BOWLAND v. PEOPLE (1976)

Plaintiffs have appealed from a judgment of the Superior Court which denied their petition for a peremptory writ of mandate to restrain the respondent municipal court and the People, as real party in interest, from proceeding in a pending criminal action in which they are charged with a violation of section 2141 of the Business and Professions Code.¹ They contend that section 2141 is unconstitutional because of overbreadth and vagueness and that the respondent court erred in overruling their demurrer because the facts stated in the complaint do not constitute a public offense.

The People maintain that the statute is neither vague nor overbroad and argue further that the complaint is sufficient in every respect.

Section 2141 provides: ‘Any person, who practices or attempts to practice, or who advertises or holds himself out as practicing, any system or mode of treating the sick or afflicted in this state, or who diagnoses, treats, operates for, or prescribes for any ailment, blemish, deformity, disease, disfigurement, disorder, injury, or other mental or physical condition of any person, without having at the time of so doing a valid, unrevoked certificate as provided in this chapter, or without being authorized to perform such act pursuant to a certificate obtained in accordance with some other provision of law, is guilty of a misdemeanor.’

The complaint charged plaintiffs with violation of section 2141 as follows: That on or about October 25, 1973, to March 6, 1974, each plaintiff ‘did willfully and unlawfully hold herself out as practicing a system or mode of treating the sick or afflicted to wit: such practices as undertaking to assist and treat a woman in childbirth as authorized in Sections 2137 and 2140 of the Business and Professions Code, and treat for a physical condition of a person, to wit: Terry Johnson, by such practices without having at the time of doing so a valid unrevoked certificate as provided in Chapter V, Division 2 of the Business and Professions Code.’

We conclude that the statute is neither vague nor overbroad but that the complaint improperly seeks to apply the statute's provisions to a course of conduct which the statute does not prohibit.

We first turn to plaintiffs' contention that section 2141 is vague. Plaintiffs present a variety of hypothetical situations and argue that the statute's vagueness is established by the difficulty involved in ascertaining which of the enumerated types of behavior is proscribed.² They also focus upon the words ‘or other mental or physical condition’ contained in the statute, submitting that the words fail to subsume criteria for ascertaining what conditions the statute contemplates.

Established principles of statutory construction guide our evaluation of plaintiffs' claim of vagueness. The first principle is ‘That the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties . . .. [A]nd a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.’ (Connally v. General Const. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322; Katzev v. County of Los Angeles, 52 Cal.2d 360, 370, 341 P.2d 310; Mandel v. Municipal Court, 276 Cal.App.2d 649, 660, 81 Cal.Rptr. 173.)

Nonetheless we noted in People v. Medina, 27 Cal.App.3d 473, 479, 103 Cal.Rptr. 721, that all presumptions are in favor of the validity of a statute; mere doubt is not a sufficient basis for finding it constitutionally defective and its invalidity must be clear and unquestionable. (See also Dittus v. Cranston, 53 Cal.2d 284, 286, 1 Cal.Rptr. 327, 347 P.2d 671; Board of Supervisors v. Dolan, 45 Cal.App.3d 237, 241, 119 Cal.Rptr. 347.) We also observed in Medina that, although a criminal statute which is so indefinite, vague and uncertain as to preclude ascertainment of the conduct which is prohibited is unconstitutional and void, a statute will not be found to be void for uncertainty if any reasonable and practical construction can be given to its proscription. (At p. 479 of 27 Cal.App.3d, 103 Cal.Rptr. 721, see also People v. Madearos, 230 Cal.App.2d 642, 644, 41 Cal.Rptr. 269; Kelly v. Mahoney, 185 Cal.App.2d 799, 803, 8 Cal.Rptr. 521.)

It is also a rule of statutory construction that although certain words or phrases may themselves be vague, construction of the statute as a whole may supply them with meaning, certainty and clarity. (People v. Belous, 71 Cal.2d 954, 960, 80 Cal.Rptr. 354, 458 P.2d 194; People v. Untiedt, 42 Cal.App.3d 550, 553, 116 Cal.Rptr. 899.) Such construction is engaged in with a view to promoting rather than defeating the statute's general purpose and the policy behind it and with prime consideration given the objects it seeks to achieve and the evils it seeks to prevent. (People v. Centr-O-Mart, 34 Cal.2d 702, 704, 214 P.2d 378; Lowman v. Stafford, 226 Cal.App.2d 31, 38, 37 Cal.Rptr. 681.)

Another applicable rule of statutory construction is that first enunciated in Porto Rico Ry., etc., Co. v. Mor, 253 U.S. 345, 348, 40 S.Ct. 516, 518, 64 L.Ed. 944, as follows: ‘When several words are followed by a clause which is applicable as much to the first and other words as to the last, the natural construction of the language demands that the clause be read as applicable to all.’ (See also United States v. Bass, 404 U.S. 336, 339–340, 92 S.Ct. 515, 30 L.Ed.2d 488; Wholesale T. Dealers v. National, etc., Co., supra, 11 Cal.2d 634, 659, 82 P.2d 3.)

In light of the enunciated principles we reject plaintiffs' contention that section 2141 is vague. We construe the phrase ‘or other mental or physical condition’ in the statute to constitute a qualifying clause which contemplates mental or physical conditions arising out of or in connection with ‘any ailment, blemish, deformity, disease, disfigurement, disorder [or] injury.’

The contention that section 2141 is unconstitutional because it is vague has heretofore been rejected in People v. Bernhardt, 222 Cal.App.2d 567, 585, 35 Cal.Rptr. 401, and in Crees v. California State Board of Medical Examiners, 213 Cal.App.2d 195, 215, 28 Cal.Rptr. 621.³ The constitutionality of section 2141 has also been attacked in the federal courts and has been held to be sufficiently specific and reasonable in its classifications. (Dayan v. People of State of California, 9 Cir., 293 F.2d 46.) In Crees it is stated that ‘A reading of the section suggests that people of common intelligence would have no trouble understanding what was proscribed.’ (At p. 215 of 213 Cal.App.2d, at p. 633 of 28 Cal.Rptr.)

Plaintiffs' second contention is that the statute's language ‘or other mental or physical condition’ is overbroad since it purports to embrace all conditions of living beings, whether those conditions relate in any manner to disease. It is, of course, a settled canon of constitutional law that statutes must be narrowly drawn and must not sweep too broadly. (Cox v. Louisiana, 379 U.S. 536, 551–552, 85 S.Ct. 453, 13 L.Ed.2d 471; Thornhill v. Alabama, 310 U.S. 88, 105–106, 60 S.Ct. 736, 84 L.Ed. 1093; People v. Orser, 31 Cal.App.3d 528, 537, 107 Cal.Rptr. 458; see In re Hoffman, 67 Cal.2d 845, 853, 64 Cal.Rptr. 97, 434 P.2d 353.)

On the other hand, when a ‘statute on its face is a valid law dealing with conduct subject to regulation so as to vindicate important interests of society . . . the fact that [otherwise constitutionally protected conduct] is intermingled with such conduct does not bring with it constitutional protection.’ (Cox v. Louisiana, supra, 379 U.S. 536, 564, 85 S.Ct. 453, 481, 13 L.Ed.2d 471; Mandel v. Municipal Court, supra, 276 Cal.App.2d 649, 662, 81 Cal.Rptr. 173.) As construed in the instant case the words ‘or other mental or physical condition’ refer to such conditions only as they arise from or are related to any ailment, blemish, deformity, disease, disfigurement, disorder or injury. As so construed the statute is not overbroad but falls instead within the legitimate government interest in defining and regulating the practice of medicine. (See Dayan v. People of State of California, supra, 9 Cir., 293 F.2d 46; People v. Bernhardt, supra, 222 Cal.App.2d 567, 585, 35 Cal.Rptr. 401; Crees v. California State Board of Medical Examiners, supra, 213 Cal.App.2d 195, 215, 28 Cal.Rptr. 621.)

Plaintiffs' third contention is that the complaint is insufficient for failure to state facts which constitute a public offense. In pertinent part the complaint alleges that each plaintiff violated section 2141 in that she ‘did willfully and unlawfully practice and hold herself out as practicing a system or mode of treating the sick or afflicted to wit: the practice of undertaking to assist and treat a woman in pregnancy and childbirth. . . .’

Penal Code section 950 states that ‘The accusatory pleading must contain . . . 2. A statement of the public offense or offenses charged therein’; and section 952 of the Penal Code provides, in pertinent part, as follows: ‘In charging an offense, each count shall contain, and shall be sufficient if it contains in substance, a statement that the accused has committed some public offense therein specified. Such statement may be made in ordinary and concise language without any technical averments or any allegations of matter not essential to be proved. It may be in the words of the enactment describing the offense or declaring the matter to be a public offense, or in any words sufficient to give the accused notice of the offense of which he is accused. . . .’ (See People v. Mancha, 39 Cal.App.3d 703, 721, 114 Cal.Rptr. 392, and Patterson v. Municipal Court, 17 Cal.App.3d 84, 87, 94 Cal.Rptr. 449 [accusatory pleading must give notice of the offense charged]; Ratner v. Municipal Court, 256 Cal.App.2d 925, 929, 64 Cal.Rptr. 500 [notice requirement satisfied if pleading charges offense in the language of the statute], and People v. Randazzo, 48 Cal.2d 484, 489, 310 P.2d 413; People v. Atwood, 223 Cal.App.2d 316, 323, 35 Cal.Rptr. 831 [pleading must allege essential elements of statutory offense].) Accordingly, if the complaint does not substantially conform to the provisions of Penal Code sections 950 and 952, it is vulnerable to and a grounds for demurrer. (Pen.Code, § 1004.)

As construed in the instant case section 2141 prohibits any person from practicing, attempting to practice, advertising or holding himself out as practicing any system or mode of treating the sick or afflicted or from diagnosing, treating, operating for or prescribing for any ailment, blemish, deformity, disease, disfigurement, disorder, injury or other mental or physical condition associated therewith of any person, without having at the time of so doing a valid, unrevoked certificate as provided in the accompanying chapter or without being so authorized pursuant to a certificate obtained in accordance with another appropriate provision.

Since the statute proscribes only the practice of any system or mode of treating the designated physical disorders and physical or mental conditions associated therewith, an accusatory pleading based on the statute must allege that the accused treated or held himself out as competent to treat any condition which amounts to an ailment, blemish, deformity, disease, disfigurement, disorder or injury or an associated mental or physical condition. Pregnancy and childbirth are not diseases but rather, are normal physiological functions of women. (Crees v. California State Board of Medical Examiners, supra, 213 Cal.App.2d 195, 212, fn. 8, 28 Cal.Rptr. 621; Rasicot v. Royal Neighbors of America, 18 Idaho 85, 108 P. 1048, 1053; Banti v. State, 163 Tex. Cr.R. 89, 289 S.W.2d 244, 247; Cerra v. East Stroudsburg Area School Cistrict, 3 Pa.Cmwlth. 665, 285 A.2d 206, 207; Cleveland Board of Education v. Lefleur, 414 U.S. 632, 652, 94 S.Ct. 791, 39 L.Ed.2d 52 (Powell, J. concurring).) As stated in Newman v. Delta Air Lines, Inc., D.C., 374 F.Supp. 238, 245, ‘. . . pregnancy is neither a sickness nor a disability.’

In Banti a defendant appealed a conviction for unlawfully practicing medicine without a license. The defendant was a midwife who assisted a woman during childbirth. The court, nothing that childbirth is a normal function of womanhood, held that the activity of assisting a woman at childbirth did not establish that the defendant treated or offered to treat the woman for a disease, disorder, deformity or injury or effect a cure thereof so as to constitute the practice of medicine without a license. (289 S.W.2d at pp. 247–248.)

Accordingly, we do not perceive the condition of the pregnancy or the act of bringing forth a child to be an ailment, blemish, deformity, disease, disfigurement, disorder, injury or a mental or physical condition associated with such bodily infirmities. Therefore, to state that a person practiced to held himself or herself out as practicing a system or mode of treating a woman in pregnancy and childbirth or the practice of undertaking to assist and treat such a woman does not allege an offense proscribed by section 2141. In order to state a public offense under this statute it must be stated that the practice of assisting or treating a woman in pregnancy or childbirth is associated with the diagnosis, treatment or operation for one or more of the bodily infirmities enunciated in and encompassed by the language of section 2141 as we have construed it.⁴

The judgment is reversed with instructions to the superior court that it issue its peremptory writ of mandate directing respondent municipal court to vacate and set aside its order overruling plaintiffs' demurrer to the People's amended complaint, to makes its order sustaining said demurrer, to determine if the defect can be remedied by amendment, and, if such defect cannot be remedied, to order that the action be dismissed as provided in Penal Code sections 1007 and 1008.

FOOTNOTES

1.  Unless otherwise indicated all statutory references are to the Business and Professions Code.

2.  We are, of course, precluded from considering hypothetical situations since they are not involved here and since it is elementary that a statute may be invalid as applied to one set of facts yet valid as to another. (Wholesale T. Dealers v. National, etc., Co., 11 Cal.2d 634, 661, 82 P.2d 3; Burns v. State Compensation Ins. Fund, 265 Cal.App.2d 98, 105–106, 71 Cal.Rptr. 326.)

3.  A petition for a hearing by the Supreme Court was denied in each of these cases.

4.  We observe that, effective September 23, 1974, and at a time subsequent to the instant charge, there was added to the Business and Professions Code by the Statutes of 1974, chapter 1044, section 18 (§§ 2350 to 2359, inclusive), an article entitled ‘Midwifery’ providing for a certificate to practice midwifery, authorizing the holder to attend and assist a woman in normal childbirth, and prescribing what a midwife may or may not do. Our decision in the present case in no way passes upon the validity or construction of this chapter or any of its provisions. Our decision is concerned solely with the conduct proscribed in section 2141.

MOLINARI, Presiding Justice.

SIMS and ELKINGTON, JJ., concur.