Appellate Court Holds Misdemeanor DUI not eligible for Diversion under Penal Code section 1001.95

ALICIA URBIETA ISLAS, Petitioner, v. THE SUPERIOR COURT OF SANTA CLARA COUNTY, Respondent; THE PEOPLE, Real Party in Interest. (Cal. Ct. App., May 20, 2022, No. H049445) 2022 WL 1597051, at *1–3

Summary: Islas was charged with misdemeanor driving under the influence of alcohol (DUI). (Veh. Code, § 23152, subds. (a) and (b).) She moved for pretrial diversion under Penal Code section 1001.95, which gives judges discretion to offer diversion to misdemeanor defendants. The trial court denied diversion based on Vehicle Code section 23640, under which DUI defendants are categorically ineligible for diversion. Two appellate courts have published decisions finding misdemeanor DUI defendants similarly situated to petitioner categorically ineligible for Penal Code section 1001.95 diversion. (Grassi v. Superior Court (2021) 73 Cal.App.5th 283 (Grassi); Tan v. Superior Court (2022) 76 Cal.App.5th 130 (Tan).) We agree with the reasoning in those authorities and will therefore deny the petition for writ of mandate.

Issue: Whether misdemeanor DUI defendants are categorically ineligible from Penal Code section 1001.95 diversion by operation of Vehicle Code section 23640.
Principles of Statutory Interpretation
“As in any case involving statutory interpretation, our fundamental task here is to determine the Legislature’s intent so as to effectuate the law’s purpose.” (People v. Murphy (2001) 25 Cal.4th 136, 142.) “We begin by examining the statute’s words, giving them a plain and commonsense meaning.” (Ibid.) We “consider the language of the entire scheme and related statutes, harmonizing the terms when possible.” (Riverside County Sheriff’s Dept. v. Stiglitz (2014) 60 Cal.4th 624, 632.) “When the language of a statute is clear, we need go no further.” (People v. Flores (2003) 30 Cal.4th 1059, 1063 (Flores).) It is only when language is susceptible of more than one reasonable interpretation that “we may ‘look to a variety of extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied, the legislative history, public policy, contemporaneous administrative construction, and the statutory scheme of which the statute is a part.’ ” (In re M.M. (2012) 54 Cal.4th 530, 536.)

Penal Code section 1001.95, subdivision (a) states: “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.”
Penal Code section 1001.95, subdivision (e) states that a “defendant may not be offered diversion” for any of the following charged offenses: Penal Code section 273.5 (inflicting corporal injury on a domestic violence victim); Penal Code section 243, subdivision (e) (battery on a domestic violence victim); Penal Code section 646.9 (stalking); and any offense for which a person would have to register under Penal Code section 290 (sex offender registration).
Vehicle Code section 23640, subdivision (a) provides: “In any case in which a person is charged with a violation of 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.”

Grassi V. Superior Court and Tan V. Superior Court
Two appellate courts determined that misdemeanor DUI defendants are categorically ineligible for Penal Code section 1001.95 diversion by operation of Vehicle Code section 23640. (Grassi, supra, 73 Cal.App.5th 283, 308; Tan, supra, 76 Cal.App.5th 130.)

The Tan court examined the language of the two relevant statutes, noting that section 1001.95 vests judges with discretion to offer diversion for misdemeanor defendants unless the offense is one listed in subdivision (e) of that section, whereas under Vehicle Code section 23640 “diversion is categorically unavailable to DUI defendants.” The court harmonized the statutes by interpreting Vehicle Code section 23640 as an exception to the availability of diversion provided by section 1001.95.

The court noted that “section 1001.95 does not make specific reference to Vehicle Code section 23640, nor does it include any other language indicating an intent to establish an exception to section 23640’s unambiguous prohibition of diversion in all DUI cases.” The court reasoned that “nothing in the language of [section 1001.95,] subdivision (e) indicates that the list of offenses is exclusive,” and excluding DUI offenses based on Vehicle Code section 23640 therefore did not conflict with the language of section 1001.95. Because “nothing in section 1001.95 indicates an affirmative intent to allow misdemeanor diversion for DUIs and Vehicle Code section 23640 clearly prohibits it,” the court concluded that section 1001.95 diversion is categorically unavailable to DUI defendants.
Legislative intent
The Tan court noted the “very limited legislative history available” did not provide any clarity regarding legislative intent.
Floor statements by one assemblymember and one senator to the effect that DUI defendants would be eligible for diversion under what would become section 1001.95 were unpersuasive because “we cannot rely on statements from individual legislators as reflections of the Legislature’s collective intent.”

Canons Of Statutory Construction,
The Tan court agreed that the general canons of statutory construction are of little assistance in resolving the question posed here.” The principle that more specific statutory provisions prevail over general ones does not resolve the issue because either statute can be construed as the more specific depending on the focus. And “while generally later enacted statutes prevail over earlier enacted statutes, in this case application of that principle conflicts with the command that we are to construe statutes together where possible and avoid implied repeals of existing law.” The court also concluded that the rule of lenity (which calls for ambiguity in a criminal statute to be resolved in a defendant’s favor) applies only when there is an “ ‘ “ ‘egregious ambiguity and uncertainty’ ” ’ ” in a statute and there is no such ambiguity in the statutes at issue.

The Tan court concluded “section 1001.95 and Vehicle Code section 23640 can be harmonized and read together so that section 1001.95 allows a judge to grant misdemeanor diversion in his or her discretion except when a defendant has been charged with a DUI or one of the offenses listed in section 1001.95, subdivision (e).”
Petitioner Is Categorically Excluded From Section 1001.95 Diversion
Petitioner was charged in this case several months before section 1001.95 took effect in January 2021. The new law applies retroactively to nonfinal cases like petitioner’s because it provides a potential ameliorative benefit to criminal defendants. (Tan, supra, 76 Cal.App.5th at p. 136, fn. 5; citing In re Estrada (1965) 63 Cal.2d 740.)


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