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Appellate Court Holds DUI Ineligible for Diversion

THE PEOPLE, Petitioner, v. THE SUPERIOR COURT OF RIVERSIDE COUNTY, Respondent; JESSICA ORTIZ, Real Party in Interest. (Cal. Ct. App., July 28, 2022, No. E077594) 2022 WL 2981170, at *1–2

Summary:Penal Code section 1001.95 authorizes superior court judges to offer pretrial diversion, over the prosecution’s objection, to persons being prosecuted for “a misdemeanor.” (Pen. Code § 1001.95, subd. (a).) The statute prohibits diversion for specified misdemeanors like registrable sex offenses, domestic violence, and stalking.  Misdemeanor charges of driving under the influence (DUI) (Veh. Code, §§ 23152, 23153) are not excluded from diversion in Penal Code section 1001.95.  But an older statute, Vehicle Code section 23640 bars any form of pretrial diversion for felony and misdemeanor DUI charges.

The superior court granted diversion to  Ortiz, on misdemeanor DUI charges (Veh. Code, § 23152) pursuant to Penal Code section 1001.95. The  appellate division of the superior court upheld the diversion order for Ortiz and two other defendants who had also been granted diversion on misdemeanor DUI charges.

The People petitioned this court for an original writ of mandate and/or prohibition, vacating the diversion order for Ortiz claiming  the order is unauthorized because Penal Code section 1001.95 did not partially repeal Vehicle Code section 23640. The People argued that Vehicle Code section 23640 renders misdemeanor DUI charges categorically ineligible for diversion under Penal Code section 1001.95. The Court of Appeal agreed and granted the petition.

Court of Appeal has held that misdemeanor DUI charges are ineligible for diversion under Penal Code section 1001.95

Three  appellate courts have concluded that Vehicle Code section 23640 and Penal Code section 1001.95 can be harmonized, by interpreting Penal Code section 1001.95 as authorizing diversion for all misdemeanors except those specified in Penal Code section 1001.95, subdivision (e), and misdemeanor DUI charges under Vehicle Code section 23640. (Grassi v. Superior Court (2021) 73 Cal.App.5th 283, 307-308 (Grassi); Tan v. Superior Court (2022) 76 Cal.App.5th 130, 134, 137-139 (Tan); Islas v. Superior Court (2022) 78 Cal.App.5th 1104, 1108-1110 (Islas)  These courts also found the legislative history of Penal Code section 1001.95 “anything but unambiguous” and “anything but clear” concerning whether the Legislature intended to partially repeal Vehicle Code section 23640 when it enacted the new program.

The Court of Appeal agreed with Tan and the other courts that have concluded that the statutes can be harmonized—that is, effect can be given to all of their provisions; they can operate concurrently by interpreting them together as allowing judges to offer diversion for all misdemeanors charges except the misdemeanor charges specified as ineligible for diversion in Penal Code section 1001.95, subdivision (e) [registrable sex offenses, et al.] and Vehicle Code section 23640 [DUI charges].

Insufficient evidence to rebut the presumption against finding an implied, partial repeal of Vehicle Code section 23640 in the enactment of Penal Code section 1001.95.

Vehicle Code section 23640 was not partially and impliedly repealed by the enactment of Penal Code section 1001.95, to the extent that Vehicle Code section 23640 bars pretrial diversion for misdemeanor DUI charges. Instead, Vehicle Code section 23640 operates concurrently and in harmony with Penal Code section 1001.95 to bar diversion for misdemeanor DUI charges under Penal Code section 1001.95.

Vehicle Code § 23640

*Vehicle Code section 23640 prohibits any form of pretrial diversion for persons charged with misdemeanor or felony violations of Vehicle Code section 23152 (driving under the influence of alcohol) or 23153 (causing bodily injury while driving under the influence) (DUI charges).

The New Misdemeanor Diversion Program (§§ 1001.95-1001.97)

Effective January 1, 2021, sections 1001.95 to 1001.97 were added to the Penal Code, creating a discretionary diversion program for persons charged with a misdemeanor. The statute provides: “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.” (§ 1001.95, subd. (a).)

Statutory interpretation and harmonizing statutes

 The words of a statute are generally the most reliable indicator of legislative intent; but, if the words are ambiguous or uncertain,  courts may resort to extrinsic sources to ascertain their meaning, including the statute’s legislative history and ostensible objects to be achieved. (People v. Gutierrez (2014) 58 Cal.4th 1354, 1369.) and consider the wider historical circumstances of a statute’s enactment in ascertaining legislative intent. (Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1387 (Dyna-Med).)

Courts must harmonize statutes based on their texts, if that can reasonably be done: A court must, when reasonably possible, harmonize statutes, reconcile seeming inconsistencies in them, and construe them to give force and effect to all of their provisions. There is a  presumptions are against a repeal by implication.

Conflict between Penal Code Section 1001.95 and Vehicle Code Section 23640 Conflict Can Be Harmonized

Vehicle Code section 23640 and Penal Code section 1001.95 can be harmonized as authorizing diversion for all misdemeanor charges, except those specified as ineligible for diversion in both Penal Code section 1001.95, subdivision (e) [registrable sex offenses, domestic violence, and stalking] and Vehicle Code section 23640 [DUI charges]. (Tan, supra, 76 Cal.App.5th at p. 138; Grassi, supra, 73 Cal.App.5th at p. 307.)

Penal Code section 1001.95 does not state that  (1) that the list of misdemeanors it specifies as excluded from eligibility is an exclusive list (§ 1001.95, subd. (e)), or (2) that its provisions apply notwithstanding “ ‘any other law’ ” including Vehicle Code section 23640. (Tan, supra, 76 Cal.App.5th at pp. 138-139.) The absence of these provisions allows harmonizing them by interpreting them together as barring diversion for misdemeanor DUI charges under the new statute.

Because the statutes can be harmonized, the presumption against implied repeals still applies. (Rebutting the presumption requires an unequivocal showing of legislative intent to repeal.

The Rule of Lenity Does Not Apply

Ortiz claims the rule of lenity requires permitting Penal Code section 1001.95 as permitting pretrial diversion for misdemeanor DUI charges. Under the rule of lenity, “[w]hen language which is susceptible of two constructions is used in a penal law, the policy of this state is to construe the statute as favorably to the defendant as its language and the circumstance of its application reasonably permit. The defendant is entitled to the benefit of every reasonable doubt as to the true interpretation of words or the construction of a statute.” (People v. Overstreet (1986) 42 Cal.3d 891, 896.)

The rule of lenity does not apply here because Penal Code section 1001.95 is unambiguous, and there are not two reasonable interpretations of the statute. The statute can reasonably be harmonized with Vehicle Code section 23640 to prohibit diversion for misdemeanor DUI charges. The  record does not clearly and unequivocally show that the Legislature intended to partially repeal Vehicle Code section 23640 when it enacted Penal Code section 1001.95, so there is no implied, partial repeal of Vehicle Code section 23640 in the enactment of Penal Code section 1001.95.

Disposition

The Court of Appeal issued a  writ of mandate issue, directing the superior court to vacate its order granting respondent Ortiz pretrial diversion on misdemeanor charges of violating Vehicle Code section 23152, subdivisions (a) and (b), and to enter a new order denying respondent Ortiz pretrial diversion on her misdemeanor DUI charges under Penal Code section 1001.95.

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