People v. Superior Court (Skoblov)
| Decision Date | 30 October 1987 |
| Citation | 241 Cal.Rptr. 322,195 Cal.App.3d 1209 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Petitioner, v. The SUPERIOR COURT of Santa Clara County, Respondent; Yelena Eugeni SKOBLOV, Real Party in Interest. H003424. |
No appearance for respondent.
Bernard David Walter, Murray & Associates, San Francisco, for real party in interest.
The Superior Court of Santa Clara County has issued a writ of mandate directing the municipal court to begin pretrial diversion procedures for a misdemeanor defendant, real party in interest Yelena E. Skoblov. Santa Clara County has not adopted a pretrial diversion program. The People seek a writ of mandate. We have concluded the superior court exceeded its jurisdiction in mandating diversion for a defendant in a county which has no such treatment available, and accordingly the writ will issue. 1
The People charged Skoblov with one count of misdemeanor petty theft in the Municipal Court of Santa Clara County. (PEN.CODE, §§ 4842, 488.) She had been arrested for taking a paint brush and two cans of paint. She has no criminal record.
Defendant moved to compel pretrial diversion. After denial in the municipal court, the superior court granted her motion by a writ of mandate compelling the municipal court to schedule a diversion eligibility hearing for Skoblov. The superior court gave these reasons for its order: (1) although section 1001.50, subdivision (a) leaves to the county board of supervisors the choice whether or not to adopt diversion programs, the statutes provide no guidelines to govern the county's choice, and therefore constitute an invalid delegation of legislative power; (2) Skoblov has a fundamental interest at stake, namely, her personal liberty, the People have not demonstrated a compelling governmental interest to justify denial of this right on a geographic basis, and therefore equal protection principles are infringed; (3) although the legislation in question has been validated by two published decisions (People v. Padfield (1982) 136 Cal.App.3d 218, 185 Cal.Rptr. 903 and People v. Tapia (1982) 129 Cal.App.3d Supp. 1, 181 Cal.Rptr. 382), these cases are not controlling because Padfield does not expressly discuss the constitutional arguments made here and Tapia, in addition to being similarly silent on the equal protection and separation of powers arguments, is the decision of an appellate department, and therefore not entitled to weighty consideration.
The court's opinion concludes with the proposition the language of the diversion statutes vests in Skoblov a fundamental right, of which she has been unconstitutionally deprived. Accordingly the municipal
court is ordered to provide her a diversion program.
Two sets of statutes in the Penal Code provide for diversion of misdemeanor defendants. Each constitutes a separate chapter in Title 6 (Pleadings and Proceedings Before Trial), Part 2 (Criminal Procedure).
Chapter 2.7, entitled "Misdemeanor Diversion," beginning with section 1001, defines pretrial diversion as the procedure of postponing prosecution of a misdemeanor offense at any point from charge to adjudication (§ 1001.1). Chapter 2.7 provides no criteria for acceptability into a diversion program.
Chapter 2.9, beginning with section 1001.50, is entitled "Diversion of Misdemeanor Offenders." This chapter specifies eligibility criteria for misdemeanor diversion. 3 (§ 1001.51.) Chapter 2.9 contains a specific provision that it shall become operative in a county only if the board of supervisors of that county adopts the chapter by ordinance. (§ 1001.50, subd. (a).)
Neither chapter 2.7 nor chapter 2.9 contains any language granting a defendant an express right to be diverted.
Both chapters provide for diversion from the criminal process before trial; supervised participation in rehabilitative programs; and, upon successful completion of such programs, expungement of the entire criminal record, allowing the defendant to represent later that he or she was never arrested or diverted for the charged offense. (§§ 1001.9, 1001.55.) Both require approval of the district attorney for any diversion program. (§§ 1001.2, subd. (b); 1001.50, subd. (b).)
Declarations before the superior court showed that Santa Clara County has instituted no diversion program. Some other counties have such programs. According to the People, such programs are more commonly adopted under chapter 2.7 () rather than chapter 2.9; for example, Contra Costa County has a program adopted under chapter 2.7 with guidelines peculiar to that county. However, the superior court made no findings as to the exact present distribution of chapter 2.7 and chapter 2.9 programs in California counties.
The court's opinion refers only to the provisions of chapter 2.9, and its order likewise refers to that chapter, commanding the municipal court not to deny diversion upon the ground that the board of supervisors has not adopted the provisions of Title 6, Part 2, chapter 2.9 nor upon the basis that the district attorney has not approved a program under that chapter.
Plainly, the legislative intent in enacting chapter 2.9 was to leave to local option the decision whether or not to establish diversion for misdemeanor defendants. Section 1001.50, subdivision (a) delegates this authority to the county board of supervisors in so many words; there is no ambiguity. With similar directness the statute requires the district attorney's approval of a program. Nevertheless, the trial court opinion does not discuss whether these requirements may validly be severed from the statutory scheme. If indeed the Legislature may not validly delegate such decision making power, it might conceivably have preferred to dispense with the program altogether. Instead of articulating these problems, the trial court has assumed particular features of the statutes may be removed and the remainder of the chapter enforced, and has indirectly ordered the county board of supervisors, a coordinate governmental branch, to do the very thing the Legislature expressly stated they need not do, namely, establish a diversion program. The startling result is to compel Santa Clara County to provide diversion programs because an indeterminate number of other counties have elected to do so.
In our view neither equal protection principles nor any other constitutional mandate require the Legislature to make diversion uniformly available throughout the state. In addition to the Court of Appeal's express validation of the chapter 2.7 program, despite the presence of prosecutorial veto (People v. Padfield, supra, 136 Cal.App.3d 218, 185 Cal.Rptr. 903), another decision has fully and cogently explained why geographical uniformity is not required in these cases, namely, Justice Kaus's analysis in People v. McNaught (1973) 31 Cal.App.3d 599, 107 Cal.Rptr. 566.
The McNaught decision considered section 647, subdivisions (f) and (ff), which together with Welfare & Institutions Code section 5176 provide, at county option, a program for diversion of inebriates to civil detoxification facilities. The decision squarely holds the Legislature may delegate to county discretion the decision whether to make such facilities available; it is rational to allow local authorities who, presumably, are most familiar with local conditions, to weigh the relevant factors and decide whether or not to provide such treatment.
First, the decision points out a defendant cannot rest an equal protection argument solely on lack of territorial uniformity without "fighting at least two United States Supreme Court decisions," (Id. at p. 603, 107 Cal.Rptr. 566, namely Salsburg v. Maryland (1954) 346 U.S. 545, 74 S.Ct. 280, 98 L.Ed. 281 and McGowan v. Maryland (1961) 366 U.S. 420, 427, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393.) Conversely, a state cannot "classify and discriminate as it pleases, as long as it does so on a territorial basis." (McNaught, supra, 31 Cal.App.3d at p. 604, 107 Cal.Rptr. 566, fn. omitted.) Rather, the question is whether local variation is either rationally justified (if we do not deal with a fundamental interest) or justified by a compelling governmental interest (where the interest is fundamental). In accord is the California Supreme Court: "Legislative classification as to treatment and procedure within a state judicial system according to factors such as geographical area, population, or other relevant considerations, does not deny equal protection of the laws unless such classification is shown to be palpably arbitrary and without a sound basis in reason." (Whittaker v. Superior Court (1968) 68 Cal.2d 357, 370, 66 Cal.Rptr. 710, 438 P.2d 358; see also McGlothlen v. Department of Motor Vehicles (1977) 71 Cal.App.3d 1005, 1021, 140 Cal.Rptr. 168, and decisions cited therein.)
Because the McNaught decision analyzes the problem using the test of rational basis, the decision necessarily implies that the right involved was not fundamental. Although a different statutory scheme was involved, it is similar in purpose and effect to that here. Both accomplish diversion from the criminal system at an early stage of the proceedings; both are aimed at relatively harmless misdemeanants; both result in no criminal sanctions being ultimately imposed upon fulfillment of stated conditions. Both belong to the extended family of legislative experiments with various rehabilitative or other treatment oriented alternatives to deal with relatively non-dangerous defendants, intended to lessen the burden on courts and jails and to benefit particular defendants. Given the similarities between the diversion options in McNaught...
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People v. Cuenca, A118672 (Cal. App. 9/3/2008)
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