DAVIS v. PEOPLE (1984)

Petitioner, Jennifer Davis, seeks a writ of mandate to compel the San Francisco Municipal Court to consider her for diversion pursuant to Penal Code section 1001 et seq.¹

Petitioner was charged with felony grand theft (§ 487, subd. 1) and prostitution (§ 647, subd. (a)), a misdemeanor.   Subsequently, the grand theft offense was reduced to a misdemeanor (cf. Pen.Code, § 17, subd. (b)(5)), petitioner was arraigned on the misdemeanor complaint, and the matter continued.

Thereafter, petitioner applied for an order of diversion, and the application was denied on the sole ground that, since the grand theft charge had been filed as a felony in the first instance, even though as a “wobbler” ² it could have been charged as a misdemeanor, she was ineligible for diversion.   This was so because of the strictures of the local “Eligibility Requirements for Diversion Programs” (hereinafter “guidelines”) ³ according to which, moreover, where “wobblers” are first charged as misdemeanors, the defendant may be eligible for diversion, but only in exceptional cases where the court finds, and lays out on the record, good cause for such determination.

Petitioner sought relief in the superior court, contending that the local guidelines which deprived her of the benefits of the diversion statute denied her equal protection of laws under the Fourteenth Amendment to the United States Constitution and article I, section 7 of the California Constitution;  that section 1001.1 by its terms provides for diversion in misdemeanor cases;  that section 17, subdivision (b) mandates that a wobbler charged as a felony and then reduced is a misdemeanor for all purposes—including diversion eligibility—and that the guidelines hence impinge upon the doctrine of the separation of powers.  (Cal. Const., art. III, § 3).

The district attorney,⁴ relying primarily on People v. Padfield (1982) 136 Cal.App.3d 218, 185 Cal.Rptr. 903, contended below that the statute itself gave petitioner no right to participate in a diversion program, but merely authorized local communities to institute such programs, and to develop criteria as to which the statute is concedely silent.

The superior court, in a ruling not free from ambiguity, appears to have based its denial of the peremptory writ upon what it perceived as the ultimate fairness of the guidelines.   Recognizing that our high court in Esteybar v. Municipal Court (1971) 5 Cal.3d 119, 95 Cal.Rptr. 524, 485 P.2d 1140 held that a prosecutorial power restricting the exercise of a magistrate's discretion pursuant to section 17, subdivision (b)(5) was unconstitutional as violative of the separation of powers, the court nevertheless opined that, since “wobbler” defendants originally charged as misdemeanants are also initially ineligible for diversion, the guidelines are free from constitutional taint.   No allusion appears in the order of denial respecting the “good cause” exception under which one first charged as a misdemeanant may become eligible.

We begin our discussion with a brief consideration of the propriety of writ relief in the instant proceedings.   Petitioner, while conceding from the outset her ability to raise denial of diversion on appeal from a final judgment, nevertheless argues persuasively that this is not a plain, speedy and/or adequate remedy.   The district attorney cites Sledge v. Superior Court (1974) 11 Cal.3d 70, 113 Cal.Rptr. 28, 520 P.2d 412 as authority to the contrary.   However, as petitioner points out in her traverse, that case also acknowledges an exception where, as here, there exists a need to promptly and definitely resolve a constitutional challenge to an ongoing statutory program.  (11 Cal.3d 70, 75–76, 113 Cal.Rptr. 28, 520 P.2d 412.)   Moreover, Code of Civil Procedure section 904.1, subdivision (a)(4), as amended effective July 1, 1983, now provides that a judgment denying a peremptory writ in the superior court is no longer appealable, and may be raised by petition for a writ in the appellate courts.   We hence conclude that the present procedure is a proper one.

Turning then to the substantive aspects of the instant petition, we perceive the first issue as being whether the guideline under which the municipal court rejected petitioner's application for diversion conflicts with the express terms of sections 17, subdivision (b)(5) and 1001.1.

At the outset, we are confronted by ambiguity and apparent inconsistency.   Section 1001.1 provides that pretrial diversion is “the procedure of postponing prosecution of an offense filed as a misdemeanor ․”  (Emphasis added.)   Section 17, subdivision (b)(5), on the other hand, provides that a “wobbler” “is a misdemeanor for all purposes under the following circumstances:  ․ When, at or before the preliminary examination or prior to filing an order pursuant to section 872, the magistrate determines that the offense is a misdemeanor, in which event the case shall proceed as if the defendant had been arraigned on a misdemeanor complaint.”  (Emphasis added.)   Petitioner contends that, given the provisions of section 17, subdivision (b)(5), absent the offending guideline she would be generally eligible for diversion under the provisions of section 1001.1.

The Attorney General, argues that the words “filed as a misdemeanor” (emphasis added) mean just that, so that a subsequent reduction under section 17, subdivision (b)(5) is irrelevant.   He relies on People v. Marsh (1982) 132 Cal.App.3d 809, 183 Cal.Rptr. 455, to bolster this argument, which is otherwise without citation to authority.   We regard Marsh, supra, as being of little help to the People.   There, a defendant was declared ineligible for drug diversion (§ 1000 et seq.) on grounds that, within five years of the alleged commission of the charged divertible offense, he had suffered a felony conviction.   Marsh argued he should be diversion-eligible because his prior felony conviction was one that could have been reduced to a misdemeanor pursuant to section 17, subdivision (b)(3).   The court rejected this argument, holding that later reduction of the earlier “wobbler” offense to a misdemeanor would not relate back to the time of the commission of that offense for purposes of diversion eligibility pursuant to section 17, subdivision (b)(3).⁵

The district attorney also relies on Marsh, and on People v. Holzer (1972) 25 Cal.App.3d 456, 102 Cal.Rptr. 11, a case relied upon by the Marsh court.   But Holzer seems to us similarly unhelpful to the People's position, for there, the defendant was on felony probation at the time of his arrest for a violation of section 12021 (ex-felon in possession of a firearm).   Subsequently, the felony offense was reduced to a misdemeanor by virtue of a revocation of the felony probation and pronouncement of a county jail sentence (§ 17, subd. (b)(1)).   The court sustained the section 12021 conviction because the defendant had in fact been a felon at the time of his weapon possession, explaining:  “․ Where an offense is punishable ․ as [a] felony or ․ misdemeanor, depending on the sentence imposed, it is a felony until the time of sentencing.”  (25 Cal.App.3d at p. 460, 102 Cal.Rptr. 11.)

Authority contrary to the People's position is found in our opinion in Keener v. Municipal Court (1979) 91 Cal.App.3d 213, 154 Cal.Rptr. 107.   Addressing former sections 800 and 801, we there held the misdemeanor statute of limitations applicable to a felony reduced to a misdemeanor under section 17, subdivision (b)(5).   In apparent response, the Legislature amended section 801 to provide that felony limitations periods are now applicable to reduced “wobblers.”   In our view, had the Legislature desired to make an exception to the express statement that a reduced misdemeanor is a misdemeanor for all purposes, it could as easily have done so.

Petitioner has also advanced, at least by implication, an equal protection argument as follows:  she is a defendant charged with an offense which under section 17 has become a misdemeanor for all purposes, and denial to her of eligibility for a diversion program by virtue of a guideline which arbitrarily distinguishes between her and other persons charged with “wobblers” originally filed as misdemeanors, denies her equal protection, in violation of the Fourteenth Amendment of the United States Constitution and article I, section 7 of the California Constitution.

 The argument, which is essentially unchallenged, strikes us as a formidable one.   The interest at stake in these proceedings seems to us sufficiently important or “fundamental,” as to require that it be subjected to strict scrutiny and critical analysis.  (People v. Ryser (1974) 40 Cal.App.3d 1, 6, 114 Cal.Rptr. 668.)   On the authority of Westbrook v. Mihaly (1970) 2 Cal.3d 765, 785, 87 Cal.Rptr. 839, 471 P.2d 487 (cert. den. 403 U.S. 922, 91 S.Ct. 2225, 29 L.Ed.2d 700), we opine that under such circumstances, the state assumes the burden of establishing not only a compelling interest justifying the classification, but also of showing that the distinctions made by the law are strictly necessary to further its purposes.   Because we find error in other respects, however, we do not decide the equal protection issue here.

 We also find merit in petitioner's argument that a guideline—such as that at issue here—which absolutely precludes diversion for defendants originally charged with wobblers as felonies violates the express terms of section 1001.2, and unlawfully impinges on the doctrine of separation of powers.

 Section 1001.2, subdivision (b), provides in relevant part that “Nothing in this subdivision shall authorize the prosecutor to determine whether a particular defendant shall be diverted,” but also provides that “no program shall continue without the approval of the district attorney” and that “[n]o person shall be diverted under a program unless it has been approved by the district attorney.”  Article III, section 3 of the California Constitution provides:  “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.”   And, “it is the function of the legislative branch to define crimes and prescribe punishments, ․”  (In re Lynch (1972) 8 Cal.3d 410, 414, 105 Cal.Rptr. 217, 503 P.2d 921.)   The decision as to whether a crime is to be charged, and if so, which crime, is an exercise of executive power reserved to the prosecutor.  (People v. Municipal Court (Pellegrino) (1972) 27 Cal.App.3d 193, 203, 103 Cal.Rptr. 645;  People v. Tenorio (1970) 3 Cal.3d 89, 94, 89 Cal.Rptr. 249, 473 P.2d 993.)   But “[W]hen the decision to prosecute has been made, the process which leads to acquittal or to sentencing is fundamentally judicial in nature.”  (Tenorio, supra, at p. 94, 89 Cal.Rptr. 249, 473 P.2d 993.)  “․ the fact that a particular power has been conferred on a ․ [court] by statute does not prevent the exercise of that power from being a judicial act for purposes of the doctrine of separation of powers.”  (Esteybar v. Municipal Court, supra, 5 Cal.3d 119, 127, 95 Cal.Rptr. 524, 485 P.2d 1140.)

In petitioner's view a guideline which absolutely prohibits diversion for “wobbler” offenses initially filed as felonies effectively allows the prosecutor to “determine whether a particular defendant shall be diverted” (in violation of § 1001.2, subd. (b)) and in any event interferes with the exercise of judicial discretion in violation of article III, section 3 of the California Constitution as well as California case authority.  (People v. Tenorio, supra, 3 Cal.3d 89, 89 Cal.Rptr. 249, 473 P.2d 993;  Esteybar v. Municipal Court, supra, 5 Cal.3d 119, 95 Cal.Rptr. 524, 485 P.2d 1140.)

To these contentions the Attorney General responds that the district attorney, by filing a charge as a felony instead of a misdemeanor, is not making a judicial determination concerning a particular defendant, but is simply exercising his charging authority.  Esteybar, supra, is dismissed as a case which merely held that the court had the power to reduce a “wobbler” to a misdemeanor without the consent of the district attorney, as was done here.   According to the Attorney General, Esteybar “did not question the charging power of the district attorney, which is involved here․  The district attorney merely helped prepare and approved the guidelines.   The charging document in this case, which was discretionary on the part of the district attorney, made petitioner ineligible for diversion.”

It is clear to us, however, that it is not simply the filing of an accusatory pleading which is at issue here.   Rather, as the Attorney General freely admits, the prosecutor's office helped prepare and approved the guidelines.   Yet those guidelines purport to control the court's discretion—indeed, the municipal court judge here made it clear that he felt bound by them.  Esteybar, however, may not be dismissed so lightly;  it stands for the proposition first announced in People v. Tenorio, supra, 3 Cal.3d 89, 89 Cal.Rptr. 249, 473 P.2d 993, that once the decision to prosecute has been made, the process which follows, including sentencing, is exclusively a judicial function.

In the superior court, relying upon People v. Padfield, supra, 136 Cal.App.3d 218, 185 Cal.Rptr. 903, the district attorney argued that nothing in the diversion statute gives an individual defendant the right to be considered for diversion, and the statute in fact merely authorizes the creation of local programs and permits local communities to develop criteria, as none were set forth in the statute.   The court in Padfield, however, did not consider the separation of powers argument raised before us.   Here, the district attorney again cites Padfield and, like the Attorney General, argues that “[t]he prohibition against allowing wobblers to divert is merely an extension of the charging process and hence remains within the traditional zone of the District Attorney's discretion.”   And, the argument continues—without citation to authority—“[t]he prosecutorial determination that an accused is ineligible for diversion is an executive decision, not a judicial act.”

We recognize that such arguments are not entirely heuristic, but have some basis in the statutory language.   The diversion statute, for example, allows for dismissal upon successful completion of diversion, and specifies that “the arrest upon which the diversion was based shall be deemed to have never occurred.”  (§ 1001.9, emphasis added.)   And, by postponing prosecution, diversion necessarily impinges on the right to a speedy trial guaranteed the People by section 1050.   Theoretically, therefore, the process of diversion could effectively impair if not eradicate the executive's decision to prosecute, and could do so without formal adjudication.   For such reasons, the argument that diversion in theory is merely a part of the charging process is plausible.

By clear implication, however, our Supreme Court has held otherwise.   In addition to Esteybar v. Municipal Court, supra, 5 Cal.3d 119, 95 Cal.Rptr. 524, 485 P.2d 1140, in People v. Superior Court (On Tai Ho) (1974) 11 Cal.3d 59, 113 Cal.Rptr. 21, 520 P.2d 405, the court dealt with a closely analogous situation when it struck a provision in the drug diversion statute (§ 1000 et seq.) which required the prosecutor's concurrence for diversion under that statute.   It was there held that “diversion” is a judicial “disposition” of a charge which is before the court, the prosecutorial die having long since been cast.   And while the drug diversion statute differs from section 1001 et seq. in some respects, it crucially parallels the statute at issue here in its analysis of diversion as a judicial rather than an executive act.   Indeed, facing precisely the same arguments that could be made here ⁶ the court said the following:  “The People contend that the decision to divert is merely an extension of the charging process, and hence remains within the traditional zone of the district attorney's discretion.   As we explained in Esteybar, however, ‘This argument overlooks the fact that the ․ determination follows the district attorney's decision to prosecute.’  (5 Cal.3d at p. 127, 95 Cal.Rptr. 524, 485 P.2d 1140.)  ․ The case is ‘before the court’ for disposition, and disposition is a function of the judicial power no matter what the outcome.

“We recognized this principle in Tenorio, observing that ‘When the decision to prosecute has been made, the process which leads to acquittal or sentencing is fundamentally judicial in nature.’  (3 Cal.3d at p. 94, 89 Cal.Rptr. 249, 473 P.2d 993.) ․

“The principle summarized in the quoted language from Tenorio is that when the jurisdiction of a court has been properly invoked by the filing of a criminal charge, the disposition of that charge becomes a judicial responsibility.   It is true that acquittal or sentencing is the typical choice open to the court, but in appropriate cases it is not the only termination.”   (11 Cal.3d at pp. 65–66, 113 Cal.Rptr. 21, 520 P.2d 405, emphasis in original.)

“Our decision in Esteybar teaches that the issue whether a power is judicial in nature depends not on the procedural posture of the case but on the substance of the power and the effect of its exercise.   Here the Legislature's choice of pre-conviction rather than post-conviction intervention is easily understandable in the light of its dual purpose of sparing appropriately selected first offenders the stigma of a criminal judgment and avoiding the delays and costs of unnecessary trials.   At whatever stage such intervention occurs, however, it is an integral step in the process leading to the disposition of the case before the court, and therefore constitutes an exercise of judicial authority within the meaning of the constitutional doctrine of separation of powers.”  (People v. Superior Court (On Tai Ho), supra, 11 Cal.3d 59, 68, 113 Cal.Rptr. 21, 520 P.2d 405, emphasis in original.)

It may be that all the Legislature intended by the enactment of sections 1001 et seq. was to allow establishment of local diversion programs.⁷  The Legislature must be presumed, however, to have been aware of the high court's decision in On Tai Ho, supra, and to have intended to create a possible “disposition” for the trial court.  (In re Jeanice D. (1980) 28 Cal.3d 210, 216, 168 Cal.Rptr. 455, 617 P.2d 1087;  City of Long Beach v. Payne (1935) 3 Cal.2d 184, 191, 44 P.2d 305.)

In summary, to the extent that section 1001.2, subdivision (b) purports to confer upon the local district attorney the right to control criteria for diversion, we find it violative of article III, section 3 of the California Constitution.   In so concluding, we acknowledge that the Legislature itself no doubt has power to establish criteria governing diversion, as well as it has in other areas involving sentencing alternatives (cf. On Tai Ho, supra, 11 Cal.3d at pp. 65–68, 113 Cal.Rptr. 21, 520 P.2d 405)—provided equal protection guarantees are scrupulously observed.   It is equally clear that the Legislature need not authorize any diversion programs at all.   Once having done so, however, it may not—contrary to the People's claim here—vest in the judiciary powers which are subject to prosecutorial control.

 Let a peremptory writ of mandate issue commanding the San Francisco Municipal Court in No. 601874, People v. Davis, to determine whether, in its view, petitioner should be diverted, notwithstanding the fact that she was charged, in the first instance, with a violation of Penal Code section 487, subdivision 1 as a felony.

FOOTNOTES

1.   Unless otherwise noted, all further statutory references are to the Penal Code.

2.   By “wobbler” we of course refer to legal parlance for a crime which may be alternatively a misdemeanor or a felony under the provisions of section 17, subdivision (b).

3.   Those guidelines provide specifically that “[p]ersons initially charged by the District Attorney's office with misdemeanor violations of a section chargeable as either a felony or a misdemeanor (so called ‘wobblers')” are not eligible for the diversion program.  (Guidelines, A.4.)   They further provide that “[n]o exceptions to the above eligibility criteria may be made in the following cases:  ․ [¶] 1.   Offenses which were originally filed as felony charges and thereafter reduced by the court or district attorney pursuant to Penal Code Sections 17(b)(4) and 17(b)(5).”  (Guidelines, B.2.)   However, section B.3, goes on to specify that the court may make exceptions and grant diversion “[i]n the remaining misdemeanor cases, including offenses which could have been charged as felonies but which were charged initially by the district attorney's office as misdemeanor violations ․”

4.   Both the District Attorney of the City and County of San Francisco, and the Attorney General have filed returns to the alternative writ.   We will discuss their arguments separately.

5.   Section 17, subdivision (b)(3) provides in relevant part that a “wobbler” is a misdemeanor for all purposes under the following circumstances:  “When the court grants probation to a defendant without imposition of sentence and at the time of granting probation, or on application of the defendant or probation officer thereafter, the court declares the offense to be a misdemeanor.”

6.   Compare sections 1000.3 and 1001.7;  1000.5 and 1001.9;  1000, subdivision (c) and 1001.5.

7.   We recognize that sections 1001–1001.11 by their terms expire January 1, 1985.

NEWSOM, Associate Justice.

RACANELLI, P.J., and HOLMDAHL, J., concur.