Filed 7/27/21

CERTIFIED FOR PUBLICATION

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF RIVERSIDE

APPELLATE DIVISION

THE PEOPLE,

Petitioner, v. APRI2100008 SUPERIOR COURT OF RIVERSIDE (Trial Ct. No. INM2003410)

COUNTY,

Respondent,

SEBASTIAN ANDRES DIAZ-

ARMSTRONG,

Real Party in Interest.

THE PEOPLE,

Petitioner, v.

SUPERIOR COURT OF RIVERSIDE APRI2100009

COUNTY, (Trial Ct. No. INM2002181) Respondent,

JOSEPH SAMUEL SPINELLI, JR.,

Real Party in Interest.

1

THE PEOPLE,

Petitioner, v.

SUPERIOR COURT OF RIVERSIDE

COUNTY, APRI2100013

Respondent, (Trial Ct. No. INM2003659)

JESSICA ORTIZ,

Real Party in Interest.

ORIGINAL PROCEEDINGS in mandate and prohibition. Dean Benjamini, Judge.

Petitions denied.

Michael A. Hestrin, District Attorney, and Chris S. Bouffard, Senior Deputy District

Attorney, for Petitioner.

No appearance for Respondent.

Steven L. Harmon, Public Defender, and Jason M. Cox, Deputy Public Defender, for Real

Parties in Interest.

THE COURT*

With the parties’ consent at oral argument we consolidated these three writ proceedings for

hearing and decision because, even though they involve different, unconnected criminal

defendants, “they involve common and interrelated issues of fact and law.” (In re Carl H. (2017)

7 Cal.App.5th 1022, fn. 1; see People v. Williams (1997) 59 Cal.App.4th 1202; People v. Sanchez

(1987) 190 Cal.App.3d 224, 228; People v. Superior Court (Kenner) (1977) 73 Cal.App.3d 65,

67–68.) Indeed, they present the identical issue of law, one which surely arises daily in other

*

SYKES, P. J.; STERLING, J.

2 courts throughout our state: are defendants charged with misdemeanor driving under the influence

(DUI) statutorily eligible for pretrial diversion under Penal Code section 1001.95? We hold that

such defendants are indeed so eligible, and deny the People’s petitions for extraordinary relief.

PROCEDURAL BACKGROUND

INM2003410 / APRI2100008

Defendant and real party in interest Diaz-Armstrong was charged by misdemeanor

complaint with DUI (Veh. Code, § 23152, subds. (a), (b)), was arraigned, and pleaded not guilty.

At a pretrial hearing on January 21, 2021, the trial court placed defendant on diversion pursuant to

Penal Code section 1001.95 (hereinafter “section 1001.95”) over the prosecutor’s objection. With

regard to the threshold question of eligibility the trial court incorporated by reference the

arguments and ruling it had made earlier that day in INM2002181, which we discuss immediately

below. The trial court additionally found defendant to be otherwise suitable for diversion based

on the particular circumstances of the case.

On February 17, 2021, the People filed a petition for writ of mandate or prohibition in this

court and we issued an order to show cause.1

INM2002181 / APRI2100009

Defendant and real party in interest Spinelli was also charged by misdemeanor complaint

with DUI, was arraigned, and pleaded not guilty. At a pretrial hearing on January 21, 2021, the

trial court placed defendant on section 1001.95 diversion. With regard to the threshold question

of eligibility, the prosecutor had argued that DUI defendants are categorically ineligible for

1 While it appears that the People have a remedy by way of appeal (People v. Tapia (1982) 129 Cal.App.3d Supp. 1, 3 & fn. 1), “writ review of an appealable order is appropriate where it is necessary to resolve an issue of first impression promptly and to set guidelines for bench and bar” (Rodrigues v. Superior Court (Joaquim) (2005) 127 Cal.App.4th 1027, 1032). We believe this standard is met here, and defendants do not disagree. 3 diversion by virtue of Vehicle Code section 23640 (hereinafter “section 23640”). The trial court,

however, noted the history of subsequently enacted diversion “statutes which have extensively run

afoul and butted heads with 23640,” and observed the legislative history specific to section

1001.95, reasoning:

I think in this case, the best interpretation of the legislative history, given the fact that the author of the bill appears to be anticipating inclusion of DUIs and then even when the governor signed the bill, in his signing statement, the governor said, “I’m signing this bill” -- and I’m just paraphrasing -- “I do have some concern that it includes DUIs, and I expect the legislature is going to change that in the future. I’m going to work with the legislature to change that in the future.”

So when I look at those together, I have to conclude the legislative history of this bill is it includes DUIs. . . . In terms of -- that’s eligibility.

Turning to suitability, the trial court found defendant’s particular case otherwise suitable for

diversion.

On February 18, 2021, the People filed a petition for writ of mandate or prohibition in this

court and we issued an order to show cause.

INM2003659 / APRI2100013

Defendant and real party in interest Ortiz was also charged by misdemeanor complaint with

DUI, was arraigned, and pleaded not guilty. On February 1, 2021, the date set for jury trial, the

trial court placed defendant on section 1001.95 diversion over the prosecutor’s objection. With

regard to the threshold question of eligibility the trial court observed that “the legislature has seen

fit to exclude four specific cases or categories of cases from 1001.95. And DUI or driving under

the influence offenses were not excluded from there.” In finding a legislative intent to include

DUIs despite section 23640, the trial court found it significant that a recently introduced bill,

Senate Bill No. 282, sought

to specifically exclude driving under the influence offenses as well as a few other categories and specific statutes.

4 One generally does not -- or the legislature does not move to amend a statute to exclude something unless it was otherwise included, so I do believe that that is a pretty clear manifestation that, at least, the legislature believed that DUIs were included. And since what I have to do is divine legislative intent, I don’t think that there is much stronger indicator than the legislature themselves thinking that they included it, and that’s why at least one legislature [sic] has moved to amend the bill.

As the in the other two cases, the trial court found defendant otherwise suitable for

diversion, the People filed a writ petition in this court, and we issued an order to show cause.

DISCUSSION

I. The Legal Issue and Its Background

The People’s argument in each case is that DUIs are categorically ineligible for section

1001.95 misdemeanor diversion because of section 23640. They do not contest the trial court’s

secondary findings that each defendant was individually suitable for diversion.

Section 1001.95, which took effect January 1, 2021, sets forth an alternative dispositional

scheme to the ordinary process of criminal adjudication, in which “[a] judge in the superior court

in which a misdemeanor is being prosecuted may, at the judge’s discretion, and over the objection

of a prosecuting attorney, offer diversion to a defendant . . . .” (§ 1001.95, subd. (a), added by

Stats. 2020, ch. 334, § 1.) As with other forms of pretrial diversion, “[i]f the defendant has

complied with the imposed terms and conditions, at the end of the period of diversion, the judge

shall dismiss the action against the defendant”; however, “[i]f the court finds that the defendant

has not complied with the terms and conditions of diversion, the court may end the diversion and

order resumption of the criminal proceedings.” (§ 1001.95, subds. (c), (d); cf., e.g., Pen. Code, §

1000 et seq.) By its plain terms, section 1001.95 applies to all misdemeanors except for these

express exclusions: violations of Penal Code sections 273.5, 243, subdivision (e), 676.9, and any

5 offense carrying mandatory sex offender registration. (§ 1001.95, subd. (e).) Misdemeanor DUIs

are plainly not included in this list of ineligible offenses. But there is another statute to consider.

Section 23640, a preexisting statute dating back almost 40 years (see former Veh. Code, §

23202, added by Stats. 1981, ch. 940, § 32), provides in relevant part that,

[i]n any case in which a person is charged with a violation of [Vehicle Code] Section 23152 or 23153, prior to acquittal or conviction, the court shall neither suspend nor stay the proceedings for the purpose of allowing the accused person to attend or participate, nor shall the court consider dismissal of or entertain a motion to dismiss the proceedings because the accused person attends or participates during that suspension, in any one or more education, training, or treatment programs, including, but not limited to, a driver improvement program, a treatment program for persons who are habitual users of alcohol or other alcoholism program, a program designed to offer alcohol services to problem drinkers, an alcohol or drug education program, or a treatment program for persons who are habitual users of drugs or other drug-related program.

In other words, the court may not grant pretrial diversion to a misdemeanor or felony DUI

defendant. This is “[t]he unambiguous intent of” the section. (People v. Darnell (1990) 224

Cal.App.3d 806, 810.)

The issue confronting this court is not novel: whether the two statutes can be harmonized

and, if they cannot, which statute controls. Of course, “[t]he proper interpretation of a statute is a

question of law, which we determine independently, or de novo.” (People v. Jacobo (2019) 37

Cal.App.5th 32, 42.) But there is a long and complex history surrounding judicial application of

section 23640 to preexisting and subsequently enacted diversion schemes.

Diversion of defendants with developmental disabilities

The first case of note is People v. Weatherill (1989) 215 Cal.App.3d 1569, which

considered whether the forerunner of section 23640, Vehicle Code section 23202, barred a DUI

defendant from being granted diversion for defendants with developmental disabilities under Penal

Code section 1001.20 et seq. After first “[p]erceiving no ambiguity in section[] 23202” to exclude

6 from diversion “all driving under the influence defendants, without exception,” the court then

examined the legislative history because the defendant had “contend[ed] that this seeming all

inclusive prohibition against diversion is apparent only.” (Id. at p. 1574 [emphasis in original].)

But the legislative history of the bill that had added the prohibition, Assembly Bill No. 541 (1981–

1982 Reg. Sess.), actually revealed a strong intent to curb the scourge of DUIs in accord with the

public sympathies of the time by, in part, ensuring that all DUI defendants would “have their guilt

or innocence determined without delay or diversion.” (Id. at pp. 1574–77.)

The Weatherill court then turned to conventional tools of statutory interpretation to resolve

the conflict between the diversion scheme and Vehicle Code section 23202’s prohibition on

diversion for DUI defendants. Invoking the rule that a specific statute controls over a conflicting

general statute, the court explained that the subject matter of Vehicle Code section 23202 was

more specific because it only “applies to a single type of conduct” whereas the diversion scheme

“comprehends hundreds of misdemeanors in scores of codes . . . .” (Weatherill, supra, 215

Cal.App.3d at pp. 1577–78.) Similarly, the rule that a more recent statute controls over an older

statute supported application of the newer-by-one-year Vehicle Code section 23202. (Id. at p.

1578.) Furthermore, while it was true that other subsequently enacted diversion schemes included

specific exclusions for DUIs, this was only “in order to avoid the risk of implied repeal” of Vehicle

Code section 23202 which buttressed the Legislature’s consistent intent that “section 23202 bars

all diversion programs.” (Id. at pp. 1579–80.) Finally, the court explained that the unavailability

of diversion programs did not undermine the goal of rehabilitation because the trial court “may

prescribe, as conditions of probation, appropriate education, training, and treatment programs.”

(Id. at p. 1580.)

7 Weatherill thus held that Vehicle Code section 23202 barred the defendant in that case

from diversion. It was a split decision, however, and Justice Johnson’s dissent explained that “[i]t

can be contended just as forcefully that” Vehicle Code section 23202 is the general statute because

it applies to all DUI cases while the diversion scheme applies only to a specialized class of

defendants. (Weatherill, supra, 215 Cal.App.3d at pp. 1582–83 (dis. opn. of Johnson, J.).) With

regard to the legislative history, the dissent read it to reflect an intent in Vehicle Code section

23202 only to eliminate a different, particular sort of problematic diversion program that had

recently sprung up at the trial court level.

Under [a prior diversion scheme that excluded only persons convicted of DUI], some counties developed diversion programs referred to as “Lucky Deuce” programs. (A drunk driving charge under Vehicle Code section 23152 is commonly referred to as a “deuce.”) Under the auspices of the court, the district attorney and defense counsel, first-time offenders could elect to enter a year-long “Lucky Deuce” program at their own expense. Upon successfully completing the program, the “deuce” could be reduced to reckless driving, a moving violation or even dismissed entirely in the court's discretion. The court proceedings were stayed pending completion of the program. [Citation.] According to the Senate Judiciary Committee report, Vehicle Code section 23202 would eliminate these “Lucky Deuce” programs. [Citation.]

The legislative history of section 23202 furnished us by the Legislative Intent Service contains nothing which would indicate the Legislature had the diversion program for the [developmentally disabled] in mind when it enacted that section. Rather, the materials imply the Legislature sought only to eliminate the “Lucky Deuce” programs.

(Id. at p. 1584.) The dissent’s view was buttressed in part by the policy implication that “Penal

Code section 1001.20 was enacted not as an act of kindness” but “because the Legislature felt

imprisonment was ineffective as a deterrent for that class of defendants . . . .” (Id. at pp. 1584–

88.)

8 Military diversion

The issue lay there dormant for over a quarter century, until the Legislature’s enactment of

a diversion scheme for members of the military and veterans suffering from maladies related to

their service. (Pen. Code, § 1001.80, added by Stats. 2014, ch. 658.) In People v. VanVleck (2016)

2 Cal.App.5th 355, the Fourth District Court of Appeal, Division One held that the general

prohibition on diversion for DUI defendants, now found in section 23640 (see id. at p. 361, fn. 2),

applied to bar such defendants from military diversion. It noted that “[w]hile the Legislature did

not specifically include or exclude driving under the influence misdemeanors from military

diversion, we presume the Legislature was aware of preexisting legal authority and decisional

interpretations, and enacted the military diversion statute with that in mind.” (Id. at p. 363.) And

so the Legislature could be charged with knowledge “of the Weatherill decision and its

interpretation of section 23640 when it enacted the military diversion statute.” (Id. at p. 364.) In

short, in light of section 23640 and Weatherill it was incumbent on the Legislature to expressly

include DUI cases as eligible for military diversion if that was what it wanted. (See id. at pp. 365,

fn. 3, 367.)

Shortly thereafter a panel of the Second District Court of Appeal reached the opposite

conclusion. In Hopkins v. Superior Court (2016) 2 Cal.App.5th 1275, the court found that because

the military diversion statute “‘appl[ies] whenever a [misdemeanor] case is before a court,’” it was

in irreconcilable conflict with section 23640 such that it was not appropriate to try to harmonize

them. (Id. at pp. 1282–83 [emphasis in original].) Echoing Justice Johnson’s dissent in Weatherill,

the Hopkins court found the general-versus-specific-statute rule too facile, in that it can apply

either way depending on one’s “arbitrary choice of focus . . . .” (Id. at pp. 1283–84.) But the

earlier-versus-later-statute rule could only apply in one direction: the newer Penal Code section

9 1001.80 supersedes the older section 23640 to the extent they conflict. (Id. at p. 1284.) The

Hopkins court doubted that it was appropriate to presume that the Legislature enacted the diversion

scheme in light of existing law in a situation where there was a “direct conflict[],” and in a manner

so as to turn the Legislature’s “mere silence . . . into a species of implied legislation . . . .” (Id. at

pp. 1284–85 [internal quotation marks omitted].) And it inferred from various aspects of the

legislative history — specifically the policies of military diversion and the recognition that other

diversion schemes expressly exempt DUIs — a strong legislative intent to include DUIs. (Id. at

pp. 1286–88.)

The Legislature itself ultimately resolved the conflict between VanVleck and Hopkins,

amending Penal Code section 1001.80 to expressly include DUI cases as eligible

“[n]otwithstanding . . . Section 23640 of the Vehicle Code . . . .” (Pen. Code, § 1001.80, subd. (l),

added by Stats. 2017, ch. 179.)

Mental health diversion

Most recently, the Fourth District Court of Appeal, Division Two addressed the issue in

the context of Penal Code section 1001.36 mental health diversion, which took effect in 2018.

(See Stats. 2018, ch. 34, § 24.) First, in Tellez v. Superior Court (2020) 56 Cal.App.5th 439, it

observed that Penal Code section 1001.36 and section 23640 are in conflict because the former,

taken alone, would unambiguously include DUIs within its scope; this is so even though Penal

Code section 1001.36 simply says that it applies “‘[o]n an accusatory pleading alleging the

commission of a misdemeanor or felony offense’” without any particular language of universality.

(Id. at pp. 443–44.) The court then drew heavily from a unique aspect of the legislative history:

the fact that “the amendment of the military diversion statute” to expressly include DUIs, the

original “enactment of Penal Code section 1001.36” with no exclusions, “and the amendment

10 of Penal Code section 1001.36” to add a list of excluded offenses that omitted DUIs, “all occurred

during the 2017 to 2018 legislative session.” (Id. at p. 447.)

This history establishes that the Legislature wanted the existing bar on diversion for DUI offenses to take precedence. The Legislature was familiar with the conflict between Vehicle Code section 23640 and diversion statutes and knew how to clarify that the diversion statute should control over the Vehicle Code, having recently confronted the issue with respect to military diversion. What is more, the earlier version of Senate Bill 215 [the bill amending Penal Code section 1001.36] would have clarified that mental health diversion applied notwithstanding any other law, but the Legislature abandoned that “notwithstanding” clause in the final version of Senate Bill 215. The Legislature’s failure to amend Penal Code section 1001.36 in the same way that it had recently amended the military diversion statute indicates that the Legislature did not intend to override Vehicle Code section 23640. Instead, the Legislature intended that the decades-old prohibition against diversion for DUI offenses should prevail.

It is true that, at the same time the Legislature abandoned the notwithstanding clause in Senate Bill 215, the Legislature abandoned the provision that would have expressly excluded DUI offenses. Tellez relies on that latter change and argues that we should not read words into a statute that the Legislature has rejected. [Citation.] But we need not read the ineligibility of DUI offenses into Penal Code section 1001.36 — Vehicle Code section 23640 accomplishes that. In contrast, no separate code provisions render the other disqualifying offenses ineligible for mental health diversion. If the Legislature wanted those other offenses to be ineligible for mental health diversion, Penal Code section 1001.36 had to say so. The Legislature thus created the list of ineligible offenses in Penal Code section 1001.36, subdivision (b)(2), but it was unnecessary to add DUI offenses to that list. That is, the Legislature deleted the exclusion for DUI offenses from Senate Bill 215 not because it wanted to make DUI offenders eligible for mental health diversion but because there was no need for an express exclusion in Penal Code section 1001.36 — such offenders were already excluded by Vehicle Code section 23640.

(Id. at p. 448.)

In Moore v. Superior Court (2020) 58 Cal.App.5th 561, a slightly different panel of the

same court reaffirmed its position that,

if the Legislature had intended DUI defendants to be eligible for pretrial mental health diversion, it would have repealed or amended Vehicle Code section 23640, or it would have “carve[d] out an exception” to Vehicle Code section 23640 in Penal Code section 1001.36. Its failure to do either — during the same legislative session in which it amended Penal Code section 1001.80 to make military members charged with misdemeanor DUI offenses eligible for military diversion [citation]

11 — manifests its intent to keep all DUI defendants ineligible for pretrial mental health diversion under Vehicle Code section 23640.

(Id. at p. 579.)

II. Section 1001.95 Misdemeanor Diversion and DUIs

None of the cases discussed above is entirely congruent with ours. Weatherill dealt with a

previously enacted diversion program where the DUI prohibition was the more recent expression

of legislative intent; the dispute between VanVleck and Hopkins was never settled judicially and

involved a diversion scheme restricted to a small class of defendants; and Tellez and Moore dealt

with a remarkably unique and telling legislative history, and both involved defendants charged

with felony DUI causing injury. Perhaps most importantly, none involved a diversion scheme as

sweeping and consequential as the one before us, a point we discuss further below. (Post, at pp.

21–22.) With the issue now presented squarely, we have come to the decision that misdemeanor

DUI cases are eligible for section 1001.95 diversion despite the prohibition embedded in section

23640.

Our analysis is guided throughout by the bedrock precept that our duty is “‘“‘to ascertain

the intent of the lawmakers so as to effectuate the purpose of the statute,’”’” meaning that we must

“‘“[u]ltimately . . . choose the construction that comports most closely with the apparent intent of

the lawmakers, with a view to promoting rather than defeating the general purpose of the statute.”’”

(People v. Gutierrez (2014) 58 Cal.4th 1354, 1369.) “It cannot be too often repeated that due

respect for the political branches of our government requires us to interpret the laws in accordance

with the expressed intention of the Legislature.” (California Teachers Assn. v. Governing Bd. of

Rialto Unified School Dist. (1997) 14 Cal.4th 627, 632–33.) Viewing the question before us from

this perspective, we must answer this: When the Legislature authorized trial courts to grant

diversion in a misdemeanor case so long as the charge wasn’t one of the expressly listed

12 exclusions, did they mean to give courts the power to grant diversion in DUI cases — a non-

excluded offense — notwithstanding the existence of section 23640? For the reasons that follow,

we believe that when the Legislature enacted section 1001.95 it intended for it to include

misdemeanor DUIs.

A. The statutory text and canons of construction

“‘“[T]he statutory language . . . generally is the most reliable indicator of legislative

intent.”’” (Gutierrez, supra, 58 Cal.4th at p. 1369.) By its plain language section 1001.95 applies

broadly to “a misdemeanor . . . being prosecuted” with only a few clearly identified exceptions. It

is true, as the dissent points out, that the text does not contain any overt flags indicating universality

or precedence, such as the phrase “notwithstanding any other law”; but neither does it signal

deference or subjection to otherwise applicable law, which the Legislature also knows how to draft.

(See Corp. Code, § 206; Health & Saf. Code, §§ 25244.10, 50466, subd. (a); Prob. Code, § 880,

subd. (b)(2); Pub. Resources Code, § 4291.3, subd. (a); Pub. Util. Code, § 107015, subd. (t).) So

the non-existence of universal language isn’t a positive indication in its own right; it merely sets

up the conflict.

And indeed there is a conflict because “[b]oth statutes are unambiguous in their plain

language:” section 23640 “clearly prohibits diversion for defendants charged with DUI offenses,”

and section 1001.95 “just as clearly allows” the trial court to grant diversion in a misdemeanor

case. (Tellez, supra, 56 Cal.App.5th at p. 444.) “When it comes to [misdemeanor] DUI offenses

. . . section 23640 prohibits a court from doing what” section 1001.95 “permits. The two ‘statutes

are in conflict and thus one must be interpreted as providing an exception to the other.’” (Ibid.)

The dissent posits that we can harmonize the statutes, but doing so contradicts the Court of

Appeal’s consistent understanding that 23640 poses a real conflict with diversion statutes that

13 would otherwise include DUIs. (See ibid.; Hopkins, supra, 2 Cal.App.5th at pp. 1282–83;

Weatherill, supra, 215 Cal.App.3d at p. 1577 & fn. 7.) “‘[T]he requirement that courts harmonize

potentially inconsistent statutes when possible is not a license to redraft the statutes to strike a

compromise that the Legislature did not reach.’” (Hopkins, at p. 1282.) Indeed, the dissent offers

what we believe to be the very first appellate opinion directly concluding that true harmonization

is possible. (But see Weatherill, at p. 1578, fn. 9 [noting its own dissent’s equivocation on this

point].) Following the Court of Appeal, we disagree.

“Courts may rely on canons of construction to reconcile conflicting statutes.” (Tellez,

supra, 56 Cal.App.5th at p. 444.) As the Moore and Hopkins courts explained, under these

circumstances “either statute can be construed as more specific than the other, regarding their

subject matters,” meaning “that the rule that a specific statute controls over a more general one

‘does not assist us in this case.’” (Moore, supra, 58 Cal.App.5th at p. 580 & fn. 10; see Hopkins,

supra, 2 Cal.App.5th at pp. 1283–84 [“unless we are prepared to make an arbitrary choice of focus,

the general-versus-specific rule of statutory construction gets us nowhere”].) That is, while “[i]t

is the general rule that where the general statute standing alone would include the same matter as

the special act, and thus conflict with it, the special act will be considered as an exception to the

general statute” (People v. Gilbert (1969) 1 Cal.3d 475, 479), section 1001.95 standing alone does

not include the same matter as section 23640 because felony DUIs are included in the latter but

not the former. So section 1001.95 is the more general statute simply in the sense that it covers a

greater number of discrete offenses; but it only includes the subset of misdemeanor DUIs, while

section 23640 covers all DUIs, generally.

Turning to “the rule that ‘“later enactments supersede earlier ones”’” (Hopkins, supra, 2

Cal.App.5th at p. 1284), section 1001.95 is the newer statute by decades. This generational span

14 is significant because the later-versus-earlier canon is not an arbitrary tiebreaking rule; it reflects

a deeper, more fundamental concept, that the dead hand of a past legislative session does not

constrict the freedom of the current Legislature to enact laws consistent with contemporary public

policy. With limited exception (see Cal. Const., art. II, § 10, subd. (c) [limitations on amending

initiative statutes]), long-standing statutes do not derive their force merely from their venerability;

they derive it primarily from the sufferance of the current Legislature. “[A]n act of one legislature

is not binding upon, and does not tie the hands of future legislatures. . . . ‘. . . The legislature . . .

cannot declare in advance the intent of subsequent legislatures or the effect of subsequent

legislation upon existing statutes,’” and so “‘the later law prevails as the last expression of the

legislative will . . . .’” (United Milk Producers of Cal. v. Cecil (1941) 47 Cal.App.2d 758, 764–

65.) In short, section 1001.95 “is the later and therefore the controlling expression of the legislative

intent . . . .” (Jensky v. State Bd. of Equalization (1945) 67 Cal.App.2d 612, 617.)

Certainly, “‘“[n]o single canon of statutory construction is an infallible guide to correct

interpretation in all circumstances”’” and they “‘will not be applied so as to defeat the underlying

legislative intent otherwise determined.’” (Tellez, supra, 56 Cal.App.5th at pp. 448–49.) Here,

however, the later-versus-earlier rule is in accord with other indicators of legislative intent.

B. The history of misdemeanor diversion

Subsequent to the enactment of section 23640’s predecessor, the Legislature created two

new misdemeanor diversion programs, and one deferred entry of judgment pilot program, which

all included express exclusions for DUIs despite the existence of the language now found in section

23640. (See Pen. Code, §§ 1001.2, subd. (a), added by Stats. 1982, ch. 42, § 2; Pen. Code, §

1001.51, subd. (b), added by Stats. 1982, ch. 1251, § 2; former Pen. Code, § 1001.98, subd. (h)(3),

added by Stats. 2014, ch. 732, § 1.) “The Legislature’s omission of an” express exclusion for

15 misdemeanor DUIs in section 1001.95 “when it included such language in several related statutes,

is significant. ‘“When the Legislature ‘has employed a term or phrase in one place and excluded

it in another, it should not be implied where excluded.’”’” (People v. Sung Jue Seo (2020) 48

Cal.App.5th 1081, 1088.)

In Weatherill, the court opined that the specific DUI exclusions in the subsequent diversion

schemes was a means by which the Legislature indicated the ongoing validity of Vehicle Code

section 23202 by “avoid[ing] the risk of implied repeal . . . .” (Weatherill, supra, 215 Cal.App.3d

at pp. 1579–80.) Consistent with this reasoning, appellate courts have drawn the converse

inference when a subsequent diversion scheme includes no express DUI exclusion. In Hopkins

the court explained that the

failure to expressly exempt DUI cases in [Penal Code] section 1001.80 stands in stark contrast to prior actions by the Legislature with respect to other diversion programs. . . . That the Legislature did not do so here supports our conclusion that it did not intend that Vehicle Code section 23640 would bar pretrial diversion under section 1001.80 in DUI cases.

(Hopkins, supra, 2 Cal.App.5th at p. 1287.) And, anticipating the issue now before us, the Court

of Appeal division that sits as our direct superior opined in dicta:

We do not believe it is clear whether DUI offenses are eligible for the new misdemeanor diversion program, and we need not decide the issue. . . . In 1982, the Legislature enacted two sets of statutes providing for misdemeanor diversion programs. [Citations.] When the Legislature did so, it expressly excluded DUI offenses from eligibility. [Citations.] In view of that history, the Legislature’s failure to expressly exclude DUI offenses this time around is a good indicator that it intended DUI offenses to be eligible for the new misdemeanor program.

(Tellez, supra, 56 Cal.App.5th at pp. 449–50.) We are persuaded by the reasoning of Hopkins and

Tellez on this point, which is consistent with the principle of statutory construction noted

immediately above that we should understand as purposeful the Legislature’s omission of language

that it has employed in related statutes.

16 We are mindful that “we presume the Legislature was aware of preexisting legal authority

and decisional interpretations, and enacted the [misdemeanor] diversion statute with that in mind.”

(VanVleck, supra, 2 Cal.App.5th at p. 363.) But this is of little help because in 2020 when the

Legislature considered and adopted section 1001.95 the case law at its disposal was not monolithic.

True, it had VanVleck to tell it that courts might apply section 23640 notwithstanding the new

diversion statute, but it also had Hopkins which stood for the opposite.2 The Legislature, then, had

no particular reason to think that a court interpreting section 1001.95 would reach the same result

as the former case, rather than the result of the latter. So the presumption that the Legislature was

aware of existing case law does not support the conclusion that their failure to expressly address

DUIs in section 1001.95 shows an intent that misdemeanor DUIs be excluded under section 23640.

C. The history of section 1001.95

“[L]egislative history is another well-established tool for ascertaining legislative intent and

harmonizing statutes.”3 (Tellez, supra, 56 Cal.App.5th at p. 444.) The history of Assembly Bill

No. 3234, which enacted section 1001.95, shows that under an early version of the bill it “would

have no statutory requirements for the defendant to satisfy in order to be eligible, nor would any

misdemeanors be statutorily excluded.” (Assem. 3d reading analysis of Assem. Bill No. 3234

(2019–2020 Reg. Sess.), as amended Aug. 3, 2020, at p. 3.) The California District Attorneys

Association pointed out the desirability of excluding certain serious offenses including DUIs (id.

at pp. 4–5), and the bill was amended to its final version which excluded some but not all of those

offenses. A subsequent legislative analysis summarized this amendment by explaining that a

2 Tellez and Moore were not decided until after the bill’s passage so the Legislature did not have the benefit of those analyses. 3 As there has been no objection, we take judicial notice of all the court records, legislative materials, and other documents the parties have provided. (See generally Evid. Code, §§ 452, 459.) 17 defendant could not be offered diversion if charged with any of the newly drafted exclusions.

(Assem. 3d reading analysis of Assem. Bill No. 3234 (2019–2020 Reg. Sess.), as amended Aug.

24, 2020, at p. 1.) The omission of misdemeanor DUIs in the final list of exclusions and

corresponding analysis is telling evidence of the Legislature’s intent to include them as eligible.

It is true that the Tellez court drew the opposite inference where the Legislature actually

deleted a proposed exclusion of DUIs from the diversion statute, reasoning in essence that this

showed that the Legislature understood the existence and operation of section 23640 and intended

to incorporate it into the diversion statute. (Ante, at pp. 10–11.) But the same inference does not

hold here because it was premised on the initial proposal to exclude DUIs, which presented a

discernible indication of the Legislature’s intent; Tellez reasoned that in light of section 23640 this

same intent persisted despite the subsequent deletion. Here, conversely, the Legislature that

enacted section 1001.95 never at any point expressed an intent to exclude misdemeanor DUIs. In

fact, all indications were to the contrary.

During a subcommittee meeting discussing a predecessor bill that sought to add the section

1001.95 misdemeanor diversion scheme in its original form with no express exceptions (Assem.

Bill No. 88 (2019–2020 Reg. Sess.) as amended Jun. 22, 2020, § 14), Assemblymember Cooper

raised the concern that various serious misdemeanors would be eligible, including sex offenses

and DUIs, particularly DUIs with priors. Later, during the floor debate on Assembly Bill No.

3234, Assemblymember Cooper spoke approvingly of the fact that some serious misdemeanors

had been excluded, but expressed concern that the list did not go far enough, pointing to the

remaining inclusion of “DUI with injury, firearms offenses, carrying a concealed firearm, loaded

firearm in public, bringing a deadly weapon to a state building.”

18 During the Senate’s floor debate on the bill, Senator Mitchell noted that “[t]his bill gives

statewide judicial authority to offer optional misdemeanor diversion except for specified offenses.”

Senator Melendez, opposing the bill, said:

This bill allows a judge to provide unlimited diversion for any misdemeanor, with the exclusion of sex offenses, domestic violence and stalking. It does allow for diversion for those who commit child abuse, who have a DUI, hate crimes, bringing a firearm into a legislative office, assault, battery, identity theft, vehicular manslaughter, possessing a firearm upon or within public school, in, on the grounds, all eligible for diversion.

Senator Mitchell responded by pointing out that, “[a]gain, it excludes those convicted of [sic] sex

offenses, D.V. and stalking.”

As a general rule, “‘statements of an individual legislator, including the author of a bill, are

generally not considered in construing a statute, as the court’s task is to ascertain the intent of the

Legislature as a whole in adopting a piece of legislation.’” (American Financial Services Assn. v.

City of Oakland (2005) 34 Cal.4th 1239, 1262.) But this rule does not hold where, as here, “an

individual legislator’s opinions regarding the purpose or meaning of the legislation were expressed

in testimony or argument to either a house of the Legislature or one of its committees” — that is,

“in a legislative forum” where we can be “assur[ed] that the rest of the Legislature . . . knew of . .

. those views,” and where other “legislators or other interested parties with differing opinions as

to the bill’s meaning and scope had” the “opportunity to present their views in rebuttal.”

(McDowell v. Watson (1997) 59 Cal.App.4th 1155, 1161, fn. 3 [so qualifying the general rule]; see

In re Marriage of Bouquet (1976) 16 Cal.3d 583, 590 [“[d]ebates surrounding the enactment of a

bill may illuminate its interpretation”]; California Chamber of Commerce v. State Air Resources

Bd. (2017) 10 Cal.App.5th 604, 627, fn. 14 [“floor statements provide cognizable legislative

history of a bill”]; Bravo Vending v. City of Rancho Mirage (1993) 16 Cal.App.4th 383, 407 [“[i]t

is settled that one type of conduct which may be considered is statements made by legislators

19 during debate on the proposed legislation”]; Nasser v. Superior Court (Gaydos) (1984) 156

Cal.App.3d 52, 58 [“legislative debates” are a legitimate source of legislative intent].) In other

words, while “a legislator’s personal understanding of a bill does not indicate the Legislature’s

collective intent in enacting that bill,” where the statements are “part of the debate on the

legislation and were communicated to other legislators, we can regard them as evidence of

legislative intent.” (Carter v. California Dept. of Veterans Affairs (2006) 38 Cal.4th 914, 928–

29.)4

In the legislative debates surrounding section 1001.95 diversion no member ever

contradicted the assertions of Assemblymember Cooper and Senator Melendez that misdemeanor

DUIs were included. And Senator Mitchell’s defense of the bill failed to mention the exclusion of

misdemeanor DUIs. This history reflects more than the personal beliefs of select individuals.

Rather, members of the Legislature articulated their concerns on the record to their colleagues,

they were never met with a rebuttal, and majorities of both houses passed the bill anyway. This is

compelling evidence that the Legislature as a whole intended to include misdemeanor DUIs.

Though the indicators found in the legislative history are perhaps sporadic, they are not

ambiguous as they all point in the same direction: that the Legislature did not intend to exclude

misdemeanor DUIs from section 1001.95 diversion.

D. The Legislature’s policy goals

“When the plain meaning of the statutory text is insufficient to resolve the question of its

interpretation, we may consider, ‘the impact of an interpretation on public policy, for “[w]here

uncertainty exists consideration should be given to the consequences that will flow from a

4 Carter spoke specifically of the author’s statements, but in light of the other authorities just cited the principle holds regardless of whether or not the legislator was the bill’s author. 20 particular interpretation.”’” (Moore, supra, 58 Cal.App.5th at p. 581.) But of course, “it is for the

Legislature to strike the proper balance between protecting public safety and mitigating the entry

and reentry into the criminal justice system of individuals” charged with misdemeanors. (Ibid.)

Four decades ago, when the Legislature enacted the predecessor to section 23640, its intent

was to punish. “The public wanted and AB 541 provided ‘[c]elerity and certainty of punishment.’”

(Weatherill, supra, 215 Cal.App.3d at p. 1575.) In the present day, however, it is just as clear that

the Legislature’s purpose in enacting section 1001.95 was to treat, restore, and rehabilitate.

AB3234 provides judges with the discretion to provide diversion to individuals charged with misdemeanors they deem appropriate for such a program. Diversion programs that are successfully completed allow a person to avoid the lifelong collateral consequences associated with a criminal record when they are seeking employment or housing. Diversion programs typically require individuals to fulfill strict requirements, including participating in a rehabilitation program. This proactive approach has shown to yield better recidivism rates than merely prosecuting and jailing an individual.

(Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Assem. Bill No. 3234 (2019–

2020 Reg. Sess.), as amended Aug. 24, 2020, at p. 2.) An argument in support of the bill

elaborated:

Incarceration and prosecution are intensely traumatic and damaging processes that harm individuals, families and communities, and often increase recidivism and exacerbate the underlying causes of crime. Judge-granted diversion is a tool that can reduce the direct and collateral consequences of mass incarceration and prosecution and promote racial justice in our criminal legal system. AB 3234 also decreases the taxpayer cost of traditional criminal case proceedings, while increasing accountability through rigorous rehabilitative programming, encouraging familial relationships and growth by avoiding familial separation that occurs with incarceration, and making us all safer by reducing recidivism.

(Assem. 3d reading analysis of Assem. Bill No. 3234 (2019–2020 Reg. Sess.), as amended Aug.

24, 2020, at p. 5 [internal quotation marks omitted].)

The Legislature thus unequivocally enacted section 1001.95 in order to broadly shift

persons charged with misdemeanors away from traditional punishment in order to achieve better

21 long-term outcomes. Indeed, section 1001.95 diversion represents a sea change in the law of

misdemeanors. Up till now “the Legislature has not conferred ‘a general grant of authority to trial

courts to grant diversion to a defendant, outside a diversion program mandated by the state or by

local government, and over the objection of the prosecuting attorney . . . .’” (People v. Marroquin

(2017) 15 Cal.App.5th Supp. 31, 37; see also Pen. Code, §§ 1001.2, subd. (b) [a misdemeanor

diversion program under that chapter requires the approval of the district attorney], 1001.50, subd.

(b) [similar].) But in section 1001.95 the Legislature has now granted the Superior Court exactly

that power, and with wide discretion. We cannot overstate the significance of this innovation, and

our construction of the statutes must respect this rather than downplay it.

There are no reliable indicators that the Legislature that enacted that statute intended to

mark misdemeanor DUIs as particularly unamenable to the rehabilitative efforts characteristic of

pretrial diversion. And section 23640 still operates to exclude felony DUIs from, for example,

mental health diversion. (Moore, supra, 58 Cal.App.5th 561; Tellez, supra, 56 Cal.App.4th 439.)

It therefore furthers the enacted polices of section 1001.95 to hold — consistent with principles of

statutory construction and the other legislative history — that the Legislature intended for

defendants charged with misdemeanor DUI to be eligible for section 1001.95 diversion as an

exception to the prohibition embedded in section 23640. If such was not the Legislature’s intent

they could and should have clearly said otherwise.

DISPOSITION

The petitions are denied.

22

FIRETAG, J.

I respectfully dissent.

In my opinion, I would find that in any case in which a person is charged with a

misdemeanor violation of Vehicle Code section 23152 or 23153,1 those individuals are

categorically ineligible for diversion under Penal Code section 1001.95.2 I find this simply

because Vehicle Code section 236403 expressly prohibits diversion and nothing in section 1001.95

provides otherwise. Although reasonable minds could certainly differ on the interplay between

sections 1001.95 and 23640, I would find that a better argument could be made that the two code

sections operate in harmony with each other rather than in conflict.

There are two main reasons why. The first is that there is no textual support to conclude

that section 23640’s prohibition on misdemeanor DUI diversion has been supplanted by section

1001.95. Nothing in section 1001.95, subdivision (e)’s list of ineligible offenses for diversion

suggests that it is exclusive, and nothing in rest of the text lends support for the idea that section

23640 has been repealed in any manner. As such, section 23640 therefore works in harmony with

section 1001.95 and still functions as a bar to granting diversion to persons charged with a DUI.

The second reason is that other appellate courts, including our own Fourth District Court

of Appeal, Division Two most recently in 2020, have analyzed similar diversion statutes and found

that persons charged with DUIs are categorically exempted from receiving diversion because of

section 23640. As case law shows, there are no discernable differences between section 1001.95

and other diversion statutes, and thus it would be incongruent for me to conclude that a different

result should follow in this matter.

1 Hereafter, “DUI or DUIs.” 2 Hereafter, “section 1001.95.” 3 Hereafter, “section 23640.” 1 For these and the reasons detailed below, I respectfully dissent.

I. The Text of Section 1001.95

In my opinion, there is no textual support in section 1001.95 to find that defendants charged

with misdemeanor DUI violations are eligible for diversion in light of section 23640. I agree with

the majority’s first contention that the task of any reviewing court when analyzing a statute is to

determine the intent behind the law. (People v. Gutierrez (2014) 58 Cal.4th 1354, 1369 [finding

that a court must “choose the construction that comports most closely with the apparent intent of

the lawmakers, with a view to promoting rather than defeating the general purpose of the

statute.”].) I find that in most cases the intent of the Legislature is best found in the actual words

and text used by the Legislature.

At first blush, one can easily see why an argument could be made that DUIs are included.

Indeed, by its own terms section 1001.95, subd. (a) states simply: “A judge in the superior court

in which a misdemeanor is being prosecuted may, at the judge’s discretion, and over the objection

of a prosecuting attorney, offer diversion to a defendant pursuant to these provisions.” Section

1001.95 contains four exceptions to granting diversion for certain enumerated offenses: infliction

of a corporal injury resulting in a traumatic condition on a specified victim (Pen. Code, § 273.5),

domestic battery (Pen. Code, § 243, subd. (e)), stalking (Pen. Code, § 646.9), and any offense

carrying mandatory sex offender registration. (§ 1001.95, subd. (e).)

If there were no other statutes to consider, or if section 1001.95 included language

specifically indicating that these categories are exclusive, then our work would be done. However,

we cannot simply ignore section 23640.

As noted by the majority, the Legislature created section 23640 almost 40 years ago. That

statute clearly provides:

2 [i]n any case in which a person is charged with a violation of [Vehicle Code] Section 23152 or 23153, prior to acquittal or conviction, the court shall neither suspend nor stay the proceedings for the purpose of allowing the accused person to attend or participate, nor shall the court consider dismissal of or entertain a motion to dismiss the proceedings because the accused person attends or participates during that suspension, in any one or more education, training, or treatment programs, including, but not limited to, a driver improvement program, a treatment program for persons who are habitual users of alcohol or other alcoholism program, a program designed to offer alcohol services to problem drinkers, an alcohol or drug education program, or a treatment program for persons who are habitual users of drugs or other drug-related program.

(§ 23640, subd. (a) [emphasis added].) In other words, the Legislature’s intent 40 years ago was

that a trial court is prohibited from granting pretrial diversion to a DUI defendant. This is “[t]he

unambiguous intent of” section 23640. (People v. Darnell (1990) 224 Cal.App.3d 806, 810.)

So what is the intent of section 1001.95? It is clear that the Legislature wanted to create a

statutory scheme whereby many, but not all, misdemeanors would be eligible for diversion.

Clearly, some misdemeanors are not eligible because the statute expressly prohibits it. But what

about section 23640? Indeed, there is no mention of this statute whatsoever in section 1001.95.

There is also no qualifying language in section 1001.95 to indicate that the list of exemptions are

exclusive. As such, it is difficult for me to conclude that the Legislature intended to nullify section

23640 when there is no specific reference of doing so anywhere in the statute.

However, without this textual support the majority has held that section 23640’s

prohibitions do not apply in granting diversion under section 1001.95. Put another way, although

not stated directly, for all practical purposes the majority has concluded that section 1001.95 has

effectively repealed section 23640’s prohibition on diversion, at least with respect to misdemeanor

DUI offenses.4

4 The majority concludes that because felony DUIs are still categorically prohibited from diversion under section 23640, that section 1001.95 has not fully repealed section 23640. I find this to be a distinction without a difference. Whether section 23640 is repealed in whole or in part 3 In my opinion, not only has section 1001.95 not explicitly repealed section 23640, there is

no reason to believe it has done so implicitly either. Indeed, our Supreme Court has regularly

cautioned lower courts for making a judicial finding that one statute has repealed another,

especially when there is no textual support to do so.

In Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61

Cal.4th 830, the court was tasked with reconciling the interplay between Code of Civil Procedure

sections 473 and 1008. In resolving this conflict, the court looked to harmonize the two statutes,

rather than find one statute superseded the other. The Supreme Court held:

In this case, the parties disagree less over what sections 473 and 1008 mean than over how the two statutes interact. While plaintiff contends section 1008 governs all renewed applications for relief from default, including applications under section 473(b), defendants contend the two statutes conflict and that section 473(b) takes precedence. Under these circumstances, two principles of statutory construction are especially relevant. First, “‘[a] court must, where reasonably possible, harmonize statutes, reconcile seeming inconsistences in them, and construe them to give force and effect to all of their provisions . . . .’” [Citation.] Second, all “‘“‘presumptions are against a repeal by implication’”’” [citation], including partial repeals that occur when one statute implicitly limits another statute’s scope of operation.

Thus, “‘“we will find an implied repeal ‘only when there is no rational basis for harmonizing . . . two potentially conflicting statutes [citation], and the statutes are “irreconcilable, clearly repugnant, and so inconsistent that the two cannot have concurrent operation.” ’”’” [Citation.] Applied to the case before us, these principles require us to favor a reasonable construction that gives full effect to both sections 473(b) and 1008. With that cautionary preface we turn to the statutory language.

(Even Zohar, at p. 838 [emphasis and paragraph break added].) As Even Zohar dictates, courts

should harmonize statutes, not find them in conflict to the point where a court effectively concludes

that one statute implicitly repeals the other.

is not germane to the analysis; the point is that the majority’s ruling effectively repeals section 23640’s prohibition to grant diversion to persons charged with a misdemeanor DUI offense. 4 In this case, it is quite simple to harmonize the two statutes: the list of misdemeanor

offenses that are ineligible for diversion in section 1001.95, subdivision (e) is non-exclusive, and

because section 1001.95 makes no mention of section 23640, the prohibition on granting diversion

to persons charged with DUI offenses remains. That is the simplest, and in my opinion most

consistent, way to resolve any perceived conflict between the two statutes. Certainly, there is

nothing in these two code sections to conclude that they are so irreconcilable, repugnant or

inconsistent with each other that they cannot have concurrent operation. (Even Zohar, supra, 61

Cal.4th at p. 838.) In short, if the Legislature wanted to repeal section 23640, or modify it, then

the Legislature could have expressly used language such as, “Notwithstanding section 23640 . . .

,” or even, “Notwithstanding any other law . . . .” Of course, the Legislature made no such

expression.

As such, I would hold that the text of section 1001.95 provides no support to find that

section 23640’s prohibition on granting diversion for misdemeanor DUIs offenses has been set

aside.

II. Case law Interpreting Similar Diversion Statutes

Notwithstanding this textual analysis, case law also supports the finding that DUIs are

ineligible for diversion under section 1001.95. As the majority has catalogued, case law

interpreting the relationship between section 23640 and other diversion statutes is nothing new.

For over 30 years, courts have wrestled with similarly-worded diversion statutes and how section

23640 applies. But what is interesting is that most of the courts, with the exception of Hopkins v.

Superior Court (2016) 2 Cal.App.5th 1275, discussed below, have concluded that unless the

Legislature expressly states so, section 23640 prohibits diversion for DUI offenses. Johnson’s eloquent dissent, the majority court concluded that section 23202, the forerunner to

section 23640, prohibited a DUI defendant from being granted diversion for defendants with

developmental disabilities under Penal Code section 1001.20 et seq., a diversion scheme that,

similar to section 1001.95, applied to all misdemeanors. (Id. at p. 1571–1580.)

Years later, the Legislature created a new statute for diversion for members of the military

and veterans, Penal Code section 1001.80. As the majority recognized, in People v. VanVleck

(2016) 2 Cal.App.5th 355, 361, the Fourth District Court of Appeal, Division One held that the

prohibition on diversion for DUI defendants found in section 23640 applied and barred those

defendants from military diversion. Of course, in Hopkins v. Superior Court, supra, 2 Cal.App.5th

1275, the court held otherwise and found that because the military diversion statute “‘appl[ies]

whenever a [misdemeanor] case is before a court,’” it was in irreconcilable conflict with section

23640 such that it was not appropriate to try to harmonize them. (Id. at pp. 1282–83 [emphasis in

original].)

The Supreme Court granted review on both cases, but before the court had occasion to rule,

the Legislature resolved the VanVleck and Hopkins conflict and amended Penal Code section

1001.80 to expressly include DUI cases as eligible. (Pen. Code, § 1001.80, subd. (l), added by

Stats. 2017, ch. 179.) Unfortunately, we can only speculate what the Supreme Court would have

done with this conflict, but importantly, what we do know is that the Legislature took it upon itself

to resolve the ambiguity.

Lastly, as identified by the majority, the District Four, Division Two appellate court

analyzed the mental health diversion statute in section Penal Code section 1001.36 and section

23640. In Tellez v. Superior Court (2020) 56 Cal.App.5th 439, the court held that section 23640

6 prohibited granting diversion to persons under the mental health courts. (Id. at p. 448.) A different

panel later reaffirmed this same conclusion only a short time later in Moore v. Superior Court

(2020) 58 Cal.App.5th 561, 579.

My review of these prior cases leads me to find that unless a diversion statute states

otherwise, section 23640 still operates a bar to diversion for DUI offenses. For instance, consider

the language in section 1001.36 as identified by Tellez and Moore, supra, which were both just

decided in late 2020. In reviewing those statutes together, I can find no substantive differences for

me to conclude that section 1001.95 should be treated differently from section 1001.36. Both

sections provide the trial court with the power to grant diversion under certain circumstances. Both

sections indicate that certain enumerated offenses are categorically ineligible for diversion. And,

most importantly, neither section references in any way DUIs, section 23640 or language that

indicates that the exceptions are exclusive.5 In my opinion, there is no reason why Tellez and

Moore do not dictate a finding that DUIs are categorically prohibited under section 1001.95.6

5 The only slight difference between the two statutes are that section 1001.36 applies to both felonies and misdemeanors, and section 1001.95 only to misdemeanors. However, as stated above, I do not find any relevance in such a distinction. If the Legislature finds that misdemeanors and felonies should be treated differently, that it their prerogative to do so. 6 Although it is perhaps dicta, the defendant in Moore, supra, specifically argued to the appellate court that newly-created section 1001.95 demonstrated that the Legislature intended to make DUIs eligible for diversion under section 1001.36. The Court was not persuaded. The Moore court held:

Moore argues that the Legislature’s failure to exclude misdemeanor DUI offenses from the new misdemeanor program (§§ 1001.95-1001.97) shows that it intended to include them. (§ 1001.95, subd. (e).) Likewise, he claims that the Legislature’s failure to exclude misdemeanor and felony DUI offenses from eligibility for pretrial mental health diversion (§ 1001.36, subd. (b)(2)) shows that it intended to include them. But whether misdemeanor DUI offenses are eligible for diversion under new sections 1001.95 to 1001.97 is not before us, and even if they are, “it does not follow that [misdemeanor and felony] DUI offenses are [ ] eligible for mental health diversion” under section 1001.36. (Tellez, supra, 56 Cal.App.5th at p. 450, 270 Cal.Rptr.3d 418.) For the reasons explained, DUI offenses are not eligible for diversion under section 1001.36. 7 In the end, I would find that it is for the Legislature to amend section 1001.95 if it seeks to

include DUIs for misdemeanor diversion. As the court held in Moore, supra, when the defense

argued that the policy of increasing diversion would be best be served if DUI defendants who

suffer from qualifying mental health disorders are granted diversion, the appellate court responded,

“Although this may be so, it is for the Legislature to strike the proper balance between protecting

public safety and mitigating the entry and reentry into the criminal justice system of individuals

with mental disorders.” (58 Cal.App.5th at p. 581 [emphasis added].) I would rule the same.

III. Conclusion

Therefore, because I can find no textual support for finding that section 23640 has been

repealed, nullified or otherwise set aside, and because precedent has analyzed analogous statutes

and found DUIs are not included in similarly-worded diversion statutes, I would find that DUIs

are categorically ineligible for diversion under section 1001.95. I would thus grant the People’s

writ.

I respectfully dissent.

(Moore, supra, 58 Cal.App.5th at p. 582 [emphasis added].) 8