Davis v. Municipal Court (People)

Citation212 Cal.Rptr. 631,192 Cal.App.3d 1563
CourtCalifornia Court of Appeals
Decision Date08 April 1985
PartiesPreviously published at 192 Cal.App.3d 1563 192 Cal.App.3d 1563 Jennifer DAVIS, Petitioner, v. MUNICIPAL COURT, City and County of San Francisco, Respondent. PEOPLE of the State of California, Real Party in Interest. AO 24300.

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 pursuant to Penal Code section 1001 et seq. 1

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" 2 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") 3 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.

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, 4 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.

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 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). 5

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 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." 6

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. 7

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,...

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2 cases
  • Davis v. Municipal Court
    • United States
    • California Supreme Court
    • October 13, 1988
    ...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 undermi......
  • Davis v. Municipal Court for San Francisco Judicial Dist. of City and County of San Francisco (People)
    • United States
    • California Supreme Court
    • June 28, 1985
    ...COUNTY OF SAN FRANCISCO, Respondent; PEOPLE, Real Party in Interest. Supreme Court of California, In Bank. June 28, 1985. Prior report: 212 Cal.Rptr. 631. Real Party in Interest's petition for review ...

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