DocketNumber： S.F. 24900
Citation Numbers： 757 P.2d 11, 46 Cal. 3d 64, 249 Cal. Rptr. 300, 1988 Cal. LEXIS 160
Judges： Arguelles, Kaufman, Mosk
Filed Date： 7/28/1988
Status： Precedential
Modified Date： 11/2/2024
Opinion
In recent years, the Legislature has enacted a number of statutory provisions which recognize the authority of local entities to adopt pretrial diversion programs for persons charged with misdemeanors. (See, e.g., Pen. Code, §§ 1001-1001.9, 1001.50-1001.55.)
I
This writ proceeding arises out of a criminal prosecution brought in San Francisco. The district attorney filed a complaint in municipal court charging petitioner Jennifer Davis (hereafter defendant) with prostitution (§ 647, subd. (b)), a misdemeanor, and with grand theft. (§ 487, subd. 1.) Under the governing statutes, grand theft is a so-called “wobbler”—i.e., an offense which may be charged and punished as either a felony or a misdemeanor (see § 17, subd. (b))—and here the district attorney charged the grand theft count as a felony. Prior to the preliminary hearing, the municipal court, acting pursuant to its authority under section 17, subdivision (b)(5), reduced the grand theft charge to a misdemeanor.
Thereafter, defendant sought pretrial diversion. At the time, San Francisco had instituted a pretrial misdemeanor diversion program which had been drafted by the district attorney in conjunction with a committee of local judges, attorneys and others involved in the criminal justice system, and which had been finally approved by the district attorney. The diversion program—which, as prescribed by section 1001.1, was limited to persons charged with “an offense filed as a misdemeanor”—set forth detailed criteria for diversion eligibility, prescribing various circumstances under which defendants who were charged with a misdemeanor would either be presumptively or absolutely ineligible for diversion. With respect to defendants charged with a wobbler, the diversion guidelines provided that when the wobbler had originally been filed as a felony, the defendant was absolutely ineligible for diversion; when the wobbler had originally been charged as a misdemeanor, the defendant was presumptively ineligible for diversion but could be found eligible for diversion under some circumstances.
Defendant then filed the present writ proceeding in the Court of Appeal.
The People sought review of the Court of Appeal decision, challenging the court’s conclusions with respect to both the local rule and the state statute and suggesting that the latter holding undermined the validity of all local misdemeanor diversion programs throughout the state. Because of the importance of the issues we granted review.
II
As noted above, the San Francisco misdemeanor diversion program at issue here was adopted pursuant to chapter 2.7. Section 1001.2, subdivision
The Court of Appeal concluded that this provision, in granting the district attorney the ultimate authority to approve or disapprove a local diversion program without establishing any standards or guidelines to limit the district attorney’s discretion, violated the separation-of-powers doctrine by delegating a standardless legislative authority to the executive branch of government. (Cf. People v. Wright (1982) 30 Cal.3d 705 [180 Cal.Rptr. 196, 639 P.2d 267].) Because this conclusion, if correct, might well invalidate the entire misdemeanor diversion program at issue here—as well as all misdemeanor diversion programs throughout the state—we address this issue first.
As we shall explain, we conclude that the Court of Appeal’s determination that section 1001.2, subdivision (b) represents an unconstitutional delegation of legislative authority to the district attorney rests on a misunderstanding of the history and purpose of the legislation at issue as well as on an inaccurate characterization of the source and nature of the authority which the provision permits the district attorney to exercise.
We begin with the legislative history of chapter 2.7. The current version of chapter 2.7 derives from legislation first enacted in 1977. Five years earlier, in 1972, the Legislature had adopted California’s first statutorily mandated pretrial diversion program, a program limited to those who would benefit from drug education, treatment and rehabilitation. (§§ 1000-1000.4, enacted Stats. 1972, ch. 1255, § 17, p. 2469.) In creating that initial program, the Legislature itself prescribed the eligiblity requirements for diversion, providing (1) that only defendants who had been charged with specifically enumerated drug offenses could be considered for diversion, and (2) that of the defendants so charged, only those who satisfied a series of
In the early and mid-1970’s, numerous local police departments and district attorneys throughout California, acting with the encouragement of grants provided by the federal government, began implementing experimental local diversion programs in their own jurisdictions. (See generally Nat. Advisory Com. on Crim. Justice Standards & Goals, Rep. on Corrections (1973) pp. 73-94; ABA Com. on Correctional Facilities & Services, Source Book in Pretrial Crim. Justice Intervention Techniques & Action Programs (1974) pp. 2-3.) Shortly thereafter, serious questions were raised as to the validity of these locally initiated programs when an Attorney General opinion suggested that the Legislature’s 1972 pretrial drug abuse diversion legislation had preempted the field. (See People v. Tapia (1982) 129 Cal.App.3d Supp. 1, 6 [181 Cal.Rptr. 382] [summarizing unpublished Cal. Atty. Gen. opn.].) As a consequence, the funding of some of the local programs was threatened and other district attorneys, who had been considering implementing such programs, became reluctant to go ahead with such plans.
To meet this problem, the Legislature in 1977 adopted as an urgency measure the predecessor of the current chapter 2.7. (Stats. 1977, ch. 574, § 3, p. 1821.) The 1977 legislation did not establish a general, state-mandated diversion program, but rather expressly declared that the Legislature did not intend to preempt the pretrial diversion field.
After evaluating the information generated by the experimental local diversion programs sanctioned by the 1977 legislation, the Legislature in 1982 adopted two separate but related pretrial diversion statutes, the current chapter 2.7 and chapter 2.9. The revised version of chapter 2.7 continued in place the general “local option” structure of the 1977 legislation, retaining the introductory provision clearly stating the Legislature’s intent not to preempt the pretrial diversion field. (§ 1001.) The 1982 revision of chapter 2.7 did, however, make several significant changes from the former scheme. First, the 1982 act limited the reach of the chapter to diversion programs which involved the postponement of prosecution “of an offense filed as a misdemeanor” (§ 1001.1); the 1977 act had contained no such restriction and thus had embraced local programs which authorized both misdemeanor and felony diversion. (See former § 1001.1.) Second, the 1982 revision added the section of chapter 2.7 at issue here (§ 1001.2, subd. (b), quoted in fn. 5, ante), limiting the chapter’s application to local diversion programs that have been approved by the local district attorney.
Chapter 2.9, which is not directly at issue here, was enacted several months after the 1982 revision of chapter 2.7. Like chapter 2.7, chapter 2.9 is a “local option” scheme and applies only to misdemeanor diversion programs. Unlike chapter 2.7, however, chapter 2.9 sets out a “model” misdemeanor diversion program with legislatively prescribed eligibility criteria (§ 1001.51, subds. (a) and (c)) which a county board of supervisors may adopt by ordinance. (§ 1001.50, subd. (a).) Like chapter 2.7, however, chapter 2.9 also conditions the implementation of such a diversion program on the district attorney’s approval. (§ 1001.50, subd. (b).)
A number of points emerge from this review of the legislative history of chapter 2.7. First, contrary to the view of the Court of Appeal, the Legislature in enacting the provision clearly did not intend to mandate a statewide misdemeanor diversion program or to require every locality to adopt such a program; stating emphatically that the existing statewide pretrial diversion programs were not intended to preempt the field, the Legislature made plain its intention to leave to local entities and officials both the decision whether to implement such a program and the authority to fashion a misdemeanor diversion program to meet local needs and resources. (See People v. Padfield (1982) 136 Cal.App.3d 218, 230-231 [185 Cal.Rptr. 903] [discussing 1977 legislation]; People v. Tapia, supra, 129 Cal.App.3d Supp. 1, 7-9 [same].) Second, the Legislature determined that a local misdemeanor diversion program should not be implemented
The Court of Appeal concluded that by permitting a local district attorney to veto any misdemeanor diversion program which he or she did not approve, the Legislature unconstitutionally delegated legislative authority to an executive official. But while a district attorney’s approval or disapproval of a diversion program can accurately be described as a “quasi-legislative” policy decision, the quasi-legislative nature of the decisionmaking authority retained by the district attorney does not establish that the authority exercised by the district attorney under this provision should properly be characterized as a “legislative” rather than an “executive” power for purposes of the separation-of-powers doctrine.
As this court explained nearly a half century ago: “The courts have long recognized that [the] primary purpose [of the separation-of-powers doctrine] is to prevent the combination in the hands of a single person or group of the basic or fundamental powers of government. [Citations.] The doctrine has not been interpreted as requiring the rigid classification of all the incidental activities of government, with the result that once a technique or method of procedure is associated with a particular branch of the government, it can never be used thereafter by another. Thus, although the ascertainment of facts based upon evidence taken in the course of a formal hearing is normally associated with an exercise of the judicial power, it may be entirely proper in the exercise of legislative or executive power [citations] .... Similarly, although it is normally the duty of the legislature to make the determinations of fact upon the basis of which legislation is to become effective, that duty may properly be devolved upon members of the executive branch of the government. [Citations.]” (Italics added.) (Parker v. Riley (1941) 18 Cal.2d 83, 89-90 [113 P.2d 873, 134 A.L.R. 1405].) Indeed, as a leading commentator on the separation-of-powers doctrine has noted: “From the beginning, each branch has exercised all three kinds of powers.” (1 Davis, Administrative Law Treatise (2d ed. 1978) § 2:2, p. 63.)
It is commonplace to observe that both executive and judicial officials routinely exercise quasi-legislative authority in establishing general policies and promulgating general rules for the governing of affairs within their respective spheres. (See 1 Davis, supra, § 2:1, pp. 60-61.) The exercise of such quasi-legislative authority, even when the policy decision that is made by the executive or judicial entity or official is one that could have been made by the Legislature, has never been thought to violate the separation-of-powers doctrine. (See, e.g., Wayman v. Southard (1825) 23 U.S. (10
In the present case, the Legislature, in applying the provisions of chapter 2.7 only to local misdemeanor diversion programs that are approved by the local district attorney, did not unconstitutionally enlarge the district attorney’s quasi-legislative policymaking role beyond the district attorney’s legitimate executive sphere. Instead, the Legislature simply recognized that pretrial diversion is closely and intimately related to the district attorney’s traditional executive authority over the prosecutorial process, and determined, as a matter of policy, not to permit local diversion programs to be implemented over the district attorney’s objection.
It is well established, of course, that a district attorney’s enforcement authority includes the discretion either to prosecute or to decline to prosecute an individual when there is probable cause to believe he has committed a crime. (See, e.g., Bordenkircher v. Hayes (1978) 434 U.S. 357, 364 [54 L.Ed.2d 604, 611, 98 S.Ct. 663]; Daly v. Superior Court (1977) 19 Cal.3d 132, 148 [137 Cal.Rptr. 14, 560 P.2d 1193]; People v. Adams (1974) 43 Cal.App.3d 697, 707 [117 Cal.Rptr. 905]. See generally Prosecutorial Discretion (Cont.Ed.Bar 1979) § 1.2, pp. 6-7.) In exercising such discretion, prosecutors have traditionally considered whether there are alternative programs in the community in which the defendant’s participation would serve the interests of the administration of justice better than prosecution, and have frequently agreed to forgo prosecution on the condition that the defendant participate in such an alternative program. (See generally Note, Pretrial Diversion from the Criminal Process (1974) 83 Yale L.J. 827, 837-839; Annot., Pretrial Diversion (1981) 4 A.L.R 4th 147, 151; Vorenberg & Vorenberg, Early Diversion from the Criminal Justice System, in Prisoners in America (Ohlin ed., 1973) pp. 159-161; 1 ABA Standards for Criminal Justice, Stds. Relating to the Prosecution Function (2d ed.) std. 3-3.8 [Discretion as to Noncriminal Disposition].) Thus, a prosecutor’s decision to decline to prosecute a particular defendant on condition that he participate ■ in an alternative program—i.e., a diversion decision—has traditionally been viewed as a subset of the prosecutor’s broad charging discretion. (See, e.g., People v. Glover (1980) 111 Cal.App.3d 914, 916-918 [169 Cal.Rptr. 12]; Prosecutorial Discretion, supra, §1.43, pp. 44-46; id. (Cont.Ed.Bar Supp. 1983) § 1.43, p. 8.)
Moreover, a prosecutor’s inherent executive authority includes not only the power to authorize diversion on a case-by-case basis, but extends also to the establishment or approval of general eligibility standards to guide the exercise of such discretion by all deputies under his direction. (See generally 1 ABA Standards for Criminal Justice, supra, std. 3-2.5 [Prosecu
We do not, of course, suggest that the Constitution required the Legislature to proceed in this manner. In a number of other contexts, the Legislature has established the eligibility criteria for diversion itself and has not left the policy questions of the design of the program to the district attorney. (See, e.g., §§ 1000 et seq. [drug abuse diversion]; 1000.6 et seq. [domestic violence diversion]; 1001.20 [diversion of mentally retarded defendants].) In other states, diversion programs have been implemented by the judiciary without a prosecutorial veto. (See, e.g., State v. Leonardis (1976) 71 N.J. 85 [363 A.2d 321], reaffd. on rehg. (1977) 73 N.J. 360 [375 A.2d 607].) But the fact that the Legislature was not constitutionally obligated to give a local district attorney the right to approve or disapprove a local diversion program does not in any way support the Court of Appeal’s conclusion that the constitutional separation-of-powers doctrine precludes the Legislature from accommodating a district attorney’s traditional executive authority by permitting him to retain control over the policy questions involved in the establishment and design of a diversion program. (See generally Nixon v. Administrator of General Services (1977) 433 U.S. 425, 443 [53 L.Ed.2d 867, 891, 97 S.Ct. 2777] [rejecting “ ‘archaic view of the separation-of-powers as requiring three airtight departments of government’ ”].)
Accordingly, we conclude that section 1001.2, subdivision (b) does not constitute an unconstitutional delegation of legislative authority to the district attorney.
III
Defendant additionally contends that even if the district attorney may properly approve or disapprove general eligibility criteria for local diversion programs, the particular local rule at issue in this case—
A
Defendant relies on two statutory provisions to support her claim that the Legislature did not intend to authorize a local entity to adopt the “wobbler” rule in question here. First, she contends that the rule conflicts with a portion of chapter 2.7 itself, the concluding sentence of section 1001.2, subdivision (b) which provides that “[n]othing in this subdivision shall authorize the prosecutor to determine whether a particular defendant shall be diverted.” (See fn. 5, ante, p. 73.) The People respond that this sentence was simply intended to make it clear that a prosecutor has no authority to overrule a trial court’s decision to divert a particular defendant when the defendant is eligible for diversion under the locality's established guidelines (see, e.g., People v. Superior Court (On Tai Ho) (1974) 11 Cal.3d 59, 65-68 [113 Cal.Rptr. 21, 520 P.2d 405]), and cannot reasonably be interpreted to preclude the adoption of guidelines under which a defendant’s eligibility for diversion depends on the offense that the prosecutor determines should be appropriately charged. As the People point out, because section 1001.1 itself provides that the only persons eligible for diversion under chapter 2.7 programs are those who are charged with an offense “'filed as a misdemeanor” (italics added), and because prosecutors in innumerable situations outside of the wobbler context retain discretion to charge a defendant with either a felony or a misdemeanor, in a large proportion of cases a defendant’s eligibility for misdemeanor diversion will inevitably depend on the offense that the prosecutor determines should be filed. The People maintain that the quoted sentence cannot sensibly be construed to prohibit the adoption of any eligibility requirement that renders a class of defendants ineligible for diversion on the basis of the offense with which they are charged.
Alternatively, defendant contends that the local rule conflicts with section 17, subdivision (b)(5) which declares that a wobbler filed as a felony “is a misdemeanor for all purposes” when a 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.”
In our view, there is no need to attempt to parse the language of either section 1001.2, subdivision (b) or section 17, subdivision (b)(5) as the parties invite us to do, because another statutory provision—section 1001.51, subdivision (c)(3)—demonstrates quite clearly that the Legislature did not intend to preclude a local entity from adopting the wobbler rule at issue here. Section 1001.51, subdivision (c)(3) is a provision of the chapter 2.9 misdemeanor diversion legislation, which—as noted above—was enacted just a few months after chapter 2.7. As we have explained, while chapter 2.7 contemplates that the local jurisdiction will design its own misdemeanor diversion program, chapter 2.9 embodies a legislatively designed “model” misdemeanor diversion program which a county board of supervisors may adopt by ordinance if it chooses. That model misdemeanor diversion program contains both a section with the same language as section 1001.2, subdivision (b)—i.e., “[n]othing in this subdivision shall authorize the prosecutor to determine whether a particular defendant shall be diverted” (§ 1001.50, subd. (b))—and also a provision which is identical in effect to the local wobbler rule in dispute here, rendering defendants charged with reduced wobblers absolutely ineligible for diversion. (See § 1001.51 subd. (c)(3).)
B
Defendant alternatively contends that even if the Legislature intended to permit a locality to adopt the wobbler rule in question, San Francisco was nonetheless constitutionally precluded from adopting or applying such a rule by virtue of the separation-of-powers doctrine. With regard to this issue, defendant does not argue that the local rule involves an invalid delegation of legislative authority to the district attorney, but instead relies on an entirely separate facet of the separation-of-powers doctrine. Because under the San Francisco diversion program the trial court has the power to make the ultimate decision whether an eligible defendant shall actually be diverted or not, defendant asserts that the rule at issue here, which makes a defendant’s eligibility for diversion dependent on the prosecutor’s decision to charge a wobbler as a felony or misdemeanor, permits the executive branch to improperly infringe on the judicial power. The Court of Appeal agreed with defendant’s position, concluding that this separation-of-powers claim was supported by a number of California decisions—beginning with People v. Tenorio (1970) 3 Cal.3d 89 [89 Cal.Rptr. 249, 473 P.2d 993]—which, in a variety of settings, struck down statutes which purported to give a prosecutor the right to veto judicial determinations.
We cannot agree with the Court of Appeal’s analysis of our prior cases or with its conclusion. The wobbler rule at issue here represents no greater an infringement on the judicial power than any other provision of a diversion program which defines the class of defendants who are eligible or ineligible for diversion by reference to the offense with which a defendant is charged, provisions that are routinely embodied in virtually all diversion programs. Indeed, because the rule in question simply excludes from the diversion program defendants against whom felony charges are filed, the rule does no more than carry out the directive of section 1001.1 which limits diversion programs adopted under chapter 2.7 to defendants charged with “an offense filed as a misdemeanor.” As anyone familiar with the criminal justice system knows, a district attorney’s discretion to charge either a felony or misdemeanor is by no means confined to the wobbler context. District attorneys are continually faced with factual situations outside the wobbler context which would legally support the filing of either felony or misdemeanor charges. (See generally Prosecutorial Discretion, supra, §§ 1.16-1.26, pp. 20-32.) The fact that in many, if not most, felony cases there will be at least some misdemeanor which the prosecutor could have chosen to charge if he determined that such lesser charge was appropriate has, of
It is true, of course, that a prosecutor’s exercise of discretion to charge a defendant with a felony rather than a misdemeanor when the facts of the case would support either charge will frequently have a variety of effects on the ultimate judicial disposition of the matter. A prosecutor’s charging decision may, for example, determine whether a defendant is convicted of an offense for which probation may not be granted, or for which a specific punishment is mandated. Those familiar consequences of the charging decision have, however, never been viewed as converting a prosecutor’s exercise of his traditional charging discretion into a violation of the separation-of-powers doctrine.
The line of separation-of-powers decisions on which the Court of Appeal relied is concerned with an entirely different kind of interference by the executive with a court’s exercise of the judicial function. As we shall see, in all of those cases the challenged statutory provisions purported to give a prosecutor the right to veto a decision made by a court after criminal charges had already been filed. None of the cases suggests that the exercise of prosecutorial discretion prior to the filing of such charges improperly subordinates the judicial branch to the executive in violation of the Constitution, even though the prosecutor’s exercise of such charging discretion inevitably affects the sentencing or other dispositional options available to the court.
We begin with the seminal decision in Tenorio, supra, 3 Cal.3d 89. In Tenorio, the court addressed a statutory provision which gave the district attorney the power to preclude a trial court from exercising its long established discretion, under Penal Code section 1385, to strike a prior offense
In Esteybar v. Municipal Court (1971) 5 Cal.3d 119 [95 Cal.Rptr. 524, 485 P.2d 1140], the next case in the series, this court applied Tenorio to a legislative scheme which granted a magistrate the authority to reduce a wobbler to a misdemeanor but conditioned the magistrate’s exercise of such authority on the approval of the district attorney. The Esteybar court concluded that, as in Tenorio, the district attorney’s exercise of such a veto power at that stage of the proceeding would violate the separation-of-powers doctrine. In response to the People’s argument that the application of Tenorio to a decision which reduced a charge from a felony to a misdemean- or would “constitute[ ] an invasion of the charging process, an area traditionally reserved to the prosecutor, because [it would] abridge[ ] his discretion in deciding ‘what crime is to be charged or if any crime is to be charged’ [citation]” (5 Cal.3d at p. 127), the Esteybar court explained: “This argument overlooks the fact that the magistrate’s determination follows the district attorney’s decision to prosecute. As stated in Tenorio: ‘When the decision to prosecute has been made, the process which leads to acquittal or sentencing is fundamentally judicial in nature.’ ” (Original italics.) (Ibid.) Thus, Esteybar expressly emphasized the timing of the exercise of prosecutorial discretion as a crucial factor in the Tenorio analysis. All of the subsequent cases applying Tenorio to invalidate legislative provisions have similarly involved statutes which authorized the exercise of a prosecutorial veto after the filing of criminal charges, when the criminal proceeding has already come within the aegis of the judicial branch. (See, e.g., People v. Clay (1971) 18 Cal.App.3d 964 [96 Cal.Rptr. 213] [district attorney’s veto over judicial decision to grant probation]; People v. Navarro (1972) 7 Cal.3d 248 [102 Cal.Rptr. 137, 497 P.2d 481] [district attorney’s veto over judicial decision to commit convicted defendant to drug treatment program in lieu of prison sentence].)
The Court of Appeal, in finding the local wobbler rule unconstitutional, relied heavily on this court’s decisions in People v. Superior Court (On Tai Ho), supra, 11 Cal.3d 59 and Sledge v. Superior Court (1974) 11 Cal.3d 70
On Tai Ho and Sledge each involved a constitutional challenge to a separate aspect of the district attorney’s role in that diversion scheme. In On Tai Ho, the defendant challenged the district attorney’s role in the last stage of the diversion process, where he was given the power to disapprove a trial court’s decision, after a hearing, to grant diversion. In defense of the statutory scheme, the People argued 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.” (11 Cal.3d at p. 65.) In rejecting that argument in the context of the procedure at issue in that case, the On Tai Ho court stated: “As we explained in Esteybar, however, ‘This argument overlooks the fact that the magistrate’s determination follows the district attorney’s decision to prosecute.’ ... By the time the case goes through the probation investigation and report prescribed in section 1000.1, and reaches the hearing mandated by section 1000.2, the prosecutorial die has long since been cast. The case is ‘before the court’ for disposition, and disposition is a function of the judicial power no matter what the outcome.” (First italics in original; additional italics added.) (Ibid.) Thus, as in all of the earlier Tenorio cases, the constitutional defect in the statute was that it interposed a prosecutorial veto at the “judicial” stage of a criminal proceeding, when the case was already “before the court” for disposition.
In Sledge, a companion case to On Tai Ho, the defendant’s constitutional challenge was directed at the role which the statute assigned to the district attorney at an earlier stage in the process to review the file of a defendant charged with a divertible offense to determine whether any of the legislatively prescribed disqualifying factors was present and rendered the defendant ineligible for diversion. Although the district attorney’s role was to be performed after charges were filed, and thus while the case was already “before the court,” the Sledge court concluded that the statute nonetheless
Taken together, On Tai Ho and Sledge establish that when a district attorney is given a role during the “judicial phase” of a criminal proceeding, such role will violate the separation-of-powers doctrine if it accords the district attorney broad, discretionary decisionmaking authority to countermand a judicial determination, but not if it only assigns the district attorney a more limited, quasi-ministerial function. Neither case, however, contains any suggestion whatsoever that a district attorney improperly exercises “judicial authority” in violation of the separation-of-powers doctrine when he exercises his traditional broad discretion, before charges are filed, to decide what charges ought to be prosecuted, even when that charging decision affects the defendant’s eligibility for diversion.
Indeed, although neither On Tai Ho nor Sledge referred to the point, the pretrial diversion scheme at issue in those cases did in fact afford the district attorney just such authority. As noted above, under the relevant statute diversion was available only when a defendant was charged with one of six specifically enumerated drug offenses. (See § 1000, subd. (a).) In many instances, of course, the evidence before the district attorney would inevitably require him to decide whether to charge the defendant with one of the enumerated offenses or with a different or greater offense. Nothing in On Tai Ho or Sledge suggests that the existence of such discretionary charging authority in the district attorney violated the separation-of-powers doctrine or rendered the diversion program constitutionally infirm.
Although the rationale of On Tai Ho and Sledge makes it quite plain that those decisions’ concern over the potential improper interposition of prosecutorial discretion into the judicial realm does not extend to a prosecutor’s exercise of discretion at the charging stage of a criminal proceeding, neither of those decisions spoke specifically to this point. In People v. Adams, supra, 43 Cal.App.3d 697, 706-707, however, the Court of Appeal did directly address a separation-of-powers claim which focused on the prosecutor’s charging discretion in a case involving a wobbler. In Adams, the defendant challenged the constitutionality of section 496 (receiving stolen property), contending that the statute improperly conferred judicial authority on the executive branch by permitting the district attorney—when the value of the property did not exceed $200—to determine whether a violation should be
In emphatically rejecting the defendant’s claim, the Adams court explained: “Defendant’s attempted analogy between the instant case and [the Tenorio line of cases] ignores the fundamental diiference between the type of statute there involved and section 496. All the statutes involved in the cases above cited purported to impose a limitation on a purely judicial determination which in no event could be taken until after a charge had been filed in court and a prosecution had commenced in the judicial system. In the case before us the statute deals with the initial determination of the charge to be filed, a decision which, in its nature, occurs before an accusatory pleading is filed and thus before the jurisdiction of a court is invoked and a judicial proceeding initiated. It involves a purely prosecutorial function and does not condition judicial power in any way. The function thereby conferred relates only to what is clearly the province historically of the public prosecutor, i.e., the discretion whether or not to prosecute. [Citations.] The action of a district attorney in filing an information is not in any way an exercise of a judicial power or function. [Citation.]” (43 Cal.App.3d at p. 707.)
Thus, Adams makes clear that the only exercise of prosecutorial discretion at issue in this case—the discretion to charge a wobbler as a felony rather than as a misdemeanor—does not usurp judicial power or unconstitutionally infringe the judicial function. As explained earlier, the fact that the prosecutor’s charging decision may alfect a trial court’s power to order diversion does not alter that conclusion, any more than would the fact that a prosecutor’s charging decision may have the effect of limiting a court’s sentencing options.
. In concluding that the local wobbler rule at issue here does not violate the separation-of-powers doctrine simply because it makes a defendant’s eligibility for diversion dependent, in part, on the offense which the prosecutor charges, we in no way imply that a prosecutor has untrammeled discretion to overcharge a case in order to render a defendant ineligible for diversion. If a prosecutor charges a defendant with a felony and, after the preliminary hearing, it is found that the facts do not establish probable cause to hold the defendant to answer for the charged felony but only for a divertible misdemeanor, the fact that the prosecutor had initially charged a felony would not, in itself, necessarily preclude diversion. (Cf. People v. Hudson (1983) 149 Cal.App.3d 661, 665-666 [197 Cal.Rptr. 36].) But when the evidence does establish probable cause to believe that the defendant has committed conduct which is punishable as a felony—as will be the case whenever a defendant is held to answer on a wobbler charge—the fact that
Accordingly, we conclude that the challenged wobbler rule does not violate the separation-of-powers doctrine.
C
Finally, we also reject defendant’s claim that the local wobbler rule violates equal protection principles. As we have explained at some length above, the rule at issue here—which treats defendants differently depending on whether the prosecutor decides to charge them with a felony or with a misdemeanor—is no different than any other legislative rule which accords differential treatment to an individual depending on whether a prosecutor believes a greater or lesser charge is appropriate. So long as there are sufficient facts to demonstrate probable cause that the defendant has committed the elements of a crime which may be charged as a felony, the defendant can claim no denial of equal protection from the fact that the prosecutor may in other cases exercise his discretion to charge only a misdemeanor when he believes more lenient treatment is warranted. The equal protection clause, of course, has never been thought to abrogate a prosecutor’s authority to exercise leniency in the charging process. (See, e.g., Oyler v. Boles (1962) 368 U.S. 448, 456 [7 L.Ed.2d 446, 452-453, 82 S.Ct. 501]; Murgia v. Municipal Court (1975) 15 Cal.3d 286, 296-297 [124 Cal.Rptr. 204, 540 P.2d 44].)
Indeed, in United States v. Batchelder (1979) 442 U.S. 114 [60 L.Ed.2d 755, 99 S.Ct. 2198], the United States Supreme Court, in a unanimous decison by Justice Marshall, specifically rejected a very similar constitutional claim. In Batchelder, the defendant’s conduct was proscribed by two separate provisions of the federal Omnibus Crime Control and Safe Streets Act of 1968, each of which carried a different maximum penalty, and the defendant was prosecuted and sentenced under the section carrying the higher penalty. On appeal, the Seventh Circuit reduced the defendant’s sentence to the lesser penalty, concluding that the prosecutor’s “unfettered” discretion to decide under which of the two provisions the defendant should be prosecuted could produce “unequal justice” and raised serious constitutional questions.
The United States Supreme Court granted certiorari and reversed the circuit court’s decision, concluding that in the absence of any showing that
Furthermore, the Batchelder decision also puts to rest any suggestion that the local rule at issue—in making the defendant’s eligibility for diversion dependent on the prosecutor’s charging discretion—constitutes an unconstitutional delegation of legislative authority to the district attorney. After rejecting the defendant’s equal protection and due process claims, the Batchelder court went on to address such an unconstitutional delegation theory, noting that the Seventh Circuit, “[a]pproaching the problem of prosecutorial discretion from a slightly different perspective, [had] postulated that the statutes might impermissibly delegate to the Executive Branch the Legislature’s responsibility to fix criminal penalties. [Citations.]” (442 U.S. at pp. 125-126 [60 L.Ed.2d at p. 766].) The Supreme Court disposed of that impermissible delegation-of-legislative-authority claim in short order, explaining: “The provisions at issue plainly demarcate the range of penalties that prosecutors and judges may seek and impose. In light of that specificity, the power that Congress has delegated to those officials is no broader than the authority they routinely exercise in enforcing the criminal laws. Having informed the courts, prosecutors and defendants of the permissible punishment alternatives available under each Title, Congress has fulfilled its duty.” (442 U.S. at p. 126 [60 L.Ed.2d at p. 766].)
This reasoning fully applies both to wobblers and to all other circumstances in which a defendant’s conduct may potentially subject him to either a felony or misdemeanor charge. In such cases, so long as the criminal statutes “plainly demarcate the range of penalties that prosecutors . . . may seek,” Batchelder establishes that the fact that the prosecutor retains
IV
In sum, we conclude there is no basis—constitutional or statutory—for invalidating either the district attorney’s general authority to approve a local misdemeanor diversion program under section 1001.2, subdivision (b) or the specific eligibility requirement that was applied in this case.
The judgment of the Court of Appeal is reversed and the case is remanded to the Court of Appeal with directions to deny the peremptory writ.
Lucas, C. J., Broussard, J., and Eagleson, J., concurred.
As explained more fully below (post, p. 75), in 1982 the Legislature enacted two separate statutory schemes authorizing local entities to adopt pretrial misdemeanor diversion programs. Both statutory schemes are codified in title 6, part 2 of the Penal Code. One scheme— sections 1001 to 1001.9—appears as chapter 2.7 of title 6 (hereafter chapter 2.7); the other— sections 1001.50-1001.55—as chapter 2.9 of title 6 (hereafter chapter 2.9). Although the two chapters differ in some respects, a number of the provisions of the two schemes are identical. The local diversion program at issue in this case was adopted pursuant to the chapter 2.7 scheme. Unless otherwise noted, all statutory references are to the Penal Code.
The applicable local diversion eligibility requirements provided in full:
“A. Offense
"All persons who are charged with an offense filed as a misdemeanor are eligible for the diversion program except under the following circumstances where they are not eligible-.
“1. Persons with a prior felony conviction and persons who have been committed to the California Youth Authority.
“2. Persons with two or more prior misdemeanor convictions; persons with one prior misdemeanor conviction within 5 years of the commission of offenses currently charged, or persons with one similar prior misdemeanor conviction at any time.
“3. Persons charged with infractions.
*71 “4. Persons 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’).
“5. Persons charged with drug offenses included in Penal Code Section 1000. Persons charged with violations of Section 4143(a) of the Business and Professions Code are eligible for diversion as long as the period of diversion is no less than six months.
“6. Persons charged with offenses listed in Title 2, Chapters 1 through 6 inclusive, known as ‘Control of Dangerous Weapons,’ beginning at Penal Code Section 12000 and continuing though Section 12601.
“7. Persons charged in cases wherein a dangerous or deadly weapon was used, including all 417 P.C. violations.
“8. Persons charged in cases involving the use or the attempted use of violence against the person of another. In no instance shall an offense involving injury to a victim (as defined in Section D3 herein) be diverted.
“9. Persons charged with offenses wherein restitution or damage exceeds $1,000.00.
“10. Persons who have been previously granted diversion, either under this program or any other; persons who have previously failed to complete diversion successfully, under this program or any other; persons who are currently on diversion, under this program or any other; and persons who have previously completed diversion, under this program or any other. Persons who are currently awaiting approval of an eligibility report for diversion are not eligible.
“11. Persons charged with more than one offense arising out of more than one act, event or transaction.
“12. Persons charged with auto tampering offenses (10852-10853 VC) are eligible. Persons charged with any other Vehicle Code violations, including driving under the influence of intoxicants are not eligible.
“13. Persons charged with annoying or molesting children (647a and 314.1 PC).
“14. Persons charged with offenses involving public corruption, perjury, threatening or intimidating witnesses, failure to appear on a promise to appear (PC 1320), violations of the California Unemployment Insurance Code where the amount exceeds $400.00, violations of the Revenue and Taxation Code, Welfare and Institutions Code, or food stamp fraud.
“B. Variance From the Above Provisions
“1. The above eligibility provisions are the sole and exclusive provisions by which diversion may be granted. In every case where the person, based upon the foregoing, is not eligible, the program shall so report to the court in the eligibility report and shall at no time take any further action, monitor the person, nor allow the person to participate in the program.
“2. No 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) end 17(b)(5);
“2. Offenses involving firearms or other deadly or dangerous weapons;
“3. Offenses involving injury to a victim. Injury means any significant or substantial physical injury which requires professional medical treatment, whether sought or not.
“3 .In 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 of the same sections (see Section A4 above), the court may permit a defendant to be diverted if it finds good cause to make an exception to the above exclusionary criteria and finds that it is in the interest of justice to do so. However, no such exception shall be made and diversion allowed unless and until the court in open session on the record states its reasons for determining that good cause and the interests ofjustice justify making an exception to the criteria set out above. ” (Italics added.)
Although the superior court filed no written opinion, its oral comments suggest that its ruling may have rested on a mistaken belief that the guidelines provided identical treatment to wobblers filed as felonies and wobblers filed as misdemeanors. Because, as we explain hereafter, we conclude that the superior court reached the proper decision, it is of no consequence that the theory on which the court reached its conclusion may have been flawed. (See generally 9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 259, p. 266 and cases cited.)
Defendant properly sought review of the superior court ruling by filing a petition for an extraordinary writ in the Court of Appeal (Code Civ. Proc., § 904.1, subd. (a)(4)), but the municipal court was not the appropriate respondent. Because the petition sought review of the action of the superior court, the superior court, rather than the municipal court, was the proper respondent. (See Serna v. Superior Court (1985) 40 Cal.3d 239, 245-246 [219 Cal.Rptr. 420, 707 P.2d 793].) The People, real party in interest in any event, have not questioned the procedural posture of this matter, and because the error does not affect the jurisdiction of the Court of Appeal or of this court, the merits of the Court of Appeal decision are properly before us.
Section 1001.2, subdivision (b) reads in full: “The district attorney of each county shall review annually any diversion program established pursuant to this Chapter, and no program shall continue without the approval of the district attorney. No person shall be diverted under a program unless it has been approved by the district attorney. Nothing in this subdivision shall authorize the prosecutor to determine whether a particular defendant shall be diverted.”
As discussed below, defendant also contends that the particular local wobbler rule at issue here conflicts with the concluding sentence of section 1001.2, subdivision (b). We consider that matter in a subsequent part of our opinion. (See post, pp. 78-81.)
Former section 1001, the initial section of the 1977 version of chapter 2.7, provided in this regard: “It is the intent of the Legislature that neither this chapter, Chapter 2.5 (commencing with Section 1000) of this title [i.e., the drug diversion provisions enacted in 1972], nor any other provision of law be construed to preempt other current or future pretrial or precomplaint diversion programs. . . .”
Section 17, subdivision (b)(5) reads in full: “When a crime is punishable, in the discretion of the court, by imprisonment in the state prison or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes under the following circumstances:... (5) When, at
Section 1001.51, subdivision (c) provides in full: “This chapter shall not apply whenever the accusatory pleading charges the commission of a misdemeanor : [H] (1) For which incarceration would be mandatory upon conviction of the defendant, [fl] (2) For which registration would be required pursuant to Section 290 upon conviction of the defendant. []|] (3) Which the magistrate determines shall be prosecuted as a misdemeanor pursuant to paragraph (5) of subdivision (b) of section 17. [H] (4) Which involves the use of force or violence against a person, unless the charge is a violation of Section 241 or 243. [fl] (5) For which the granting of probation is prohibited, [fi] (6) Which is a driving offense punishable as a misdemeanor pursuant to the Vehicle Code.” (Italics added.)
The criteria which a prosecutor uses to determine whether to charge a wobbler as a felony or a misdemeanor are generally the same criteria that are considered in determining whether felony or misdemeanor charges should be filed outside of the wobbler context when the defendant’s conduct may be punished under either a felony or misdemeanor provision: e.g., the severity of the present crime, the accused’s prior record, and the probability of the defendant’s continued criminal conduct. (See generally Cal. Dist. Attys. Assn., Uniform Crime Charging Standards, supra, std. II.D., pp. 33-40; 1 ABA Standards for Criminal Justice, supra, std. 3-3.9.)