law regarding commercial cannabis activity
1. MAUCRSA
In 2017, pursuant to a statewide voter initiative, California enacted the Medicinal and Adult-Use Cannabis Regulation and Safety Act (MAUCRSA), which is codified in
MAUCRSA creates a state licensing process for cannabis businesses (
Despite the broad sweep of MAUCRSA, its licensing scheme explicitly contemplates that municipalities may also have their own regulations and licensing requirements for cannabis businesses. Subdivision (f) of
2. UCSA
Although MAUCRSA and previously enacted state laws have, to a large extent, legalized the sale of medicinal and adult-use cannabis, state law also continues to define cannabis as a controlled substance. The California Uniform Controlled Substances Act (UCSA) (
In particular,
3. Nuisance
Finally, the state‘s general nuisance statute,
Having surveyed the local ordinances and state statutes at issue, we turn to preemption. Wheeler contends that the ordinances she was charged with violating are invalid because they are preempted by state law. She argues that the state has occupied the field of imposing penalties for drug crimes, and also that the local provisions duplicate and conflict with state law in that the ordinances impose strict-liability penalties for the same conduct that, under state law, requires proof of knowledge (
“[P]reemption by state law is not lightly presumed.” (Inland Empire, supra, 56 Cal.4th at p. 738.) ” ‘When local government regulates in an area over which it traditionally has exercised control, such as the location of particular land uses, . . . courts will presume, absent a clear indication of preemptive intent from the Legislature, that such regulation is not preempted.’ ” (Id. at p. 743.) Even outside the area of land use, courts are ” ‘reluctant’ ” to infer preemptive intent where there are significant local interests that may differ from one locality to another. (Big Creek Lumber Co. v. City of Santa Cruz (2006) 38 Cal.4th 1139, 1149.) The presumption against preemption is even stronger in cases involving “home rule” or charter cities such as Los Angeles, which have the right to adopt and enforce ordinances that conflict with general state laws on subjects of municipal rather than statewide concern. (O‘Connell v. City of Stockton (2007) 41 Cal.4th 1061, 1075–1076 (O‘Connell); see
In contrast, “local legislation that conflicts with state law is void.” (Inland Empire, supra, 56 Cal.4th at p. 743.) Local legislation has been found to conflict with state law in various ways: if it ” ’ “duplicates, contradicts, or enters an area fully occupied by general law, either expressly or by legislative implication.” ’ ” (Ibid.)
Local legislation ” ’ “duplicates” ’ ” state law when it is ” ’ “coextensive therewith,” ’ ” regulating or prohibiting exactly the same conduct. ( Inland Empire, supra, 56 Cal.4th at p. 743; Sherwin-Williams Co. v. City of Los Angeles (1993) 4 Cal.4th 893, 897.) Local legislation “contradicts” state law when “it is inimical or cannot be reconciled with state law,” such that it is impossible to comply with both. (O‘Connell, supra, 41 Cal.4th at p. 1068; Inland Empire, at p. 743 [“The ‘contradictory and inimical’ form of preemption does not apply unless the ordinance directly requires what the state statute forbids or prohibits what the state enactment demands“].)
Local legislation ” ‘enters an area that is “fully occupied” by general law’ ” either when ” ‘the Legislature has expressly manifested its intent to “fully occupy” the area [citation], or when it has impliedly done so in light of one of the following indicia of intent: “(1) the subject matter has been so fully and completely covered by general law as to clearly indicate clearly that it has become exclusively a matter of state concern; (2) the subject matter has been partially covered by general law couched in such terms as to indicate that a paramount state concern will not tolerate further or additional local action; or (3) the subject matter has been partially covered by general law, and the subject is of such a nature that the adverse effect of a local ordinance on the transient citizens of the state outweighs the possible benefit to the” locality.’ ” (Inland Empire, supra, 56 Cal.4th at p. 743.)
D. Case law applying preemption to local cannabis ordinances
Inland Empire, supra, 56 Cal.4th at page 737, held that state statutes regarding medical marijuana do not preempt a local ban on medical marijuana dispensaries. In reaching this conclusion, the Supreme Court analyzed then-existing state laws, the Compassionate Use Act and the Medical Marijuana Program, which were later amended, reorganized, and incorporated into MAUCRSA. (Assem. Com. on Budget and Fiscal Review, Analysis of Sen. Bill No. 94 (2017–2018 Reg. Sess.) These laws exempted cultivation of medical marijuana by patients and their caregivers from prosecution under state drug laws. (Inland Empire, at p. 738.)
Inland Empire, supra, 56 Cal.4th at page 743, concluded that local zoning and nuisance ordinances which, in effect, banned medical marijuana dispensaries in the City of Riverside were not preempted as ” ’ “duplicative” ’ ” of state law. Although the subject matter of the state medical marijuana statutes and the local ordinances overlapped, they were not ” ‘coextensive.’ ” The state statutes protected medical marijuana users and their caregivers from prosecution under certain state criminal laws including ” ‘drug den’ ” nuisance statutes; the Riverside ordinances, in contrast, defined the use of property for medical marijuana-related activities as a local nuisance, and as a violation of local zoning ordinances. (Id. at pp. 752, 754, 762.) Inland Empire
Other cases have also rejected preemption challenges to local ordinances involving medical marijuana. Conejo Wellness Center, Inc. v. City of Agoura Hills (2013) 214 Cal.App.4th 1543, 1556 to 1557 (Conejo), held that state medical marijuana laws did not preempt local ordinances banning medical marijuana dispensaries, noting that the state statutes were amended to clarify that they “expressly permit[ ] ‘civil and criminal enforcement’ of local ordinances ‘that regulate the location, operation, or establishment of a medical marijuana cooperative or collective.’ ” Similarly, County of Los Angeles v. Hill (2011) 192 Cal.App.4th 861, 868 (Hill), held that local nuisance ordinances restricting the location of medical marijuana dispensaries were not preempted by state statutes providing immunity from prosecution under state ” ‘drug den’ ” nuisance laws to medical marijuana patients and caregivers. Hill concluded that the state laws were not intended to occupy the field of medical marijuana regulation, and the local nuisance ordinances did not duplicate or contradict the state statute providing immunity from state nuisance laws. (Id. at pp. 867–869 [“County‘s constitutional authority to regulate the particular manner and location in which a business may operate [citation] is unaffected by” state law granting immunity from state nuisance statutes]; see Browne v. County of Tehama (2013) 213 Cal.App.4th 704 [local ordinance restricting cultivation of medical marijuana not preempted]; City of Claremont v. Kruse (2009) 177 Cal.App.4th 1153 [local ordinance requiring medical marijuana dispensaries to be licensed, and subjecting unlicensed dispensaries to nuisance penalties, not preempted].)
Inland Empire, Conejo, Hill and similar cases considered only the state‘s “careful and limited forays” into decriminalization and regulation of medical marijuana. (Inland Empire, supra, 56 Cal.4th at p. 762.) In the years since those cases were decided, the state enacted additional legislation, culminating
None of these cases specifically considered whether local ordinances such as LAMC section 104.15, which impose criminal penalties for unlawful commercial cannabis activities, in addition to civil penalties such as fines and nuisance abatement injunctions, are subject to a preemption analysis that is less deferential to local government interests. (See Kirby v. County of Fresno (2015) 242 Cal.App.4th 940, 957 [“the presumption against preemption that applies to local land use regulations does not apply in the area of criminal law“].)
A preemption challenge to local ordinances imposing criminal penalties for drug-related activity was addressed, however, in O‘Connell, where the Supreme Court found that a local ordinance allowing seizure and forfeiture of vehicles used to buy controlled substances was preempted by state law. Provisions of the UCSA also provided for forfeiture of vehicles used in drug crimes, but only for more serious offenses and only upon proof beyond a reasonable doubt, while the local ordinance allowed forfeiture even for misdemeanor possession, and upon proof by a preponderance of the evidence. O‘Connell concluded that the state statute occupied the field of defining and punishing drug-related crimes: “The comprehensive nature of the UCSA in defining drug crimes and specifying penalties (including forfeiture) is so thorough and detailed as to manifest the Legislature‘s intent to preclude local regulation.” (O‘Connell, at p. 1071.) Given the state‘s
In reaching its conclusion, O‘Connell relied on In re Lane (1962) 58 Cal.2d 99, which held that a local ordinance criminalizing nonmarital sexual intercourse was preempted because the state had occupied the field of sex crimes. Lane is one of a line of cases holding that local ordinances imposing harsher penalties for the same conduct covered by state criminal laws, or criminalizing additional conduct in an area where the state has enacted comprehensive criminal laws, are preempted. (See, e.g., In re Portnoy (1942) 21 Cal.2d 237 [local gambling ordinances preempted because they duplicated and conflicted with state law]; Lancaster v. Municipal Court (1972) 6 Cal.3d 805, 808 [city ordinance prohibiting massage by person of opposite sex preempted by state‘s “general scheme for the regulation of the criminal aspects of sexual activity“]; People v. Nguyen (2014) 222 Cal.App.4th 1168 [local ordinance prohibiting sex offenders from entering city parks preempted by comprehensive state laws regulating convicted sex offenders].)
The difference between preemption analysis of local land use and licensing ordinances, and preemption analysis of local ordinances that enter the area of criminal law, is illustrated by Cohen v. Board of Supervisors (1985) 40 Cal.3d 277. Cohen held that state prostitution laws preempted provisions of a local ordinance regulating escort services penalizing ” ‘criminal conduct’ ” between escorts and clients (id. at p. 292), but did not preempt the local ordinance‘s provisions requiring licensing of escort services, which fell within the city‘s power to “regulate businesses conducted within its borders” (id. at p. 296).
Similarly, Malish v. City of San Diego (2000) 84 Cal.App.4th 725, distinguished between permissible land use and business regulations, and local ordinances that are preempted because they impose harsher penalties than state law for the same conduct. Local ordinances defining pawnbrokers as a “police regulated” business and requiring permits, inspection, and recordkeeping, were not preempted. (Id. at pp. 729, 730, 732–733, 736.) But an ordinance allowing revocation of a pawnbroker‘s permit for a single violation of law was preempted by a state law providing that a state pawnbroker license may only be revoked upon proof of a pattern of unlawful conduct, because it imposed a harsher penalty for the same conduct. (Id. at pp. 734–735.)
This distinction between ordinances that enter into the area of criminal law, and those that regulate local land use and business activities, was applied in the context of medical marijuana in Kirby v. County of Fresno, supra, 242 Cal.App.4th 940. Kirby involved a preemption challenge to a local ordinance banning medical marijuana dispensaries and cultivation, and classifying violations of the ordinance as both public nuisances and misdemeanors. (Id. at p. 951.) Kirby held that the aspects of the ordinance that regulated land use were not preempted. (Id. at pp. 947–948.) In contrast, the misdemeanor penalty for medical marijuana cultivation was preempted by “California‘s extensive statutory scheme addressing crimes, defenses and immunities relating to marijuana” (id. at p. 948), which manifested “the Legislature‘s intent to fully occupy the area of criminalization and decriminalization of activity directly related to marijuana” (id. at p. 961). Kirby also held that the local ordinance‘s imposition of misdemeanor penalties for marijuana cultivation was preempted because it contradicted state law providing immunity from prosecution for marijuana cultivation to persons with a valid medical marijuana card. (Ibid.)
There is not, however, a bright line between the local land use, zoning, and nuisance ordinances restricting commercial cannabis activity—which have generally survived preemption challenges—and local criminal penalties for cannabis-related activity such as the one struck down in Kirby. Section 104.15 of the LAMC is an example of a type of criminal law “often referred to as public welfare offenses.” (In re Jorge M. (2000) 23 Cal.4th 866, 872.) Although these statutes impose criminal penalties, they are ” ‘regulatory in nature’ ” and are ” ’ “enacted for the protection of the public health and safety” ’ “; their ” ’ “primary purpose . . . is regulation rather than punishment or correction,” ’ ” so they are ” ’ “not crimes in the orthodox sense.” ’ ” (Ibid.)
Conejo, supra, 214 Cal.App.4th at pages 1546 to 1547 arose in the context of a code enforcement investigation rather than a criminal prosecution, but the ordinances at issue were enforceable both by nuisance abatement processes and by prosecution for a misdemeanor, so the case could have involved criminal as well as civil penalties. Likewise, in Kirby v. County of Fresno, supra, 242 Cal.App.4th at page 961 while drawing a distinction between local land use ordinances—which were not preempted—and local criminal penalties for marijuana cultivation—which were preempted—the court also noted that the “indirect criminal sanction” of a potential misdemeanor prosecution for failing to abate a public nuisance involving the cultivation of medical marijuana was not preempted by state law.
Thus, the central question in this case is whether section 104.15 of the LAMC is a “drug crime” ordinance that would be preempted by state criminal laws, or a permissible enforcement mechanism for the City‘s land use ordinances and business licensing requirements for commercial cannabis activities.
We begin our preemption analysis of the LAMC ordinances at issue by noting that field preemption does not apply. MAUCRSA explicitly disavows any legislative intention to occupy the field of commercial cannabis regulation, and explicitly contemplates that cities and counties will also impose their own licensing requirements and other restrictions on commercial cannabis activities. (
Nor does the UCSA occupy the field to the exclusion of local ordinances criminalizing cannabis-related activities. Although cannabis is still listed in the UCSA as a controlled substance (
The two provisions, however, are not coextensive.
LAMC section 104.15 and
Moreover, there are policy justifications supporting LAMC section 104.15‘s imposition of strict liability, that do not apply in the context of other controlled substances. As explained in the amicus brief of the Los Angeles Department of Cannabis Regulation, there is a large volume of unlicensed commercial cannabis activity that undercuts the City‘s licensing scheme, and circumvents public health, safety, and environmental regulations. The City may reasonably believe that imposing strict liability on landlords who rent to cannabis shops without confirming that they are licensed is essential to the City‘s ongoing efforts to combat the negative impact of unlicensed commercial cannabis activity on the health, safety, and welfare of the City‘s residents.
For similar reasons, LAMC section
This ordinance does not duplicate or contradict state law. It falls well within the City‘s land use powers to enforce its zoning ordinances through criminal as well as civil nuisance penalties, and it is common for such “public welfare offenses” not to require proof of knowledge or intent. (In re Jorge M., supra, 23 Cal.4th at p. 872 [” ’ “[u]nder many statutes enacted for the protection of the public health and safety . . . criminal sanctions are relied upon even if there is no wrongful intent” ’ “].)
We conclude that the appellate division correctly held that LAMC sections
III. The appellate division did not err in reversing the Penal Code section 1385 dismissal.
Because the Legislature did not define the term ” ’ ” ‘in furtherance of justice,’ ” ’ ” ” ’ “appellate courts have been faced with the task of establishing the boundaries of the judicial power conferred by the statute.” ’ ” (People v. Williams, supra, 17 Cal.4th at p. 159.) Williams reviewed the extensive case law on
In this case, the “interests of society” as expressed in the ordinances at issue are to aid the City in enforcing its commercial cannabis licensing scheme, and to minimize incentives to undercut this scheme by operating unlicensed cannabis businesses, by imposing criminal liability on landlords who rent to cannabis businesses without ascertaining that such businesses are licensed. Given these societal interests, the appellate division did not err in concluding that “[f]inding that a person‘s lack of knowledge called for the dismissal of offenses, when the offenses required no knowledge for conviction, in effect, was an improper dismissal based on the court‘s disagreement with the law, or disapproval of the impact the provisions would have on defendant.”
DISPOSITION
The petition for writ of mandate is denied. Upon remand, the trial court may, upon its own motion, reconsider whether to dismiss the charges in the interests of justice, on the basis of factors other than Wheeler‘s lack of knowledge.
CERTIFIED FOR PUBLICATION.
MATTHEWS, J.*
We concur:
EDMON, P. J.
EGERTON, J.
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to