People v. Vargas CA4/3 ( 2021 )

Filed 5/10/21 P. v. Vargas CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G058503
v. (Super. Ct. No. 16NF3321)
CHRISTOPHER VARGAS, OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County, Gregg
L. Prickett, Judge. Affirmed.
Forest M. Wilkerson, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Susan
Elizabeth Miller and Ksenia Gracheva, Deputy Attorneys General, for Plaintiff and
Respondent.
After pleading guilty to two counts of driving under the influence (DUI)
causing injury, appellant Christopher Vargas was placed on felony probation. On appeal,
he contends the trial court erred in denying his request for mental health diversion
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pursuant to Penal Code section 1001.36. Because DUI is not a divertible offense under
that statute, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On the night of July 10, 2016, appellant was driving on the Imperial
Highway in Brea when he barreled through a red light at the 57 Freeway interchange.
Appellant’s car plowed into another vehicle that was in the intersection, seriously
injuring its two occupants. When interviewed by officers at the scene, appellant admitted
he had been drinking that evening, and subsequent testing revealed his blood-alcohol
level was over twice the legal limit.
As a result of the incident, appellant was charged in a two-count felony
complaint with DUI causing injury and driving with a blood-alcohol content of .08
percent or more causing injury. (Veh. Code, § 23153, subds. (a) & (b).) The complaint
included enhancement allegations that appellant’s blood-alcohol level exceeded .15
percent, he injured more than one person and he inflicted great bodily injury on his
victims. (Veh. Code, §§ 23578, 23558; § 12022.7, subd. (a).)
In April 2018, over a year into the case, appellant went to the Veterans
Affairs (VA) clinic in Long Beach for help. As a marine veteran with several tours of
duty under his belt, he was diagnosed with Post Traumatic Stress Disorder (PTSD) and
alcohol dependency. He was also found to have a traumatic brain injury that was
attributable to his military service. Given these findings, appellant was enrolled in an
alcohol treatment program and began receiving a wide range of services from the VA.
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Unless noted otherwise, all further statutory references are to the Penal Code.
2
A few months into the program, defense counsel filed a motion for mental
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health diversion under section 1001.36. In support of the motion, defense counsel
presented documentation from appellant’s service providers indicating he was doing well
in treatment. In light of that, and considering this case was appellant’s first brush with
the law, defense counsel contended appellant was a good candidate for diversion. The
prosecutor disagreed. In opposing appellant’s diversion request, he argued appellant’s
PTSD did not play a significant role in the charged offenses, and he posed an
unreasonable risk to public safety.
Over the next several months, the parties filed supplemental arguments in
support of their respective positions. Defense counsel also supplied the trial court with
documentation regarding appellant’s progress in treatment. By all accounts, appellant
was doing well on his treatment plan, and his providers were optimistic about his
prospects for recovery.
Ultimately, however, the trial court denied appellant’s request for diversion.
Adopting the prosecutor’s position on the issue, the trial court concluded appellant was
unsuitable for diversion because there was not a significant link between his PTSD and
his alleged crimes, and he posed an unreasonable danger to the community.
Having lost that battle, appellant pleaded guilty to the charged offenses and
admitted all of the enhancement allegations. Although he was facing a maximum
sentence of nine years in prison, the trial court placed him on felony probation subject to
various conditions, including successful completion of his treatment program. The court
recognized this disposition was “extremely lenient.” However, it felt probation was
justified given appellant’s military service and his demonstrated commitment to
treatment.
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The motion also requested diversion under the military diversion program set forth in section
1001.80. However, appellant subsequently abandoned his request for military diversion, and his suitability for such
is not an issue in this appeal.
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DISCUSSION
Appellant contends the trial court erred in denying his request for mental
health diversion under section 1001.36. That claim is grounded in the factual
circumstances surrounding his case. Appellant simply does not believe the record
supports the trial court’s stated reasons for denying his request for diversion. And he
may be correct about that – especially considering the significance and commendable
progress he has made in the fight against his demons. But there is another problem with
his case that requires us to affirm the trial court’s decision.
To appellant’s credit, he recognizes two recent decisions bearing on his
eligibility for diversion under section 1001.36, Tellez v. Superior Court (2020) 56
Cal.App.5th 439 (Tellez) and Moore v. Superior Court (2020) 58 Cal.App.5th 561(Moore). In fact, appellant candidly admits that Tellez and Moore construed section
1001.36 to preclude mental health diversion for offenders, like himself, who were
charged with DUI. Appellant argues Tellez and Moore were wrongly decided, but we
disagree and find he is statutorily ineligible for mental health diversion as a matter of law
due to the nature of his crimes. We therefore do not reach the question of whether the
trial court’s decision was errant from a factual standpoint.
The starting point for our analysis is not section 1001.36, but Vehicle Code
section 23640, which sets forth a general prohibition against diversion in DUI cases.
Enacted in 1999, Vehicle Code section 23640 states:
“(a) In any case in which a person is charged with a violation of [Vehicle
Code] Section 23152 [DUI] or 23153 [DUI causing injury], 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
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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.”
By its terms, this statute applies to appellant because he was charged with
two counts of DUI causing injury in violation of Vehicle Code section 23153. On its
face, it would prohibit diversion. Nevertheless, appellant contends he was eligible for
diversion pursuant to section 1001.36, which was enacted in 2018.
Under subdivisions (a) and (b)(1) of section 1001.36, the trial court may
grant pretrial diversion to a defendant who is accused of committing a misdemeanor or
felony offense if certain conditions are met. Among other things, the trial court must be
satisfied the defendant has a qualifying mental disorder that was a significant factor in his
charged crimes, and he will not pose an unreasonable risk to public safety. (§ 1001.36,
subds. (b)(1)(A), (B) & (F).) However, even if all of the enumerated conditions are met,
subdivision (b)(2) of the statute carves out an exception for some offenses. Pursuant to
that subdivision, diversion may not be granted if the defendant is charged with murder,
voluntary manslaughter, rape, certain sex offenses, or using a weapon of mass
destruction. (§ 1001.36, subd. (b)(2)(A)-(H).)
Appellant’s alleged crime of DUI causing injury is not listed among the
excepted offenses set forth in subdivision (b)(2) of section 1001.36. That omission is the
basis of his argument he is eligible for diversion, assuming all of the conditions listed in
the statute are satisfied. However, while a statement of limited exceptions generally
implies that others do not exist (Moore, supra, 58 Cal.App.5th at pp. 579-580), that rule
of statutory construction does not apply in this case. That’s because irrespective of
section 1001.36, subdivision (b)(2), defendants charged with DUI are categorically
excluded from diversion eligibility by virtue of Vehicle Code section 23640. Given that
section’s general prohibition against diversion in DUI cases, there was no need for the
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Legislature to include DUI among the list of excepted offenses in subdivision (b)(2) of
section 1001.36. To do so would have amounted to a redundancy.
There is another, more compelling, reason why defendants charged with
DUI are ineligible for mental health diversion under section 1001.36. As explained in
Tellez and Moore, that reason becomes apparent upon comparing the legislative history
of section 1001.36 with the legislative history of the military diversion statute, section
1001.80.
As originally enacted in 2014, section 1001.80 was silent as to whether
defendants charged with DUI were eligible for military diversion. Although the statute
stated that it applied to misdemeanors generally, it made no mention of Vehicle Code
section 23640 or DUI offenses in particular. Some courts interpreted that to mean
misdemeanor DUI’s were included under the statute, and some courts interpreted that to
mean they were not. While the issue was pending in the California Supreme Court, the
Legislature amended section 1001.80 to make its intentions clear. (See Tellez, supra, 56
Cal.App.5th at pp. 444-447 [explaining the legislative history of section 1001.80];
Moore, supra, 58 Cal.App.5th at pp. 575-576 [same].) During its 2017-2018 session, the
Legislature amended section 1001.80 to add subdivision (l). That subdivision states,
“Notwithstanding any other law, including Section 23640 of the Vehicle Code, a
misdemeanor offense for which a defendant may be placed in a pretrial diversion
program in accordance with this section includes a misdemeanor violation of Section
23152 or 23153 of the Vehicle Code.”
During the very same legislative session, the Legislature enacted section
1001.36, dealing with mental health diversion. When that law was first introduced in the
Senate, it contained a provision stating that section 1001.36 applied notwithstanding any
other law. However, that provision was deleted. It is not included in the final version of
the statute. Instead, the Legislature abandoned the “notwithstanding any other law”
language and replaced it with the list of nondivertible offenses set forth in section
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1001.36, subdivision (b)(2). (See Tellez, supra, 56 Cal.App.5th at pp. 445-447; Moore,
supra, 58 Cal.App.5th at pp. 576-578.)
As the court in Tellez explained: “This history establishes that the
Legislature wanted the existing bar on diversion for DUI offenses [contained in Vehicle
Code section 23640] to take precedence [over section 1001.36]. 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 [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 [the law]. The Legislature’s failure to
amend . . . section 1001.36 in the same way that it had recently amended the military
diversion statute [by adding subdivision (l) to section 1001.80] 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.” (Tellez, supra, 56 Cal.App.5th at p. 448.)
The court in Moore court agreed, finding “the Legislature’s failure to add a
provision like . . . section 1001.80, subdivision (l), to . . . section 1001.36 during the same
legislative session in which it enacted subdivision (l) of . . . section 1001.80, strongly
indicates that the Legislature did not intend to impliedly repeal Vehicle Code section
23640 insofar as it operates to bar DUI defendants from eligibility for pretrial mental
health diversion under . . . section 1001.36.” (Moore, supra, 58 Cal.App.5th at pp. 576-
577.)
We find the reasoning of Tellez and Moore persuasive and adopt it in this
case. Based on the legislative history of sections 1001.36 and 1001.80, it seems clear the
Legislature did not intend section 1001.36 to be exempt from the general prohibition
against diversion set forth in Vehicle Code section 23640.
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In arguing otherwise, appellant contends Tellez and Moore’s interpretation
of Vehicle Code section 23640 is overly broad and creates disharmony in the statutory
diversion scheme as a whole. He claims there are several features of the statute that
indicate it has a limited reach and was never intended to apply to his particular situation.
For example, while Vehicle Code section 23640 prohibits diversion for alleged violations
of Vehicle Code section 23152 and 23153, it does not mention the more serious DUI
offense of gross vehicular manslaughter while intoxicated. (Veh. Code, § 191.5, subd.
(b).)
Appellant also points out that Vehicle Code section 23640 says nothing
about the source of the defendant’s drinking problem. He takes that to mean the statute
was intended to have general application when there is no evidence the defendant suffers
from a psychological disorder. But when the defendant’s drinking problem stems from a
mental health issue such as PTSD, then section 1001.36 should prevail in order to ensure
the defendant receives proper treatment for that issue.
Appellant’s attempt to limit the reach of Vehicle Code section 23640 is
unavailing. “For nearly 40 years, [that statute] and its predecessor, Vehicle Code former
section 23202, have generally made DUI defendants categorically ineligible for any form
of pretrial diversion.” (Moore, supra, 58 Cal.App.5th at p. 568.) “Vehicle Code former
section 23202[] was enacted in 1981, along with other changes and additions to the
Vehicle Code, ‘in response to growing public concern about intoxicated drivers.’
[Citation.]” (Id. at p. 570.) The underlying intent of the statute was to ensure “‘all
driving under the influence defendants, without exception, shall have their guilt or
innocence determined without delay or diversion.’ [Citation.]” (Id. at p. 571.)
Alas, we must decline appellant’s invitation to construe Vehicle Code
section 23640 in a narrow fashion. There is nothing in the wording or history of the
statute that suggests it should not apply to cases, such as the present one, where the
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defendant seeks to have his DUI prosecution diverted for mental health treatment
pursuant to section 1001.36.
In coming to this conclusion, we recognize sections 1001.36 and 1001.80
currently stand at odds with each other. Whereas a defendant charged with misdemeanor
DUI is eligible for military diversion under section 1001.80, he would not be eligible for
mental health diversion under section 1001.36. But, as we have explained, the legislative
history of the two statutes indicates that result was fully intended by the Legislature.
Although public policy may favor greater parity between the military and mental health
diversion schemes, “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. The Legislature has struck this balance by
declining to make DUI defendants eligible for pretrial mental health diversion.” (Moore,
supra, 58 Cal.App.5th at p. 581.) We are not at liberty to second-guess the wisdom of
this decision.
Given the nature of appellant’s crimes, we conclude he is statutorily
ineligible for mental health diversion under section 1001.36 by virtue of the general
prohibition against diversion for DUI defendants set forth in Vehicle Code section 23640.
Although the trial court denied appellant’s diversion request for other reasons, our role as
an appellate court is to review results, not reasoning. (D’Amico v. Board of Medical
Examiners (1974) 11 Cal.3d 1, 19, 112.) While we applaud appellant’s efforts, we
conclude that because the trial court reached the correct result in denying appellant’s
diversion motion, we cannot disturb its ruling.
However, our decision in that regard is not intended to preclude appellant
from seeking the restorative remedies available under section 1170.9, subdivision (h).
Although it does not appear appellant was sentenced under that provision, he has every
right to pursue those remedies once he satisfies the requirements for such.
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DISPOSITION
The judgment is affirmed.
BEDSWORTH, J.
WE CONCUR:
O’LEARY, P. J.
MOORE, J.
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