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Name: In re Jorge D.
Case #: G051403
Court: CA Court of Appeal
District 4 DCA
Division: 3
Opinion Date: 04/06/2016
Summary

Order declaring minor a ward reversed because arresting officer did not comply with Penal Code section 647, subdivision (g) by placing the intoxicated minor in civil protective custody. An officer arrested Jorge for being drunk in public (Pen. Code, § 647, subd. (f)). During delinquency proceedings, the officer testified that he drove Jorge home and did not place him in civil protective custody because the officer was unaware of a statute that required him to do so. The juvenile court declared Jorge a ward. Jorge appealed, arguing the detaining officer did not comply with section 647, subdivision (g). Held: Reversed. Section 647, subdivision (g) states that “[w]hen a person violates [section 647,] subdivision (f), a peace officer, if he or she is reasonably able to do so, shall place the person . . . in civil protective custody. The person shall be taken to a facility . . . . for the 72-hour treatment and evaluation of inebriates. . . . A person who has been placed in civil protective custody shall not thereafter be subject to any criminal prosecution or juvenile court proceeding based on the facts giving rise to this placement.” Subdivision (g) also provides that it does not apply in specified circumstances that were not applicable in this case. If the arresting officer does not comply with section 647, subdivision (g) by placing the intoxicated defendant in civil protective custody, the defendant can use this fact as a defense to a subsequent criminal or juvenile prosecution. (People v. Ambellas (1978) 85 Cal.App.3d Supp. 24.) Here, the officer was unaware of section 647, subdivision (g) and took Jorge home to his mother instead of placing him in civil protective custody. Under Ambellas, the juvenile court’s true finding must be reversed.

Evidence that minor possessed Bic lighter is insufficient to sustain a conviction for being a minor in possession of tobacco or tobacco paraphernalia (Pen. Code, § 308). When the officer searched Jorge incident to his arrest, the officer found a Bic lighter. Based on Jorge’s possession of the lighter, the juvenile court found true an allegation that Jorge was in possession of tobacco or tobacco paraphernalia. On appeal, Jorge argued that possession of the lighter was insufficient to sustain the true finding. The Court of Appeal agreed. Section 308 provides that it is a crime to be a minor in possession of tobacco or “any other instrument or paraphernalia that is designed for the smoking of tobacco.” The court here concluded that “the Legislature intended with section 308 to prohibit minors from possessing instruments or paraphernalia used to hold tobacco to be smoked. It did not intend to prohibit minors from possessing lighters.” Although a lighter is used to light tobacco products, it was not “designed” specifically to do so: “There are myriad uses for a lighter.” Had the Legislature wanted to prohibit minors from possessing lighters it would have expressly done so.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/G051403.PDF