People v. Encerti

• Decision Date: 20 April 1982
• Docket Number: Cr. 23032
• Citation: 130 Cal.App.3d 791,182 Cal.Rptr. 139
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Appellant, v. Gary Anthony ENCERTI, Defendant and Respondent.

Page 139

182 Cal.Rptr. 139

130 Cal.App.3d 791

PEOPLE of the State of California, Plaintiff and Appellant, v. Gary Anthony ENCERTI, Defendant and Respondent.

Cr. 23032.

Court of Appeal, First District, Division 1, California.

April 20, 1982.

Hearing Denied June 17, 1982.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., William D. Stein, Asst. Atty. Gen., Ronald E. Niver, John W. Runde, Deputy Attys. Gen., San Francisco, for plaintiff and appellant.

Stanley & Wing, Inc., Christopher H. Wing, Sacramento, for defendant and respondent.

NEWSOM, Associate Justice.

This is an appeal by the People from an order dismissing a charge of offering to sell heroin (Health & Saf.Code, § 11352; Pen.Code, § 1203.07) granted pursuant to Penal Code section 995.

Respondent was originally charged with five counts of sale of heroin (Health & Saf.Code, § 11352) and one count of offering to sell, but the latter charge and one sale count were dismissed by the magistrate after presentation of evidence at the preliminary examination. The prosecution thereafter realleged the offer to sell count VI in the information despite the magistrate's ruling. (Pen.Code, § 739.)

The evidence pertinent to this appeal offered at the preliminary hearing reveals the following.

On March 21, 1981, a state undercover narcotics agent, working jointly with the Vallejo Police Department, arranged a heroin purchase from respondent through an operative. ¹ While the agent waited in his vehicle parked in a shopping center parking lot, the operative approached respondent's vehicle parked in the same lot, and subsequently purchased one gram of heroin. The agent observed the drug transaction from his vehicle and a nearby drug store.

As the operative was exiting respondent's vehicle, the agent approached and received the just-purchased bindle of heroin. The agent immediately asked if respondent could supply another gram, and respondent replied that he could. Thereupon, the agent purchased another gram of heroin directly from respondent for $325.

After the second purchase, the agent asked if respondent could sell him an ounce of heroin. Respondent answered, "I can do ounces but it will cost you nine thousand per ounce." The agent expressed interest, but declared that he might want to start with a lesser amount, such as a quarter or eighth of an ounce. Respondent replied, "That's okay with me." The agent was told that he could contact respondent through the operative to make the purchase, but no further arrangements were made.

The trial court ruled that recently enacted Penal Code section 871.5 ²--which grants the prosecution appeal rights from a magistrate's dismissal of charges--impliedly bars the prosecution from exercising its authority under section 739 to include a charge on an information for which the magistrate has found insufficient evidence to hold the defendant to answer. The People challenge that ruling.

Section 871.5 provides for review by the superior court of dismissals of charges or criminal actions by magistrates. (Chism v. Superior Court (1981) 123 Cal.App.3d 1053, 1061, 176 Cal.Rptr. 909.) In part pertinent to this appeal, it provides: "When an action, or a portion thereof, is dismissed by a magistrate pursuant to sections 859b, 861, 871 or 1385, the prosecutor may make a motion in the superior court within 10 days [after dismissal] to compel the magistrate to reinstate the complaint or a portion thereof ... [on the] ground ... that, as a matter of law, the magistrate erroneously dismissed the action or a portion thereof."

The trial court concluded that section 871.5 repealed section 739 by implication; it authorizes the prosecution to "charge the defendant with either the offense or offenses named in the order of commitment or any offense or offenses shown by the evidence taken before the magistrate to have been committed." ³ (Emphasis added.)

Appellant claims section 871.5 should not be construed to repeal by implication the statutory rights expressed in section 739 to charge additional offenses in an information. According to appellant, the two statutes do not necessarily conflict. Appellant suggests that the appeal procedure provided by section 871.5 is permissive, not mandatory, and thus can be elected by the prosecution following dismissal of charges by a magistrate as an alternative to including such charges in an information. We agree.

The terms of a subsequently enacted specific statute prevail over a general provision which applies to the same situation. (Serrano v. Priest (1971) 5 Cal.3d 584, 596, 96 Cal.Rptr. 601, 487 P.2d 1241; County of Placer v. Aetna Cas. etc. Co. (1958) 50 Cal.2d 182, 189, 323 P.2d 753.) As declared in Palmer v. Agee (1978) 87 Cal.App.3d 377, 383, 150 Cal.Rptr. 841. " 'A specific provision relating to a particular subject will govern in respect to that subject, as against a general provision, although the latter, standing alone, would be broad enough to include the subject to which the more particular provision relates.' " (See also County of Placer, supra, 50 Cal.2d at p. 189, 323 P.2d 753.) And, where a subsequently enacted statute directly conflicts with an earlier, more general provision, it is settled that the subsequent legislation effects a limited repeal of the former statute to the extent that the two are irreconcilable. (Governing Board v. Mann (1977) 18 Cal.3d 819, 828, 135 Cal.Rptr. 526, 558 P.2d 1.)

However, repeals by implication are not favored. (Governing Board v. Mann, supra, 18 Cal.3d 819, 828, 135 Cal.Rptr. 526, 558 P.2d 1; Flores v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 171, 176, 113 Cal.Rptr. 217, 520 P.2d 1033.) "They are recognized only where there is no rational basis for harmonizing the two potentially conflicting statutes [citation] and the statutes are 'irreconcilable, clearly repugnant, and so inconsistent that the two cannot have concurrent operation.' " (In re White (1969) 1 Cal.3d 207, 212, 81 Cal.Rptr. 780, 460 P.2d 980; People v. Grisso (1980) 104 Cal.App.3d 380, 386, 163 Cal.Rptr. 547.) "It is not to be presumed that the legislature in the enactment of statutes intends to overthrow long-established principles of law unless intention is made clearly to appear either by express declaration or by necessary implication." (County of Los Angeles v. Frisbie (1942) 19 Cal.2d 634, 644, 122 P.2d 526; People v. Blackwell (1981) 117 Cal.App.3d 372, 377, 172 Cal.Rptr. 636.) Instead, statutes covering the same subject matter are to be construed together and harmonized, if possible, to maintain the integrity of both statutes. (Hays v. Wood (1979) 25 Cal.3d 772, 784, 160 Cal.Rptr. 102, 603 P.2d 19; Palmer v. Agee, supra, 87 Cal.App.3d 377, 383, 150 Cal.Rptr. 841.)

In our view, the two sections here at issue can easily be reconciled. Section 871.5 does not expressly modify, repeal or otherwise mention section 739. Nor is any inherent conflict or disharmony found in the statutes.

Section 871.5 merely creates a review procedure whereby the district attorney "may make a motion, ... in the superior court" (emphasis added) to review the ruling of a magistrate dismissing an offense after a preliminary examination. Nowhere does section 871.5 direct that its review procedure must be employed following a magistrate's dismissal of charges. We feel that the statute is most appropriately construed as providing for a permissive method of review, not a mandatory procedure to be employed in lieu of the filing authorization granted by section 739.

Such an interpretation of section 871.5 is consistent with its purpose. The review procedure provided therein--along with amendments to companion statutes--was intended to overcome the holding of our high court in People v. Peters (1978) 21 Cal.3d 749, 147 Cal.Rptr. 646, 581 P.2d 651, which construed the language of sections 859b, 861, 871 and 1385 as authorizing "courts" but not "magistrates to dismiss actions." (Landrum v. Superior Court (1981) 30 Cal.3d 1, 5-6, fn. 4, 177 Cal.Rptr. 325, 634 P.2d 352 ⁴ ; Chism v. Superior Court, supra, 123 Cal.App.3d 1053, 1061, 176 Cal.Rptr. 909; Ervin v. Superior Court (1981) 119 Cal.App.3d 78, 88-89, fn. 4, 173 Cal.Rptr. 208.) As explained in Chism, supra, 123 Cal.App.3d at page 1061, 176 Cal.Rptr. 909; "Conferring to magistrates the authority to dismiss required enactment of a statute authorizing the prosecution to seek immediate superior court review of such dismissals to have the complaint reinstated so that successive dismissals by magistrates will not bar refiling under concurrently amended Penal Code section 1387."

We find nothing in section 871.5 manifesting an intent to abolish the long-standing statutory (§ 739) right of the prosecution to add offenses to an information which are established by the evidence adduced at the preliminary examination. To the contrary, sections 871.5 and 739 can be fully reconciled by interpreting section 871.5 as permitting the prosecution to elect to either: (1) review a magistrate's dismissal of charges in superior court; or (2) include the dismissed charges in the information in accordance with section 739. The two statutes, when given such a reasonable construction, will co-exist without conflict. We thus conclude that section 871.5 does not repeal section 739 by implication. (Hays v. Wood, supra, 25 Cal.3d 772, 784-785, 160 Cal.Rptr. 102, 603 P.2d 19; Dew v. Appleberry (1979) 23 Cal.3d 630, 636, 153 Cal.Rptr. 219, 591 P.2d 509; People v. Blackwell, supra, 117 Cal.App.3d 372, 377, 172 Cal.Rptr. 636; People v. Grisso, supra, 104 Cal.App.3d 380, 386, 163 Cal.Rptr. 547.)

It remains to determine whether inclusion of the offer to sell charge in the information was independently authorized here under the terms of section 739. ⁵

Section 739 specifically allows the district attorney to include in an information "the offense or offenses named in the order of commitment of any offense or offenses shown by the evidence taken before...