The opinion
Filed 12/15/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
EMILY WHEELER, B310024
Petitioner, (Los Angeles County
Super. Ct. Nos. 9CJ00315,
APPELLATE DIVISION OF BR054851)
THE SUPERIOR COURT OF
LOS ANGELES COUNTY,
Respondent;
THE PEOPLE,
Real Party in Interest.
Petition for Writ of Mandate. H. Elizabeth Harris,
Commissioner. Petition denied.
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 City
of Sacramento as Amicus Curiae on behalf of Real Party in
Interest.
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 Penal Code section
1385, and instead to affirm the dismissal. Wheeler contends that
the trial court did not abuse its discretion in dismissing her case
under section 1385. She also contends that the local ordinances
she was charged with violating, Los Angeles Municipal Code
(LAMC) sections 104.15(a)1, 104.15(b)4, and 12.21A.1.(a), are
preempted by state law and thus unenforceable, providing an
alternative basis to uphold the trial court’s dismissal of her
criminal case.
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.
2
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 104.15(a)1 and
(b)4, and maintained a building for uses other than permitted in
the zone in which it was located in violation of LAMC section
12.21A.1.(a).
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 Penal
Code section 1385, because Wheeler was 85 years old, had never
been arrested or convicted of any crime, had no connection to the
illegal cannabis shop, and was unaware of its presence on her
property.
The trial court did not grant Wheeler’s motion, but on its
own motion dismissed the charges against Wheeler pursuant to
Penal Code section 1385, explaining: “You have a woman born in
1934 who has no prior criminal history. There is nothing to
suggest that she knows anything about this, other than the fact
that she owns the property, and the Code says, ‘in the interest of
justice;’ and I think justice can only be served if a person who has
1 Wheeler’s son and Omar Brown are not parties to this
writ proceeding.
3
lived an exemplary life for 80 plus years, and finds herself,
because she owns property, and that property is leased to another
individual, and that individual is operating a dispensary, that
says to this court that justice would properly be served by
dismissing the case in its entirety against Ms. Emily Wheeler.”
The court added, “I don’t see where justice requires that she be
subjected to prosecution on a situation where there’s no showing
that she even knew anything about it.” The People objected that
the court was “assuming that knowledge is an element of the
offense,” to which the court responded, “[n]o, the court is not,”
and reiterated that the dismissal was “in the interest of justice.”
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 section
1385 dismissal was “an improper dismissal based on the court’s
disagreement with the law.” The error was prejudicial, the
appellate division concluded, because it was “reasonably
probable” that the trial court might not have dismissed the
charges if it had considered only appropriate factors, such as
Wheeler’s age and lack of previous arrests or convictions.
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 Health and
Safety Code section 11366.5, subdivision (a) which makes it a
misdemeanor to knowingly lease or rent a building “for the
purpose of unlawfully manufacturing, storing, or distributing any
4
controlled substance.” The appellate division rejected the
preemption argument because state law, and in particular
Business and Professions Code section 26200, subdivision (a)(1),
“explicitly contemplates that municipalities can implement and
enforce their own rules concerning the regulation of the cannabis
industry within their borders,” the ordinances at issue regulate
commercial cannabis activities, and state law does not fully
occupy the field.
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.
DISCUSSION
I. Principles of review
Our court’s prior order denying Wheeler’s transfer motion
was not reviewable. (Cal. Rules of Court, rule 8.500(a)(1); Dvorin
v. Appellate Department (1975) 15 Cal.3d 648, 650.) However,
after unsuccessfully petitioning this court for a writ of mandate,
Wheeler filed a petition for review, which the Supreme Court
granted, transferring the matter to this court “with directions to
vacate [our] order denying mandate and to issue an order
directing the respondent Appellate Division of the Superior Court
of Los Angeles County to show cause why the relief sought in the
petition should not be granted.”
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
5
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.’ (Cal. Rules of
Court, rule 8.500(b)(4).) The matter is properly before us on the
Supreme Court’s order.” (Barajas, at p. 951; see Tecklenburg v.
Appellate Division (2009) 169 Cal.App.4th 1402.)
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
6
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 104.15(a)1 and (b)4 of the LAMC, under which
Wheeler was charged with leasing a building to an unlicensed
cannabis shop, are part of Ordinance No. 185343, a
comprehensive scheme enacted in 2018 by local voter initiative
“to regulate commercial cannabis activities in the City of Los
Angeles.” The purposes of the ordinance are to “create a licensing
system for certain cannabis-related businesses,” protect
consumers from “the dangers inherent in ingesting and using a
substance that was not subject to basic rules of safety” and from
the ”unscrupulous practices” of “unregulated cannabis
businesses,” and to “issue licenses in an orderly and transparent
manner to eligible applicants according to the requirements of
this article, . . . and to mitigate the negative impacts brought by
unregulated Cannabis businesses.” (LAMC § 104.00.)
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
7
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 misdemeanors by a fine of
up to $1000 and up to six months in jail. (LAMC § 104.15(c) &
(d).)
Wheeler was also charged with a violation of LAMC section
12.21A.1.(a), which provides that “[n]o building or structure shall
be . . . used . . . for any use other than is permitted in the zone in
which such building . . . is located and then only after applying
for and securing all permits and licenses required by all laws and
ordinances.” Violation of this ordinance is a misdemeanor
punishable by a fine of up to $1,000 and up to six months in jail
(LAMC § 11.00(m)), and is also subject to nuisance abatement
procedures (LAMC § 11.00(l)).
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
8
Safety Act (MAUCRSA), which is codified in Business and
Professions Code sections 26000 to 26260. The stated purpose of
MAUCRSA was “to establish a comprehensive system to control
and regulate the cultivation, distribution . . . and sale” of
medicinal and adult-use cannabis and to set forth “the power and
duties of the state agencies responsible for controlling and
regulating the commercial . . . cannabis industry.” (Bus. & Prof.
Code, § 26000, subds. (b) & (c).)
MAUCRSA creates a state licensing process for cannabis
businesses (Bus. & Prof. Code, § 26010 et seq.), including
penalties for licensing violations (§§ 26030–26037). It imposes
civil penalties for “unlicensed commercial cannabis activity,” and
provides that in addition to these civil penalties, “criminal
penalties shall continue to apply to an unlicensed person
engaging in commercial cannabis activity in violation of this
division.” (§ 26038, subds. (a)(1), (f).)
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 Business and Professions Code
section 26030 includes, as a basis for disciplinary action, “Failure
to comply with the requirement of a local ordinance regulating
commercial cannabis activity.” MAUCRSA includes a provision
protecting landlords who rent to cannabis businesses from
prosecution, but only if they rent to businesses that comply with
state and local licensing requirements: “The actions of a person
who, in good faith, allows his or her property to be used by a
licensee . . . as permitted pursuant to a state license and, if
required by the applicable local ordinances, a local license or
permit, are not unlawful under state law.” (Bus. & Prof. Code,
9
§ 26032, subd. (b).) Finally, MAUCRSA provides that “[t]his
division shall not be interpreted to supersede or limit the
authority of a local jurisdiction to adopt and enforce local
ordinances to regulate businesses licensed under this division,
including, but not limited to, local zoning and land use
requirements, business license requirements, . . . or to completely
prohibit the establishment or operation of one or more types of
businesses licensed under this division within the local
jurisdiction. [¶] . . . This division shall not be interpreted to
supersede or limit existing local authority for law enforcement
activity, enforcement of local zoning requirements or local
ordinances, or enforcement of local license, permit, or other
authorization requirements.” (Bus. & Prof. Code, § 26200,
subd. (a)(1), (2).)
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) (Health & Saf. Code, § 11000 et seq.)
includes cannabis under the category of “hallucinogenic
substances.” (Health & Saf. Code, §§ 11054, subd. (d)(13), 11018,
11007.)
In particular, Health and Safety Code section 11366.5,
subdivision (a) provides that “[a]ny person who has under his or
her management or control any building . . . as an owner . . . who
knowingly rents, leases, or makes available for use . . . the
building . . . for the purpose of unlawfully manufacturing,
storing, or distributing any controlled substance for sale or
distribution shall be punished by imprisonment . . . for not more
10
than one year.” As cannabis is a controlled substance (Health &
Saf. Code, § 11054), and engaging in unlicensed commercial
cannabis activity is a crime (Bus. & Prof. Code, § 26038,
subd. (c)), the state misdemeanor penalty in section 11366.5
would apply to a landlord who knowingly leases a building to an
unlicensed cannabis shop.
3. Nuisance
Finally, the state’s general nuisance statute, Penal Code
section 373a, could also apply in situations where a landlord
allows unlicensed commercial cannabis activity to occur on his or
her property. This statute imposes misdemeanor penalties on
every “person who maintains, permits, or allows a public
nuisance to exist upon his or her property or premises . . . after
reasonable notice . . . to remove, discontinue, or abate.” (§ 373a.)
C. Principles of preemption
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
(Health & Saf. Code, § 11366.5) or notice and an opportunity to
abate (Pen. Code, § 373a).
Article XI, section 7 of the California Constitution states
that “[a] county or city may make and enforce within its limits all
local, police, sanitary, and other ordinances and regulations not
in conflict with general laws.” “This inherent local police power
11
includes broad authority to determine, for purposes of the public
health, safety, and welfare, the appropriate uses of land within a
local jurisdiction’s borders.” (City of Riverside v. Inland Empire
Patients Health & Wellness Center, Inc. (2013) 56 Cal.4th 729,
738 (Inland Empire).)
“[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 Cal. Const., art. XI, § 7.)
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;
12
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
13
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 also held that the local ordinances did not
contradict state law. It was possible to comply with both the local
ordinances and state law, by refraining from cultivating or
distributing medical marijuana within the city’s boundaries, and
the state laws did not require local governments to authorize,
allow, or accommodate medical marijuana dispensaries. (Id. at
pp. 754–755, 759.) Finally, Inland Empire held there was “no
attempt by the Legislature to fully occupy the field of medical
marijuana regulation as a matter of statewide concern, or to
partially occupy this field under circumstances indicating that
further local regulation will not be tolerated,” particularly in light
of the varying local interests involved. (Id. at p. 755.) “[W]hile
some counties and cities might consider themselves well suited to
14
accommodating medical marijuana dispensaries, conditions in
other communities might lead to the reasonable decision that
such facilities within their borders . . . would present
unacceptable local risks and burdens.” (Id. at p. 756.)
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
15
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 with the
enactment of MAUCRSA in 2017, creating a far more
comprehensive regulatory scheme that now encompasses both
medicinal and recreational adult-use cannabis. (Bus. & Prof.
Code, § 26000.) But the same principles articulated in the Inland
Empire line of cases apply to broader state laws, including
MAUCRSA. In Safe Life Caregivers v. City of Los Angeles (2016)
243 Cal.App.4th 1029, 1045, the court rejected the notion that,
given the enactment in 2015 of more comprehensive state
medical marijuana legislation, “regulation of medical marijuana
is now a matter of statewide concern, which therefore preempts
municipal regulation.” The court concluded that regulation of
medical marijuana “solely within the City’s borders” is still a
“wholly municipal matter.” (Ibid.) Similarly, in City of Vallejo v.
NCORP4, Inc. (2017) 15 Cal.App.5th 1078, decided shortly after
the enactment of MAUCRSA, the court held that a local
ordinance treating medical marijuana dispensaries as a public
nuisance, but granting limited immunity to dispensaries that met
certain requirements, was not preempted. The court noted that
MAUCRSA—like its predecessor statutes—does not mandate
that local governments authorize, allow, or accommodate the
existence of marijuana dispensaries (id. at p. 1081), and does not
preempt “ ‘the authority of California cities and counties, under
their traditional land use and police powers, to allow, restrict,
16
limit, or entirely exclude’ ” dispensaries, and to “ ‘enforce such
policies by nuisance actions’ ” (id. at p. 1082).
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.” (Id. at p. 1071.)
Given the state’s “comprehensive enactment of penalties for
crimes involving controlled substances, but exclusion from that
scheme of any provision for vehicle forfeiture for simple
17
possessory drug offenses,” the local ordinance imposing such a
penalty was preempted. (Id. at p. 1072.)
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,
18
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
19
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
20
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.
E. Application of preemption principles to LAMC
sections 104.15(a)1 and (b)4, and 12.21A.1.(a)
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. (Bus. & Prof. Code, §§ 26030, subd. (f),
26200, subd. (a)(1).) MAUCRSA states explicitly that its
provisions “shall not be interpreted to supersede or limit existing
local authority for law enforcement activity” as well as for
“enforcement of local zoning requirements or local ordinances, or
enforcement of local license, permit, or other authorization
requirements.” (Bus. & Prof. Code, § 26200, subd. (a)(2), italics
added.)
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
(Health & Saf. Code, § 11054, subd. (d)(13)), under current law it
is primarily regulated by MAUCRSA rather than prohibited by
UCSA. Possession of cannabis for personal use by persons over
21 is no longer a crime under state law. (§ 11362.1.) State
criminal penalties apply to commercial cannabis-related
activities only if they fail to comply with MAUCRSA. (Bus. &
Prof. Code, § 26038, subds. (a), (c).)
21
Even though the state has not occupied the field, the
ordinances at issue may still be preempted if they duplicate or
contradict state law. Wheeler argues that LAMC section 104.15
duplicates and conflicts with section 11366.5 of the Health and
Safety Code, in that it penalizes the same conduct—leasing a
building to an unlicensed cannabis shop—but the local ordinance
imposes strict liability while the state law requires proof of
knowledge.
The two provisions, however, are not coextensive. Section
11366.5 of the Health and Safety Code penalizes landlords if they
knowingly permit any of a wide range of drug-related activities to
occur on property located anywhere in the state, including the
manufacture, distribution, or sale of any controlled substance.
So, for example, landlords who knowingly allow a
methamphetamine manufacturing lab, a cocaine-distributing
cartel, or a street-level heroin dealer to operate on their property
could be prosecuted under this statute. LAMC section 104.15, in
contrast, applies only to landlords who allow commercial
cannabis activity to occur on their property within the City,
without a City-issued license. It is not the presence of a
controlled substance that triggers enforcement of this ordinance,
but the location of the business within the City and the absence
of a license. Nor are the state and local provisions contradictory
in the sense of being “inimical.” It is possible for landlords to
comply with both of them, by refraining from allowing an
unlicensed cannabis business to operate on property located in
the City.
LAMC section 104.15 and section 11366.5 of the Health and
Safety Code are also not duplicative or contradictory in the
broader sense discussed in O’Connell, Portnoy, and similar cases,
22
where local criminal or quasi-criminal ordinances were held to be
preempted because they imposed different, broader, or harsher
penalties for the same conduct addressed in state criminal laws.
Cannabis, unlike other controlled substances such as
methamphetamine, cocaine, and heroin, is not unlawful in all
contexts. Through successive enactments of state and local
legislation, cannabis has gradually come to be regulated in a
manner more similar to alcohol, prescription medications, or
firearms than to these other controlled substances. There is no
such thing as a licensed methamphetamine lab or heroin
dealership. Any manufacture, distribution, or commercial
activity involving these other controlled substances is necessarily
clandestine, so it would violate basic principles of fairness to
impose strict liability on a landlord from whom such activity has
been successfully concealed. But cannabis shops are businesses,
operating openly in public, and so it is not unfair to impose on
landlords the responsibility to ensure that they are licensed,
especially because cannabis businesses are required to display
their licenses prominently, and the City maintains a publicly
accessible website listing all licensed cannabis businesses.
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
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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 12.21A.1(a), and its
enforcement through the City’s nuisance ordinances, is not
preempted by section 373a of the Penal Code, even though the
ordinance lacks the explicit notice requirement contained in the
state statute. Once again, the state has explicitly disavowed any
intention to occupy the field of nuisance abatement. (Gov. Code,
§ 38771 [“By ordinance the city legislative body may declare what
constitutes a nuisance”]; Inland Empire, supra, 56 Cal.4th at
p. 761 [“[n]uisance law is not defined exclusively by what the
state makes subject to, or exempt from, its own nuisance
statutes”; unless there is “clear conflict with general law, a city’s
or county’s inherent, constitutionally recognized power to
determine the appropriate use of land within its borders
[citation] allows it to define nuisances for local purposes”].)
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 104.15(a)1, 104.15(b)4, and 12.21A.1.(a) are not
preempted by state law.
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III. The appellate division did not err in reversing the Penal
Code section 1385 dismissal.
Section 1385, subdivision (a) of the Penal Code provides
that “[t]he judge . . . may . . . in furtherance of justice, order an
action to be dismissed.” The standard for appellate review of a
decision to dismiss charges in the furtherance of justice is abuse
of discretion. (People v. Williams (1998) 17 Cal.4th 148, 162;
People v. S.M. (2017) 9 Cal.App.5th 210, 218.) This standard of
review is “deferential. [Citations.] But is not empty.” (Williams,
at p. 162 [affirming Court of Appeal’s ruling that trial court’s
Pen. Code, § 1385 dismissal was abuse of discretion].) Although
the trial court’s discretion to dismiss pursuant to Penal Code
section 1385 is broad, it is “ ‘ “by no means absolute.” ’ ”
(Williams, at p. 158.)
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 Penal Code section 1385 and concluded that “ ‘ “several
general principles emerge. Paramount among them is the rule
‘that the language . . . [citation] “in furtherance of justice,”
requires consideration both of the constitutional rights of the
defendant, and the interests of society represented by the
People . . . .’ . . . ” “ . . . in ‘the fair prosecution of crimes properly
alleged.’ ” ’ ” (Williams, at p. 159.) A trial court abuses its
discretion if its Penal Code section 1385 dismissal is “ ‘ “guided
solely by a personal antipathy for the effect that the . . . law
would have on [a] defendant.” ’ ” (Williams, at p. 159; People v.
McGlothin (1998) 67 Cal.App.4th 468, 476 [“A court may not
25
simply substitute its own opinion of what would be a better
policy, or a more appropriately calibrated system of punishment,
in place of that articulated by the People”].)
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.”
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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 article VI, section 6 of the California
Constitution.
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