People v. Superior Court (On Tai Ho)

Decision Date27 March 1974
Docket NumberS.F. 23048
Citation113 Cal.Rptr. 21,11 Cal.3d 59,520 P.2d 405
CourtCalifornia Supreme Court
Parties, 520 P.2d 405 The PEOPLE, Petitioner, v. The SUPERIOR COURT OF SAN MATEO COUNTY, Respondent; Lawrence ON TAI HO, Real Party in Interest.

Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., Doris H. Maier, Asst. Atty. Gen., Timothy A. Reardon, Gloria F. De Hart and Rodney J. Blonien, Deputy Attys. Gen., for petitioner.

No appearance for respondent.

Spaeth, Blase, Valentine & Klein and W. James Ware, Palo Alto, for real party in interest.

MOSK, Justice.

The sole issue in this proceeding for writ of mandate is whether under the rule of People v. Tenorio (1970) 3 Cal.3d 89, 89 Cal.Rptr. 249, 473 P.2d 993; Esteybar v. Municipal Court (1971) 5 Cal.3d 119, 95 Cal.Rptr. 524, 485 P.2d 1140; People v. Navarro (1972) 7 Cal.3d 248, 102 Cal.Rptr 137, 497 P.2d 481, and People v. Clay (1971) 18 Cal.App.3d 964, 96 Cal.Rptr. 213 (hg. den.), the district attorney may constitutionally exercise a veto power over the decision of a trial judge to order that a decision charged with a narcotics offense be 'diverted' into a pretrial program of treatment and rehabilitation. (Pen.Code, §§ 1000--1000.4.) We conclude that the court below was correct in ruling such a veto to be violative of the venerable constitutional doctrine of separation of powers (Cal.Const., art. III, § 3), and hence that the writ should be denied.

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, is 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 approprte, reduces the clogging of the criminal justice system by drug abuse prosecutions 1 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.)

In California the inquiry into diversion begins with a preliminary screening for eligibility conducted by the district attorney under standards prescribed by the statute. Section 1000 provides that when a defendant is charged with one of six offenses therein specified--principally unlawful possession of narcotics, marijuana, or restricted dangerous drugs--the district attorney will review the defendant's file to determine whether he also meets certain minimum standards of eligibility for the diversion program. 2

If it appears the defendant may be eligible, the process of adjudication begins. First it is necessary to develop the Facts bearing on the particular defendant's suitability for diversion. Section 1000.1 assigns that responsibility to the probation department: if the defendant consents and waives his right to a speedy trial, the department will 'make an investigation and take into consideration the defendant's age, employment and service records, educational background, community and family ties, prior narcotics or drug use, treatment history, if any, demonstrable motivation and other mitigating factors in determining whether the defendant is a person who would be benefited by education, treatment, or rehabilitation.' After further determining which community programs would benefit and would accept the defendant, the probation department reports its findings and recommendations to the court.

The second step is to weigh those and other relevant facts and to make a Decision either diverting or refusing to divert the defendant into a rehabilitation program. Section 1000e.2 vests that function in the trial court: 'The court shall hold a hearing and, after consideration of the probation department's report and any other information considered by the court to be relevant to its decision, shall determine if the defendant consents to further proceedings under this chapter and waives his right to a speedy trial and if the defendant should be diverted and referred for education, treatment, or rehabilitation.' The period of diversion is limited to a minimum of six months and a maximum of two years, and progress reports must be filed with the court by the probation department. If the defendant is convicted of any offense during that period the diverted case will be returned to court for resumption of the criminal proceedings; but 'If the defendant has performed successfully in the education or treatment program, at the end of the period of diversion, the charges shall be dismissed.'

The present controversy arises because of an additional provision of section 1000.2, which purports to subject the court's decision to divert to a prosecutorial veto: the statute declares that the case will not be diverted 'unless the district attorney concurs' with the court's decision to do so, and reiterates that the criminal proceedings shall resume if the district attorney does not 'consent' to the order of referral. 3

In the case at bar the district attorney filed an information charging defendant with possession of marijuana, one of the offenses listed in Penal Code section 1000. Defendant thereafter noticed a motion for an order diverting the case pursuant to the program here in issue. Ten days later there were simultaneously filed (1) a 'notification' by the district attorney declaring defendant to be eligible for diversion under section 1000, (2) defendant's consent to referral and waiver of a speedy trial, and (3) an order of the superior court referring the case to the probation department and fixing a date for a hearing. 4

The probation department conducted its investigation and reported to the court that defendant was a 19-year-old college student of exceptional intelligence, the product of a closely knit Oriental family headed by a prominent physician. While en route to his family home in Hawaii for Christmas vacation, defendant was arrested at the San Francisco airport in possession of some six ounces of marijuana. He explained to the probation officer that the drug was intended solely for his personal use. A records check disclosed that defendant had no prior arrests or convictions for any offense. The probation report concluded that defendant recognized the seriousness of his conduct, was cooperative with the authorities, and would benefit from formal instruction on drug abuse. It was therefore recommended that defendant be diverted for a period of one year into a program of drug education and counseling under appropriate supervision.

At the hearing the court announced it agreed with the recommendation of the probation report and intended to order diversion. The district attorney, however, refused to give his consent. He expressed a belief that the proposed program of counseling was 'inadequate' and that the amount of marijuana here involved was 'just a little bit heavy, so to speak, for diversion.' 5 These matters were argued, and the court determined that defendant should be diverted despite the district attorney's refusal to concur in that disposition. Accordingly, the court ruled that 'The record will reflect we recognize the nature of the statute that says this cannot be done without concurrence of the District Attorney and I find that that part of the statute is unconstitutional as violating the separation of powers--taking power away from the court in the matter of sentencing. Based on my finding, I overrule the--I don't look for the concurrence of the District Attorney as being necessary to diverting this case. I find it to be an appropriate case for diversion and it will be so diverted.'

The People now seek a writ of mandate to compel the court to set aside its order of diversion and to proceed on the criminal charge.

The issue of the constitutionality of a prosecutorial veto over an exercise of judicial power has been addressed by our court in a well known series of recent cases. In People v. Tenorio (1970) supra, 3 Cal.3d 89, 89 Cal.Rptr. 249, 473 P.2d 993, we considered a provision of former Health and Safety Code section 11718 which prohibited the trial court from exercising its power to strike prior convictions in narcotics cases except upon motion of the district attorney. In language that has since become familiar, we reasoned: 'The judicial power is compromised when a judge, who believes that a charge should be dismissed in the interests of justice, wishes to exercise the power to dismiss but finds that before he may do so he must bargain with the prosecutor. The judicial power must be independent, and a judge should never be required to pay for its exercise.' (Id. at p. 94, 89 Cal.Rptr. at p. 252, 473 P.2d at p. 996.) We concluded that the provision in question was an impermissible invasion of the constitutional province of the judiciary and therefore violated the constitutional requirement of separation of powers.

Again, in Esteybar v. Municipal Court (1971) supra, 5 Cal.3d 119, 95 Cal.Rptr. 524, 485 P.2d 1140, we nullified on the same grounds Penal Code section 17, subdivision (b)(5), insofar as it conditioned upon the consent of the district attorney the power of the committing magistrate to determine that a charged offense would be tried as a misdemeanor rather than a felony. In People v. Navarro (1...

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