People v. Superior Court (Douglass)

595 P.2d 139, 24 Cal. 3d 428, 155 Cal. Rptr. 704, 1979 Cal. LEXIS 266

• Court: California Supreme Court
• Decided: May 29, 1979
• Docket: L.A. 31079
• Status: Published

Opinions

Opinion

MANUEL, J.

— In this mandate proceeding we must decide whether a violation of Business and Professions Code section 2399.5, which states that it is unprofessional conduct to prescribe, dispense or furnish dangerous drugs without a good faith prior examination and medical indication therefor, constitutes a misdemeanor under section 2426 of that code.¹ We conclude that it does not.

Real party in interest James Douglass was charged in an amended complaint in the municipal court with numerous violations of section 2399.5. At the close of the prosecution’s case-in-chief in a trial by jury, Douglass moved to dismiss the case for lack of jurisdiction and for judgment of acquittal. The motions were denied, and Douglass thereupon petitioned the superior court for a writ of prohibition. After argument by the parties, the superior court issued a peremptory writ of prohibition restraining the municipal court from further proceedings on the ground that section 2399.5 defined unprofessional conduct subject to disciplinary action by administrative hearing only and not a crime subject to prosecution as a misdemeanor.²

The People appealed and also sought a writ of mandate in the Court of Appeal to compel the superior court to vacate its order. The Court of Appeal, without having issued an alternative writ, issued a peremptory writ of mandate commanding the superior court to vacate its order and to recall its writ of prohibition. We granted Douglass’ petition for hearing and issued an alternative writ. The inadequacy of the People’s remedy by appeal was determined by the Court of Appeal when it issued the peremptoiy writ. (Mannheim v. Superior Court (1970) 3 Cal.3d 678, 686 [91 Cal.Rptr. 585, 478 P.2d 17]; Miller v. Superior Court (1968) 69 Cal.2d 14, 17 [69 Cal.Rptr. 583, 442 P.2d 663].)

Sections 2399.5 and 2426 are part of the State Medical Practice Act (§§ 2000-2528.3), which is chapter 5 of the Business and Professions Code. The chapter was enacted in 1937 as part of the codification of the Business and Professions Code. (Stats. 1937, ch. 414, p. 1377; Stats. 1937, ch. 399, p. 1229.) Chapter 5 is comprised of a number of articles dealing with various topics such as The Physician’s and Surgeon’s Application (art. 5), Examinations (art. 10), Registration (art. 12), Denial, Suspension and Revocation (art. 13), and Crimes and Penalties (art. 14).

Section 2426 is in article 14, Crimes and Penalties. It states: “Unless it is otherwise expressly provided, any person, who violates any provision of this chapter, is guilty of a misdemeanor and shall be punished by a fine of not less than one hundred dollars nor more than six hundred dollars or by imprisonment for a term of not less than sixty days nor more than one hundred eighty days or by both such fine and imprisonment.” This section was part of the original codification in 1937 and has never been amended. (See Stats. 1937, ch. 399, p. 1279.)

Section 2399.5, enacted in 1959 (Stats. 1959, ch. 1247, p. 3324), is in article 13, Denial, Suspension and Revocation. Section 2399.5 at the time the charges were brought provided: “Prescribing, dispensing or furnishing dangerous drugs as defined in section 4211 of the Business and Professions Code without a good faith prior examination and medical indication therefor, constitutes unprofessional conduct within the meaning of this chapter.”³

The People contend that since section 2399.5 is in chapter 5 and since it does not expressly provide otherwise, a violation of section 2399.5 constitutes a misdemeanor as provided in section 2426. They assert that a review of the framework of chapter 5 reveals that the Legislature must have intended that section 2426 apply to violations of the sections defining unprofessional conduct. We disagree. Indeed, our review of the statutory framework indicates an intent to the contrary.

The provisions of chapter 5 at issue in this case are similar to those contained in a number of other chapters of the Business and Professions Code governing trades, professions and businesses. The interpretation of such provisions was considered in an Attorney General’s opinion given in response to a question regarding chapter 12, the Funeral Directors and Embalmers Law (§ 7600). (29 Ops.Cal.Atty.Gen. 28 (1957).) We find the reasoning in that opinion sound and apply it by analogy to the provisions at issue in this case.

As previously noted, section 2426 states that unless otherwise expressly provided any violation of the provisions of chapter 5 is a misdemeanor punishable in a specified manner. Chapter 5 includes a number of provisions concerning “unprofessional conduct.” Section 2361 in part directs the Division of Medical Quality to take disciplinary action against any holder of a certificate who is guilty of “unprofessional conduct.” Such disciplinary action is to be governed by the provisions of the Administrative Procedure Act. (§ 2364.) Section 2361, section 2399.5 and a number of other sections specify acts or omissions which are stated to constitute “unprofessional conduct.” (See §§ 2361.8, 2377-2399, 2409, 2411.)

Several acts which are stated to constitute “unprofessional conduct” are likewise, by other sections, denounced as crimes. This has been true since the chapter was enacted in 1937. For example, practicing under a name other than that given in one’s certificate without a special permit therefor constitutes “unprofessional conduct” (§ 2393) and is a misdemeanor (§ 2429). The use by the holder of any certificate of any letters, words or terms indicating that he is entitled to practice a system of treating the sick for which he is not licensed is “unprofessional conduct” (§ 2395) and also a misdemeanor (§ 2142). The misuse of alcoholic beverages so that it impairs a certificate holder’s ability to practice safely on the public constitutes “unprofessional conduct” (§ 2390) and is a misdemeanor if such misuse occurs while in actual attendance on patients (§ 2435). The conviction of certain crimes is also declared to be “unprofessional conduct” (§§ 2383, 2384).

It thus appears that where the Legislature intended to make criminal an act or omission specified as constituting unprofessional conduct it has expressly so stated without resort to section 2426. Further indication of such an intent is found in the Legislature’s amendment of chapter 5 in 1974 in Assembly Bill No. 4469. (Stats. 1974, ch. 888, p. 1886.) That bill, among other things, amended section 2399.5 by adding the words “dispensing or furnishing,” reduced the standard for a finding of “unprofessional conduct” under section 2361 from “gross incompetence” to “incompetence,” and added section 2428.5, which expressly made the alteration of a medical record with fraudulent intent by a physician both a misdemeanor and a ground for disciplinary action. The Legislative Counsel’s digest of the bill stated; “Revises the law relating to the revocation or suspension of licenses issued under the State Medical Practice Act. [If] Makes it a misdemeanor for any physician and surgeon ... to alter or modify the medical record of any person and subjects such person to disciplinary action . . . .” (Italics in original.) Nothing in the digest suggests the bill affects criminal liability insofar as it pertains to sections 2399.5 and 2361. (See also Review of Selected 1974 California Legislation (1975) 6 Pacific L.J. 191.) It is reasonable to presume that the Legislature amended those sections with the intent and meaning expressed in the Legislative Counsel’s digest. (See Maben v. Superior Court (1967) 255 Cal.App.2d 708, 713 [63 Cal.Rptr. 439].) Although subsequent legislation is entitled to little weight in construing earlier statutes, it is not always without significance. (Mattz v. Arnett (1973) 412 U.S. 481, 505, fn. 25 [37 L.Ed.2d 92, 107, 93 S.Ct. 2245].)

We conclude that section 2426 is reasonably susceptible of a construction that would exclude from its reach an act or omission which is declared only to be “unprofessional conduct” and is not expressly described as a violation or crime. Such a construction appears at least as reasonable as that urged by the People. Moreover, the construction urged by the People, whereby section 2426 would make criminal acts or omissions specified as “unprofessional conduct,” would render superfluous those provisions previously noted which, expressly state that such conduct is criminal. “We have generally been exceedingly reluctant to attach an interpretation to a particular statute which renders other existing provisions unnecessary.” (Bowland v. Municipal Court (1976) 18 Cal.3d 479, 489 [134 Cal.Rptr. 630, 556 P.2d 1081].) Section 2426, though not a model of legislative draftsmanship, appears intended to supply the punishment for those provisions in chapter 5 which designate conduct as a misdemeanor but specify no punishment.⁴ (See, e.g., §§ 2141, 2142, 2427, 2428, 2429, 2430, 2431, 2432, 2434.) The penalty provisions in section 2426 are not identical to those for misdemeanors in Penal Code section 19, nor were they identical when section 2426 was enacted. (Stats. 1937, ch. 399, p. 1279.)

Generally, the provisions of a penal statute are to be construed according to the fair import of their terms, with a view to effect its objects and to promote justice. (Pen. Code, § 4; People v. King (1978) 22 Cal.3d 12, 23 [148 Cal.Rptr. 409, 582 P.2d 1000].) (2c) When the statute is susceptible of two reasonable constructions, however, the defendant is ordinarily entitled to that construction most favorable to him. (People v. King, supra, 22 Cal.3d at p. 23; Bowland v. Municipal Court, supra, 18 Cal.3d at p. 488.) In accord with these principles, we construe section 2426 as not applying to conduct alleged to be in violation of section 2399.5 or other sections which define unprofessional conduct only. We disapprove People v. Berkowitz (1977) 68 Cal.App.3d Supp. 9 [137 Cal.Rptr. 313], and People v. Michals (1974) 36 Cal.App.3d 850 [111 Cal.Rptr. 892], to the extent they are inconsistent with this opinion.

The alternative writ of mandate is discharged and the peremptory writ of mandate is denied.

Bird, C. J., Tobriner, J., Mosk, J., and Newman, J., concurred.

1 Unless otherwise indicated, all statutory references hereafter are to the Business and Professions Code.

2 Issuance of a writ of prohibition to restrain further proceedings in an ongoing criminal jury trial is unusual. Although we do not question the court’s power to have done so, we do question the appropriateness of such action. Considerations of orderly procedure, in our view, require that such power be exercised sparingly and only in the most compelling of circumstances once a criminal jury trial is underway and jeopardy has attached.

3 The section was amended in 1978 (Stats. 1978, ch. 1295, § 1, No. 7 Deering’s Adv. Legis. Service p. 1685) by including the quoted language in a new subdivision (a)- and adding subdivision (b) as follows;

“(b) No physician and surgeon shall be found to have committed unprofessional conduct within the meaning of subdivision (a) if, at the time drugs were prescribed, dispensed, or furnished: [¶] (1) The physician and surgeon was a designated physician serving in the absence of the patient’s physician, provided such drugs were prescribed, dispensed, or furnished only as necessary to maintain the patient until the return of his physician, but in any case no longer than 72 hours; or (2) The physician and surgeon transmitted the order for such drugs to a registered nurse in an inpatient facility provided that such physician and surgeon has consulted with a registered nurse who has reviewed the patient’s records and provided that such physician and surgeon was designated as the physician to serve in the absence of the patient’s physician; or (3) The physician and surgeon was a designated physician serving in the absence of the patient’s physician and was in possession of or had utilized the patient’s records and ordered the renewal of a medically indicated prescription for an amount not exceeding the original prescription in strength or amount or for more than one refilling.”

4 This conclusion is supported by a review of the history of section 2426 and the Medical Practice Act. The act is derived from chapter 354 of the Statutes of 1913. That statute in sections 15, 17 and 18, respectively, provided that violations of the law relating to the filing of certificates to practice medicine with the county clerk, the practicing of medicine without a license, and the bartering of licenses were misdemeanors; each section provided a specific penalty which differed for each offense, ranging from a fine of $25 to $1,000 and/or imprisonment from 10 days to 1 year. (Stats. 1913, ch. 354, §§ 15, 17, 18, pp. 734-736.)

In 1917, the Legislature amended these sections by removing the specific penalty provisions and providing instead that the conduct constitutes a misdemeanor which is punishable “as designated in this act.” (Stats. 1917, ch. 81, §§ 10-12, pp. 113-114.) At the same time the Legislature added section 24, the antecedent of section 2426, to provide an omnibus penalty provision in lieu of the specific provisions that had been in each section. (Stats. 1917, ch. 81, § 13, p. 115.) Section 24 provided in pertinent part that “for a violation of any provision of this act, the said violator shall be guilty of a misdemeanor, unless otherwise specifically provided in this act, and shall be punished by a fine of not less than one hundred dollars nor more than six hundred dollars or by imprisonment for a term of not less than sixty days nor more than one hundred eighty days or by both such fine and imprisonment.”

The legislative history thus indicates that section 2426 was not intended to make every violation of a rule of conduct a misdemeanor, but rather to provide a standardized penalty for the various misdemeanor offenses.