The opinion
Filed 3/10/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
LONGEN TAN,
Petitioner,
v.
THE SUPERIOR COURT OF SAN A163715
MATEO COUNTY,
(San Mateo County
Respondent;
Super. Ct. No. 19-NM-007168-A)
THE PEOPLE,
Real Party in Interest.
Longen Tan was charged with misdemeanor driving under the
influence. Effective January 1, 2021, the Legislature enacted a new law,
Penal Code1 section 1001.95, making defendants charged with misdemeanors
generally eligible for diversion at the discretion of the trial judge. The law
expressly exempts several offenses from eligibility for diversion, but driving
under the influence is not one of them. An older law, however, Vehicle Code
section 23640, provides that those charged with driving under the influence
(DUI) are categorically ineligible for diversion.
Tan filed a petition for misdemeanor diversion under section 1001.95,
arguing that section 1001.95 superseded Vehicle Code section 23640 with
All further statutory references are to the Penal Code unless
1
otherwise specified.
respect to misdemeanor DUIs. After his petition was denied in the trial
court, Tan filed a petition for writ of mandate in this court, asking us to
direct the trial court to vacate its order denying his petition for diversion and
grant it instead.2 When he filed his petition, no Court of Appeal had decided
the issue presented and there was a split of authority between two published
superior court appellate division opinions as to the availability of diversion in
cases of misdemeanor DUI. After the matter was fully briefed, Division
Three of the Fourth Appellate District issued its opinion in Grassi v. Superior
Court (2021) 73 Cal.App.5th 283 (Grassi), concluding that section 1001.95
and Vehicle Code section 23640 can be harmonized, and that misdemeanor
diversion is unavailable to defendants charged with DUI. Although we, like
the Grassi court, believe it is a difficult and close question, we similarly hold
the two statutes can be reconciled and that misdemeanor convictions for DUI
are not eligible for statutory diversion. Accordingly, we deny the petition.
I. FACTUAL BACKGROUND
On May 28, 2019, the San Mateo County District Attorney charged Tan
with two misdemeanor violations of Vehicle Code section 23152. (Veh. Code,
§ 23152, subds. (a) & (b); counts 1 & 2.)
2 Tan also asserts that the San Mateo County Superior Court instituted
a court-wide policy prohibiting trial judges from granting diversion in
misdemeanor DUI cases. Tan argues the trial court did not follow proper
procedures, violated his due process and equal protection rights, and asks us
to prohibit the trial court from enforcing its policy of categorically denying
diversion to defendants charged with misdemeanor DUI. As we explain
below, we need not consider these arguments because we conclude diversion
is unavailable in misdemeanor DUI cases.
2
On April 19, 2021, Tan filed a petition requesting court-initiated
misdemeanor diversion under sections 1001.95 and 1001.97.3 At the hearing
on Tan’s petition, the trial court heard argument from both sides, then stated
its tentative ruling that “DUIs are not currently exempt from [section]
1001.95” and that “Mr. Tan present[ed], . . . if not a quintessential, a
representative case in which such diversion may be warranted.” The court
took the matter under submission.
The trial court subsequently issued a written ruling, stating it had
considered the briefing, attachments and arguments of both parties, and
independently researched the legislative history of section 1001.95 and
Assembly Bill No. 3234 (2019–2020 Reg. Sess.) (Assembly Bill 3234). The
trial court concluded that the legislative history leading to the passage of
Assembly Bill 3234 indicated the Legislature intended for misdemeanor DUI
offenses to be eligible for diversion, and the trial court found Tan suitable for
diversion. Nonetheless, the trial court denied the motion, citing a
determination by the judges of San Mateo County Superior Court not to offer
diversion in any prosecution for a misdemeanor DUI. Tan filed a petition for
writ of mandate and prohibition in the superior court appellate division,
which was summarily denied.
3 Section 1001.97 provides that upon successful completion of diversion,
the defendant’s arrest “shall be deemed to have never occurred,” the
defendant “may indicate in response to any question concerning their prior
criminal record that they were not arrested,” and a record pertaining to an
arrest resulting in successful completion of diversion “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.” (§ 1001.97, subd. (a).)
3
Tan subsequently filed a petition for writ of mandate and prohibition in
this court.4
II. DISCUSSION
Tan contends section 1001.95 and Vehicle Code section 23640
“inherently conflict” because section 1001.95 permits misdemeanor diversion
except for offenses specifically excluded under the statute, while Vehicle Code
section 23640 prohibits diversion for DUIs. He asserts a “reading of the plain
language of [section 1001.95] . . . leads one to understand that DUIs are in
fact eligible [for misdemeanor diversion] because they are not specifically
excluded” and the “only reason the statute is ambiguous is because of Vehicle
Code section 23640.” To resolve this conflict, Tan argues, we must look to the
legislative history of section 1001.95, which “is sufficiently clear” and shows
“that the Legislature intended that DUI defendants be eligible for diversion.”
As we discuss below, we find the Legislature’s intent with respect to the
potential conflict between these statutes anything but clear. After a careful
examination of the statutory language, the legislative history, the canons of
statutory construction, and related case law, we conclude diversion is not
available to Tan under the legislation as currently enacted.5
4We issued an order to show cause. The parties elected to rely on their
informal opposition and reply briefs as their return and traverse,
respectively.
5 Tan was charged with misdemeanor DUI before section 1001.95
became effective. Neither party addresses whether section 1001.95 applies
retroactively. Like the Grassi court, we conclude that because
section 1001.95 provides a potential ameliorative benefit to criminal
defendants with nonfinal cases, it applies retroactively. (Grassi, supra,
73 Cal.App.5th at p. 289; People v. Esquivel (2021) 11 Cal.5th 671, 675;
People v. Frahs (2020) 9 Cal.5th 618, 631–632; In re Estrada (1965) 63 Cal.2d
740, 744–745.)
4
A. Legal Standards
Whether defendants charged with misdemeanor DUI are eligible for
diversion raises a question of statutory interpretation for our independent
review. (People v. Gonzalez (2017) 2 Cal.5th 1138, 1141; People v. Tran
(2015) 61 Cal.4th 1160, 1166.) “ ‘ “ ‘As in any case involving statutory
interpretation, our fundamental task . . . is to determine the Legislature’s
intent so as to effectuate the law’s purpose. [Citation.] We begin by
examining the statute’s words, giving them a plain and commonsense
meaning.’ ” ’ [Citation.] ‘[W]e consider the language of the entire scheme and
related statutes, harmonizing the terms when possible.’ ” (Gonzalez, at
p. 1141; People v. Valencia (2017) 3 Cal.5th 347, 357 [“ ‘[t]he 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’ ”].) If
the language of the statute is clear and unambiguous, there is no need for
judicial construction and our task is at an end. If the language is reasonably
susceptible of more than one meaning, however, we may examine extrinsic
aids such as the apparent purpose of the statute, the legislative history, the
canons of statutory construction, and public policy. (Even Zohar Construction
& Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 838
(Even Zohar); People v. Arias (2008) 45 Cal.4th 169, 177.)
B. Statutory Language
Generally, the most reliable indicator of legislative intent is the words
of the statute. (Even Zohar, supra, 61 Cal.4th at pp. 837–838.) Accordingly,
we turn first to the plain language of the statutes at issue.
Section 1001.95 provides, in relevant part: “A judge in the superior
court in which a misdemeanor is being prosecuted may, at the judge’s
5
discretion, and over the objection of a prosecuting attorney, offer diversion to
a defendant pursuant to these provisions.” (§ 1001.95, subd. (a).)
Subdivision (e) further provides that “A defendant may not be offered
diversion pursuant to this section for any of the following current charged
offenses,” and includes any offense for which a person, if convicted, would
have to register under section 290 (sex offender registration); violation of
section 273.5 (inflicting corporal injury on domestic violence victim); violation
of section 243, subdivision (e) (battery on a domestic violence victim); and
violation of section 646.9 (stalking). (§ 1001.95, subd. (e).) Under the plain
words of the statute, judges have discretion to offer diversion for
misdemeanor offenses over the objection of a prosecuting attorney unless the
offense is one of the specifically excluded categories listed in subdivision (e).
Vehicle Code section 23640, subdivision (a) provides: “In any case in
which a person is charged with a violation of [Vehicle Code] 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 . . . .” As our courts have concluded, the clear import of this
language is that diversion is categorically unavailable to DUI defendants.
(Grassi, supra, 73 Cal.App.5th at p. 291; Tellez v. Superior Court (2020)
56 Cal.App.5th 439, 443 (Tellez).)
Read separately, the statutes appear to conflict. On the one hand,
defendants like Tan who have been charged with a misdemeanor DUI appear
to qualify for judicial diversion under section 1001.95 because DUIs are not
expressly excluded from the statute. On the other hand, it appears Tan does
6
not qualify for diversion under Vehicle Code section 23640 because that
statute prohibits diversion for all DUIs.
C. Harmonization
Our Supreme Court has instructed that where statutes possibly
conflict, “two principles of statutory construction are especially relevant.
First, ‘ “[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.” ’ ” (Even Zohar, supra, 61 Cal.4th at
p. 838.) “ ‘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.” ’ ” ’ ”
(State Dept. of Public Health v. Superior Court (2015) 60 Cal.4th 940, 955
(State Dept. of Public Health); Lopez v. Sony Electronics, Inc. (2018) 5 Cal.5th
627, 634 (Lopez).)
“Second, all ‘ “ ‘ “presumptions are against a repeal by
implication” ’ ” ’ [citation], including partial repeals that occur when one
statute implicitly limits another statute’s scope of operation [citation]. Thus,
‘ “ ‘we will find an implied repeal “only when there is no rational basis for
harmonizing . . . two potentially conflicting statutes [citation], and the
statutes are ‘irreconcilable, clearly repugnant, and so inconsistent that the
two cannot have concurrent operation.” ’ ” ’ ” (Even Zohar, supra, 61 Cal.4th
at p. 838; Apartment Assn. of Los Angeles County, Inc. v. City of Los Angeles
(2009) 173 Cal.App.4th 13, 18 [“Absent an express declaration of legislative
intent . . . we presume that a statute was not impliedly repealed by a
subsequent statute unless there is no rational way to harmonize the two
potentially conflicting statutes.”]; Newark Unified School Dist. v. Superior
7
Court (2015) 245 Cal.App.4th 887, 907–908 [by harmonizing statutes court is
able to “ ‘ “maintain the integrity of both statutes,” ’ thereby honoring the
presumed intent of the Legislature”].)
Here, the statutes are not irreconcilable. Nothing in the language of
section 1001.95 suggests that it intended to overrule the prohibition on
diversion in DUI cases contained in Vehicle Code section 23640. When the
Legislature enacted section 1001.95, section 23640 and its predecessor,
Vehicle Code former section 23202, had been in operation for almost 40 years.
(Moore v. Superior Court (2020) 58 Cal.App.5th 561, 570 & fn. 5 (Moore).) We
presume the Legislature is aware of all existing laws when it enacts a statute
and intends to enact a consistent body of rules. (People v. Frahs, supra,
9 Cal.5th at p. 634; People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183,
199.) Yet 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.
“When the Legislature intends for a statute to prevail over all contrary
law, it typically signals this intent by using phrases like ‘notwithstanding
any other law’ or ‘notwithstanding other provisions of law.’ ” (In re Greg F.
(2012) 55 Cal.4th 393, 406; see § 1001.80, subd. (l), added by Stats. 2017,
ch. 179, § 1 [amending military diversion statute to clarify that DUI cases are
eligible for diversion by adding language “Notwithstanding any other law,
including Section 23640 of the Vehicle Code”].) The absence of such language
in section 1001.95 suggests the Legislature did not intend to abrogate
existing law excluding DUI cases from eligibility for diversion.
Nor is it clear, as Tan argues, that DUIs are eligible for diversion under
the plain language of section 1001.95 because they are not listed among the
8
excluded offenses (sex offender cases, domestic violence, and stalking) in
subdivision (e). First, nothing in the language of subdivision (e) indicates
that the list of offenses is exclusive. Rather, the language simply states a
court may not grant diversion in four specific situations.
Second, this “theory would lead to the remarkable conclusion that the
Legislature creates exceptions to a specific code section merely by failing to
mention it.” (People v. Siko (1988) 45 Cal.3d 820, 824 [petitioner’s reliance on
legislative silence to argue recently enacted § 667.6, subd. (c) overruled
§ 654’s proscription on multiple punishment for single act or omission was
“untenable”].) Here, the “normal rules of statutory construction . . . dictate a
contrary presumption: [Vehicle Code section 23640], like any other statute, is
presumed to govern every case to which it applies by its terms—unless some
other statute creates an express exception.” (Siko, at p. 824.) Had the
Legislature intended to partially override Vehicle Code section 23640’s
application to DUI cases and create an exception to allow diversion in
misdemeanor cases, it could have said so expressly in the language of
section 1001.95.
Moreover, harmonization is possible here because reconciling
section 1001.95 and Vehicle Code section 23640 does not require us to rewrite
the statutes, or strike a compromise the Legislature itself did not reach.
(Grassi, supra, 73 Cal.App.5th at p. 308; cf. State Dept. of Public Health,
supra, 60 Cal.4th at pp. 956–958 [statute requiring disclosure of redacted
information conflicted with statute prohibiting disclosure of same information
and harmonization would result in disclosure scheme inconsistent with
requirements of either statute]; Lopez, supra, 5 Cal.5th at pp. 637–638
[statutes could not have concurrent operation because two different statutes
of limitations could not govern the same claim].) As we have explained,
9
nothing in section 1001.95 indicates an affirmative intent to allow
misdemeanor diversion for DUIs and Vehicle Code section 23640 clearly
prohibits it. Reading section 1001.95’s general grant of authority to permit
misdemeanor diversion, together with section 23640’s specific prohibition of
diversion for DUI offenses, allows us to respect the expressed legislative
intent to prohibit diversion for DUIs, while not inferring a legislative intent
to allow such diversion based on silence in section 1001.95. (See, e.g., In re
Christian S. (1994) 7 Cal.4th 768, 782 [“We are not persuaded the Legislature
would have silently, or at best obscurely, decided so important . . . a public
policy matter and created a significant departure from the existing law.”].)
D. Legislative History
Tan argues the legislative history of section 1001.95 makes clear the
Legislature’s intent that misdemeanor DUI offenses be eligible for diversion
and contends legislative history must prevail over the canons of statutory
construction when that history provides clues to legislative intent. But we
find no such clarity in the very limited legislative history available to us.
(See Grassi, supra, 73 Cal.App.5th at pp. 301–303 [describing in detail the
“scant evidence” of legislative history concerning § 1001.95].)
Tan first argues Assembly Bill 3234 was modeled on the Los Angeles
County Deferral of Sentencing Pilot Program (LA Pilot Program) that
previously operated under section 1001.94 et seq. between January 1, 2015
and December 31, 2017. Unlike section 1001.95, the LA Pilot Program
specifically stated that DUIs were exempt from misdemeanor diversion. (See
former § 1001.98, subd. (h)(3).) Tan also observes that existing general
misdemeanor diversion statutes expressly exclude DUIs. (§§ 1001–1001.9,
1001.2, subd. (a), 1001.50 et seq., 1001.51, subds. (b),(c)(6).) Tan contends “in
enacting [Assembly Bill] 3234, the authors of the legislation deliberately and
10
intentionally shortened the list of disqualifying misdemeanor offenses that
were ineligible under the Pilot Program and the existing general
misdemeanor diversion schemes,” and “eliminated any language rendering
DUI defendants ineligible for diversion under the new section 1001.95
diversion statute.”
As an initial matter, we observe that Tan’s argument that Assembly
Bill 3234 is modeled on the LA Pilot Program is based on a statement in
opposition to the bill by the California District Attorneys Association.
(Assem. Floor Analysis, 3d reading analysis of Assem. Bill 3234, as amended
Aug. 24, 2020, p. 5.) We find that statement in opposition to the bill
particularly unhelpful in deciphering legislative intent. First, the statement
is not competent evidence of the Legislature’s collective intent. (See, e.g.,
American Financial Services Assn. v. City of Oakland (2005) 34 Cal.4th 1239,
1264 [“restatement of an argument made by certain industry groups does not
purport to reflect debate within the Legislature”]; Purifoy v. Howell (2010)
183 Cal.App.4th 166, 179, fn. 14 [disregarding statement from bill’s
“ ‘ARGUMENTS IN OPPOSITION’ ” section of committee analysis by an
opponent of the bill where the opponent represented an outside agency].)
Second, the statement does not say anything one way or the other about
whether DUIs are excluded under the proposed legislation, but observes only
that DUIs were excluded under the LA Pilot Program. (Assem. Floor
Analysis, 3d reading analysis of Assem. Bill 3234, as amended Aug. 24, 2020,
p. 5 [recognizing that the “ ‘pilot program applied generally to first time
offenders and included multiple exclusions—including . . . DUIs . . .’ ”].)
Third, the failure of section 1001.95 to expressly exclude DUIs unlike these
other diversion programs “does not demonstrate an unambiguous intent to
allow diversion in misdemeanor DUI cases,” as the Legislature “could have
11
simply realized excluding DUIs was redundant in light of [Vehicle Code]
section 23640.” (Grassi, supra, 73 Cal.App.5th at pp. 304–305.)
Tan also points to similar statements in both the Assembly and Senate
floor analyses that, “Unlike existing general misdemeanor diversion, this bill
would have no statutory requirements for the defendant to satisfy in order to
be eligible nor would any misdemeanors be statutorily excluded.” (Assem.
Floor Analysis, 3d reading analysis of Assem. Bill 3234, as amended Aug. 24,
2020, p. 3, italics added; Sen. Rules Com., Off. of Sen. Floor Analysis, 3d
reading analysis of Assem. Bill 3234, as amended Aug. 24, 2020, p. 1 [“Unlike
existing general misdemeanor diversion, this bill has no statutory
requirements for the defendant to satisfy in order to be eligible nor would any
misdemeanors be statutorily excluded.”].) Tan contends these statements
“are not the type the [L]egislature would make if the Legislature simply
intended that DUIs be excluded from diversion under Vehicle Code
section 23640,” but he does not explain his argument. It is true that both
floor analyses indicate no “misdemeanors [would] be statutorily excluded,”
but as Tan concedes in a footnote, the version of Assembly Bill 3234 that was
signed into law included statutory exclusions. Tan’s argument that the
“original intent was to have no statutory exclusions,” is obviated by the
Legislature’s amendment of the legislation to exclude certain offenses. (See
Grassi, supra, 73 Cal.App.5th at p. 304 [Legislature clearly abandoned any
intention that no misdemeanors would be excluded from § 1001.95 when it
amended statute to add subd. (e) exclusions].)
Tan also relies on transcripts from the legislative hearings on Assembly
Bill 3234. On August 24, 2020, Assemblymember Jim Cooper stated during
floor debate that “DUI with injury” was eligible for diversion under the
12
statute.6 No legislator responded to that assertion, and the bill passed the
Assembly by a vote of 41 to 22. Similarly, Tan notes that, on August 31,
2020, in a Senate floor debate, Senator Melissa Melendez stated that DUIs
would be eligible for diversion under the new law. No one responded to the
statement, and the bill passed in the Senate, 27 to 10. Tan emphasizes that
at no point did any legislator respond to these concerns by pointing out DUIs
would be unavailable for diversion based on Vehicle Code section 23640.
We are not persuaded. First, generally we cannot rely on statements
from individual legislators as reflections of the Legislature’s collective intent.
(See, e.g., Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 572, fn. 5
[“ ‘such materials are generally not evidence of the Legislature’s collective
intent’ ”]; Advocate Health Care Network v. Stapleton (2017) 581 U.S. ___, ___
[137 S.Ct. 1652, 1661] [floor statements by individual lawmakers are “ ‘the
sort of stuff we have called ‘among the least illuminating forms of legislative
history’ ”]; Mt. Hawley Ins. Co. v. Lopez (2013) 215 Cal.App.4th 1385, 1401
[testimony or argument to a house of the Legislature or one of its committees
is relevant “but ‘[m]aterial showing the motive or understanding of an
individual legislator . . . is generally not considered’ ”].) Second, even
assuming the brief statements made by two individual legislators during the
floor debates can be relied on as evidence of the intent of the Legislature as a
whole, a different inference is equally plausible: that the Legislature, by not
expressly stating DUI offenders would be eligible for misdemeanor diversion,
or not amending Vehicle Code section 23640, intended that diversion would
6 Statements from the floor debates discussed herein are taken from
copies of certified transcripts of the August 24, 2020 Assembly floor debate
and August 31, 2020 Senate floor debate separately filed as exhibits to Tan’s
petition.
13
not be allowed in such cases. (See People v. Superior Court (Espeso)
67 Cal.App.5th Supp. 1, 7.) In any event, as we discuss further below, even
considered in context the comments do not amount to persuasive evidence the
legislative body as a whole intended to abrogate section 23640.
E. Other Canons of Construction
Tan argues that we need not consider the canons of statutory
construction that later enactments supersede earlier ones and that more
specific provisions take precedence over more general ones because the
legislative history prevails over the canons of construction when it gives clues
to legislative intent as it does here.7 Respondent, on the other hand,
contends that Vehicle Code section 23640 is the more specific statute and
controls over section 1001.95. But we need not resolve these arguments
because those rules of statutory construction apply only when harmonization
is not possible. (State Dept. of Public Health, supra, 60 Cal.4th at p. 960;
7 Tan also argues cursorily in the conclusion of his informal reply that
“if there were ambiguity on the issue of the inclusion of DUIs in
section 1001.95, the rule of lenity . . . requires the ambiguity to be resolved in
the Petitioner’s favor.” We need not consider this claim raised for the first
time on reply without any discussion, legal analysis, or citation to pertinent
authority. (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764 [appellate
court will not consider points raised for first time on reply]; Singh v. Lipworth
(2014) 227 Cal.App.4th 813, 817 [points asserted without legal analysis will
be forfeited].) In any event, we would reject the argument because the rule of
lenity applies “ ‘ “only if the court can do no more than guess what the
legislative body intended; there must be an egregious ambiguity and
uncertainty to justify invoking the rule.” ’ ” (People v. Manzo (2012)
53 Cal.4th 880, 889, italics added by Manzo.) “In other words, ‘the rule of
lenity is a tie-breaking principle, of relevance when “ ‘two reasonable
interpretations of the same provision stand in relative equipoise.’ ” ’ ” (Ibid.)
Here, in light of the express prohibition on diversion in DUI cases in Vehicle
Code section 23640, we conclude the more reasonable interpretation is that
diversion is not available for misdemeanor DUIs under section 1001.95.
14
Pacific Palisades Bowl Mobile Estates, LLC v. City of Los Angeles (2012)
55 Cal.4th 783, 805 [rule supporting harmonization of statutes where
possible applies even though one of the statutes deals generally with a
subject and another applies specifically]; People v. Wheeler (1992) 4 Cal.4th
284, 293 [“The principle that a specific statute prevails over a general one
applies only when the two sections cannot be reconciled.”]; People v. Price
(1991) 1 Cal.4th 324, 385 [if court can reasonably harmonize two statutes
dealing with the same subject, it must give “concurrent effect” to both].)
In any event, we agree with the thoughtful analysis of the Grassi court
that these general canons of statutory construction are of little assistance in
resolving the question posed here. The rule that more specific provisions
prevail over more general ones is unhelpful because “depending on one’s
arbitrary choice of focus, either [statute] could be construed as the more
specific.” (Grassi, supra, 73 Cal.App.5th at pp. 306–307.) 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. (Id. at p. 306.)
F. Superior Court Appellate Decisions
As noted previously, prior to the Grassi opinion, no appellate court had
decided the question at issue in this appeal, but two superior court appellate
divisions published opinions reaching opposite conclusions. In People v.
Superior Court (Espeso), supra, 67 Cal.App.5th Supp. 1 (Espeso), the Los
Angeles County Superior Court Appellate Division determined that diversion
is unavailable for defendants charged with misdemeanor DUI. The court
reasoned, “[t]o the extent there is a tension between” Vehicle Code
section 23640 and section 1001.95, they must be read together to give all of
15
their provisions effect and to avoid a repeal by implication of section 23640.
(Espeso, at p. Supp. 6.) The court rejected Espeso’s arguments that the
legislative history revealed a clear intent to repeal or render inoperative
section 23640.8 (Espeso, at pp. Supp. 6–8.) Comparing the legislative silence
as to the availability of misdemeanor diversion in DUI cases in section
1001.95 with the “crystal clear” prohibition of diversion in DUI cases found in
Vehicle Code section 23640, the Espeso court concluded it could give effect to
both statutes “by finding a person is eligible to be considered for a grant of
diversion in all cases, except the ones specifically listed in section 1001.95,
subdivision (e) . . . and driving under the influence cases as provided in
Vehicle Code section 23640, subdivision (a).” (Espeso, at p. Supp. 9.)
In People v. Superior Court (Diaz-Armstrong) (2021) 67 Cal.App.5th
Supp. 10 (Diaz-Armstrong), a majority of the Riverside County Superior
Court Appellate Division held in consolidated writ proceedings that
defendants charged with misdemeanor DUI are eligible for diversion. (Id. at
p. Supp. 13.) The court reviewed in depth the “long and complex history
surrounding judicial application of [Vehicle Code] section 23640 to
preexisting and subsequently enacted diversion schemes,” including laws
establishing developmental disabilities diversion, military diversion, and,
most recently, mental health diversion. (Id. at pp. Supp. 16–20.) Noting that
none of the cases addressing other diversion statutes “is entirely congruent
with ours,” the court turned to an examination of the statutory text, canons of
statutory construction, the history of the Legislature’s other misdemeanor
8 Most of the arguments raised by Espeso regarding the legislative
history of section 1001.95 are similar to the arguments raised by Tan in this
case and discussed in the previous section of this opinion. (Espeso, supra,
67 Cal.App.5th at pp. Supp. 6–8.)
16
diversion programs, the legislative history of section 1001.95, and the policy
goals behind section 1001.95. (Diaz-Armstrong, at pp. Supp. 20–27.)
Ultimately, the Diaz-Armstrong majority concluded that the Legislature’s
policy goals in section 1001.95 to “treat, restore, and rehabilitate”
misdemeanor defendants rather than punish them, consistent with principles
of statutory construction and the legislative history of section 1001.95,
reflected legislative intent to make defendants charged with misdemeanor
DUI eligible for diversion. (Diaz-Armstrong, at pp. Supp. 27–28.)
Judge Firetag filed a dissent, stating that, in his opinion, “the two code
sections operate in harmony with each other rather than in conflict,” and that
he would hold misdemeanor DUI defendants are categorically ineligible for
diversion “because Vehicle Code section 23640 expressly prohibits diversion
and nothing in section 1001.95 provides otherwise.” (Diaz-Armstrong, supra,
67 Cal.App.5th at p. Supp. 28, fn. omitted (dis. opn. of Firetag, J.).) Judge
Firetag highlighted the absence of textual support for the premise Vehicle
Code section 23640 had been supplanted by section 1001.95, and relied on the
case law interpreting other, similar diversion statutes to conclude that
diversion is not available to defendants charged with misdemeanor DUI.
(Diaz-Armstrong, at pp. Supp. 29–34 (dis. opn. of Firetag, J.).)
Though both of these superior court appellate division opinions offer
thorough and well-reasoned analyses, we find the Espeso opinion and Judge
Firetag’s dissent in Diaz-Armstrong more persuasive for several reasons.
First, as we discussed previously, the best indicator of legislative intent
is the words of the statutes themselves. While the silence in section 1001.95
regarding DUIs is ambiguous, the explicit prohibition on diversion in DUI
cases in Vehicle Code section 23640 could not be clearer. (Veh. Code,
§ 23640, subd. (a) [court “shall neither suspend nor stay the proceedings” for
17
diversion “[i]n any case in which a person is charged with a violation of
Section 23152 or 23153”]; People v. Darnell (1990) 224 Cal.App.3d 806, 810
[“The unambiguous intent” of Veh. Code, § 23640’s predecessor statutes “is to
prohibit pre- or postconviction stays or suspensions of proceedings” to allow
DUI defendants to participate in diversion programs]; Diaz-Armstrong,
supra, 67 Cal.App.5th at p. Supp. 30 (dis. opn. of Firetag, J.).) In the absence
of a similarly clear expression of legislative intent to partially repeal or
override that law, we defer to the “crystal clear” command in section 23640
that diversion is not available to DUI defendants. (Espeso, supra,
67 Cal.App.5th at p. Supp. 9.)
Second, the Diaz-Armstrong majority opinion relied on the fact that the
Legislature had created two new misdemeanor diversion programs and one
deferred entry of judgment program, all of which included express exclusions
for DUIs, despite the existence of Vehicle Code section 23640. (§§ 1001.2,
subd. (a), 1001.51, subd. (b), former § 1001.98, subd. (h)(3).) The court found
the fact that the Legislature did not use similar exclusionary language in
section 1001.95 significant, concluding that “we should understand as
purposeful the Legislature’s omission of language that it has employed in
related statutes.” (Diaz-Armstrong, supra, 67 Cal.App.5th at pp. Supp. 23–
24.) But as discussed above, the failure to expressly exclude DUIs in
section 1001.95 does not demonstrate an unambiguous intent to make
misdemeanor diversion available to DUI defendants. (See, e.g., Grassi,
supra, 73 Cal.App.5th at p. 305; Tellez, supra, 56 Cal.App.5th at p. 448 [“we
need not read the ineligibility of DUI offenses into Penal Code section
1001.36—Vehicle Code section 23640 accomplishes that”]; People v.
Weatherill (1989) 215 Cal.App.3d 1569, 1579–1580 (Weatherill) [recognizing
statutory diversion schemes enacted in 1982 expressly excluded DUIs,
18
explaining this served to “avoid the risk of implied repeal” of Veh. Code,
former § 23202 and expressed the consistent intent of the Legislature to bar
all diversion programs for DUI defendants].) The Diaz-Armstrong majority
also acknowledged the principle that courts must presume the Legislature
was aware of preexisting legal authority and case law, but reasoned that
principle was of little assistance where the decisional authority was not
monolithic. (Diaz-Armstrong, supra, 67 Cal.App.5th at p. Supp. 24.)
However, we must presume that the Legislature was aware not only of
decisional authority, but the relevant statutes themselves, including Vehicle
Code section 23640, and in the absence of clear evidence to the contrary,
intended to enact a consistent body of rules. (People v. Superior Court
(Zamudio), supra, 23 Cal.4th at p. 199.)
Third, the Diaz-Armstrong majority opinion relied heavily on the
legislative history of section 1001.95, in particular, statements made by
Assemblymember Cooper and Senator Melendez during floor debates
suggesting that DUIs would be eligible for diversion. The Diaz-Armstrong
court reasoned that while generally we do not consider the motives or
understanding of individual legislators, we can use them as evidence of
legislative intent when they are comments made to subcommittees or the
Legislative body as a whole. (Diaz-Armstrong, supra, 67 Cal.App.5th at pp.
Supp. 25–26; see, e.g., In re Marriage of Bouquet (1976) 16 Cal.3d 583, 590;
McDowell v. Watson (1997) 59 Cal.App.4th 1155, 1161, fn. 3.) But even if we
may consider them, we do not believe the statements made during the floor
debates here are particularly illuminating.
In the Assembly on August 24, 2020, only the bill’s author,
Assemblymember Philip Ting, and Assemblymember Cooper spoke during
the very brief discussion of Assembly Bill 3234 prior to its passage. Cooper
19
stated he had “a question for the author,” then asked, “So this removes all the
misdemeanor stuff for the—correct?” Ting responded that “for the Judicial
Diversion Program it removes the consideration of sex offenses and domestic
violence offenses.” Cooper then stated: “Okay. It’s gotten better . . . . but
still, you have DUI with injury, firearms offenses, carrying a concealed
firearm, loaded firearm in public, bringing a deadly weapon to a state
building. So while it’s a better bill than it was, there are still some issues
that I’m firmly opposed to it [sic]. And also, just another question for the
author. The child pornography portion was taken out, is that correct?”
(Italics added.) Ting indicated his “understanding” that it had been removed.
After Cooper elaborated further about how important it was that child
pornography offenses not be subject to diversion, Ting again confirmed his
“understanding” that “[a]ll the sex offenses and the domestic violence offenses
were all removed.”
During the Senate debate of Assembly Bill 3234 on August 31, 2020,
Senator Holly Mitchell introduced the bill as a “public safety trailer bill that
includes two criminal justice reforms that reflect the Governor and the
legislature’s data and evidence-based proposals for reducing our state’s 13
billion dollar prison budget, protecting public safety and achieving overall
budgetary savings.” She noted the bill “gives statewide judicial authority to
offer optional misdemeanor diversion except for specified offenses,” and
changes the eligibility criteria for an elderly parole suitability hearing to
reduce the number of vulnerable people in the prisons in light of the ongoing
COVID-19 pandemic.
In the debate that followed, several senators spoke in opposition to
Assembly Bill 3234. Senator Jim Nielsen expressed concern about
“dangerous individuals who have done very severe crimes” being granted
20
early release from prison because of COVID. Senator Brian Dahle voiced
similar concerns. Senator Cathleen Galgiani opposed the bill primarily
because it allowed diversion for dissuading a witness or crime victim from
testifying or reporting a crime. Senator Shannon Grove relayed several
anecdotes regarding specific criminal incidents and stated her opposition to
releasing prisoners to save the state money without considering the impact to
their victims.
After Senator Grove, Senator Nancy Skinner spoke in defense of the
bill: “What is in the bill before us is not a State mandate. It is an ability for a
court, if a county approves it for a court, to be able to establish a
misdemeanor diversion program. And even within that misdemeanor
diversion there are a variety of crimes that have been excluded. So it does
not allow for . . . sex offenses, domestic violence, a whole variety of—and of
course I’m now referring to misdemeanors, so these would be misdemeanant
sex offenses and misdemeanant domestic violence and stalking. But those
are excluded. So this is purely optional for courts and counties if they so
choose, and it is based on a very successful diversion program that has been
operating in L.A. County for a number of years. That is first and foremost.
That is the diversion program that is in this bill.” Senator Skinner also spoke
about the elderly parole suitability consideration provisions of the bill.
After Senator Skinner’s remarks, Senator Melendez expressed her
opposition to the bill, noting that it “allows a judge to provide unlimited
diversion for any misdemeanor, with the exclusion of sex offenses, domestic
violence and stalking. It does allow for diversion for those who commit child
abuse, who have a DUI, hate crimes, bringing a firearm into a legislative
office, assault, battery, identity theft, vehicular manslaughter, possessing a
firearm upon or within public school, in, on the grounds, all eligible for a
21
diversion.” (Italics added.) Melendez shared her view that the bill was
“ridiculous” and “so inappropriate” and offered further comments on her
opposition to the elderly parole program. Senator Andreas Borgeas offered
further comments on the elderly parole program before debate concluded.
At the end of the floor debate, Senator Mitchell closed by “providing
some . . . important clarifications.” With respect to the misdemeanor
diversion program, she noted the “bill allows judges to do what prosecutors
already can. Prosecutors can extend diversion in any case, including felonies.
Judges will only be able to do so for misdemeanors. The judge will require
the defendant to complete the same terms and conditions that he or she
would have been traditionally sentenced [sic]. Again, it excludes those
convicted of sex offenses, D.V. and stalking. Again, it only applies to
misdemeanors, not felony charges as has been mentioned in prior hearings.”
Viewed in context, we are not convinced that the failure of the bill’s
author in the Assembly and sponsor in the Senate to respond to these lone
italicized comments by Assemblymember Cooper and Senator Melendez,
particularly when they were buried among a host of concerns about other
crimes and aspects of the bill, reflects the Legislature’s collective will that
section 1001.95 would supersede Vehicle Code section 23640’s express
prohibition on diversion for DUIs. Rather, we find these isolated remarks
from two individual legislators about their own understanding of the impact
of the bill at best ambiguous. The failure to even mention section 23640
hardly evidences clear legislative intent that the new legislation would
override its existing ban on diversion for DUIs.
Finally, in considering the policy objectives of the Legislature in
passing section 1001.95, the Diaz-Armstrong majority emphasized the goal of
the statute is to “treat, restore, and rehabilitate,” rather than to punish.
22
(Diaz-Armstrong, supra, 67 Cal.App.5th at p. Supp. 27.) But that was a
general goal of the statute, and the Legislature obviously balanced that
objective against other considerations when, for example, it specifically
excluded certain offenses in subdivision (e) of section 1001.95.9 Under the
separation of powers doctrine, courts may not encroach on matters normally
left to the Legislature, and we are mindful that the policy judgments
underlying the establishment of eligibility criteria for diversion are for the
Legislature to make. (See Moore, supra, 58 Cal.App.5th at p. 581 [“it is for
the Legislature to strike the proper balance between protecting public safety
and mitigating the entry and reentry into the criminal justice system of
individuals with mental disorders”]; California Teachers Assn v. Governing
Board of Rialto Unified School Dist. (1997) 14 Cal.4th 627, 633 [“It cannot be
too often repeated that due respect for the political branches of our
government requires us to interpret the laws in accordance with the
expressed intention of the Legislature.”].) We respect our constitutional role
by not ignoring the express exclusions on eligibility for diversion established
by the Legislature, including the express prohibition on diversion for DUI
defendants in Vehicle Code section 23640.
In sum, we conclude, like the Espeso court and Judge Firetag’s dissent
in Diaz-Armstrong, that given the lack of discernible legislative intent to
partially repeal the prohibition on diversion for DUI offenders, Vehicle Code
9 The legislative history relied on by the Diaz-Armstrong court also
suggests the Legislature may have had other policy goals beyond treatment
and rehabilitation. (See Diaz-Armstrong, supra, 67 Cal.App.5th at p. Supp.
27 [referencing argument in support of bill discussing goals of promoting
racial justice in our criminal legal system and decreasing taxpayer costs].)
23
section 23640 renders misdemeanor DUI defendants ineligible for diversion
under section 1001.95.
G. Other Diversion Programs
As the decisions interpreting section 1001.95 have recognized, the
courts of this state have a long history of considering the interaction of
Vehicle Code section 23640 and its predecessor (Veh. Code, former § 23202)
with other diversion statutes. (See Grassi, supra, 73 Cal.App.5th at pp. 293–
297; Diaz-Armstrong, supra, 67 Cal.App.5th at pp. Supp. 23–24; id. at pp.
Supp. 32–33 (dis. opn. of Firetag, J.).) We now examine whether these
decisions support our interpretation of section 1001.95.
More than 30 years ago, in Weatherill, supra, 215 Cal.App.3d 1569, the
majority concluded the diversion scheme for misdemeanor defendants with
developmental disabilities under section 1001.20 et seq. did not apply to DUI
defendants. The court reasoned that the unambiguous language of Vehicle
Code former sections 23202 and 23206 meant that “all driving-under-the-
influence defendants, without exception, shall have their guilt or innocence
determined without delay and without diversion.” (Weatherill, at p. 1573.)
The majority then analyzed the legislative history of Assembly Bill No. 541
(1981–1982 Reg. Sess.) (which added former §§ 23202 & 23206 to the Vehicle
Code) and the canons of statutory interpretation, concluding they supported
the court’s holding. (Weatherill, at pp. 1574–1579.) In dissent, Justice
Johnson wrote the case was “extraordinarily close” and “the majority . . .
presented a well-reasoned argument in support of its resolution of the conflict
between these two statutes,” but he nonetheless felt compelled to “explain the
opposite view.” (Id. at pp. 1580–1581 (dis. opn. of Johnson, J.).) Analyzing
the same legislative history and canons of statutory construction, Johnson
determined the statutes were not in “irreconcilable conflict” and could be
24
reconciled by applying section 1001.20 to developmentally disabled
defendants accused of drunk driving and Vehicle Code former section 23202
to all other defendants accused of drunk driving. (Weatherill, at pp. 1583–
1588 (dis. opn. of Johnson, J.).)
More recently our courts considered whether DUI defendants were
eligible for diversion under section 1001.80, the diversion program for
members of the military and veterans. In People v. VanVleck (2016)
2 Cal.App.5th 355, review granted Nov. 16, 2016, S237219, the court relied
on Weatherill, the presumption that the Legislature was aware of the
existence of Vehicle Code section 23640, and the canon that specific statutes
prevail over general statutes to conclude that DUI defendants were not
eligible for military diversion. (VanVleck, at pp. 363–367.) The court in
Hopkins v. Superior Court (2016) 2 Cal.App.5th 1275, 1278–1279, review
granted Nov. 16, 2016, S237734, disagreed, noting the canon of construction
that specific statutes prevail over general statutes could be applied either
way, and that the canon that later enacted statutes prevail over earlier ones
and the legislative history pointed to allowing diversion for military DUI
defendants. (Hopkins, at pp. 1283–1288.) Although the Supreme Court
granted review in both cases, the Legislature amended section 1001.80 to
allow military diversion for misdemeanor DUI offenses before the Supreme
Court could decide the issue. (§ 1001.80, subd. (l), added by Stats. 2017, ch.
179, § 1; Hopkins, review dism. as moot, Oct. 18, 2017, S237734; VanVleck,
review dism. as moot, Nov. 15, 2017, S237219.)
Finally, most recently, the Tellez, supra, 56 Cal.App.5th 439 and
Moore, supra, 58 Cal.App.5th 561 opinions considered whether
section 1001.36, the mental health diversion statute, excluded DUI
defendants. In Tellez, the court relied on the legislative history of
25
sections 1001.36 and 1001.80 to conclude the Legislature did not intend DUI
defendants would be eligible for mental health diversion. (Tellez, at pp. 447–
448.) The Moore court agreed with the Tellez court’s analysis, and further
explained how the canons of statutory construction supported that holding.
(Moore, at pp. 568, 579–580.)
As a review of these decisions illustrates, the other diversion programs
and their legislative histories are all marked by significant differences from
section 1001.95. In Weatherill, for example, the court relied in part on the
fact that Vehicle Code former section 23202 was more recent than
section 1001.21, and therefore reflected the Legislature’s more recent
judgment. (Weatherill, supra, 215 Cal.App.3d at p. 1578.) The reverse is true
here because Vehicle Code section 23640 is the earlier enacted statute. In
the military diversion context, the Courts of Appeal were split on the correct
interpretation of section 1001.80, but the Legislature resolved the issue by
amending the statute to allow diversion for misdemeanor DUIs for members
of the military. Finally, in Moore and Tellez, the courts relied in part on the
fact that section 1001.36 was enacted during the same legislative session as
the amendment of the military diversion statute, section 1001.80. The failure
of the Legislature to expressly overrule Vehicle Code section 23640, when it
was clearly aware of the issue after having amended the military diversion
statute in the same session, was a strong indicator it intended to give
section 23640 continued effect. (Tellez, supra, 56 Cal.App.5th at p. 448;
Moore, supra, 58 Cal.App.5th at p. 579.) Because each of these courts relied
at least in part on facts that distinguish their diversion schemes from
section 1001.95, their direct application to section 1001.95 misdemeanor
diversion is inconclusive at best.
26
Tan nonetheless argues we should look to Tellez because that court
turned to the legislative history to determine whether section 1001.36 and
Vehicle Code section 23640 conflict and which one prevailed. But
section 1001.36 has a very different legislative history than section 1001.95,
and we have already addressed why the scant legislative history of Assembly
Bill 3234 is unhelpful in resolving the question at issue here.
Tan also points to the language in Tellez suggesting that diversion is
likely available to misdemeanor DUI defendants under section 1001.95. (See
Tellez, supra, 56 Cal.App.5th at pp. 449–450.) The Tellez court noted that, in
1982, the Legislature enacted two misdemeanor diversion statutes that
expressly excluded DUI offenses from eligibility and “[i]n 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.” (Id. at p. 450.) But whether misdemeanor diversion
is available to DUI defendants under section 1001.95 was not before the court
in Tellez, and its statement is dictum. (Tellez, at p. 449 [“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.”].) In any event, as we have
already explained, we are unconvinced the failure to use the same
exclusionary language employed in other diversion statutes reflects
legislative intent to allow diversion for a group of offenders expressly
prohibited from qualification under Vehicle Code section 23640.
H. Tan’s Other Claims
As noted above, Tan also argues the trial court erred by failing to
exercise its discretion and that the San Mateo County Superior Court
adopted its policy of denying diversion to DUI defendants in violation of his
due process rights, state law, and the California Rules of Court. Because we
27
have determined that the court has no discretion to offer diversion to
misdemeanor DUI defendants, we need not address these arguments.
I. Conclusion
After a careful study of the issue, we conclude 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). As we have discussed
above, however, we also recognize that the scant legislative history was
particularly ambiguous in this case and of little assistance in divining the
will of the Legislature.
“It is axiomatic that in assessing the import of a statute, we must
concern ourselves with the Legislature’s purpose at the time of the
enactment.” (In re Pedro T. (1994) 8 Cal.4th 1041, 1048.) We acknowledge
the Legislature has taken up several bills aimed at clarifying whether
misdemeanor diversion is available to those charged with DUIs.10 We join
the Grassi court in urging the Legislature to clarify its intent with respect to
10 Assembly Bill No. 282 (2021–2022 Reg. Sess.) made DUIs exempt
from misdemeanor diversion under section 1001.95. The bill passed in the
Assembly. The Senate Public Safety Committee voted against the bill in July
2021, but granted reconsideration. Senate Bill No. 421 (2021–2022 Reg.
Sess.) made misdemeanor DUIs eligible under certain conditions. Two
Senate committees approved this bill in April and May 2021, but no further
action was taken and the bill died. Senate Bill No. 783 (2021–2022 Reg.
Sess.) declared express legislative intent to promote racial equity and reduce
recidivism by making misdemeanor DUIs eligible for diversion under certain
conditions. The bill was amended in the Senate and referred to the Senate
Rules Committee in September 2021, but again no further action was taken
and the bill died. Thus far, section 1001.95 has not been amended.
28
the availability of diversion for misdemeanor DUI defendants under
section 1001.95.
III. DISPOSITION
The petition for writ of mandate is denied.
29
MARGULIES, J.
WE CONCUR:
HUMES, P. J.
BANKE, J.
A163715
Tan v. Superior Court
30
Trial Court: Superior Court of San Mateo County
Trial Judge: Donald J. Ayoob, Judge
Counsel:
Douglas I. Horngrad and Sam O’Keefe for Petitioner.
Stephen M. Wagstaffe, San Mateo County District Attorney, Sean F.
Gallagher, Chief Deputy District Attorney, Rebecca L. Baum, Shin-Mee
Chang, Morris Maya and Ryan S. Geisser, Deputy District Attorneys for
Respondent.
No appearance for Real Party in Interest.
31