People v. Tapia

• Citation: 181 Cal.Rptr. 382,129 Cal.App.3d Supp. 1
• Decision Date: 02 February 1982
• Docket Number: Cr. A
• Court: United States Superior Court (California)
• Parties: 129 Cal.App.3d Supp. 1 The PEOPLE, Plaintiff and Appellant, v. Rose Katherine Diane TAPIA, Defendant and Respondent. 19143. Appellate Department, Superior Court, Los Angeles County, California

Page 382

181 Cal.Rptr. 382

129 Cal.App.3d Supp. 1

The PEOPLE, Plaintiff and Appellant, v. Rose Katherine Diane TAPIA, Defendant and Respondent.

Cr. A. 19143.

Appellate Department, Superior Court, Los Angeles County, California.

Feb. 2, 1982.

Norwood, Holtz, Patterson & Cohen and Fred M. Cohen, El Monte, for defendant and respondent.

John K. Van De Kamp, Dist. Atty., Arnold T. Guminski and Sterling S. Suga, Deputy Dist. Attys., for plaintiff and appellant.

FOSTER, Judge.

Defendant Rose Katherine Diane Tapia was arraigned on a charge of violating Penal Code, section 484, subdivision (a) (petty theft), and trial was set for June 4, 1981. On May 4, 1981, upon defendant's motion and over the objection of the prosecutor, the court ordered that defendant be "diverted pursuant to section 1001 Penal Code for a period of one year," upon stated conditions. The People appeal. ¹

The People contend that Penal Code sections 1001 through 1001.11 do not provide a general grant of power to the trial judge, over objection of the prosecutor, to divert a defendant from the criminal justice system, absent a state, county or municipally mandated diversion program. ² We agree and reverse the order.

Prior to enactment of Penal Code sections 1001 through 1001.11 (Stats. 1977, ch. 574, §§ 2 and 3) as chapter 2.7 of title 6 of part 2 of the Penal Code (herein referred to as Chapter 2.7), there were in existence two statutorily mandated diversion programs. In 1972, the Legislature had enacted sections 1000 through 1000.5 of the Penal Code as Chapter 2.5 of the same title. ³ (Chapter 2.5.) Chapter 2.5 authorized pretrial diversion of persons accused of certain drug-related offenses. ⁴ It established criteria for eligibility (§ 1000, subd. (a), subsects. (1) through (6)) and procedures to be followed. (§§ 1000, subd. (b), 1000.1, 1000.2, 1000.3, and 1000.5.)

Also in effect were sections 13201, 13201.5 and 13352.5 of the Vehicle Code, authorizing postjudgment avoidance of some of the consequences of a conviction for driving under the influence of alcohol or drugs, when the court has certified to the Department of Motor Vehicles that the defendant has consented to participate in a public or private program for the supervision of alcoholism. (Pen.Code, § 13352.5.)

In People v. Municipal Court (Gelardi) (1978) 84 Cal.App.3d 692, 149 Cal.Rptr. 30, the Court of Appeal reviewed a practice of several judges of the Municipal Court for the Central Judicial District of Marin County. Pursuant to it, judges at a pretrial conference, over the objection of the People, would continue the case for six months or a year and in the interim place defendant on "probation," with the promise that if he fulfilled the terms of the probation, at the end of the period the case would be dismissed pursuant to Penal Code, section 1385. In granting an extraordinary writ to invalidate this practice, the Court of Appeal stated:

"Patently, the here discussed practice of the Municipal Court is designed to effectuate a sort of nonstatutory diversion, probation, or rehabilitation procedure prior to the accused's conviction of crime, by holding out to him the promise of dismissal under Penal Code section 1385 upon his future good behavior. On this subject the state's Legislature and reviewing courts have spoken." (84 Cal.App.3d at p. 698, 149 Cal.Rptr. 30.)

The Court of Appeal noted that in People v. Orin (1975) 13 Cal.3d 937, 120 Cal.Rptr. 65, 533 P.2d 193, our Supreme Court had spoken against the use of Penal Code, section 1385, to effectuate a plea bargain between defense counsel and the court made over the objections of the People. Quoting from Orin it said:

"[A]ppellate courts have shown considerable opposition to the granting of dismissals under section 1385 in instances where the People are thereby prevented from prosecuting defendants for offenses of which there is probable cause to believe they are guilty as charged. Courts have recognized that society, represented by the People, has a legitimate interest in "the fair prosecution of crimes properly alleged." ... " '[A] dismissal which arbitrarily cuts those rights without a showing of detriment to the defendant is an abuse of discretion.' ...' "

" 'Permitting trial judges to make liberal use of section 1385 to avoid criminal prosecutions where probable cause exists to believe conviction is warranted would be contrary to the adversary nature of our criminal procedure as prescribed by the Legislature.... Under the statutory scheme which has been established for the prosecution of crimes, the district attorney is required to "institute proceedings before magistrates for the arrest of persons charged with or reasonably suspected of public offenses when he has information that such offenses have been committed." (Gov.Code, § 26501.) The committing magistrate must hold the defendant to answer "if there is some rational ground for assuming the possibility that an offense has been committed and the accused is guilty of it." ... Under ordinary circumstances, it would frustrate the orderly and effective operation of our criminal procedure as envisioned by the Legislature if without proper and adequate reason section 1385 were used to terminate the prosecution of defendants for crimes properly charged in accordance with legal procedure.' " (Ibid., 84 Cal.App.3d at pp. 698-699, 149 Cal.Rptr. 30.) ⁵

A second reason given by the Court of Appeal in Gelardi for invalidating the municipal court practice under review was that the lengthy continuance afforded a defendant to implement the judicially created "diversion" practice was directly contrary to the legislative policy stated in Penal Code section 1050. That section states that "... all proceedings in criminal cases shall be set for trial and heard and determined at the earliest possible time." and further, "... both the people and the defendant have the right to an expeditious disposition, and to that end it shall be the duty of all courts and judicial officers and of all counsel, both the prosecution and the defense, to expedite such proceedings to the greatest degree that is consistent with the ends of justice ...." (84 Cal.App.3d pp. 699-700, 149 Cal.Rptr. 30.)

As a third reason, the Court of Appeal pointed to the pretrial diversion procedures established by Penal Code sections 1000 et seq., as expressing a legislative policy of preempting the field of diversion.

Gelardi was concerned with events occurring prior to the effective date of sections 1001-1001.11 of the Penal Code. The opinion, however, contains this dictum:

"We observe nothing in the Penal Code's newly enacted (eff. Sept. 13, 1977) chapter 2.7, sections 1001-1001.11, entitled 'Diversion,' which authorizes the above described 'continuance,' 'dismissal,' and 'rehabilitation' procedures. Further, those statutes were not in effect at the time of the criticized orders." (pp. 700-701, 149 Cal.Rptr. 30.)

From Gelardi it is clear, therefore, that prior to enactment of Chapter 2.7, trial courts had no authority to institute, over the objection of the prosecution, diversion proceedings, except as permitted by Chapter 2.5 and by sections 13201, 13201.5 and 13352.5 of the Vehicle Code. Defendant maintains, however, that by Chapter 2.7, it was the intention of the Legislature to enact a general diversion statute, available to judges of the municipal court, and applicable to all persons except those specifically excluded under other statutes. She points to a published opinion of the Attorney General as supporting that interpretation. We believe, however, that neither the legislative history, the wording of the sections comprising Chapter 2.7, nor their context with other statutes in pari materia supports that interpretation.

Chapter 2.7 was enacted as an urgency measure for the stated reason:

"The status of existing local pretrial diversion programs has been placed in doubt by an Attorney General opinion stating that these programs have no statutory basis for existence and that the Legislature has preempted the subject. Consequently, some programs have had their funding held up and for others the district attorney's office is hesitant to cooperate with proposed or current programs." (Stats. 1977, ch. 574, § 3.)

The unpublished opinion to which reference was made was requested with regard to a local diversion program in effect in Sacramento County. Although we have not been provided with details of the program, it appears to have been one sanctioned by the court, the district attorney and the defense bar for certain selected minor offenses. The deputy attorney general who authored the opinion concluded that the program was invalid because the Legislature, in enacting Chapter 2.5 and section 13201 et seq. of the Vehicle Code, had intended to preempt the field of diversion. He based this conclusion upon one of the grounds stated in Gelardi for invalidating the Marin County program. Having found the Sacramento County program invalid on that ground, it was unnecessary for the deputy to consider if it was deficient in any other respect.

The intention of the Legislature in enacting Chapter 2.7 is stated in section 1001 of the Penal Code as follows:

"It is the intent of the Legislature that neither this chapter, Chapter 2.5 (commencing with Section 1000) of this title, nor any other provision of law be construed to preempt other current or future pretrial or precomplaint diversion programs. It is also the intent of the Legislature that current or future posttrial diversion programs not be preempted, except as provided in Section 13201, 13201.5, or 13352.5 of the Vehicle Code. Sections 1001.2 to 1001.11, inclusive, of this chapter shall apply only to pretrial diversion programs as defined in Section 1001.1 herein."

In sections 1001.3 through 1001.9 of Chapter 2.7, the Legislature established a series of procedural requirements for eligibility of persons for and their participation in a pretrial...