People v. Aguiar

• Decision Date: 04 January 1968
• Docket Number: Cr. 6174
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. George Wayne AGUIAR, Defendant and Appellant.

Page 171

65 Cal.Rptr. 171

257 Cal.App.2d 597

PEOPLE of the State of California, Plaintiff and Respondent, v. George Wayne AGUIAR, Defendant and Appellant.

Cr. 6174.

Court of Appeal, First District, Division 1, California.

Jan. 4, 1968.

Hearing Denied Feb. 28, 1968.

Robert J. Townsend, San Jose, for appellant (under appointment of the Court of Appeal).

Thomas C. Lynch, Atty. Gen. of the State of California, Robert R. Granucci, Don Jacobson, Deputy Attys. Gen., San Francisco, for respondent.

MOLINARI, Presiding Justice.

Defendant, on his appeal from a judgment of conviction for possession of marijuana in violation of section 11530 of the Health and Safety Code, ¹ makes the sole contention that said section is unconstitutional under the equal protection clause of the Fourteenth Amendment of the United States Constitution.

The bulk of defendant's argument, as set out in his briefs before this court consists of a law review article ² the thesis of which is that it is irrational to penalize simple possession for private use of marijuana, especially when similar possession of alcohol is not punished. In considering defendant's argument we note, preliminarily, that articles in law journals, while often persuasive and sometimes the catalyst in legislative change, are not binding upon the courts as judicial precedents.

An argument similar to that made in the instant case was urged in People v. Glaser, 238 Cal.App.2d 819, 48 Cal.Rptr. 427 (cert. den. 385 U.S. 880, 87 S.Ct. 164, 17 L.Ed.2d 107), ³ where, after taking cognizance that the courts have often upheld the constitutionality of California statutes prohibiting the possession of narcotics and dangerous drugs (see Matter of Yun Quong, 159 Cal. 508, 511--515, 114 P. 835; People v. Mistriel, 110 Cal.App.2d 110, 111--112, 241 P.2d 1050; People v. Oliver, 66 Cal.App.2d 431, 434--435, 152 P.2d 329, and see People v. Hicks, 222 Cal.App.2d 265, 271--272, 35 Cal.Rptr. 149, and People v. Shephard, 169 Cal.App.2d 283, 287, 337 P.2d 214), we held, relying upon the rationale of People v. Mistriel, supra, and Matter of Yun Quong, supra, that section 11530 is constitutional. In Yun Quong, dealing with opium, and in Mistriel, dealing with marijuana, the reviewing court rationalized that if reasonable men may entertain the belief that the use of these drugs, once begun, almost inevitably leads to excess, such belief affords a sufficient justification for applying restrictions to these drugs. In Yun Quong, supra, it is stated at 159 Cal. page 515, 114 P. page 838 that: '(T)he validity of legislation which would be necessary or proper under a given state of facts does not depend upon the actual existence of the supposed facts. It is enough if the lawmaking body may rationally believe such facts to be established.' (See also Miller v. Board of Public Works, 195 Cal. 477, 490, 234 P. 381, 38 A.L.R. 1479.)

The foregoing rationale was stated in People v. George, 42 Cal.App.2d 568, 573, 109 P.2d 404, 407: 'The enactment of laws for the protection of society is for the legislature and not for the courts unless a constitutional right is clearly violated by the statute. The courts must view such a statute * * * as intended to promote the general welfare and to protect the public interest. It is beyond our province to go behind the findings of the legislature and determine that there did not exist conditions which would justify the enactment. It is only when, beyond reasonable doubt, all rational men would agree that the factual background did not warrant the enactment of a statute which was ostensibly designed to preserve the general welfare that we can say that a statute is arbitrary and capricious.' (See also Southern Pac. Co. v. Railroad Com., 13 Cal.2d 89, 121, 87 P.2d 1055; People ex rel. Mosk v. National Research Co. of Cal., 201 Cal.App.2d 765, 772, 20 Cal.Rptr. 516; Lawton v. Board of Medical Examiners, 143 Cal.App.2d 256, 261, 299 P.2d 362.)

In addition to the foregoing principles, the following are also firmly established rules for determining the constitutionality of a statute: (1) A statute is presumed to be constitutional unless its unconstitutionality clearly and unmistakably appears, all intendments favor its validity, and mere doubt is not a sufficient reason for a judicial declaration of its invalidity (Fox, etc., Corp. v. City of Bakersfield, 36 Cal.2d 136, 141, 222 P.2d 879; Lockheed Aircraft Corp. v. Superior Court, 28 Cal.2d 481, 484, 171 P.2d 21, 166 A.L.R. 701; In re Cregler, 56 Cal.2d 308, 311, 14 Cal.Rptr. 289, 363 P.2d 305; Hart v. City of Beverly Hills, 11 Cal.2d 343, 348, 79 P.2d 1080); (2) the burden of overcoming the presumption of constitutionality is upon the assailant (Higgins v. City of Santa Monica, 62 Cal.2d 24, 31, 41 Cal.Rptr. 9, 396 P.2d 41; People v. Western Fruit Growers, 22 Cal.2d 494, 507, 140 P.2d 13); and (3) the existence of facts supporting the legislative judgment being presumed (Dribin v. Superior Court, 37 Cal.2d 345, 352, 231 P.2d 809, 24 A.L.R.2d 864), the reviewing court is limited to such facts as appear upon the face of the enactment, together with such others as are a matter of judicial cognizance (Los Angeles Co. Flood Control Dist. v. Hamilton, 177 Cal. 119, 125, 169 P. 1028; Monterey County Flood Control & Water Conservation Dist. v. Hughes, 201 Cal.App.2d 197, 201, 20 Cal.Rptr. 252).

In the present case defendant has not attempted to show that the original enactment of section 11530 was unreasonable. Instead, the thrust of his argument is that the statute should now be declared unconstitutional because there is no longer any rational basis for it. In this regard we first point out that it is not our province to weigh the desirability of the social policy underlying the statute or to question its wisdom. (See Allied Properties v. Dept. of Alcoholic Beverage Control, 53 Cal.2d 141, 146, 346 P.2d 737.) These are purely legislative matters. As stated in Fox, supra, 36 Cal.2d at pp. 141--142, 222 P.2d at p. 883, quoting Cooley (1 Cooley's Constitutional Limitation, 8th ed. p. 341), '(A)n act may not be held to be unconstitutional merely because it may contain provisions which seem to be unjust or oppressive, or because it may be deemed to violate the natural, social or political rights of citizens, unless it appears that those features of the act contravene rights which are guaranteed by the Constitution.'

Defendant's argument is essentially a due process argument. He contends that it is irrational to penalize the possession for private use of marijuana because there is no rational social purpose to be served by the criminal statute. The test of legislation under the due process clause of the Constitution is that there be some evidence on the basis of which the Legislature could enact the statute. (See Ferguson v. Skrupa, 372 U.S. 726, 729--731, 83 S.Ct. 1028, 10 L.Ed.2d 93; Williamson v. Lee Optical Co., 348 U.S. 483, 488, 491, 75 S.Ct. 461, 99 L.Ed. 563.) Accordingly, no valid objection to the constitutionality of a statute under the due process clause may be interposed 'if it is reasonably related to promoting the public health, safety, comfort, and welfare, and if the means adopted to accomplish that promotion are reasonably appropriate to that purpose.' (Higgins v. City of Santa Monica, supra, 62 Cal.2d at p. 30, 41 Cal.Rptr. at p. 13, 396 P.2d at p. 45; Allied Properties v. Dept. of Alcoholic Beverage Control, supra, 53 Cal.2d at p. 146, 346 P.2d 737.)

Defendant does not argue that there is no evidence that marijuana may produce antisocial phenomena. On the contrary, he cites such evidence and then proceeds ceeds to refute it with other evidence. We judicially notice that the view that the use of marijuana, once begun, leads to excess is entertained by many eminent medical authorities, some of whom, while of the opinion that marijuana does not produce physical addiction, believe that it does produce a serious degree of psychological dependence, that it encourages experimentation with other drugs, and that it may lead into addition to narcotics. We also judicially notice that there are other respected medical authorities who are of the opinion that marijuana is harmless, is not habit forming and does not lead into addiction to narcotics, and that some of these authorities hold that marijuana is no more harmful, and possibly less harmful, than alcohol. Under this state of affairs it is not for this court to weigh fact-finding studies against each other. This is a legislative function and we leave it to the Legislature to determine whether in its wisdom a change in or repeal of existing laws is warranted. So long as there is some evidence on which section 11530 could be based, the court must uphold it provided that it does not invidiously discriminate against any group and that it does not intrude on specially protected areas enumerated in the Bill of Rights, such as the freedom to hold and express ideas or the right to associate freely with persons of one's own choice.

We point out that there is no constitutionally protected right to indulge in the use of euphoric drugs. Defendant has cited no authority to the contrary, but asserts serts that since alcohol, like marijuana, is a euphoric, the possession of marijuana should be a constitutionally protected right as is the possession of alcohol. To this we respond that although the state does not now penalize the possession of alcohol acquired through lawful channels, it may do so if it chooses. (Crane v. Campbell, 245 U.S. 304, 307--308, 38 S.Ct. 98, 62 L.Ed. 304; In re Polizzotto, 188 Cal. 410, 412--413, 205 P. 676; In re Ajuria, 188 Cal. 799, 207 P. 516; Colacino v. People, 80 Colo. 417, 252 P. 350; Ziffrin, Inc. v. Reeves, 308 U.S. 132, 138--139, 60 S.Ct. 163, 84 L.Ed. 128; Allied Properties v. Dept. of Alcoholic Beverage Control, supra, 53 Cal.2d at p. 147, 346 P.2d 737.) As stated in Allied Propties, supra, 'A state has particularly wide powers with...