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Prosecuting Misdemeanors – Part Three

George Gascón was sworn in as Los Angeles County’s new District Attorney on Monday December 7, 2020 and becomes the county’s 43rd district attorney. The goal of the Los Angeles County District Attorney’s Office is to protect public safety. As such, District Attorney George Gascón has taken initiative to begin immediate reform of the criminal justice system by implementing a misdemeanor reform policy directive.

What is Considered a Misdemeanor?

In California, a misdemeanor is a crime that has a maximum sentence of no more than one year in county jail. A misdemeanor is more serious than an infraction but is less serious than a felony. Common examples of misdemeanor crimes include DUIs, shoplifting, public intoxication, and petty theft.

A standard California misdemeanor is punishable by up to 6 months in jail and/or a fine of up to $1,000. On the other hand, an aggravated misdemeanor is punishable by up to 364 days in jail and/or a fine of up to $1,000 or more. A misdemeanor is aggravated if the crime is more serious than others. Example of an aggravated misdemeanor include domestic battery, driving on a suspended license, and violating a restraining order.

What Happens Under the Misdemeanor Reform Policy Directive?

The misdemeanor charges specified below shall be dismissed before arraignment and without conditions unless exceptions or factors for consideration exist. As noted, an arraignment is a hearing where the court formally charges a person who has been arrested for a crime. The reform policy took effect on December 8, 2020 and will replace prior policies.

Additionally, the following misdemeanors will be dismissed with no further exceptions or factors to consider.

  • Loitering to Commit Prostitution – Penal Code §653.22(a)(1)

In California, it is a crime to loiter in a public place for the purpose of engaging in prostitution. This section allows a police officer to arrest someone for intending to solicit or engage in prostitution, even if the person never actually does so.

Actions that can result in being charged with loitering to commit prostitution include: a) a woman who walks back and forth on a street where all business are closed for the night and she approaches several vehicles with male drivers for short conversations; b) a woman wearing revealing clothing sits at a bus stop for several minutes but does not get into the bus when it arrives but waves at passing cars with male drivers; or c) a minor female walks slowly through an area known for prostitution activity and is with other women who have a history of prostitution arrests where they pay close attention to cars passing by.

  • Public Intoxication – Penal Code §647(f)

In California, it is a crime to be intoxicated from drugs or alcohol, while in a public place, to the point of being unable to care for your safety or that of others.

Examples of actions that may result in being charged with public intoxicated include: a) after a bartender cuts a person off because they are intoxicated, that person grabs a stool and throws it across the bar; b) while drunk, a person lies down on a set of train tracks and fights off a passerby that tries to move them; or c) a person under the influence of cocaine, passes out on a sidewalk and thereby forces people walking by to step over them.

  • Under the Influence of Controlled Substance – Health & Safety Code §11550

This California statute makes it a crime for a person to be under the influence of a controlled substance or narcotic drug. Examples of controlled substances and drugs include: cocaine; heroin; or oxycodone.

Actions that may give rise to being charged with under the influence of controlled substance include: a) going to a concert while under the influence of cocaine; b) taking several oxycodone tablets and becoming weak, tired, and dizzy; or c) hallucinating after snorting phencyclidine (also known as PCP).

  • Drinking in Public – Los Angeles County Municipal Code §13.18.010

In California, a person may not consume an intoxicating beverage such as beer or wine on any public street, sidewalk, alley, highway, or parking lot that is open to the public.

  • Minor in Possession of Alcohol – Business & Professions §25662(a)

In California, minors under the age of 21 years of age are prohibited from possessing an alcoholic beverage in any public place.

Examples that do not qualify as possession of alcohol as a minor include: a) the minor not actually possessing the alcohol because it was not theirs; b) the minor was delivering it under orders from a boss, parent, or guardian and only possessed it for that limited purpose; c) the alcohol was discovered during an illegal search and seizure; or d) the minor otherwise acted responsibly by calling 911 to report that they or another minor needed medical attention.

  • Drug & Paraphernalia Possession – Health & Safety Code §§11350, 11357, 11364, & 11377

Under Health & Safety Code §11350, it illegal in the state of California to have possession of a controlled substance.

Examples include: a) going to a concert with a baggie of cocaine in a backpack or purse; b) driving to a friend’s house with Vicodin in the glove box; or c) walking to the neighborhood park with a bundle of heroin in your pocket.

Furthermore, Health & Safety Code §11364 makes it illegal in California to possess drug paraphernalia. This is defined as any device, instrument, or paraphernalia used for unlawfully injecting or smoking a controlled substance. Common items of drug paraphernalia include methamphetamine pipes and cocaine spoons.

Third, Health & Safety Code §11357 makes it a crime in California to possess more than 28.5 grams of marijuana or more than eight grams of concentrated cannabis; possess marijuana or concentrated cannabis if under the age of 21 years old, except in accordance with California’s medical marijuana laws; or possess marijuana on the grounds of a K-12 school while the school is in session.

Lastly, Health & Safety Code §11377, it is a crime in California to possess methamphetamines and certain other narcotics for personal use. Methamphetamine is a controlled substance, which is a drug or chemical whose manufacture, possession, and use are regulated under the United States Controlled Substances Act.

The diversion policy will not apply to offenses excluded under Penal Code §1001.95 (a judge in the superior court in which the misdemeanor is being prosecuted may, at the judge’s discretion, and over the objection of a prosecuting attorney, offer an alternate to a defendant) and any driving under the influence offenses.


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