Opinion
B310738
07-21-2021
THE PEOPLE, Plaintiff and Appellant, v. AGNES T. TAM et al., Defendants and Respondents.
Michael N. Feuer, City Attorney, Meredith A. McKittrick and Edwin Kim, Deputy City Attorneys, for Plaintiff and Appellant. Ricardo D. Garcia, Public Defender, Albert J. Menaster, John So and Laurel Mend, Deputy Public Defenders, for Defendant and Respondent Agnes T. Tam. Erika C. Anzoategui, Alternate Public Defender, Reid S. Honjiyo and Alanna Holt, Deputy Alternate Public Defenders, for Defendant and Respondent Shui Hung Tam.
NOT TO BE PUBLISHED.
APPEAL from an order of the Superior Court of Los Angeles County Super. Ct. Nos. 9CJ00299, BR054829, H. Elizabeth Harris, Judge Pro Tempore. Reversed and remanded.
Michael N. Feuer, City Attorney, Meredith A. McKittrick and Edwin Kim, Deputy City Attorneys, for Plaintiff and Appellant.
Ricardo D. Garcia, Public Defender, Albert J. Menaster, John So and Laurel Mend, Deputy Public Defenders, for Defendant and Respondent Agnes T. Tam.
Erika C. Anzoategui, Alternate Public Defender, Reid S. Honjiyo and Alanna Holt, Deputy Alternate Public Defenders, for Defendant and Respondent Shui Hung Tam.
THOMAS, J. [*]
The City of Los Angeles (City) charged landlords Agnes T. Tam and Shui Hung Tam (collectively defendants) with violating two provisions of the Los Angeles Municipal Code (LAMC). The first prohibits a landlord from renting or leasing property to anyone engaged in commercial cannabis activity without a temporary approval or license. (LAMC § 104.15(b)4.) The second prohibits the use of a building for any purpose other than those licensed or permitted under applicable zoning laws. (LAMC § 12.21A.1. (a).) The trial court dismissed the charges against both defendants pursuant to Penal Code section 1385, and the People sought review by the appellate division. The appellate division reversed the trial court's order.
Throughout this opinion, we refer to Agnes T. Tam and Shui Hung Tam by their first names for the sake of clarity; we intend no disrespect.
All further unspecified statutory references are to the Penal Code.
We granted Shui Hung's petition seeking transfer of this action. After reviewing the trial court's ruling, we conclude that the court erred in dismissing the charges against defendants pursuant to section 1385.
BACKGROUND
I. Cannabis sales at York Boulevard Smoke Shop
In July 2018, defendants leased a commercial space on York Boulevard in Los Angeles to Monique Juan. The lease stated that the premises are “leased as SMOKE SHOP retail.” Under the lease, the property was to be used “for the purpose of conducting a business of retailing legal products and general office.” The lease also provided that it was the lessee's responsibility “to obtain any required license or permits from the City, State and Federal department to operate the business.”
After receiving complaints that people were exiting the property with narcotics, police, over a period of several months in early 2019, conducted surveillance of the property. People who exited the premises admitted purchasing marijuana inside. On one occasion, an officer entered the premises and observed green leafy substances resembling marijuana and a display that contained edibles. Pursuant to several search warrants, police also conducted searches of the property and found marijuana and related paraphernalia, including glass pipes, rolling papers, and a scale.
II. Proceedings in the trial court
In June 2019, the People filed a misdemeanor complaint charging defendants with three counts of unlawfully leasing, renting to, or allowing an unlicensed commercial cannabis establishment on land in violation of LAMC section 104.15(b)4, and three counts of maintaining or using a structure for purposes other than those permitted under the zoning laws in violation of LAMC section 12.21A.1. (a).
Defendants moved to dismiss, arguing, as relevant here, that all counts should be dismissed in the interest of justice under section 1385. The dismissal motion included assertions about defendants' ages (69 and 82), their alleged lack of prior arrests, the length of time they had owned the property (40 years), and their alleged lack of knowledge of the marijuana activity. However, the motion included no declarations or other evidence attesting to these facts.
In their opposition, the People argued that it would not be in the interest of justice to dismiss the charges. As for the issue of knowledge, the People argued that the ordinances had no mens rea requirement. It would be improper for the court to read such a requirement into the ordinances because a ruling that property owners should not face criminal charges if they had no knowledge of illegal cannabis activity on their property, the People argued, would be contrary to the ordinance, to the will of the voters, and to the City Council. To dismiss the charges would be tantamount to substituting the trial court's judgment for that of the City Council and the voters about how to address the social evils associated with the distribution of a controlled substance.
The trial court made various comments suggesting that it believed the ordinances should include a knowledge requirement. The court inquired whether the city was “placing upon every landlord” a “duty to go and make sure” that cannabis was not being sold. The court later commented to the prosecutor, “you're saying it's a strict liability crime. That... if I tell you I'm going to run a church and I start doing something differently, that you are then responsible and you place upon... them a duty to check and make sure, and I just don't know.”
The People agreed that the court could consider defendants' age, their absence of a criminal record, and the lease. Although it was undisputed that defendants had no prior criminal record, the People noted that defendants had offered little to no evidence to support their factual assertions, including whether defendants had knowledge.
The court summarized the factors it considered in determining whether to dismiss: “Given the age of the defendants, given the fact that the defendants have a lease in which they have spelled out that it's to be used for legal purposes only, and those are the kinds of things that the court is looking at to say, to me it wouldn't be fair for these people to have a criminal history, because they are not criminals. They are not someone who seeks to break the law.”
During the hearing, the trial court struck defendants' motion to dismiss after ruling that defendants were not permitted to make such a motion (see § 1385), but accepted defendants' oral invitation that the court consider dismissal on its own motion. After the People declined the trial court's invitation to dismiss the case, the trial court dismissed the matter on its own motion in the interest of justice pursuant to section 1385.
III. Appeal to the appellate division
The People appealed to the superior court's appellate division arguing the trial court abused its discretion by dismissing the case without evidence of detriment to defendants, without accounting for the People's interests, and by tacitly ruling that the charged offenses were not strict liability crimes.
In the appellate division proceedings, defendants argued that the trial court did not abuse its discretion in dismissing the action (§ 1385). Shui Hung also argued that (1) the prosecution waived any objections to “the facts and evidence” by failing to object and to ask for a ruling; (2) the trial court never ruled on whether the ordinances included a mens rea requirement (and, therefore, the appellate court should not offer an advisory opinion on the issue); and (3) state law preempts the criminal prosecution of property owners for renting property used for illegal marijuana sales without their knowledge. Agnes likewise argued that the ordinances should not be considered strict liability offenses.
The People replied, arguing, among other things, that the preemption argument could not be raised for the first time on appeal and, in any event, lacked merit. The People also noted that the zoning ordinance-LAMC section 12.21A.1. (a)-was not affected by the preemption argument.
The appellate division reversed the dismissal order and remanded for further proceedings. After unsuccessfully seeking certification from the appellate division as required, Shui Hung filed a petition for transfer to our court, which we granted.
DISCUSSION
I. Standard of review
“When a case is certified for transfer to an appellate court to settle important and recurring questions of law.... [Citation.]... we review th[e] matter as if the parties directly appealed to us following the trial court's ruling.” (People v. Randolph (2018) 28 Cal.App.5th 602, 610; accord People v. Dimacali (2019) 32 Cal.App.5th 822, 827, fn. 2.) Our review, therefore, is from the trial court's October 2019 ruling dismissing the complaint against defendants.
The People correctly observe that Shui Hung did not raise the issue of preemption in the trial court. They argue that the argument is therefore forfeited. We find no authority for the proposition that a criminal defendant can forfeit the ability to argue on appeal that the City has attempted to prosecute him “for engaging in conduct that the [City] has no authority to punish.” (People v. Hamilton (2018) 30 Cal.App.5th 673, 578, fn. 2.) Moreover, “application of the forfeiture rule is not automatic.” (In re S.B. (2004) 32 Cal.4th 1287, 1293.) Nonetheless, because defendants did not raise their preemption argument by way of demurrer (see § 1004), we decline to exercise our discretion to consider the argument on this record and review only the section 1385 issue.
The dismissal of charges in the interest of justice under section 1385 is reviewed for abuse of discretion. (People v. Smith (2016) 245 Cal.App.4th 869, 873.) We turn now to the merits of the appeal.
II. The court abused its discretion in dismissing the charges against defendants.
Section 1385, subdivision (a) provides: “The judge or magistrate may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed. The reasons for the dismissal shall be stated orally on the record. The court shall also set forth the reasons in an order entered upon the minutes if requested by either party or in any case in which the proceedings are not being recorded electronically or reported by a court reporter. A dismissal shall not be made for any cause that would be ground of demurrer to the accusatory pleading.”
“The trial court's power to dismiss an action under section 1385, while broad, is by no means absolute. Rather, it is limited by the amorphous concept which requires that the dismissal be ‘in furtherance of justice.' As the Legislature has provided no statutory definition of this expression, appellate courts have been faced with the task of establishing the boundaries of the judicial power conferred by the statute as cases have arisen challenging its exercise.” (People v. Orin (1975) 13 Cal.3d 937, 945.)
In exercising its wide discretion under section 1385, the court should consider the nature and circumstances of the defendant's current crimes, the defendant's prior convictions, and the particulars of his or her background, character, and prospects. (People v. Williams (1998) 17 Cal.4th 148, 162-163.) Dismissals should not be based on judicial convenience, court congestion, or the cost of incarceration. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 531.) It is also inappropriate for the court to rely solely on its personal belief regarding the effect a certain sentencing law may have on the defendant, while ignoring the defendant's background, the nature of the defendant's present offenses, and other individualized considerations. (Ibid.) The “ ‘sympathy which the trial judge might feel for a particular defendant cannot... constitute a basis for a complete or partial dismissal “in furtherance of justice” under... section 1385.' ” (People v. Sassounian (1986) 182 Cal.App.3d 361, 415.) A court's reasons for dismissal under section 1385, moreover, must not be conclusory or “ ‘purely subjective' ”; a court must rather be “explicit in [its] reasons for balancing the scale in favor of dismissal.” (People v. S.M. (2017) 9 Cal.App.5th 210, 222.)
Here, we conclude that the court abused its discretion in dismissing the charges against defendants. To be sure, a defendant's knowledge may be an appropriate factor for a court to consider as part of a holistic examination under section 1385, even when that defendant is charged with a strict liability crime. That factor may be relevant to an examination of the “ ‘particulars of [the defendant's] background, character, and prospects,' ” all of which are appropriate for a court to consider under section 1385. (People v. S.M., supra, 9 Cal.App.5th at p. 220.) The court's finding about defendants' knowledge here, however, lacked support. The only uncontested evidence before the court was defendants' ages, their lack of criminal history, and the existence of a commercial lease-none of which established defendants' lack of knowledge. Although defendants' motion to dismiss contained their counsel's representations that defendants lacked knowledge of the unlicensed cannabis business operating on their property, that motion was stricken from the record. Counsel's statements, moreover, are not evidence; nor may attorneys assert personal knowledge of the facts at issue unless they are testifying as a witness. (See In re Zeth S. (2003) 31 Cal.4th 396, 413, fn. 11.)
We acknowledge that, because section 1385 does not allow defendants to move for dismissal, only limited information about the defendants was available to the trial court. But in the absence of such information, the court erred in substituting its own speculation regarding whether either defendant was “someone who seeks to break the law” or whether either defendant “intend[ed] to break the law.”
The trial court further found that it “wouldn't be fair” for the defendants “to have a criminal history, because they are not criminals.” To the extent that the trial court's dismissal was motivated primarily by sympathy for defendants' facing potential punishment for crimes committed without their knowledge, or “ ‘ “guided solely by a personal antipathy for the effect that the... law would have on... defendant[s], ”' ” that was improper. (People v. S.M., supra, 9 Cal.App.5th at p. 218; see People v. Sassounian, supra, 182 Cal.App.3d at p. 415.) In determining whether to dismiss in the interests of justice, a court may not disregard “ ‘the interest of society in seeing that its laws are effectively implemented.' ” (Sassounian, at p. 415.) We need not, however, draw a firm conclusion about the trial court's motivations here. It is sufficient to hold that because the court's evaluation whether to dismiss pursuant to section 1385 was inextricably intertwined with its conclusory findings regarding defendants' lack of knowledge-and because it is unclear from the record whether the court would have dismissed the case based solely upon the competent evidence before it-the court abused its discretion in dismissing the charges against defendants.
Upon remand, the court may, upon its own motion, or upon the application of the prosecuting attorney, reconsider dismissing the charges in the furtherance of justice. The court may also consider whether to allow defendants to withdraw their pleas and file a demurrer to the complaint. (See People v. Superior Court (Jennings) (1986)183 Cal.App.3d 636, 641.) We express no view about these matters.
DISPOSITION
The order dismissing the charges is reversed and the matter is remanded for further proceedings consistent with this opinion.
We concur: EDMON, P. J., EGERTON, J.
[*] Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.