Hooper v. Deukmejian

• Citation: 176 Cal.Rptr. 569,122 Cal.App.3d 987
• Court: California Court of Appeals
• Decision Date: 26 August 1981
• Parties: Rachel HOOPER, et al., Plaintiffs and Appellants, v. George DEUKMEJIAN, et al., Defendants and Respondents. Civ. 50576.

Page 569

176 Cal.Rptr. 569

122 Cal.App.3d 987

Rachel HOOPER, et al., Plaintiffs and Appellants, v. George DEUKMEJIAN, et al., Defendants and Respondents.

Civ. 50576.

Court of Appeal, First District, Division 3, California.

Aug. 26, 1981.

Rehearing Denied Sept. 25, 1981.

Hearing Denied Oct. 21, 1981.

Peter E. Sheehan, Pauline Gee, Clifford C. Sweet, Legal Aid Society of Alameda County, Oakland, for plaintiffs and appellants.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Crim. Div., Edward P. O'Brien, Asst. Atty. Gen., Karl S. Mayer, Caren Dorshkind, Jean M. Bordon, Deputy Attys. Gen., San Francisco, for defendants and respondents.

WHITE, Presiding Justice.

Plaintiffs and appellants appeal from the judgment dismissing their complaint which was entered after the trial court sustained the demurrer with leave to amend of defendants and respondents, and plaintiffs did not amend their complaint. The controversy in the instant case centers on the statutory scheme that was enacted by the Legislature in 1975 and 1976 which covers the treatment of marijuana offenses and offenders. (Stats.1975, ch. 248, pp. 641-649; Stats.1976, ch. 952, pp. 2177-2180.) This legislation provides that persons convicted of certain marijuana-related offenses and who have served their sentences and persons arrested for certain marijuana-related offenses may not be further penalized on account of their marijuana convictions or arrests. The principal issue presented in this case is whether the benefits afforded by this legislation are applicable to a person convicted of maintaining a place for the use or sale of a narcotic (Health & Saf. Code, § 11366, formerly Health & Saf. Code, § 11557) when that person's conviction was stipulated or designated to be a lesser included offense of the offense of possession of marijuana.

Parties

Plaintiffs and appellants herein are Rachel Hooper and John Doe. It is alleged in the complaint that John Doe is a resident of the City of Oakland and is proceeding under an anonymous name. John Doe is suing on his own behalf and on behalf of all others similarly situated. John Doe "represents the class of all individuals who, prior to 1969, had been convicted of maintaining a place for the sale or use of a narcotic when said offense was designated as or stipulated to be, a lesser included offense of possession of marijuana." It is alleged in the complaint that Rachel Hooper is a resident of the County of Alameda and is a taxpayer of the State of California.

The complaint names as defendants George Deukmejian, the California State Personnel Board (hereafter referred to as the Board) and the individual members of the Board. It is alleged that Deukmejian is the Attorney General of the State of California and the Chief of the California Department of Justice. Deukmejian is responsible for the collection, storage, dissemination, destruction and obliteration of "state summary criminal history information" (hereafter referred to as arrest record). (Pen.Code, § 11105.) It is further alleged that the Board, a state agency, and its members are charged with "administering the California Civil Service Act and regulations promulgated thereunder including those governing the application procedures and information to be supplied by individuals desiring to work under the California Civil Service System."

Rules Pertaining to Our Review

A trial court abuses its discretion in sustaining a demurrer without leave to amend, if there is a reasonable possibility that a defect in the complaint can be cured by amendment or if the pleading can be liberally construed to state a cause of action. (Minsky v. City of Los Angeles (1974) 11 Cal.3d 113, 118, 113 Cal.Rptr. 102, 520 P.2d 726; La Sala v. American Sav. & Loan Assn. (1971) 5 Cal.3d 864, 876, 97 Cal.Rptr. 849, 489 P.2d 1113; Baldwin v. Marina City Properties, Inc. (1978) 79 Cal.App.3d 393, 414, 145 Cal.Rptr. 406. When the trial court sustains a demurrer with leave to amend and the plaintiff elects not to do so, the presumption is that he has stated as strong a case as he can; and in determining whether or not the trial court abused its discretion, we must resolve all ambiguities and uncertainties raised by the demurrer against the plaintiff. (Archibald v. Cinerama Hawaiian Hotels, Inc. (1977) 73 Cal.App.3d 152, 155-156, 140 Cal.Rptr. 599; Gonzales v. State of California (1977) 68 Cal.App.3d 621, 635, 137 Cal.Rptr. 681; Hiemstra v. Huston (1970) 12 Cal.App.3d 1043, 1045, 91 Cal.Rptr. 269; Hilltop Properties v. State of California (1965) 233 Cal.App.2d 349, 361-362, 43 Cal.Rptr. 605.) When a plaintiff elects not to amend a complaint after a demurrer has been sustained with leave to amend, if the complaint is objectionable on any ground raised by the demurrer, the judgment of dismissal must be affirmed. (Gonzales v. State of California, supra, at p. 635, 137 Cal.Rptr. 681; Hiemstra v. Huston, supra, at p. 1045, 91 Cal.Rptr. 269.) However, most objections to a pleading are waived if not raised by way of demurrer or answer. "If the party against whom a complaint or cross-complaint has been filed fails to object to the pleading, either by demurrer or answer, he is deemed to have waived the objection unless it is an objection that the court has no jurisdiction of the subject of the cause of action alleged in the pleading or an objection that the pleading does not state facts sufficient to constitute a cause of action." (Code Civ.Proc., § 430.80.) Whether the demurrer is sustained with or without leave to amend, "(a) demurrer admits all material and issuable facts properly pleaded. (Citations.) However, it does not admit contentions, deductions or conclusions of fact or law alleged therein." (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713, 63 Cal.Rptr. 724, 433 P.2d 732.) In order for us to properly perform our duty to review the propriety of the order sustaining the demurrer with leave to amend in the instant case, it is necessary to set out the allegations contained in the complaint and the grounds for the demurrer.

Allegations Contained in the Complaint

1. First Cause of Action.

John Doe alleges in November of 1967 he was arrested in San Diego because he was in possession of four marijuana cigarettes. Subsequently, an information was filed charging Doe with possession of marijuana, a felony (former Health & Saf., § 11530). Doe entered a plea of not guilty. On April 29, 1968, Doe withdrew his plea of not guilty to the possession of marijuana charge and entered a plea of guilty to a violation of former Health and Safety Code section 11557 (opening or maintaining any place for the selling, giving away or using of a narcotic.) It was adjudicated that the violation of former Health and Safety Code section 11557 was a misdemeanor, and the violation "was designated as, and stipulated to be, a lesser included offense to the charge of possession of marijuana." Doe was placed on probation which he satisfactorily completed in 1970 and in August of 1970 Doe's conviction was set aside pursuant to Penal Code section 1203.4.

The sole reason for Doe's withdrawal of his plea of not guilty to the possession of marijuana charge and the entry and acceptance of his guilty plea to a violation of former Health and Safety Code section 11557 and the stipulation and designation of said offense as a lesser included offense of possession of marijuana, was to afford the court the option of sentencing Doe as a misdemeanant. Doe did not violate former Health and Safety Code section 11557.

Between 1965 and the end of 1968 more than 90,000 individuals were arrested for felony marijuana offenses. Plaintiffs are informed and believe that during this period approximately 1,500 individuals entered guilty pleas to violating former Health and Safety Code section 11557 after being charged with possession of marijuana.

At the time Doe was arrested and convicted the punishment for possession of marijuana was imprisonment in state prison for one to ten years. "The only method at that time by which a court could classify and punish a defendant charged with possession of marijuana as a narcotics misdemeanant was by means of a defendant's plea to some lesser offense, such as maintaining a place where narcotics are used, which was then classified as a misdemeanor."

In 1972 Doe applied for a position as a janitor with a governmental agency. Doe was initially notified by the agency that he had passed the relevant examination for the position and that his name had been placed on the eligible list for the position. Subsequently the agency disqualified Doe from employment solely on the basis of his conviction for a violation of former Health and Safety Code section 11557.

The policy of the Board is to require the disclosure of and to consider convictions of former Health and Safety Code section 11557 which were stipulated to be lesser included offenses of possession of marijuana. The employment application form used by the Board asks: " 'Have you ever been convicted by any court of an offense? The following need not be reported: ... Any conviction specified in Health and Safety Code section 11361.5. This section pertains to various marijuana offenses.' " Doe and members of the class wish to apply to the Board and other employers but do not wish to disclose their convictions or have their convictions considered in evaluating them for employment.

Deukmejian maintains and disseminates an arrest record which contains the entry that Doe was convicted of former Health and Safety Code section 11557 which was designated as and stipulated to be a lesser included offense of possession of marijuana. Doe requested Deukmejian to destroy or obliterate records of his conviction of former section 11557 and Deukmejian refused to do so. Deukmejian has adopted a policy pursuant to which he will not obliterate or destroy records of convictions of former section 11557 which were stipulated to be lesser...