Morse v. Municipal Court

• Decision Date: 17 December 1974
• Docket Number: JOSE-MILPITAS,S.F. 23115
• Citation: 13 Cal.3d 149,529 P.2d 46,118 Cal.Rptr. 14
• Court: California Supreme Court
• Parties: , 529 P.2d 46 Kenneth A. MORSE, Petitioner, v. The MUNICIPAL COURT FOR the SANJUDICIAL DISTRICT OF SANTA CLARA COUNTY, Respondent; The PEOPLE, Real Party in Interest. In Bank

Page 14

118 Cal.Rptr. 14

13 Cal.3d 149, 529 P.2d 46

Kenneth A. MORSE, Petitioner, v. The MUNICIPAL COURT FOR the SAN JOSE-MILPITAS JUDICIAL DISTRICT OF SANTA CLARA COUNTY, Respondent The PEOPLE, Real Party in Interest.

S.F. 23115.

Supreme Court of California,

In Bank.

Dec. 17, 1974.

Sheldon Portman, Public Defender, Philip H. Pennypacker and Frank D. Berry, Jr., Deputy Public Defenders, for petitioner.

Rose Elizabeth Bird, Palo Alto, as amicus curiae on behalf of petitioner.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., W. Eric Collins, Thomas W. Condit and Rodney J. Blonien, Deputy Attys. Gen., for respondent and real party in interest.

WRIGHT, Chief Justice.

Petitioner Kenneth A. Morse, charged with possession of marijuana, seeks a writ of mandate commanding respondent municipal court to divert him from criminal prosecution to a special rehabilitative treatment center afforded to first-time drug offenders. (Pen.Code, §§ 1000--1000.3.) ¹ Petitioner's principal contention is that it was improper for the trial judge to deny diversion on the ground that the time for petitioner to consent to participation in the program had passed once he filed a pretrial motion to suppress evidence. (§ 1538.5.) For reasons hereinafter stated, we conclude that criminal proceedings have not progressed beyond the point where petitioner would no longer be eligible to be considered for diversion and, accordingly, we order that a writ of mandamus issue compelling the respondent court to commence appropriate proceedings.

In 1972 the Legislature enacted sections 1000--1000.3 which establish an innovative procedure whereby under particular conditions a person charged with any one of six specified drug offenses may participate in a drug education and treatment program in lieu of undergoing a criminal prosecution. Such special procedure is initiated by the district attorney who advises the defendant or his attorney of the defendant's eligibility if the district attorney has concluded that the defendant has no prior narcotics or dangerous drug conviction that he has no record of parole or probation violations; that there is no evidence of his commission of a narcotics or restricted dangerous drug offense other than those specified in the statute; and that the offense charged does not involve actual or threatened violence. If the defendant thereafter consents to participate and waives his right to a speedy trial, the district attorney must refer the case to the probation department for an investigation which takes into consideration particular circumstances (e.g., family and educational background) deemed relevant to a determination of whether the defendant would benefit by the corrective influences of the diversion program. (§ 1000.1.) As part of its investigation the probation department is required to make inquiry to ascertain those community programs, if any, from which the defendant might benefit and which would accept him. (Id.)

After receiving the probation department's report of its investigations the trial court before which the defendant's case is pending must hold a hearing at which it reviews the report and 'any other information considered by the court to be relevant to its decision' and determines whether the defendant consents to further diversion proceedings, waives his right to a speedy trial and whether diversion is merited. (§ 1000.2.) If the court is of the view that diversion is proper it may stay further criminal proceedings for a period of between six months and two years. (Id.) ² During the stay of criminal proceedings the court may rescind diversion for cause such as the defendant's failure to continue to participate in the drug treatment program. If, on the other hand, the defendant successfully completes the treatment program the criminal charges are ultimately dismissed. (Id.)

Following the effective date of the foregoing provisions petitioner was arrested and charged with possession of marijuana. (Health & Saf.Code, § 11357.) At his subsequent arraignment before the respondent court the district attorney advised petitioner that he was eligible for diversion. Although thus entitled to consent to diversion and thereby to initiate a probation department investigation, petitioner instead pleaded not guilty. He then moved to suppress particular evidence against him under section 1538.5. The motion was denied after a full evidentiary hearing. Thereafter petitioner advised the court that he would then consent to diversion. The district attorney objected on the ground, inter alia, that petitioner had not made a proper and timely consent to be considered for diversion as required by section 1000.1. The court denied diversion, ruling that petitioner had elected to be prosecuted in the criminal courts when he proceeded to move for pretrial suppression. The court thus adopted the view that 'the diversion program is designed to avoid utilization of the criminal justice system and the defendant actually utilizes that when he' moves to suppress evidence.

Petitioner thereupon sought mandate in the superior court. That court denied the writ for the reason that 'the petitioner did not 'consent' pursuant to section 1000.1 of the Penal Code.' Petitioner thereupon sought the instant relief.

Petitioner contends that the interpretation given the diversion statute by the courts below and urged by the People is at odds with both the statute's language and purpose. He specifically argues that no particular time in the course of criminal proceedings is prescribed for the defendant's initial consent to consideration for diversion. In the absence of a specified time, he further asserts the rehabilitative purpose of the diversion program, the proper consideration for defendant's desire to make an intelligent decision whether to seek diversion, and due deference to the need for early resolution of search and seizure issues all require a construction of the statute which places the district attorney under a continuing duty to refer the case to the probation department upon a defendant's consent once it has been initially determined that he may be eligible for diversion. Incident to these contentions petitioner protests that the interpretation urged by the People renders the statute unconstitutional by penalizing him for asserting his right to be free from unreasonable searches and seizures under the Fourth Amendment and would permit a trial court to condition the availability of diversion on the abandonment of such constitutional right.

Petitioner is joined by the California Public Defenders Association which, as amicus curiae, urges that petitioner's challenge to the validity of his arrest and search is not a proper reason for denying diversion under the statute. The association envisions in the construction urged by the People the creation of a vast loophole in the exclusionary rule.

The People respond by emphasizing that its construction of the statute does not coerce defendant to waive or abandon his fourth Amendment rights, but merely requires that he postpone his challenge to the legality of searches and seizures until it is clear that a criminal prosecution will go forward. This deferral of a motion to suppress, the People urge, will conserve the judicial time devoted to deciding the admissibility of evidence. Such an interpretation, it is contended, is consistent with the avowed purpose of the diversion statute to reduce the burden placed on court calendars by first-offense drug prosecutions.

The question before us is the narrow one of how far into the criminal process a defendant may go before he can no longer be afforded the right to Consent to consideration for diversion under section 1000.1 and thereby secure the referral of his case to the probation department for investigation. ³ In approaching that question we need not long detain ourselves with the introductory question of whether mandate is a proper remedy. An order denying diversion is a preliminary determination from which no provision is made for interlocutory review but which is subject to review on appeal from a judgment in the criminal proceedings. (Sledge v. Superior Court (1974) 11 Cal.3d 70, 75--76, 113 Cal.Rptr. 28, 520 P.2d 412.) However, the issue may nevertheless be raised, as in the instant case, by extraordinary writ when there is a need for a prompt and definitive resolution of a constitutional challenge to a new statutory program of widespread concern. (Id., fn. 5; see also Babb v. Superior Court (1971) 3 Cal.3d 841, 850--851, 92 Cal.Rptr. 179, 479 P.2d 379.) The absence of another adequate remedy was finally determined by the granting of the alternative writ. (Nathanson v. Superior Court (1974) 12 Cal.3d 355, 361, 115 Cal.Rptr. 783, 525 P.2d 687.)

Turning next to the problem of when a defendant's consent to consideration for diversion must be entertained, we are bound by certain well-established principles of statutory interpretation. Penal Code sections must generally be construed 'according to the fair import of their terms, with a view to effect its objects and to promote justice. " (In re Smith (1966) 64 Cal.2d 437, 440, 50 Cal.Rptr. 460, 462, 412 P.2d 804, 806.) Consistent with that general principle, appellate courts first examine the language of the code section to determine whether the words used unequivocally express the Legislature's intent. If no ambiguity, uncertainty, or doubt about the meaning of the statute appear, the provision is to be applied according to its terms without further judicial construction. (E.g., People v. Baker (1968) 69 Cal.2d 44, 50, 69 Cal.Rptr. 595, 442 P.2d 675, emphasizing that the plain meaning of words used is not to be disregarded.)

When the language of the section is on its face ambiguous or leaves doubt, however, the court must resort to extrinsic aids to ascertain the purpose behind the statute and give the provision a...