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Court of Appeal, First District, Division 1, California.

Ann Colette RHONEY, Plaintiff and Respondent, v. MUNICIPAL COURT OF SAN MATEO COUNTY, Defendant and Appellant. SAN MATEO COUNTY SHERIFF, Real Party in Interest and Respondent.


Decided: August 21, 1987

Dick W. Bennett, San Mateo, for plaintiff/respondent. Douglas J. Gray, Redwood City, for defendant/appellant. James P. Fox, Dist. Atty., Thomas Daniel Daly, Asst. Dist. Atty., Redwood City, for real party in interest and respondent, San Mateo County Sheriff.

Ann Collette Rhoney (hereafter “Rhoney”) instituted this proceeding by filing an action in San Mateo Superior Court seeking a writ of mandate to prevent her exclusion by the San Mateo County Municipal Court (hereafter appellant) from San Mateo's work release program and compelling the sheriff's office to consider her application under Penal Code section 4024.2.

The facts are undisputed.

On October 11, 1983, Rhoney pled nolo contendere to a charge of violating Vehicle Code section 23152, subdivision (a) was found guilty and ordered admitted to probation for a period of three years on condition that she serve 48 hours in the county jail and not be admitted to the county's work release program.

Rhoney argued, and the superior court agreed, that the municipal court lacked power to deny her eligibility for the work release program which was adopted by a county supervisors' resolution authorizing the sheriff to implement such a program pursuant to Penal Code section 4024.2.

The sole issue on appeal is whether Penal Code section 4024.2, subdivision (d), which permits a sentencing court to deny eligibility for the work release program only if the defendant is confined to jail for “15 days or more,” violates the constitutional doctrine of separation of powers.   If not, the municipal court had no authority under Penal Code section 4024.2 to deny Rhoney—who was sentenced to two days in jail—eligibility in the program.

Appellant argues that Penal Code section 4024.2 contravenes the separation of powers doctrine by encroaching upon the judicial authority to sentence criminal defendants.   As earlier stated, under subdivision (d) of that statute,1 the sheriff, an executive officer, is vested with exclusive authority to determine whether a defendant sentenced to less than 15 days in jail is a suitable candidate for the work release program.   Only if the sentence is “a period of confinement of 15 days or more” may the court deny a defendant “eligibility for the work release program.”  (Pen.Code, § 4024.2, subd. (d).)  The effect of this statutory scheme, claims appellant, is “to deprive a sentencing judge of the exercise of his judicial power if the judge determines that a particular defendant is not appropriate for a work release program and should spend less than 15 days in jail.”

 Article III, section 3 of the California Constitution states the separation of powers doctrine:  “The powers of state government are legislative, executive, and judicial.   Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution.”  (See Bixby v. Pierno (1971) 4 Cal.3d 130, 141, 93 Cal.Rptr. 234, 481 P.2d 242; County of Ventura v. Castro (1979) 93 Cal.App.3d 462, 473, 156 Cal.Rptr. 66.)   In our tripartite system of government, defining offenses and prescribing punishments are exclusively legislative functions.   (In re Lynch (1972) 8 Cal.3d 410, 414, 105 Cal.Rptr. 217, 503 P.2d 921;  People v. Navarro (1972) 7 Cal.3d 248, 258, 102 Cal.Rptr. 137, 497 P.2d 481;  People v. Gayther (1980) 110 Cal.App.3d 79 87, 167 Cal.Rptr. 700.)   The imposition of sentence and the determination of the rights of parties in particular controversies are functions fundamentally and inherently vested in the judiciary.  (People v. Navarro, supra, 7 Cal.3d at p. 258, 102 Cal.Rptr. 137, 497 P.2d 481;  County of Contra Costa v. State of California (1986) 177 Cal.App.3d 62, 76, 222 Cal.Rptr. 750;  People v. Dorsey (1972) 28 Cal.App.3d 15, 17, 104 Cal.Rptr. 326.)   The separation of powers doctrine forbids legislative or executive usurpation of traditional judicial authority.  (People v. Navarro, supra, 7 Cal.3d at pp. 258–259, 102 Cal.Rptr. 137, 497 P.2d 481;  Mandel v. Myers (1981) 29 Cal.3d 531, 547, 174 Cal.Rptr. 841, 629 P.2d 935.)

Nevertheless, the three departments of our government are “ ‘ “in many respects mutually dependent.” ’ ”  (Younger v. Superior Court (1978) 21 Cal.3d 102, 117, 145 Cal.Rptr. 674, 577 P.2d 1014;  Solberg v. Superior Court (1977) 19 Cal.3d 182, 191, 137 Cal.Rptr. 460, 561 P.2d 1148.)   Our state high court has recognized that “the separation of powers principle does not command ‘a hermetic sealing off of the three branches of Government from one another.’ ”  (Hustedt v. Workers' Comp. Appeals Bd. (1981) 30 Cal.3d 329, 338, 178 Cal.Rptr. 801, 636 P.2d 1139.)   And as noted in Younger, supra, 21 Cal.3d at p. 117, 145 Cal.Rptr. 674, 577 P.2d 1014:  “This court has often recognized that each department of government ‘for its own existence must in some degree exercise some of the functions of the others.’  [Citation.]  The purpose of the doctrine is to prevent one branch of government from exercising the complete power constitutionally vested in another (ibid.);   it is not intended to prohibit one branch from taking action properly within its sphere that has the incidental effect of duplicating a function or procedure delegated to another branch.”  (See also People v. Warren (1986) 179 Cal.App.3d 676, 692, 224 Cal.Rptr. 746.)

Accordingly, it has been said that:  “ ‘․ The separation of powers principle and the constitutional distribution of functions among the three branches of government seek to prevent the combination of basic or fundamental powers of government in one group or branch;  they do not demand the rigid classification of incidental activities of government.  [Citation.]  Although a technique or method of procedure may be traditionally associated with a particular branch of the government, these principles do not mean that this technique or method of procedure cannot incidentally be used by another branch.  [Citation.]  Each branch must in some degree exercise some of the functions of others;  it is only when one branch exercises the complete power constitutionally delegated to another that the action violates the constitutional distribution of powers.   [Citation.]’ ”  (People v. Warren, supra, 179 Cal.App.3d 676, 691–692, 224 Cal.Rptr. 746;  quoting from Way v. Superior Court (1977) 74 Cal.App.3d 165, 178, 141 Cal.Rptr. 383.)

 Appellant asks us to follow People v. Navarro, supra, 7 Cal.3d 248, 102 Cal.Rptr. 137, 497 P.2d 481, and its companion cases, in which our high court struck down as violative of the separation of powers doctrine statutes conditioning the trial court's exercise of sentencing alternatives upon the concurrence of the prosecutor.  (See also People v. Superior Court (On Tai Ho) (1974) 11 Cal.3d 59, 66–67, 113 Cal.Rptr. 21, 520 P.2d 405;  Esteybar v. Municipal Court (1971) 5 Cal.3d 119, 127, 95 Cal.Rptr. 524, 485 P.2d 1140;  People v. Tenorio (1970) 3 Cal.3d 89, 94–95, 89 Cal.Rptr. 249, 473 P.2d 993;  People v. Clay (1971) 18 Cal.App.3d 964, 969–970, 96 Cal.Rptr. 213.)

In Navarro, the court specifically found that “that portion of [Welf. & Inst. Code] section 3051 which requires concurrence of the district attorney [in the sentencing court's decision to commit a defendant to a narcotic detention, treatment and rehabilitation facility] violates the California Constitution's requirement that the judicial power be vested in the judiciary and that the powers of government be separated into the executive, the legislative, and the judicial.”  (Id. 7 Cal.3d at p. 259, 102 Cal.Rptr. 137, 497 P.2d 481.)   While acknowledging that the Legislature “may impose restrictions” upon the judiciary's sentencing function, such as by limiting the presented sanctions available, the court stated:  “ ‘It bears reiteration that the Legislature, of course, by general laws can control eligibility for probation, parole and the term of imprisonment, but it cannot abort the judicial process by subjecting a judge to the control of the district attorney.’ ”  (Ibid.)  The court added:  “[A]lthough the Legislature was not required in the first instance to give the court power to commit persons in the status of Navarro to the treatment program, having conferred this power it cannot condition its exercise upon the approval of the district attorney.”   (Id. at p. 260, 102 Cal.Rptr. 137, 497 P.2d 481.)

The last quoted paragraph, and the holding of our high court in Navarro seems precisely apposite here.  Penal Code section 4024.2, and in particular the provisions of subdivision (d) thereof, flatly deprive the sentencing judge of the power to sentence a criminal defendant in a manner judicially determined to be just and appropriate to the circumstances of an individual criminal case, unless the sheriff of the county approves such sentence.   While we are willing to assume that the 15–day limit was intended to promote some administrative convenience rather than to interfere with the judicial process, we nevertheless conclude that the effect of the statute is to impermissibly transfer from the judicial to the executive branch an exclusively judicial function.

 Nor can we conclude that the intrusion here is trivial or its impact incidental. When a court, acting within the permissible range of sentences granted it by the Legislature, chooses what it presumably regards as the appropriate and therefore just sentence in a given case, the implementation of that choice cannot be conditioned on the approval of the sheriff, whose concurrence might depend upon no higher a standard than convenience, or personal preference, and take no account whatever of the justice of a particular case.

In our opinion, Penal Code section 4024.2, subdivision (d) violates the provisions of article III, section 3, of the California Constitution.

The order of the superior court is reversed.


1.   The challenge here is directed solely to that subdivision and our opinion is similarly directed.

NEWSOM, Associate Justice.

ELKINGTON, Acting P.J., and RUSHING, J.*, concur.