Donorovich-Odonnell v. Harris

Filed 10/29/15
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
CHRISTY LYNNE DONOROVICH- D068758
ODONNELL et al.,
Plaintiffs and Appellants,
(Super. Ct. No.
v. 37-2015-00016404-CU-CR-CTL)
KAMALA D. HARRIS, as Attorney General,
etc., et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of San Diego County, Gregory
W. Pollack, Judge. Affirmed.
O'Melveny & Myers, John Kappos, Dimitri Portnoi, Jason A. Orr; Horvitz &
Levy, Jon B. Eisenberg, Barry R. Levy, Dean A. Bochner; Arnold & Porter, Jerome B.
Falk, Jr., Adam J. Kretz; and Kevin Díaz for Plaintiffs and Appellants.
Kamala D. Harris, Attorney General, Kathleen Kenealy, Chief Assistant Attorney
General, Julie Weng-Gutierrez, Assistant Attorney General, Niromi W. Pfeiffer and
Darrell W. Spence, Deputy Attorneys General, for Defendant and Respondent.
Manning & Kass, Ellrod, Ramirez, Trester, Eugene P. Ramirez and Darin L.
Wessel for Defendant and Respondent Jackie Lacey.
John F. Whisenhunt, County Counsel (Sacramento), Krista C. Whitman and June
Powells-Mays, Deputy County Counsel, for Defendant and Respondent Ann Marie
Schubert.
Thomas E. Montgomery, County Counsel (San Diego), and Thomas E. Bunton,
Deputy County Counsel, for Defendant and Respondent Bonnie Dumanis.
Most states, including California, do not classify suicide or attempted suicide as a
crime. (In re Ryan N. (2001) 92 Cal. App. 4th 1359, 1373 (Ryan N.).) Most states,
however, including California, impose criminal liability on a person aiding and abetting
suicide. (Cruzan v. Director, Missouri Dept. of Health (1990) 497 U.S. 261, 280; Ryan
N., at p. 1374, fn. 4.) Penal Code section 401, in effect since 1873, provides: "Every
person who deliberately aids, or advises, or encourages another to commit suicide, is
guilty of a felony."1 The crime is punishable by a state prison term of 16 months, two
years, or three years (§ 18, subd. (a); Ryan N., supra, 92 Cal.App.4th at p. 1374, fn. 4),
and a fine of up to $10,000 (§ 672).
On appeal, plaintiffs contend section 401 is inapplicable to physician aid-in-dying
because prescribing a lethal dose of drugs a patient may or may not have filled or take is
not direct participation in suicide and, in any event, the legislative history of section 401
1 Further statutory references are to the Penal Code unless otherwise specified.
Section 401 was formerly numbered section 400. (§ 401.)
2
shows the Legislature never intended that section 401 apply to a person furnishing the
means of suicide. Alternatively, plaintiffs contend section 401 as applied to physician
aid-in-dying violates the state constitutional right to autonomy privacy. (Cal. Const., art.
1, § 1.)
On October 5, 2015, Governor Jerry Brown signed the End of Life Option Act,
which authorizes a terminally ill patient with the capacity to make medical decisions to
request a prescription for a lethal dose of drugs, insulates a prescribing physician from
criminal liability, and sets forth rigorous procedures and safeguards to protect against
abuse. (Assem. Bill No. 15 (2015-2016 2d Ex. Sess.) § 1 (Assembly Bill 15).)2 The
parties agree Assembly Bill 15 does not render the appeal moot because it will likely not
become effective in time to benefit plaintiffs, particularly Christy Lynne Donorovich-
Odonnell, given her life expectancy,3 and the measure's future is uncertain because
opponents have filed paperwork with the Attorney General to challenge it by referendum
on the state ballot in 2016.
We have great compassion for plaintiffs, but we conclude their statutory and
constitutional arguments lack merit. We agree with defendants that physician aid-in-
dying, and attendant procedures and safeguards against abuse, are matters for the
2 We grant the Attorney General's unopposed request that we take judicial notice of
Assembly Bill 15 and material from its legislative history.
3 Assembly Bill 15 was enacted in special session, and thus its effective date is "the
91st day after adjournment of the special session at which the bill was passed." (Cal.
Const., art. IV, § 8(c)(1).) The special session has reportedly not adjourned.
3
Legislature. We affirm the judgment for defendants entered after their demurrers to the
complaint were sustained.
FACTUAL AND PROCEDURAL BACKGROUND4
Plaintiffs Donorovich-Odonnell, Elizabeth Antoinette Melanie Gobertina Wallner,
and Wolf Alexander Breiman, are all terminally ill. Donorovich-Odonnell, who resides
in Santa Clarita, suffers from stage IV adenocarcinoma of the left lung, which has
metastasized to her brain, liver, spine, and rib. At the time of the complaint's filing in
May 2015, her estimated life expectancy was less than six months. She is morphine
intolerant and cannot benefit from many of the most common and effective forms of pain
management. Wallner, who resides in Sacramento, has stage IV colon cancer, which has
metastasized to her liver and lung. Breiman, who resides in Ventura, has multiple
myeloma, a blood cancer.
Donorovich-Odonnell, Wallner, and Breiman are competent adults who "desire the
option of a peaceful death without suffering, and they want [a]id-in-[d]ying to be an
option in their end-of-life health care." They "all want to live," but "accept their terminal
prognoses." Having a prescription for a lethal dose of drugs "they could self-administer
if their suffering became too great in the final days would provide great comfort to them
and would alleviate some anxiety related to the dying process."
Plaintiff Lynette Carol Cederquist, M.D., resides in San Diego. She is board
certified in hospice and palliative medicine and internal medicine. In addition to being a
4 Because we review a demurrer ruling, the facts are derived from the complaint.
(Blank v. Kirwan (1985) 39 Cal. 3d 311, 318.)
4
medical school clinical professor, she regularly treats patients and advises them on end-
of-life options. She does not provide aid-in-dying because she fears prosecution under
section 401. If such treatment were lawful in California, "she would be willing to write a
prescription for medication to terminally ill, competent adults who, at their own
discretion, could exercise the option to self-administer the drug." She considers aid-in-
dying "a compassionate and ethical choice in appropriate circumstances," and believes
some of her terminally ill patients would choose that option.
In May 2015, plaintiffs brought an action in San Diego County Superior Court for
declaratory and injunctive relief. Defendants are public officials with the power of
criminal prosecution: Kamala D. Harris, Attorney General of California; Jackie Lacey,
District Attorney for Los Angeles County; Ann Marie Schubert, District Attorney for
Sacramento County; and Bonnie Dumanis, District Attorney for San Diego County.
The complaint sought a judicial declaration that section 401 is inapplicable to
physicians who provide the option of aid-in-dying to terminally ill, competent adults who
request such aid. It also sought an injunction permanently prohibiting defendants from
prosecuting physicians "who provide advice and write a prescription for [lethal]
medication" under such circumstances. The complaint alleged that as applied to
physicians providing aid-in-dying to terminally ill patients, section 401 violates state
constitutional rights of privacy and liberty (Cal. Const., art 1, § 1); free speech (Cal.
Const., art. 1, § 2); and equal protection (Cal. Const., art. 1, § 7). The court granted
plaintiffs' request for trial preference.
5
Attorney General Harris and District Attorney Lacey separately demurred to the
complaint, and District Attorneys Schubert and Dumanis joined in Harris's demurrer. At
the July 2015 hearing on the demurrers, the court stated: "[T]he first point I want to
make is what is not on the table here today. This is not a case about the right to die. In
California, suicide is legal. It's not illegal to take one's own life. There is constitutional
authority that's settled law that a patient can decline treatment even if that . . . results in
the patient's death. So that's really not an issue. Whether the plaintiff[s] . . . can travel to
a state that allows assisted suicide [is also] . . . not an issue. Clearly they can."
The court characterized the issue as "whether there is a constitutional right to have
an assisted suicide with concomitant immunity to the assisting party." The court
determined that under established precedent, Donaldson v. Lungren (1992) 2 Cal. App. 4th
1614 (Donaldson), Washington v. Glucksberg (1997) 521 U.S. 702 (Glucksberg), and
Vacco v. Quill (1997) 521 U.S. 793 (Vacco), there is no such right. The court believed
the issue was for the Legislature, and "the answer is not to declare a statute [section 401],
which is clearly constitutional, unconstitutional." The court granted the demurrers
without leave to amend.
Judgment for defendants was entered in August 2015. This appeal followed, and
we granted in part plaintiffs' request for calendar preference.
6
DISCUSSION
I
Standard of Review
A demurrer is intended to test the sufficiency of a complaint as a matter of law,
and thus we independently review a judgment sustaining a demurrer without leave to
amend. (Holiday Matinee, Inc. v. Rambus, Inc. (2004) 118 Cal. App. 4th 1413, 1420.)
"We assume the truth of the allegations in the complaint, but do not assume the truth of
contentions, deductions, or conclusions of law. [Citation.] It is error for the trial court to
sustain a demurrer if the plaintiff has stated a cause of action under any possible legal
theory, and it is an abuse of discretion for the court to sustain a demurrer without leave to
amend if the plaintiff has shown there is a reasonable possibility a defect can be cured by
amendment." (California Logistics, Inc. v. State of California (2008) 161 Cal. App. 4th
242, 247.)
II
Interpretation of Section 401
A
Plaintiffs contend the court misinterpreted section 401 to apply to physician aid-
in-dying. Whether section 401 applies to physicians in those circumstances is an issue of
first impression.
"In construing statutes, we aim 'to ascertain the intent of the [Legislature] so that
we may adopt the construction that best effectuates the purpose of the law.' [Citations.]
We look first to the words of the statute, 'because the statutory language is generally the
7
most reliable indicator of legislative intent.' " (Klein v. United States of America (2010)
50 Cal. 4th 68, 77.) "If the plain, commonsense meaning of a statute's words is
unambiguous, the plain meaning controls." (Fitch v. Select Products Co. (2005) 36
Cal. 4th 812, 818.)
Section 401 provides: "Every person who deliberately aids, or advises, or
encourages another to commit suicide, is guilty of a felony." (Italics added.) "The
language of section 401 closely resembles that used in other parts of the Penal Code to
define or describe the principal criminal liability of persons who 'aid and abet' the
commission of a crime, and the courts have frequently used the terms aiding and abetting
interchangeably with those employed by section 401 in discussing the elements of the
crime defined by that statute." (Ryan N., supra, 92 Cal.App.4th at p. 1374.)
Although section 401 appears to criminalize simply giving advice or
encouragement, "the courts have . . . required something more than mere verbal
solicitation of another person to commit a hypothetical act of suicide. . . . [T]he courts
have interpreted the statute as proscribing 'the direct aiding and abetting of a specific
suicidal act. . . . Some active and intentional participation in the events leading to the
suicide are required in order to establish a violation.' [Citation.] Thus, . . . to prove a
violation of section 401 it is necessary to establish all of the following essential elements:
(1) the defendant specifically intended the victim's suicide; (2) the defendant undertook
some active and direct participation in bringing about the suicide, such as by furnishing
the victim with the means of suicide; and, finally, (3) the victim actually committed a
8
specific, overt act of suicide.' " (Ryan N., supra, 92 Cal.App.4th at p. 1374 (last italics
added).)5
In People v. Matlock (1959) 51 Cal. 2d 682, the California Supreme Court held a
jury instruction on section 401 was inappropriate when the defendant was charged with
strangling the victim and claimed he did so at the victim's request. Relying on an Oregon
opinion, which addressed a statute similar to section 401, the court explained: " '[The
statute] contemplates some participation in the events leading up to the commission of
the final overt act, such as furnishing the means for bringing about death,–the gun, the
knife, the poison, or providing the water, for the use of the person who himself commits
the act of self-murder.' " (Id. at p. 694, italics added, citing State v. Bouse (1953) 199
Ore. 676, 702-703 [264 P.2d 800] [defendant's wife drowned in bathtub; court held
instruction on assisted suicide statute as alternative to murder was proper because "jury
might have found . . . that defendant's participation in his wife's death, if he did
5 In Ryan N., the defendant's friend said she wanted to kill herself. She "suggested
ingesting something 'like possibly sleeping pills,' " and the defendant " 'said that that
would probably be a painless way.' " (Ryan N., supra, 92 Cal.App.4th at p. 1367.) They
drove to a drugstore, where she stole a bottle of 50 Nytol pills and defendant purchased a
second bottle of the same product. They returned to the car, where the defendant
combined the two bottles of pills in one container and handed it to her. As they drove
around, she began taking the pills one at a time. The defendant said, " 'Hurry up and take
them all quickly, otherwise it won't work.' " (Id. at p. 1368.) She ingested the remainder
of the pills and later woke up in an intensive care unit. (Ibid.) The court held this
evidence was sufficient to support a finding the defendant guilty of an attempt to violate
section 401, citing section 21a, which provides: "An attempt to commit a crime consists
of two elements: a specific intent to commit the crime, and a direct but ineffectual act
done toward its commission." (Ryan N., at p. 1384.)
9
participate, consisted only of running the water into the bathtub and helping her to get
into it"].)
In In re Joseph G. (1983) 34 Cal. 3d 429, 431, the court held that when "a genuine
suicide pact was partially fulfilled by driving a car over a cliff," the conduct of the driver,
who survived, did not constitute murder and fell "more properly within the statutory
definition of [section 401]." The defendant supplied the instrumentality of his
passenger's death by driving the car over the cliff. (Id. at p. 439; see People v. Lam
(2010) 184 Cal. App. 4th 580, 584; McCollum v. CBS, Inc. (1988) 202 Cal. App. 3d 989,
1007; Bouvia v. Superior Court (1986) 179 Cal. App. 3d 1127, 1145.)
Defendants contend section 401 unambiguously applies to physicians providing
aid-in-dying. We agree that the term "[e]very person" in section 401 necessarily applies
to physicians. The term "every person" in a statute "applies to all persons." (People v.
Gangemi (1993) 13 Cal. App. 4th 1790, 1795.) We also conclude the term "aids" in
section 401 is broad enough to apply to physicians furnishing a means of suicide. We
believe prescribing a lethal dose of drugs to a terminally ill patient with the knowledge
the patient may use it to end his or her life goes beyond the mere giving of advice and
encouragement and falls under the category of direct aiding and abetting. Plaintiffs have
cited no authority for the proposition that furnishing the means of death—whatever the
means are—is not direct aiding.
Plaintiffs assert prescribing a lethal dose of drugs is not "aid" within the meaning
of section 401 because the physician is unaware of whether the patient will actually have
the prescription filled or take the drugs. Plaintiffs submit that "the physician just makes it
10
possible for the patient to obtain the medication from someone else," a pharmacist, and
thus the "physician's assistance is indirect, not direct." We are unpersuaded. In support
of this theory, plaintiffs rely on Baxter v. State (2009) 354 Mont. 234 [224 P.3d 1211]. In
Baxter, a statute provided "that a person commits the offense of deliberate homicide if
'the person purposely or knowingly causes the death of another human being ' " (id. at
p. 1215), and another statute "establishe[d] consent as a defense, stating the 'consent of
the victim to conduct charged to constitute an offense or to the result thereof is a
defense.' " (Ibid.) Baxter held if the state prosecuted a physician for providing aid-in-
dying to a terminally ill patient, "the physician may be shielded from liability pursuant to
the consent statute." (Ibid.)
Plaintiffs isolate language from Baxter they deem helpful, such as "a physician
who aids a terminally ill patient in dying is not directly involved in the final decision or
the final act." (Baxter v. State, supra, 224 P.3d at p. 1217.) That language, however,
appears in the context of a discussion on whether physician aid-in-dying fell within an
exception to the consent statute for conduct that " 'is against public policy . . . even
though consented to.' " (Id. at p. 1215.) Baxter noted a "survey of courts that have
considered this issue yields unanimous understanding that consent is rendered ineffective
as 'against public policy' in assault cases characterized by aggressive and combative acts
that breach public peace and physically endanger others." (Id. at p. 1216.) Baxter
concluded physician aid-in-dying does not violate public policy because "[e]ach stage of
the physician-patient interaction is private, civil, and compassionate." (Id. at p. 1217.)
Baxter did not interpret a statute similar to section 401 or suggest prescribing a lethal
11
dose of drugs does not constitute furnishing the means of suicide. "An appellate decision
is not authority for everything said in the . . . opinion but only 'for the points actually
involved and actually decided.' " (Santisas v. Goodin (1998) 17 Cal. 4th 599, 620.)
We agree with the trial court's finding that "[w]riting a prescription is direct
participation" for purposes of section 401. A prescription for a lethal dose of drugs is
instrumental in accomplishing a patient's suicide, and thus the act of prescribing is
" 'active and intentional participation in the events leading to the suicide.' " (Ryan N.,
supra, 92 Cal.App.4th at p. 1374.)
B
For the first time on appeal, plaintiffs assert the plain terms of section 401 do not
control because the statute is latently ambiguous in light of its legislative history. They
submit the legislative history shows the Legislature never intended to criminalize the
furnishing of the means of suicide for anyone, let alone physicians.
A statute is ambiguous when it is susceptible to more than one interpretation.
(Coburn v. Sievert (2005) 133 Cal. App. 4th 1483, 1495.) A statute may be ambiguous on
its face or latently ambiguous. (Ibid.) "A latent ambiguity exists where ' "some extrinsic
evidence creates a necessity for interpretation or a choice among two or more possible
meanings." [Citation.]' [Citation.] Such a necessity is present where a literal
construction would frustrate rather than promote the purpose of the statute." (Ibid.)
Defendants object to plaintiffs' latent ambiguity argument on the ground of waiver.
" 'As a general rule, failure to raise a point in the trial court constitutes [a] waiver . . . .' "
(In re Marriage of Priem (2013) 214 Cal. App. 4th 505, 510.) We have discretion,
12
however, to address a pure question of law raised for the first time on appeal. (Id. at
p. 511.) The interpretation of a statute raises a pure question of law (Bettencourt v. City
and County of San Francisco (2007) 146 Cal. App. 4th 1090, 1100), and we consider
plaintiffs' position.
In 1870, a new Code Commission was appointed to codify the laws of California
because "there was a continuous and mounting dissatisfaction with the condition of our
statute law." (Kleps, The Revision and Codification of California Statutes 1849-1953
(1954) 42 Cal. L.Rev. 766, 771 (hereafter Kleps)). Based on the Code Commission's
work, in 1872 the Legislature adopted a new Penal Code, the provisions of which were
generally effective in 1873. (Kleps, supra, at pp. 773-777.)6
"The immediate progenitor of the California Penal Code was the Field Penal Code
in New York, drafts of which were produced in 1864 and 1865." (Mounts, Malice
Aforethought in California: A History of Legislative Abdication and Judicial Vacillation
(1999) 33 U.S.F. L.Rev. 313, 321, fn. omitted.) "The Field Penal Code dealt with suicide
in some detail." (Marzen et al., Suicide: A Constitutional Right?" (1985) 24 Duq. L.Rev.
1, 76.) Concerning assisted suicide, section 230 of the draft Field Penal Code provided at
page 80: "Every person who willfully, in any manner, advises, encourages, abets or
assists another person in taking his own life, is guilty of aiding suicide." Section 231 of
the draft Field Penal Code provided at page 80: "Every person who willfully furnishes
another person with any deadly weapon or poisonous drug, knowing that such person
6 The Legislature adopted amendments to the codes in its 1873-1874 session.
(Kleps, supra, 42 Cal. L.Rev. at p. 778.)
13
intends to use such weapon or drug in taking his own life, is guilty of aiding suicide, if
such person thereafter employs such instrument or drug in taking his own life." (Italics
added.)
Plaintiffs assert the drafters of the Field Penal Code recognized that the "advises,
encourages, abets or assists" language of draft Field Penal Code section 230 was not
broad enough to criminalize furnishing the means of death, and thus a separate statute,
draft Field Penal Code section 231, was required to accomplish that goal. Plaintiffs
reason that because California's section 401 uses the terms "aids, or advises, or
encourages," which are similar to those used in draft Field Penal Code section 230, the
Code Commission intended that section 401 not apply to furnishing the means of suicide.
We disagree with plaintiffs' analysis. We believe it likely that the Code
Commission recognized the term "aids" in section 401 is broad enough to cover
furnishing the means of suicide, and thus an additional statute would be superfluous. The
Code Commission was not required to propose redundancies. Kleps observes the Code
Commission sought to simplify matters and give "only one expression of a particular
rule" (Kleps, supra, 42 Cal. L.Rev. at p. 778, fn. 45), and "[n]o direction to 'codify' the
laws of the state along the lines of Field's New York work can be read into [the] statute"
authorizing the code commission's work. (Id. at p. 773, italics added.)7
7 The Legislature authorized the Code Commission to revise all the statutes of the
state " 'and correct verbal errors and omissions, and suggest such improvements as will
introduce precision and clearness into the wording of the statutes' "; " 'to recommend all
such enactments as shall . . . be necessary to supply the defects of and give completeness
to the existing legislation of the State' "; and " 'to arrange the statutes in the most
14
Plaintiffs assert: "It seems that, in the Code Commission's view, Field Penal Code
section 231 'did not stand the test of examination,' " and thus it did not intend to
criminalize the furnishing of the means of suicide. Plaintiffs, however, concede: "We
can do no more than surmise this, because '[v]ery little record remains of the internal
functioning of the 1870-74 Code Commission . . . ." (Quoting Kleps, supra, 42 Cal.
L.Rev. at p. 773.) Conjecture and speculation are not proper bases for statutory
interpretation. (People v. Barker (2004) 34 Cal. 4th 345, 356; Veguez v. Governing Bd. of
the Long Beach Unified School Dist. (2005) 127 Cal. App. 4th 406, 420, fn. 9.)
Further, the Legislature's conduct after the enactment of section 401 indicates the
statute is intended to criminalize furnishing the means of suicide. California courts have
consistently construed section 401 in that manner, and the Legislature has never offered
any clarification to the contrary. (People v. Matlock, supra, 51 Cal.2d at p. 694; In re
Joseph G., supra, 34 Cal.3d at pp. 431, 439; Ryan N., supra, 92 Cal.App.4th at p. 1383;
People v. Lam, supra, 184 Cal.App.4th at p. 584; McCollum v. CBS, Inc., supra, 202
Cal.App.3d at p. 1007; Bouvia v. Superior Court, supra, 179 Cal.App.3d at p. 1145.) "To
alter the judicial interpretation of a statute the Legislature must alter the statute." (Sharpe
v. Superior Court (1983) 143 Cal. App. 3d 469, 474.) "Where a statute has been construed
by judicial decision, and that construction is not altered by subsequent legislation, it must
systematic and convenient form, and furnish a complete and alphabetical list of the
matters contained therein . . . .' " (Kleps, supra, 42 Cal. L.Rev. at pp. 772-773.)
15
be presumed that the Legislature is aware of the judicial construction and approves of it."
(People v. Hallner (1954) 43 Cal. 2d 715, 719.)8
Additionally, in 1999 the Legislature enacted the Health Care Decisions Law
(Prob. Code, § 4600 et seq.). The measure, effective in 2000, "recognizes that an adult
has the fundamental right to control the decisions relating to his or her own health care,
including the decision to have life-sustaining treatment withheld or withdrawn." (Prob.
Code, § 4650, subd. (a).) The measure expressly permits patients to direct providers to
"withhold, or withdraw artificial nutrition and hydration and all other forms of health
care, including cardiopulmonary resuscitation." (Prob. Code, § 4617, subd. (c).) Probate
Code section 4653 cautions: "Nothing in this division shall be construed to condone,
authorize, or approve mercy killing, assisted suicide, or euthanasia. This division is not
intended to permit any affirmative or deliberate act or omission to end life other than
withholding or withdrawing health care . . . so as to permit the natural process of dying."
(Italics added.) A "postenactment legislative statement, though not binding, is a
'secondarily authoritative expression of expert opinion' " on legislative intent. (People v.
8 Plaintiffs assert we should reject this rule of statutory construction, quoting
Central Bank v. Superior Court (1973) 30 Cal. App. 3d 962, 971, footnote 12, as follows:
" 'It is ironic that an unsound interpretation of a statute should gain strength merely
because it has stood unnoticed by the legislature. It is a mighty assumption that
legislative silence means applause. It is much more likely to mean ignorance or
indifference.' " (Quoting Traynor, Symposium on Law Reform, The Courts: Interweavers
in the Reformation of Law (Can. 1967) 32 Sask. L.R. 201, 211.) Plaintiffs also cite
Witkin, which states the "notion of an alert and omnipresent legislative watchdog is pure
fantasy." (9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 517, p. 585.) We need not
dwell on these unflattering views. Assisted suicide is a controversial topic, and thus we
may reasonably presume the Legislature is well aware of decisions on the issue.
16
Preller (1997) 54 Cal. App. 4th 93, 98; Eu v. Chacon (1976) 16 Cal. 3d 465, 470.) " 'While
"subsequent legislation interpreting [a] statute . . . [cannot] change the meaning [of the
earlier enactment,] it [does] suppl[y] an indication of the legislative intent which may be
considered together with other factors in arriving at the true intent existing at the time the
legislation was enacted." [Citation.]' " (People ex rel. Lockyer v. R.J. Reynolds Tobacco
Co. (2005) 37 Cal. 4th 707, 724.)
We disagree with plaintiffs' assertion that Probate Code section 4653 is merely
"neutral on the subject of aid-in-dying." If that were so, Probate Code section 4653
would serve no purpose. " ' " 'An interpretation that renders related provisions nugatory
must be avoided . . . .' " ' " (United Health Centers of San Joaquin Valley, Inc. v Superior
Court (2014) 229 Cal. App. 4th 63, 80.)
Perhaps most telling, for two decades the Legislature has intermittently attempted
to legalize physician aid-in-dying. (Assem. Bill No. 1080 (1995-1996 Reg. Sess.) [The
Death With Dignity Act]; Assem. Bill No. 1310 (1995-1995 Reg. Sess.) [same]; Assem.
Bill No. 1592 (1999-2000 Reg. Sess.) [same]; Assem. Bill No. 654 (2005-2006 Reg.
Sess. [California Compassionate Choices Act]); Assem. Bill No. 651 (2005-2006 Reg.
Sess. [same]); Assem. Bill No. 374 (2007-2008 Reg. Sess.) [same]; and Sen. Bill No. 128
(2015-2016 Reg. Sess.) [same]; see Prop. 161 (1992) [California voters rejected
physician-assisted death initiative].)9 For Assembly Bill No. 651, the Senate Judiciary
9 We grant the unopposed request of District Attorney Lacey that we take judicial
notice of these bills and this initiative.
17
Committee specifically identified section 401 as existing law proscribing physician aid-
in-dying. (Sen. Judiciary Com., analysis of Assem. Bill No. 651 (2005-2006 Reg. Sess.)
p. 5.) For Assembly Bill 15, the Senate Rules Committee noted existing law "[m]akes it a
felony to deliberately aid, or advise, or encourage another to commit suicide," which is
the language of section 401. (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading
analysis of Assem. Bill 15, as amended Sept. 3, 2015, p. 2.) These multiple attempts and
the recently enacted End of Life Option Act (Assem. Bill 15) demonstrate the
Legislature's acknowledgment that section 401 currently criminalizes the furnishing of
the means of suicide. " 'Under the rules governing statutory construction, when the
Legislature enacts an amendment [or new statute on the issue], we presume it that this
" 'indicates that it thereby intended to change the original act by creating a new right or
withdrawing an existing one.' " [Citation.]' " (City of Irvine v. Southern California Assn.
of Governments (2009) 175 Cal. App. 4th 506, 522.)
We conclude the legislative history of section 401 does not support plaintiffs'
position, and under the statute's plain terms it proscribes furnishing the means of
suicide.10 " 'We have no general power to rewrite statutes to conform to some
10 We disagree with plaintiffs' assertion the rule of lenity should apply. " 'That rule
generally requires that "ambiguity in a criminal statute should be resolved in favor of
lenity, giving the defendant the benefit of every reasonable doubt on questions of
interpretation. But . . . 'that rule applies "only if two reasonable interpretations of the
statute stand in relative equipoise." [Citation.]' [Citations.]" [Citations.]' [Citation.]
'The rule of lenity does not apply every time there are two or more reasonable
interpretations of a penal statute. [Citation.] Rather, the rule applies " 'only if the court
can do no more than guess what the legislative body intended; there must be an egregious
18
underlying "policy." As a rule, there can be no intent in a statute not expressed in its
words . . . .' " (In re San Diego Commerce (1995) 40 Cal. App. 4th 1229.)
II
"As Applied" Constitutional Challenge
A
Alternatively, plaintiffs contend section 401—"as applied" to any physician who
may prescribe a lethal dose of drugs to a terminally ill patient competent to make medical
decisions—violates the patient's state constitutional right of autonomy privacy.11 This
contention also presents an issue of first impression.
"The courts will presume a statute is constitutional unless its unconstitutionality
clearly, positively, and unmistakably appears; all presumptions and intendments favor its
validity." (People v. Falsetta (1999) 21 Cal. 4th 903, 912-913.) The party arguing
unconstitutionality has the burden of proof. (In re York (1995) 9 Cal. 4th 1133, 1152.)
"An as applied [constitutional] challenge may seek (1) relief from a specific
application of a facially valid statute or ordinance to an individual or class of individuals
who are under allegedly impermissible present restraint or disability as a result of the
manner or circumstances in which the statute or ordinance has been applied, or (2) an
injunction against future application of the statute . . . in the allegedly impermissible
ambiguity and uncertainty to justify invoking the rule.' " [Citation.]' " (People v. Nuckles
(2013) 56 Cal. 4th 601, 611.) Such is not the case here.
11 Plaintiffs have abandoned their arguments at the trial court that section 401 also
violates their state constitutional rights to liberty, free speech, and equal protection.
19
manner it is shown to have been applied in the past. It contemplates analysis of the facts
of a particular case or cases to determine the circumstances in which the statute . . . has
been applied and to consider whether in those particular circumstances the application
deprived the individual to whom it was applied of a protected right." (Tobe v. City of
Santa Ana (1995) 9 Cal. 4th 1069, 1084.) "If a plaintiff seeks to enjoin future, allegedly
impermissible, types of application of a facially valid statute or ordinance, the plaintiff
must demonstrate that such application is occurring or has occurred in the past." (Ibid.)
B
Article I, section 1 of the California Constitution provides: "All people are by
nature free and independent and have inalienable rights. Among these are enjoying and
defending life and liberty, acquiring, possessing, and protecting property, and pursuing
and obtaining safety, happiness, and privacy." (Italics added.) "The phrase 'and privacy'
was added . . . by an initiative adopted by the voters on November 7, 1972 (the Privacy
Initiative. . .)." (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal. 4th 1, 15 (Hill).)
We must interpret and apply the Privacy Initiative in a manner consistent with the
probable intent of the voters of California. (Legislature v. Eu (1991) 54 Cal. 3d 492, 505.)
"When, as here, the language of an initiative measure does not point to a definitive
resolution of a question of interpretation, ' "it is appropriate to consider indicia of the
voters' intent other than the language of the provision itself." . . . Such indicia include the
analysis and arguments contained in the official ballot pamphlet.' " (Hill, supra, 7
Cal.4th at p. 16.)
20
The official ballot pamphlet of the Privacy Initiative indicates voters were
concerned about "information-amassing practices of both 'government' and 'business.' "
(Hill, supra, 7 Cal.4th at pp. 16-17.) The argument for the initiative "emphasized the
capacity of both governmental and nongovernmental agencies to gather, keep, and
disseminate sensitive personal information without checking its accuracy or restricting its
use to mutually agreed or otherwise legitimate purposes." (Id. at p. 17.) A "reasonable
voter would most likely have concluded he or she was casting a ballot to safeguard his or
her personal privacy against private as well as government entities." (Id. at p. 20, fn.
omitted.)
However, "[a]utonomy privacy is also a concern of the Privacy Initiative. The
ballot arguments refer to the federal constitutional tradition of safeguarding certain
intimate and personal decisions from government interference in the form of penal and
regulatory laws. [Citation.] But they do not purport to create any unbridled right of
personal freedom of action that may be vindicated in lawsuits against either government
agencies or private persons or entities. [¶] Whether established social norms safeguard a
particular type of information or protect a specific personal decision from public or
private intervention is to be determined from the usual sources of positive law governing
the right to privacy—common law development, constitutional development, statutory
enactment, and the ballot arguments accompanying the Privacy Initiative." (Hill, supra,
7 Cal.4th at p. 36, italics added.)
Plaintiffs point out that under California Supreme Court authority interpreting the
constitutional right of privacy, a person has a "fundamental right of self-determination" to
21
refuse or have terminated any type of medical treatment, even when doing so "will cause
or hasten death." (Thor v. Superior Court (1993) 5 Cal. 4th 725, 732.) This "preeminent
deference derives principally from 'the long-standing importance in our Anglo-American
legal tradition of personal autonomy and the right of self-determination.' " (Id. at p. 734.)
Further, "the interest in autonomy privacy protected by the California constitutional
privacy clause includes a pregnant woman's right to choose whether or not to continue
her pregnancy." (American Academy of Pediatrics v. Lungren (1997) 16 Cal. 4th 307,
332.) This "right to choose . . . implicates a woman's fundamental interest in the
preservation of her personal health (and in some instances the preservation of her life),
her interest in retaining personal control over the integrity of her own body, and her
interest in deciding for herself whether to parent a child." (Ibid., fns. omitted.)
Here, the trial court relied on Donaldson, supra, 2 Cal. App. 4th 1614, and we also
find the opinion instructive despite significant factual distinctions. In Donaldson,
plaintiff Donaldson had an inoperable brain tumor and an estimated life expectancy of
five years from the date of diagnosis. He wanted "to be cryogenically suspended,
premortem, with the assistance of [plaintiff] Mondragon and others. This procedure
would freeze Donaldson's body to be later reanimated when curative treatment exist[ed]
for his brain cancer. Following cryogenic suspension, Donaldson [would] suffer
irreversible cessation of circulatory and respiratory function and irreversible cessation of
all brain function. [¶] He [would] be dead according to the definition of death" under
California law. (Id. at p. 1618.)
22
Donaldson sought a judicial declaration he had a constitutional privacy right to
fulfill his plan with the aid of third parties. He wanted Mondragon to " 'advise and
encourage' " him " 'to minimize the time between his legal death and the onset of the
cryogenic suspension process.' " (Donaldson, supra, 2 Cal.App.4th at p. 1618.)
"Recognizing that Mondragon [would] be committing a homicide, or alternatively, aiding
and advising a suicide, Donaldson and Mondragon [sought] an injunction protecting
Mondragon from criminal prosecution." (Id. at pp. 1618-1619.)
Donaldson affirmed the sustaining of defendants' demurrer to the complaint
without leave to amend. (Donaldson, supra, 2 Cal.App.4th at pp. 1619, 1625.) As do
plaintiffs here, Donaldson relied on opinions pertaining to a patient's right to refuse
medical treatment. Donaldson explains: "It is one thing to take one's own life, but quite
another to allow a third person assisting in that suicide to be immune from investigation
by the coroner or law enforcement agencies. [¶] In such a case, the state has a legitimate
compelling interest in protecting society against abuses. This interest is more significant
than merely the abstract interest in preserving life no matter what the quality of that life
is. Instead, it is the interest of the state to maintain social order through enforcement of
the criminal law and to protect the lives of those who wish to live no matter what their
circumstances. This interest overrides any interest Donaldson possesse[d] in ending his
life through the assistance of a third person in violation of the state's penal laws. We
cannot expand the nature of Donaldson's right of privacy to provide a protective shield
for third persons who end his life." (Id. at p. 1622, italics added.) The court added that
"[i]n the case of assisted suicides, . . . the state has an important interest to ensure that
23
people are not influenced to kill themselves. The state's interest must prevail over the
individual because of the difficulty, if not the impossibility, of evaluating the motives of
the assister or determining the presence of undue influence." (Id. at p. 1623; Thor v.
Superior Court, supra, 5 Cal.4th at p. 744 [citing Donaldson for proposition there is
"criminal liability for assisting suicide"].)
In addition to Donaldson, the trial court here relied on Glucksberg, supra, 521
U.S. 702, in which the United States Supreme Court rejected the contention that as
applied to physician aid-in-dying, Washington state's ban on suicide violated the liberty
interest protected by the due process clause of the Fourteenth Amendment to the federal
Constitution.12 (Glucksberg, supra, 521 U.S. at p. 735.) The court inquired whether
"this asserted right has any place in our Nation's traditions" (id. at p. 723), and answered
it in the negative, noting: "We are confronted with a consistent and almost universal
tradition that has long rejected the asserted right, and continues explicitly to reject it
today, even for terminally ill, mentally competent adults. To hold for respondents, we
would have to reverse centuries of legal doctrine and practice, and strike down the
considered policy choice of almost every State." (Id. at p. 723, italics added.)
The court concluded Washington's suicide ban was rationally related to legitimate
government interests, including an " 'unqualified interest in the preservation of human
life' " (Glucksberg, supra, 521 U.S. at p. 728), interests in "protecting the integrity and
12 Washington is now one of the few states legislatively legalizing physician aid-in-
dying. (Wash. Rev. Code Ann. § 70.245.10 et seq. (2009); see Or. Rev. Stat. Ann.
§ 127.800 et seq. (1995); Vt. Stat. Ann., title 18, § 5281 et seq. (2013).)
24
ethics of the medical profession" (id. at p. 731), "protecting vulnerable groups—including
the poor" (ibid.), and the "fear that permitting assisted suicide will start it down the path
to voluntary and perhaps even involuntary euthanasia." (Id. at p. 732.) Glucksberg
noted: "Throughout the Nation, Americans are engaged in an earnest and profound
debate about the morality, legality, and practicality of physician-assisted suicide. Our
holding permits this debate to continue, as it should in a democratic society." (Id. at
p. 735.)
Further, the trial court here relied on Vacco, supra, 521 U.S. 793, in which the
United States Supreme Court rejected the contention that as applied to physician aid-in-
dying, New York statutes banning assisted suicide violates the equal protection clause of
the Fourteenth Amendment. Plaintiffs' theory was that for terminally ill patients the
refusal of medical treatment and physician-aid-in-dying are essentially the same, and the
legality of the former and illegality of the latter constitutes differential treatment. (Id. at
pp. 797-798.) The court concluded the statutes "affect and address matters of profound
significance to all New Yorkers alike" (id. at p. 799), and thus they "neither infringe
fundamental rights nor involve suspect classifications" and are "entitled to a 'strong
presumption of validity.' " (Id. at p. 800.)
The court disagreed that refusing or ending medical treatment, which may hasten
death, " 'is nothing more nor less than assisted suicide.' " (Vacco, supra, 521 U.S. at
p. 800.) Rather, "the distinction between assisting suicide and withdrawing life-
sustaining treatment, a distinction widely recognized and endorsed in the medical
profession and in our legal traditions, is both important and logical; it is certainly
25
rational." (Id. at pp. 800-801, fn. omitted.) "The distinction comports with fundamental
legal principles of causation and intent. . . . [W]hen a patient refuses life-sustaining
medical treatment, he dies from an underlying fatal disease or pathology; but if a patient
ingests lethal medication prescribed by a physician, he is killed by that medication." (Id.
at p. 801.)
Plaintiffs assert we should not rely on Glucksberg or Vacco because they pertain
to federal constitutional rights, and our state Constitution provides greater privacy
protection. "[N]ot only is the state constitutional right of privacy embodied in explicit
constitutional language not present in the federal Constitution, but past California cases
establish that, in many contexts, the scope and application of the state constitutional right
of privacy is broader and more protective of privacy than the federal constitutional right
of privacy as interpreted by the federal courts." (American Academy of Pediatrics v.
Lungren, (1997) 16 Cal. 4th 307, 326.) Plaintiffs, however, do not specify how the scope
of the state constitutional right of privacy is broader than the federal right in this
particular circumstance. They do not parse out why the reasoning of Glucksberg or
Vacco is ostensibly inapplicable.
Further, plaintiffs cite no authority for the proposition we must ignore federal
opinions on an important issue of public policy, and we decline to do so in this case,
particularly because the autonomy privacy interest under the California Constitution
derives from federal law. (Hill, supra, 7 Cal.4th at pp. 35-36.) Additionally, we may
give even dicta persuasive weight when "it demonstrates a thorough analysis of the issue
26
or reflects compelling logic." (Smith v. County of Los Angeles (1989) 214 Cal. App. 3d
266, 297.)
Plaintiffs assert terminally ill patients have an autonomy privacy interest in having
assistance in committing suicide, and thus the state must have a compelling interest in
enforcing section 401 against physicians in such circumstances. We disagree. In Hill,
supra, 7 Cal.4th at pages 34 to 35, the court declined "to hold that every assertion of a
privacy interest under article I, section 1 must be overcome by a 'compelling interest.' "
The "particular context, i.e., the specific kind of privacy interest involved and the nature
and seriousness of the invasion and any countervailing interests, remains the critical
factor in the analysis. Where the case involves an obvious invasion of an interest
fundamental to personal autonomy, e.g., freedom from involuntary sterilization or the
freedom to pursue consensual familial relationships, a 'compelling interest' must be
present to overcome the vital privacy interest. If, in contrast, the privacy interest is less
central, or in bona fide dispute, general balancing tests are employed." (Id. at p. 34,
italics added, fn. omitted.)
Plaintiffs have cited no authority from any jurisdiction suggesting assistance of a
third party in committing suicide is an interest fundamental to personal autonomy. In
California, the issue of whether physician aid-in-dying should be de-criminalized has
been the subject of discussion for a lengthy period, and the issue remains in dispute
today. In any event, California does have compelling interests in enforcing section 401 in
the context of physician-assisted suicide. These interests are expressed in Donaldson,
Glucksberg, and Vacco, and we need not repeat them here.
27
Setting aside personal views and having found no legal support for plaintiffs'
position, we agree with the Attorney General that the controversial issue of physician aid-
in-dying is for the Legislature. We also agree Assembly Bill 15 "demonstrates the
Legislature's view that, if an exception for physician assistance is allowed, it must be
accompanied by specific, detailed safeguards that are not present in [plaintiffs'] proposed
construction" of section 401. To that end, the End of Life Option Act provides for the
addition of 24 statutes to the Health and Safety Code. (Assem. Bill 15, § 1.)13 If the law
were changed by judicial opinion, these extensive safeguards would not be in place. (See
Carroll v. Interstate Brands Corp. (2002) 99 Cal. App. 4th 1168, 1177 ["We believe . . .
the task of designing protective procedures should be left to the Legislature, and decline
to impose a set of procedural rules by judicial fiat."].)
C
In their reply brief, plaintiffs attempt to assuage concerns about the absence of
safeguards should we rule in their favor. They propose that we condition our ruling on
13 For instance, before obtaining a prescription for a lethal dose of drugs a terminally
ill patient must submit two oral requests to his or her physician, a minimum of 15 days
apart, and a written request that meets specified criteria, including the signatures of two
witnesses. (Assem. Bill 15, § 1.) Before issuing such a prescription, a physician must
adhere to numerous requirements, including determining whether the patient has the
capacity to make medical decisions, whether the patient has a terminal illness, whether
the request is voluntary, and whether the patient is making an informed decision. The
physician must inform the patient of his or her diagnosis and prognosis, the potential
risks of ingesting the drug, and feasible alternatives or additional treatment options,
including comfort care, hospice care, palliative care, and pain control. (Ibid.) Further,
Assembly Bill 15 specifies that "a qualified individual's act of self-administering an aid-
in-dying drug shall not have an effect upon a life, health, or annuity policy other than that
of a natural death from the underlying disease." (Ibid.)
28
their "voluntary compliance with the terms" of Assembly Bill 15 "as if it were presently
in effect." They also suggest that, faced with a judicial opinion approving physician aid-
in-dying, "to bridge any gap between the finality of a judgment in [their] favor and the
currently delayed effective date" of Assembly Bill 15, the Legislature may make the
measure effective immediately through "urgency legislation," or make it effective sooner
by "promptly adjourn[ing] the current special session."
" ' " 'Obvious considerations of fairness in argument demand that the appellant
present all of his points in the opening brief. To withhold a point until the closing brief
would deprive the respondent of his opportunity to answer it or require the effort and
delay of an additional brief by permission.' " ' " (Proctor v. Vishay Intertechnology, Inc.
(2013) 213 Cal. App. 4th 1258, 1273.) This " ' "should undoubtedly be the rule where no
good reason appears for the omission to make the point in the opening brief . . . ." ' " (Id.
at p. 1274.)
We note, however, that there are several problems with plaintiffs' proposal. For
instance, it is not this court's province to monitor plaintiffs' postjudgment conduct.
Further, our decision would have far-reaching consequences; it would not merely apply
narrowly to Dr. Cederquist. Plaintiffs do not argue section 401 is unconstitutional as
applied only to Dr. Cederquist, but to California physicians in general. Additionally,
Dr. Cederquist's voluntary compliance with a measure that is not yet effective obviously
does not protect her from potential prosecution under section 401. Indeed, that is why the
parties agreed this appeal is not moot in light of Assembly Bill 15. Also, we may not
reasonably presume that if we ruled in plaintiffs' favor the Legislature would immediately
29
make Assembly Bill 15 effective. Perhaps the Legislature declined to enact Assembly
Bill 15 as an emergency measure to give opponents the opportunity to speak up before its
effective date.
DISPOSITION
The judgment is affirmed. Defendants are entitled to costs on appeal.
McDONALD, J.
WE CONCUR:
HALLER, Acting P. J.
AARON, J.
30