The opinion
Filed 9/1/16
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
TERENCE WILLIAM HOPKINS, No. B270503
Petitioner, (Los Angeles County
Super. Ct. Nos. BS160423
v. and 5MP07780)
THE SUPERIOR COURT OF
LOS ANGELES COUNTY,
APPELLATE DIVISION,
Respondent;
THE PEOPLE,
Real Party in Interest.
ORIGINAL PROCEEDINGS in mandate. Patti Jo McKay, Presiding Judge;
Barbara R. Johnson and Alex Ricciardulli, Judges. Writ granted.
Ronald L. Brown, Public Defender, Albert J. Menaster, Jordana Mosten and
Dylan Ford, Deputy Public Defenders, for Petitioner.
No appearance for Respondent.
Michael N. Feuer, City Attorney, Debbie Lew, Assistant City Attorney, and
Rick V. Curcio, Deputy City Attorney, for Real Party in Interest.
In 2014, the California Legislature enacted a statute, Penal Code section
1001.80,1 authorizing a trial court to grant pretrial diversion to a defendant
charged with a misdemeanor if the defendant was, or currently is, a member of the
United States military and suffers from sexual trauma, traumatic brain injury, post-
traumatic stress disorder (PTSD), substance abuse, or mental health problems as a
result of his or her military service.2 The purpose of the pretrial diversion program
is to allow veterans who are suffering as a result of their service to get the services
they need and also help them be more easily employed by keeping convictions off
their records if they successfully complete the program.
The question presented in this writ proceeding is whether Vehicle Code
section 23640, which prohibits pretrial diversion in any case charging a violation
of Vehicle Code section 23152 or 23153 (a DUI case),3 precludes the trial court
1
Further undesignated statutory references are to the Penal Code.
2
Section 1001.80 provides in relevant part: “(a) This chapter shall apply whenever
a case is before a court on an accusatory pleading alleging the commission of a
misdemeanor offense, and both of the following apply to the defendant: [¶] (1) The
defendant was, or currently is, a member of the United States military. [¶] (2) The
defendant may be suffering from sexual trauma, traumatic brain injury, post-traumatic
stress disorder, substance abuse, or mental health problems as a result of his or her
military service. . . . [¶] (b) If the court determines that a defendant charged with an
applicable offense under this chapter is a person described in subdivision (a), the court,
with the consent of the defendant and a waiver of the defendant’s speedy trial right, may
place the defendant in a pretrial diversion program, as defined in subdivision (k). [¶] (c)
. . . If the defendant has performed satisfactorily during the period of diversion, at the
end of the period of diversion, the criminal charges shall be dismissed.”
3
Vehicle Code section 23640 provides in relevant part: “(a) 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
2
from placing in a pretrial diversion program a defendant in a DUI case who would
otherwise qualify for pretrial diversion under section 1001.80. Based on the rules
of statutory construction, the language of section 1001.80 and Vehicle Code
section 23640, and the legislative history of section 1001.80, we conclude that
Vehicle Code section 23640 does not bar pretrial diversion for veterans or active
duty members of the military who meet the criteria of section 1001.80 and are
charged in a DUI case.
We note that on the day this case was argued before this court, our
colleagues in the Fourth Appellate District, Division One, filed an opinion reaching
the opposite conclusion. (People v. VanVleck (August 11, 2016, D069893) ___
Cal.App.4th ___ <http://www.courtinfo.ca.gov/opinions> (VanVleck).) We urge
the Legislature to act by amending section 1001.80 to express its intent with regard
to military diversion in DUI cases.
BACKGROUND
Petitioner Terence William Hopkins was charged with misdemeanor counts
of driving under the influence of alcohol in violation of Vehicle Code section
23152, subdivision (a), and driving while having 0.08 percent or more, by weight,
of alcohol in his blood in violation of Vehicle Code section 23152, subdivision (b).
The incident leading to the charges occurred on August 21, 2015. He pled not
guilty, and moved for military diversion under section 1001.80.
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.”
3
In support of his motion for diversion, Hopkins provided letters from Pamela
Davis, a clinical social worker for the Department of Veterans Affairs (the VA),
and Dr. Benjamin Shapiro, a psychiatrist for the VA.
Ms. Davis stated that Hopkins served in the United States Navy Reserves,
and was activated from October 19, 2007 to November 10, 2008. He completed a
combat tour in Afghanistan and was a military police officer in an internment
facility that housed Taliban and Al Qaeda prisoners. Ms. Davis stated that
Hopkins was exposed to significant trauma during his service, and had service-
connected PTSD. She noted that Hopkins began mental health services at the VA
in May 2015, and was under the care of a psychiatrist. She also stated that
Hopkins was referred to the “Addictive Behaviors Clinic” at the VA, where he will
participate in a 16-week program and will be drug tested and breathalyzed on a
regular and random basis.
Hopkins provided two letters from Dr. Shapiro. In the first, dated September
10, 2015 (a few weeks after the incident that led to the charges being filed against
Hopkins), Dr. Shapiro stated that Hopkins had been under his care since April
2015. Hopkins had informed Dr. Shapiro that he had developed a problem with
binge alcohol addiction, and they had been establishing a plan for treatment for
substance abuse just before Hopkins’ DUI incident. Dr. Shapiro also reported that
Hopkins had remained sober since the incident. In the second letter, dated
November 5, 2015, Dr. Shapiro stated that Hopkins’ alcohol dependence arose due
to active PTSD, which is a common consequence of combat exposure. He reported
that Hopkins had moved into recovery from his addiction successfully, and he
anticipated that Hopkins would maintain his sobriety due to his commitment to his
family and his future.
The People opposed Hopkins’ motion on the ground that Vehicle Code
section 23640 precludes diversion in any DUI case, citing People v. Weatherill
4
(1989) 215 Cal.App.3d 1569 (Weatherill). In that case, Division Seven of this
district addressed whether a diversion statute applicable to misdemeanor
defendants with cognitive developmental disabilities (§ 1001.21) applied when the
defendant was charged with DUI. The majority (over a dissent by Johnson, J.)
held that Vehicle Code sections 23202 and 23206 (renumbered as Veh. Code,
§§ 23640 and 23600)4 precluded application of section 1001.21 in such a case.
In reply, Hopkins argued that section 1001.80, which was enacted in 2014,
governed over the earlier-enacted Vehicle Code section 23640, and that excluding
DUI cases from the military diversion statute was contrary to the language and
purpose of section 1001.80. He contended that Weatherhill did not require a
different result since, unlike the present case, the diversion statute in that case was
enacted before the Vehicle Code statute.
In ruling on Hopkins’ motion, the trial court noted it was undisputed that
Hopkins met the criteria to qualify for diversion under section 1001.80. However,
the court found that the fact that section 1001.80 was enacted after Vehicle Code
section 23640 was not dispositive because repeals by implication are disfavored
(citing People v. Siko (1988) 45 Cal.3d 820, 824). It also found that a specific
statute such as Vehicle Code section 23640 prevails over a general diversion
statute (citing Weatherill, supra, 215 Cal.App.4th at pp. 1577-1578). Therefore,
the court concluded that diversion under section 1001.80 was barred by Vehicle
Code section 23640, and denied Hopkins’ request.
Hopkins filed a petition for writ of mandate with the Appellate Division of
the Los Angeles Superior Court, challenging the trial court’s determination that it
4
Former Vehicle Code sections 23202 (which applied to pretrial diversion) and
23206 (which applied to post-conviction diversion) were repealed and reenacted as
Vehicle Code sections 23640 and 23600 by Stats. 1998, ch. 118 (Sen. Bill No. 1186),
sections 60, 64, 84.
5
had no discretion to order pretrial diversion under section 1001.80. He asked the
appellate division to issue a writ of mandate directing the trial court to vacate its
December 18, 2015 order denying Hopkins’ request for diversion and to exercise
its discretion to determine whether he should be granted diversion under section
1001.80. On January 26, 2016, the Appellate Division summarily denied the
petition, citing Vehicle Code section 23600,5 subdivision (a), and Weatherill,
supra, 215 Cal.App.3d at pages 1572-1573. Hopkins then filed the instant petition
in this court, requesting that we issue a writ of mandate directing the Appellate
Division of the Los Angeles Superior Court to issue a writ of mandate directing the
trial court to vacate its December 18, 2015 order finding that Hopkins is ineligible
for diversion under section 1001.80, and to exercise its discretion to determine
whether diversion should be granted. We issued an order to show cause to the
Appellate Division of the Los Angeles Superior Court, ordering it to show cause
why a peremptory writ of mandate should not issue directing it to vacate its order
denying Hopkins’ petition for writ of mandate and to make a new and different
order granting the petition. We also ordered all proceedings in the trial court
stayed pending further order of this court.
DISCUSSION
Here we are faced with two seemingly inconsistent statutes: section
1001.80, which would allow the court in this case to place Hopkins in a pretrial
diversion program, and Vehicle Code section 23640, which would prohibit the
court from doing so. The California Supreme Court recently reiterated the
approach a court must take when faced with potentially inconsistent statutes. “‘“A
court must, where reasonably possible, harmonize statutes, reconcile seeming
5
Clearly, this was a typographical error.
6
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.]” (State Dept. of Public Health v. Superior Court
(2015) 60 Cal.4th 940, 955-956 (State Dept.).)
The Supreme Court cautioned that “the requirement that courts harmonize
potentially inconsistent statutes when possible is not a license to redraft the statutes
to strike a compromise that the Legislature did not reach.” (State Dept., supra, 60
Cal.4th at p. 956.) It explained that “[t]he 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.” (Ibid.)
With the Supreme Court’s instructions in mind, we begin by examining the
text of the two statutes at issue in the present case.
Section 1001.80 states that “[t]his chapter shall apply whenever a case is
before a court on an accusatory pleading alleging the commission of a
misdemeanor offense,” and the defendant is a former or current member of the
military who may be suffering from service-related trauma, PTSD, substance, or
mental health issues. (§ 1001.80, subd. (a), italics added.) It gives the court
7
authority to place the defendant in a pretrial diversion program “[i]f the court
determines that a defendant charged with an applicable offense under this chapter
is a person described in subdivision (a).” (§ 1001.80, subd. (b).) There is no
ambiguity in this language: “whenever” a qualified defendant is charged with “a
misdemeanor offense,” the court may place the defendant in a pretrial diversion
program.
Vehicle Code section 23640 is equally unambiguous. It states that a court
shall not grant pretrial diversion “[i]n any case in which a person is charged with a
violation of Section 23152 or 23153.” (Veh. Code, § 23640, subd. (a), italics
added.)
The People contend the two statutes may be harmonized because section
1001.80 is permissive, i.e., the court may, but is not required to, place a qualified
defendant in a pretrial diversion program. Thus, the People argue, the court may
choose to deny a qualified defendant pretrial diversion for a number of reasons,
including because he or she is “statutorily ineligible for diversion because he [or
she] committed DUI, a disqualifying offense.” But that construction of section
1001.80 is not a plausible construction of the statute’s unambiguous language,
which authorizes the court to grant pretrial diversion “whenever” a defendant who
meets the criteria set forth in the statute is charged with a misdemeanor offense.
Instead, the People’s attempt to harmonize rewrites section 1001.80 to add an
additional criterion not found in the express language, i.e., that the defendant
cannot be charged with a misdemeanor DUI offense. But, as the Supreme Court
instructs, the requirement to “harmonize potentially inconsistent statutes when
possible is not a license to redraft the statutes.” (State Dept., supra, 60 Cal.4th at
p. 956.)
Based on the express language of the statutes, we conclude that section
1001.80 and Vehicle Code section 23640 cannot be reconciled with respect to
8
defendants in DUI cases who meet the stated criteria under section 1001.80.6
Therefore, we must look to the rules that apply when courts are faced with two
irreconcilable statutes: “‘If conflicting statutes cannot be reconciled, later
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., supra, 60 Cal.4th at pp. 960-961.)
The People contend that the timing of the enactments is not relevant here
because Vehicle Code section 23640 is a specific statute and section 1001.80 is a
general statute, and therefore Vehicle Code section 23640 controls. In making this
argument, the People quote the majority opinion in Weatherill: “When a general
statute conflicts with a specific statute the specific statute controls the general one.
[Citations.] The referent of ‘general’ and ‘specific’ is subject matter. Thus, in the
instant case, the subject matter of . . . section 1001.21 is misdemeanor diversion.
That section, applying as it does to all misdemeanors, even felonies reduced to
misdemeanors, comprehends hundreds of misdemeanors in scores of codes and is
therefore a general statute. [¶] By contrast, the subject matter of [former] section
23202 is driving-under-the-influence diversion. It applies to a single type of
conduct and comprehends only two offenses, sections 23152 and 23153. [Former
s]ection 23202 is a specific statute and controls, to the extent of their
inconsistency, the general statute, . . . section 1001.21.” (Weatherill, supra, 215
Cal.App.3d at pp. 1577-1578.)
6
We note that the majority in Weatherill came to the same conclusion regarding
former Vehicle Code section 23202 (now Veh. Code, § 23640) and section 1001.21, the
developmentally disabled diversion statute. (Weatherill, supra, 215 Cal.App.3d at p.
1577.)
9
The court in VanVleck agreed with the majority’s analysis in Weatherill.
(VanVleck, supra, ___ Cal.App.4th ___ [pp. 12-13].) We respectfully disagree.
As Justice Johnson pointed out in his dissent in Weatherill, “[i]t can be contended
just as forcefully that [former] Vehicle Code section 23202 contains a general
provision prohibiting diversion for any defendant in [DUI] cases while . . . section
1001.20 et seq. focus specifically on [developmentally disabled] defendants and
authorize diversion for this specific class of defendants no matter what
misdemeanor they are charged with.” (Weatherill, supra, 215 Cal.App.3d at p.
1582 (dis. opn. of Johnson, J.).)
Put another way, “‘[i]t is the general rule that where the general statute
standing alone would include the same matter as the special act, and thus conflict
with it, the special act will be considered as an exception to the general statute
whether it was passed before or after such general enactment.’” (People v. Gilbert
(1969) 1 Cal.3d 475, 479, italics added.) Here, the “matter” covered by section
1001.80 is a specific diversion program applicable only to certain qualifying
defendants who are or were members of the United States military, applicable
“whenever” a qualifying defendant is charged with a misdemeanor. With that
focus, section 1001.80 is clearly more specific than Vehicle Code section 23640,
which purports to preclude diversion for all defendants charged with a specific
crime (driving under the influence). On the other hand, with a different focus –
looking only to the offense with which a defendant is charged – Vehicle Code
section 23640 appears to be more specific, because it applies only to driving under
the influence whereas section 1001.80 applies to all misdemeanors. In short,
unless we are prepared to make an arbitrary choice of focus, the general-vs.-
specific rule of statutory construction gets us nowhere.
Since the rule that a specific statute controls a general statute does not assist
us in this case, we must apply the rule that “‘later enactments supersede earlier
10
ones.’” (State Dept., supra, 60 Cal.4th at p. 960.) There is no question that section
1001.80 is the later enactment; it was enacted in 2014 (Stats. 2014, ch. 658 (Sen.
Bill No. 1227), § 1), while Vehicle Code section 23640 was enacted in 1998 (Stats.
1998, ch. 118 (Sen. Bill No. 1186), § 84), and its predecessor, Vehicle Code
section 23202 was enacted in the 1981-1982 Regular Session (see Weatherill,
supra, 215 Cal.App.3d at p. 1574.) Thus, we conclude that section 1001.80
supersedes Vehicle Code section 23640 to the extent that the latter statute prohibits
pretrial diversion for defendants who meet the criteria set forth in section 1001.80,
subdivision (a).
Unlike the court in VanVleck, we find that the legislative history of section
1001.80 supports our conclusion that the Legislature intended section 1001.80 to
apply in DUI cases. (See Mays v. City of Los Angeles (2008) 43 Cal.4th 313, 321
[“In construing statutes, ‘our fundamental task is “to ascertain the intent of the
lawmakers so as to effectuate the purpose of the statute.” . . . Ultimately we
choose the construction that comports most closely with the apparent intent of the
lawmakers, with a view to promoting rather than defeating the general purpose of
the statute.’”].)
In VanVleck, the court observed that the legislative history “does not
mention or resolve the conflict with [Vehicle Code] section 23640’s ban on
diversion for driving under the influence offenses. However, we presume the
Legislature was aware of the Weatherill decision and its interpretation of [Vehicle
Code] section 23640 when it enacted the military diversion statute. (People v.
Hernandez [(1988)] 46 Cal.3d [194,] 201.) Had the Legislature intended to depart
from the conclusion in Weatherill and create an exception to [Vehicle Code]
section 23640, it could have easily done so by stating the military diversion statute
authorizes pretrial diversion for defendants charged with violations of [Vehicle
11
Code] sections 23152 and 23153.” (VanVleck, supra, ___ Cal.App.4th ___ [p.
11].)
We disagree with the VanVleck court’s analysis.
First, we question whether the presumption that the Legislature was aware of
statutes and prior judicial decisions and enacted the new statute in light of those
statutes and decisions applies when the new statute being interpreted directly
conflicts with existing law. (See, e.g., McLaughlin v. State Board of Education
(1999) 75 Cal.App.4th 196, 213 [“unlike cases where lawmakers can be presumed
to borrow from existing law to supply omitted meaning to later enactments, the
presumption that one legislates with full knowledge of existing law is not
conclusive, and not even helpful, in cases where a later enactment directly conflicts
with an earlier law”].) Indeed, we have found no prior case that has applied the
presumption in such a case.
Second, even if the presumption were appropriate in a case involving
directly conflicting statutes, “‘“[t]he presumption of legislative acquiescence in
prior judicial decisions is not conclusive in determining legislative intent. . . .
‘Legislative silence after a court has construed a statute gives rise at most to an
arguable inference of acquiescence or passive approval. . . . But something more
than mere silence is required before that acquiescence is elevated into a species of
implied legislation. . . . [Citations.] In the area of statutory construction, an
examination of what the Legislature has done (as opposed to what it has left
undone) is generally the more fruitful inquiry.’”’ [Citations.]” (People v. Morante
(1999) 20 Cal.4th 403, 429.) And what the Legislature has done in this instance is
enact a statute that expressly applies “whenever a case is before a court on an
accusatory pleading alleging the commission of a misdemeanor offense.”
(§ 1001.80, subd. (a), italics added.)
12
Finally, even though, as the VanVleck court observes, the legislative history
does not expressly mention Vehicle Code section 23640’s ban on pretrial diversion
in DUI cases, there are strong indications that the Legislature intended the military
diversion program to apply in all misdemeanor cases, including DUI cases.
Senate Bill No. 1227, which enacted section 1001.80, was authored by
Senator Loni Hancock, the chair of the Senate Committee on Public Safety. An
analysis of the bill by that committee explained the importance of creating a
diversion program specifically for military veterans: “California has nearly two
million military veterans living in the state, more than any other state in the
country. Many of these veterans suffer from service related trauma, such as Post
Traumatic Stress Disorder, or Traumatic Brain Injury. Unfortunately, some
veterans find themselves entangled in the criminal justice system.” (Sen. Com. on
Public Safety, Analysis of Sen. Bill No. 1227 (2013-2014 Reg. Sess.) Apr. 8, 2014,
p. 4.) The analysis noted that although specialized courts have been effective in
connecting veterans to services they need, those courts are post-plea, probationary
programs. Therefore, they fail to provide an important benefit of pretrial diversion
programs: diversion programs, if successfully completed, “ensure that the
participant is able to avoid the consequences of a conviction (such as difficulty in
finding a job or securing housing).” (Id. at p. 5.)
According to the analysis, existing diversion programs are inadequate
because “[t]he goal is to not just put [veterans suffering from trauma] in any
program but to get them in a program that is used to dealing with the issues that a
veteran may have.” (Sen. Com. on Public Safety, Analysis of Sen. Bill No. 1227
(2013-2014 Reg. Sess.) Apr. 8, 2014, p. 5.) To that end, under the bill, the court is
encouraged to work with the VA to develop the appropriate treatment, using
established treatment programs with experience in dealing with the type of trauma
the veteran has suffered. The analysis concluded: “The point of the diversion
13
program will be to get help for veterans who may be suffering as a result of their
service. This will allow them to not only get the proper services but also allow
them to be more easily employed in the future by keeping the crime off their record
if they complete their diversion program successfully.” (Ibid.)
That this specialized diversion program was intended to apply in all
misdemeanor cases with qualified defendants, including DUI cases, is strongly
indicated by how the existing law and the proposed law were described in the
analysis of Senate Bill No. 1227. The analysis acknowledged that “[e]xisting law
provides for diversion of non-DUI misdemeanor offenses,” citing sections 1001 et
seq. and 1001.50 et seq. (Sen. Com. on Public Safety, Analysis of Sen. Bill No.
1227 (2013-2014 Reg. Sess.) Apr. 8, 2014, p. 2, italics added.) But no such
qualifier was used when describing the offenses that would be eligible for the new
diversion program. Instead, the analysis stated that the bill would create a new
diversion program to apply when a qualified member or former member of the
military “is accused of a misdemeanor or jail felony.”7 (Ibid.)
This failure to expressly exempt DUI cases in section 1001.80 stands in stark
contrast to prior actions by the Legislature with respect to other diversion
programs. As the majority in Weatherill noted, after former Vehicle Code section
23202 was enacted, “when the Legislature enacted or reenacted diversion
programs, e.g., Penal Code section 1001 et seq. (Stats. 1982, ch. 42) and Penal
Code section 1001.50 et seq. (Stats. 1982, ch. 1251), in order to avoid the risk of
implied repeal, it specifically exempted all driving-under-the-influence charges.”
7
As introduced, the bill applied to misdemeanors and felonies punishable under
section 1170, subdivision (h). (Sen. Bill No. 1227 (2013-2014 Reg. Sess.), as introduced
Feb. 20, 2014.) The California District Attorneys Association opposed the bill unless it
was amended to exclude felonies, and the bill ultimately was so amended. (Sen. Com. on
Public Safety, Analysis of Sen. Bill No. 1227 (2013-2014 Reg. Sess.) Apr. 8, 2014, p. 5;
Assem. Amend. to Sen. Bill No. 1227 (2013-2014 Reg. Sess.) Aug. 4, 2014.)
14
(Weatherill, supra, 215 Cal.App.3d at pp. 1579-1580.) That the Legislature did
not do so here supports our conclusion that it did not intend that Vehicle Code
section 23640 would bar pretrial diversion under section 1001.80 in DUI cases.
The Senate Appropriations Committee Fiscal Summary of the bill also
supports our conclusion that the Legislature intended section 1001.80 to apply in
DUI cases. (Sen. Appropriations Com., Fiscal Summary of Sen. Bill No. 1227
(2013-2014 Reg. Sess.) Apr. 28, 2014.) That summary compares the diversion
program to be created by Senate Bill No. 1227 to the existing “post-plea
probationary programs for current or former members of the military [determined
by the court to be suffering from service-related trauma, substance abuse, or
mental health problems] convicted of criminal offenses who would otherwise be
sentenced to county jail or state prison.” (Id. at p. 1.) It explains that “[t]his bill
seeks to offer comparable treatment programs prior to prosecution to similarly
affected current and former members of the military who have been charged with
misdemeanor or jail felony offenses.”8 (Ibid.)
In other words, the Legislature sought to provide pretrial diversion to
military veteran defendants who would be eligible for post-conviction probationary
programs. Those post-conviction probationary programs for military veterans
were first authorized in 1982 under former section 1170.8 (Stats. 1982, ch. 964, p.
3466, § 1), which was renumbered the following year as section 1170.9 (Stats.
1983, ch. 142, § 121). Section 1170.9 provides, in relevant part: “(a) In the case
of any person convicted of a criminal offense who could otherwise be sentenced to
county jail or state prison and who alleges that he or she committed the offense as
a result of sexual trauma, traumatic brain injury, post-traumatic stress disorder,
substance abuse, or mental health problems stemming from service in the United
8
See footnote 7, ante.
15
States military, the court shall, prior to sentencing, make a determination as to
whether the defendant was, or currently is, a member of the United States military
and whether the defendant may be suffering from sexual trauma, traumatic brain
injury, post-traumatic stress disorder, substance abuse, or mental health problems
as a result of his or her service. . . . [¶] (b)(1) If the court concludes that a
defendant convicted of a criminal offense is a person described in subdivision (a),
and if the defendant is otherwise eligible for probation, the court shall consider the
circumstances described in subdivision (a) as a factor in favor of granting
probation. [¶] (2) If the court places the defendant on probation, the court may
order the defendant into a local, state, federal, or private nonprofit treatment
program for a period not to exceed that period which the defendant would have
served in state prison or county jail, provided the defendant agrees to participate in
the program and the court determines that an appropriate treatment program
exists.”
Although Vehicle Code section 23600, the post conviction counterpart to
Vehicle Code section 23640, prohibits courts from staying or suspending the
pronouncement of sentencing of any defendant convicted of a DUI offense, it does
not prohibit the court from sentencing a defendant to probation for such an offense.
Thus, a current or former service member who qualifies under section 1170.9 may
be ordered into a post-conviction probationary program even if he or she was
convicted of a DUI offense. Given that the Legislature intended to provide pretrial
diversion to similarly situated military veteran defendants, it stands to reason that it
intended that a current or former service member who qualifies under section
1001.80 may be granted pretrial diversion even if he or she is charged with a DUI
offense.
16
In short, we find the legislative history supports our conclusion that, by
enacting section 1001.80, the Legislature impliedly repealed Vehicle Code section
23640 to the extent it prohibits pretrial diversion for defendants who meet the
qualifications of section 1001.80, subdivision (a). Accordingly, we grant Hopkins’
petition.
DISPOSITION
The order to show cause is discharged. Let a peremptory writ of
mandate issue directing the Appellate Division of the Los Angeles Superior Court
to vacate its January 26, 2016 order denying Hopkins’ petition for writ of mandate,
and to make a new and different order granting the petition.
CERTIFIED FOR PUBLICATION
WILLHITE, J.
We concur:
EPSTEIN, P. J.
COLLINS, J.
17