People v. Medina, Cr. 18634

• Decision Date: 05 March 1971
• Docket Number: Cr. 18634
• Citation: 93 Cal.Rptr. 560,15 Cal.App.3d 845
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Appellant, v. Jose MEDINA, Jr., Defendant and Respondent.

Page 560

93 Cal.Rptr. 560

15 Cal.App.3d 845

The PEOPLE of the State of California, Plaintiff and Appellant, v. Jose MEDINA, Jr., Defendant and Respondent.

Cr. 18634.

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

March 5, 1971.

Hearing Denied April 29, 1971.

Thomas C. Lynch and Evelle J. Younger, Attys. Gen., William E. James, Asst. Atty. Gen., Evelle J. Younger and Joseph P. Busch, Jr., Dist. Attys., Harry Wood, Head, Appellate Division, Harry B. Sondheim, Deputy Dist. Atty., for plaintiff-appellant.

Richard S. Buckley, Public Defender, James L. McCormick, Dale C. Frailey, Dennis A. Fischer, Deputy Public Defenders, for defendant-respondent.

FLEMING, Associate Justice.

Appeal by the People from the dismissal of an information.

On 9 March 1970 Jose Medina, Jr., was arrested on a public street in Azusa. At the time of his arrest he was staggering and swaying, he spoke with slurred speech, his eyes were watery, bloodshot, and glassy, and he was unable to pass a sobriety test. His breath did not smell of alcohol, and a post-arrest search disclosed dangerous drugs on his person. Medina was charged with a violation of Penal Code, section 647(f), being in a public place under the influence of liquor or drugs, and with two violations of Health and Safety Code, section 11910, possession of dangerous drugs.

Section 647 provides:

'Every person who commits any of the following acts shall be guilty of disorderly conduct, a misdemeanor:

'(f) Who is found in any public place under the influence of intoxicating liquor, (or) any drug * * * or any combination * * * in such a condition that he is unable to exercise care for his own safety or the safety of others * * *.'

In 1969 while the Legislature was adopting multiple amendments to section 647, it inadvertently failed to re-enact the section's introductory declaration: 'Every person who commits any of the following acts shall be guilty of disorderly conduct, a misdemeanor.' On 23 March 1970 the introductory declaration was restored to the section by emergency legislation. The issue at bench is whether during the interim period section 647 stated a public offense for violation of which a person could be criminally prosecuted. The court below concluded it did not, and thereafter it suppressed the evidence of dangerous drugs and dismissed the information. We have concluded that the order of the trial court was erroneous.

1. Regardless of the validity of section 647, the evidence relating to possession of dangerous drugs should not have been suppressed. The purpose of the exclusionary rule of evidence is to require the police to comply with constitutional prohibitions against unreasonable searches and seizures. (People v. Cahan, 44 Cal.2d 434, 445, 282 P.2d 905.) In this case the police officer acted reasonably in arresting Medina as he staggered, glassy-eyed on a public street. Prior to the 1969 amendment public drunkenness had always been a crime in California, and even under the defective text of the amendment it remained the officer's responsibility to protect society from a person who is 'in such a condition that he is unable to exercise care for his own safety or the safety of others.' We could not expect a police officer to be aware of something the Legislature itself had been unaware, viz., that there had been a temporary inadvertent deletion of the introductory declaration to section 647, nor, even if the officer had been aware of the deletion, could we require him to draw the correct legal conclusion as to its effect, a subject on which judges themselves, as this cause illustrates, have differing opinions. The arrest, therefore, was proper, and since Medina's breath did not smell of alcohol, it was reasonable for the arresting officer to make a cursory search of Medina's person for drugs. Since both arrest and search were valid, the suppression of the evidence of dangerous drugs was erroneous.

2. Did section 647 state a valid offense on 9 March 1970 at a time when, as both parties conceded, the introductory declaration in the section had been inadvertently omitted? Yes. Medina argues that the canons of statutory construction do not permit courts to add to a statute the text of language which has been unintentionally omitted from the statute; he further argues that even if the canons could be interpreted to permit such an addition, his prosecution for a crime of which he had no notice would deny him due process of law.

The argument on statutory construction is not sound. If the intent of the Legislature is clearly ascertainable, words inadvertently omitted from a statute may be supplied in the process of construction in order to effectuate the legislative intent. (People v. Pallares, 112 Cal.App.2d Supp. 895, 900, 246 P.2d 173.) Directly in point is People v. Williams, 124 Cal.App.2d 32, 35--37, 268 P.2d 156, where, as here, the Legislature was considering two proposed amendments to the same statute. Both amendments were adopted, but the amendment last in time inadvertently did not include the changes made by the amendment first in time. Under traditional canons of construction the second amendment would have voided changes made in the statute by the first. Nevertheless, the court concluded that the intent of the Legislature was so clearly apparent that the court would read the changes in the first amendment into the second amendment in order to effectuate the legislative intent. So here--the omission was inadvertent, and the intent of the Legislature was clear. By construction we may supply the missing language. (Cf. Pen.Code §§ 4,...