People v. Edwards

• Decision Date: 20 November 1991
• Docket Number: No. A052052,A052052
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. David EDWARDS, Defendant and Appellant.

Page 631

1 Cal.Rptr.2d 631

235 Cal.App.3d 1700

The PEOPLE, Plaintiff and Respondent, v. David EDWARDS, Defendant and Appellant.

No. A052052.

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

Nov. 20, 1991.

C. Don Clay, Thomas M. Kummerow, Clay, Hall & Hove, Oakland, for defendant-appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., John H. Sugiyama, Sr. Asst. Atty. Gen., Stan M. Helfman, Deputy Atty. Gen., Michael E. Banister, Deputy Atty. Gen., San Francisco, for plaintiff-respondent.

KLINE, Presiding Justice.

Introduction

David Edwards appeals the judgment of the Alameda County Superior Court convicting him of violation of Health and Safety Code section 11370.1 (possession of half a gram or less of a substance containing cocaine base while in the immediate personal possession of a loaded firearm). His sole contention on appeal is that Health and Safety Code section 11370.1 denies equal protection of the laws under article I, section 7 of the California Constitution and the Fourteenth Amendment to the United States Constitution. We find no violation of equal protection and so affirm the judgment.

Statement of the Case/Statement of Facts

Appellant was arrested on July 18, 1990 during an undercover drug buy operation in Oakland. While officers were arresting the drug seller, one officer saw appellant, who was standing nearby, pull a plastic bag from his pants pocket, drop it to the ground, and take a few steps away from the bag. Appellant was arrested and the bag appeared to contain a small rock of cocaine. A search of appellant pursuant to his arrest disclosed another bag containing rock cocaine in appellant's shirt pocket and a loaded .44 Magnum revolver tucked in appellant's waistband.

Appellant was charged in count 1 with possession of cocaine base, a felony violation of Health and Safety Code section 11350 and with possession of a handgun within the meaning of Penal Code section 12022, subdivision (a). In count 2, appellant was charged with possession of half a gram or less of a substance containing cocaine base while in the immediate personal possession of a loaded, operable firearm, a felony violation of Health and Safety Code section 11370.1. ¹

Following closing arguments in appellant's jury trial, the court dismissed count 1 and the accompanying handgun enhancement on the prosecutor's motion. On November 2, 1990, the jury found appellant guilty of the crime charged in count 2. Appellant was placed on supervised probation for three years. This timely appeal followed.

Discussion

I.

Appellant contends that section 11370.1 ² denies him equal protection of the laws by punishing people more severely than would be the case ifthey were charged under a possession statute augmented by a firearm enhancement. Specifically, he points to different terms of imprisonment and the unavailability of diversion as an alternative to prison or probation under section 11370.1. He argues that persons charged under section 11370.1 for possession of less than half a gram of cocaine base while possessing a weapon are punished more harshly than persons similarly situated who are charged under the alternate scheme of section 11350 with simple possession of cocaine base plus an arming enhancement under Penal Code section 12022, subdivision (a). He points out that under section 11350, one may be charged with simple possession even where possessing more than half a gram, but less than a salable quantity. Hence, he contends that one who possesses a weapon is subject to harsher criminal penalties for possessing smaller amounts of cocaine base under section 11370.1 than would be the case if punished under section 11350 with a Penal Code section 12022, subdivision (a) gun enhancement.

In reality, the possible term of imprisonment under section 11370.1 is equal to or less than that imposed under the combination of section 11350 and the enhancement. Section 11370.1 provides for punishment of two, three, or four years in prison and makes diversion unavailable. In contrast, under section 11350, subdivision (a) (as provided in Penal Code section 18), punishment is 16 months, two or three years in state prison. The firearm enhancement of Penal Code section 12022, subdivision (a), provides an additional one year imprisonment. Thus, the minimum term of imprisonment under the allegedly "harsher" punishment of section 11370.1 is actually four months less than under section 11350, subdivision (a), in conjunction with the firearm enhancement.

II.

A. The only way in which section 11370.1 could be asserted to operate more harshly than the alternate statutes is that it makes anyone convicted under it ineligible for diversion.

" 'Before deciding whether or not the ... legislation violates the equal protection clauses of the United States and California Constitutions, we must look at the tests employed in reviewing legislative classification. [Citations.] "When a classification is based upon a 'suspect' category (race, creed, sex, wealth, etc.) or touches upon a 'fundamental interest,' it is subject to 'strict scrutiny' and 'active and critical analysis' by the court. The state then 'bears the burden of establishing not only that it has a compelling interest which justifies the law but that the distinctions drawn by the law are necessary to further its purpose.' " [Citation.] In the absence of a suspect category or fundamental interest, it must be determined whether the legislative classification rationally relates to a legitimate state interest. (Newland v. Board of Governors (1977) 19 Cal.3d 705, 711 [139 Cal.Rptr. 620, 566 P.2d 254]....) ....' (Hooper v. Deukmejian, supra, 122 Cal.App.3d at pp. 1008-1009 .)" (People v. Jones (1985) 176 Cal.App.3d 120, 126, 221 Cal.Rptr. 382.) The inquiry under the "rational basis" test requires the court to conduct " 'a serious and genuine judicial inquiry into the correspondence between the classification and the legislative goals' " (Newland v. Board of Governors (1977) 19 Cal.3d 705, 711, 139 Cal.Rptr. 620, 566 P.2d 254; see also People v. Jones, supra; Cooper v. Bray (1978) 21 Cal.3d 841, 847-848, 148 Cal.Rptr. 148, 582 P.2d 604; Hooper v. Deukmejian (1981) 122 Cal.App.3d 987, 1008-1009, 176 Cal.Rptr. 569.)

Appellant maintains that a fundamental "liberty interest" is impacted by the statutory denial of diversion to persons convicted under section 11370.1 and that strict scrutiny is required. The California Supreme Court has determined otherwise. In Sledge v. Superior Court (1974) 11 Cal.3d 70, 113 Cal.Rptr. 28, 520 P.2d 412, our Supreme Court held that the preliminary determination by the district attorney of an accused's eligibility for diversion was not an exercise of the judicial power and did not violate the constitutional requirement of separation of powers. (Cal. Const., art. III, § 3.) The court also rejected the petitioner's contention that the diversion statute denied him due process and equal protection of the laws, stating: "[I]nasmuch as the resulting ineligibility of persons who have a history of drug abuse or crimes of violence is rationally related to the purposes of this legislation identified in [People v. Superior Court (On Tai Ho) (1974) 11 Cal.3d 59, 113 Cal.Rptr. 21, 520 P.2d 405], no denial of equal protection is shown." (Sledge v. Superior Court, supra, at p. 76, fn. 7, 113 Cal.Rptr. 28, 520 P.2d 412.) Hence, Sledge v. Superior Court establishes that equal protection challenges based upon statutory ineligibility for diversion are reviewed under the rational basis standard to determine whether the classification is rationally related to the purposes of the statute.

Assuming for the sake of argument that persons convicted under section 11370.1 are similarly situated with persons convicted under section 11350 with a Penal Code section 12022, subdivision (a) arming enhancement, we proceed to examine the purposes of the statute and the relationship of the asserted classification to those purposes. ³

The legislative intent behind section 11370.1 was to address a deficiency in California law which did not specifically make it a public offense for a person to possess or be under the influence of a small amount of a controlled substance while in the immediate possession of a firearm. (Enrolled Bill Report of the Office of Criminal Justice Planning, dated September 25, 1989.) As stated in a memorandum from Department of Justice Legislative Advocate Carolyn McIntyre, dated February 7, 1990: "[T]he bill accomplishes what the author, Ex-Senator Stirling, the sponsors, San Diego SD, and the Committee on Public Safety intended it to accomplish. It was intended to provide an enhanced punishment for individuals that are convicted of possessing small quantities of drugs for personal use while possessing a loaded operable firearm...." ⁴

The provision of the statute denying eligibility for diversion to one convicted of this offense is rationally based. Penal Code section 1000, the diversion statute, does not provide diversion for offenses involving possession for sale. The focus of the diversion program is the tentative or experimental user who possesses only a small amount of drugs for personal use. "[D]iversion permits the courts to identify the experimental or tentative user before he becomes deeply involved with drugs, to show him the error of his ways by prompt exposure to educational and counseling programs in his own community, and to restore him to productive citizenship without the lasting stigma of a criminal conviction." (People v. Superior Court (On Tai Ho) (1974) 11 Cal.3d 59, 61, 113 Cal.Rptr. 21, 520 P.2d 405.) Consequently, there is less likelihood that one carrying amounts exceeding the amounts specified in section 11370.1 would be diverted. Where larger amounts are involved, the fact that the defendant was also carrying a firearm is less a factor in the diversion decision.

Moreover, before section 11370.1, it was not at all...