People v. Koester

• Decision Date: 11 December 1975
• Docket Number: Cr. 14084
• Citation: 126 Cal.Rptr. 73,53 Cal.App.3d 631
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Wilbur J. KOESTER, Defendant and Appellant.

Page 73

126 Cal.Rptr. 73

53 Cal.App.3d 631

The PEOPLE of the State of California, Plaintiff and Respondent, v. Wilbur J. KOESTER, Defendant and Appellant.

Cr. 14084.

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

Dec. 11, 1975.

Hearing Denied Feb. 5, 1976.

Keogh, Marer & Flicker, Palo Alto, for defendant and appellant.

Evelle J. Younger, Atty. Gen., of the State of California, Jack R. Winkler, Chief Asst. Atty. Gen.--Crim. Div., Edward P. O'Brien, Asst. Atty. Gen., W. Eric Collins, M. Janice Smith, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

LAZARUS, ^* Associate Justice (Assigned).

There is but one issue for determination on this appeal. Did the trial court properly rule that because appellant was charged with violating Health and Safety Code section 11368 (issuing fictitious prescriptions for narcotic drugs) he is not eligible for diversion as a drug offender to a treatment and rehabilitation center under Penal Code sections 1000--1000.4 ¹ as a matter of law?

From the record before us appellant, an orthopedic physician and surgeon with an otherwise unblemished record, would appear to be the kind of person who would be most likely to benefit from this salutary program. But since it is our function to interpret statutory laws, not to change them, we must of necessity reach the same conclusion as did the trial judge.

Appellant was charged in a complaint filed in the municipal court with violating the following sections of the Health and Safety Code: Possession of a controlled substance (hycomine) in violation of section 11377; possession of a controlled substance (percodan) in violation of section 11350; issuance of a fictitious prescription in violation of section 11368; obtaining a controlled substance by false name and address in violation of section 11174; and prescribing a controlled substance for one not under treatment in violation of section 11154.

Prior to the preliminary hearing, Koester made a motion that he be admitted to a diversion program under section 1000 of the Penal Code. At the hearing on this motion, and after reviewing defendant's file, the district attorney determined that appellant was not eligible and refused to initiate diversion proceedings. This, although the municipal court judge was of the opinion that the defendant was an excellant candidate for this program. ² The judge reached the conclusion, therefore, that he had no discretion under the statute as it now reads, and denied the motion. Defendant was then held to answer. The district attorney subsequently filed an information in the superior court in two counts, charging appellant with violating Health and Safety Code section 11350, possession of a controlled substance, and with violating Health and Safety Code section 11368, obtaining a controlled substance by a forged or fictitious prescription.

Appellant renewed his motion to institute proceedings for diversion under Penal Code section 1000 in the superior court where it was denied with similar reluctance but for the same reason that it had been originally denied in the municipal court. The court, however, accepted a plea of Nolo contendere to the section 11368 count, dismissing the count charging a violation of section 11350. In accordance with his authority under Penal Code section 17, however, the judge deemed the section 11368 offense to be a misdemeanor, placing the defendant on probation for two years, and ordering him to pay a $1,000 fine. As a further condition of probation, he was ordered to participate in a psychiatric or psychological program to be approved by the probation officer.

From the evidence at the preliminary hearing it appears that the appellant over a period of time wrote a number of fictitious prescriptions for hycomine and percodan intended for his own use. The prescriptions were drafted in the names of other people, some of whom were his patients, and he would then personally take them to a pharmacy and have them filled. It was conceded by the People that there was not even an iota of evidence that the defendant had ever trafficked the drugs or that he procured the prescription drugs for anyone other than himself.

In addition, the People acknowledged that Appellant met all of the requirements for eligibility for diversion under Penal Code section 1000 except that listed in subdivision (a)(3). ³ In other words, it was admitted that appellant had no prior conviction for any offense involving narcotics or restricted drugs, that he has no record of probation or parole violations, and that the offense charged did not involve a crime of violence or threatened violence. What the People do say, however, is that because appellant obtained the drugs by fictitious prescriptions, a violation of Health and Safety Code section 11368, he was ineligible for diversion under Penal Code section 1000, subdivision (a)(3) which requires that there must be no evidence of a violation relating to narcotics or restricted dangerous drugs other than a violation of the sections of the Health and Safety Code specifically mentioned in the first paragraph of subdivision (a). Section 11368 is not therein listed.

The municipal court judge who denied the original section 1000 Penal Code motion felt that he had no discretion to do otherwise, not only because of the refusal of the district attorney to initiate diversion proceedings, ⁴ but also because of the strict interpretation given to this section in People v. Cina (1974), 41 Cal.App.3d 136, 115 Cal.Rptr. 758 (an authority to be hereinafter referred to and discussed).

The social philosophy and purposes that led to the enactment of Penal Code sections 1000 to 1000.4 have been described by the Supreme Court as follows: 'Penal Code sections 1000 to 1000.4, enacted in 1972, authorize the courts to 'divert' from the normal criminal process persons who are formally charged with first-time possession of drugs, have not yet gone to trial, and are found to be suitable for treatment and rehabilitation at the local level. The purpose of such legislation, which has recently been adopted with variations in several of our sister states, a two-fold. First, diversion 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. Second, reliance on this quick and inexpensive method of disposition, when appropriate, reduces the clogging of the criminal justice system by drug abuse prosecutions and thus enables the courts to devote their limited time and resources to cases requiring full criminal processing. (See Robertson, Pre-trial Diversion of Drug Offenders: A Statutory Approach (1972) 52 B.U.L.Rev. 335, 336--337; Note, Addict Diversion: An Alternative Approach for the Criminal Justice System (1972) 60 Geo.L.J. 667, 672--673.)' (People v. Superior Court (On Tai Ho) (1974) 11 Cal.3d 59, 61--62, 113 Cal.Rptr. 21, 23, 520 P.2d 405, 407.)

We are here ultimately called upon, therefore, to resolve a dispute over the proper construction of Penal Code section 1000, in particular subdivision (a) (3), having in mind the above stated principles. Basically, the People urge a strict construction of the statute, arguing that because appellant obtained drugs for his own use by writing fictitious prescriptions, he is ineligible for diversion, as that offense is not one of the enumerated offenses in Penal Code section 1000. Appellant, on the other hand, urges a liberal construction of the statute, arguing that the Legislature intended that the aim of the diversion program is to include broad participation in the program and that the Legislature, by including subdivision (a)(3), meant only to exclude those dealing or trafficking in drugs. Both sides have resourcefully presented convincing arguments, and this issue is not one that is easily resolved.

There is strong support for appellant's contention that the statute is to be broadly construed. in Sledge v. Superior Court (1974), 11 Cal.3d 70, 75, 113 Cal.Rptr. 28, 31, 520 P.2d 412, 415, the Supreme Court expressed the view that: 'Subsection (3) is intended by the Legislature to render ineligible for the diversion program a relatively limited class of persons, i.e., Those who are dealing in illegal narcotics but who have never previously been convicted of any drug offense and whom the district attorney cannot or does not choose to charge with trafficking. The statute specifies there must be 'evidence' that the defendant is a member of that class before he can be excluded. 'Evidence,' of course, means more than mere suspicion or rumor; it means, in this context, reports of actual instances of trafficking or other information showing that the defendant was probably committed narcotics offenses in addition to those listed in the statute.' (Emphasis added.)

In Morse v. Municipal Court (1974), 13 Cal.3d 149, 158, 118 Cal.Rptr. 14, 19, 529 P.2d 46, 51, our highest court stated, 'The entire tenor of the diversion statute is one of liberal experiment. Reference to its legislative history reveals that it is only one part of a comprehensive drug treatment program adopted by the Legislature. . . . We therefore deem it reasonable that the Legislature's overriding purpose was to facilitate its broader aim of conducting an unusually liberal experiment in rehabilitation by encouraging the Broadest possible participation in the drug treatment programs.' (Emphasis added.) In addition, Morse, at page 159, 118 Cal.Rptr. at page 20, 529 P.2d at page 52, paraphrased subdivision (a)(3) as requiring that the case involve "no evidence' of defendant's commission of other More serious drug offenses.' (Emphasis added.)

In that case a defendant charged with possession of marijuana was advised by the district attorney that he...