Grassi v. Super. Ct.

Filed 12/28/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
NANCY GRASSI,
Petitioner,
v. G060362
THE SUPERIOR COURT OF ORANGE (Super. Ct. Nos. 19WM15522,
COUNTY, 30-2021-01194652)
Respondent; OPINION
THE PEOPLE,
Real Party in Interest.
Original proceedings; petition for writ of mandate to challenge an order of
the Superior Court of Orange County, Cheryl L. Leininger, Judge. Petition denied.
Martin F. Schwarz, Public Defender, Sara Ross, Assistant Public Defender,
andShawn McDonald, Deputy Public Defender, for Petitioner.
No appearance for Respondent.
Todd Spitzer, District Attorney, and George Turner, Deputy District
Attorney, for Real Party in Interest.
Nancy Grassi filed a petition for writ of mandate arguing the trial court
erred by concluding she was statutorily ineligible for misdemeanor diversion. Grassi
argues Penal Code section 1001.95’s plain language and legislative history makes
diversion available to misdemeanor driving under the influence defendants despite
Vehicle Code section 23640’s prohibition on granting diversion to driving under the
influence defendants.
In this case of first impression, we conclude the two statutes can be
harmonized to provide diversion to misdemeanor defendants, except for those defendants
excluded in Penal Code section 1001.95, subdivision (e), and misdemeanor driving under
the influence defendants pursuant to Vehicle Code section 23640. We deny the petition.
FACTS
In August 2019, the Orange County District Attorney (OCDA) filed a
complaint charging Grassi with misdemeanor driving under the influence of drugs (Veh.
Code, § 23152, subd. (f), hereinafter “DUI” or “DUIs”). At her arraignment weeks later,
Grassi pleaded not guilty, and the trial court ordered her to remain released on her own
recognizance.
On January 1, 2021, Penal Code section 1001.95 1went into effect. (Stats.
2020, ch. 334, § 1, pp. 3785-3786.) The following month, Grassi filed a motion for
misdemeanor diversion pursuant to section 1001.95. The OCDA filed an opposition
arguing she was statutorily ineligible for misdemeanor diversion pursuant to Vehicle
Code section 23640 (section 23640 or § 23640). Relying on section 23640 and Tellez v.
Superior Court (2020) 56 Cal.App.5th 439 (Tellez), the trial court denied the motion.
Grassi filed a petition for writ of mandate with the appellate division. After further
briefing, that court denied Grassi’s petition.
1 All further statutory references are to the Penal Code, unless otherwise
indicated.
2
In this court, Grassi filed a petition for writ of mandate and exhibits. Seven
exhibits concerned section 1001.95’s legislative history. This court issued an order to
show cause.After the OCDA filed his return, Grassi filed a reply and included additional
exhibits. Those exhibits included six new documents regarding section 1001.95’s
legislative history. With her reply, Grassi also filed a request for judicial notice of these
documents and two recordings, which we discuss below. We heard oral argument.
DISCUSSION
I. Preliminary Matters
The OCDA states he will leave it to this court to determine whether writ
review is timely and appropriate. The OCDA does not provide any argument on either
subject. We trust that if he believed Grassi’s petition was untimely or review is
inappropriate, he would say so. But he does not, and we will proceed to the merits. (Lee
v. Kim (2019) 41 Cal.App.5th 705, 721 [failure to support contention with reasoned
argument and legal authority results in forfeiture].)
II. Retroactivity
The Legislature enacted section 1001.95 after the OCDA charged Grassi
with misdemeanor DUI. Nevertheless, neither Grassi nor the OCDA discuss whether
section 1001.95 applies retroactively. Since section 1001.95 provides for a potential
ameliorative benefit, we conclude a person charged with misdemeanor DUI has the right
to have the court determine if he or she is eligible and suitable for diversion if the case is
not final. (People v. Frahs (2020) 9 Cal.5th 618, 638; In re Estrada (1965) 63 Cal.2d
740, 744-745.)
III. Judicial Notice
The Orange County Public Defender (OCPD) requests we take judicial
notice of the following exhibits he included with the reply, and not with the petition.
1. Text of Assembly Bill No. 2124—Misdemeanor Diversion Pilot
Program (LA pilot program) (Exhibit O);
3
2. Transcript of the August 24, 2020, Assembly floor debate on Assembly
Bill No. 3234 (AB 3234) (Exhibit P);
3. Floor Alert—OCDA’s letter of August 20, 2020, Opposing AB 3234
(Exhibit Q);
4. Floor Alert—California District Attorneys Association’s (CDAA) letter
of August 24, 2020, Opposing AB 3234 (Exhibit R);
5. Floor Alert—Judicial Council of California’s (Judicial Council) letter of
August 31, 2020, Opposing AB 3234 (Exhibit S);
6. Transcript of the August 31, 2020, Senate floor debate on AB 3234
(Exhibit T);
7. The August 24, 2020, Assembly floor debate on AB 3234, which is
available at: https://www.assembly.ca.gov/media/assembly-floor-session-
20200824/video; and
8. The August 31, 2020, Senate floor debate on AB 3234, which is
available at: https://www.senate.ca.gov/media/senate-floor-session-20200831/video.
“A motion for judicial notice of published legislative history, such as the
. . . analysis here, is unnecessary. [Citation.] ‘Citation to the material is sufficient.
[Citation.] We therefore consider the request for judicial notice as a citation to those
materials that are published.’ [Citation.]” (Wittenburg v. Beachwalk Homeowners Assn.
(2013) 217 Cal.App.4th 654, 665, fn. 4.)
All of these documents were available when the OCPD filed his petition for
writ of mandate, and all concern section 1001.95’s legislative history, a topic the OCPD
discusses in his petition. This practice is disfavored.
Nevertheless, we treat Grassi’s request to take judicial notice of item Nos.
1, 2, 6, 7, and 8 as citations to those materials and deny her request to take judicial notice
of them. As to item Nos. 3, 4, and 5, the floor alerts have sufficient relevance on appeal
4
to support our taking judicial notice of them. (Greystone Homes, Inc. v. Midtec, Inc.
(2008) 168 Cal.App.4th 1194, 1210-1211, fn. 6 [taking judicial notice of floor alerts].)
IV. Discussion
A. Statutory Language
Grassi contends section 1001.95’s plain language requires diversion for all
misdemeanor defendants, including misdemeanor DUI defendants, except those excluded
in subdivision (e). Grassi’s plain language construction of section 1001.95 is appealing,
until one considers section 23640.
“This is a question of statutory construction. We seek to ‘ascertain the
intent of the lawmakers so as to effectuate the purpose of the statute.’ [Citation.] ‘[W]e
begin by looking to the statutory language. [Citation.] We must give “the language its
usual, ordinary import and accord[] significance, if possible, to every word, phrase and
sentence in pursuance of the legislative purpose. A construction making some words
surplusage is to be avoided. The words of the statute must be construed in context,
keeping in mind the statutory purpose, and statutes or statutory sections relating to the
same subject must be harmonized, both internally and with each other, to the extent
possible.” [Citation.] If the statutory language is susceptible of more than one
reasonable interpretation, we must look to additional canons of statutory construction to
determine the Legislature’s purpose. [Citation.] “Both the legislative history of the
statute and the wider historical circumstances of its enactment may be considered in
ascertaining the legislative intent.”’ [Citation.]” (Carmack v. Reynolds (2017) 2 Cal.5th
844, 849-850 (Carmack).) “This case poses a pure question of statutory interpretation,
subject to independent review. [Citation.]” 2 (Lopez v. Sony Electronics, Inc. (2018)
5 Cal.5th 627, 633.)
2 Curiously, the OCPD asserts our review is abuse of discretion, a more
deferential standard than independent review.
5
The starting point for our analysis is section 23640. Operative in 1999,
section 23640, subdivision (a), states, “In any case in which a person is charged with a
violation of [Vehicle Code] [s]ection 23152 [DUI] or [Vehicle Code section] 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 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.”
Section 23640 prohibits diversion in DUI cases. (People v. Weatherill
(1989) 215 Cal.App.3d 1569, 1572 (Weatherill).) 3 By its plain language, section 23640
applies to Grassi because the OCDA charged her with misdemeanor DUI in violation of
Vehicle Code section 23152.
Nevertheless, Grassi contends she was eligible for diversion pursuant to
section 1001.95. Section 1001.95 authorizes a trial court to offer a misdemeanor
3 In 1998, former section 23202 was renumbered to section 23640 without
substantive change. (Stats. 1998, ch. 118, § 84, pp. 772-814.)
6
defendant diversion, except for four express exclusions.4 Section 1001.95 provides as
follows:
“(a) 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.
“(b) A judge may continue a diverted case for a period not to exceed 24
months and order the defendant to comply with terms, conditions, or programs that the
judge deems appropriate based on the defendant’s specific situation.
“(c) If 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.
“(d) If it appears to the court that the defendant is not complying with the
terms and conditions of diversion, after notice to the defendant, the court shall hold a
hearing to determine whether the criminal proceedings should be reinstituted. If 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.
“(e) A defendant may not be offered diversion pursuant to this section for
any of the following current charged offenses:
4 The Legislature’s purpose in enacting section 1001.95 was to treat, restore,
and rehabilitate. A Senate Floor Analysis makes this point. “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 Analysis, 3d reading analysis of Assem. Bill No. 3234 (2019-
2020 Reg. Sess.) as amended Aug. 24, 2020, at p. 2.)
7
(1) Any offense for which a person, if convicted, would be required to
register pursuant to [s]ection 290.
(2) A violation of [s]ection 273.5.
(3) A violation of subdivision (e) of [s]ection 243.
(4) A violation of [s]ection 646.9.”
Section 1001.95 authorizes diversion in misdemeanor cases except for
those offenses in subdivision (e), which does not include DUIs. 5
Both statutes are unambiguous in their plain language. When it comes to
misdemeanor DUI defendants, section 23640 prohibits a court from doing what section
1001.95 permits it to do. “[T]he statutes are in conflict and thus one must be interpreted
as providing an exception to the other.” (State Dept. of Public Health v. Superior Court
(2015) 60 Cal.4th 940, 956 (State Dept. of Public Health).) Is section 23640 an
exception to section 1001.95? Or is section 1001.95 an exception to section 23640? Or
can we harmonize the statutes to give them both effect?
Before we consider section 1001.95’s legislative history and the canons of
statutory construction, we discuss the interplay between section 23640 and other
diversion statutes for context and to help inform our decision. We also discuss two recent
superior court appellate division cases that have addressed the identical issue presented
here.
5 Two bills subsequently attempted to address DUIs in section 1001.95.
Assembly Bill No. 282 made misdemeanor DUIs ineligible. In July 2021, the Senate
Public Safety Committee voted against the bill but granted reconsideration. Senate Bill
No. 421 made misdemeanor DUIs eligible under specified conditions. In April and May
2021, two Senate committees approved this bill. To date, the Legislature has not
amended section 1001.95.
8
B. Diversion Statutes & Corresponding Case Authority
1. Developmentally Disabled Diversion
Over 30 years ago, the court in Weatherill, supra, 215 Cal.App.3d at
page 1573, addressed the interplay between Vehicle Code section 23202,6 section
23640’s predecessor, and section 1001.21, diversion for developmentally disabled
persons. The majority held Vehicle Code section 23202, subdivision (a)’s plain language
prohibited a trial court from granting a developmentally disabled DUI defendant
diversion. (Id. at p. 1573.) The court opined the Legislature’s use of the “all-inclusive”
words, “‘if any person’” demonstrated its intent “all” DUI defendants “without
exception, shall have their guilt or innocence determined without delay and without
diversion.” (Ibid.) The court stated its inquiry would normally end but not for
defendant’s insistence section 1001.21 allowed diversion for developmentally disabled
DUI defendants. (Ibid.)
After the Weatherill court discussed the Legislature’s intent to curb the
evils of DUIs and the advent of diversion programs, including the “‘Lucky Deuce’”
diversion program for first-time DUI offenders, by imposing swift and certain
punishment, the court turned to defendant’s argument Vehicle Code section 23202 and
section 1001.21 did not conflict. (Weatherill, supra, 215 Cal.App.3d at pp. 1574-1577.)
The court disagreed, opining “[t]he two sections irreconcilably conflict.’” (Id. at p. 1577,
fn. omitted.) The court looked to extrinsic aides, including canons of statutory
construction, to resolve the conflict. Citing to the canon a specific statute controls over a
conflicting general statute, the court reasoned the subject matter of Vehicle Code section
23202 was more specific because it only “applie[d] to a single type of conduct” whereas
section 1001.21 “comprehend[ed] hundreds of misdemeanors in scores of codes.” (Id. at
6 The court also addressed a similar postconviction provision, Vehicle Code
section 23206.
9
pp. 1577-1578.) The court also relied on the canon the more recent Vehicle Code section
23202 superseded the older section 1001.21. (Id. at p. 1578.) Responding to defendant’s
and the dissent’s reliance on the canon “‘“the expression of certain things in a statute
necessarily involves exclusion of other things not expressed[,]”’” the majority opined the
canon was inapplicable because by its plain language, “there [was] no ‘expression of
certain things[]’” and “it includes everything.” (Id. at pp. 1578-1579.) The court
acknowledged other subsequently enacted diversion schemes included specific exclusions
for DUIs, but this was only “in order to avoid the risk of implied repeal” of Vehicle Code
section 23202, which buttressed the Legislature’s consistent intent it “bars all diversion
programs.” (Id. at pp. 1579-1580.)
In dissent, Justice Johnson explained he dissented in this “extraordinarily
close case” where the majority “presented a well-reasoned” analysis “more out of
frustration than conviction” because the Legislature “left the courts in a quandary.”
(Weatherill, supra, 215 Cal.App.3d at pp. 1580-1581 (dis. opn. of Johnson, J.).) Justice
Johnson agreed the two sections were in conflict, invited the Legislature to resolve the
matter, and concluded the more persuasive view was defendant was eligible for diversion.
(Id. at p. 1581.) He explained that “[i]t c[ould] be contended just as forcefully that
Vehicle Code section 23202” was the general statute because it applied to all DUI cases
while section 1001.21 applied only to a specialized class of defendants. (Id. at p. 1582.)
He concluded the sequence of enactment canon was inapplicable because the implied
amendment of an existing statute by a subsequently enacted statute was disfavored and
the sections could be reconciled. (Id. at p. 1583.) He opined the canon “the expression
of certain things in a statute necessarily involves exclusion of other things not
expressed[]” was applicable because section 1001.21 did not prohibit diversion for
developmentally disabled DUI defendants whereas other diversion programs did. (Id. at
pp. 1583-1584.) With regard to the legislative history, he read it to reflect an intent in
10
Vehicle Code section 23202 only to eliminate the Lucky Deuce program and not
diversion for the developmentally disabled. (Id. at pp. 1584-1586.)
2. Military Diversion
Twenty-five years later, the Legislature enacted section 1001.80, military
diversion. (Stats. 2014, ch. 658, § 1, pp. 4312-4313.) In People v. VanVleck (2016)
2 Cal.App.5th 355, 363 (VanVleck), the court held section 1001.80 was not an exception
to section 23640. The court noted that “[w]hile the Legislature did not specifically
include or exclude [DUI] misdemeanors from military diversion, [it] presume[d] the
Legislature was aware of” section 23640 and Weatherill’s holding section 23640
prohibited diversion for all DUI offenses when it enacted section 1001.80. (Id. at
pp. 363-364.) The court opined that in light of the preexisting legal authority and
decisional interpretations, it was incumbent on the Legislature to expressly include DUI
cases as eligible for military diversion if that was what it intended. (Id. at pp. 364, 365,
fn. 3, 366-367.) Additionally, the court turned to the canons of statutory construction to
resolve the conflict between section 23640 and section 1001.80. (Id. at p. 364.)
Acknowledging section 1001.80 was the more recent statute, the court opined, “the rule
that the more specific statute controls over a general one prevails over the rule that the
later-enacted statute controls.” (Id. at p. 365.) The court reasoned section 23640, which
applied to a single type of conduct controlled over section 1001.80, which applies to all
misdemeanors. (Ibid.)
The court in Hopkins v. Superior Court (2016) 2 Cal.App.5th 1275, 1278-
1279 (Hopkins), addressed the identical issue as the VanVleck court, and reached the
opposite conclusion. The Hopkins court examined the statutes’ express language and
concluded it could not reconcile them. (Id. at pp. 1281-1283.) The court considered the
canons of statutory construction. (Ibid.) Citing to Justice Johnson’s dissent in
Weatherill, supra, 215 Cal.App.3d at page 1582 (dis. opn. of Johnson, J.), the Hopkins
11
court found the general-versus-specific-statute canon unhelpful because it could apply
either way depending on one’s “arbitrary choice of focus.” (Hopkins, supra,
2 Cal.App.5th at pp. 1283-1284.) The court instead concluded the earlier-versus-later-
statute canon could only apply in one direction—the newer section 1001.80 superseded
the older section 23640 to the extent they conflicted. (Id. at p. 1284.) The court
questioned the VanVleck court’s presumption the Legislature was aware of existing
statutes and prior judicial decision. (Id. at p. 1285.) Finally, the court noted the strong
public policy to create a diversion program to assist the military and veterans. (Id. at
pp. 1286-1288.)
Our Supreme Court granted review in both cases. (Hopkins, supra,
2 Cal.App.5th 1275, review granted Nov. 16, 2016, S237734; VanVleck, supra,
2 Cal.App.5th 355, review granted Nov. 16, 2016, S237219.) Before the court could rule,
the Legislature resolved the conflict by amending section 1001.80 to make misdemeanor
DUI offenses eligible for diversion. (§ 1001.80, subd. (l), added by Stats. 2017, ch. 179,
§ 1, pp. 2043-2045.)
3. Mental Health Diversion
The following year, the Legislature enacted section 1001.36, mental health
diversion. (Stats. 2018, ch. 34, § 24, pp. 1316-1319.) In Tellez, supra, 56 Cal.App.5th at
page 448, the court held section 23640 prohibited granting diversion to persons in mental
health courts. The court opined section 23640 and section 1001.36 conflicted because the
former prohibited diversion for DUI defendants while the latter allowed mental health
diversion for qualifying defendants. (Id. at pp. 443-444.) The court asked which section
was an exception to the other section? (Id. at p. 444.) The court reasoned the legislative
history answered the question and turned to the military diversion statute, section
1001.80, to inform its decision. (Ibid.) After discussing section 1001.80, VanVleck,
Hopkins, and the Legislature’s response, the court noted the Legislature considered
section 1001.80, the enactment of section 1001.36, and the amendment of section
12
1001.36 during the same legislative session. (Id. at pp. 444-447.) The court noted a
senate bill excluded DUIs as an eligible offense, an assembly bill was silent on the topic,
and the Legislature ultimately did not address the topic when it both enacted and
amended section 1001.36. (Id. at p. 447.) The court found it dispositive the Legislature
did not expressly address DUI offenses when it enacted and amended section 1001.36
during the same legislative session it did expressly address DUI offenses when it
amended section 1001.80. (Id. at p. 448.)
The Tellez court explained the following: “This history establishes that the
Legislature wanted the existing bar on diversion for DUI offenses [contained in section
23640] to take precedence [over section 1001.36]. The Legislature was familiar with the
conflict between . . . 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 . . . 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 Tellez court rejected defendant’s claim it should not read words into
section 1001.36. (Tellez, supra, 56 Cal.App.5th at p. 448.) The court explained it was
unnecessary to add DUI offenses to the list of ineligible offenses (§ 1001.36, subd.
(b)(2)), because section 23640 already excluded them. (Ibid.) The court also rejected his
reliance on the canon of statutory construction that later enactments supersede earlier
enactments. (Id. at pp. 448-449.) After noting the canons were merely aids that were not
infallible, the court concluded resort to the canons was unnecessary because the
13
legislative history answered the question—section 23640 was an exception to section
1001.36. (Id. at pp. 444, 449.)
As relevant here, the Tellez court opined the following: “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. Even assuming that DUI offenses are eligible for such
diversion, it does not follow that DUI offenses are also eligible for mental health
diversion. Misdemeanor diversion already exists. In 1982, the Legislature enacted two
sets of statutes providing for misdemeanor diversion programs. (. . . §§ 1001-1001.9,
1001.50-1001.55 . . . .) When the Legislature did so, it expressly excluded DUI offenses
from eligibility. ( . . . §§ 1001.2, subd. (a), 1001.51, subds. (b), (c)(6).) 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. 449-450.)
In Moore v. Superior Court (2020) 58 Cal.App.5th 561, 579 (Moore), a
slightly different panel of the same court reaffirmed its conclusion that if the Legislature
had intended DUI defendants to be eligible for mental health diversion, it would have
repealed or amended section 23640, or it would have “‘carve[d] out an exception’” to
section 23640 in section 1001.36 like it had done to section 1001.80 for military
diversion. The Moore court rejected defendant’s reliance on the canons of statutory
construction, the expression of some things means the exclusion of others and the later
enactments supersede earlier enactments, because the Legislature’s intent was evident.
(Id. at pp. 579-580.) Finally, like the Tellez court, the Moore court declined to look to
section 1001.95 because that statute was not at issue. (Id. at pp. 581-582.)
4. Misdemeanor Diversion
No appellate court has weighed in on the issue before us. However, two
superior court appellate division courts have.
14
In People v. Superior Court (Espeso) (2021) 67 Cal.App.5th Supp. 1, 6
(Espeso), the Los Angeles County Superior Court Appellate Division held the
misdemeanor DUI defendant was ineligible for diversion. The court explained that “[t]o
the extent there [was] a tension” between section 23640 and section 1001.95, it had to
read the sections together to avoid repeal by implication. (Ibid.) The court disagreed the
legislative history demonstrated a clear intent to repeal, explaining legislators’ comments
and the Legislature’s silence on DUIs were inconclusive. (Id. at pp. 7-8.) In response to
defendant’s argument section 1001.95’s predecessor, the LA pilot program (§ 1001.98,
subd. (h)(3)), expressly excluded DUIs, whereas section 1001.95 did not, the court
concluded it was too speculative. (Id. at p. 7.) The court stated that assuming without
deciding the LA pilot program was section 1001.95’s predecessor, the Legislature could
have easily concluded excluding DUIs in that section was unnecessary in light of section
23640. (Ibid.) The court rejected defendant’s reliance on Tellez because that court’s
commentary on section 1001.95 was dicta. (Id. at p. 8.) Finally, the court disagreed
Governor Gavin C. Newsom’s signing statement, which we discuss below, or a pending
bill addressing this issue were dispositive because they did not reflect the Legislature’s
intent when it enacted section 1001.95. (Id. at pp. 8-9.) The court concluded defendant
failed to rebut the presumption against repeal by implication and it reconciled the
sections to give both effect. (Id. at p. 9.)
In People v. Superior Court (Diaz-Armstrong) (2021) 67 Cal.App.5th Supp.
10, 13, 21 (Diaz-Armstrong), the majority in the Riverside County Superior Court
Appellate Division held the misdemeanor DUI defendants were eligible for diversion. At
the outset, the majority stated the issue was whether section 23640 and section 1001.95
could be harmonized, and if not, which section controlled. (Id. at p. 16.) After
discussing the other diversion statutes and corresponding case authority detailed above
(id. at pp. 16-20), the majority noted, “None of the cases discussed above is entirely
congruent with ours” (id. at p. 20). The majority opined section 1001.95 conflicted with
15
section 23640 and it could not harmonize the statutes because that would result in
redrafting them. (Id. at pp. 21-22.) The majority considered the canons of statutory
construction and concluded the canon the specific statute controlled over the general
statute was not dispositive because either statute could be considered the more specific
statute. (Id. at p. 22.) However, the majority concluded the canon later statutes
supersede earlier statutes was dispositive because it reflected “‘“the last expression of the
legislative will . . . .”’” (Ibid.) It also opined this canon was “in accord with other
indicators of legislative intent.” (Id. at p. 23.) The majority noted that after the
Legislature enacted section 23640’s predecessor, Vehicle Code section 23202, the
Legislature enacted other diversion statutes that expressly excluded DUIs. (Ibid.) It
stated the fact the Legislature did not expressly exclude misdemeanor DUIs from section
1001.95 was significant and where the Legislature used a phrase in one place but not
another, it should not be implied where excluded. (Id. at pp. 23-24.) The majority
acknowledged courts presume the Legislature was aware of preexisting legal authority
and case authority. (Id. at p. 24.) It added “this [was] of little help” because when the
Legislature considered section 1001.95 it only had VanVleck and Hopkins, and they
conflicted. (Ibid.)
The majority in Diaz-Armstrong, supra, 67 Cal.App.5th Supp. at page 24,
turned to section 1001.95’s legislative history and noted the first version of the bill had
no exclusions (Assem. Bill No. 3234 (2020-2021 Reg. Sess.) § 1). After the majority
noted the Legislature amended section 1001.95 to make four offenses ineligible for
diversion (Assem. Amend. to Assem. Bill No. 3234 (2020-2021 Reg. Sess.) Aug. 24,
2021), the majority found it persuasive that DUIs were not included on the final list of
exclusions, which it construed as evidence the Legislature intended DUIs to be eligible
for diversion. (Ibid.) It added Tellez was not instructive because the legislative histories
were different. (Id. at p. 25.) Citing to authority stating individual legislators’ statements
during floor debates were evidence of legislative intent, the majority noted two legislators
16
stated DUIs were not excluded from diversion.7 (Id. at pp. 25-26.) The majority relied on
this history to conclude the Legislature intended for misdemeanor DUIs to be eligible for
diversion, which also furthered its policy to pursue rehabilitation instead of traditional
punishment. (Id. at pp. 27-28.)
In dissent, Judge Firetag opined all misdemeanor DUI defendants are
categorically ineligible for diversion because section 23640 prohibits it and “nothing in
section 1001.95 provides otherwise.” (Diaz-Armstrong, supra, 67 Cal.App.5th Supp. at
p. 28, dis. opn. of Firetag, J.).) He acknowledged reasonable minds could differ on the
interplay between section 23640 and section 1001.95, but he opined the better argument
was the two sections could be harmonized. (Ibid.) Judge Firetag explained this was
because there was no textual support to conclude section 1001.95 repealed section 23640,
and nothing in section 1001.95 indicated its list of exclusions “[was] exclusive.” (Id. at
pp. 29-31.) After citing to our Supreme Court’s admonition repeal by implication is
disfavored, Judge Firetag opined that is exactly what the majority did. (Id. at pp. 30-31.)
He reasoned the two statutes could be harmonized as follows: “[T]he 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.” (Id. at
p. 31.) Finally, Judge Firetag explained the history of courts interpreting section 23640
and other diversion statutes is a long one. (Id. at p. 32.) He noted that with the exception
of Hopkins, the courts in Weatherill, VanVleck, Tellez, and Moore all held that unless the
Legislature expressly stated otherwise, section 23640 prohibited diversion for DUI
7 In concluding the legislators’ statements were persuasive, the majority cited
to several cases, including two from our Supreme Court. In In re Marriage of Bouquet
(1976) 16 Cal.3d 583, 590, the court stated, “Debates surrounding the enactment of a bill
may illuminate its interpretation.” (Italics added.) In Carter v. California Dept. of
Veterans Affairs (2006) 38 Cal.4th 914, 928, the court stated where a bill’s author’s
statements are part of the legislative debate, a court may consider them as evidence of
legislative intent.
17
defendants and he found the latter cases, particularly Tellez and Moore, persuasive. (Id.
at pp. 32-33.) He concluded by stating, “it is for the Legislature to amend section
1001.95 if it seeks to include DUIs for misdemeanor diversion.” (Id. at p. 32.)8
5. Application of Other Diversion Statute Authority to Section 1001.95
We agree with Grassi’s implicit assertion that Tellez, supra, 56 Cal.App.5th
439, and Moore, supra, 58 Cal.App.5th 561, are not controlling because they concerned a
different diversion statute, section 1001.36, with a unique legislative history. Those
courts had the benefit of analogizing the mental health diversion statute at issue to the
military diversion statute the Legislature enacted during the same legislative session to
assist with its analysis. We do not.
Grassi, however, relies on dicta from Tellez where the court mused DUI
offenses were eligible for misdemeanor diversion pursuant to section 1001.95. (Tellez,
supra, 56 Cal.App.5th at pp. 449-450.) Section 1001.95 was not at issue in Tellez, and
that court’s observations were unnecessary to its resolution of the case. (Sonic-
Calabasas A, Inc. v. Moreno (2013) 57 Cal.4th 1109, 1158 [“‘Dicta consists of
observations and statements unnecessary to the appellate court’s resolution of the
case’”].) Grassi’s claim the trial court abused its discretion by incorrectly applying the
Tellez court’s analysis misses the mark. Our review is de novo, and we will address
Tellez and other diversion statute case authority below when discussing section 1001.95’s
legislative history and the canons of statutory construction.
8 The OCPD cites to Diaz-Armstrong, supra, 67 Cal.App.5th Supp. 10, the
case that supports his position. But he does not cite to Espeso, supra, 67 Cal.App.5th
Supp. 1, the case that undermines his position. A more complete discussion of the
applicable case authority would have been beneficial.
18
C. Legislative History9
1. Background
On February 21, 2020, the Assembly introduced AB 3234, but its subject
was the Government and Public Resources Codes; it was not section 1001.95. The
Legislature took various actions on this bill over the following months. On June 8, 2020,
the Assembly placed AB 3234 on the inactive file.
On August 3, 2020, the Assembly withdrew AB 3234 from the inactive file
and placed it on the third reading file for the consideration of proposed amendments. AB
3234’s new subject was adding section 1001.95 et seq. and amending section 3055, the
elderly parole program. It did not include subdivision (e), or any exclusions. The
Assembly Floor Analysis for this version of the bill stated existing misdemeanor
diversion (§ 1001.51, subd. (c)), “has a number of exclusions[]” and “[u]nlike existing
general misdemeanor diversion,” no “misdemeanors [would] be statutorily excluded.” It
also noted AB 3234’s opponents stated it was based on the expired LA pilot program that
excluded inter alia, DUIs. On August 11, 2020, the Legislature amended AB 3234 but
left section 1001.95 untouched.
On August 24, 2020, the Legislature amended AB 3234 to include
subdivision (e)’s exclusions as enacted. The Legislative Counsel’s Digest to this
amendment stated diversion would be available “except as specified.” The Assembly
Floor Analysis for this version of the bill stated diversion was unavailable for the
offenses listed in subdivision (e). The analysis repeated there were already diversion
programs with “a number of exclusions[]” and repeated “[u]nlike existing general
misdemeanor diversion,” no “misdemeanors [would] be statutorily excluded.” It
reiterated the oppositions’ arguments. At the Assembly floor debate that day,
9 A statute’s legislative history controls over the canons of statutory
construction where the history provides clues to legislative intent. (Tellez, supra,
56 Cal.App.5th at p. 444; Lewis v. Ryan (1976) 64 Cal.App.3d 330, 333-334.)
19
Assemblyman Jim Cooper stated section 1001.95 allowed DUI defendants to obtain
diversion. AB 3234’s author, Assemblyman Phil Ting, did not dispute Cooper’s
statement.
The OCDA, CDAA, and Judicial Council issued floor alerts opposing AB
3234 and expressing their respective opinions that as written DUI defendants were
eligible for diversion pursuant to section 1001.95. The OCDA’s floor alert stated AB
3234 was based on the LA pilot program, and the Judicial Council’s floor alert stated
they were similar and provided a side-by-side comparison of section 1001.95 and the LA
pilot program.
On August 31, 2020, at the Senate floor debate, Senator Nancy Skinner
stated AB 3234 was based on the LA pilot program. Senator Melissa Melendez stated
section 1001.95 allowed DUI defendants to obtain diversion. Senator Holly Mitchell, the
bill’s sponsor in the Senate, did not refute Melendez’s statement.
The Legislature passed AB 3234. The Legislative Counsel’s Digest
repeated misdemeanor diversion was available “except as specified.”
On September 30, 2020, Governor Newsom signed AB 3234 into law. In
his signing statement, he stated the following: “I am concerned that the crime of driving
under the influence was not excluded from the misdemeanor diversion program. I will
seek to expeditiously remedy this issue with the Legislature in the next legislative
session.” (Governor’s message to Assem. on Assem. Bill No. 3234 (Sept. 30, 2020
(2020-2021 Reg. Sess.), at [as of Dec. 28, 2021].)
2. Analysis
Grassi contends section 1001.95’s legislative history “clear[ly]” establishes
the Legislature intended “to create a diversion program with as few exclusions as
possible[]” and the list of exclusions in subdivision (e), was “exhaustive.” She concludes
that because the Legislature did not expressly include DUIs in subdivision (e)’s list of
20
exclusions, misdemeanor DUI defendants are eligible for diversion pursuant to section
1001.95. We conclude section 1001.95’s legislative history is not that clear.
“Because the ultimate goal is to effectuate the Legislature’s intent
[citation], courts should consider whether any legislative history provides insight into the
legislative intent as to which statute prevails [citations].” (Turner v. Association of
American Medical Colleges (2011) 193 Cal.App.4th 1047, 1064.) “[W]e consider
legislative history ‘as dispositive only when that history is itself unambiguous.’
[Citation.]” (Coso Energy Developers v. County of Inyo (2004) 122 Cal.App.4th 1512,
1526.)
Here, there is scant evidence of legislative history concerning section
1001.95, and what there is provides little help in ascertaining the Legislature’s intent.
We do not find the OCDA’s, CDAA’s, and Judicial Council’s floor alerts opposing AB
3234, or Governor Newsom’s signing statement, particularly helpful in ascertaining the
Legislature’s intent when considering and enacting section 1001.95. 1 (Moore, supra,
58 Cal.App.5th at pp. 581-582, fn. 12 [Governor’s signing statement not binding
authority and not reliable indicator of legislative intent]; Coastside Fishing Club v.
California Resources Agency (2008) 158 Cal.App.4th 1183, 1196, fn. 7 [same].) The
interpretation of a statute is a uniquely judicial function. (People v. Cruz (1996)
13 Cal.4th 764, 780.) We are not bound to follow the interpretation of complicated
statutes voiced by individuals outside the Legislature. 1 (Id. at pp. 780-781 & fn. 9.)
10 The OCPD cites to these floor alerts for the first time in the reply. We do
not generally consider arguments raised for the first time in a reply. (Mansur v. Ford
Motor Co. (2011) 197 Cal.App.4th 1365, 1387-1388 [appellate court will not consider
arguments raised for the first time in reply because it deprives respondent of opportunity
to respond].) Nevertheless, we address Grassi’s arguments.
11 District Attorney Todd Spitzer’s opinion section 1001.95 makes
misdemeanor DUI defendants eligible for diversion as stated in the Orange County
Register is similarly unpersuasive.
21
However, the CDAA in its floor alert did make one observation that is
helpful in providing context for the Legislature’s enactment of section 1001.95. The
CDAA stated, “This bill incorporates the two main provisions in the public safety trailer
bills that were removed due to opposition. This gut and amend contains provisions that
will result in a sea change in public safety policy and should not be approved without full
consideration of their sweeping impact.” (Italics added.) “‘Gut and amend’ . . .
presumably . . . refers to instances where the contents of a bill are deleted and replaced
with different provisions at a late stage, bypassing the usual legislative process.” (Brown
v. Superior Court (2016) 63 Cal.4th 335, 348.)
AB 3234 originally concerned the Government and Public Resources
Codes before the Assembly placed it on the inactive file. In the beginning of August
2000, the Legislature withdrew AB 3234 from the inactive file and its new subject was
section 1001.95 et seq., as well as section 3055. The Legislature passed it about one
month later. We agree with the OCDA this one month of legislative record results in a
“sparse” legislative history that is anything but unambiguous.
Grassi’s primary argument is that unlike other diversion statutes, the
Legislature’s intent in enacting section 1001.95 was to be inclusive and provide diversion
broadly for all eligible misdemeanors, including misdemeanor DUIs. Grassi asserts the
following: “That analysis goes on to re-state . . . what it had stated all along—that there
are already diversion programs, but they have too many exclusions and too many
requirements; the purpose of [AB] 3234 is to create a diversion program with as few
exclusions as possible.” 1
12 In her petition, Grassi discusses in detail section 1001.95’s limited
legislative history, including its amendments and the various floor analyses.
Unfortunately, the OCDA does not provide any detailed analysis regarding these
materials. (See Cal. Rules of Court, rule 8.204(a)(1).)
22
It is true the Assembly and Senate Floor Analyses stated there were other
misdemeanor diversion statutes that had “numerous” exclusions. But even if the
Legislature believed there were “too many exclusions” as Grassi asserts, the Legislature
abandoned that belief when on August 24, 2000, it amended section 1001.95 to add
subdivision (e), and its exclusions. The Legislature’s inclusion of subdivision (e), refutes
Grassi’s assertion section 1001.95 “would have no prohibitions or preclusions.” If the
Legislature was that frustrated with all the diversion exclusions, why did it not expressly
exclude section 23640 by stating, “notwithstanding Vehicle Code section 23640.”
Grassi’s reliance on the Legislative Counsel’s Digest statement diversion was available
“except as specific”, i.e., subdivision (e), also misses the mark. The Legislative
Counsel’s Digest “is not a part of the law.” (California Teachers’ Assn. v. Governing
Board (1983) 141 Cal.App.3d 606, 614.)
Again for the first time in the reply, Grassi asserts section 1001.95 differs
in a key respect from other diversion statutes that expressly exclude DUI defendants.
(See §§ 1001.2, subd. (a); 1001.51, subds. (b), (c)(6); 1001.98, subd. (h)(3).) Of
particular relevance here is section 1001.98, subdivision (h)(3), the LA pilot program,
which expressly excluded DUI defendants from diversion eligibility despite the existence
of section 23640. (§ 1001.98, subd. (h)(3).) Grassi relies on Senator Skinner’s comment
section 1001.95 was based on the LA pilot program, as well as the Judicial Council’s
floor alert, to conclude that because the Legislature did not expressly exclude DUIs in
subdivision (e), it meant to make them eligible for diversion. Assuming for the sake of
argument the Legislature based section 1001.95 on the LA pilot program, the
Legislature’s failure to exclude DUIs in subdivision (e), does not demonstrate an
unambiguous intent to allow diversion in misdemeanor DUI cases. The Legislature could
have simply realized excluding DUIs was redundant in light of section 23640. (Tellez,
supra, 56 Cal.App.5th at p. 448 [no need to exclude DUIs in section 1001.36 because
section 23640 already did that].)
23
Finally, and again for the first time in the reply, Grassi relies on Cooper’s
and Melendez’s unchallenged comments to assert DUI defendants are eligible for
diversion pursuant to section 1001.95. We are not persuaded.
“‘In construing a statute we do not consider the motives or understandings
of individual legislators who cast their votes in favor of it. [Citations.] Nor do we carve
an exception to this principle simply because the legislator whose motives are proffered
actually authored the bill in controversy [citation]; no guarantee can issue that those who
supported his proposal shared his view of its compass.’ [Citation.] A legislator’s
statement is entitled to consideration, however, when it is a reiteration of legislative
discussion and events leading to adoption of proposed amendments rather than merely an
expression of personal opinion. [Citations.]” (California Teachers Assn. v. San Diego
Community College Dist. (1981) 28 Cal.3d 692, 700.) This is a far cry from a full-scale
legislative discussion on section 1001.95. To the contrary, it was the personal opinions
of two legislators concerning a bill that was introduced weeks earlier.
Based on our review of section 1001.95’s legislature history, it is not clear
the Legislature intended diversion for misdemeanor DUI defendants. We now turn to the
canons of statutory construction for guidance.
D. Canons of Statutory Construction
When both the statutory language and the legislative history are
inconclusive, courts may look to canons of statutory construction to provide an answer.
(Carmack, supra, 2 Cal.5th at pp. 849-850.) “The rules of grammar and canons of
construction are but tools, ‘guides to help courts determine likely legislative intent.
[Citations.]” (Burris v. Superior Court (2005) 34 Cal.4th 1012, 1017.)
The principle “[e]xpressio unius est exclusio alterius means that ‘the
expression of certain things in a statute necessarily involves exclusion of other things not
expressed . . . .” [Citation.]’ (Dyna-Med, Inc. v. Fair Employment & Housing Com.
(1987) 43 Cal.3d 1379, 1391, fn. 13.) “‘If conflicting statutes cannot be reconciled, later
24
enactments supersede earlier ones [citation], and more specific provisions take
precedence over more general ones [citation].’ [Citation.] But when these two rules are
in conflict, the rule that specific provisions take precedence over more general ones
trumps the rule that later-enacted statutes have precedence. [Citations.]” (State Dept. of
Public Health, supra, 60 Cal.4th at pp. 960-961.)
In the diversion context, courts have utilized canons of statutory
construction to reach varying results. A study of these cases demonstrates the canons of
statutory construction are simply guides that can produce varying results, often in the
same context, or in the same case.
For example, in Weatherill, the majority and dissent reached different
results applying the same three canons. In the military diversion context, the VanVleck
court concluded one canon was controlling while the Hopkins court concluded a different
canon was controlling. The courts in Tellez and Moore explained that resort to the
canons of statutory construction was unnecessary because the Legislature’s intent was
clear. Regarding the diversion statute at issue here, misdemeanor diversion, the court in
Espeso, supra, 67 Cal.App.5th Supp. 1, did not resort to the canons to conclude DUI
defendants were ineligible for diversion. The majority in Diaz-Armstrong, supra,
67 Cal.App.5th Supp. at pages 22-23, however, concluded one canon was neutral while
another canon supported the conclusion DUI defendants were eligible for diversion.
These varying results make clear the canons of statutory construction are
not dispositive but rather are guides courts can resort to when a statute’s plain language
and legislative history do not compel a particular result. Here, the canons do not compel
a particular result.
It is true the canon “the expression of certain things in a statute necessarily
involves exclusion of other things not expressed[]” would result in concluding section
1001.95 permits diversion for misdemeanor DUI defendants because they are not
expressly excluded in subdivision (e). But section 23640 expressly prohibits diversion in
25
DUI cases. Given that section’s prohibition of diversion in DUI cases, it is reasonable to
conclude the Legislature chose not to include DUIs among the exclusions in subdivision
(e) of section 1001.95. To do so would have amounted to a redundancy.
Grassi’s reliance on the canon the more recent statute supersedes the older
statute would result in section 1001.95 impliedly repealing section 23640, but implied
repeals are disfavored, as we explain below. Finally, the OCDA’s reliance on the canon
the specific statute controls over a conflicting general statute is unpersuasive because
beginning with Justice Johnson’s dissent in Weatherill (Weatherill, supra,
215 Cal.App.3d at p. 1582 (dis. opn. of Johnson, J.)), to the majority’s opinion in Diaz-
Armstrong (Diaz-Armstrong, supra, 67 Cal.App.5th Supp. at p. 22), depending on one’s
arbitrary choice of focus, either could be construed as the more specific. Like the
legislative history, the canons of statutory construction are of no assistance here.
E. Harmonization
“‘“A court must, where reasonably possible, harmonize statutes, reconcile
seeming inconsistencies in them, and construe them to give force and effect to all of their
provisions. [Citations.] This rule applies although one of the statutes involved deals
generally with a subject and another relates specifically to particular aspects of the
subject.” [Citation.] Thus, when “‘two codes are to be construed, they “must be
regarded as blending into each other and forming a single statute.” [Citation.]
Accordingly, they “must be read together and so construed as to give effect, when
possible, to all the provisions thereof.” [Citation.]’” [Citation.] Further, “‘“[a]ll
presumptions are against a repeal by implication. [Citations.]” [Citation.] Absent an
express declaration of legislative intent, we will find an implied repeal “only when there
is no rational basis for harmonizing the two potentially conflicting statutes [citation], and
the statutes are ‘irreconcilable, clearly repugnant, and so inconsistent that the two cannot
have concurrent operation.’”’”’ [Citations.] [¶] But the requirement that courts
harmonize potentially inconsistent statutes when possible is not a license to redraft the
26
statutes to strike a compromise that the Legislature did not reach. [Citation.] The cases
in which we have harmonized potentially conflicting statutes involve choosing one
plausible construction of a statute over another in order to avoid a conflict with a second
statute. [Citations.]” (State Dept. of Public Health, supra, 60 Cal.4th at pp. 955-956.)
We presume the Legislature “was aware of existing related laws” when it enacted section
1001.95, and that it “intended to maintain a consistent body of rules.” (People v.
Superior Court (Zamudio) (2000) 23 Cal.4th 183, 199.)
We believe section 23640 and section 1001.95 can be harmonized to give
both effect. Our Supreme Court’s instruction that repeal by implication is disfavored is
the bedrock of our holding. As we explain above, the Legislature in enacting section
1001.95 gave no indication it intended to repeal section 23640. We must presume the
Legislature was aware of section 23640, the other diversion statutes, and Weatherill,
VanVleck, and Hopkins when it enacted section 1001.95, and concluded it was redundant
to expressly exclude misdemeanor DUIs in section 1001.95 in light of section 23640.
There is a rational basis for harmonizing section 23640 and section 1001.95 to maintain a
consistent body of rules and implement the policies and purposes of both statutes—swift
and certain punishment for DUI defendants and rehabilitation for misdemeanor
defendants. The statutes are reconcilable and consistent so that they can have concurrent
operation.
We hold section 1001.95 authorizes diversion for all misdemeanor
defendants except those listed in subdivision (e), and misdemeanor DUI defendants
pursuant to section 23640. We construe section 1001.95 in this manner to avoid
conflicting with section 23640. Our conclusion does not result in redrafting section
1001.95 to strike a compromise the Legislature did not reach. Section 23640 has been
the law since 1998. Again, we presume the Legislature thought it unnecessary to
expressly exclude misdemeanor DUIs in section 1001.95 in light of section 23640.
27
V. Conclusion
In dissent about 32 years ago, Justice Johnson concluded with the
following: “There is a tendency among appellate judges in writing their opinions, and I
am as guilty of this as any other, to discuss tough cases as if they were easy, to
characterize debatable answers as being obvious, and to write up razor thin cases as if a
vast chasm separates the correct from the incorrect result. We may spend days in the
quiet of our chambers trying to formulate our individual positions on a close question,
then hours arguing among ourselves, and along the way shift our views to and for several
times. Yet when we finally get around to writing the opinion we inform the reader it was
a piece of cake. Logic, precedent and principle all pointed in a single direction and the
result we reached was inevitable. [¶] Well, in all candor I do not regard the instant case as
easy, the answer obvious, or the result inevitable. If nothing else, I hope this dissent
exposes the depth of our problem. This time the Legislature has handed us a true
conundrum.” (Weatherill, supra, 215 Cal.App.3d at pp. 1588-1589 (dis. opn. of Johnson,
J.))
The Legislature again, in the identical setting, albeit a different diversion
statute, handed the courts another diversion conundrum.
Justice Johnson’s candid observation that his and the majority’s opposing
viewpoints were both persuasive applies equally in this case. The panel members here
can surely imagine writing this opinion the other way, to conclude misdemeanor DUI
defendants are eligible for diversion, based on say section 1001.95’s plain language
(DUIs are not expressly excluded), or the canons of statutory construction, the expression
of some things means the exclusion of others (section 1001.95, subdivision (e), provides
exclusions but again DUIs are not expressly excluded) or later enacted statutes supersede
earlier statutes (the Legislature enacted section 1001.95 in 2020 and Vehicle Code
section in 1998). But as we explain above, we follow our Supreme Court’s teaching and
harmonize the statutes to avoid an implied repeal.
28
We invite, indeed we implore, the Legislature to resolve yet another
entirely avoidable diversion conundrum.
DISPOSITION
The petition for writ of mandate is denied. The previously ordered stay is
dissolved.
O’LEARY, P. J.
WE CONCUR:
GOETHALS, J.
MARKS, J.*
*Judge of the Orange County Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
29