State v. City Court of City of Tucson, s. 2

• Decision Date: 19 April 1988
• Docket Number: CA-CV,Nos. 2,s. 2
• Citation: 157 Ariz. 599,760 P.2d 599
• Parties: STATE of Arizona, Petitioner/Appellant, v. The CITY COURT OF the CITY OF TUCSON, the Honorable Carmen Dolny, a Magistrate thereof; the Superior Court of the State of Arizona, County of Pima, the Honorable John Hawkins, a judge thereof, Respondents, and Timothy HARING, Real Party in Interest/Appellee. STATE of Arizona, Petitioner/Appellant, v. The CITY COURT of the CITY OF TUCSON, the Honorable Margarita Bernal, a Magistrate thereof; the Superior Court of the State of Arizona, County of Pima, the Honorable Thomas Meehan, a judge thereof, Respondents, and Marvin LITTLES, Real Party in Interest/Appellee. 87-0351, 2 87-0353.
• Court: Arizona Court of Appeals

Page 599

760 P.2d 599

157 Ariz. 599

STATE of Arizona, Petitioner/Appellant, v. The CITY COURT OF the CITY OF TUCSON, the Honorable Carmen Dolny, a Magistrate thereof; the Superior Court of the State of Arizona, County of Pima, the Honorable John Hawkins, a judge thereof, Respondents and Timothy HARING, Real Party in Interest/Appellee STATE of Arizona, Petitioner/Appellant, v. The CITY COURT of the CITY OF TUCSON, the Honorable Margarita Bernal, a Magistrate thereof; the Superior Court of the State of Arizona, County of Pima, the Honorable Thomas Meehan, a judge thereof, Respondents and Marvin LITTLES, Real Party in Interest/Appellee.

Nos. 2 CA-CV 87-0351, 2 CA-CV 87-0353.

Court of Appeals of Arizona Division 2, Department B.

April 19, 1988.

Review Granted Sept. 27, 1988.

[157 Ariz. 600] Frederick S. Dean, City Atty. by L. Michael Anderson and M.J. Raciti, Tucson, for petitioner/appellant.

Dunscomb and Shepherd, P.C. by Denice R. Shepherd, Tucson, for real parties in interest/appellees.

OPINION

ROLL, Judge.

In these unrelated cases, the state appeals the decisions of two Tucson city magistrates granting jury trials for two defendants charged with misdemeanor possession of marijuana. For the reasons set forth below, we conclude that the possibility of six months' incarceration and/or a $1000 fine as punishment for the class 1 misdemeanor of unlawful possession of marijuana does not require a trial by jury.

FACTS

1. Marvin Littles (Cause No. 245298, 2 CA-CV 87-0353)

On August 29, 1987, Marvin Littles was arrested for drinking in public in Tucson, Arizona. A police officer found a baggie of marijuana and some rolling papers in Littles' pocket. Littles was cited for unlawful possession of marijuana pursuant to A.R.S. § 13-3405 and for drinking in public, a violation of A.R.S. § 4-244, both misdemeanor charges. On September 8, 1987, over the state's objection, a city magistrate set the matter for a jury trial to commence December 3, 1987.

2. Timothy Haring (Cause No. 245299, 2 CA-CV 87-0351)

On August 19, 1987, Haring was arrested by Tucson police officers after the police learned that Haring was named in outstanding misdemeanor warrants for: (1) driving under the influence of intoxicating liquor (DUI); (2) driving while having a blood alcohol content of more than .10%; and (3) failure to appear regarding the preceding charges. The arrest resulted in the discovery of marijuana, and Haring was charged with unlawful possession of marijuana, a class 1 misdemeanor. On August 20, 1987, the city magistrate set the matter for jury trial.

The state filed petitions for special action in both matters and relief was denied. These consolidated appeals followed.

ISSUES ON APPEAL

The sole issue on appeal is whether Littles and Haring are entitled to jury trials for their respective misdemeanor charges of possession of marijuana.

DISCUSSION

Unlawful possession of marijuana may be either a class 6 felony or a class 1 misdemeanor. The parties to this appeal agree that the charges against Littles and Haring are class 1 misdemeanors. ¹ A class 1 misdemeanor is punishable by up to 6 months' incarceration and/or a $1000 fine. A.R.S. § 13-802(A).

In Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), the Supreme Court held that the Sixth Amendment, as applied to the states through the Fourteenth Amendment, requires that persons accused of serious crimes be afforded the right to trial by jury and reaffirmed the wellestablished rule that petty offenses may be tried without a jury. In determining whether an offense is a petty offense, both the maximum possible period of imprisonment and the maximum possible fine must be considered.

The Supreme Court has announced that "no offense can be deemed 'petty' for purposes of the right to trial by jury where imprisonment for more than six months is authorized." Baldwin v. New York, 399 U.S. 66, 69, 90 S.Ct. 1886, 1888, 26 L.Ed.2d 437, 440 (1970) (footnote omitted). However, the Supreme Court has declined to state precisely when a potential fine renders an offense "serious" such that the matter must be tried to a jury. Muniz v. Hoffman, 422 U.S. 454, 477, 95 S.Ct. 2178, 2191, 45 L.Ed.2d 319, 335 (1975).

Until 1984, federal law provided that the maximum punishment for a petty offense was a $500 fine and/or six months' imprisonment. 18 U.S.C. § 1(3). In United States v. Hamdan, 552 F.2d 276 (9th Cir.1977), the Ninth Circuit stated that "[i]t is not unrealistic to treat any fine in excess of $500 as a serious matter to all individuals...." Id. at 280. However, in a footnote, the court stated:

The value of money changes, of course, as does the wealth of the economy. But Congress can be expected to adjust the monetary standard of [18 U.S.C.] section 1(3) so that it will continue to represent a fair judgment as to the appropriate line between petty and serious offenses.

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Whether [18 U.S.C.] § 1(3) reflects an appropriate referent in determining the constitutional standard in light of future changes in the value of money or in future amendments of the statute will, of course, remain a question for the courts to determine. (Citation omitted.)

552 F.2d at 280 n. 3. Our supreme court has previously rejected the Ninth Circuit's pronouncement in Hamdan that offenses punishable by more than a $500 fine must be tried to a jury, concluding that Hamdan was based upon 18 U.S.C. § 1(3). State ex rel. Baumert v. Superior Court, 127 Ariz. 152, 155, 618 P.2d 1078, 1081 (1980).

In 1984, Congress raised the maximum fine for petty offenses from $500 to $5000. Criminal Fine Enforcement Act of 1984, Pub.L. No. 98-596, § 8, 98 Stat. 3134, 3138 (1984).

Haring and Littles argue that the recent Ninth Circuit decision of Rife v. Godbehere, 814 F.2d 563, amended 825 F.2d 185 (9th Cir.1987) stands for the proposition that an offense punishable by a $1000 fine is a serious offense requiring a jury trial. Rife was denied a jury trial after being charged with three counts of unlawful use of a telephone to terrify, intimidate, threaten, annoy, or HARASS in violation of A.R.S. § 13-2916, a class 1 misdemeanor. Rife filed a habeas corpus petition, claiming that his constitutional right to a jury trial had been denied. The Ninth Circuit held: "Rife was charged with a Class I misdemeanor, punishable by up to a $1,000 fine. Ariz.Rev.Stat.Ann. § 13-802(A). Therefore, the crime charged was serious, and he was entitled to a jury trial." Id., 814 F.2d at 565. The Ninth Circuit later concluded in its amended opinion that the 1984 amendment to 18 U.S.C. § 1(3) was irrelevant to its decision since Rife committed the offenses before the federal petty offense maximum fine was increased from $500 to $5000. Id., 825 F.2d at 185.

The matters before us, of course, arose after the 1984 amendment to 18 U.S.C. § 1(3). Congress has, as the Ninth Circuit predicted in Hamdan, raised the maximum fine for federal petty offenses. It would seem incongruous that in federal court, a petty offense with no right to a trial by jury is now punishable by a fine of up to $5000 while in state court, an otherwise petty offense has become a serious offense triable by a jury, because the maximum fine is $1000. We do not believe that Rife retains vitality in view of the 1984 Amendment of 18 U.S.C. § 1(3).

Our supreme court has stated that three factors must be considered in determining whether a defendant has a constitutionally guaranteed right to a jury trial: (1) the severity of the possible penalty; (2) the relation of the offense to common law crimes; and (3) whether the act involves moral turpitude. Rothweiler v. Superior Court, 100 Ariz. 37, 410 P.2d 479 (1966); State ex rel. Dean v. City Court of Tucson, 141 Ariz. 361, 362, 687 P.2d 369, 370 (App.1984); Spronken v. City Court of City of Tucson, 130 Ariz. 62, 63-64, 633 P.2d 1055, 1056-57 (App.1981). The supreme court has rejected the notion that a penalty of six months' incarceration and a $1000 fine are so serious as to require a jury trial. State ex rel. Baumert v. Superior Court, supra. The parties cite us to no authority, nor do we find a common law counterpart to the offense of unlawful possession of marijuana. Regarding moral...