Gilbert v. Municipal Court

• Decision Date: 27 September 1977
• Citation: 73 Cal.App.3d 723,140 Cal.Rptr. 897
• Court: California Court of Appeals Court of Appeals
• Parties: David Robert GILBERT, Petitioner and Appellant, v. MUNICIPAL COURT OF the NORTH ORANGE COUNTY JUDICIAL DISTRICT, Respondent, PEOPLE of the State of California, Real Party in Interest. Civ. 17651.

Page 897

140 Cal.Rptr. 897

73 Cal.App.3d 723

David Robert GILBERT, Petitioner and Appellant, v. MUNICIPAL COURT OF the NORTH ORANGE COUNTY JUDICIAL DISTRICT, Respondent PEOPLE of the State of California, Real Party in Interest.

Civ. 17651.

Court of Appeal, Fourth District, Division 2, California.

Sept. 27, 1977.

Frank L. Williams, Jr., Public Defender of Orange County, and Larry B. Bruce, Deputy Public Defender, for petitioner and appellant

Cecil Hicks, Jr., Dist. Atty. of Orange County, and V. Clifford Harris, Deputy Dist. Atty., for respondent.

No appearance for real party in interest.

OPINION

THE COURT.

In this case we hold that Vehicle Code section 23105 (driving under the influence of a drug) is not a special statute which supplants and precludes the provisions of Health & Safety Code section 11550 (use and being under the influence of a controlled substance of a narcotics drug). Additionally, we discuss the disturbing trend of the use of extraordinary writs to circumvent the usual appeal process from municipal courts.

I SWANN-GILBERT RULE

Petitioner was driving a motor vehicle upon a public highway. He was arrested and charged with violation of Vehicle Code section 23105 and Health & Safety Code section 11550. The municipal court denied his motion to dismiss the Health & Safety Code section 11550 count. Alleging that there was no appeal from the order of the municipal court denying his motion to dismiss, petitioner filed a petition for writ of mandate/prohibition in the superior court. A superior court granted an alternative writ but after hearing argument on the merits denied the writ. Petitioner appeals.

Petitioner contends that Health & Safety Code section 11550 is a general statute and that prosecution under this general statute should be precluded because his conduct is specifically proscribed by a special statute--Vehicle Code section 23105. Petitioner relies on the so-called Swann-Gilbert rule (People v. Swann, 213 Cal.App.2d 447, 28 Cal.Rptr. 830; People v. Gilbert, 1 Cal.3d 475, 82 Cal.Rptr. 724, 462 P.2d 580) that special statutes supplant general statutes which cover the same subject matter. ¹

Whether such statutes overlap is basically a matter of legislative intent. '. . . a special statute does not supplant a general statute unless All of the elements of the general statute are included in the special statute (citations).' (Emphasis in original.) (People v. Ruster, 16 Cal.3d 690, 694, 129 Cal.Rptr. 153, 155, 548 P.2d 353, 355.) Here, all of the elements of the general statute are not included in the special statute.

(1) Health & Safety Code section 11550 requires the use of Controlled substances or narcotics drugs while Vehicle Code section 23105 involves the utilization of Any drug.

(2) Health & Safety Code section 11550 requires No act beyond the state of being under the influence while Vehicle Code section 23105 requires the act of Driving in conjunction with the state of being under the influence.

(3) Health & Safety Code section 11550 specifically Excepts from its proscriptions the utilization of drugs taken at the direction of or administered by doctors while Vehicle Code section 23105 has No such exception. To the contrary, Vehicle Code section 23107 specifically precludes any such excuse or defense to a violation of Vehicle Code section 23105.

(4) Health & Safety Code section 11550 prohibits the Use of certain drugs in addition to or alternatively to being under the influence of certain drugs while Vehicle Code section 23105 Does not prohibit the use of a drug.

(5) Each statute requires Different status of 'being under the influence.'

(a) To be under the influence within the concept of Vehicle Code section 23105, the intoxicating drug must so far affect the nervous system, the brain or muscles as to impair to an appreciable degree the ability to operate a vehicle in a manner like that of an ordinarily prudent and cautious person in full possession of his faculties, using care and under like conditions. (People v. Haeussler, 41 Cal.2d 252, 260 P.2d 8; People v. De La Torre, 263 Cal.App.2d 409, 69 Cal.Rptr. 654.)

(b) On the other hand, being under the influence within the meaning of Health & Safety Code section 11550 merely requires that the person be under the influence in any detectable manner. 'The symptoms of influence are not confined to those commensurate with misbehavior, nor to demonstrable impairment of physical or mental ability. (Citation.)' (People v. Davis, 240 Cal.App.2d 496, 501, 49 Cal.Rptr. 663, 667.)

Cases cited by the defendant are simply not applicable. In these cases the statute in question addresses the identical crime accomplished by different means such as a theft accomplished by misrepresentations in applying for welfare. (Compare People v. Barrowclough, 39 Cal.App.3d 50, 113 Cal.Rptr. 852.)

Actually, when looking at the question of legislative intent, it is rather obvious that each section is a part of the distinct legislative scheme with differing aims, procedures, problems, punishment and treatment programs. One is addressed to illicit drug use, the other to dangerous driving. In construing the statute so as to effect the intent of the Legislature and to ascertain legislative intent, the court should construe the statute with reference to the whole system of law of which it is a part. (Ruster, supra, 16 Cal.3d p. 696, 129 Cal.Rptr. 153, 548 P.2d 353.)

Thus, since it was clearly not the legislative intent that one statute usurp the other and since the elements of the two offenses bear little correlation, the municipal court did not err in denying petitioner's motion to dismiss. From that determination it becomes obvious that the superior court did not err in denying petitioner's petition for writ of prohibition/mandate. That judgment will be affirmed.

II A LOOPHOLE IN OUR APPELLATE SYSTEM

A. A PROBLEM FOR THE LEGISLATURE

Disturbing to this court is the procedure which has allowed Mr. Gilbert to Compel us to entertain this appeal. A flaw exists in the judicial appellate system which requires serious attention. Our purpose is to highlight aspects of this problem, not to exhaust its scholarly possibilities.

Simply put, the justice court and municipal court litigants (hereafter referred to as inferior courts) are Entitled to far greater review protection than the superior court litigant with the identical legal problem. The yellow brick road goes like this: The inferior court litigant receives a pretrial ruling of the justice or municipal court which makes him unhappy. The ruling may or may not be appealable. The litigant files a petition for writ of mandate or prohibition in the superior court contesting the ruling. The superior court has Original jurisdiction to entertain such writ petitions (Cal.Const., art. 6, § 10; Bloom v. Municipal Court, 16 Cal.3d 71, 127 Cal.Rptr. 317, 545 P.2d 229) and there is no rule of law that precludes the filing of such a petition.

The inferior court litigant, discovering that he has lost in his superior court writ effort then files his notice of appeal. The appellate jurisdiction of the Court of Appeal is in those cases in which the superior court has original jurisdiction. (Cal.Const., art. 6, § 11.) Now the unhappy inferior court litigant is Entitled to a written decision of the Court of Appeal on his pretrial ruling of the inferior court. (Cal.Const., art. 6, § 14; Bloom v. Municipal Court, supra.) Thereafter, if still unhappy, he can petition for hearing with the Supreme Court.

Lest the reader be confused, understand that the Court of Appeal is not in a position to exercise discretionary review as is the case of appeals from the appellate department of the superior court. The so-called certification/publication rules concerning that process are housed in the California Rules of Court, rule 61, et seq. and specifically apply only to 'cases on appeal within the original jurisdiction of municipal and justice courts.' (Cal.Rules of Court, rule 61.) Our inferior court litigant has petitioned for a writ within the original jurisdiction of the superior court (Cal.Const., art. 6, § 10) and thus has a review Right in the Court of Appeal. (Cal.Const., art. 6, § 11.)

Now to compare our superior court litigant unhappy with a pretrial ruling of the superior court. His recourse is simple--petition to the Court of o the Court of Appeal for a writ and then on to the Supreme Court on petition for hearing. There is nothing automatic about a writ petition, the court retaining discretion as to whether or not the petition will be entertained on the merits. There is no Right to a written decision by the Court of Appeal.

We find the difference puzzling, to say the least. We had been under the impression that more is at stake in superior court litigation which would call for greater protections at that level rather than at the justice or municipal court levels. At a minimum, one would expect essentially equal treatment between the different levels of litigants.

Turning to the appeal process, the rights are fundamentally the same as between the two classes of litigants. Tried in the inferior court, the litigant may appeal as of right to the appellate department of the superior court with further discretionary review by the Court of Appeal. Tried in the superior court, the litigant may appeal as of right to the Court of Appeal with further discretionary review by the Supreme Court.

We believe the procedure of forcing written opinions from the Court of Appeal on pretrial rulings of the justice and municipal courts to be a loophole which needs plugging. The problem is broad, involving both criminal and civil inferior court proceedings and not limited to nonappealable pretrial rulings. It is common knowledge that one reason a court may not entertain a writ petition upon its merits is that the matter is appealable. Even given appealability of the ruling, the same writ-appeal process can be followed by the inferior...