The opinion
Filed 5/2/18
CERTIFIED FOR PUBLICATION
APPELLATE DIVISION OF THE SUPERIOR COURT
STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
THE PEOPLE, ) BR 053554
)
Plaintiff and Appellant, ) East Los Angeles Trial Court
)
v. ) No. 6CJ00651
)
ONESRA ENTERPRISES, INC., et al., )
)
Defendants and Respondents. ) OPINION
)
Appeal from a Judgment of the Superior Court of Los Angeles County, East Los
Angeles Trial Court, Henry Barela, Judge. Reversed.
Michael N. Feuer, City Attorney, City of Los Angeles, Asha Greenberg, Assistant City
Attorney, and Meredith A. McKittrick, Deputy City Attorney, for Plaintiff and Appellant.
Law Offices of Stanley H. Kimmel, Stanley H. Kimmel; and Alison Minet Adams for
Defendants and Respondents Onesra Enterprises, Inc., Anna Tyutina, Arsen Ordoukhanian,
Irina Tyutina, and Krikor Beurekjian.
Shevin Law Group, Eric D. Shevin, Stephen J. Fisch, and Ryan M. D’Ambrosio, for
Defendants and Respondents David Khedr and Odette Khedr.
* * *
1
INTRODUCTION
The People of the State of California appeal the dismissal by the trial court of the
misdemeanor case brought against defendants Onesra Enterprises, Inc., Anna Tyutina, Arsen
Ordoukhanian, Irina Tyutina, Krikor Beurekjian, David Khedr, and Odette Khedr based on their
unlawful operation and use of a medical marijuana business (MMB) (L.A. Mun. Code
(LAMC), § 45.19.6.2).
We reject defendants’ argument that the appeal is moot. City of Los Angeles (City)
Proposition D, which included the MMB ordinance, was repealed effective January 1, 2018,
when the City enacted a comprehensive licensing scheme for retail sales of marijuana. But the
repeal was not intended to be retroactive, and we can thus provide effective relief to the People
by allowing them to maintain their prosecution against defendants. We also conclude reversal
is required, because the trial court abused its discretion in dismissing the complaint pursuant to
Penal Code section 1385 in the mistaken belief there was a lack of jurisdiction to prosecute
defendants.
BACKGROUND
On July 7, 2016, a complaint was filed charging defendants violated LAMC section
45.19.6.2 on May 4, 2016. They were also charged with violating LAMC section 12.21,
subdivision A.1(a), based on their unpermitted use of land in operating the MMB.
Defendants filed demurrers and written motions to dismiss on various grounds. One of
their arguments pertained to the effect of the trial court’s order in a previous criminal case.
In trial court case No. 4CA14664, defendants Onesra Enterprises and Anna Tyutina were
found guilty in a court trial of having violated LAMC sections 45.19.6.2 and 12.21 based on
their unlawful operation of an MMB in 2013 and were placed on probation. On October 13,
2015, Judge Widdifield stayed the conditions of probation in the prior case pending resolution
of the defendants’ appeal from the judgment. One of the conditions stayed by the court was
that Onesra Enterprises and Anna Tyutina not operate an MMB.1
1
Judge Widdifield stated, “[P]robation and all of its terms and conditions are stayed pending the
filing of the remittitur on appeal,” and “given the totality of the circumstances, the [c]ourt permits
Onesra to remain open . . . .”
2
Defendants argued that the case underlying the present appeal should be dismissed due
to Judge Widdifield’s order. Defendants in their written motions did not specify why the
4CA14664 trial court’s order warranted dismissal. But at a November 7, 2016 hearing on the
motion, with Judge Bourne presiding, defendants’ counsel argued that, based on the order
staying the probation condition, all the defendants in the case (including ones not charged in the
4CA14664 case) “believe[d] they [were] not violating the law.” Counsel emphasized
defendants were not arguing “Judge Widdifield gave them prospective immunity from
[prosecution],” but rather that “they had a good faith belief that what they were doing was
allowed, was not illegal.”
On December 19, 2016, Judge Bourne denied the motion to dismiss. The court stated,
“[D]id Judge Widdifield’s order in case number 4CA14664 authorize the defendants to
continue operating a[n] [MMB]. No, I don’t believe so. And it did not provide the defendants
with that immunity allowing them to continue operating a[n] [MMB].” Defendants pled not
guilty at their arraignment, and the case was continued for a pretrial hearing.
On February 21, 2017, defendants filed a motion to suppress evidence under Penal Code
section 1538.5. Defendants maintained evidence supporting the charges was seized pursuant to
a search warrant based on an affidavit that falsely alleged the trial court in the 4CA14664 case
had ordered the MMB to be shut down. The People, in their opposition to the motion, argued
that the affiant mistakenly relied on “someone at the Los Angeles City Attorney’s Office”
telling him the location was to be shut down but, apart from this statement, the affiant also
stated facts showing there was probable cause to believe defendants were operating an unlawful
MMB. The case was continued to set dates for conducting a hearing on the suppression motion
and starting trial.
On July 27, 2017, the court, with Judge Barela presiding, stated, “The matter is here for
a 1538.5. The court discussed this case with counsel in chambers. I don’t think a 1538.5 is
appropriate. [¶] I assume there’s a motion to dismiss in the interests of justice by the defense?”
This court affirmed the judgment in Appellate Division case No. BR 052596 on November 22,
2016, and a remittitur issued thereafter.
3
Defense counsel for David and Odette Khedr responded, “Yes, your Honor,” and counsel for
the remaining defendants stated, “Certainly, your Honor.”
The court stated that, in the 4CA14664 case, “there was an appeal filed on that
conviction and a stay of execution was granted. And in the court’s opinion, when a stay is
granted, that means the parties are back to where they were prior to the conviction, which
meant that the defendants could continue to operate up until the appeal came back.” The court
noted that the evidence in the case was obtained prior to the appeal being resolved, and thus the
offenses in the complaint “occurred during a period where the dispensary was properly allowed
to continue doing business because there was a stay in the execution of sentence.”
The People disagreed that “as a matter of law these defendants were allowed to violate
the municipal code based on the order staying the order granting probation,” and also pointed
out that Judge Bourne had already denied a motion to dismiss that argued the same grounds.
The court stated, “Let’s be clear. This court believes that if there’s no jurisdiction to file a case,
that’s never lost. Whether some other judge makes a ruling or not, the jurisdiction to file a case
is still an open question. It’s always open to litigation.” The court stated, “Motion to dismiss,
1385, all defendants. Thank you.”2
DISCUSSION
Mootness
Defendants argue the People’s appeal is moot, pointing out LAMC section 45.19.6.2 was
repealed by the City Council in response to California voters’ approval of the Adult Use of
Marijuana Act (AUMA) (Health & Saf. Code, § 11362.1, et seq.). “A question becomes moot
when, pending an appeal from a judgment of a trial court, events transpire that prevent the
appellate court from granting any effectual relief. [Citations.]” (Gonzalez v. Munoz (2007)
156 Cal.App.4th 413, 419.)3 We decide de novo the legal issue of whether the repeal of
2
With regard to the charged offenses, the minute orders for each of the defendants stated,
“Disposition: Dismissal in furth [sic] justice per 1385 PC,” and “The defense counseling [sic] motion
for dismissal is renewed and granted on the court’s motion the case is dismissed 1385 of the Penal
Code.”
3
Defendants also argue the People forfeited their right to appellate review of the dismissal of the
illegal use of land charge (LAMC, § 12.21) by failing to specifically maintain in the People’s opening
brief that the dismissal order pertaining to this charge should be reversed. We find no forfeiture
4
Proposition D applied to defendants’ case and thereby rendered the People’s appeal moot. (See
People v. Lofchie (2014) 229 Cal.App.4th 240, 250; People v. Monk (2018) 21 Cal.App.5th
Supp. 1, 4.)
Marijuana laws
LAMC section 45.19.6.2, enacted by voters of the City as part of Proposition D in 2013,
made it a misdemeanor to “own, establish, operate, use, or permit the establishment or
operation of a[n] [MMB], or to participate as an employee, contractor, agent or volunteer, or in
any other manner or capacity in any [MMB],” or to rent, lease, or otherwise permit an MMB to
occupy or use a location. LAMC section 45.19.6.3 provided limited immunity from
prosecution for the crime in situations where the MMB in question satisfied several criteria,
including having been in operation since 2007 and having previously registered with the City.
AUMA was approved by the voters of California on November 7, 2016. The act
provided, among other things, that it does not violate California law for a person 21 years of
age or older to possess and purchase up to 28.5 grams of marijuana, and that marijuana may be
sold at a retail level with a license. (Health & Saf. Code, § 11362.1, subd. (a); Bus. & Prof.
Code, § 26050 et seq.)
On March 7, 2017, the City’s voters approved Proposition M (ord. No. 184,841). The
preamble noted that, under AUMA, “Retail sales of nonmedical cannabis may only take place
pursuant to a state license, scheduled to become available in 2018,” and that the City Council
intended to “enact by ordinance a comprehensive regulatory and enforcement system related to
medical and nonmedical cannabis activity.” The preamble further provided, “[S]o that medical
marijuana is available to patients in need of it, [MMB’s] that have been operating in
compliance with the limited immunity and tax provisions of [LAMC s]ections 45.19.6.3 and
21.50 at the one location identified in the Business’s business tax registration certificate on file
with the City should continue to operate until City licenses or permits are available, and,
occurred, because the People argued in their brief that the court erred in dismissing the entire case,
which included both the unlawful operation of an MMB charge and the illegal use of land offense upon
which it was based.
5
thereafter, priority in the processing of applications for a City license or permit should be given
to those Businesses.”
Proposition M enacted provisions taxing the sale of marijuana for nonmedical purposes
(LAMC, § 21.51), as well as marijuana sold by MMB’s (LAMC, § 21.52). The ordinance
further enacted LAMC section 45.19.7.1, providing, “The voters of the [City] adopted
Article 5.1 of Chapter IV of the [LAMC] regarding medical marijuana (Sections 45.19.6
through 45.19.6.9) as part of Proposition D, a referendum submitted to the voters by the City
Council at the election held on May 21, 2013. The Council shall adopt an ordinance repealing
these provisions of Proposition D (Sections 45.19.6 through 45.19.6.9) effective January 1,
2018, unless the Council adopts a Resolution, by majority vote, specifying another date for the
repeal. The Council retains and possesses authority to amend, by ordinance, these provisions of
Proposition D prior to its repeal.”
On December 19, 2017, the City Council enacted ordinance No. 185,343 in order “to
regulate commercial cannabis activities in the City,” and to establish a licensing scheme for
commercial sales of marijuana, including sales by MMB’s. (LAMC, § 104.00.) The
ordinance’s stated purpose was to allow the City “to issue licenses in an orderly and transparent
manner to eligible applicants according to the requirements of this article and the Rules and
Regulations, and to mitigate the negative impacts brought by unregulated Cannabis
businesses.” (Ibid.) The ordinance stated that Proposition D, “which sets forth restrictions on
medical marijuana businesses and granted a limited immunity to those businesses, is repealed
effective January 1, 2018.” (Ord. No. 185,343, Recitals, § 1.)
The ordinance further stated an “‘EMMD’ means an existing medical marijuana
dispensary that is in compliance with all restrictions of Proposition D” (LAMC, § 104.01(12))4
and provided that an EMMD would be given priority in obtaining a City license, so long as it
had been in full compliance with the Proposition D requirements for limited immunity in
LAMC section 45.19.6.3. (LAMC, § 104.07(a).) The ordinance further provided, “An EMMD
4
For purposes of this opinion, the terms “medical marijuana dispensary” and MMB are used
interchangeably.
6
that as of January 1, 2018, meets all of Proposition D requirements shall continue to have
limited immunity up until the time the EMMD receives Temporary Approval” for a license to
sell marijuana (LAMC, § 104.07(b).)5
The ordinance enacted LAMC section 104.15(a)(1), making it “unlawful for a Person to
establish, operate, or participate as an Employee, contractor, agent or volunteer, in any
unlicensed Commercial Cannabis Activity in the City.” The ordinance included MMB’s within
the prohibition. (LAMC, § 104.15(a)(2), (3).)
The ordinance further provided, “Starting on January 1, 2018, it is unlawful to:
[¶] 1. Own or operate an Unlawful Establishment; [¶] 2. Participate as an Employee, contractor,
agent or volunteer or in any other capacity in an Unlawful Establishment; [¶] 3. Use any portion
of any parcel of land as an Unlawful Establishment; or [¶] 4. Lease, rent to, or otherwise allow
an Unlawful Establishment to occupy any portion of parcel of land.” (LAMC, § 104.15(b); see
LAMC, § 104.01(27) [“‘Unlawful Establishment’ means any Person engaged in Commercial
Cannabis Activity if the Person does not have a City issued Temporary Approval or License”].)
A violation of these provisions can be enjoined as a nuisance and/or punished as a
misdemeanor. (LAMC, § 104.15(c)-(e).)
In addition, the ordinance included an urgency clause, which stated, in pertinent part,
“The City finds and declares that this ordinance is required for the immediate protection of the
public peace, health and safety for the following reasons: As documented in, among other
places, case law and the legislative histories of cannabis regulations in the City, the
proliferation of unauthorized cannabis businesses, with the attendant crime and negative
secondary impacts, poses a current and immediate threat to the public welfare; that despite
aggressive enforcement by the office of the City Attorney, an unknown number of unauthorized
cannabis businesses, including growers, delivery apps and delivery services, continue to open,
close, and reopen within the City, and the proliferation of these unauthorized businesses has led
to increased crime and negative secondary impacts in neighborhoods, including but not limited
5
The ordinance additionally provided that, if the EMMB was denied a license, once all appeals
from the denial were rejected, “the EMMD Applicant shall immediately cease all Commercial
Cannabis Activity at the Business Premises and the EMMD Applicant shall not be entitled to the
limited immunity from prosecution afforded by Proposition D.” (LAMC, § 104.07(d).)
7
to violent crimes, robberies, the distribution of tainted marijuana, and the diversion of
marijuana; . . . ” (Ord. No. 185,343, § 3.)
Impact on pre-2018 Proposition D case
Whether a statute or ordinance should be applied to crimes which preceded its enactment
depends on legislative intent. An enacting body “‘ordinarily makes laws that will apply to
events that will occur in the future. Accordingly, there is a presumption that laws apply
prospectively rather than retroactively. But this presumption against retroactivity is a canon of
statutory interpretation rather than a constitutional mandate. [Citation.] Therefore, the
[enacting body] can ordinarily enact laws that apply retroactively, either explicitly or by
implication. [Citation.] In order to determine if a law is meant to apply retroactively, the role
of a court is to determine the intent of the [enacting body] . . . .’ [Citation.] [Citation.]”
(People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 307.)
The California Supreme Court in In re Estrada (1965) 63 Cal.2d 740, 745 (Estrada)
held: “When the Legislature amends a statute so as to lessen the punishment [without clearly
specifying the statute should have only prospective operation] it has obviously expressly
determined that its former penalty was too severe and that a lighter punishment is proper as
punishment for the commission of the prohibited act. It is an inevitable inference that the
Legislature must have intended that the new statute imposing the new lighter penalty now
deemed to be sufficient should apply to every case to which it constitutionally could apply.”
(Accord, People v. Rossi (1976) 18 Cal.3d 295, 301 (Rossi) [“the common law principles
reiterated in Estrada apply a [fortiori] when criminal sanctions have been completely repealed
before a criminal conviction becomes final”]; see also People v. Roman (2001) 92 Cal.App.4th
141, 147, fn. 6 [Estrada rule applies to local ordinances].)
Ordinance No. 185,343 repealed Proposition D’s provisions making it a misdemeanor to
operate or maintain an MMB without qualifying for immunity (LAMC, §§ 45.19.6.2,
45.19.6.3), and enacted provisions making it a misdemeanor to operate or maintain any
“Commercial Cannabis Activity” (which includes MMB’s) without a City-issued Temporary
Approval or License to operate the facility (LAMC, § 104.15(a), (b)). The ordinance thus
rendered criminal conduct noncriminal, so long as a seller obtains a specified approval or
8
license.
Nonetheless, the Estrada rule is subject to indications of contrary legislative intent. (See
People v. Conley (2016) 63 Cal.4th 646, 657.) For example, “[t]he rule in Estrada . . . is not
implicated where the Legislature clearly signals its intent to make the amendment prospective,
by the inclusion of either an express saving clause or its equivalent.” (People v. Nasalga
(1996) 12 Cal.4th 784, 793 (plur. opn. of Werdegar, J.), fn. omitted.) Ordinance No. 185, 343
contains no express saving clause, nor does it provide its equivalent, such as a statutory scheme
delineating how pre-2018 cases are to be handled. (Cf. People v. Conley, supra, 63 Cal.4th at
pp. 657-658 [refusing to apply statute retroactively because statute contained its own
retroactivity provision providing relief to specified convicted persons].)
Yet, as pointed out by the People, the LAMC contains a saving clause applicable to
changes to the code. LAMC section 11.00, subdivision (d), provides in relevant part, “Neither
the adoption of this Code nor the repeal of any ordinance of this City shall in any manner affect
the prosecution for violation of ordinances, which violations were committed prior to the
effective date of the ordinance . . . .”
Contrary to defendants’ argument on appeal, the LAMC section 11.00 saving clause is
materially different from the provision at issue in In re Dapper (1969) 71 Cal.2d 184, 188
(Dapper), which was held not to signal a legislative intent against retroactive application of an
ordinance. The City of San Diego clause, as set forth in the opinion, provided, “Neither the
adoption of this Code nor the repeal hereby of any Ordinance of this City shall in any manner
effect [sic] the prosecution for violation of Ordinances, which violations were committed prior
to the effective date hereof.” (Ibid., original italics.) Dapper pointed out that, as indicated by
the highlighted portions of the provision, the clause referred only to ordinances “repealed by the
code [at the time the code was adopted], and not to ordinances comprising the code which are
subsequently repealed. It is equally clear that the ‘violations’ referred to, prosecution for which
is preserved, are violations occurring before the adoption of the code and not violations like
those involved here which occurred after adoption.” (Dapper, supra, 71 Cal.2d at pp. 188-189,
original italics.) LAMC section 11.00, which was last amended in 2017, prior to the repeal of
Proposition D, does not include provisions such as the highlighted portions in the San Diego
9
clause, and by its terms it is not limited to repeals made at the time LAMC section 11.00 was
enacted.
We infer the City Council, when it enacted ordinance No. 185,343, was aware of the
LAMC section 11.00 saving clause. (See People v. Superior Court (Zamudio) (2000)
23 Cal.4th 183, 199 [enacting body is presumed to be aware of related laws].) The City
Council thereby intended that the repeal of Proposition D not be retroactive, because the
LAMC provided that “the repeal of any ordinance of this City shall in [no] manner affect the
prosecution for violation of ordinances, which violations were committed prior to the effective
date of the ordinance.” (LAMC, § 11.00, subd. (d).)
In addition to the saving clause, there are other strong indications that the City Council
did not intend retroactivity. (See People v. Nasalga, supra, 12 Cal.4th at p. 794 [even in the
absence of a saving clause, “we must look for any other indications of legislative intent”].) In
short, the legislative scheme enacted by ordinance No. 185,343 contemplated MMB’s that
violated Proposition D prior to 2018 would continue to be prosecuted.
When the City’s voters enacted Proposition M in March 2017, they contemplated that
MMB’s “that have been operating in compliance with the limited immunity [provided by
Proposition D] . . . should continue to operate until City licenses or permits are available.”
(Ord. No. 184,841, Preamble, italics added.) The legislative scheme intended that MMB’s
would be allowed to operate lawfully until licenses were available, and could be prosecuted if
they did not.
Proposition M authorized the City Council to promulgate rules regarding the regulation
of sales of marijuana, and to repeal Proposition D, “effective January 1, 2018, unless the
Council adopts a Resolution, by majority vote, specifying another date for the repeal.”
(LAMC, § 45.19.7.1, italics added.) This indicated an intention that MMB’s would continue to
be prosecuted for pre-2018 offenses, as the repeal would only be effective with respect to
crimes that occurred as of January 1, 2018.
Ordinance No. 185,343 defined an “EMMD” as “an existing medical marijuana
dispensary that is in compliance with all restrictions of Proposition D.” (LAMC, § 104.01(12),
italics added.) Also, it provided an “EMMD” would be given priority in obtaining a city
10
license, only as long as it had been in full compliance with the Proposition D requirements for
limited immunity. (LAMC, § 104.07(a).) The ordinance thus depended, as an integral part of
its scheme, on an MMB complying with the law and not having been prosecuted until it
obtained a license. Further, the ordinance stated, “An EMMD that as of January 1, 2018, meets
all of Proposition D requirements shall continue to have limited immunity up until the time the
EMMD receives Temporary Approval” for a license to sell marijuana (LAMC, § 104.07(b),
italics added). Providing for continued immunity implies pre-2018 violations were not
rendered noncriminal.
Lastly, in enacting the new licensing scheme, the City Council was concerned that “the
proliferation of unauthorized cannabis businesses, with the attendant crime and negative
secondary impacts, poses a current and immediate threat to the public welfare,” and found “that
despite aggressive enforcement by the office of the City Attorney, an unknown number of
unauthorized cannabis businesses, including growers, delivery apps and delivery services,
continue to open, close, and reopen within the City, and the proliferation of these unauthorized
businesses has led to increased crime and negative secondary impacts in neighborhoods,
including but not limited to violent crimes, robberies, the distribution of tainted marijuana, and
the diversion of marijuana.” (Ord. No. 185,343, § 3.) Barring the prosecution of all pre-2018
violations of Proposition D would be inimical to the City’s intent to ameliorate the deleterious
impact of businesses that sell marijuana, including MMB’s. Contrariwise, allowing pre-2018
prosecutions would assist the City’s efforts to ensure public safety by punishing perpetrators
and deterring future violations.
Appellate counsel for Onesra Enterprises, Anna and Irina Tyutina, Ordoukhanian and
Beurekjian argue that the repeal of Proposition D by ordinance No. 185,343 must be applied to
their 2016 case, because the ordinance “substitute[d] a right . . . for a crime.” The argument
lacks merit.
A saving clause is intended to only obviate the retroactive impact of a repeal of a law, as
opposed to, when, in addition to a repeal, the change has resulted in affirmatively creating a
new right or allowing persons to participate in constitutionally protected activity. “In Hamm v.
Rock Hill (1964) 379 U.S. 306 . . . , for example, the Supreme Court concluded that,
11
notwithstanding [a federal law’s] general saving provision, the Civil Rights Act of 1964, by
removing criminal sanctions for ‘sit-in’ demonstrations in public accommodations, would
mandate the abatement of any federal trespass conviction rendered, but not finalized, prior to
the passage of the Civil Rights Act. As the Hamm court explained: ‘The federal saving statute
was originally enacted in 1871, 16 Stat. 432. It was meant to obviate mere technical abatement
such as that illustrated by the application of the rule in Tynen [United States v. Tynen (1871)
78 U.S. (11 Wall.) 88, 95 . . .] decided in 1871. There a substitution of a new statute with a
greater schedule of penalties was held to abate the previous prosecution. In contrast, the Civil
Rights Act works no such technical abatement. It substitutes a right for a crime. So drastic a
change is well beyond the narrow language of amendment and repeal [of the federal saving
statute]. It is clear, therefore, that if the convictions were under a federal statute they would be
abated.’ [Citations.]” (Rossi, supra, 18 Cal.3d at p. 300, italics added.)
Wholly unlike the enactment of a watershed law as the Civil Rights Act, ordinance
No. 185,343 augured no new “right” or specified that persons could engage in constitutionally
protected activity. Defendants do not maintain they had a constitutional right to possess or sell
marijuana. (See Gonzales v. Raich (2005) 545 U.S. 1, 22 [holding that federal drug statutes
that criminalize possession of marijuana can be applied even in states that have passed laws
permitting the use of marijuana for medical purposes].) The ordinance expressly provided,
“Nothing in this section shall be construed as requiring the City to allow, permit, license,
authorize or otherwise regulate medical or nonmedical Cannabis, or as abridging the City’s
police power with respect to enforcement regarding medical or nonmedical Cannabis.”
(LAMC, § 104.15(f).) The only “right” created by the ordinance was to apply for a license to
sell marijuana, not a “right” to sell despite past Proposition D violations.6
6
See LAMC, section 104.18 (“Neither this article, nor any other provision of this Code, or
action, failure to act, statement, representation, recognition, certificate, approval, permit or License
issued by the City, [City Department of Cannabis Regulation], the Commission, or their respective
representatives, agents, employees, attorneys or assigns, shall create, confer, or convey any vested or
nonconforming right or benefit regarding any Commercial Cannabis Activity beyond the period of time
and range of activities specifically provided by the licenses issued by the State of California and the
City. This article does not create, confer, or convey any right or benefit regarding any activity beyond
the lawfulness of any License issued by the City to engage in Commercial Cannabis Activity or any
applicable State of California license for such activity. . . .”)
12
Counsel on appeal for David and Odette Khedr argue that the LAMC section 11.00
saving clause should not apply because “Proposition D’s prohibitions criminalize conduct that
is protected under AUMA.” The argument is difficult to follow. The critical question under
Estrada is whether the enacting body intended the repeal of a statute to be retroactive. (See
Rossi, supra, 18 Cal.3d at p. 302; Estrada, supra, 63 Cal.2d at p. 747.) Counsel appears to
argue that AUMA preempted Proposition D, but counsel does not explain how AUMA’s impact
is relevant to ascertaining whether the City Council intended to rely on the saving clause when
it enacted the ordinance. Accordingly, we do not further address the point, because “‘[a]n
appellate court is not required to examine undeveloped claims, nor to make arguments for
parties.’ [Citation].” (People v. Abarca (2016) 2 Cal.App.5th 475, 480.)
Dismissal of Case
Penal Code section 1385, subdivision (a), provides in relevant part, “The judge or
magistrate may . . . of his or her own motion[7]. . . 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 court’s dismissal of a criminal action under Penal Code section 1385 is reviewed on
appeal for abuse of discretion. (People v. Williams (1998) 17 Cal.4th 148, 158.) “‘[T]he
language . . . , “furtherance of justice,” requires consideration both of the constitutional rights
of the defendant, and the interests of society represented by the People, in determining whether
there should be a dismissal. [Citations.]’ [Citations.] At the very least, the reason for
dismissal must be ‘that which would motivate a reasonable judge.’ [Citations.]” (People v.
Orin (1975) 13 Cal.3d 937, 945-946, italics omitted.)
7
Although a defendant may not move to dismiss under Penal Code section 1385, he or she may
informally suggest that the court on its own motion exercise its power under the statute. (People v.
Smith (1975) 53 Cal.App.3d 655, 657-658.) Defendants in the case sub judice responded affirmatively
when the court asked them, “I assume there’s a motion to dismiss in the interests of justice by the
defense?” But, given the circumstances, we interpret their affirmative responses as only an informal
request for the court to dismiss on its own motion.
13
The trial court dismissed the case because it concluded it lacked jurisdiction to proceed
due to Judge Widdifield’s order in the 4CA14664 case. The trial court noted that the order
stayed, pending resolution of the appeal, the condition of probation that Onesra Enterprises and
Anna Tyutina not operate an MMB. The court determined that, notwithstanding Judge
Bourne’s previous rejection of an argument that the case should be dismissed due to Judge
Widdifield’s order, dismissal was required because, “if there’s no jurisdiction to file a case,
that’s never lost. Whether some other judge makes a ruling or not, the jurisdiction to file a case
is still an open question. It’s always open to litigation.”
The court erred in determining there was a lack of jurisdiction. The court had subject
matter jurisdiction over the criminal charges filed and personal jurisdiction over defendants
based on defendants having appeared in the action. (See Burns v. Mun. Court L.A. Jud. Dist.
(1965) 195 Cal.App.2d 596, 599-600.) To the extent the court found the People did not have
jurisdiction to prosecute the action against defendants, this was also in error, as the City
Attorney has the power to prosecute misdemeanor violations of City ordinances. (See People
ex rel. Chapman v. Rapsey (1940) 16 Cal.2d 636, 643.)
The only legal effect of Judge Widdifield’s order, staying conditions of probation that
included barring the continued operation of the MMB, was to preclude defendants Onesra
Enterprises and Anna Tyutina from being found in violation of probation based on their
operation of the MMB pending resolution of their 4CA14664 appeal. Defendants cite no
authority that would have allowed Judge Widdifield to prevent the People from prosecuting
them for maintaining and operating an MMB based on violations occurring prior to resolution
of the appeal. (See Cal. Rules of Court, rule 8.883(a)(1)(A) [briefs must support each point, “if
possible, by citation of authority].)
Counsel for defendants David and Odette Khedr argue on appeal that the court correctly
dismissed the case because prosecuting them would have violated due process, and thus the
court would have exceeded its jurisdiction if it had allowed the case to proceed. Counsel
maintains David and Odette Khedr allowed the remaining defendants to operate the MMB on
the Khedr property in reliance on Judge Widdifield’s order, and that all the defendants could
14
defend the prosecution based on “entrapment by estoppel” if the court had allowed the
prosecution to continue.
As explained by the California Supreme Court in People v. Chacon (2007) 40 Cal.4th
558, 568, “cases applying the entrapment by estoppel defense . . . rest on the premise that the
government may not actively provide assurances that conduct is lawful, then prosecute those
who act in reasonable reliance on those assurances.” But, defendants did not raise this theory
as a ground for dismissal before Judge Barela when the court dismissed the case, and the court
did not state it was relying on entrapment by estoppel in its dismissal.8 Because defendants
failed to raise the entrapment issue before Judge Barela, they forfeited it on appeal. (See Araiza
v. Younkin (2010) 188 Cal.App.4th 1120, 1127.)9
We conclude Penal Code section 1385 did not support the dismissal. The court failed to
take into account the interests of the People in prosecuting a case which was within their
prosecutorial jurisdiction, and acted unreasonably in mistakenly believing there was a lack of
jurisdiction. The trial court thus abused its discretion in dismissing the case. (See People v.
Smith (2016) 245 Cal.App.4th 869, 873 [a court abuses its discretion when it misinterprets or
misapplies the law].)10
DISPOSITION
The order dismissing the complaint is reversed.
_________________________
Ricciardulli, J.
8
Defendants’ counsel only raised the issue in arguing before Judge Bourne that they relied in
good faith on the stay order, and they do not argue on appeal that Judge Bourne erred in denying their
motion on this basis.
9
Defendants further appear to argue any error in dismissing the case was nonprejudicial because
their Penal Code section 1538.5 motion to suppress was meritorious. However, the suppression motion
was not litigated in the trial court and the People will have the right to a hearing on the issues raised
therein in the trial court following the reversal.
10
Given our disposition, we do not address the People’s argument that the trial court erred in
dismissing the case due to the fact Judge Bourne had previously considered and rejected the same
grounds for the motions to dismiss.
15
We concur:
_________________________ _________________________
P. McKay, P. J. Richardson, J.
16