Davis v. Municipal Court for San Francisco Judicial District

KAUFMAN, J., Concurring and Dissenting

I concur in the majority opinion to the extent it holds a local diversion program is not unlawful because the district attorney is given the authority to approve or disapprove the program as a whole. I dissent, however, from the majority’s determination that the district attorney may determine a particular individual is not eligible for diversion by a standardless decision to charge a wobbler as a felony.

In my view, that portion of the diversion program is invalid for two reasons; first, it contravenes the express provision in the enabling legislation which prohibits the district attorney from determining whether any particular defendant shall be diverted (Pen. Code, § 1001.2, subd. (b)); second, it constitutes a standardless delegation of legislative power to the executive branch of government, in violation of the constitutionally mandated separation of powers. (Cal. Const., art. Ill, § 3.)

The enabling statute authorizes local jurisdictions to adopt diversion programs for any offense “filed as a misdemeanor.” (Pen. Code, § 1001.1.) As I shall explain, that provision in the statute is perfectly valid except as applied to wobbler offenses, as to which prosecutors have unfettered discretion to “file” either as a misdemeanor or as a felony. The specific San Francisco diversion program here at issue is also valid in my view except as to those provisions which make a person accused of a wobbler either conditionally or absolutely ineligible for participation in the program, depending upon whether the offense is filed by the district attorney as a misdemeanor or a felony.

The decision to divert, that is the determination as to whether or not an accused meets the eligibility criteria for diversion and otherwise should be diverted is, as Justice Mosk’s opinion points out, a judicial function. However under the diversion program here in question, there is no diversion decision to be made if a wobbler is charged as a felony. The local guidelines clearly and unambiguously establish as an indispensable criterion of eligibility in the case of a person charged with a wobbler that the district attorney has not charged the offense as a felony. Thus the question we confront is not whether the district attorney may interfere with the court’s diversion decision, but whether the legislatively prescribed criteria as applied to wobblers are adequate in the first instance.

Manifestly, the establishment of eligibility criteria for diversion, like the establishment of eligibility criteria for probation or the specification of *93 conduct constituting a crime, is a legislative function. (See Sledge v. Superior Court (1974) 11 Cal.3d 70, 74 [ 113 Cal.Rptr. 28 , 520 P.2d 412 ]; People v. Lim (1941) 18 Cal.2d 872, 879 [ 118 P.2d 472 ].) Under the enabling legislation in question, the Legislature has, quite properly, established one basic criterion for diversion eligibility—the offense must have been filed as a misdemeanor. (Pen. Code, § 1001.1.)

With respect to the vast majority of offenses, the district attorney has no discretion whether to file a specific criminal charge as a misdemeanor or as a felony. The crime to be charged is statutorily defined as one or the other. (Pen. Code, § 17.) That is not the case, however, with respect to one class of offenses—wobblers. In such cases, the district attorney has plenary authority to determine whether to charge the crime as a misdemeanor or as a felony, in essence to define the crime as a misdemeanor or a felony for charging purposes.

Such latitude in the charging decision does not—absent patent discrimination—violate the equal protection clause. (Murgia v. Municipal Court (1975) 15 Cal.3d 286, 296-297 [ 124 Cal.Rptr. 204 , 540 P.2d 44 ].) It does, however, clearly inject a new, discretionary element of executive decision-making into the otherwise nondiscretionary diversion eligibility criterion formulated by the Legislature.

The Legislature, in enacting the diversion statutes (Pen. Code, §§ 1001-1001.9), and the San Francisco Pretrial Diversion Management Committee, in adopting the diversion rules at issue, have made diversion eligibility for persons charged with wobblers turn on the discretionary charging decision of an executive officer, the district attorney. They have, in effect, delegated to the district attorney the power to determine eligibility in this one class of cases. Two questions are thus presented: 1) whether the delegation of this authority to the district attorney contravenes the express provision in the enabling legislation which prohibits the district attorney from determining whether any particular defendant shall be diverted (Pen. Code, § 1001.2, subd. (b)), and 2) whether such a delegation is lawful in the absence of standards to safeguard against arbitrary or capricious differential treatment of similarly situated persons. Because resolution of the second question may affect the answer to the first, I shall address these questions in reverse order.

It is well settled, of course, that the “doctrine prohibiting delegations of legislative power does not invalidate reasonable grants of power to an administrative agency, when suitable safeguards are established to guide the power’s use and to protect against misuse.” (People v. Wright (1982) 30 Cal.3d 705, 712 [ 180 Cal.Rptr. 196 , 639 P.2d 267 ], italics added.) The legislative body must declare a policy and, at a minimum, fix primary *94 standards for the implementation of that policy. (Birkenfeld v. City of Berkeley (1976) 17 Cal.3d 129, 167 [ 130 Cal.Rptr. 465 , 550 P.2d 1001 ].) As we explained in Birkenfeld , however, even “legislative guidance by way of policy and primary standards is not enough if the Legislature ‘fail[s] to establish an effective mechanism to assure the proper implementation of its policy decisions.’ [Citation.] ‘The need is usually not for standards but for safeguards .... When statutes delegate power with inadequate protection against unfairness or favoritism, and when such protection can easily be provided, the reviewing courts may well either insist upon such protection or invalidate the legislation.’ [Citations.]” ( 17 Cal.3d at p. 169 , italics omitted.)

As previously stated, the establishment of eligibility guidelines for diversion is preeminently a legislative function. In Sledge v. Superior Court, supra, 11 Cal. 3d 70 , for example, we upheld a drug diversion procedure in which the district attorney conducted a preliminary screening for eligibility under specific criteria prescribed by statute. The diversion statutes at issue (Pen. Code, §§ 1000-1000.4) applied to a limited number of drug offenses, and set forth the following eligibility criteria: no prior narcotics convictions; no probation or parole violations; no evidence of the commission of a narcotics offense other than those listed in the statute; and the offense charged must not involve actual or threatened violence. ( 11 Cal.3d at p. 73 .) Thus, we explained that “in discharging his duties under [Penal Code] 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.” ( 11 Cal.3d at p. 74 , italics added.)

By contrast, in the case before us no statutory criteria informed the district attorney’s decision to charge the wobbler as a felony rather than as a misdemeanor. The legislative branch in this case did not, and indeed could not, prescribe standards to govern the district attorney’s charging decision. For, as the majority points out, the charging function lies within the exclusive province of the executive branch and cannot be interfered with by the legislative branch of government. (See Daly v. Superior Court (1977) 19 Cal.3d 132, 148 [ 137 Cal.Rptr. 14 , 560 P.2d 1193 ].) Moreover, so far as the record discloses, the district attorney has not himself promulgated such standards. 1

*95 Thus, by tying diversion eligibility to the district attorney’s charging function, the diversion program effectively grants the district attorney unbridled discretion to determine who among those committing wobblers shall be conditionally eligible for diversion and who shall be absolutely ineligible. The result is that there is nothing to prevent various deputies in the district attorney’s office from disparately charging two individuals who commit the same offense and who are otherwise equally situated—one with a misdemeanor and the other with a felony—thereby rendering one conditionally eligible and the other absolutely ineligible for diversion.

It is quite true that the equal protection clause does not abrogate the prosecutor’s discretion to charge only a misdemeanor when he or she believes lenient treatment is warranted. (Murgia v. Municipal Court, supra, 15 Cal.3d at pp. 296-297.) However, when the executive’s exercise of the charging function also constitutes the exercise of delegated legislative power, as it does in this case, that power must be circumscribed by “suitable safeguards . . . to guide the power’s use and to protect against misuse” (People v. Wright, supra, 30 Cal.3d at p. 712 ), or it cannot be upheld. (Birkenfeld v. City of Berkeley, supra, 17 Cal.3d at p. 169 .)

It is true that such standards, while not “expressed,” may nevertheless be “implied” in appropriate circumstance from the legislative purpose. Here for example, because the purpose of the statute is to “preserve scarce resources for the more serious offenders,” an implied standard might be found that eligibility for diversion should generally vary inversely with the seriousness of the offense. I am not persuaded, however, that such a broad “implied” standard is legally sufficient or practically adequate to protect against the sort of indiscriminate and capricious charging decisions with which I am concerned. As noted earlier, the need is not so much for general standards, much less “implied” standards, but specific safeguards. (Birkenfeld v. City of Berkeley, supra, 17 Cal.3d at p. 169 .) Therefore, in the absence of standards in the program itself or standards established by the district attorney which might be said to have been approved by the legislative agencies, I conclude that the Legislature and the San Francisco Pretrial Diversion Management Committee violated the separation of powers doctrine by delegating legislative power to the district attorney to determine the diversion eligibility of persons charged with wobblers, without establishing requisite guidelines for the exercise of that power.

It is equally clear from the foregoing discussion that, as applied to wobblers, the San Francisco diversion program violates the express provision in the enabling legislation which prohibits the district attorney from determining the diversion eligibility of any particular individual. Penal Code section 1001.2, subdivision (b), in part provides: “Nothing in this subdivision shall *96 authorize the prosecutor to determine whether a particular defendant shall be diverted.” As established by the Legislature, the basic criterion of diversion eligibility is that the charged offense be “filed as a misdemeanor.” (Pen. Code, § 1001.1.) In the case of wobblers, however, the district attorney rather than the Legislature decides whether a specified offense will be filed as a misdemeanor or a felony. Thus, in direct contravention of Penal Code section 1001.2, subdivision (b), the district attorney effectively “determines” whether a defendant who commits a wobbler “shall be diverted.”

I conclude, therefore, that as applied to wobblers the diversion program at issue impermissibly delegates legislative authority to the district attorney, in violation of article III, section 3 of the California Constitution, and improperly permits the district attorney to determine whether a particular defendant shall be diverted, in violation of Penal Code section 1001.2, subdivision (b).

Accordingly, I would affirm the judgment of the Court of Appeal insofar as it invalidated the program as it relates to wobblers.

Panelli, J., concurred.

Petitioners’ application for a rehearing was denied October 13, 1988. Mosk, J., and Kaufman, J., were of the opinion that the petition should be granted.

At oral argument counsel for real party in interest was asked whether there existed in the office of the district attorney any charging guidelines or standards that would serve to prevent different charging decisions being made by different deputies on the same facts and circumstances. The initial reply was that it must be presumed the district attorney will “conscientiously do his duty” and that the Constitution prohibits “discriminatory prosecution.” Upon further inquiry, the response was: “There would be the local. . ., whatever the district attorney’s office’s standards are . . . [pause] .... No. There are none in the guidelines . . . .” (Italics supplied.)