HIV AIDS Resource Guide/HIV-AIDS Resource Guide.iso/STAT/CASES/HENSON.ASC

Text File | 1993-01-14 | 20KB | 394 lines

/* This case is reported in 231 Cal. App. 3d 172 (1991.) In this
case, the defendant challenges as a condition of probation that
she complete AIDS education. This decision gives a fairly broad
brush to the law. */

The PEOPLE, Plaintiff and Respondent,

v.

JULIE ANN HENSON, Defendant and Appellant.

Fifth District

June 13, 1991



OPINION

ARDAIZ, Acting P. J.--

Introduction

Julie Ann Henson was a passenger in an open convertible stopped
for a moving violation on August 2, 1989. Certain plain-view
observations by the detaining officers eventually led to the
discovery of methamphetamine and marijuana in Henson's purse. She
was charged by information with (count I) a felony violation of
Health and Safety Code section 11378 (possession for sale of
methamphetamine) and (count II) a misdemeanor violation of Health
and Safety Code section 11357, subdivision (b) (possession of not
more than 28.5 grams of marijuana).

Following a court trial on March 19, 1990, Henson was convicted
of the lesser included felony offense of a violation of Health
and Safety Code described as a small "coke straw," there was no
paraphernalia seized that would support a finding of intravenous
use. The paraphernalia seized was consistent with appellant's
admitted nasal ingestion of methamphetamine beginning in early
1989. Respondent appears to concede the evidence adduced at trial
does not indicate intravenous drug use by appellant.

While subdivision (a) of section 1001.10 mandates the judge
require any person convicted of an offense described in
subdivision (b) agree to AIDS education as a condition of
probation, appellant submits the lack of a comma between "647"
and "if' in subdivision (b)(1) leaves the statute open to two
plausible interpretations: intravenous use of a controlled
substance must be involved in a conviction under any of the
statutes enumerated in subdivision (b)(1) for the AIDS education
condition of probation to apply, or intravenous use of a
controlled substance need only be involved if the conviction
falls under subdivision (f) of section 647. (See 1A Sutherland
Statutory Construction (4th ed. 1985 (rev.)) Punctuation,  21.15,
pp. 134-135.)

Appellant maintains intravenous use is a requirement and that the
condition of probation was imposed here in error, as her
conviction of a violation of Health and Safety Code section
11377, subdivision (a), did not involve intravenous use of a
controlled substance. Respondent concurs in appellant's
interpretation, to wit, that the mandatory condition of probation
only applies if a conviction under any of the enumerated offenses
set out in section 1001.10, subdivision (b)(1) involves
intravenous use of a controlled substance. However, respondent
maintains that the trial court did not err in imposing an AIDS
education requirement in this case, because it was within the
court's discretion (People v. Banter (1989) 211 Cal.App.3d 937,
940 [260 Cal.Rptr. 621) as it reasonably related to appellant's
Health and Safety Code section 11377, subdivision (a) conviction.
(People v. Lent (1975)15 Cal.3d 481, 486 [124 Cal.Rptr. 905, 541
P.2d 545]; People v. Dominguez (1967) 256 Cal.App.2d 623, 627 [64
Cal.Rptr. 290].) After a review of the legislative history of
section 1001.10 and relevant case law, we conclude respondent is
correct on both points.



Statutory Construction

(1)  While punctuation may be of some assistance in the
construction of a statute, it is not of controlling importance.
(Estate of Coffee (1941) 19 Cal.2d 248, 251 [120 P.2d 661]; Paris
v. County of Santa Clara (1969) 270 Cal.App.2d 691, 699 [76
Cal.Rptr. 66].) Indeed, the United States Supreme Court once
noted that "[p]unctuation is a most fallible standard by which to
interpret a writing; .... " (Ewing v. Burnet (1837) 36 U.S. 41,
54 [9 L.Ed. 624, 630].) However, punctuation is a part of the
statute, and should be considered in its interpretation in an
attempt to give the statute the construction intended by the
drafter and to seek and follow the intent of the Legislature.
(Pritchard v. Liggett & Myers Tobacco Company (3d Cir. 1965) 350
F.2d 479, 490; 2A Sutherland Statutory Construction (4th ed. 1984
(rev.)) Punctuation,  47.15, pp. 156-160.)

(2)  As stated by the California Supreme Court, "[w]here a
statute is theoretically capable of more than one construction we
choose that which most comports with the intent of the
Legislature. [Citations.]" (California Mfrs. Assn. v. Public
Utilities Corn. (1979) 24 Cal.3d 836, 844 [157 Cal.Rptr. 676, 598
P.2d 836].) As stated in California Mfrs. Assn., "the legislative
history of the statute and the wider historical circumstances of
its enactment are legitimate and valuable aids in divining the
statutory purpose.

(Ibid.)



Legislative History

Construction begins with the legislative history of this bill,
obtained from the California State Archives in Sacramento.
Assembly Bill No. 2374 (AB 2374) was introduced by Assemblyman
Statham in March 1987 as a bill to expand childcare services and
implement flexible employment policies for state employees with
minor children. The bill was approved in the Assembly and passed
to the Senate where it was gutted and the content amended to
create the "AIDS Prevention Program in Drug Abuse and
Prostitution Cases."

In the initial, August 1987 amendment in the Senate, two of the
proposed legislative findings declared:

"(c) IV drug users and prostitutes, unlike other AIDS high-risk
groups, are not easily reached educationally because they have no
formal networking groups, no formal publications targeting them
specifically, and in general are not in the mainstream of society
that is reached by any form of media.

"(d) It is important that IV drug users and prostitutes be
targeted specifically for AIDS information." (Italics added.)

As later amended, AB 2374 provided for the "establishment and
funding of an AIDS education program in each county." It further
required "persons convicted of certain criminal offenses to
participate in the program," and for new fines imposed on a broad
range of "persons convicted of specified crimes, including sex
offenses, prostitution, intravenous use of a controlled
substance, and retail sale and possession of hypodermic needles
and syringes," to fund the county programs. (Aug. 4, 1988,
Analysis of Assem. Bill No. 2374 by the Legis. Analyst.)

As noted in the comments to two amended reports prepared in early
1988 by the Senate Committee on the Judiciary, "[t]he purpose of
this bill is to provide additional funds to counties to enable
them to offer an AIDS education program for persons who are using
intravenous drugs and for those convicted of prostitution."
(Italics added.) The same Senate Reports on the Judiciary
described the types of offenses "affected": "[AB 2374] would
authorize the court to fine persons convicted of the following
crimes to fund an AIDS prevention education program: possession
or use of specified controlled substances, unlawful sale or
possession of hypodermic needles, rape, unlawful intercourse,
spousal rape, sodomy, oral copulation, soliciting or engaging in
any act of prostitution, or being under the influence of IV
controlled substances in public." A May 26, 1988, amendment to
the bill "broaden[ed] the definition of 'fine' in that it does
not limit 'fine' to offenses involving intravenous use of a
controlled substance."

In early August of 1988, the Department of Finance prepared a
"local cost estimate." The department noted AB 2374 provided for
the "AIDS Prevention Program . . . to be "funded out of fines
collected for offenses related to possession, use or being under
the influence of specified controlled substances, possession, or
sale of hypodermic needles or syringes, and various sex offenses.
Pursuant to this bill, counties would be required to establish
and provide an AIDS prevention education program, as specified,
and any person convicted of or who pleads guilty to prostitution
or intravenous drug use shall be required to participate in the
program." (Italics added.) The report further noted "[t]he
author's office estimates that approximately 39,000 persons may
be eligible for participation in the AIDS education program
proposed by this bill. . . . Since more persons are potentially
subject to the fine than are potential program participants, and
since the maximum amount of the fine [$70] is greater than the
amount required to be deposited for program purposes, it is
reasonable to project that program revenues will be equal to or
greater than program costs."

Following what appears to have been a final August 26, 1988,
amendment in the Senate, the "Comments" contained in a report
entitled "Concurrence in Senate Amendments" noted:

"1) The purpose of [AB 23741 is to provide additional funds to
counties to enable them to offer an AIDS education program for
persons who are using intravenous drugs and for those [convicted]
of prostitution. The author sees the fines the bill would
authorize as 'user fees' for persons engaged in illegal activity
which carries a high risk of AIDS infection.

"2) Persons convicted of prostitution offenses and IV drug
offenses would be required to participate in the AIDS education
program as a condition of probation or as part of a drug
diversion program. . . ." (Italics added.)

When the bill passed the Senate, its author wrote the Governor in
early September 1988, urging him to sign the bill. Assemblyman
Statham stated the hill "requires convicted IV drug users and
prostitutes to go through an education course on AIDS as a
condition of receiving probation." (Italics added.) He continued:
"In California, health experts agree that IV drug users are on
the brink of [an] . . . explosion in terms of AIDS infection. It
is vital that these people know what AIDS is, know how it is
spread and know what they can do to stop it." The author noted,
"Fines are increased $70 for a broad range of sex and IV drug
crimes, ..."

AB 2374 was filed on September 26, 1988, and is entitled "AIDS --
Education Program - Fines, " in chapter 1243 of the Statutes of
1988. Chapter 1243, section 1, sets forth the findings of the
Legislature in reference to the enactment of section 1001.10 and
its implementing statute, section 1001.11. These findings further
pertain to the amendments and newly enacted statutes also found
in chapter 1243 regarding discretionary fines to underwrite AIDS
education that relate to persons convicted of the substantive
offenses delineated in section 1001.10, subdivisions (b)(1) and
(b)(2), and of certain sex offenses. (Stats. 1988, ch. 1243.)

Section 1 of the Statutes of 1988, chapter 1243 states as
follows:

"The Legislature finds and declares all of the following:

"(a) Acquired immune deficiency syndrome (AIDS) and infection by
human immunodeficiency virus (HIV), the etiologic agent for AIDS,
has reached epidemic proportions in this state.

"(b) While intravenous drug users account for 2 percent of all
AIDS cases diagnosed in California, studies in San Francisco
indicate that 20 percent of IV drug users are infected with HIV.

"(c) In some eastern cities where infection with HIV has affected
IV drug users early in the AIDS epidemic, the rate of infection
among IV drug users is as high as 80 percent.

"(d) The greatest risk of transmission of HIV to heterosexuals is
through IV drug users.

"(e) Street prostitutes are more likely to use intravenous drugs
and, therefore, are at greater risk for exposure to HIV.

"(f) Education and counseling about the causes of AIDS and the
prevention of HIV infection are crucial to halting the spread of
the epidemic.

"(g) IV drug users and prostitutes are not easily reached with
education and counseling because they have no formal network, no
formal publications targeting them specifically, and in general
are not in the mainstream of society that is reached by any form
of media.

"(h) It is critical that IV drug users and prostitutes be
targeted specifically for AIDS education and counseling."
(Italics added.)

Construction

(3a)  First, the legislative documents cited, ante, evidence no
intent on the part of the author or the Legislature to limit
required AIDS education for intravenous drug users to only those
intravenous drug users convicted under section 647, subdivision
(f). Throughout the legislative process, the targets of the
proposed AIDS education were repeatedly cited as "IV drug users
and prostitutes." In light of the foregoing, it would be
illogical to conclude the phrase "if the offense involves
intravenous use of a controlled substance" applied only to a
conviction for disorderly conduct. Unmistakably, one of the
principal targets of the legislation was intravenous drug users.
(4)   "'It has been called a golden rule of statutory
interpretation that unreasonableness of the result produced by
one among alternative possible interpretations of a statute is
reason for rejecting that interpretation in favor of another
which would produce a reasonable result' (2A Sutherland Statutory
Construction (4th ed.)  45.12, p. 37, ..." (Armstrong v. County
of San Mateo (1983)146 Cal.App.3d 597, 615 [194 Cal.Rptr. 294];
Samarkand of Santa Barbara, Inc. v. County of Santa Barbara
(1963) 216 Cal.App.2d 341, 362 [31 Cal.Rptr. 1511.)

(3b)  Second, construing section 1001.10 as a whole and in
reference to the other statutes added and amended as part of the
same legislation (People v. Medina (1988) 206 Cal.App.3d 986, 991
[254 Cal.Rptr. 891), section 1001.10, subdivision (a) mandates
the court to require "any person" convicted under one of the
statutes set out in subdivision (b)(l), "if the offense involves
intravenous use of a controlled substance," or "any person" con
victed of a violation of 647, subdivision (a) or (b)
(prostitution-related violations) to agree to participate in an
AIDS education program as a condition of admitting the person to
probation, etc.

The legislative history demonstrates the author and the
Legislature expected the consumers of the mandated AIDS education
to be a smaller group than those susceptible to the additional
discretionary "fine" that would fund the local county programs.
Those persons convicted of any violation of the statutes
specified in section 1001.10, subdivisions (b)(l) and (b)(2), as
well as those persons convicted of certain sex crimes which carry
a high risk of AIDS infection, were. in the words of the author,
subject to a "user fee" as a result of engaging in certain high-
risk activity. The "user fees" would underwrite the AIDS
education program. Consistent with this resolve, sections 11377
and 11550 of the Health and Safety Code and sections 264,286, and
288a were amended, and sections 4383 of the Business and
Professions Code and section 647.1 of the Penal Code were added
to their respective codes. These statutes provide for the
imposition of a discretionary $70 fine, and were enacted as part
of the same legislation in which sections 1001.10 and 1001.11
were added.



Discretionary Imposition of Condition as a Term of Probation

(5)  While appellant's conviction under subdivision (a) of Health
and Safety Code section 11377 did not involve "intravenous use of
a controlled substance," respondent argues and we agree that the
trial court did not abuse its discretion by conditioning
probation on appellant's participation in an AIDS education
program. While participation was not mandated by section 1001.10
under the facts of this case, the order was eminently reasonable.

At the time of sentencing, the 32-year-old appellant, by her own
admission, had been using illicit drugs since high school. She
admitted to using both marijuana and methamphetamine following
her arrest on the instant charges, but did not believe she was in
need of substance abuse counseling. She had been purchasing and
using methamphetamine by nasal ingestion for several months prior
to her arrest. Appellant testified the 17.28 grams of white
powder containing methamphetamine in her purse at the time of her
arrest was for her personal use. An officer in the Stanislaus
County Drug Enforcement Unit testified at the trial one could
"mix a half gram [of methamphetamine] in coffee . . . eat it,
drink it, snort it, inject it," etc.

While there may be no natural progression from nasal ingestion of
methamphetamine to injecting it, it is an alternative method of
sorption that might be readily available to appellant through her
drug connection(s). One of the legislative findings accompanying
section 1001.10 declared: "Education and counseling about the
causes of AIDS and the prevention of HIV infection are crucial to
halting the spread of the epidemic." (Stats. 1988, ch. 1243.) A
1988 report by the Senate Committee on Judiciary noted "[t]he
AIDS prevention education program would, at a minimum, include
details about the transmission of HIV, symptoms of AIDS or ARC,
prevention through avoidance or cleaning of needles ...."
(Italics added.) The same sentiment was reiterated verbatim in an
analysis by the Senate Rules Committee shortly before AB 2374 was
enacted.

In harmony with the cited legislative finding and legislative
history is the AIDS education order of the lower court. It was a
reasonable attempt to deter a woman who was not known to have
used intravenous drugs but reasonably might be considered at risk
of beginning such means of ingestion because of her long-term use
of a drug capable of intravenous injection. Critical to a halt of
the spread of the HIV virus is the education of people who have
not begun using drugs intravenously regarding the risks
intravenous use carries so they never start.

The condition of probation requiring AIDS education was well
within the trial court's discretion (People v. Bauer; supra, 211
Cal.App.3d at pp. 940-941) and reasonable within the meaning of
section 1203.1. (People v. Lent, supra, 15 Cal.3d at p. 486,
citing People v. Dominguez. supra, 256 Cal.App.2d at p. 627.)

Finally, appellant notes the lower court simply ordered her to
"[p]articipate in an AIDS education program pursuant to Penal
Code Section 1001.10," without any showing it was exercising its
discretion in so doing. The trial court's citation to "Section
1001.10" is equally consistent with an interpretation the court
was merely referencing the provision establishing the AIDS
education program as with an interpretation the court was under
the erroneous impression it was required here to impose
participation in an AIDS education program as a condition of
probation.

There is nothing in the quoted statement to overcome the
presumption the lower court regularly performed its official
duty. (Evid. Code,  664.) Evidence Code section 664 is a
presumption affecting the burden of proof (Evid. Code,  660);
therefore, the burden is upon appellant to prove the trial court
did not exercise its discretion (Evid. Code,  606). No statement
of reasons was required here and the lower court's mere silence
as to whether or not it was engaging in an exercise of discretion
is insufficient to sustain appellant's burden of proof. (People
v. Flower (1976) 62 Cal.App.3d 904, 910 [133 Cal.Rptr. 455].)

The judgment is affirmed.

Vartabedian, J., and Thaxter, J., concurred.