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DUI Defendants Ineligible For Pretrial Mental Health Diversion

David Peter Moore, Sr., Petitioner, V. The Superior Court of Riverside County, Respondent; THE PEOPLE, Real Party in Interest. Court of Appeal, Fourth District, Division 2, California. December 11, 2020 — Cal.Rptr.3d —- 2020 WL 7296513

Summary: Vehicle Code section 23640 and its predecessor, Vehicle Code former section 23202, have generally made DUI defendants ineligible for any form of pretrial diversion. In 2018, the Legislature enacted Penal Code section 1001.36, making defendants charged with “a misdemeanor or felony” and who suffer from a qualifying mental health disorder generally eligible for pretrial mental health diversion. (Stats. 2018, ch. 34, § 24.) The Legislature then amended Penal Code section 1001.36 to make defendants charged with murder and other specified offenses categorically ineligible for pretrial mental health diversion. (§ 1001.36, subd. (b)(2); Stats. 2018, ch. 1005, § 1.) But the Legislature did not amend Penal Code section 1001.36 to clarify that DUI defendants are eligible for pretrial mental health diversion, notwithstanding Vehicle Code section 23640.

The issue in this case is one of statutory interpretation: In light of Vehicle Code section 23640, are DUI defendants categorically ineligible for pretrial mental health diversion under Penal Code section 1001.36? In Tellez v. Superior Court (2020) 56 Cal.App.5th 439 (Tellez), the Court  addressed the same question and concluded, based on the legislative history of Penal Code sections 1001.36 and 1001.80 (military diversion), that the Legislature did not intend DUI defendants to be eligible for pretrial mental health diversion under section 1001.36. (Tellez, at pp. 447-448.)

The Court concluded here, consistently with Tellez, that legislative history of Penal Code 2 sections 1001.36 and 1001.80 shows that the Legislature did not intend to make DUI defendants eligible for pretrial mental health diversion under section 1001.36.

Facts: Petitioner, David Peter Moore, Sr., was charged in a felony complaint with driving under the influence of alcohol, causing injury (Veh. Code, § 23153, subd. (a); count 1) and with driving with a blood-alcohol content of 0.08 percent or more, causing injury (Veh. Code, § 23153, subd. (b); count 2.) The complaint further alleged that Moore had a blood-alcohol content of 0.15 percent or more (Veh. Code, § 23578), personally inflicted great bodily injury on one victim (Pen. Code, § 12022.7, subd. (a)), and proximately caused bodily injury to two additional victims (Veh. Code, § 23558).

Before trial Moore’s counsel orally moved the trial court to hold a “prima facie hearing” to determine whether Moore met the statutory criteria to qualify for pretrial mental health diversion. (§ 1001.36, subd. (b)(1), (b)(3).) The court denied Moore’s motion on the ground that Vehicle Code section 23640 renders all felony and misdemeanor DUI defendants ineligible for pretrial mental health diversion under Penal Code section 1001.36.3 Moore then petitioned  for a writ of mandate, claiming the court’s order is contrary to the plain language of Penal Code section 1001.36, its legislative history, and public policy.

The Court of Appel issued an order to show cause and stayed the proceedings in the trial court.

Vehicle Code Section 23640

Vehicle Code section 23640 prohibits courts from ordering any form of pretrial diversion for defendants charged with misdemeanor or felony violations of either Vehicle Code section 23152 or 23153. It prohibits courts from suspending, staying, or dismissing the criminal proceedings against a DUI defendant in order to allow the defendant to attend or participate in, or because the defendant has attended or participated in, “any one or more education, training, or treatment programs, …” (Veh. Code, § 23640, subd. (a).)

Vehicle Code section 23600 (Veh. Code, former § 23206), imposes similar postconviction restraints on sentencing in DUI cases. It prohibits courts from staying or suspending pronouncement of sentence in DUI cases and from absolving DUI defendants of their “obligation of spending the minimum time in confinement, if any, or of paying the minimum fine imposed by law.” (Veh. Code, § 23600, subd. (c).)

Courts have consistently observed that the Legislature’s “ ‘unambiguous intent’ ” in enacting Vehicle Code sections 23640 and 23600, and their predecessor statutes, was “ ‘to prohibit pre-or postconviction stays or suspensions of proceedings to allow [DUI defendants] to be diverted into a treatment program and avoid spending the statutorily mandated minimum time in confinement or paying the statutorily imposed minimum fine.’ ” (VanVleck, supra, 2 Cal.App.5th at p. 361, quoting People v. Darnell (1990) 224 Cal.App.3d 806, 810; see People v Duncan, supra, 216 Cal.App.3d at p. 1628; Weatherill, supra, 215 Cal.App.3d at pp. 1572-1573.)

The proliferation of local DUI diversion programs in California ultimately led to the 1981 enactment of Vehicle Code former sections 23202 and 23206, the predecessors to Vehicle Code sections 23640 and 23600. (See Weatherill, supra, 215 Cal.App.3d at pp. 1574-1576.) As the Weatherill court explained, public support “was strong” for Assembly Bill No. 541 (1981-1982 Reg. Sess.), the legislation that added these statutes to the Vehicle Code and otherwise reformed California’s driving-under-the-influence laws. (Weatherill, at pp. 1574-1575.) The legislation ensured that “all driving under the influence defendants, without exception, shall have their guilt or innocence determined without delay or diversion.”

Penal Code Section 1001.36

Section 1001.36, enacted and amended in 2018. (Stats. 2018, ch. 34, § 24; Stats. 2018, ch. 1005, § 1.)  created a pretrial diversion program for qualifying defendants who suffer from a diagnosed and qualifying mental disorder, “including, but not limited to, bipolar disorder, schizophrenia, schizoaffective disorder, or post-traumatic stress disorder, but excluding antisocial personality disorder, borderline personality disorder, and pedophilia….” (§ 1001.36, subd. (b)(1)(A).)

The statute provides: “On an accusatory pleading alleging the commission of a misdemeanor or felony offense, the court may, after considering the positions of the defense and prosecution, grant pretrial diversion to a defendant pursuant to this section if the defendant meets all of the [six minimum eligibility] requirements specified in paragraph (1) of subdivision (b).” (§ 1001.36, subd. (a), italics added.)

“At any stage of the proceedings, the court may require the defendant to make a prima facie showing that the defendant will meet the minimum requirements of eligibility for diversion and that the defendant and the offense are suitable for diversion…. If a prima facie showing is not made, the court may summarily deny the request for diversion or grant any other relief as may be deemed appropriate.” (§ 1001.36, subd. (b)(3).) But if the court is satisfied that the defendant meets the six minimum eligibility requirements (§ 1001.36, subd. (b)(1)), and that the defendant and the offense are suitable for diversion (§ 1001.36, subd. (b)(3)), the court may divert the defendant into an approved mental health treatment program and suspend the criminal proceedings for a period of no more than two years. (§ 1001.36, subd. (c)(1), (c)(3).)

The statute defines “ ‘pretrial diversion’ ” as “the postponement of prosecution, either temporarily or permanently, at any point in the judicial process from the point at which the accused is charged until adjudication, to allow the defendant to undergo mental health treatment, subject to [several restrictions].” (§ 1001.36, subd. (c).) The court may reinstate criminal proceedings on several grounds, including if the defendant commits “an additional misdemeanor” or “an additional felony” during the diversion period, performs unsatisfactorily during diversion, or is “engaged in criminal conduct rendering the defendant unsuitable for diversion.” (§ 1001.36, subd. (d).)

At the end of the diversion period, if the defendant has performed satisfactorily in diversion, “the court shall dismiss the defendant’s criminal charges that were the subject of the criminal proceedings at the time of the initial diversion.” (§ 1001.36, subd. (e).) Further, “the arrest upon which the diversion was based shall be deemed never to have occurred” (§ 1001.36, subd. (e)) and “[a] record pertaining to” the arrest “shall not, without the defendant’s consent, be used in any way that could result in the denial of any employment, benefit, license, or certificate.” (§ 1001.36, subd. (f).)

The stated purpose of section 1001.36 “is to promote all of the following: (a) Increased diversion of individuals with mental disorders to mitigate the individuals’ entry and reentry into the criminal justice system while protecting public safety. (b) Allowing local discretion and flexibility for counties in the development and implementation of diversion for individuals with mental disorders across a continuum of care settings. (c) Providing diversion that meets the unique mental health treatment and support needs of individuals with mental disorders.” (§ 1001.35.)

Senate Bill 215 amended section 1001.36, effective January 1, 2019, to provide that defendants currently charged with specified offenses “may not be placed into a diversion program, pursuant to this section, …” (§ 1001.36, subd. (b)(2), enacted by Stats. 2018, ch. 1005, § 1.) These specified offenses include murder, voluntary manslaughter, rape, other specified sex crimes, the use of a weapon of mass destruction, and any offense “for which a person, if convicted, would be required to register pursuant to Section 290, except for a violation of Section 314 [indecent exposure].” (§ 1001.36, subd. (b)(2)(A)-(H).) DUI offenses are not among the specified offenses that are categorically ineligible for pretrial mental health diversion. (Ibid.)

Issue: Whether Vehicle Code section 23640 renders all defendants charged either with a misdemeanor or a felony violation of Vehicle Code section 23152 or 23153, categorically ineligible for pretrial mental health diversion under the more recently enacted Penal Code section 1001.36.8

 Legislative History of Sections 1001.36 and 1001.80 Shows That the Legislature Did Not Intend to Make DUI Defendants Eligible for Pretrial Mental Health Diversion Under Section 1001.36

 In Tellez, this court concluded, based on the legislative history of sections 1001.36 and 1001.80 (military diversion), that “DUI offenses are … categorically ineligible for mental health diversion” under section 1001.36. (Tellez, supra, 56 Cal.App.5th at pp. 444-448.) A 2017 amendment added subdivision (1) to section 1001.80, which provides: “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. However, this section does not limit the authority of the Department of Motor Vehicles to take administrative action concerning the driving privileges of a person arrested for a violation of Section 23152 or 23153 of the Vehicle Code.” (§ 1001.80, subd. (l), added by Stats. 2017, ch. 179, § 1 (Sen. Bill No. 725).)

As Tellez concluded, “[t]his history establishes that the Legislature wanted the existing bar on diversion for DUI offenses [in Vehicle Code section 23640] to take precedence [over Penal Code 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.” (Tellez, supra, 56 Cal.App.5th at p. 448.)

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 (§ 1001.80, subd. (l); Stats. 2017, ch. 179, § 1)—manifests its intent to keep all DUI defendants ineligible for pretrial mental health diversion under Vehicle Code section 23640. (Tellez, supra, 56 Cal.App.5th at pp. 447-448.)

Disposition

Moore’s petition for a writ of mandate directing the superior court to reverse its  order denying Moore’s motion for a hearing to determine whether Moore qualifies for pretrial mental health diversion (Pen. Code, § 1001.36), is denied. The order staying the trial court proceedings in Moore’s case is dissolved.

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