PEOPLE v. CAMPBELL (1975)

OPINION

Defendant was charged with the offenses of possession of a controlled substance, i.e., heroin, a violation of Health & Safety Code section 11350, and of entering a non-commercial dwelling house without consent, a violation of Penal Code section 602.5; moved for a diversion from criminal prosecution under Penal Code section 1000 et seq., hereinafter referred to as the diversion statute;¹ was found guilty as charged; was granted probation; and appeals, seeking a reversal on the ground denial of the motion was error. (See Morse v. Municipal Court, 13 Cal.3d 149, 155, 118 Cal.Rptr. 14, 529 P.2d 46.)

On October 18, 1973, at 2:40 a.m., defendant was sitting in a chair in the living room of an apartment; was making ‘wild groaning noises'; and was found by the tenant of the apartment who had been awakened by the noises. Defendant was in the apartment without permission of the tenant. The police were notified; responded to the call; and arrested defendant. The record supports the conclusion defendant was in the apartment without consent of the occupant; he was in possession of heroin; and there is testimonial evidence² he was under the influence of a controlled substance, a violation of Health & Safety Code section 11550.

Defendant moved for diversion under Penal Code section 1000 et seq., which provides for such in cases charging a violation of sections 11350, 11357, 11365, 11377 and 11383 of the Health and Safety Code,³ (Pen.Code s 1000 subd. (a)), whenever it appears to the district attorney (1) the defendant has no prior conviction for any offense involving narcotics or restricted dangerous drugs; (2) the offense charged did not involve a crime of violence or threatened violence; (3) ‘there is no evidence of a violation relating to narcotics or restricted dangerous drugs other than a violation of the sections listed in this subdivision,’ i.e., subdivision (a) of Penal Code section 1000 (Pen.Code s 1000, subd. (a), sub-sec. (3)); and (4) the defendant has no record of probation or parole violations.

By statutory provision, if the district attorney determines the diversion statute applies he advises the defendant of his determination; other prescribed steps and procedures are taken; and that matter subsequently is heard by the court, which is authorized to make an appropriate order. By court decision, in the event the district attorney determines the statute does not apply he should serve on defendant and file with the court a declaration stating the ground upon which he determined the defendant was ineligible and the evidence in support thereof (Sledge v. Superior Court, 11 Cal.3d 70, 76, fn. 6, 113 Cal.Rptr. 28, 520 P.2d 412).

Defendant's motion to divert was heard and denied upon the ground the statute did not apply to him because there was evidence of a violation relating to narcotics or restricted dangerous drugs other than a violation of the sections listed in subdivision (a), i.e., a violation of Health & Safety Code section 11550.

The primary issue on appeal is whether a violation of Health and Safety Code section 11550 is ‘a violation relating to narcotics or restricted dangerous drugs' within the meaning of subsection (3).

Defendant contends subsection (3) includes only offenses of trafficking in narcotics or dangerous drugs; a violation of Health and Safety Code section 11550 is not such an offense; and the conclusion of the trial court to the contrary is error.

In support of his position defendant cites that part of the opinion in Sledge v. Superior Court, Supra, 11 Cal.3d 70, 75, 113 Cal.Rptr. 28, 31, 520 P.2d 412, 415, where the court said:

‘Subsection (3) is intended by the Legislature to render ineligible for the diversion program a relatively limited class of persons, i.e., those who are dealing in illegal narcotics but who have never previously been convicted of any drug offense and whom the district attorney cannot or does not choose to charge with trafficking. The statute specifies there must be ‘evidence’ that the defendant is a member of that class before he can be excluded. ‘Evidence,’ of course, means more than mere suspicion or rumor; it means, in this context, reports of actual instances of trafficking or other information showing that the defendant has probably committed narcotics offenses in addition to those listed in the statute.'

In Sledge there was evidence defendant was a dealer in narcotics, and the court held the district attorney correctly determined the defendant was ineligible for diversion (Sledge v. Superior Court, Supra, 11 Cal.3d 70, 75, fn. 4, 113 Cal.Rptr. 28, 520 P.2d 412). The primary issue in the case was whether the provision of the statute authorizing the district attorney to determine initially the eligibility of a defendant thereunder was unconstitutional, because allegedly it vested in the district attorney authority to exercise a judicial act. The court declared the provision constitutional. The language in the opinion upon which defendant relies was a part of the consideration given the constitutional issue, including the significance of the term ‘evidence’ as used in subsection (3); and must be viewed in light of the facts of the case and the issue at hand (McDowell & Craig v. City of Santa Fe Springs, 54 Cal.2d 33, 38, 4 Cal.Rptr. 176, 351 P.2d 344) which are different from those at bench.

Furthermore, the cited language in Sledge does not fully support his position. A part thereof includes a definition of the term ‘evidence’ as used in subsection (3) which the court said, ‘means in this context, reports of actual instances of trafficking or Other information showing the defendant has probably committed narcotics offenses in addition to those listed in the statute.’ (Italics ours.) (Sledge v. Superior Court, Supra, 11 Cal.3d 70, 75, 113 Cal.Rptr. 28, 31, 520 P.2d 412, 415.)

We do not consider the cited language determinative of the issue at bench.

Section 11550 of the Health and Safety Code, i.e., being under the influence of a controlled substance, is not one of the Health and Safety Code sections listed in subdivision (a) of the diversion statute; and a case charging a violation of that section is not one to which the statute applies.

‘Penal statutes will not be made to reach beyond their plain intent; they include only those offenses coming clearly within the impact of their language.’ (Keeler v. Superior Court, 2 Cal.3d 619, 632, 87 Cal.Rptr. 481, 489, 470 P.2d 617, 625.)

A defendant charged with violating section 11550 not only has no basis for seeking a diversion, but if found guilty would be subject to imprisonment in the county jail for not less than 90 days, even though the court would grant his probation. The penal philosophy of the Legislature respecting such a violation is forcefully expressed by the mandate that:

‘In no event does the court have the power to absolve a person who violates this section from the obligation of spending at least 90 days in confinement in the county jail.’

As the Legislature has not included a violation of Health and Safety Code section 11550 in the list of divertible offenses referred to in subdivision (a), and has imposed a minimum jail term therefor, its apparent intent respecting such should be considered in determining the effect of the exclusionary language in subsection (3) which declares a defendant ineligible for diversion if there is evidence of a ‘violation relating to narcotics or restricted dangerous drugs other than a violation of the sections listed’ in subdivision (a). The quoted language clearly encompasses a violation of section 11550. The language excepting only specific violations implies all other violations are included. Morse v. Municipal Court, Supra, 13 Cal.3d 149, 159, 118 Cal.Rptr. 14, 529 P.2d 46.)

If there is no ambiguity, uncertainty or doubt about the meaning of language used in a statute it must be applied according to its terms without judicial construction (Keeler v. Superior Court, Supra, 2 Cal.3d 619, 632, 87 Cal.Rptr. 481, 470 P.2d 617).

Basic to defendant's contention the violations relating to narcotics and drugs referred to in subsection (3) include only violations relating to trafficking in narcotics and drugs is the argument inclusion of other violations would defeat the intent of the Legislature, as noted in (Sledge v. Superior Court, Supra, 11 Cal.3d 70, 75, fn. 4, 113 Cal.Rptr. 28, 520 P.2d 412), to reach ‘the neophyte narcotics user.’

The purposes of the diversion statute as stated in Morse v. Municipal Court, Supra, 13 Cal.3d 149, 157, 118 Cal.Rptr. 14, 18, 529 P.2d 46, 50, are to spare ‘appropriately selected first-offenders the stigma of a criminal record’ and to relieve ‘the congested criminal courts of Some relatively minor drug abuse prosecutions.’ (Italics ours.) Excluding a violation of Health and Safety Code section 11550 from the violations referred to in subsection (3) will not serve these purposes. A person charged with a violation of section 11550, if convicted, would have ‘the stigma of a criminal conviction’ and would be imprisoned in the county jail for not less than 90 days.

In effect, defendant asserts a consideration of the purposes of the statute dictates the conclusion the Legislature intended to include in but omitted from subdivision (a), stating the divertible offenses, a violation of Health and Safety Code section 11550; and intended but failed to add the qualifying words ‘trafficking in’ before the phrase ‘narcotics and drugs' used in subsection (3).

Where the language of a statute clearly limits its scope a court, under the guise of interpretation, may not insert that which the purpose thereof indicates has been omitted, even though the consequence is to limit achievement of that purpose in full (Code Civ.Proc., s 1858; Anderson v. I. M. Jameson Corp., 7 Cal.2d 60, 67, 59 P.2d 962; Wisdom v. Eagle Star Ins. Co., 211 Cal.App.2d 602, 605, 27 Cal.Rptr. 599; People v. One La Salle, Etc., 23 Cal.App.2d 237, 238, 72 P.2d 766).

We conclude the violations referred to in subsection (3) are not limited to those related to trafficking in narcotics and drugs.

The opinion in People v. Fulk, 39 Cal.App.3d 851, 855, 114 Cal.Rptr. 567, noting a defendant charged with a divertible offense is not eligible for diversion under subsection (3) where there is evidence he was driving an automobile under the influence of a drug, i.e., a violation of Vehicle Code section 23102, supports our conclusion.

Defendant also contends the court erred in denying his motion because the district attorney had not served and filed a declaration of his determination of ineligibility pursuant to the decisional requirement in Sledge v. Superior Court, Supra, 11 Cal.3d 70, 76, fn. 6, 113 Cal.Rptr. 28, 520 P.2d 412. The issue presented, argued and decided, pursuant to the motion, was whether a violation of Health and Safety Code section 11550 was a violation relating to narcotics or drugs within the meaning of subsection (3) of the statute. There was no issue respecting the existence of evidence defendant violated that section. Any irregularity in the manner in which the issue came before the court, if error, is not prejudicial. Defendant did not claim he was unaware of the grounds or the evidence upon which the district attorney based his determination defendant was not eligible for diversion.

At the conclusion of the preliminary hearing defense counsel informed the court he would not move for a diversion because the district attorney had stated if such a motion were made he would amend the complaint to charge a non-divertible offense. Premised on this incident defendant makes the statement in the nature of a contention: ‘A Person Cannot be Kept out of the Purview of Penal Code s 1000 by the Threat of Further Potential Non-divertable (sic) Offenses.’ The contention and arguments advanced in support thereof have no merit.

The judgment is affirmed.

FOOTNOTES

FOOTNOTE.  

1.  Penal Code section 1000.4, which repealed the diversion statute as of January 1, 1975, was amended to provide the statute should remain in effect until January 1, 1977. (1974 Stats., Ch. 1014, s 1.)

2.  The testimony of a police officer at the preliminary hearing supports the conclusion defendant was under the influence of heroin at the time of his arrest.

3.  These sections formerly were Health & Safety Code sections 11530, 11555, 11556, 11910 and 11990 and are referred to in Penal Code section 1000 by the old section numbers.

COUGHLIN, Associate Justice.* FN* Retired Associate Justice of the Court of Appeal sitting under assignment by the Chairman of the Judicial Council.

GERALD BROWN, P.J., and WHELAN, J.,* concur.