Bosco v. Justice Court
| Decision Date | 26 January 1978 |
| Docket Number | EXETER-FARMERSVILLE |
| Citation | 143 Cal.Rptr. 468,77 Cal.App.3d 179 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Marilyn BOSCO, Plaintiff and Appellant, v. The JUSTICE COURT OF theJUDICIAL DISTRICT, Defendant; The PEOPLE, Real Party in Interest and Appellant. Civ. 3377. |
We here consider the constitutionality of Health and Safety Code section 11550. 1 The section, which proscribes a broad range of conduct, states:
Respondent was charged in the justice court with a violation of section 11550. She subsequently moved for diversion pursuant to Penal Code section 1000. The justice court denied the motion. Respondent then demurred to the complaint on the grounds that section 11550 was unconstitutional because it was vague and because the mandatory 90-day minimum sentence required upon conviction constituted both cruel and unusual punishment and a denial of equal protection of the law. The demurrer was overruled. Respondent sought a writ of prohibition and/or mandamus in the superior court, which was granted.
In its order granting the writ, the court found the mandatory sentencing provision of section 11550: (1) was unconstitutional because it constituted cruel and unusual punishment, (2) was unconstitutional because it violated equal protection, (3) was not unconstitutionally vague, and (4) was severable from the remainder of the statute. The People appeal from the order, contending that the superior court erred in ruling that the statute was unconstitutional, and respondent cross-appeals, contending that the court erred in ruling that the statute was not vague and that the penalty was severable from the remainder of the statute.
When a person accused of violating section 11550 challenges the statute as imposing cruel or unusual punishment and a denial of equal protection (or any of such grounds) judicial review should ordinarily await conviction and sentencing in the individual case. The accused in this case has not even gone to trial. The criteria of In re Lynch (1972) 8 Cal.3d 410, 105 Cal.Rptr. 217, 503 P.2d 921 apply, but analysis under the first technique (the nature of the offense and/or the offender) will turn on the facts and circumstances of the individual case (see People v. Wingo (1975) 14 Cal.3d 169, 183, 121 Cal.Rptr. 97, 534 P.2d 1001; see also People v. Williamson (1977) 71 Cal.App.3d 206, 217, 139 Cal.Rptr. 222; People v. Landers (1976) 59 Cal.App.3d 846, 849, 131 Cal.Rptr. 522; People v. Waters (1975) 52 Cal.App.3d 323, 333, 125 Cal.Rptr. 46). Nevertheless, since all parties have extensively briefed the subject involved, and the subject matter is of statewide importance, in the interest of judicial economy we address the merits.
As the California Supreme Court has said: "We recognize that in our tripartite system of government it is the function of the legislative branch to define crimes and prescribe punishments, and that such questions are in the first instance for the judgment of the Legislature alone." (In re Lynch, supra, 8 Cal.3d 410, 414, 105 Cal.Rptr. 217, 219, 503 P.2d 921, 923.) "Such legislative authority is ultimately circumscribed inter alia by the constitutional prohibition against cruel or unusual punishment (citations) and it is the responsibility of the judiciary 'to condemn any violation of that prohibition.' " (In re Grant (1976) 18 Cal.3d 1, 6, 132 Cal.Rptr. 430, 433, 553 P.2d 590, 593.)
The applicable constitutional provision is article I, section 17, of the California Constitution, which prohibits cruel or unusual punishment. That constitutional limitation is violated if a punishment "is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity" (In re Foss (1974) 10 Cal.3d 910, 919, 112 Cal.Rptr. 649, 654, 519 P.2d 1073, 1078 citing In re Lynch, supra, 8 Cal.3d 410, 424, 105 Cal.Rptr. 217, 503 P.2d 921). Our state Supreme Court has set forth three distinct techniques to aid in implementing that standard. 2 The three techniques involve (1) the nature of the offense and the offender, with particular regard to the degree of danger both present to society; (2) a comparison of the questioned punishment with punishments in California for more serious offenses; (3) a comparison of the challenged penalty with punishment in other jurisdictions for the same offense. We examine the 90-day mandatory provision using the Lynch tests.
We first consider the nature of the offense and the offender. Section 11550 is not only poorly drafted, 3 but its mandatory minimum sentence is arguably unsound legislation. 4 However, that is a question of public policy for the Legislature; unless section 11550 is unconstitutional, 5 the judiciary should not pass judgment upon the statute. The statute covers a wide range of conduct. Both "using" and "being under the influence" of a controlled substance are prohibited. While the drugs listed include primarily opiates and codeine derivatives, a few others are listed. 6
Respondent poses an extreme example to demonstrate the cruel and unusual nature of the mandatory sentencing in section 11550: If a person had a tooth pulled and was given several codeine tablets by his dentist, and then his wife took one of the tablets for a bad headache, she would come within the provisions of section 11550 and, if charged and convicted, would have to be sentenced to 90 days in jail. Respondents' hypothetical naively disregards reality. With the large number of pending cases with more priority, we are convinced that the prosecutor would most likely not even file a complaint. But even if the charges were filed, a judge would probably choose to dismiss the complaint in the interests of justice as being de minimus. Finally, should a draconian judge be assigned the case, diversion under Penal Code section 1000 would occur. In fact, we believe that failure to divert in such a situation would be a gross abuse of discretion. Thus, respondent has elevated a lilliputian example to brobdingnagian stature. The assumption that even the innocent housewife is covered by the statute fails to take into consideration the entire legislative scheme. Clearly, the mandatory nature of section 11550 does not entirely divest the trial court of its discretion in disposing of a case. Not only can the court invoke the Penal Code section 1000 diversion program, 7 but it is also required to initiate CRC proceedings in those cases when it appears that the defendant is addicted or in imminent danger of becoming addicted. Thus, only those who do not qualify for (or are unwilling to accept) 8 diversion under Penal Code section 1000 or are denied CRC commitment and are convicted under section 11550 face the 90-day minimum. Such persons do not appear to us to be the first-offender housewife contemplated by respondent.
Recent legislation and the passage of time has substantially eliminated the argument that the defendant charged with section 11550 who has been previously convicted of possession of small amounts of marijuana might be excluded under Penal Code section 1000. First of all, marijuana is no longer included in section 11550. Secondly, 11361.5 and 11361.7 provide for destruction of records as to possession of small amounts of marijuana and thus a person previously convicted of such an offense will no longer be ineligible for diversion.
Respondent raises another specter of injustice she believes possible under section 11550 that is, at first blush, persuasive. Upon closer analysis, however, her example is misleading. The hypothetical poses the following: Two persons in a vehicle are both under the influence of a controlled substance. One, the driver, is charged with driving under the influence, while the other, the passenger, is charged with section 11550. The passenger, if convicted, faces a mandatory 90 days, while the driver does not. However, that apparent discrepancy results solely from the fact of the charge selected by the prosecutor. The driver could also have...
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