*1 No. 31079. May [L.A. 1979.] PEOPLE, Petitioner,
THE THE SUPERIOR OF COUNTY, COURT ORANGE Respondent; JAMES DEWITT DOUGLASS, Real in Interest. Party
Counsel Hicks,
Cecil District Michael R. Assistant District Attorney, Capizzi, D. John Oretta D. Snethen, Sears and Eric W. Attorney, Conley, Deputy District for Petitioner. Attorneys,
No appearance Respondent. A.
James Stotler for Real in Interest. Party
Opinion MANUEL, J. —In this mandate we must decide whether a proceeding violation of Business and 2399.5, Professions Code section which states that it conduct or furnish prescribe, dispense without a faith examination medical dangerous drugs good prior therefor, a misdemeanor under section 2426 of that indication not. We conclude that does code.1 in an amended wаs interest James charged
Real Douglass party of section violations court with numerous in the municipal complaint in a trial case-in-chief jury, At the close of the 2399.5. prosecution’s and for case for lack dismiss the moved jurisdiction Douglass denied, and The motions were thereupon Douglass judgment acquittal. court for a writ of prohibition. superior petitioned court issued peremptory After parties, superior argument by court from further writ of proceed municipal restraining on the 2399.5 defined *4 unprofessional ground ings not a and to administrative hearing by only subject misdemeanor.2 as a crime to subject prosecution
The
in the Court of
and also
a writ of mandate
People appealed
sought
Court of
to vacate its order. The
the
court
Appeal
compel
superior
writ,
without
alternative
issued
issued an
peremptory
Appeal,
having
of
court to vacate its order and
writ mandate
the superior
commanding
recall
writ of
We
its
petition
hearing
prohibition.
granted Douglass’
and issued an alternativе writ. The
of the
remedy
People’s
by
inadequacy
when it issued
was determined
Court
Appeal
appeal
by
678,
3 Cal.3d
writ.
Court
(Mannheim
(1970)
peremptoiy
Superior
585,
69 Cal.2d
478 P.2d
Miller v.
Court
17];
(1968)
Superior
14,
583,
Sections part Business and Professions 5 of the 2000-2528.3), which (§§ of the 1937 as codification enacted in was part Code. 1937, 1377; 1937, 414, Stats. ch. Code. (Stats. Business and Professions p. of number of articles 5 is dealing ch. comprised p. Chapter and such as The with various Surgeon’s Application Physician’s topics Denial, 12), 5), 10), (art. Examinations (art. (art. Suspension Registration 14). and Pеnalties (art. and Crimes 13), and Revocation (art. indicated, and to the Business are hereafter 1 Unless otherwise all references statutory
Professions Code. in criminal an ongoing of a writ of restrain further proceedings 2 Issuance so, we the court’s to have done we do not question power trial is unusual. Although jury procedure, of such action. Considerations orderly do appropriateness question view, in the most compelling that such be exercised power sparingly our require has attached. trial is underwаy jeopardy a criminal jury of circumstances once Section 2426 is in article Crimes and Penalties. It states: “Unless it is otherwise who violates expressly provided, any person, of a misdemeanor and shall be a fine of chapter, guilty punished by not less than one hundred nor dollars more than six dollars or hundred terma of not less than nor more than one imprisonment sixty days hundred both such fine and This eighty days imprisonment.” section was codification 1937 and has never been part original amended. Stats. ch. (See p. 2399.5,
Section enacted in 1959 is in 3324), 13, Denial, article and Revocation. Section 2399.5 at the time Suspension were or furnish- charges brought provided: “Prescribing, dispensing as defined in section 4211 of the Business and ing dangerous drugs Professions Code without a faith examination and medical good prior therefor, indication conduct within the mean- ing chapter.”3 contend that since section 2399.5 People otherwise,
since it does not a violation of section 2399.5 expressly provide constitutes a misdemeanor as in section 2426. assert that a provided They *5 review of the framework of 5 reveals that the must chapter have intended that section 2426 of violations the sections apply Indeed, conduct. We our review of defining the unprofessional disagree. framework indicates an intent to the statutory contrary.
The of 5 at issue in this case are similar to provisions those chapter contained in a number of other of the Business and chapters Professions trades, Code and businesses. The of governing professions interpretation 3 The section was amended in 1978 No. 7 Adv. Deering’s 1685) Service the Legis. by (a)- in a new including quoted subdivision and follows; (b) subdivision as adding “(b) No and shall physician be found have committed surgeon if, conduct within (a) of subdivision at the time meaning were drugs prescribed, (1) or furnished: The dispensed, and physician was a surgeon designated physician [¶] in the absence of the serving patient’s such were physician, provided drugs prescribed, dispensed, furnished as to maintain the until the return of his necessary patient hours; (2) but in case no than 72 physician, The and any longer physician surgeon transmitted the order for such to a nurse in an drugs registered inpatient facility provided that such and has consulted with a nurse who has reviewed physician surgeon registered records and that such and patient’s provided was physician surgeon designated (3) to serve in the absence of the physician patient’s physician; physician was a in the absence of the surgeon designated physician serving patient’s physician of or was had utilized the records and ordered the renewal of a possession patient’s indicated for an amount medically prescription exceeding original prescription or amount or for more than one strength refilling.” an General’s such was considered in Attorney opinion given provisions 12, the Funeral to a Directors response question regarding We Embalmers Law find (§ 7600). (29 (1957).) Ops.Cal.Atty.Gen. to the in that sound and opinion apply by analogy provisions reasoning at issue in this case. noted, 2426 states that unless otherwise
As previously violation of the 5 is a misdemeanor any provisions provided in a manner. 5 includes number punishable Chapter 2361 in conduct.” Section part concerning “unprofessional provisions to take directs the Division of Medical against disciplinary Quality Such conduct.” holder of a certificate who is guilty “unprofessional any of the Administra- action is to be the provisions governed by number tive Procedure Act. Section section 2399.5 and a (§ stated to constitute other sections acts or omissions which are specify 2361.8, 2377-2399, 2409, conduct.” (See “unprofessional Several acts which are stated to constitute conduct” “unprofessional likewise, sections, are other denounced as crimes. This has been true since the was enacted in 1937. For under a example, practicing name other than that in one’s certificate without a given special permit therefor constitutes conduct” and is a misde- (§ 2393) “unprofessional meanor 2429). letters, (§ use the holder of certificate of any words or terms that he is entitled to indicating practice system the sick for which he is not licensed is conduct” treating “unprofessional 2395) and also а (§ 2142). misdemeanor The misuse of alcoholic (§ so that it a certificate holder’s beverages impairs ability practice safely on the conduct” and is a (§ 2390) public “unprofessional *6 misdemeanor if on such misuse occurs while in actual attendance patients (§ 2435). The conviction of certain crimes also declared to be is 2383, conduct” 2384). (§§ “unprofessional
It thus that where the intended to make appears Legislature act criminal an or omission as constituting unprofessional specified Further conduct it has so stated without resort to section 2426. expressly indication of such an intent is found in the amendment Legislature’s 1974, 888, 5 in 1974 in Bill No. 4469. Assembly 1886.) bill, That other amended section 2399.5 among things, by the words or reduced the for a standard adding “dispensing furnishing,” conduct” under section 2361 from finding “unprofessional “gross 2428.5, to and added section which incompetence” “incompetence,” made the alteration of a medical record with fraudulent intent expressly 434 both a misdemeanor and a action. by physician ground disciplinary stated; Counsel’s of the bill thе law “Revises Legislative digest to the revocation or licenses State issued under the
relating
suspension of
Medical Practice Act. Makes it a misdemeanor for
any
[If]
physician
...
to
alter
the medical record of
surgeon
modify
person
such
to
. . . .”
in
subjects
(Italics
person
original.)
in
criminal
the bill affects
as it
insofar
Nothing
suggests
digest
liability
to sections 2399.5 and 2361.
also Review
1974
pertains
(See
Selected
6 Pacific L.J.
It
(1975)
is reasonable to
Legislation
California
that the
amended those sections with the intent and
presumе
in the
Counsel’s
Maben
(See
meaning expressed
Legislative
digest.
708,
Court
(1967)
439].)
Superior
Cal.App.2d
[63
is entitled
little
in
Although
legislation
subsequent
weight
construing
statutes,
earlier
without
v. Arnett
(Mattz
always
significance.
481, 505,
92, 107,
(1973) 412 U.S.
fn. 25
L.Ed.2d
435
for
not identical to those
misdemeanors
Penal Code
2426 are
section
19,
when
2426
identical
section
was enacted. (Stats.
nor were
they
399,
1279.)
ch.
p.
are to be construed
a
statute
penal
provisions
Generally,
terms,
a view to effect its
of their
with
to the fair
objects
according
import
4;
22 Cal.3d
Code,
v.
(1978)
(Pen.
§
People King
promote justice.
the statute is
(2c) When
2426 as alleged applying We define 2399.5 other sections which only. or 9 v. Berkowitz (1977) Cal.App.3d Supp. disapprove People Michals (1974) 313], Cal.App.3d People are inconsistent with to the extent 892], opinion. they writ and the The alternative writ of mandate is discharged peremptory of mandate denied.
Bird, J., Tobriner, Mosk, J., Newman, J., J., C. concurred. RICHARDSON, J. —I dissent. following analysis respectfully thаt conclusion leads me to the inevitable relevant provisions statutory established, misdemeanor and is conduct, constitutes a real if party’s is accused as such. Real prescribing party properly punishable and medical examination without prior furnishing dangerous drugs Such conduct “unprofes- indication therefor. expressly proscribed Professions Business and 2399.5 of the conduct” under section sional of that in section 2361 turn, is defined conduct” Code. In “unprofessional or term of this . . . code as “(a) Violating including Finally, [i.е., through 2528.3].” containing had in each section. been in lieu of the specific provisions omnibus penalty provision that “for a part 24 provided pertinent Section misdemeanor, act, of a the said violator shall be guilty violation of any provision act, a fine of in this and shall be punished by unless otherwise specifically provided six hundred dollars imprisonment nor more than less than hundred dollars one both such than one hundred not less than nor more eighty days term of sixty days fine and imprisonment.” not intended to make every that seсtion 2426 was thus indicates legislative history misdemeanor, a standardized but rather provide violation of a rule of conduct the various misdemeanor offenses. penalty *8 that “Unless it section is otherwise provided, provides aof of this who violates guilty chapter, any provision person . . . Real and shall be misdemeanor party’s punished specified] [as which violated conduct” conduct was. “unprofessional alleged conduct constituted a misdemean- the code. It follows that such 2399.5 of 2426. or under section of the
In I and probing cogent analysis amplification, adopt contained in the of Justice Kaufman relevant statutes opinion writing District, Two, Division in this case. In the Fourth pertinent Appellate Justice Kaufman’s reads as follows: part, opinion 5 of the and Professions Code constitutes the Business Chapter chapter Act. 2000.) on medicine and is referred to as the State Medical Practice (§ 1937, 414, It in 1937 as of a codification. ch. (Stats. was enacted part 1377; 1937, 399, It of a number Stats. ch. p. comprised p. with but related and аrticles variously separate perhaps topics dealing Students,” titled, “The and Sur- for Medical “Loans Physician’s e.g., “Denial, “Examination,” and Revoca- Suspension geon’s Application,” and “Medical 14), Penalties” 13), (art. tion” “Crimes and (art. Corpora- tions.” Penalties) and found in article 14 (Crimes
Section 2426 is who it is otherwise and reads: “Unless person, expressly provided, any and shall misdemeanor violates chapter, guilty nor more than hundred dollars a fine of not less than one be punished by than for a term of not less six hundred dollаrs sixty by imprisonment such fine and both nor more than one hundred eighty days days This section was added.) (Italics part original imprisonment.” Stats. ch. codification in 1937. (See p. 2399.5, 3324) in 1959 ch. (Stats.
Section first enacted p. is found in article 1888) last amended in 1974 5 and Revocation) (Denial, provides: Suspension as defined furnishing dangerous drugs “Prescribing, dispensing Code without a faith 4211 of the Business and Professions good therefor, constitutes and medical indication examination unprofes- prior added.) within the (Italics sional conduct chapter.” meaning within 2399.5 is a is that section provision People’s position does not that its violation 5, that it does not expressly provide that, therefore, crime, violation constitute a party’s]
437 of section 2399.5 constitutes a misdemeanor as in 2426. provided is sound. People’s position contends that section 2399.5 does not a define criminal party]
[Real offense because it does not with the definition of crime or comport offense found in Penal Code section 15. That section reads in public “A crime or is an offense act cоmmitted or pertinent omitted part: public in violation of law it, which is forbidding commanding annexed, conviction, either of the . . upon . following punishments: [¶] 2. Fine; 3. . . .” It is true as [If] Imprisonment; asserts [If] party] [real the Penal Code section 15 are in requisites specified the conjunctive and that not must one of the be punishments requisite prescribed violation but act some must be (McComb or commanded. v. prohibited Court, 68 Superior 89, at 96-97 Cal.App.3d 233]; pp. [137 People Crutcher, v. 262 750, 754 Cal.App.2d Nevertheless, 904].) [68 Cal.Rptr. contention [real party’s] nоt meritorious. act,
It is not that the of the command to do it specification required it, or refrain from and the doing penalty specification requisite its violation code section. It is a common all be included the same to indicate in section that one commission legislative practice sections a crime and omission acts other code specified 1090-1096, 1097; Code, Gov. in a (See, §§ punishable way. specified e.g., Watson, 15 Health & Saf. v. 28 860]; People Cal.App.3d [92 11374; Code, 11170.5], 11173 11174 11170], § [formerly [formerly Oviedo, v. P.2d 612]; 690 Kennеdy, People Cal.App.2d People Code, 1265 and 192-193 Pol. § P.2d Cal.App.2d 224] [former not be Code, Indeed, former Pen. 61].) § punishment may requisite Penal Code code at all but in the related only by cases, are construed sections 18 or In such code sections 19.2 several 193; Code Civ. at see together. Cal.App.2d {People Kennedy, Proc.,
Read sections 2426 and 2399.5 together, fully satisfy requirements of Penal Code section 15. forbid They prescribing, dispensing without a faith examination furnishing drugs good prior dangerous therefor; medical such tо be a misde- indication declare they violation, meanor and fine and prescribe, upon imprison- punishment punishment 2 Penal Code 18 reads in cases where a different part: “Except state, ... a felony offense declared be prescribed law by any every [is to the Penal Code section 19 is identical in a punishable specified way].” language and the prescribed of section 18 that it relates misdemeanors quoted except is, course, less severe. punishment It ment. is not contends, that the necеssary, be party] in such terms as “no . shall. .” or “it expressed shall be unlawful person *10 to . . . .” Penal Code section 15 does not the conduct require proscribed to be forbidden in certain It is true that section 2399.5 any language. states that the conduct constitutes con- only proscribed unprofessional duct. But that alone indicates the conduct is language certainly event, however, In section 2426 that permitted. any provides a violation of misdemeanor, of this is a “any provision chapter” section 2399.5 is a within the same as section 2426. A provision statute that certain conduct constitutes a misdemeanor is at declaring unlawfulness, least to a of declaration which equivalent party] [real concedes is a sufficient to Penal Code section 15. satisfy
While assertion that no case has party’s] [real a reported upheld conviction for violation of section 2399.5 correct, to be appears People Berkowitz, v. 68 9 court, the Cal.App.3d 313], Supp. it reversed the convictions on the counts based on although section 2399.5 on basis, another assumed violation of that section would constitute a crime, Michals, and in People 892], Cal.App.3d the court in a dictum stated that a violation of Business and Professions Code section 2390 constitutes a misdemeanor. The pertinent section 2390 is: “The use or himself, for or to prescribing administering . . . narcotic ... extent, or of alcoholic to the or in any drug beverages such manner as to be to a dangerous injurious person holding 'certificate under this or to other or to the . . . chaрter, any person public constitutes conduct within the unprofessional meaning chapter.” (Italics added.) contention that the statute insufficient
Similarly, party’s] gives [real directed, notice of the conduct to whom it prohibited, persons the fact that in the conduct crime is engaging prohibited without merit because it takes no account of section 2426. principally Crutcher, Unlike the code sections involved in People supra, 753-755, at section 2399.5 without Cal.App.2d pages specifies the conduct and sections significant ambiguity uncertainty proscribed 2399.5 and 2426 notice that together give adequate engaging any person in the conduct is of a misdemeanor. proscribed guilty makes numerous of his
Finally, party] arguments support contention that in section 2399.5 the did not intend a enacting statute. The basic is that section 2399.5 penal declares argument merely conduct; constitute proscribed unprofessional “Denial, section is found the article entitled and Revoca- Suspension tion”; that the in that set article forth the opening authority of the Board of Medical Assurance to' take duty Quality disciplinary that, action conduct and practitioners against unprofessional guilty therefore, sole of section 2399.5 is to act one purpose specify conduct and the sanction for violation of the section true board as is with just respect attorneys who violate the Rules Professional Conduct of the State Bar of Code, California Bus. & Prof. 6077). fundamental flaw in the (see is that fails take account of section 2426 which makes argument *11 of of violation a misdemeanor unless otherwise any provision chapter We are no of similar specifically provided. apprised penal provision of rules conduct accompanying professional applicable attorneys. is, contends, one section 2399.5 as real Obviously, purpose party one of the acts which constitutes conduct and specify which, unprofessional such,
as is a the board. Were ground no there that that accompanying penal provision, party’s] argument [real is the section’s sole would be However, there is no purpose persuasive. legal con- against Legislature’s providing duct constitutes both and criminal conduct grounds (see discipline Witkin, Cal. Crimes (1963) 932), here the has p. so done section 2426 it a misdemeanor to violate enacting making any 5. Section 2399.5 is within provision clearly constitutes a as that term used section 2426. “provision” Section 2361 iq conduct uses defining unprofessional the same virtually expression: conduct . . . includes . . . “Unprofessional [violating term this added.) (Italics chapter.” contention that the of section 2426 is limited Party’s]
[Real application to sections which conduct in terms as such expressly prohibit “[n]o licensed . . . shall . . .” is not In the first physician persuasive. place, section 2426 refers to That “any provision chapter.” Moreover, is not language significantly ambiguous.
mentioned as such are sections by [real party] containing 2157.1 and 2157.2. We note also that section 2156 similar employs However, out, section 2426 language. was included pointed previously in the codification of the act in 1937. A of the act as then original reading enacted does not disclose such (See single containing language. Thus, Stats. ch. 399.) section 2426 could have been intended to to other sections of act such Sections apply only containing language. 2156, 2157, 2157.1 and 2157.2 were all added 1975. (See Stats. also asserts that the of section 2426 to party]
[Real application 2399.5 and similar sections would have an anomalous result. is that section 2361 declares that criminal conduct argument is unрrofes- sional conduct and that if section 2426 is to sections like 2399.5 applied conduct, the result is that specifying unprofessional unprofessional is criminal conduct and criminal conduct unprofessional true, conduct. Were that However, we would no perceive inconsistency. section 2361 does not declare that criminal conduct is any conduct. It in subdivision that the (f) commission act provides moral involving turpitude, dishonesty corruption unprofes- sional conduct whether the act is a or a misdemeanor. Section 2383 felony is to the same effect. effect, that section 2426 must be some
Recognizing given party] contends first that what it means is that where another provision 5 declares that conduct is criminal but does not whether it specify constitutes a misdemeanor, or a section 2426 has the effect of felony it to be a misdemeanor. We are That is declaring unpersuaded. simply *12 not what section 2426 It says. provides relatively unambiguous who violates “any this person, any provision chapter, of a misdemeanor . . . .” guilty section in the act we Secondly, have found which declares conduct to be criminal but does not specify whether the crime is a or a misdemeanor is section 2141.5. But felony section 2141.5 was not added to the act until 1967 (see Stats. 2741) whereas section when, 2426 was enacted 1937 at a time so discovered, far as we have the act contained no section at all declaring conduct criminal but not a misdemeanor or a (See specifying felony. Moreover, Stats. ch. 399.) section 2141.5 for alternative prоvides to either a misdemeanor or a and the punishments appropriate felony, classification of the offense would not on section 2426 but depend actual conviction. punishment imposed following than a that section 2426 is more
Finally, party] suggests nothing [real 2, ante) Penal Code sections 18 and 19 fn. (see such as punishment where another was intended..simply prescribe punishment misdemeanor does declares that certain conduct constitutes a but 2142.10, 2154, 2141, 2142, 2427 et prescribe punishment (e.g., the section’s “Unless seq.). Agаin, ignores express language: party] [real is otherwise who violates expressly provided, any person, a misdemeanor and shall be a fine chapter, guilty punished by If (Italics added.) t’he section were interpreted party] [etc.].” the italicized words would be rendered In constru- suggests meaningless. it is fundamental that effect is to be to each ing statutory language given sentence, Court, and word. 18 Cal.2d phrase Superior (Whitley P.2d It 449].) cardinal rule of construction that an statutory some words interpretation is to be making meaningless surplusage Gilbert, avoided. Cal.3d 462 P.2d (People of Justice Kaufman’s 580].) [End opinion.]
I would writ of mandate as grant peremptory prayed.
Clark, J., concurred.