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The PEOPLE of the State of California, Petitioner, v. SUPERIOR COURT, COUNTY OF ORANGE, Respondent. James Dewitt DOUGLASS, Defendant and Real Party in Interest.
OPINION
This mandate proceeding raises the question whether it is a crime to engage in the acts proscribed by Business and Professions Code section 2399.5,1 which states that it is unprofessional conduct to prescribe, dispense or furnish dangerous drugs without a good faith prior examination and medical indication therefor. We conclude it is and issue the writ.
Only questions of law are presented and they are adequately briefed by the points and authorities accompanying the petition and an opposition filed by real party in interest (hereafter defendant). No useful purpose would be served by the issuance of an alternative writ and, particularly in view of the need for prompt decision, issuance of a peremptory writ is appropriate. (Code Civ.Proc., s 1088; Cuevas v. Superior Court, 58 Cal.App.3d 406, 411-412, 130 Cal.Rptr. 238; see McComb v. Superior Court, 68 Cal.App.3d 89, 93, 137 Cal.Rptr. 233.)
In Case No. 77W9059 in the Municipal Court of the West Orange County Judicial District defendant was charged in an amended complaint with numerous violations of section 2399.5. Jury trial commenced August 8, 1978. After the prosecution presented its case and rested, defendant moved to dismiss the case for lack of jurisdiction and for a judgment of acquittal. Both motions were denied.
Defendant petitioned the Orange County Superior Court for a writ of prohibition. After a hearing on August 22, the court issued a peremptory writ of prohibition restraining the municipal court from proceeding in Case No. 77W9059 on the charges of violation of section 2399.5.
On August 29 the People filed a timely notice of appeal from the superior court judgment. On September 21 they filed the instant petition for writ of mandate.
Initially we must consider defendant's contention that review by mandate is inappropriate because the superior court judgment is appealable. Defendant is correct that the judgment of the superior court prohibiting the municipal court from proceeding to trial on the section 2399.5 charges is an appealable judgment. (Code Civ.Proc., s 904.1(a); Pen.Code, s 1238(a)(2); Bloom v. Municipal Court, 16 Cal.3d 71, 75, 127 Cal.Rptr. 317, 545 P.2d 229.) However, notwithstanding the availability of appeal, mandate is an appropriate remedy if the remedy by appeal is inadequate. (Code Civ.Proc., s 1086; Jensen v. McCullough, 94 Cal.App. 382, 392, 271 P. 568; cf. 5 Witkin, Cal.Procedure (2d ed.) Extraordinary Writs, s 106 and cases there cited.)
Here, the judgment of the Superior court arrested the proceedings in the municipal court in the middle of a jury trial; the defendant has been placed in jeopardy; and it is manifestly unreasonable to interrupt a jury trial for a year or more pending an appeal with the expectation of a successful resumption of trial should the People prevail on appeal. Furthermore, the issue in the case turns solely on the construction of the statutes, a question of law, and there is a public interest in the prompt resolution of the issue. We conclude the People's remedy by appeal is inadequate and proceed to consider the merits.
Chapter 5 of the Business and Professions Code constitutes the chapter on medicine and is referred to as the State Medical Practice Act. (s 2000.) It was enacted in 1937 as part of a codification. (Stats.1937, ch. 414, p. 1377; Stats.1937, ch. 399, p. 1254.) It is comprised of a number of Articles dealing with separate but perhaps related topics and variously titled, e. g., “Loans for Medical Students,” “The Physician's and Surgeon's Application,” “Examination,” “Denial, Suspension and Revocation” (Art. 13), “Crimes and Penalties” (Art. 14), and “Medical Corporations.”
Section 2426 is found in Article 14 (“Crimes and Penalties”) of chapter 5 and reads: “Unless it is otherwise expressly provided, any person, Who violates any provision of this chapter, is guilty of a misdemeanor and shall be punished by a fine of not less than one hundred dollars nor more than six hundred dollars or by imprisonment for a term of not less than sixty days nor more than one hundred eighty days or by both such fine and imprisonment.” (Emphasis added.) This section was part of the original codification in 1937. (See Stats.1937, ch. 399, p. 1279.)
Section 2399.5, first enacted in 1959 (Stats.1959, ch. 1247, p. 3324) and last amended in 1974 (Stats.1974, ch. 888, p. 1888) is found in Article 13 (“Denial, Suspension and Revocation”) of chapter 5 and provides: “Prescribing, dispensing or furnishing dangerous drugs as defined in section 4211 of the Business and Professions Code without a good faith prior examination and medical indication therefor, Constitutes unprofessional conduct within the meaning of this chapter.” (Emphasis added.)
The People's position is that section 2399.5 is a provision within chapter 5, that it does not expressly provide that its violation does not constitute a crime, and that, therefore, defendant's conduct in violation of section 2399.5 constitutes a misdemeanor as provided in section 2426. The People's position is sound.
Defendant contends that section 2399.5 does not define a criminal offense because it does not comport with the definition of a crime or public offense found in Penal Code section 15. That section reads in pertinent part: “A crime or public offense is an act committed or omitted in violation of a law forbidding or commanding it, and to which is annexed, upon conviction, either of the following punishments: (P) . . . (P) 2. Imprisonment; (P) 3. Fine; . . . .” It is true as defendant asserts that the requisites specified by Penal Code section 15 are in the conjunctive and that not only must one of the requisite punishments be prescribed for violation but some act must be prohibited or commanded. (McComb v. Superior Court, supra, 68 Cal.App.3d at pp. 96-97, 137 Cal.Rptr. 233; People v. Crutcher, 262 Cal.App.2d 750, 754, 68 Cal.Rptr. 904.) Nevertheless, defendant's contention is not meritorious.
It is not required that the specification of the act, the command to do it or refrain from doing it, and the specification of the requisite penalty for its violation all be included in the same code section. It is a common legislative practice to indicate in one section that the commission or omission of acts specified in other code sections constitutes a crime and is punishable in a specified way. (See, e. g., Gov.Code, ss 1090-1096, 1097; People v. Watson, 15 Cal.App.3d 28, 92 Cal.Rptr. 860; Health & Saf.Code, ss 11173 (formerly s 11170), 11174 (formerly 11170.5), 11374; People v. Oviedo, 106 Cal.App.2d 690, 235 P.2d 612; People v. Kennedy, 21 Cal.App.2d 185, 192-193, 69 P.2d 224 (former Pol.Code, s 1265 and former Pen.Code, s 61).) Indeed, the requisite punishment may not be specified in the related code sections at all but only by Penal Code sections 18 or 19.2 In such cases, the several Code sections are construed together. (People v. Kennedy, Supra, 21 Cal.App.2d at p. 193, 69 P.2d 224; see Code Civ.Proc., s 1858.)
Read together, sections 2426 and 2399.5 fully satisfy the requirements of Penal Code section 15. They forbid prescribing, dispensing or furnishing dangerous drugs without a good faith prior examination and medical indication therefor; they declare such conduct to be a misdemeanor and prescribe, upon violation, punishment by fine and imprisonment. It is not necessary, as defendant contends, that the prohibition be expressed in such terms as “no person shall . . . ” or “it shall be unlawful to . . . .” Penal Code section 15 does not require the proscribed conduct to be forbidden in any certain language. It is true that section 2399.5 states only that the proscribed conduct constitutes unprofessional conduct. But that language alone certainly indicates the specified conduct is not permitted. In any event, however, section 2426 expressly provides that a violation of “any provision of this chapter” is a misdemeanor, and section 2399.5 is a provision within the same chapter as section 2426. A statute declaring that certain conduct constitutes a misdemeanor is at least equivalent to a declaration of unlawfulness, which defendant concedes is a sufficient prohibition to satisfy Penal Code section 15.
While defendant's assertion that no reported case has upheld a conviction for violation of section 2399.5 appears to be correct, in People v. Berkowitz, 68 Cal.App.3d Supp. 9, 137 Cal.Rptr. 313, the court, although it reversed the convictions on the counts based on section 2399.5 on another basis, assumed violation of that section would constitute a crime, and in People v. Michals, 36 Cal.App.3d 850, 111 Cal.Rptr. 892, the court in a dictum stated that a violation of Business and Professions Code section 2390 constitutes a misdemeanor. The pertinent language of section 2390 is: “The use or prescribing for or administering to himself, of any . . . narcotic drug . . . or of alcoholic beverages to the extent, or in such manner as to be dangerous or injurious to a person holding a certificate under this chapter, or to any other person or to the public . . . Constitutes unprofessional conduct within the meaning of this chapter.” (Emphasis added.)
Similarly, defendant's contention that the statute gives insufficient notice of the conduct prohibited, the persons to whom it is directed, and the fact that engaging in the prohibited conduct constitutes a crime is without merit principally because it takes no account of section 2426. Unlike the code sections involved in People v. Crutcher, supra, 262 Cal.App.2d at pages 753-755, 68 Cal.Rptr. 904, section 2399.5 specifies without any significant ambiguity or uncertainty the conduct proscribed and sections 2399.5 and 2426 together give adequate notice that any person engaging in the proscribed conduct is guilty of a misdemeanor.
Finally, defendant makes numerous arguments in support of his contention that in enacting section 2399.5 the Legislature did not intend a penal statute. The basic argument is that section 2399.5 merely declares the proscribed conduct to constitute unprofessional conduct; that the section is found in the Article entitled “Denial, Suspension and Revocation”; that the opening sections in that article set forth the authority and duty of the Board of Medical Quality Assurance to take disciplinary action against practitioners guilty of unprofessional conduct and that, therefore, the sole purpose of section 2399.5 is to specify one act of unprofessional conduct and the only sanction for violation of the section is disciplinary action by the Board just as is true with respect to attorneys who violate the Rules of Professional Conduct of the State Bar of California (see Bus. & Prof.Code, s 6077). The fundamental flaw in the argument is that it fails to take account of section 2426 which makes violation of any provision of chapter 5 a misdemeanor unless otherwise specifically provided. We are apprised of no similar penal provision accompanying the rules of professional conduct applicable to attorneys. Obviously, one purpose of section 2399.5 is, as defendant contends, to specify one of the acts which constitutes unprofessional conduct and which, as such, is a ground for disciplinary action by the board. Were there no accompanying penal provision, defendant's argument that that is the section's sole purpose would be persuasive. However, there is no legal prohibition against the Legislature's providing that specified conduct constitutes both grounds for discipline and criminal conduct (see 2 Witkin, Cal.Crimes (1963) s 978, p. 932), and here the Legislature has done so by enacting section 2426 making it a misdemeanor to violate any provision of chapter 5. Section 2399.5 is within chapter 5 and clearly constitutes a “provision” as that term is used in section 2426. Section 2361 defining unprofessional conduct uses virtually the same expression: “Unprofessional conduct includes . . . (v)iolating . . . any Provision or term Of this chapter.” (Emphasis added.)
Defendant's contention that the application of section 2426 is limited to sections which expressly prohibit conduct in terms such as “(n)o licensed physician . . . shall . . . ” is not persuasive. In the first place, section 2426 expressly refers to “any provision of this chapter.” That language is not significantly ambiguous. Moreover, the only sections mentioned by defendant as containing such language are section 2157, 2157.1 and 2157.2. We note also that section 2156 employs similar language. However, as previously pointed out, section 2426 was included in the original codification of the Act in 1937. A reading of the Act as then enacted does not disclose a single section containing such language. (See Stats.1937, ch. 399.) Thus, section 2426 could not have been intended to apply only to other sections of the Act containing such language. Sections 2156, 2157, 2157.1 and 2157.2 were all added in 1975. (See Stats.1975, ch. 267, p. 674.)
Defendant also asserts that the application of section 2426 to section 2399.5 and similar sections would have an anomalous result. The argument is that section 2361 declares that criminal conduct is unprofessional conduct and that if section 2426 is applied to sections like 2399.5 specifying unprofessional conduct, the result is that unprofessional conduct is criminal conduct and criminal conduct is unprofessional conduct. Were that true, we would perceive no inconsistency. However, section 2361 does not declare that any criminal conduct is unprofessional conduct. It provides in subdivision (f) that the commission of any act involving moral turpitude, dishonesty or corruption constitutes unprofessional conduct whether the act is a felony or a misdemeanor. Section 2383 is to the same effect.
Recognizing that section 2426 must be given some effect, defendant contends first that what it means is that where another provision in chapter 5 declares that conduct is criminal but does not specify whether it constitutes a felony or a misdemeanor, section 2426 has the effect of declaring it to be a misdemeanor. We are unpersuaded. That is simply not what section 2426 says. It provides in relatively unambiguous language that “any person, who violates any provision of this chapter, is guilty of a misdemeanor . . . .” Secondly, the only section in the Act we have found which declares conduct to be criminal but does not specify whether the crime is a felony or a misdemeanor is section 2141.5. But section 2141.5 was not added to the Act until 1967 (see Stats.1967, ch. 1103, p. 2741) whereas section 2426 was enacted in 1937 at a time when, so far as we have discovered, the Act contained no section at all declaring conduct criminal but not specifying a misdemeanor or a felony. (See Stats.1937, ch. 399.) Moreover, section 2141.5 provides for alternative punishments appropriate to either a misdemeanor or a felony, and the classification of the offense would depend not on section 2426 but the actual punishment imposed following conviction.
Finally, defendant suggests that section 2426 is nothing more than a punishment section such as Penal Code sections 18 and 19 (see fn. 2, Ante ) and was intended simply to prescribe the punishment where another section declares that certain conduct constitutes a misdemeanor but does not prescribe the punishment (e. g., ss 2141, 2142, 2142.10, 2154, 2427, et seq.). Again, defendant ignores the section's express language: “Unless it is otherwise expressly provided, any person, who violates any provision of this chapter, Is guilty of a misdemeanor and Shall be punished by a fine (etc.).” (Emphasis added) If the section were interpreted as defendant suggests the italicized words would be rendered meaningless. In construing statutory language it is fundamental that effect is to be given to each sentence, phrase and word. (Whitley v. Superior Court, 18 Cal.2d 75, 78, 113 P.2d 449.) It is a cardinal rule of statutory construction that an interpretation making some words meaningless and surplusage is to be avoided. (People v. Gilbert, 1 Cal.3d 475, 480, 82 Cal.Rptr. 724, 462 P.2d 580.)
We conclude that the violation of Business and Professions Code section 2399.5 constitutes a misdemeanor as provided in Business and Professions Code section 2426.
Let a peremptory writ of mandate issue to the Orange County Superior Court commanding it to vacate its judgment in action No. 296121 entitled “James Dewitt Douglass v. Municipal Court for the West Orange County Judicial District (Respondent) and People of the State of California (Real Party in Interest)” and to recall its writ of prohibition (designated PROHIBITION/MANDATE) prohibiting the municipal court from proceeding against James Dewitt Douglass in case No. 77W9059 on charges of violating Business and Professions Code section 2399.5.
FOOTNOTES
1. Unless otherwise specified, all statutory references in this opinion are to the Business and Professions Code.
2. Penal Code section 18 reads in part: “Except in cases where a different punishment is prescribed by any law of this State, every offense declared to be a felony . . . (is punishable in a specified way).” The language of Penal Code section 19 is identical to the quoted language of section 18 except that it relates to misdemeanors and the prescribed punishment is, of course, less severe.
KAUFMAN, Associate Justice.
GARDNER, P. J., and McDANIEL, JJ., concur.
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Docket No: Civ. 20549.
Decided: October 24, 1978
Court: Court of Appeal, Fourth District, Division 2, California.
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