Davis v. Municipal Court for San Francisco Judicial District

MOSK, J., Concurring and Dissenting

I concur in the majority’s conclusion that Penal Code section 1001.2, subdivision (b), does not unconstitutionally delegate legislative authority to the district attorney. I also agree that the Legislature’s inclusion of Penal Code section 1001.51, subdivision (c)(3), in its model misdemeanor program dispels any notion that it intended to bar similar provisions in programs adopted locally.

I disagree, however, with the conclusion that San Francisco’s wobbler rule does not improperly infringe on the judicial power. In my view, the rule violates the separation of powers doctrine by giving the prosecutor discretionary authority to determine whether the court can declare a person charged with a wobbler eligible for diversion. In short, the test should be not whether the district attorney charged defendant with a potential felony, but whether the court found the offense to be a misdemeanor.

The decision to divert “constitutes an exercise of judicial authority within the meaning of the constitutional doctrine of separation of powers” (People v. Superior Court (On Tai Ho) (1974) 11 Cal.3d 59, 68 [ 113 Cal.Rptr. 21 , 520 P.2d 405 ]); accordingly, it “cannot constitutionally be subordinated to a veto of the prosecutor” (id. at p. 65; see Sledge v. Superior Court (1974) 11 Cal.3d 70, 72 [ 113 Cal.Rptr. 28 , 520 P.2d 412 ]). The Legislature, recognizing this principle, expressly prohibited prosecutors from having such control when it passed Penal Code section 1001.2, subdivision (b). 1 San Francisco’s program, however, violates the principle by allowing the prosecutor’s dis *90 cretionary charging decision to control the court’s ultimate diversion determination.

The majority’s reliance on On Tai Ho and Sledge as authority for a contrary conclusion is misplaced. As will appear, those cases turn not on a simple chronological distinction between the “charging stage” of a case and the point at which the case is “before the court,” but rather on the character and consequence of the decision placed in the hands of the district attorney.

On Tai Ho and Sledge addressed questions raised by chapter 2.5, the pretrial diversion program for first-time drug offenders enacted by the Legislature in 1972. As initially adopted, that chapter authorized the district attorney to make the preliminary determination of a defendant’s eligibility for diversion. If the district attorney concluded the defendant was eligible, the probation department made a factual investigation for the court’s use at a subsequent suitability hearing. If the court then found the defendant suitable—and if the district attorney concurred—the court granted diversion. The court, however, was not authorized to grant diversion without the district attorney’s approval.

In On Tai Ho we held that the provision conditioning the court’s diversion determination on the district attorney’s concurrence violated the separation-of-powers doctrine. (11 Cal.3d at pp. 65-68.) In Sledge we concluded that the provision authorizing the prosecutor to make the preliminary eligibility determination did not violate that doctrine. (11 Cal.3d at pp. 73-74.)

From these cases the majority deduce that as long as prosecutorial discretion is exercised before charges are filed, that discretion does not impinge on judicial authority—even if it affects the defendant’s eligibility for diversion. (Majority opn., ante, at p. 85.) Although superficially appealing, the majority’s conclusion fails to take account of the essential differences between the earlier cases and the present case.

The diversion program we addressed in On Tai Ho contained no provision conditioning a defendant’s eligibility on a purely discretionary determination by the district attorney. The eligibility determination there, though made by the district attorney, was statutorily required to be based on specific objective factors relating to the type of offense charged and the defendant’s prior criminal record. (11 Cal.3d at p. 62.) 2 Here, in sharp contrast, the *91 disputed rule makes eligibility depend solely on the prosecutor’s discretionary charging decision.

Thus the prosecutor’s charging decision and the court’s diversion determination in On Tai Ho were independent, and our emphasis on chronology in that case served to underscore the judicial character of the latter. (See 11 Cal.3d at p. 65.) Under the San Francisco scheme, however, the two decisions are no longer independent: the local rules condition the court’s postfiling diversion determination on the district attorney’s discretionary prefiling charging decision. On Tai Ho's emphasis on chronology is therefore irrelevant to the question at hand.

Similarly, our approval in Sledge of a statute authorizing prosecutorial determination of eligibility for diversion rested not on mere chronology but on the character of the eligibility decision itself. First, our conclusion that the eligibility determination was a ministerial function rather than a judicial act was “predicated on” the objective nature of the information required for such a determination under Penal Code section 1000. (11 Cal.3d at pp. 73-74.) The act was not judicial, we observed, because “in discharging his duties under section 1000 the district attorney need not decide what facts are material and relevant to eligibility, as the Legislature has specified them in the statute.” {Id. at p. 74.) Second, we emphasized in Sledge that the district attorney’s decision was subject to judicial review. {Id. at pp. 75-76.)

Obviously neither condition applies here: the San Francisco rule allows an individual’s eligibility for diversion to be controlled by a prosecutorial decision that is neither guided by objective statutory criteria nor subject to judicial review. Consequently, our reasoning in Sledge does not compel a similar conclusion in the present case.

That chronology is not controlling is clear from our statement in On Tai Ho that “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. ... At whatever stage [diversion] occurs . . . 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.” (11 Cal.3d at p. 68.) Here the substance and effect of the district attorney’s discretionary decision is to determine in the first instance whether the court may even consider declaring the defendant eligible for diversion. Such a discretionary veto of the court’s diversion decision, whether invoked contemporaneously or *92 prospectively, infringes on the authority of the court and thereby violates the separation of powers doctrine.

That section provides that “Nothing in this subdivision [which grants the district attorney veto power over a chapter 2.7 program] shall authorize the prosecutor to determine whether a particular defendant shall be diverted."

Penal Code section 1000 provided, in relevant part, that a defendant was eligible for diversion if the district attorney determined that all of the following applied: “(1) The defendant has no prior conviction for any offense involving narcotics or restricted dangerous drugs, [fl] (2) The offense charged did not involve a crime of violence or threatened violence, [t!] (3) There is no evidence of a violation relating to narcotics or retricted dangerous drugs other *91 than a violation of the sections listed in this subdivision. []]] (4) The defendant has no record of probation or parole violations.”