Opinion
KAUS, P. J.
A felony complaint charging petitioner, Barbara Mary Kramer, with possession of heroin (Health & Saf. Code, § 11350), was filed in the respondent court on May 28, 1974. After arraignment, on the recommendation of the district attorney and with petitioner’s consent, the matter was referred to the probation department for its investigation and recommendation on the question whether petitioner’s case should be diverted. (Pen. Code, § 1000.1.) Diversion was recommended, and on July 26, 1974, the case was diverted for one year on condition that petitioner cooperate with the probation department and participate in a program of education, treatment, or rehabilitation, as directed by the probation officer. The matter was continued for “further report” to January 17, 1975.
Sometime before the continued date the probation officer filed a report recommending that diversion be terminated and criminal proceedings be resumed. The report recited that petitioner had failed to complete a drug diversion program and had failed to report to the probation officer, by mail, during the months of November and December. The report also summarized petitioner’s explanations for these “violations.”
On January 17, 1975, petitioner appeared in the respondent court. The proceedings started briskly with the court announcing: “Barbara
Kramer, diversion is terminated.” During the discussion which followed—copied below,
—the court made it abundantly clear that, in its
view, petitioner was not entitled to a hearing on whether diversion should be terminated.
On February 14, 1975, petitioner applied for a writ of prohibition or mandate to the superior court. It was denied on February 25. She then filed a similar petition in this court. We granted an alternative writ of mandate because of the absence of any other adequate remedy under the circumstances.
(Morse
v.
Municipal Court,
13 Cal.3d 149, 155 [118 Cal.Rptr. 14, 529 P.2d 46].)
Petitioner attacks the order terminating diversion on three grounds:
(1) She claims that the order was beyond the respondent court’s jurisdiction because section 1000.2 of the Penal Code does not authorize termination of diversion, unless the divertee “is arrested and convicted of any criminal offense during the period of diversion.”
(2) The constitutional principle embodied in
Morrissey
v.
Brewer,
408 U.S. 471 [33 L.Ed.2d 484, 92 S.Ct. 2593], and the many decisions applying it, demanded a hearing before diversion could be terminated.
(3) In any event, termination of diversion was an abuse of discretion in view of the facts in her case.
We hold that: (1) The express statutory ground for terminating diversion is not exclusive and the respondent court had jurisdiction to terminate. (2) Petitioner was entitled to a hearing as a matter of statutory interpretation; we therefore do not reach her constitutional argument. (3) Whether diversion should be terminated in this particular case, should be decided by the respondent court after an adequate hearing.
Petitioner correctly observes that the only ground for terminating diversion specifically mentioned in Penal Code section 1000.2 is the arrest and conviction of the divertee on “any criminal offense during the period of diversion, . . .” Nevertheless, nothing in the statute negatives the court’s power to terminate diversion for other reasons; to the contrary, such a power is compellingly implied by the statutory directive that the probation department shall file progress reports “not less than every six months.” Section 1000.2 of the Penal Code permits diversion for a period up to two years. The Legislature could not have intended semi-annual progress reports for the sole purpose of informing the diverting court whether it had exercised its powers wisely or foolishly: clearly it assumed a power to terminate diversion before the original period fixed by the court expired. Indeed, in
Morse
v.
Municipal Court, supra,
13 Cal.3d 149, 153-154, the Supreme Court declared unequivocally: “During the stay of criminal proceedings the court may rescind diversion
for cause
such as the defendant’s failure to continue to participate in the. drug treatment program.” (Italics added.) We adopt this dictum as our holding.
The real question before us is whether in a situation such as the one before us, the Legislature intended that the power to terminate for cause be exercised summarily without a hearing, based only on the probation department’s progress report.
In support of her right to a hearing, petitioner arrays the usual due process artillery.
(Morrissey
v.
Brewer, supra,
408 U.S. 471;
Gagnon
v.
Scarpelli,
411 U.S. 778 [36 L.Ed.2d 665, 93 S.Ct. 1756], et al.) The People, on the other hand, find comfort in the more recent decision of
Gerstein
v.
Pugh
(1975) 420 U.S. 103, 119-121 [43 L.Ed.2d 54, 69, 95 S.Ct. 854] holding that due process does not require the usual “adversary safeguards” for a determination that an arrested person is to be held in custody pending further proceedings. They point out that the result of
the respondent court’s termination of diversion does not, as such, entail a loss of liberty, but simply requires petitioner to plead to a felony complaint.
We do not belittle petitioner’s due process argument which is substantial; so, however, is the People’s position. We need not decide who is right. Our duty in interpreting the diversion statute is not limited to avoiding a construction which makes it clearly unconstitutional. (See
San Francisco Unified School Dist.
v.
Johnson,
3 Cal.3d 937, 942 [92 Cal.Rptr. 309, 479 P.2d 669].) It goes further: if possible, the statute must be construed so that “constitutional difficulties” will not even arise.
(D’Amico
v.
Board of Medical Examiners,
6 Cal.App.3d 716, 726 [86 Cal.Rptr. 245]; see also,
White
v.
Valenta,
234 Cal.App.2d 243, 249 [44 Cal.Rptr. 241, 13 A.L.R.3d 1271].)
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Opinion
KAUS, P. J.
A felony complaint charging petitioner, Barbara Mary Kramer, with possession of heroin (Health & Saf. Code, § 11350), was filed in the respondent court on May 28, 1974. After arraignment, on the recommendation of the district attorney and with petitioner’s consent, the matter was referred to the probation department for its investigation and recommendation on the question whether petitioner’s case should be diverted. (Pen. Code, § 1000.1.) Diversion was recommended, and on July 26, 1974, the case was diverted for one year on condition that petitioner cooperate with the probation department and participate in a program of education, treatment, or rehabilitation, as directed by the probation officer. The matter was continued for “further report” to January 17, 1975.
Sometime before the continued date the probation officer filed a report recommending that diversion be terminated and criminal proceedings be resumed. The report recited that petitioner had failed to complete a drug diversion program and had failed to report to the probation officer, by mail, during the months of November and December. The report also summarized petitioner’s explanations for these “violations.”
On January 17, 1975, petitioner appeared in the respondent court. The proceedings started briskly with the court announcing: “Barbara
Kramer, diversion is terminated.” During the discussion which followed—copied below,
—the court made it abundantly clear that, in its
view, petitioner was not entitled to a hearing on whether diversion should be terminated.
On February 14, 1975, petitioner applied for a writ of prohibition or mandate to the superior court. It was denied on February 25. She then filed a similar petition in this court. We granted an alternative writ of mandate because of the absence of any other adequate remedy under the circumstances.
(Morse
v.
Municipal Court,
13 Cal.3d 149, 155 [118 Cal.Rptr. 14, 529 P.2d 46].)
Petitioner attacks the order terminating diversion on three grounds:
(1) She claims that the order was beyond the respondent court’s jurisdiction because section 1000.2 of the Penal Code does not authorize termination of diversion, unless the divertee “is arrested and convicted of any criminal offense during the period of diversion.”
(2) The constitutional principle embodied in
Morrissey
v.
Brewer,
408 U.S. 471 [33 L.Ed.2d 484, 92 S.Ct. 2593], and the many decisions applying it, demanded a hearing before diversion could be terminated.
(3) In any event, termination of diversion was an abuse of discretion in view of the facts in her case.
We hold that: (1) The express statutory ground for terminating diversion is not exclusive and the respondent court had jurisdiction to terminate. (2) Petitioner was entitled to a hearing as a matter of statutory interpretation; we therefore do not reach her constitutional argument. (3) Whether diversion should be terminated in this particular case, should be decided by the respondent court after an adequate hearing.
Petitioner correctly observes that the only ground for terminating diversion specifically mentioned in Penal Code section 1000.2 is the arrest and conviction of the divertee on “any criminal offense during the period of diversion, . . .” Nevertheless, nothing in the statute negatives the court’s power to terminate diversion for other reasons; to the contrary, such a power is compellingly implied by the statutory directive that the probation department shall file progress reports “not less than every six months.” Section 1000.2 of the Penal Code permits diversion for a period up to two years. The Legislature could not have intended semi-annual progress reports for the sole purpose of informing the diverting court whether it had exercised its powers wisely or foolishly: clearly it assumed a power to terminate diversion before the original period fixed by the court expired. Indeed, in
Morse
v.
Municipal Court, supra,
13 Cal.3d 149, 153-154, the Supreme Court declared unequivocally: “During the stay of criminal proceedings the court may rescind diversion
for cause
such as the defendant’s failure to continue to participate in the. drug treatment program.” (Italics added.) We adopt this dictum as our holding.
The real question before us is whether in a situation such as the one before us, the Legislature intended that the power to terminate for cause be exercised summarily without a hearing, based only on the probation department’s progress report.
In support of her right to a hearing, petitioner arrays the usual due process artillery.
(Morrissey
v.
Brewer, supra,
408 U.S. 471;
Gagnon
v.
Scarpelli,
411 U.S. 778 [36 L.Ed.2d 665, 93 S.Ct. 1756], et al.) The People, on the other hand, find comfort in the more recent decision of
Gerstein
v.
Pugh
(1975) 420 U.S. 103, 119-121 [43 L.Ed.2d 54, 69, 95 S.Ct. 854] holding that due process does not require the usual “adversary safeguards” for a determination that an arrested person is to be held in custody pending further proceedings. They point out that the result of
the respondent court’s termination of diversion does not, as such, entail a loss of liberty, but simply requires petitioner to plead to a felony complaint.
We do not belittle petitioner’s due process argument which is substantial; so, however, is the People’s position. We need not decide who is right. Our duty in interpreting the diversion statute is not limited to avoiding a construction which makes it clearly unconstitutional. (See
San Francisco Unified School Dist.
v.
Johnson,
3 Cal.3d 937, 942 [92 Cal.Rptr. 309, 479 P.2d 669].) It goes further: if possible, the statute must be construed so that “constitutional difficulties” will not even arise.
(D’Amico
v.
Board of Medical Examiners,
6 Cal.App.3d 716, 726 [86 Cal.Rptr. 245]; see also,
White
v.
Valenta,
234 Cal.App.2d 243, 249 [44 Cal.Rptr. 241, 13 A.L.R.3d 1271].)
Adhering to that principle we have no trouble at all in holding that section 1000.2 of the Penal Code which, by implication allows a termination of diversion for cause, also implies that such termination be preceded by an adequate hearing.
California has held for decades that where a statute, city charter, ordinance, or even the governing bylaws of a fraternal organization or labor union, provide for the loss of a right “for cause,” a hearing is required absent “a clear showing of legislative intent to dispense with that right.”
(Ratliff
v.
Lampton,
32 Cal.2d 226, 230 [195 P.2d 792, 10 A.L.R.2d 826].) “[C]ommon fairness and justice compel the inclusion of such a requirement by implication.”
(Steen
v.
Board of Civil Service Commrs., 26
Cal.2d 716, 723 [160 P.2d 816].) Consistent with this rule of interpretation, a hearing is required before a bottle blower can be suspended from union membership
(Cason
v.
Glass Bottle Blowers Assn.,
37 Cal.2d 134, 143-144 [231 P.2d 6, 21 A.L.R.2d 1387]), a probationaiy teacher or a civil servant dismissed
(Keenan
v.
S.F. Unified School Dist.,
34 Cal.2d 708, 714 [214 P.2d 382];
Steen
v.
Board of Civil Service
Commrs., supra,
26 Cal.2d, pp. 722-723), a driver’s or a horse trainer’s license suspended
(Ratliff
v.
Lampton, supra,
32 Cal.2d p. 230;
Carroll
v.
California Horse Racing Bd.,
16 Cal.2d 164, 168 [105 P.2d 110]), a fish and game warden removed
(Welch
v. Ware, 161 Cal. 641, 645-647 [119 P. 1080]), or subordinate groves of Druids or Ku Klux Klan lodges suspended
(Grand Grove A. O. of D.
v.
Duchein,
105 Cal. 219, 224-226 [38 P. 947];
Knights of Ku Klux Klan
v.
Francis,
79 Cal.App. 383, 386 [249 P. 539]). The list is almost endless.
It is useless to try to make fine legalistic distinctions between the rights protected by the cited line of authorities and the right involved when a divertee is threatened with termination of diversion. Given the abolition of the right-privilege distinction (Goss v.
Lopez
(1975) 419 U.S. 565, 572-573 [42 L.Ed.2d 725, 735-736, 95 S.Ct. 729];
Bagley
v.
Washington Township Hospital Dist.,
65 Cal.2d 499, 503-505 [55 Cal.Rptr. 401, 421 P.2d 409]), the source of the right to continue on diversion hardly matters. What is clear is that from the point of view of the divertee and the public itself the beneficial purposes of the program, explained in
People
v.
Superior Court (On Tai Ho),
11 Cal.3d 59, 61-62 [113 Cal.Rptr. 21, 520 P.2d 405] are of an altogether higher order than some of the rights and privileges which we so scrupulously protect by affording hearings as a condition to deprival.
Whether or not diversion should be terminated in this particular case is not for us to say. The facts have never been established. We have no reason to believe that the respondent court will abuse its discretion after petitioner has had the hearing to which she is entitled.
Let a peremptory writ of mandate issue ordering the respondent court to set aside its order of January 17, 1975, terminating petitioner’s diversion, and to proceed thenceforth in a manner consistent with this opinion.
Stephens, J., and Loring, J.,
concurred.
On July 16, 1975, the opinion was modified to read as printed above.