Opinion
Review Granted June 28, 1985.
Opinions on pages 1542-1629 omitted. [*]
Jack Morgan, San Francisco, for petitioner.
John K. Van de Kamp, Atty. Gen., Herbert F. Wilkinson, Blair W. Hoffman, Deputy Attys. Gen., Arlo Smith, Dist. Atty., Judith M. Garvey, Asst. Dist. Atty., San Francisco, for real party in interest.
R. Bruce Coplen, Los Angeles, for amicus curiae.
NEWSOM, Associate Justice.
Petitioner, Jennifer Davis, seeks a writ of mandate to compel the San Francisco Municipal Court to consider her for diversion [212 Cal.Rptr. 632] pursuant to Penal Code section 1001 et seq.
Unless otherwise noted, all further statutory references are to the Penal Code.
Petitioner was charged with felony grand theft ( § 487, subd. 1) and prostitution ( § 647, subd. (b)), a misdemeanor. Subsequently, the grand theft offense was reduced by a magistrate to a misdemeanor (cf. Pen.Code, § 17, subd. (b)(5)), petitioner was arraigned on the misdemeanor complaint, and the matter continued.
Thereafter, petitioner applied for an order of diversion, and the application was denied on the sole ground that, since the grand theft charge had been filed as a felony in the first instance, even though as a "wobbler" it could have been charged as a misdemeanor, she was ineligible for diversion. This was so because of the strictures of the local "Eligibility Requirements for Diversion Programs" (hereinafter "guidelines") according to which, moreover, where "wobblers" are first charged as misdemeanors, the defendant may be eligible for diversion, but only in exceptional cases where the court finds, and lays out on the record, good cause for such determination.
By "wobbler" we of course refer to legal parlance for a crime which may be alternatively a misdemeanor or a felony under the provisions of section 17, subdivision (b).
Those guidelines provide specifically that "[p]ersons initially charged by the District Attorney's office with misdemeanor violations of a section chargeable as either a felony or a misdemeanor (so-called 'wobblers')" are not eligible for the diversion program. (Guidelines, A.4.) They further provide that "[n]o exceptions to the above eligibility criteria may be made in the following cases: ... [p] 1. Offenses which were originally filed as felony charges and thereafter reduced by the court or district attorney pursuant to Penal Code Sections 17(b)(4) and 17(b)(5)." (Guidelines, B.2.) However, section B.3 goes on to specify that the court may make exceptions and grant diversion "[i]n the remaining misdemeanor cases, including offenses which could have been charged as felonies but which were charged initially by the district attorney's office as misdemeanor violations ..."
Petitioner sought relief in the superior court, contending that the local guidelines which deprived her of the benefits of the diversion statute denied her equal protection of laws under the Fourteenth Amendment to the United States Constitution and article I, section 7 of the California Constitution; that section 1001.1 by its terms provides for diversion in misdemeanor cases; that section 17, subdivision (b) mandates that a wobbler charged as a felony and then reduced will be treated as a misdemeanor for all purposes--including diversion eligibility--and that the prosecution-generated guidelines, by which the municipal court felt bound, hence impinge upon the doctrine of the separation of powers. (Cal. Const., art. III, § 3.)
The district attorney, relying primarily on People v. Padfield (1982) 136 Cal.App.3d 218, 185 Cal.Rptr. 903, contended below that the statute itself gave petitioner no right to participate in a diversion program, but merely authorized local communities to institute such programs, and to develop eligibility criteria as to which the statute is concedely silent.
Both the District Attorney of the City and County of San Francisco, and the Attorney General have filed returns to the alternative writ; the Los Angeles City Attorney's office has filed a brief as amicus curiae in support of the People.
The superior court, in a ruling not free from ambiguity, appears to have based its denial of the peremptory writ upon what it perceived as the ultimate fairness of the guidelines. Recognizing that our high court in Esteybar v. Municipal Court (1971) 5 Cal.3d 119, 95 Cal.Rptr. 524, 485 P.2d 1140 held that a prosecutorial power restricting the exercise of a magistrate's discretion pursuant to section 17, subdivision (b)(5) was unconstitutional as violative of the separation of powers, the court nevertheless opined that, since "wobbler" defendants originally charged as misdemeanants are also initially ineligible for diversion, the guidelines are free from constitutional [212 Cal.Rptr. 633] taint. No allusion appears in the order of denial respecting the "good cause" exception under which one first charged with a "wobbler" as a misdemeanant may become eligible. And, plainly, the superior court felt bound to utilize the guidelines.
We begin our discussion with a brief consideration of the propriety of writ relief in the instant proceedings. Petitioner, while conceding from the outset her ability to raise denial of diversion on appeal from a final judgment, nevertheless argues persuasively that this is not a plain, speedy and/or adequate remedy. The district attorney cites Sledge v. Superior Court (1974) 11 Cal.3d 70, 113 Cal.Rptr. 28, 520 P.2d 412 as authority to the contrary. However, as petitioner points out in her traverse, that case also acknowledges an exception where, as here, there exists a need promptly and definitely to resolve a constitutional challenge to an ongoing statutory program. (11 Cal.3d 70, 75-76, 113 Cal.Rptr. 28, 520 P.2d 412.) Moreover, Code of Civil Procedure section 904.1, subdivision (a)(4), as amended effective July 1, 1983, now provides that although a judgment denying a peremptory writ in the superior court is no longer appealable, the party seeking relief may petition anew for an original writ in the appellate courts. We hence conclude that the present procedure is a proper one.
Turning then to the substantive aspects of the instant petition, we perceive the first issue as being whether the guideline under which the municipal court rejected petitioner's application for diversion conflicts with the express terms of sections 17, subdivision (b)(5) and 1001.1.
At the outset, we are confronted by ambiguity and apparent inconsistency. Section 1001.1 provides that pretrial diversion is "the procedure of postponing prosecution of an offense filed as a misdemeanor ...." (Emphasis added.) Section 17, subdivision (b)(5), on the other hand, provides that a "wobbler" "is a misdemeanor for all purposes under the following circumstances: ... When, at or before the preliminary examination or prior to filing an order pursuant to Section 872, the magistrate determines that the offense is a misdemeanor, in which event the case shall proceed as if the defendant had been arraigned on a misdemeanor complaint." (Emphasis added.) Petitioner contends that, given the provisions of section 17, subdivision (b)(5), absent the offending guideline she would be generally eligible for diversion under the provisions of section 1001.1.
The People argue that the words "filed as a misdemeanor" (emphasis added) mean just that, so that a subsequent reduction under section 17, subdivision (b)(5) is irrelevant. In support of this view, they rely on People v. Marsh (1982) 132 Cal.App.3d 809, 183 Cal.Rptr. 455, and on People v. Holzer (1972) 25 Cal.App.3d 456, 102 Cal.Rptr. 11. We regard Marsh, supra, as being of little help to real party. There, a defendant was declared ineligible for drug diversion ( § 1000 et seq.) on grounds that, within five years of the alleged commission of the charged divertible offense, he had suffered a felony conviction. Marsh argued he should be diversion-eligible because his prior felony conviction was one that could have been reduced to a misdemeanor pursuant to section 17, subdivision (b)(3). The court rejected this argument, holding that later reduction of the earlier "wobbler" offense to a misdemeanor would not relate back to the time of the commission of the new offense for purposes of diversion eligibility pursuant to section 17, subdivision (b)(3).
Section 17, subdivision (b)(3) provides in relevant part that a "wobbler" is a misdemeanor for all purposes under the following circumstances: "When the court grants probation to a defendant without imposition of sentence and at the time of granting probation, or on application of the defendant or probation officer thereafter, the court declares the offense to be a misdemeanor."
People v. Holzer, supra, 25 Cal.App.3d 456, 102 Cal.Rptr. 11, was relied upon by the Marsh court. But Holzer seems to us similarly unhelpful to the People's position, [212 Cal.Rptr. 634] for there the defendant was on felony probation at the time of his arrest for a violation of section 12021 (ex-felon in possession of a firearm). Subsequently, the prior felony offense was reduced to a misdemeanor by virtue of a revocation of the felony probation and pronouncement of a county jail sentence ( § 17, subd. (b)(1)). The court sustained the section 12021 conviction because the defendant had in fact been a felon at the time of his weapon possession, explaining: "... Where an offense is punishable ... as [a] felony or ... misdemeanor, depending on the sentence imposed, it is a felony until the time of sentencing." (25 Cal.App.3d at p. 460, 102 Cal.Rptr. 11.)
Authority contrary to the People's position (that section 1001.1 limits diversion eligibility to those persons against whom the prosecutor lodges a misdemeanor complaint initially) is found in our opinion in Keener v. Municipal Court (1979) 91 Cal.App.3d 213, 154 Cal.Rptr. 107. Addressing former sections 800 and 801, we there held the misdemeanor statute of limitations applicable to a felony reduced to a misdemeanor under section 17, subdivision (b)(5). In apparent response, the Legislature amended section 801 to provide felony limitations periods applicable to reduced "wobblers."
And, section 801, as amended by Statutes 1980, chapter 1093, section 1, has been repealed by enactment of Statutes 1984, chapter 1270, section 1. The substance of the 1980 amendment is now contained in sections 801, 802 and 805, added by Statutes 1984, chapter 1270, section 2.
In our view, had the Legislature desired to make an exception in section 1001.1 to its express statement in section 17, subdivision (b)(5) that a reduced misdemeanor is a misdemeanor for all purposes, it could as easily have done so. Thus, the guideline under which the municipal court denied diversion is invalid on this ground.
Petitioner has also advanced, at least by implication, an equal protection argument as follows: she is a defendant charged with an offense which under section 17 has become a misdemeanor for all purposes, and denial to her of eligibility for a diversion program by virtue of a guideline which arbitrarily distinguishes between her and other persons charged with "wobblers" originally filed as misdemeanors, denies her equal protection, in violation of the Fourteenth Amendment of the United States Constitution and article I, section 7 of the California Constitution.
We also find merit in petitioner's argument that a prosecution-generated guideline--such as that in issue here--which absolutely precludes diversion for defendants originally charged with wobblers as felonies, unlawfully impinges on the doctrine of separation of powers for the reason that, by the express terms of section 1001.1, a defendant before the court on a complaint filed as a misdemeanor is eligible for diversion. Any reading of the statute which allows the local prosecutor to alter or mandate diversion eligibility conflicts with the provisions of article III, section 3 of the California Constitution.
At issue is the portion of section 1001.2, subdivision (b) which provides that "no program shall continue without the approval of the district attorney" and that "[n]o person shall be diverted under a program unless it has been approved by the district attorney." The People read this language as legislative authorization of local prosecutors to establish diversion eligibility guidelines which, they freely concede, was done here. But this purported control over diversion guidelines, real party argues, is unrelated to questions of judicial discretion and separation of powers. The People concede [212 Cal.Rptr. 635] that, by virtue of article III, section 3 of the California Constitution, and by virtue of the express terms of a portion of section 1001.2, subdivision (b), a prosecutor may not preclude diversion for a particular defendant. They argue, however, that such is not the case here, and that, as amicus and the Attorney General contend, the real issue is whether or not the Legislature can lawfully delegate the power to set eligibility guidelines to local prosecutors. Assuming that it may, their argument continues, the prosecutor's decision to charge a particular offense which happens to be one for which there is no diversion eligibility is a lawful exercise of his charging authority.
Article III, section 3 of the California Constitution provides: "The powers of state government are legislative, executive, and judicial. Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution." And, "it is the function of the legislative branch to define crimes and prescribe punishments, ..." (In re Lynch (1972) 8 Cal.3d 410, 414, 105 Cal.Rptr. 217, 503 P.2d 921.) The decision as to whether a crime is to be charged, and if so, which crime, is an exercise of executive power reserved to the prosecutor. (People v. Municipal Court (1972) 27 Cal.App.3d 193, 203, 103 Cal.Rptr. 645; People v. Tenorio (1970) 3 Cal.3d 89, 94, 89 Cal.Rptr. 249, 473 P.2d 993.)
Real party relies first upon People v. Padfield, supra, 136 Cal.App.3d 218, 185 Cal.Rptr. 903, to argue that nothing in the diversion statute gives an individual defendant the right to be considered for diversion, and the statute in fact merely authorizes the creation of local programs and permits local communities to develop criteria, as none were set forth in the statute. The court in Padfield, however, did not consider the separation of powers argument raised before us. People v. Tapia (1982) 129 Cal.App.3d Supp. 1, 181 Cal.Rptr. 382, reached the same conclusion as the Padfield court, but was not confronted with the separation of powers argument. "It is axiomatic that cases are not authority for propositions not considered." (People v. Gilbert (1969) 1 Cal.3d 475, 482, fn. 7, 82 Cal.Rptr. 724, 462 P.2d 580.) "Questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents." (Webster v. Fall (1925) 266 U.S. 507, 511, 45 S.Ct. 148, 149, 69 L.Ed. 411.)
The People then proceed to argue a number of authorities in support of their view that establishment of eligibility guidelines is a legislative function properly delegated to local prosecutors. While the analysis is scholarly, it ignores the fact that the express language of section 1001.1 contemplates a judicial, not an administrative, proceeding, and that it makes all misdemeanants eligible.
In particular they point out that preliminary screening for eligibility in drug diversion cases is conducted by the district attorney, based on information peculiarly within his knowledge, pursuant to statutorily mandated criteria. This, of course, is proper. (Sledge v. Superior Court, supra, 11 Cal.3d 70, 74-76, 113 Cal.Rptr. 28, 520 P.2d 412.) From this proposition, the People jump to an analysis of the propriety of delegation to the executive of the legislative function, with citation to People v. Wright (1982) 30 Cal.3d 705, 180 Cal.Rptr. 196, 639 P.2d 267 (delegation by Legislature of rulemaking power for determinate sentencing proper; not in conflict with constitutional provisions establishing the Judicial Council), and People ex rel. Younger v. County of El Dorado (1971) 5 Cal.3d 480, 96 Cal.Rptr. 553, 487 P.2d 1193 (delegation by Legislature of power to adopt local police and sanitary ordinances, rules and regulations to Tahoe Regional Planning Agency, proper violations of which were declared by the legislation to be misdemeanors).
Still, we recognize that such arguments are not entirely heuristic, but have some basis in the statutory language. The diversion statute, for example, allows for dismissal upon successful completion of diversion, and specifies that "the arrest upon which the diversion was based shall be deemed to have never occurred." ( § 1001.9, emphasis added.) And, by postponing prosecution, diversion necessarily impinges on the [212 Cal.Rptr. 636] right to a speedy trial guaranteed the people by section 1050. Theoretically, therefore, the process of diversion could effectively impair if not eradicate the executive's decision to prosecute, and could do so without formal adjudication. For such reasons, the People's arguments are plausible.
Again, however, such arguments ignore the express statement in the statute that diversion may occur in any case in which an offense is filed as a misdemeanor. "When the decision to prosecute has been made, the process which leads to acquittal or to sentencing is fundamentally judicial in nature." (Tenorio, supra, 3 Cal.3d at p. 94, 89 Cal.Rptr. 249, 473 P.2d 993.) "... the fact that a particular power has been conferred ... by statute does not prevent the exercise of that power from being a judicial act for purposes of the doctrine of separation of powers." (Esteybar v. Municipal Court, supra, 5 Cal.3d 119, 127, 95 Cal.Rptr. 524, 485 P.2d 1140.) Thus even if we were to agree that section 1001.2, subdivision (b) grants local prosecution control over diversion criteria, such a grant of authority would be unconstitutional within the meaning of Esteybar, supra.
Nor is the People's reliance on People v. Glover (1980) 111 Cal.App.3d 914, 169 Cal.Rptr. 12, People v. Wright (1975) 47 Cal.App.3d 490, 120 Cal.Rptr. 899 and People v. Koester (1975) 53 Cal.App.3d 631, 126 Cal.Rptr. 73 helpful to their position that merely charging authority is at issue.
Wright involved section 1000, et seq.--drug diversion. In that statute the Legislature has specified diversion criteria by making the chapter applicable to cases before the court "upon an accusatory pleading" charging enumerated offenses. The defendant in Wright was diverted after his conviction for a lesser-included offense, although he had been charged with the greater, ineligible offense. Relying upon the plain words of the statute and upon Morse v. Municipal Court (1974) 13 Cal.3d 149, 118 Cal.Rptr. 14, 529 P.2d 46, the Wright court reversed the diversion order.
Glover, supra, 111 Cal.App.3d 914, 169 Cal.Rptr. 12 involved the pre-filing diversion plan of then section 273ab (now section 1000.12). Indeed, the case precisely illustrates the power of a prosecutor to make a decision to initiate judicial proceedings by the exercise of his charging authority or, where authorized to do so, to divert, instead of exercising his charging authority.
Section 1000.12 provides: "It is the intent of the Legislature that nothing in this chapter is intended to deprive a prosecuting attorney of the ability to prosecute persons suspected of violating any section of this code in which a minor is a victim of an act of abuse or neglect to the fullest extent of the law if the prosecuting attorney so chooses. [p] (b) In lieu of prosecuting a person suspected of violating any section of this code in which a minor is a victim of an act of abuse or neglect when such person is referred to him or her by the local police or sheriff's department, the prosecuting attorney may refer that person to the county department in charge of public social services or the probation department for counseling and such other services as the department deems necessary. The prosecuting attorney shall seek the advice of the county department in charge of public social services or the probation department in determining whether or not to make the referral."
The court in People v. Koester, supra, 53 Cal.App.3d 631, 126 Cal.Rptr. 73 held the appellant ineligible for drug diversion where he was charged with an offense not among those enumerated by the Legislature as eligible.
In People v. Superior Court (On Tai Ho) (1974) 11 Cal.3d 59, 113 Cal.Rptr. 21, 520 P.2d 405, our high court dealt with a situation closely analogous to the one at bench when it struck down a provision in the drug diversion statute ( § 1000 et seq.) which required the prosecutor's concurrence for diversion under that statute. It was there held that "diversion" is a judicial "disposition" of a charge which is before the court, the prosecutorial die having long since been cast. And while the drug diversion statute differs from section 1001 et seq. in some respects, it crucially parallels the statute at issue here in its analysis of diversion as a judicial rather than an executive act. Indeed, facing precisely the same arguments that might be made [212 Cal.Rptr. 637] here , the court said the following: "The People contend that the decision to divert is merely an extension of the charging process, and hence remains within the traditional zone of the district attorney's discretion. As we explained in Esteybar, however, 'This argument overlooks the fact that the ... determination follows the district attorney's decision to prosecute.' (5 Cal.3d at p. 127 [95 Cal.Rptr. 524, 485 P.2d 1140].) ... The case is 'before the court' for disposition, and disposition is a function of the judicial power no matter what the outcome.
Compare sections 1000.3 and 1001.7; 1000.5, 1001.8 and 1001.9.
"We recognized this principle in Tenorio, observing that 'When the decision to prosecute has been made, the process which leads to acquittal or sentencing is fundamentally judicial in nature.' (3 Cal.3d at p. 94 [89 Cal.Rptr. 249, 473 P.2d 993].) ...
"The principle summarized in the quoted language from Tenorio is that when the jurisdiction of a court has been properly invoked by the filing of a criminal charge, the disposition of that charge becomes a judicial responsibility. It is true that acquittal or sentencing is the typical choice open to the court, but in appropriate cases it is not the only termination." (11 Cal.3d at pp. 65-66, 113 Cal.Rptr. 21, 520 P.2d 405, emphasis in original.)
"Our decision in Esteybar teaches that the issue whether a power is judicial in nature depends not on the procedural posture of the case but on the substance of the power and the effect of its exercise. Here the Legislature's choice of pre-conviction rather than post-conviction intervention is easily understandable in the light of its dual purpose of sparing appropriately selected first offenders the stigma of a criminal judgment and avoiding the delays and costs of unnecessary trials. At whatever stage such intervention occurs, however, it is an integral step in the process leading to the disposition of the case before the court, and therefore constitutes an exercise of judicial authority within the meaning of the constitutional doctrine of separation of powers." (People v. Superior Court (On Tai Ho), supra, 11 Cal.3d 59, 68, 113 Cal.Rptr. 21, 520 P.2d 405, emphasis in original.)
It may be that all the Legislature intended by the enactment of section 1001 et seq. was to allow establishment of local diversion programs. The Legislature must be presumed, however, to have been aware of the high court's decision in On Tai Ho, supra, and to have intended to create a possible "disposition" for the trial court. (In re Jeanice D. (1980) 28 Cal.3d 210, 216, 168 Cal.Rptr. 455, 617 P.2d 1087; City of Long Beach v. Payne (1935) 3 Cal.2d 184, 191, 44 P.2d 305.)
The People urge us not to decide the separation of powers issue so far as it relates to the alleged authority to set criteria because the matter was not raised below and is in any event unnecessary to the resolution of petitioner's eligibility. But throughout these proceedings, petitioner has protested any interference with the exercise of judicial discretion. The superior court used a guideline different from that used by the municipal court to declare her flatly ineligible for diversion, and the express language of our alternative writ put the matter at issue. The People have throughout these proceedings tendered the prosecutor's purported authority to set guidelines as justification for denial of diversion to petitioner.
In summary, to the extent that section 1001.2, subdivision (b) purports to confer upon the local district attorney the right to control criteria for diversion, we find it violative of article III, section 3 of the California Constitution. In so concluding, we acknowledge that the Legislature itself no doubt has the power to establish criteria governing diversion, as well as it has in other areas involving sentencing alternatives (cf. On Tai Ho, supra, 11 Cal.3d at pp. 65-68, 113 Cal.Rptr. 21, 520 P.2d 405)--provided equal protection guarantees are scrupulously observed. It is equally clear that the Legislature need not authorize any diversion programs at all, or may create [212 Cal.Rptr. 638] pre-complaint programs. (Cf. § 1000.12.). Once having created a post-complaint diversion scheme, however, the Legislature--contrary to the People's claim here--may not subject judicial discretion to prosecutorial control.
Petitioner has also contended that the guidelines violate the express terms of that portion of section 1001.2, subdivision (b) which provides that "Nothing in this subdivision shall authorize the prosecutor to determine whether a particular defendant shall be diverted," in that by setting the guidelines and then charging a non-eligible offense, the prosecutor has determined whether a particular defendant shall be diverted. Nothing in our opinion should be construed to preclude the exercise of the prosecutor's charging authority to file a complaint which alleges an offense ineligible for diversion under lawfully promulgated criteria.
Let a peremptory writ of mandate issue commanding the San Francisco Municipal Court in No. 601874, People v. Davis, to determine whether, in its view, petitioner should be diverted, notwithstanding the fact that she was charged, in the first instance, with a violation of Penal Code section 487, subdivision 1 as a felony. The stay heretofore imposed shall remain in effect until the finality of this opinion.
RACANELLI, P.J., and HOLMDAHL, J., concur.
[*] See post, page 1648, for opinions withdrawn and subsequent case histories.
At the time of the filing of this petition, section 1001.11, added by Stats.1982, c. 42, § 2, provided for the repeal of the diversion chapter (chapter 2.7) on January 1, 1985. Section 1001.11, however, has been itself repealed by Stats.1984, c. 172, § 1.
The argument, which is essentially unchallenged, strikes us as a formidable one. The interest at stake in these proceedings seems to us sufficiently important or "fundamental," as to require that it be subjected to strict scrutiny and critical analysis. (People v. Ryser (1974) 40 Cal.App.3d 1, 6, 114 Cal.Rptr. 668.) On the authority of Westbrook v. Mihaly (1970) 2 Cal.3d 765, 785, 87 Cal.Rptr. 839, 471 P.2d 487 (cert. den. 403 U.S. 922, 91 S.Ct. 2225, 29 L.Ed.2d 700), we opine that under such circumstances, the state assumes the burden of establishing not only a compelling interest justifying the classification, but also of showing that the distinctions made by the law are strictly necessary to further its purposes. Because we find error in other respects, however, we do not decide the equal protection issue here.