Frederick v. Justice Court

California Court of Appeal Apr 29, 1975 No. Civ. 44917Published

Before: Cobey

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Holding. A trial court lacks the inherent power to condition a criminal defendant's statutory diversion on the waiver of a constitutional right, such as the right to be free from unreasonable searches and seizures, when that condition is not specified or implied by the diversion statutes.

Issues

Does a court have the inherent power to add a condition to a diversion order that requires the waiver of a fundamental constitutional right not specified in the diversion statutes?

Disposition. reversed

Quotations verified verbatim against the opinion

“This it had no power to do with respect to a program wholly the creature of statute and unknown to the common law.”

“the opportunity for diversion be free from restrictive conditions not actually written into them by the Legislature.”

“this lack of statutory authorization and the lack as well of a compelling necessity therefor placed the imposition of this condition of an express waiver of a constitutional right beyond the court’s powers”

Opinion

COBEY, J.

Petitioner, Robert Allen Frederick, appeals from an order of the superior court denying him a writ of mandate directing respondent justice court, in effect, to order the diversion of his criminal prosecution for violation of Health and Safety Code section 11377 (former § 11910), possession of amphetamines, a misdemeanor, pursuant to Penal Code section 1000 et seq., without including the following condition—that

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petitioner permit his person, residence, automobile and possessions to be inspected or searched for contraband by his probation officer or any law enforcement officer at any time during the period of the diversion without prior notice.

The superior court found, in effect, that the condition was a reasonable one and therefore valid.

The appeal lies. (See Code Civ. Proc., §§ 1110, 904.1, subd. (a); 6 Witkin, Cal. Procedure (2d ed. 1971) Appeal, § 55, pp. 4069-4070.)

The question presented is whether a court has the inherent power to add as a condition to its order of diversion an express waiver of a fundamental constitutional right that is neither specified nor implied in the statutes authorizing diversion. Here, petitioner met the four conditions of eligibility for diversion enumerated in Penal Code section 1000, ■subdivision (a). The district attorney concurred.

Petitioner indicated his willingness to consent to the proposed diversion and to waive as an incident thereof his constitutional and statutory right to a speedy trial. The probation officer, following an investigation, reported that he also recommended the proposed diversion and respondent court, after a hearing, determined, in effect, that petitioner met all the requirements specified in Penal Code sections 1000.1, subdivision (a), and 1000.2, but then announced that it would order the diversion of petitioners criminal case only if petitioner also consented to the additional .condition at issue.

Discussion

Other divisions of this statewide court have taken the view, in effect, that the diversion alternative to criminal prosecution is wholly statutory in scope and, therefore, neither district attorneys nor courts generally are free to deviate from it. In

Frederick v. Justice Court

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COBEY, J.

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