Master Jorge was contacted by the police while hanging out with some older kids. The policeman thought Jorge drunk and unable to safely make it home. Jorge was arrested, given a citation, and driven home. Also, Jorge had a Bic lighter in his pocket.
For this peccadillo the state decided it would be a good idea to prosecute Jorge and seek to have him declared a ward of the court. Jorge took his case to trial and after receiving evidence the good judge found him guilty of both PC 647(f), being drunk in public, and PC 308, minor in possession of a device designed for smoking tobacco, a misdemeanor. The judge declared Jorge a ward of the court and Jorge appealed.
A panel from the Fourth District reverses both counts.
PC 647(f) criminalizes being drunk or high in public to the point you are unable to take care of yourself. 647(g) states that upon an arrest for 647(f), if the arresting officer is reasonably able to do so, she shall place the arrestee in civil protective custody under W&I Code section 5170, unless drugs are involved, the person has committed a felony or another misdemeanor, or if the officer has a good-faith belief that the person will try to escape or be difficult to control. A person who has been placed in W&I 5170 protective custody cannot thereafter be prosecuted for 647(f).
At trial, there was no evidence the police officer was aware of the requirements of 647(g), let alone attempted to comply with them. Jorge argued that failure to comply with 647(g) was a legal defense to a 647(f) charge. The panel agreed and found and the trial court erred when it convicted Jorge, since once Jorge raised the issue the burden switched to the state to show that the failure to place Jorge per W&I 5170 was reasonable, and the state failed to meet that burden.
As to the PC 308 count, the issue was whether a Bic lighter is a device "designed for smoking tobacco". The panel held it was not, rather a lighter is designed to generate a flame, the subsequent use of which is up to the user. A lighter is no more designed for smoking tobacco than it is designed for freebasing cocaine or designed for torching a building to get the insurance money.
The upshot of all this is that, despite the best efforts of Senate candidate Kamala Harris, Jorge is no longer a ward of the court for having drunk a little alcohol while having a disposable lighter in his pocket.
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