Trumble v. Superior Court

• Citation: 103 Cal.App.4th 1011,127 Cal.Rptr.2d 297
• Decision Date: 21 November 2002
• Docket Number: No. D039990.,D039990.
• Court: California Court of Appeals
• Parties: Linda TRUMBLE, Petitioner, v. The SUPERIOR COURT of San Diego County, Respondent; The People, Real Party in Interest.

127 Cal.Rptr.2d 297

103 Cal.App.4th 1011

Linda TRUMBLE, Petitioner, v. The SUPERIOR COURT of San Diego County, Respondent The People, Real Party in Interest.

No. D039990.

Court of Appeal, Fourth District, Division 1.

November 21, 2002.

Review Granted January 29, 2003.

Steven J. Carroll, Public Defender, Marian Modrak and Edward Kinsey, Deputy Public Defenders, for Petitioner.

Diane Nichols for Appellate Defenders, Inc., as Amicus Curiae on behalf of Petitioner, San Diego, upon the request of the Court of Appeal.

No appearance for Respondent.

Paul J. Pfingst, District Attorney, Gregory Thompson, Assistant District Attorney, Anthony Lovett and Richard S. Armstrong, Deputy District Attorneys, for Real Party in Interest.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Peter Quon, Jr. and Marvin E. Mizell, Deputy Attorneys General, for the State as Amicus Curiae on behalf of Real Party in Interest, upon the request of the Court of Appeal.

McDONALD, J.

Petitioner Linda Trumble pleaded guilty to possession of a controlled substance (Health & Saf.Code, § 11377, subd. (a)) and to misdemeanor driving a vehicle while under the influence of drugs (Veh. Code, § 23152, subd.(a)). She sought probation and diversion under Penal Code section 1210 et seq.¹ The trial court denied the request because probation and diversion are unavailable under section 1210.1, subdivision (b)(2) for a defendant convicted in the same proceeding of a misdemeanor offense "not related to the use of drugs," and concluded that driving while under the influence of drugs is an offense not related to the use of drugs within the meaning of subdivision (b)(2). Trumble seeks a writ of mandate compelling the trial court to grant her probation and diversion under section 1210.1.

The single issue in this petition is whether section 1210.2, subdivision (b)(2) precludes probation and diversion when a defendant is convicted in the same proceeding of a drug possession offense and of misdemeanor driving while under the influence of drugs.

I THE STATUTORY SCHEME

Section 1210 et seq. was adopted by voter approval of Proposition 36 at the November 2000 General Election. People v. Legaidt (2002) 95 Cal.App.4th 178, 180, 115 Cal.Rptr.2d 352.) Section 1210.1, subdivision (a) provides that, unless the defendant is disqualified from probation under subdivision (b), the trial court must grant probation with a drug treatment condition to a defendant convicted of a nonviolent drug possession offense. A nonviolent drug possession offense is defined to include unlawful possession, use or transportation for personal use of specified controlled substances, or being under the influence of a controlled substance. (§ 1210, subd. (a).)

Section 1210.1, subdivision (b) makes certain defendants ineligible for probation under subdivision (a), including:

"(2) Any defendant who, in addition to one or more nonviolent drug possession offenses, has been convicted in the same proceeding of a misdemeanor not related to the use of drugs...."

The phrase "misdemeanor not related to the use of drugs" is defined in section 1210, subdivision (d) to mean:

"a misdemeanor that does not involve (1) the simple possession or use of drugs or drug paraphernalia, being present where drugs are used, or failure to register as a drug offender, or (2) any activity similar to those listed in paragraph (1)."

Trumble argues the court erroneously denied her probation because driving under the influence of drugs is a misdemeanor that involves the use of drugs within the meaning of section 1210, subdivision (d), and therefore section 1210.1, subdivision (b)(2)'s ineligibility provisions do not apply to her. The People assert the trial court properly found Trumble ineligible for probation under subdivision (b)(2).

II APPLICABLE INTERPRETIVE PRINCIPLES

The fundamental purpose of statutory construction is to determine the intent of the lawmakers and to effectuate the purpose of the law. People v. Ledesma (1997) 16 Cal.4th 90, 95, 65 CaI.Rptr.2d 610, 939 P.2d 1310.) When a court is required to interpret a voter initiative, it applies the same principles that govern statutory construction. (Horwich v. Superior Court (1999) 21 Cal.4th 272, 276, 87 Cal.Rptr.2d 222, 980 P.2d 927.) Accordingly, "we turn first to the language of the statute, giving the words their ordinary meaning" (People v. Birkett (1999) 21 Cal.4th 226, 231, 87 Cal.Rptr.2d 205, 980 P.2d 912), and construing the statutory language in the context of the statute as a whole and the overall statutory scheme. (Horwich, supra, 21 Cal.4th at p. 276, 87 Cal.Rptr.2d 222, 980 P.2d 927.) If there is any remaining ambiguity in the language, we may examine other indicia of the voters' intent, including the stated purpose and intent of the enactment, and any analyses or argument contained in the official ballot pamphlet. (Birkett, supra, 21 Cal.4th at p. 243, 87 Cal.Rptr.2d 205, 980 P.2d 912.)

III ANALYSIS

Section 1210.1 contemplates a mandatory probation/drug diversion disposition for defendants convicted of a "nonviolent drug possession offense"; the qualifying offenses are limited to possession, use or transportation for personal use, or being under the influence of, specified controlled substances. (§ 1210, subd. (a).) However, not every defendant convicted of possessing drugs for personal use, using, or being under the influence of controlled substances qualifies for probation and diversion into a drug treatment program. Instead, section 1210.1 identifies numerous classes of defendants who, because of either their criminal history or their current offenses, are not eligible for the special treatment afforded by section 1210.1.² Among the defendants not eligible are those who, in addition to the conviction for a nonviolent drug offense, are convicted in the same proceeding of a misdemeanor not related to the use of drugs. (§ 1210.1, subd. (b)(2).)

Whether driving under the influence of drugs in violation of Vehicle Code section 23152, subdivision (a) is a misdemeanor that is related to the use of drugs and therefore is exempt from the ineligibility provisions of section 1210.1, subdivision (b)(2) is an unresolved question.³ We conclude the language of section 1210.1 whether standing alone or as illuminated by the apparent intent of Proposition 36, includes driving under the influence of drugs as a misdemeanor not related to the use of drugs within the meaning of subdivision (b)(2).

A. The Statutory Language

The definitional provisions of section 1210, after correcting for the double negative, provide that a misdemeanor is related to the use of drugs if it involves the simple possession or use of drugs or similar activity. (§ 1210, subd. (d).) A person convicted of driving under the influence of drugs has necessarily been involved in conduct beyond and in addition to the simple use of drugs.⁴ (People v. Davalos (1987) 238 Cal.Rptr. 50, 192 Cal.App.3d Supp. 10, 13-14.) The statutes proscribing simple use are violated by the act of ingesting the drugs and becoming intoxicated, and their goal is to protect users from themselves. (Bosco v. Justice Court (1978) 77 Cal. App.3d 179, 186-188, 143 Cal.Rptr. 468.) In contrast, the statutes proscribing driving under the influence are violated because the defendant has been involved in additional post-ingestion conduct, and those statutes are designed to promote the distinct interest of protecting the public from the danger created by intoxicated drivers. (People v. Davalos, supra.) Because a violation of Vehicle Code section 23152, subdivision (a) is a misdemeanor that involves conduct beyond the simple use of drugs, the explicit language of section 1210.1, subdivision (b)(2) bars probation for Trumble.

Trumble argues violation of Vehicle Code section 23152, subdivision (a) is a misdemeanor related to the use of drugs because it involves the use of drugs within the meaning of section 1210, subdivision (d). She seeks to avoid the fact that driving under the influence requires conduct beyond simple use of the intoxicant by arguing that the term "simple," as used in section 1210, subdivision (d), is a term of art intended only to modify the term "possession" and was not intended to not modify the term "use." Under petitioner's construction, if the misdemeanor involves any use of drugs, the fact that it also involves additional conduct beyond simple use is irrelevant. We reject this construction of the statute because it makes the term "simple" superfluous.⁵ To give effect to every word used in the statute (Briggs v. Eden Council For Hope & Opportunity (1999) 19 Cal.4th 1106, 1118, 81 Cal. Rptr.2d 471, 969 P.2d 564 [courts should avoid interpretation that would render language surplusage]), we construe section 1210, subdivision (d) as using the term "simple" in its broader sense to modify all of the offenses listed in subdivision (d)(1).

Trumble also focuses on section 1210, subdivision (d)'s language that a misdemeanor need only "involve" the simple use of drugs to qualify as a misdemeanor that is related to the use of drugs. She argues a court should give that term its ordinary meaning (People v. Rizo (2000) 22 Cal.4th 681, 685, 94 Cal.Rptr.2d 375, 996 P.2d 27) and rely on the dictionary definitions to ascertain that meaning. (Ponder v. Blue Cross of Southern California (1983) 145 Cal.App.3d 709, 722-726, 193 Cal.Rptr. 632.) The dictionary defines "involve" to mean "to include as a necessary circumstance, condition or consequence." (Random House Unabridged Diet. (2d ed.1987) p. 1005.) For the reasons discussed above (see fn. 2, ante), driving under the influence of drugs does not require as a necessary circumstance, condition or consequence the ingestion of controlled substances.⁶

Trumble finally argues that because the court in People v. Duncan (1990) 216 Cal. App.3d 1621, 265 Cal.Rptr. 612 ruled a violation of ...