People v. McNaught

Decision Date12 April 1973
Docket NumberCr. 22540
Citation31 Cal.App.3d 599,107 Cal.Rptr. 566
CourtCalifornia Court of Appeals Court of Appeals
PartiesThe PEOPLE of the State of California, Plaintiff and Respondent, v. Raymond F. McNAUGHT, Defendant and Appellant.

Robert G. Eckhoff, Public Defender, Lloyd R. Nocker, Deputy Public Defender, for appellant.

Patrick L. McMahon, Santa Barbara, amicus curiae on behalf of appellant.

David D. Minier, Dist. Atty., Patrick J. McKinley, Deputy Dist. Atty., for respondent.

KAUS, Presiding Justice.

Defendant appeals from an order revoking probation (Pen.Code, § 1466, subd. 2(b)) and from a final judgment of conviction (Pen.Code § 1466, subd. 2(a)) of the Municipal Court of the Santa Barbara-Goleta Judicial District. The matters are before us on certification from the Appellate Department of the Santa Barbara County Superior Court and order of transfer by us. (Cal.Rule of Court 62(a).)


On May 20, 1972, the Santa Barbara police found defendant drunk, staggering and On May 23, 1972, defendant pleaded guilty to a complaint charging him with a violation of section 647(f) of the Penal Code. He was sentenced to serve a term of six months in the county jail. Execution of the sentence was suspended and defendant was placed on summary probation for three months.

'ready to fall' against the side of a liquor store. He was arrested for the offense generally known as 'drunk in public.' (Pen.Code § 647(f).) According to a police report which is part of our record, this appears to have been his sixth arrest for that offense in about two months.

On June 19, 1972, defendant was found, again drunk, on the front lawn of a Santa Barbara residence. He was again arrested. On June 21, 1972, he pleaded guilty to a new section 647(f) charge. He was again sentenced to serve six months in the county jail. With respect to the earlier charge, probation was revoked and the sentence was ordered executed, to be served concurrently with the sentence on the second charge.


Defendant's claim with respect to each conviction is simply that he did not commit a public offense.

In order to understand defendant's point, it is necessary to examine not only section 647(f), but also section 647(ff), which was inserted into section 647 by the 1971 Legislature. Both are copied in the footnote. 1

Briefly summarized, the net effect of sections 647(f) and (ff) is that in counties which operate the type of facility described in section 647(ff), known generally as a detoxification center, persons guilty of 'simple' violations 2 of section 647(f) may--or perhaps must--be diverted out of the criminal process and treated as in need of therapy rather than punishment.

This is the outline of defendant's argument: The effect of section 647(ff) is that In determining the validity of defendant's contention, we have had the benefit of several briefs by the parties, a thoughtful opinion of the appellate department and a most stimulating amicus curiae brief filed by Mr. Patrick L. McMahon of the Santa Barbara Bar.

in counties which operate detoxification centers simple violations of section 647(f) are no longer crimes. Santa Barbara does not operate such a center. To treat him as a criminal for a condition which in counties having a detoxification center would cause him to become a patient, discriminates against him on the fortuitous basis that he was arrested in a county which does not operate such a center. His convictions, therefore, deny him equal protection.


In view of the conclusion we have reached, we do not find it necessary to decide the correctness of defendant's premise that a simple violation of section 647(f) does not constitute a crime in a county operating a detoxification center. 3 Since it is certain that in such a county defendant would at least have had a chance to be handled therapeutically rather than criminally, while in Santa Barbara he had none, his point really does not depend on the legal correctness of the premise. In any event, for the sake of simplicity we shall assume that in a county operating a detoxification center a simple violation of section 647(f) may not be treated as a crime.

After we ordered these appeals transferred to us, Division One of the Court of Appeal of the First Appellate District filed its opinion in People v. Superior Court (Colon), 29 Cal.App.3d 397, 105 Cal.Rptr. 695.

Whether or not Colon represents a square holding on the issue presented by these appeals is debatable. Colon was arrested for a violation of section 647(f) in Monterey County which apparently had not established a detoxification center either. While he was being booked as a criminal, certain illegal drugs were found on his person. He sought suppression on the ground that section 647(ff) prohibited the booking process. His argument hinged on the constitutionality of a prosecution for a violation of section 647(f) in a county which had not established a detoxification center.

The Court of Appeal found that the trial court had erroneously ordered suppression. It first held that the 1971 insertion of section 647(ff) did not invalidate prosecutions for violations of section 647(f). Then, however, it weakened the relevance of its holding as far as our problem is concerned, by holding that even if Colon had been delivered to a detoxification center, precisely the same search could have been conducted 'to make certain that the inebriate did not bring any alcohol . . . into the facility . . .'

In view of the questionable nature of Colon as a holding on the only issue before us, we will consider it afresh.

In framing his equal protection argument defendant recognizes, as he must, that he cannot successfully invoke the Equal Protection Clause simply by pointing to a lack of territorial uniformity. He would be fighting at least two United States Supreme Court decisions.

Even if Salsburg v. Maryland, 346 U.S. 545, 74 S.Ct. 280, 98 L.Ed. 281, the principal case relied on by the Colon court, is distinguishable as involving a matter of criminal procedure, 4 McGowan v. Maryland 366 U.S. 420, 427, 81 S.Ct. 1101, 6 L.Ed.2d 393 is not. In that case Maryland's statutes permitted the Sunday sale of certain merchandise in Anne Arundel County, while prohibiting it in others. Said the court:

'Secondly, appellants contend that the statutory arrangement which permits only certain Anne Arundel County retailers to sell merchandise essential to, or customarily sold at, or incidental to, the operation of bathing beaches, amusement parks et cetera is contrary to the 'Equal Protection' Clause because it discriminates unreasonably against retailers in other Maryland counties. But we have held that the Equal Protection Clause relates to equality between persons as such, rather than between areas and that territorial uniformity is not a constitutional prerequisite. With particular reference to the State of Maryland, we have noted that the prescription of different substantive offenses in different counties is generally a matter for legislative discretion. We find no invidious discrimination here. See Salsburg v. Maryland, Supra.' (McGowan v. Maryland, Supra, 366 U.S. at p. 427, 81 S.Ct. at p. 1106. Emphasis added.)

All the same, while Salsburg and McGowan, undoubtedly stand for the proposition that a lack of territorial uniformity does not necessarily deny equal protection, they clearly do not hold that a state can classify and discriminate as it pleases, as long as it does so on a territorial basis. 5 (See generally, Horowitz and Neitring, Equal Protection Aspects of Inequalities in Public Education and Public Assistance Programs from Place to Place Within a State (1968) 15 U.C.L.A.L.Rev. 787.) If Salsburg and McGowan could be made to carry that much water, issues such as the one decided in Whittaker v. Superior Court, 68 Cal.2d 357, 66 Cal.Rptr. 710, 438 P.3d 358, would hardly merit discussion. 6

Section 647(ff) must be viewed in its legal and historical setting. It provides for a diversion of certain persons found to have been in violation of section 647(f) to facilities 'designated pursuant to Section 5170 of the Welfare and Institutions Code.' Section 5170 appears in article 1.5, chapter 2, part 1, division 5 of the Welfare and Institutions Code. Article 1.5, which deals generally with the temporary detention of certain types of inebriates, not just persons found to be in violation of section 647(f), was not enacted until 1969. (Stats.1969, ch. 1472.) It was then sandwiched into the existing statutory framework which had been created by the California Mental Health Act of 1967 (Stats.1967, ch. 1667, p. 4074 et seq.), consisting of the Lanterman-Petris-Short Act (Welf. & Inst.Code § 5000 et seq.) and the Short-Doyle Act (Welf. & Inst.Code § 5600 et seq.). This is not the place to list all the various objectives of the 1967 legislation, but one of its express purposes was to create a more extensive network of community-based services for the mentally ill. (Thorn v. Superior Court, 1 Cal.3d 666, 668, 83 Cal.Rptr. 600, 464 P.2d 56.) In the main the Lanterman-Petris-Short Act describes the facilities to be furnished to the mentally ill, as well as certain procedures for voluntary and involuntary admissions, while the Short-Doyle Act provides for methods of financing the mental health services described in Lanterman-Petris-Short. 7 As now structured 8 it prescribes the establishment of community health services by the board of supervisors of every county (Welf. & Inst.Code § 5602), declares the availability of state funds for mental health service provided under county Short-Doyle plans (Welf. & Inst.Code § 5603), establishes local advisory boards (Welf. & Inst.Code § 5604), and prescribes certain standards of administration for local mental health services (Welf. & Inst.Code § 5607 et seq.) The powers and duties of the local board are described in ...

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