Davis v. Municipal Court

Decision Date13 October 1988
Docket NumberNo. S,S
Citation46 Cal.3d 64,249 Cal.Rptr. 300,757 P. 2d 11
CourtCalifornia Supreme Court
Parties, 757 P.2d 11 Jennifer DAVIS, Petitioner, v. The MUNICIPAL COURT FOR the SAN FRANCISCO JUDICIAL DISTRICT OF the CITY AND COUNTY OF SAN FRANCISCO, Respondent; The PEOPLE, Real Party in Interest. F. 24900. . Rehearing Denied

Jack Morgan, San Francisco, for petitioner.

Blair Hoffman, Deputy Atty. Gen., Judith Garvey, Asst. Dist. Atty., San Francisco, for real party in interest.


In recent years, the Legislature has enacted a number of statutory provisions which recognize the authority of local entities to adopt pretrial diversion programs for persons charged with misdemeanors. (See, e.g., Pen.Code, §§ 1001-1001.9, 1001.50-1001.55.) 1 In this case we must determine the validity of one of the central features of these misdemeanor diversion statutes--a provision granting a local district attorney the authority to approve or disapprove a local diversion program ( §§ 1001.2, subd. (b), 1001.50, subd. (b))--as well as the validity of one specific provision of the misdemeanor diversion program adopted in San Francisco. Although the Court of Appeal concluded that both the general statutory provision and the particular local rule at issue here violate the constitutional separation-of-powers doctrine, as we shall explain we find no constitutional or other infirmity in either the challenged statutory provision or the local rule. Accordingly, we reverse the Court of Appeal judgment.


This writ proceeding arises out of a criminal prosecution brought in San Francisco. The district attorney filed a complaint in municipal court charging petitioner Jennifer Davis (hereafter defendant) with prostitution ( § 647, subd. (b)), a misdemeanor, and with grand theft. ( § 487, subd. 1.) Under the governing statutes, grand theft is a so-called "wobbler"--i.e., an offense which may be charged and punished as either a felony or a misdemeanor (see § 17, subd. (b))--and here the district attorney charged the grand theft count as a felony. Prior to the preliminary hearing, the municipal court, acting pursuant to its authority under section 17, subdivision (b)(5), reduced the grand theft charge to a misdemeanor.

Thereafter, defendant sought pretrial diversion. At the time, San Francisco had instituted a pretrial misdemeanor diversion program which had been drafted by the district attorney in conjunction with a committee of local judges, attorneys and others involved in the criminal justice system, and which had been finally approved by the district attorney. The diversion program--which, as prescribed by section 1001.1, was limited to persons charged with "an offense filed as a misdemeanor"--set forth detailed criteria for diversion eligibility, prescribing various circumstances under which defendants who were charged with a misdemeanor would either be presumptively or absolutely ineligible for diversion. With respect to defendants charged with a wobbler, the diversion guidelines provided that when the wobbler had originally been filed as a felony, the defendant was absolutely ineligible for diversion; when the wobbler had originally been charged as a misdemeanor, the defendant was presumptively ineligible for diversion but could be found eligible for diversion under some circumstances. 2

Relying on these governing guidelines, the municipal court denied defendant's request for diversion, explaining that she was ineligible for diversion because the grand theft count had been charged as a felony.

Defendant then sought a writ of mandate in superior court, contending that the local rule in question, making a defendant's eligibility for diversion dependent on the prosecutor's decision to charge a wobbler as a felony or a misdemeanor, conflicted with one portion of the state's misdemeanor diversion scheme ( § 1001.2, subd. (b)) as well as a separate statutory provision ( § 17, subd. (b)(5)), and also violated the separation-of-powers doctrine and the equal protection clause. The superior court denied the writ. 3

Defendant then filed the present writ proceeding in the Court of Appeal. 4 The Court of Appeal agreed with defendant's contentions, finding that the local rule in question was invalid both because it conflicted with section 17, subdivision (b)(5) and because it violated the separation-of-powers doctrine by authorizing an unconstitutional infringement on the judicial power by the executive branch of government. In addition, the Court of Appeal went on to hold that a principal feature of the statewide misdemeanor diversion statute--the section which subjects local diversion programs to the approval of the local district attorney ( § 1001.2, subd. (b))--was itself unconstitutional, embodying an impermissible delegation of legislative power to the executive branch.

The People sought review of the Court of Appeal decision, 212 Cal.Rptr. 631, challenging the court's conclusions with respect to both the local rule and the state statute and suggesting that the latter holding undermined the validity of all local misdemeanor diversion programs throughout the state. Because of the importance of the issues we granted review.


As noted above, the San Francisco misdemeanor diversion program at issue here was adopted pursuant to chapter 2.7. Section 1001.2, subdivision (b), one of the initial provisions of chapter 2.7, provides in relevant part: "The district attorney of each county shall review annually any diversion program established pursuant to this chapter, and no program shall continue without the approval of the district attorney. No person shall be diverted under a program unless it has been approved by the district attorney...." 5

The Court of Appeal concluded that this provision, in granting the district attorney the ultimate authority to approve or disapprove a local diversion program without establishing any standards or guidelines to limit the district attorney's discretion, violated the separation-of-powers doctrine by delegating a standardless legislative authority to the executive branch of government. (Cf. People v. Wright (1982) 30 Cal.3d 705, 180 Cal.Rptr. 196, 639 P.2d 267.) Because this conclusion, if correct, might well invalidate the entire misdemeanor diversion program at issue here--as well as all misdemeanor diversion programs throughout the state--we address this issue first.

As we shall explain, we conclude that the Court of Appeal's determination that section 1001.2, subdivision (b) represents an unconstitutional delegation of legislative authority to the district attorney rests on a misunderstanding of the history and purpose of the legislation at issue as well as on an inaccurate characterization of the source and nature of the authority which the provision permits the district attorney to exercise.

We begin with the legislative history of chapter 2.7. The current version of chapter 2.7 derives from legislation first enacted in 1977. Five years earlier, in 1972, the Legislature had adopted California's first statutorily mandated pretrial division program, a program limited to those who would benefit from drug education, treatment and rehabilitation. ( §§ 1000-1000.4, enacted Stats. 1972, ch. 1255, § 17, p. 2469.) In creating that initial program, the Legislature itself prescribed the eligibility requirements for diversion, providing (1) that only defendants who had been charged with specifically enumerated drug offenses could be considered for diversion, and (2) that of the defendants so charged, only those who satisfied a series of additional designated prerequisites could qualify for diversion. ( § 1000, subd. (a).)

In the early and mid-1970's, numerous local police departments and district attorneys throughout California, acting with the encouragement of grants provided by the federal government, began implementing experimental local diversion programs in their own jurisdictions. (See generally Nat. Advisory Com. on Crim. Justice Standards & Goals, Rep. on Corrections (1973) [757 P.2d 16] pp. 73-94; ABA Com. on Correctional Facilities & Services, Source Book in Pretrial Crim. Justice Intervention Techniques & Action Programs (1974) pp. 2-3.) Shortly thereafter, serious questions were raised as to the validity of these locally initiated programs when an Attorney General opinion suggested that the Legislature's 1972 pretrial drug abuse diversion legislation had preempted the field. (See People v. Tapia (1982) 129 Cal.App.3d Supp. 1, 6, 181 Cal.Rptr. 382 [summarizing unpublished Cal.Atty.Gen. opn.].) As a consequence, the funding of some of the local programs was threatened and other district attorneys, who had been considering implementing such programs, became reluctant to go ahead with such plans.

To meet this problem, the Legislature in 1977 adopted as an urgency measure the predecessor of the current chapter 2.7. (Stats.1977, ch. 574, § 3, p. 1821.) The 1977 legislation did not establish a general, state-mandated diversion program, but rather expressly declared that the Legislature did not intend to preempt the pretrial diversion field. 6 While the 1977 legislation established a number of procedural protections for persons who participated in local diversion programs (see former §§ 1001.3-1001.9), it neither compelled a local jurisdiction to establish a diversion program nor limited a local entity's discretion in designing or implementing the eligibility requirements of such a program. The legislation did not purport to delegate the power to institute or design a pretrial diversion program to any particular local entity or official and included no provision requiring the district attorney's approval of such a local program. Local entities which chose to institute experimental pretrial diversion programs were required to provide annual reports to the Legislature disclosing various information regarding "the implementation, administration and operation of...

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