People v. Harris

• Decision Date: 12 April 1971
• Docket Number: Cr. 8869
• Citation: 17 Cal.App.3d 388,95 Cal.Rptr. 80
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. William John HARRIS, Defendant and Appellant.

Page 80

95 Cal.Rptr. 80

17 Cal.App.3d 388

PEOPLE of the State of California, Plaintiff and Respondent, v. William John HARRIS, Defendant and Appellant.

Cr. 8869.

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

April 12, 1971.

As Amended May 5, 1971.

Molly H. Minudri, San Francisco, for defendant and appellant.

Thomas C. Lynch, Evelle J. Younger, Atty. Gen., of the State of Cal., Edward P. O'Brien, Robert R. Granucci, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

SIMS, Associate Justice.

Defendant was sentenced to state prison following his plea of guilty to possession of heroin in violation of section 11500 of the Health and Safety Code, with an admitted prior conviction of the same offense, and a second admitted prior conviction of robbery in violation of section 211 of the Penal Code. By this appeal he seeks review of the denial of his motion to be committed to the narcotic rehabilitation program under the provisions of section 3051 of the Welfare and Institutions Code. ¹ He contends: (1) that the provisions of section 3051 which require the concurrence of the district attorney and the defendant before the judge may order a commitment in unusual cases constitute an unconstitutional invasion of judicial power by an executive officer and a lay person; (2) that the director of the California Rehabilitation Center acted unlawfully and abused his discretion in advising the court that he would refuse to accept the commitment of the defendant to the center; and (3) that section 3052 of the Welfare and Institutions Code ² is unconstitutional because it denies equal protection of the law to those excluded from the rehabilitation program by its terms. These contentions are examined and found without merit. The trial court properly denied the defendant's motion for commitment. The judgment must be affirmed.

I

Attention is first directed to the provisions of section 3052 (fn. 2 above) because if it is unconstitutional, there would be no occasion for the court to consider the case under those provisions of section 3051 which the defendant attacks in this appeal. The defendant contends that the section denies equal protection of the laws under the Fourteenth Amendment of the United States Constitution, and under provisions of the Constitution of the State of California. (See, Art. I, §§ 11 and 21; and former Art. IV, § 25 (repealed Nov. 8, 1966); and cf. Art. IV, § 16; Accounting Corp. of America v. State Board of Accountancy (1949) 34 Cal.2d 186, 191, 208 P.2d 984; Takahashi v. Fish & Game Com. (1947) 30 Cal.2d 719, 726--731, 185 P.2d 805, rev'd in 334 U.S. 410, 68 S.Ct. 1138, 92 L.Ed. 1478; Del Mar Canning Co. v. Payne (1946) 29 Cal.2d 380, 382--383, 175 P.2d 231; and 11 Cal.Jur.2d, Constitutional Law, §§ 258--260, pp. 695--698.) He asserts that the state, having undertaken a program for the treatment and rehabilitation of drug addicts and the suppression of drug abuse (see, Welf. & Inst. Code, § 3000 ³), cannot exclude an addict because he has been convicted, or has been previously convicted of certain crimes. He attacks both the provisions which exclude narcotic violators who are subject to punishment for a minimum term in excess of five years, and the provisions which exclude those convicted of any of the enumerated crimes of violence.

Since as a second offender under the provisions of section 11500 of the Health and Safety Code, the defendant is subject to a minimum term of only five years, he cannot be denied treatment under that proviso. (See, People v. Wallace (1963) 59 Cal.2d 548, 553, 30 Cal.Rptr. 449, 381 P.2d 185.) He, therefore, is not entitled to attack the constitutionality of those provisions, which apparently seek to distinguish between addicts who are repeated offenders of the narcotic laws, and those who are not. It is, therefore, unnecessary to dwell upon the reasonableness of such a classification.

The principles governing the application of the equal protection clause were laid down in Whittaker v. Superior Court (1968) 68 Cal.2d 357, 66 Cal.Rptr. 710, 438 P.2d 358, as follows: 'It is clear * * * that neither the equal protection clause of the United States Constitution, nor those provisions of the state Constitution which embody the principle of equality before the law, proscribe legislative classification per se. On the contrary such constitutional provisions, which in general assure that persons in like circumstances be given equal protection and security in the enjoyment of their rights (see 3 Witkin, Summary of Cal. Law (7th ed.1960) Constitutional Law, § 125, p. 1930), permit classification 'which has a substantial relation to a legitimate object to be accomplished. * * *' (Board of Education of City of Los Angeles v. Watson (1966) 63 Cal.2d 829, 833, 48 Cal.Rptr. 481, 409 P.2d 481 * * *) So long as such a classification 'does not permit one to exercise the privilege while refusing it to another of like qualifications, under like conditions and circumstances, it is unobjectionable upon this ground.' (Watson v. Division of Motor Vehicles (1931) 212 Cal. 279, 284, 298 P. 481, 483, * * *) Finally, it is to be observed that a classification based on legislative experience is presumed valid and will not be rejected unless plainly arbitrary. 'Statutory discrimination between classes which are in fact different must be presumed to be relevant to a permissible legislative purpose, and will not be deemed to be a denial of equal protection if any state of facts could be conceived which would support it.' (Asbury Hospital v. Cass County (1945) 326 U.S. 207, 215, 66 S.Ct. 61, 65, 90 L.Ed. 6.)' (68 Cal.2d at pp. 367--368, 66 Cal.Rptr. at p. 718, 438 P.2d at p. 366, fn. omitted.)

Defendant urges that since the object is to regulate drug addiction it is unreasonable to exclude a robber or a burglar who may steal to support his habit. He concludes 'there is no reasonable basis for including drug addicts with non-violent records in the program and excluding drug addicts with records of violence.'

This approach fails to recognize that the purpose of the rehabilitation program is to provide for the treatment and control of narcotic addicts in a nonpenal and, where possible, a noncustodial setting. (See, People v. Superior Court (1970) 2 Cal.3d 527, 532--533, 86 Cal.Rptr. 83, 468 P.2d 211; In re De La O (1963) 59 Cal.2d 128, 147, 28 Cal.Rptr. 489, 378 P.2d 793 (U.S. cert.den. 374 U.S. 856, 83 S.Ct. 1927, 10 L.Ed.2d 1076); and People v. Zapata (1963) 220 Cal.App.2d 903, 913, 34 Cal.Rptr. 171, cert. den. 377 U.S. 1406, 84 S.Ct. 1633, 12 L.Ed.2d 495.) It was not unreasonable for the Legislature, in an attempt to stress the nonpunitive nature of the program, to exclude, because of a rational fear of custodial problems, addicts with a history of a propensity for committing crimes of violence. (See, Belton, Civil Commitment of Narcotic Addicts in California: A Case History of Statutory Construction (1968) 19 Hastings L.J. 603, 637 and 644.)

Defendant's argument is a rational polemic for the furnishing of treatment to those who are excluded from the program under review in another setting. It does not, however, demonstrate that the Legislature violated the constitutional rights of those whom it rationally excluded in order to facilitate the success of the program for others.

II

Section 3051 (see fn. 1 above) provides in part, 'In any case to which Section 3052 applies, the judge may request the district attorney to investigate the facts relevant to the advisability of commitment pursuant to this section. In unusual cases, wherein the interest of justice would best be served, the judge may, with the concurrence of the district attorney and defendant, order commitment notwithstanding Section 3052.' Defendant asserts that the latter provision is unconstitutional in that it provides for invasion of the judicial process by the district attorney, who is an administrative officer, and by a lay person, the defendant himself. In this case there is no issue concerning the concurrence of the defendant himself, because he is seeking a commitment. It is unnecessary to determine under what circumstances, if any, a commitment may be ordered over the protests of the defendant, whether he be eligible or not.

Preliminarily it should be noted that the approval of defendant's contention might be of little service to him. The provisions governing the rehabilitation program were enacted as section 6400 et seq. of the Penal Code in 1961. (Stats.1961, ch. 850, § 2, p. 2223.) Section 6451, upon which section 3051 of the Welfare and Institutions Code is predicated (see, Stats.1965, ch. 1226, §§ 1--2, p. 3062), did not contain the language quoted above. Section 6452 contained the exclusions discussed above which are now found in section 3052 of the Welfare and Institutions Code. The quoted language was added in 1963 (Stats.1963, ch. 1706, § 8, p. 33541; and see, Belton, Op. cit., 19 Hastings L.J. at pp. 637--646), and was carried forward in 1965 in the reenactment in the Welfare and Institutions Code. It would appear that but for the amendment, any addict excluded under the provisions of section 3052 would be without any recourse. (See, People v. Victor (1965) 62 Cal.2d 280, 291, fn. 5, 42 Cal.Rptr. 199, 398 P.2d 391.)

If, therefore, the Legislature has improperly delegated judicial authority, it did not indicate an intention to confer it unconditionally. If the condition is invalid the whole amendment should be deleted. The remainder can only be enforced when an intention is manifest that the remainder should stand if a portion is found unconstitutional. (See, In re Perez (1966) 65 Cal.2d 224, 231--232, 53 Cal.Rptr. 414, 418 P.2d 6; and In re Bell (1942) 19 Cal.2d 488, 497--498, 122 P.2d 22.) 'When a valid act is amended by an unconstitutional provision, the usual rule is that only the amendment is invalid (citation).' (Skyline Materials, Inc. v. City of Belmont (1961) 198 Cal.App.2d 449,...