People v. Super. Ct. (Ortiz)

Filed 7/28/22

See concurring and dissenting opinions

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Petitioner, E077594

v. (Super.Ct.No. APR12100013)

THE SUPERIOR COURT OF OPINION

RIVERSIDE COUNTY,

Respondent;

JESSICA ORTIZ,

Real Party in Interest.

ORIGINAL PROCEEDINGS; petition for extraordinary writ of mandate and/or

prohibition. Dean Benjamini, Judge. Petition granted.

1

Michael A. Hestrin, District Attorney, and Emily R. Hanks, Deputy District

Attorney, for Petitioner.

No appearance by Respondent.

Steven L. Harmon, Public Defender, and Jason M. Cox, Deputy Public Defender,

for Real Party in Interest.

Bartell, Hensel & Gressley, Donald J. Bartell, Lara J. Gressley and Michael W.

Donaldson for California DUI Lawyers Association as Amicus Curiae on behalf of Real

Party in Interest.

I.

Penal Code section 1001.95 (Stats. 2020, ch. 334, § 1, eff. Jan. 1, 2021, as

amended by Stats. 2022, ch. 58, § 6, eff. June 30, 2022) authorizes superior court judges

to offer pretrial diversion, over the prosecution’s objection, to persons being prosecuted

for “a misdemeanor.” (Pen. Code § 1001.95, subd. (a).)1 The statute prohibits diversion

for specified misdemeanors, namely, registrable sex offenses, domestic violence, and

stalking. (§ 1001.95, subd. (e).) Misdemeanor charges of driving under the influence

(DUI) (Veh. Code, §§ 23152, 23153) are not excluded from diversion in Penal Code

section 1001.95. (§ 1001.95, subd. (e).) But an older statute, Vehicle Code section

23640 (Stats. 1998, ch. 118, § 84), bars any form of pretrial diversion for felony and

misdemeanor DUI charges.

1 Undesignated statutory references are to the Penal Code.

2

The superior court granted diversion to real party in interest, Jessica Ortiz, on

misdemeanor DUI charges (Veh. Code, § 23152, subds. (a), (b); counts 1 & 2) pursuant

to Penal Code section 1001.95. In prior writ proceedings, the appellate division of the

superior court upheld the diversion order for Ortiz and two other defendants who had also

been granted diversion on misdemeanor DUI charges. (People v. Superior Court (Diaz-

Armstrong) 67 Cal.App.5th Supp. 10, 24-28 (Diaz-Armstrong).)

The People petition this court for an original writ of mandate and/or prohibition,

vacating the diversion order for Ortiz. They claim the order is unauthorized because

Penal Code section 1001.95 did not impliedly and partially repeal Vehicle Code section

23640 to the extent that the older statute prohibits diversion for misdemeanor (as opposed

to felony) DUI charges. Thus, they argue, Vehicle Code section 23640 renders

misdemeanor DUI charges categorically ineligible for diversion under Penal Code section

1001.95. We agree. Thus, we grant the petition.

II.

To date, the Court of Appeal has uniformly held that misdemeanor DUI charges

are ineligible for diversion under Penal Code section 1001.95. Three other appellate

courts have concluded that Vehicle Code section 23640 and Penal Code section 1001.95

can be harmonized, by interpreting Penal Code section 1001.95 as authorizing diversion

for all misdemeanors except those specified in Penal Code section 1001.95,

subdivision (e), and misdemeanor DUI charges under Vehicle Code section 23640.

(Grassi v. Superior Court (2021) 73 Cal.App.5th 283, 307-308 (Grassi); Tan v. Superior

Court (2022) 76 Cal.App.5th 130, 134, 137-139 (Tan); Islas v. Superior Court (2022)

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78 Cal.App.5th 1104, 1108-1110 (Islas) [following Tan and Grassi ].) These courts also

found the legislative history of Penal Code section 1001.95 “anything but unambiguous”

and “anything but clear” concerning whether the Legislature intended to partially repeal

Vehicle Code section 23640 when it enacted the new program. (Grassi, at p. 304; Tan, at

p. 136, see Islas, at pp. 1109-1110 [agreeing with Grassi’s and Tan’s view of the

legislative history and noting that additional history materials were not germane to the

court’s review “because the plain language of the two statutes, considered together, is

unambiguous”].)

The People claim Grassi and Tan were correctly decided and urge us to follow

their analyses and conclusions. Ortiz claims Grassi and Tan were wrongly decided.

Ortiz argues that the statutes cannot be harmonized and that they irreconcilably conflict;

thus, one must be interpreted as an exception to the other, and Penal Code section

1001.95 prevails in this particular case because its legislative history shows that the

Legislature intended to make misdemeanor DUI charges eligible for diversion under

Penal Code section 1001.95. Ortiz claims the majority in Diaz-Armstrong followed the

correct analysis and analytical framework set forth in Tellez v. Superior Court (2020)

56 Cal.App.5th 439 at pages 444-448 (Tellez) and other cases (State Dept. of Public

Health v. Superior Court (2015) 60 Cal.4th 940, 956-960 (State Dept.); Hopkins v.

Superior Court (2016) 2 Cal.App.5th 1275, 1285-1286 (Hopkins), in concluding both that

(1) the statutes irreconcilably conflict, and (2) the Legislature intended the new statute to

prevail over Vehicle Code section 23640 and allow diversion for misdemeanor DUI

charges.

4

We agree with Tan and the other courts that have concluded that the statutes can

be harmonized—that is, effect can be given to all of their provisions; they can operate

concurrently by interpreting them together as allowing judges to offer diversion for all

misdemeanors charges except the misdemeanor charges specified as ineligible for

diversion in Penal Code section 1001.95, subdivision (e) [registrable sex offenses, et al.]

and Vehicle Code section 23640 [DUI charges]. The next question, and the more

difficult one, we believe, is whether, given that we conclude the statutes can be

harmonized, the record contains sufficient evidence to rebut the presumption against

finding an implied, partial repeal of Vehicle Code section 23640 in the enactment of

Penal Code section 1001.95. (See State Dept., supra, 60 Cal.4th at pp. 955-956; Western

Oil & Gas Assn v. Monterey Bay Unified Air Pollution Control Dist. (1989) 49 Cal.3d

408, 419-420 (Western Oil).)

We conclude there is insufficient evidence to rebut the presumption. Thus, we

conclude that Vehicle Code section 23640 was not partially and impliedly repealed by the

enactment of Penal Code section 1001.95, to the extent that Vehicle Code section 23640

bars pretrial diversion for misdemeanor DUI charges. Instead, Vehicle Code section

23640 operates concurrently and in harmony with Penal Code section 1001.95 to bar

diversion for misdemeanor DUI charges under Penal Code section 1001.95.

III.

A. Procedural Background

In July 2020, Ortiz was charged in a misdemeanor complaint with driving under

the influence of alcohol and driving with a blood-alcohol content in excess of 0.08. (Veh.

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Code, § 23152, subds. (a), (b); counts 1 & 2). Ortiz pled not guilty to the charges. In

February 2021, the superior court granted Ortiz’s request to be placed in the new

misdemeanor diversion program (Pen. Code, §§ 1001.95-1001.97, enacted by Stats.

2020, ch. 334, § 1, eff. Jan 1. 2021 (A.B. 3234)), over the prosecuting attorney’s

objections. The People petitioned the superior court appellate division for a writ

directing the superior court to vacate the diversion order for Ortiz.

After consolidating Ortiz’s case with two others in which diversion was granted on

misdemeanor DUI charges, the appellate division denied the People’s petitions to vacate

the diversion orders in a published, split decision. (Diaz-Armstrong, supra,

67 Cal.App.5th at pp. Supp. 13-14, 28.) The People now petition this court for an

original writ, directing respondent superior court to vacate the diversion order for Ortiz

on the ground it is unauthorized by Vehicle Code section 23640.

We issued an order to show cause and heard oral argument. We also granted

Ortiz’s unopposed request to take judicial notice of 19 items concerning the legislative

history of section 1001.95 (Evid. Code, §§ 452, subds. (b), (c), (h), 459, subd. (a).)

Amicus curiae, California DUI Lawyers Association (CDLA), has filed an amicus brief,

joining Ortiz in arguing that the legislative history of section 1001.95 clearly shows that

the Legislature intended section 1001.95 to allow diversion for DUI charges.2

2 The parties do not discuss whether section 1001.95 applies retroactively to cases

not final on appeal as of its January 1, 2021 effective date. But, because section 1001.95

potentially ameliorates punishment for misdemeanor charges eligible for diversion under

its terms, if the statute applied to misdemeanor DUI charges, it would apply to

misdemeanor DUI cases not final on appeal on January 1, 2021. (Islas, supra,

[footnote continued on next page]

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B. Vehicle Code § 23640

Vehicle Code section 23640 prohibits any form of pretrial diversion for persons

charged with misdemeanor or felony violations of Vehicle Code section 23152 (driving

under the influence of alcohol) or 23153 (causing bodily injury while driving under the

influence) (DUI charges).3 A companion statute, Vehicle Code section 23600, imposes

similar postconviction restraints on sentencing in DUI cases.

Former versions of Vehicle Code sections 23640 and 23600, Vehicle Code former

sections 23202 and 23206, were enacted in 1981. (Stats. 1981, ch. 940, § 32 (A.B. 541).)

In 1998, the former statutes were repealed and reenacted without substantive change as

Vehicle Code sections 23640 and 23600. (Stats. 1998, ch. 118, § 84.) The Legislature’s

“unambiguous intent” in enacting the former statutes, over 40 years ago, was “to prohibit

78 Cal.App.5th at p. 1110, fn. 1; Tan, supra, 76 Cal.App.5th at p. 136, fn. 5; Grassi,

supra, 73 Cal.App.5th at p. 289; People v. Frahs (2020) 9 Cal.5th 618, 638-639; In re

Estrada (1965) 63 Cal.3d 740, 744-745.) This would include Ortiz’s misdemeanor DUI

case.

3 Vehicle Code section 23640 provides: “(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

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. [¶] (b) This section shall not apply to any attendance or

participation in any education, training, or treatment programs after conviction and

sentencing, including attendance or participation in any of those programs as a condition

of probation granted after conviction when permitted.”

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pre- or postconviction stays or suspensions of proceedings” in DUI cases. (People v.

Darnell (1990) 224 Cal.App.3d 806, 810.) “The public wanted and AB 541 provided

‘[c]elerity and certainty of punishment’ ” for DUI offenses. (People v. Weatherill (1989)

215 Cal.App.3d 1569, 1575 (Weatherill).)

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

On September 30, 2020, the Governor signed Assembly Bill No. 3234 (2019-2020

Reg. Sess.), effective January 1, 2021. (Stats 2020, ch. 334, § 1; see Cal. Const., art. IV,

§ 8, subd. (c).) The bill added sections 1001.95 to 1001.97 to the Penal Code, creating a

discretionary diversion program for persons charged with a misdemeanor. The statute

provides: “A judge in the superior court in which a misdemeanor is being prosecuted

may, at the judge’s discretion, and over the objection of a prosecuting attorney, offer

diversion to a defendant pursuant to these provisions.” (§ 1001.95, subd. (a).)

As noted, Penal Code section 1001.95 specifies several offenses as ineligible for

diversion under its terms: registrable sex offenses, domestic violence, and stalking.

(§ 1001.95, subd. (e).)4 But it does not expressly exclude misdemeanor DUI charges

4 Section 1001.95, subdivision (e), provides: “A defendant may not be offered

diversion pursuant to this section for any of the following current charged offenses: [¶]

(1) Any offense for which a person, if convicted, would be required to register pursuant

to Section 290 [sex offenses;] [¶] (2) Any offense involving domestic violence, as

defined in Section 6211 of the Family Code or subdivision (b) of Section 13700 of this

code [domestic violence]; [¶] (3) A violation of Section 646.9 [stalking].”

8

(Veh. Code §§ 23152 or 23153 violations) from eligibility. Vehicle Code section 23640

is also not mentioned in Penal Code sections 1001.95 to 1001.97.5

The Legislature’s ostensible purpose in enacting sections 1001.95 to 1001.97 was

to “treat, restore, and rehabilitate.” (Grassi, supra, 73 Cal.App.5th at p. 292, fn. 4., citing

Sen. Rules Com., Off. of Sen. Floor Analysis, 3d reading analysis of Assem. Bill No.

3234 (2019-2020 Reg. Sess.) as amended Aug 24, 2020, p. 2 [“Diversion programs that

are successfully completed allow a person to avoid the lifelong collateral consequences

associated with a criminal record when they are seeking employment or housing.”]; Diaz-

Armstrong, supra, 67 Cal.App.5th at p. Supp. 27 [“The Legislature . . . unequivocally

enacted section 1001.95 in order to broadly shift persons charged with misdemeanors

away from traditional punishment in order to achieve better long-term outcomes.”].)

D. Legal Principles, Overview

Whether misdemeanor DUI charges are eligible for diversion under Penal Code

section 1001.95 is a question of statutory interpretation for our independent review.

(Tan, supra, 76 Cal.App.5th at p. 136.) In cases involving statutory interpretation, our

5 Section 1001.95 authorizes the judge to continue a diverted case for up to

24 months and “order the defendant to comply with terms, conditions, or programs that

the judge deems appropriate based on the defendant’s specific situation.” (§ 1001.95,

subd. (b).) At the end of the diversion period, the judge is to dismiss the diverted charges

if the defendant has complied with the terms of the diversion. (Id. at subd. (c).) But

criminal proceedings may resume if, following a noticed hearing, the judge determines

that the defendant has not complied with the terms of the diversion. (Id. at subd. (d).)

Section 1001.96 lists the actions a defendant must complete and the conditions the

defendant must satisfy in order to have the defendant’s diverted case dismissed. Section

1001.97 addresses the status and treatment of the defendant’s arrest for the diverted

charge upon the defendant’s successful completion of diversion.

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fundamental task is to determine the Legislature’s intent so as to effectuate the law’s

purpose. (People v. Gonzalez (2017) 2 Cal.5th 1138, 1141.)

Our first step in ascertaining the Legislature’s intent is to scrutinize the words of

the statute, giving them a plain and common sense meaning. (California Teachers Assn.

v. Governing Bd. of Rialto Unified School Dist. (1997) 14 Cal.4th 627, 633.) The words

of a statute are generally the most reliable indicator of legislative intent; but, if the words

are ambiguous or uncertain, we may resort to extrinsic sources to ascertain their meaning,

including the statute’s legislative history and ostensible objects to be achieved. (People

v. Gutierrez (2014) 58 Cal.4th 1354, 1369.) We may also consider the wider historical

circumstances of a statute’s enactment in ascertaining legislative intent. (Dyna-Med, Inc.

v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1387 (Dyna-Med).)

Canons of statutory construction may assist courts in ascertaining legislative intent

(In re Marriage of Bonvino (2015) 241 Cal.App.4th 1411, 1433.) “But it is well

established that ‘canons of statutory construction are merely aids to ascertaining probable

legislative intent’ ” and are not to be “ ‘applied so as to defeat the underlying legislative

intent otherwise determined.’ ” (Ferra v. Loews Hollywood Hotel, LLC (2021)

11 Cal.5th 858, 879.) “ ‘ “No single canon of statutory construction is an infallible guide

to correct interpretations in all circumstances.” ’ ” (Tellez, supra, 56 Cal.App.5th at

p. 448.)

Thus, when the legislature history answers the question of legislative intent, or at

least provides clues to legislative intent, the legislative history is a more reliable indicator

of the legislative intent than inferences of intent based on canons of statutory

10

construction. (Tellez, supra, 56 Cal.App.5th p. 449; Lewis v. Ryan (1976) 64 Cal.App.3d

330, 333-334; Grassi, supra, 73 Cal.App.5th at p. 306 [“Canons of statutory construction

are not dispositive but rather are guides courts can resort to when a statute’s plain

language and legislative history do not compel a particular result.”].)

It is incumbent upon courts to harmonize statutes based on their texts, if that can

reasonably be done: “ ‘ “ A court must, when reasonably possible, harmonize statutes,

reconcile seeming inconsistencies in them, and construe them to give force and effect to

all of their provisions. [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.]

. . . [T]hey “must be read together and so construed as to give effect, when possible, to

all the provisions thereof.” ’ ” ’ ” (State Dept., supra, 60 Cal.4th at p. 955.)

“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.” ’ ” ’ ” (State Dept.,

supra, 60 Cal.4th at pp. 955-956; Penziner v. West American Finance Co. (1937)

10 Cal.2d 160, 176.) There must be “no possibility of concurrent operation.” (Hays v.

Wood (1979) 25 Cal.3d 772, 784.)

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“Courts have also noted that implied repeal should not be found unless ‘ . . . the

later provision gives undebatable evidence of an intent to supersede the earlier . . . .’ ”

(Western Oil, supra, 49 Cal.3d at p. 420.) Implied repeals include not only complete

repeals, but “partial repeals that occur when one statute implicitly limits another statute’s

scope of operation.” (Even Zohar Construction & Remodeling, Inc. v. Bellaire

Townhouses, LLC (2015) 61 Cal.4th 830, 838 (Even Zohar).)

E. Conflicts Between Vehicle Code section 23640 and Other Diversion Statutes

In prior cases, the Courts of Appeal have had to address conflicts between Vehicle

Code section 23640 (and its predecessor) and diversion statutes that applied to charges

generally but that were silent on the operation of the Vehicle Code bar on diversion for

DUI charges. (Pen. Code, §§ 1001.20 et seq. [disability diversion], 1001.80 [military

diversion] 1001.36 [mental health diversion].) For multiple reasons, including

difficulties in ascertaining the legislative intent, the courts in these cases reached varying

conclusions on whether the diversion statutes allowed diversion for DUI charges.

1. Developmental Disability Diversion (§ 1001.20 et. seq.)

A split decision, People v. Weatherill (1989) 215 Cal.App.3d 1569 (Weatherill),

addressed a conflict between Vehicle Code former section 23202 and a diversion statute.

The majority concluded that the statutory bar on diversion for DUI charges barred

diversion under Penal Code section 1001.20 et seq., a diversion program for persons with

cognitive developmental disabilities, enacted in 1981 (Stats. 1981, ch. 940, § 32), the

year after Vehicle Code former section 23202 was enacted in 1980 (Stats. 1980, ch. 1253,

§ 1). By its terms, the diversion statute applied to all misdemeanor charges and did not

12

state that it applied notwithstanding any other law, although Vehicle Code former section

23202 did not exist when it was enacted.

The Weatherill majority reasoned that “all-inclusive” support for the bill that

enacted Vehicle Code former section 23202 (Assem. Bill No. 541) (1981-1982 Reg.

Sess.) was “strong,” and that the legislative intent, as revealed by the statute’s legislative

history, was consistent with the statute’s plain and all-inclusive language. (Weatherill,

supra, 215 Cal.App.3d at pp. 1572-1577.) The history showed that the Legislature’s

“unambiguous intent” in enacting the former statute was to ensure that all DUI

defendants, “without exception,” would have their guilt or innocence determined

“without delay or diversion.” (Id. at p. 1577.)

Addressing what it deemed the “irreconcilable conflict” between Vehicle Code

former section 23202 and Penal Code section 1001.20 et seq., the Weatherill majority

concluded that two canons of statutory construction supported its conclusion that Vehicle

Code former section 23202 was controlling: (1) it was the more specific of the two

statutes on the subject of DUI diversion, and (2) it was the later-enacted statute.

(Weatherill, supra, 215 Cal.App.3d at pp. 1577-1578.) A third canon, that the expression

of certain things in a statute necessarily excludes others, did not apply because Vehicle

Code former section 23202 was “all-inclusive.” (Weatherill, at pp. 1578-1579.)

The Weatherill majority rejected the defendant’s claim that Vehicle Code former

section 23202’s “all-inclusive diversion bar” in DUI cases was inconsistent with “the

selective” or specific DUI diversion bar in two other diversion statutes enacted in 1982,

Penal Code section 1001 et seq. (Stats. 1982, ch. 42), and Penal Code section 1001.50

13

et seq. (Stats. 1982, ch. 1251). (Weatherill, supra, 215 Cal. App.3d at pp. 1579-1580.)

In enacting these diversion programs in 1982, the year after it enacted Vehicle Code

former section 23202 in 1981, the Legislature expressly exempted all DUI charges from

eligibility, despite Vehicle Code former section 23202’s “all-inclusive diversion bar.”

(Id. at pp. 1579-1580; Pen. Code §§ 1001.2, subd. (a), 1001.51, subds. (b), (c)(6).) The

majority reasoned that the Legislature exempted DUI charges from eligibility in the

1982-enacted programs “to avoid the risk of implied repeal” of Vehicle Code former

section 23202 in the enactment of the programs. (Weatherill, at pp. 1579-1580.)

In dissent, Justice Johnson pointed out that persuasive arguments could be made

on both sides of the statutory construction issue, but a “marginally more persuasive

argument” could be made that misdemeanor DUI cases were eligible for diversion under

Penal Code section 1001.21. (Weatherill, supra, 215 Cal.App.3d at p. 1580 [dis. opn. of

Johnson, J.]) First, the traditional rules or canons of statutory construction did not “seem

to really solve the puzzle; they cancel[ed] each other out.” (Id. at p. 1581.) The canon

that a specific statute prevails over a general one could be argued both ways; it could “be

contended just as forcefully” that Vehicle Code section 23202 was the general statute

because Penal Code section 1001.20 et seq. focused on a specific class of defendants and

authorized diversion for them “no matter what misdemeanor they are charged with.”

(Weatherill, at p. 1582 [dis. opn. of Johnson, J.]) Also, the “later-in-time” canon did not

apply because the law disfavors implied repeals, and the statutes could be reconciled by

allowing diversion in misdemeanor DUI cases under Penal Code section 1001.21, while

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barring diversion for all other DUI defendants. (Weatherill, at p. 1583 [dis. opn. of

Johnson, J.].)

Justice Johnson also reasoned that the Legislature’s failure to amend Penal Code

section 1001.20 et. seq. to expressly exclude DUI charges in 1982, the year it enacted two

other diversion programs that expressly excluded DUI charges, “strongly” indicated that

the Legislature intended DUI charges to be divertible under the earlier-enacted Penal

Code section 1001.20 et. seq. (Weatherill, supra, 215 Cal.App.3d at pp. 1583-1586 [dis.

opn. of Johnson, J.].) Further, “nothing” in the legislative history of Vehicle Code former

section 23202 indicated that the Legislature had 1980-enacted Penal Code section

1001.20 et seq. in mind, in 1981, when it enacted Vehicle Code former section 23202.

Rather, the legislative history materials concerning Vehicle Code section 23640

“implied” that the Legislature only intended to eliminate locally-administered “ ‘Lucky

Deuce’ ” diversion programs—local diversion programs for DUI charges—when it

enacted Vehicle Code former section 23202 in 1981. (Weatherill, at pp. 1584-1585.)

In conclusion, Justice Johnson stated that he did not regard the case “as easy, the

answer obvious, or the result inevitable.” (Weatherill, supra, 215 Cal.App.3d at p. 1589

[dis. opn. of Johnson, J.].) He wrote that “this series of statutes” had “left the courts in a

quandary,” and he expressed hope that the majority and dissenting opinions could “serve

as signal to the Legislature.” (Id. at pp. 1580-1581.) The Legislature had handed the

court “a true conundrum” by failing to make its intention clear on the question of whether

DUI cases were eligible for diversion under section 1001.21. (Weatherill, at p. 1589.)

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2. Military Diversion (§ 1001.80)

In 2014, the Legislature enacted Penal Code section 1001.80, authorizing pretrial

diversion for current and former members of the United States military charged with

misdemeanor offenses. (Stats. 2014, ch. 658, § 1, eff. Jan. 1, 2015.) Like the

misdemeanor diversion program for developmentally disabled persons (Pen. Code,

§ 1001.20 et seq.), Penal Code section 1001.80, as originally enacted, did not expressly

exclude any misdemeanors from eligibility for diversion. (Stats. 2014, ch. 658, § 1).6

In 2016, two Courts of Appeal reached opposite conclusions on whether Vehicle

Code section 23640 barred diversion for misdemeanor DUI charges under Penal Code

section 1001.80. The court in People v. VanVleck (2016) 2 Cal.App.5th 355 (VanVleck)

concluded that misdemeanor DUI charges were ineligible for diversion under the former

military diversion statute in light of Vehicle Code section 23640. (VanVleck, at pp. 364,

366-367.) Shortly thereafter, the court in Hopkins v. Superior Court (2016)

2 Cal.App.5th 1275 (Hopkins), disagreed with VanVleck and concluded that, when the

Legislature enacted Penal Code section 1001.80, it impliedly repealed Vehicle Code

section 23640 to the extent the older statute would have barred diversion for DUI charges

under the newer misdemeanor military diversion statute. (Hopkins, at p.1288.) Both

courts considered the texts of the two statutes, the legislative history of the military

6 Section 1001.80 authorizes courts to grant diversion for “a misdemeanor”

charge if the defendant is a current or former a member of the United States military and

may be suffering from specified traumas or injuries as a result of the defendant’s military

service. (§ 1001.80, subd. (a).) As enacted in 2014, section 1001.80 did not mention

Vehicle Code section 23640 or exempt any misdemeanors, including misdemeanor DUI

charges, from eligibility for diversion under its terms. (Stats. 2014, ch. 658, § 1.)

16

diversion statute, canons of statutory construction, and the Weatherill decision.

(VanVleck, at pp. 362-367; Hopkins, at pp. 1281-1289.)

Van Vleck reasoned that the statutes appeared to conflict but reconciled them by

concluding that Vehicle Code section 23640 prevailed because it was the more specific

statute on the subject of DUI diversion. (VanVleck, supra, at pp. 363-365.) Hopkins

concluded that the statutes irreconcilably conflicted, thus, they could not be reconciled;

the specific versus general canon was not helpful because its application depended on an

“arbitrary choice of focus” of subject matter in determining which statute was the more

specific. (Hopkins, supra, 2 Cal.App.5th at pp. 1282-1284) Hopkins reasoned that Penal

Code section 1001.80 prevailed—the later-enacted statute allowed diversion for

misdemeanor DUI charges despite Vehicle Code section 23640—both because it was the

later-enacted statute and its legislative history showed that the Legislature intended it to

allow diversion for misdemeanor DUI charges. (Hopkins, at pp. 1284-1285.)

Review was granted in both cases (2016 Cal.Lexis 9412 [VanVleck]; 2016

Cal.Lexis 9420 [Hopkins]), and before our Supreme Court could resolve the conflict in

the decisions, the Legislature rendered the conflict moot, during its 2017 to 2018 session,

by amending section 1001.80 to make misdemeanor DUI charges expressly eligible for

diversion under the statute. (Pen. Code, § 1001.80, subd. (l), added by Stats. 2017,

ch. 179, §§ 1-2, eff. Aug. 7, 2017.) Our Supreme Court then dismissed as moot its earlier

grant of review in both cases. (Hopkins v. Superior Court (2017) 2017 Cal.Lexis 8220;

People v. VanVleck (2017) 2017 Cal.Lexis 8783.) Since 2017, section 1001.80,

subdivision (l), has provided: “Notwithstanding any other law, including Section 23640

17

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.” (§ 1001.80, subd. (l).)

3. Mental Health Diversion (§ 1001.36)

Section 1001.36 authorizes courts to grant pretrial diversion for “a misdemeanor

or felony offense” if certain criteria are met, including that the defendant suffers from a

specified mental disorder, the court is satisfied that the mental disorder was a significant

factor in the defendant’s commission of the charged offense, and in the opinion of a

qualified mental health expert the defendant’s symptoms of the mental disorder would

respond to mental health treatment. (§ 1001.36, subds. (a), (b)(1).)

As enacted in 2018, section 1001.36 did not exclude any misdemeanor or felony

offenses from eligibility for diversion under its terms. (Stats 2018, ch. 34, § 24

(A.B. 1810), eff. June 27, 2018.) Later in 2018, the legislature amended section 1001.36

to exclude specified offenses, but not DUI offenses, from eligibility. (Pen. Code,

§ 1001.36, subd. (b)(2); Stats. 2018, ch. 1005, § 1 (S.B. 215), eff. Jan. 1, 2019.) Penal

Code section 1001.36 does not contain a provision like Penal Code section 1001.80,

subdivision (l), expressly stating that it allows diversion for DUI charges notwithstanding

any other law, including Vehicle Code section 23640.

In 2020, after the Governor signed Assembly Bill 3234, adding sections 1001.95

to 1001.97 to the Penal Code (Stats. 2020, ch. 334, § 1, eff. Jan. 1, 2021), this court

issued two decisions concluding that Vehicle Code section 23640 barred diversion for

DUI charges under Penal Code section 1001.36. (Tellez, supra, 56 Cal.App.5th at p. 444;

18

Moore v. Superior Court (2020) 58 Cal.App.5th 561, 585 (Moore).) Tellez reasoned that

the two statutes were in conflict and could not be reconciled or harmonized: “Both

statutes are unambiguous in their plain language: One clearly prohibits diversion for

defendants charged with DUI offenses, and the other just as clearly allows mental health

diversion for any defendant who meets the minimum eligibility requirements (and who is

not charged with a disqualifying offense). When it comes to DUI offenses, Vehicle Code

section 23640 prohibits a court from doing what Penal Code section 1001.36

permits. The two ‘statutes are in conflict and thus one must be interpreted as providing

an exception to the other.’ ([State Dept., supra,] 60 Cal.4th [at p.] 956.) The question is

which one. Is Vehicle Code section 23640 an exception to Penal Code section 1001.36?

Or is Penal Code section 1001.36 an exception to Vehicle Code section 23640?” (Tellez,

at p. 444.)

Tellez reasoned it was unnecessary to resort to canons of statutory construction to

ascertain the Legislature’s intent concerning which of the two statutes was intended to be

the exception to or to prevail over the other because the concurrent legislative histories of

the military and mental health diversion statutes (§§ 1001.80, 1001.36), during the 2017

to 2018 legislative session, answered the question of the Legislature’s intent in enacting

section 1001.36. (Tellez, supra, 56 Cal.App.5th at p. 444.) Tellez recounted the complex

legislative history of Penal Code section 1001.36, from its enactment in June 2018

through its amendment in September 2018, through Senate Bill No. 215 (2017-2018 Reg.

Sess.), to exclude offenses like murder, manslaughter and rape, but not DUI offenses,

from eligibility. (Id. at pp. 444-447.) In the same 2017-2018 legislative session, the

19

Legislature amended Penal Code section 1001.80 to add subdivision (l), but the

Legislature did not include a similar provision in section 1001.36. (Id. at p. 447.)

Tellez explained: “This history establishes that the Legislature wanted the existing

bar on diversion for DUI offenses to take precedence. 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. What is more, the earlier version

of Senate Bill 215 would have clarified that mental health diversion applied

notwithstanding any other law, but the Legislature abandoned that ‘notwithstanding’

clause in the final version of Senate Bill 215. The Legislature’s failure to amend Penal

Code section 1001.36 in the same way that it had recently amended the military diversion

statute indicates that the Legislature did not intend to override Vehicle Code section

23640. Instead, the Legislature intended that the decades-old prohibition against

diversion for DUI should prevail.” (Tellez, supra, 56 Cal.App.5th at p. 448.) Thus,

“Vehicle Code section 23640 controls over Penal Code section 1001.36.” (Id. at p. 450.)

In Moore, another panel of this court agreed with Tellez’s point that the concurrent

legislative histories of sections 1001.36 and 1001.80 showed that the Legislature did not

intend to make DUI defendants eligible for diversion under section 1001.36. (Moore,

supra, 58 Cal.App.5th at pp. 575-580.) Among other things, Moore noted that the

Legislature’s failure to add a provision like section 1001.80, subdivision (l), to section

1001.36, during the same legislative session in which the Legislature added

subdivision (l) to section 1001.80, strongly indicated that the Legislature did not intent to

20

repeal Vehicle Code section 23640 insofar as it bars all DUI defendants from eligibility

for mental health diversion under Penal Code section 1001.36. (Moore, at p. 579 [“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.”].)

As noted, Tellez concluded that Vehicle Code section 23640 and Penal Code

section 1001.36 irreconcilably conflicted; thus, one of the statutes had to be interpreted as

providing for an exception to, and one as prevailing over, the other. (Tellez, supra,

56 Cal.App.5th at p. 444, citing State Dept., supra, 60 Cal.4th at p. 956.) Moore did not

discuss the conflict between Vehicle Code section 23640 and Penal Code section 1001.36

and did not purport to harmonize the two statutes. Moore did note, however, that when

statutes appear to conflict, a court is required, where reasonably possible, to harmonize

them, reconcile seeming inconsistencies in them, and construe them to give force and

effect to all of their provisions. (Moore, supra, 58 Cal.App.5th at p. 574, citing State

Dept., supra, 60 Cal.4th at p. 955.) Further, all presumptions are against implied repeals,

and absent an express declaration of legislative intent, courts are to find an implied repeal

“ ‘ “ ‘ “ ‘only when there is no rational basis for harmonizing the two potentially

21

conflicting statutes [citation], and the statutes are “irreconcilable, clearly repugnant, and

so inconsistent that the two cannot have concurrent operation.” ’ ” ’ ” ’ [Citations.]

(State Dept., supra, 60 Cal.4th at pp. 955-956.)” (Moore, supra, 58 Cal.App.5th at

p. 574.)

F. Grassi, Tan, and Other Case Law Interpreting Section 1001.95

As noted, the Courts of Appeal in Grassi, Tan, and Islas have uniformly agreed

that Penal Code section 1001.95 and Vehicle Code section 23640 can be harmonized by

interpreting them together as excluding misdemeanor DUIs from eligibility for diversion

under Penal Code section 1001.95, in addition to the misdemeanors specified as ineligible

in Penal Code in section 1001.95, subdivision (e). (Grassi, supra, 73 Cal.App.5th at

pp. 307-308; Tan, supra, 76 Cal.App.5th at pp. 137-139; Islas, supra, 78 Cal.App.5th

1107, 1110 [following Tan and Grassi].) These courts also found the legislative history

of Penal Code section 1001.95 “anything but clear” and “anything but unambiguous” as

to whether the Legislature intended to partially repeal Vehicle Code section 23640, to the

extent the older bars diversion for misdemeanor DUI charges, when the Legislature

enacted Penal Code section 1001.95. (Tan, at pp. 137-139; Grassi, at pp. 302-306; Islas,

at pp. 1108, 1110 [following Tan and Grassi].)

In July 2021, the appellate division of the superior court in Los Angeles County

was the first court to conclude that Vehicle Code section 23640 bars diversion for

misdemeanor DUI charges under Penal Code section 1001.95. (People v. Superior Court

(Espeso) 67 Cal.App.5th Supp. 1, 4-7 (Espeso).) Espeso reasoned: “To the extent there

is a tension between Vehicle Code section 23640 and the misdemeanor diversion statute,

22

it must be resolved in favor of both statutes being ‘ “ ‘ “ ‘read together and so construed

as to give effect, when possible, to all the provisions thereof,’ ” ’ ” ’ ” given that all

presumptions are against a repeal by implication. (Espeso, at p. Supp. 6.) Further, the

legislative history of Penal Code section 1001.95 did not “reveal a clear intent” to

partially repeal Vehicle Code section 23640; thus, the real party had “failed to rebut the

presumption against a repeal by implication of Vehicle Code section 23640.” (Espeso, at

pp. Supp. 6-7.)

Espeso’s summary of its holding aptly summarizes our holding and those of the

other Court of Appeal which have confronted the issue: “ In sum, the Legislature

approved a bill in enacting section 1001.95 which was silent on whether misdemeanor

diversion can be granted in driving under the influence cases. Against this

backdrop, Vehicle Code section 23640, subdivision (a), in crystal clear language, bars

diversion in such cases. We cannot discern an intent to overcome the rule that ‘[t]he law

shuns repeal by implication’ [citation]. We therefore 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, supra, 67 Cal.App.5th at p. Supp. 9.)

Shortly after Espeso was decided, the appellate division of the Riverside County

Superior Court addressed the issue in Diaz-Armstrong, supra, 67 Cal.App.5th Supp. 10.

Following Tellez, the majority concluded that the statutes irreconcilably conflicted, given

that both were unambiguous in their plain language, and one prohibited what the other

23

allowed: diversion for misdemeanor DUI charges under Penal Code section 1001.95.

(Diaz-Armstrong, supra, 67 Cal.App.5th at p. Supp. 21.) The majority explained that

harmonizing the statutes, as the dissent posited, “contradict[ed] the Court of Appeal’s

consistent understanding [set forth in Tellez, Hopkins, and Weatherill,] that section 23640

poses a real conflict with diversion statutes that would otherwise include DUIs”; the

requirement that courts harmonize potentially inconsistent statutes “is not a license to

redraft the statutes to strike a compromise the Legislature did not reach”; and the dissent

offered “what we believe to be the very first appellate opinion directly concluding that

true harmonization is possible.” (Diaz-Armstrong, at p. Supp. 21-22.)

The majority resolved the question of which of the two statutes was intended to

prevail based on the legislative history of Penal Code section 1001.95 and the policy

goals and ostensible objects to be achieved by the new diversion program. (Diaz-

Armstrong, supra, 67 Cal.App.5th at pp. Supp. 21-28.) The majority found “compelling

evidence” that the Legislature intended Penal Code section 1001.95 to prevail over

Vehicle Code section 23640, given that, in the floor debate on the bill in each house,

legislators objected to the bill on the ground it did not exclude DUIs among other

charges, “they were never met with a rebuttal, and majorities of both houses passed the

bill anyway.” (Diaz-Armstrong, at p. Supp. 26.)

In dissent, Judge Firetag explained that the statutes could operate in harmony for

two reasons. (Diaz-Armstrong, supra, 67 Cal.App.5th at p. Supp. 31 [dis. opn. of Firetag,

J.].) First, nothing in the text of Penal Code section 1001.95 supported the conclusion

that the statute supplanted Vehicle Code section 23640’s prohibition on diversion for

24

misdemeanor DUI charges. Penal Code section 1001.95 did not state that its list of

excluded offenses was exclusive (§ 1001.95, subd. (e)), and nothing in the statute

indicated that it was repealing Vehicle Code section 23640 in any manner. (Diaz-

Armstrong, at pp. Supp. 29-31 [dis. opn. of Firetag, J.].)

Second, based on his review of the case law addressing conflicts between Vehicle

Code section 23640 and other diversion statutes, Judge Firetag found no substantive

difference between Penal Code sections 1001.36 and 1001.95, and therefore no reason to

treat these two statutes differently. (Diaz-Armstrong, at pp. Supp. 29-31 [dis. opn. of

Firetag, J.].) He explained: “Both sections provide the trial court with the power to grant

diversion under certain circumstances. Both sections indicate that certain enumerated

offenses are categorically ineligible for diversion. And, most importantly, neither section

references in any way DUIs, section 23640 or language that indicates that the exceptions

are exclusive. In my opinion, there is no reason why Tellez and Moore do not dictate a

finding that DUIs are categorically prohibited under section 1001.95.” (Diaz-Armstrong,

at p. Supp. 33 [dis. opn. of Firetag, J.].)

IV.

A. Penal Code Section 1001.95 and Vehicle Code Section 23640 Conflict, But the

Statutes Do Not Irreconcilably Conflict and Can Be Harmonized

The first question we must determine is whether Vehicle Code section 23640 and

Penal Code section 1001.95 can be harmonized, as the People contend, or whether the

statutes irreconcilably conflict, as Ortiz argues. As emphasized, a court is required, when

reasonably possible, to harmonize statutes, reconcile seeming inconsistencies in them,

25

and construe them to give force and effect to all of their provisions; the statutes “ ‘ “must

be regarded as blending into each other and forming a single statute” ’ ”; and “ ‘ “read

together and so construed as to give effect, when possible, to all the provisions” ’ ” of

each statute. (State Dept., supra, 60 Cal.4th at p. 955.)

Ortiz argues the statutes are unambiguous in their plain language. We agree that

the statutes are unambiguous when viewed separately from each other. One expressly

prohibits what the other implicitly allows. Vehicle Code section 23640 bars expressly

diversion for misdemeanor DUI charges in “crystal clear language” (Espeso, supra,

67 Cal.App.5th at p. Supp. 9), and Penal Code section 1001.95 allows courts to offer

diversion to defendants being prosecuted for “a misdemeanor.” (§ 1001.95, subd. (a).)

Penal Code section 1001.95 excepts several misdemeanors from eligibility for diversion

under its terms, but misdemeanor DUI charges are not among them. (§ 1001.95, subds.

(e), (e).) Thus, the statutes appear to conflict.

In considering whether two apparently conflicting statutes can be harmonized, we

begin with their texts. (State Dept., supra, 60 Cal.4h at p. 956.) Statutes cannot be

harmonized unless “full effect” can be given to all of their provisions. (Cf. State Dept.,

supra, 60 Cal.4th at p. 955-960 [disclosure provisions of two statutes directly conflicted;

thus, full effect could not be given to the disclosure provisions of both statutes, and they

could not be harmonized] and Lopez v. Sony Electronics, Inc. (2018) 5 Cal.5th 627, 637-

638 & fn. 6 [two statutes of limitation could not be harmonized because two limitations

periods cannot govern the same claim] with Even Zohar, supra, 61 Cal.4th at pp. 840-841

[harmonizing statutes] and In re Greg F. (2012) 55 Cal.4th 393, 408 [same].)

26

Based on their texts, Vehicle Code section 23640 and Penal Code section 1001.95

can be harmonized. That is, full effect can be given to all of their provisions by

interpreting them together as authorizing diversion for all misdemeanor charges, except

those specified as ineligible for diversion in both Penal Code section 1001.95,

subdivision (e) [registrable sex offenses, domestic violence, and stalking] and Vehicle

Code section 23640 [DUI charges]. (Tan, supra, 76 Cal.App.5th at p. 138; Grassi, supra,

73 Cal.App.5th at p. 307.)

It is significant that Penal Code section 1001.95 does not state either one of two

things: (1) that the list of misdemeanors it specifies as excluded from eligibility is an

exclusive list (§ 1001.95, subd. (e)), or (2) that its provisions apply notwithstanding

“ ‘any other law’ ” including Vehicle Code section 23640. (Tan, supra, 76 Cal.App.5th

at pp. 138-139.) The absence of these provisions allows us to harmonize the new statute

with Vehicle Code section 23640, by interpreting them together as barring diversion for

misdemeanor DUI charges under the new statute. “Nothing in the language of section

1001.95 suggests that it is intended to overrule the prohibition on diversion in DUI cases

contained in Vehicle Code section 23640.” (Tan, at p. 138.)

This construction also gives full effect to each provision of Penal Code section

1001.95, including its key provisions authorizing diversion to be offered to persons being

prosecuted for “a misdemeanor” except specified misdemeanors. (§ 1001.95, subds. (a),

(e).) Construing Vehicle Code section 23640 as independently prohibiting diversion

under Penal Code section 1001.95 does not undermine the effect of any provision of

Penal Code section 1001.95. The text of the new statute is entirely consistent with

27

construing it as subject to Vehicle Code section 23640’s existing ban on diversion for

DUI charges. Diversion is still allowed for “a misdemeanor” except as specified in Penal

Code section 1001.95 and in Vehicle Code section 23640. Penal Code section 1001.95

does not state that it applies to “any misdemeanor” except as specified; if it did, that

would make its text inconsistent with the text of Vehicle Code section 23640.

Thus, based on their texts, the statutes can be interpreted in a way that dispels their

apparent conflict. That is, the statutes are not “ ‘ “ ‘ “ ‘ “so inconsistent” ’ ” ’ ” ’ ” that

they cannot have concurrent operation. (State Dept., supra, 60 Cal.4th at p. 955.) And

because it is possible to harmonize the statutes—that is, to give full effect to all of their

provisions by making misdemeanor DUI charges ineligible for diversion under Penal

Code section 1001.95 in light of Vehicle Code section 23640—the statutes must be so

harmonized. (See Ibid.)

Ortiz argues that this construction or harmonization “reads into Penal Code section

1001.95 an exclusion for DUI offenses that the Legislature did not put there and which

would undermine some of the purpose of the new statute.” In other words, Ortiz argues,

“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; Hopkins, supra, 2 Cal.App.5th at

p. 1282; Diaz-Armstrong, supra, 67 Cal.App.5th at p. Supp. 21). But our construction

does not redraft the statutes to strike a compromise that the Legislature did not reach,

because nothing in the statutes’ texts prohibits interpreting them together as barring

diversion for misdemeanor DUI charges. (Tan, supra, 76 Cal.App.5th at p. 139; Grassi,

28

supra, 73 Cal.App.5th at p. 308; see Garcia v. McCutchen (1997) 16 Cal.4th 469, 479

[“[T]he general policy underlying legislation ‘cannot supplant the intent of the

Legislature as expressed in a particular statute.’ ”].) Moreover, it was indeed the

Legislature which enacted each of these statutes.

Ortiz argues that the statutes can just as easily be harmonized by interpreting the

list of misdemeanors specified as ineligible for diversion in Penal Code section 1001.95,

subdivision (e), as exclusive, and interpreting Penal Code section 1001.95, subdivision

(a), as allowing diversion for misdemeanor DUI charges, effectively notwithstanding

Vehicle Code section 23640. Ortiz argues that this “ ‘harmonization’ is far more

defensible given the clear evidence in the legislative history of the Legislature’s intent to

include DUIs” as eligible for diversion under Penal Code section 1001.95.

We disagree for two reasons. First, the harmonization rule focuses on the texts of

the statutes, not their purposes, and asks whether the texts can be harmonized. (State

Dept., supra, 60 Cal.4th at p. 956 [in harmonizing statutes, courts should begin with their

texts, not their purposes].) Ortiz’s proposed construction does not harmonize the two

statutes; indeed, it utterly fails to give effect to Vehicle Code section 23640’s bar on

diversion for misdemeanor DUI charges, without any support for doing so in the texts of

either Penal Code section 1001.95 or Vehicle Code section 23640. Our harmonization of

the statutes gives full effect to the provisions of each statute and does not limit the

operation of any of the provisions of either statute.

Second, and as Tan pointed out, Ortiz’s proposed construction “ ‘would lead to the

remarkable conclusion that the Legislature creates exemptions to a specific code section

29

[here, Vehicle Code § 23640] merely by failing to mention it.’ . . . [T]he ‘normal rules

of statutory construction [, however,] 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.’ ” (Tan,

supra, 76 Cal.App.5th at p. 139, quoting People v. Siko (1988) 45 Cal.3d 820, 824 (Siko);

see § 1001.80, subd. (l) [carving out exception to Veh. Code, § 23640 by expressly

allowing diversion for DUI charges under Pen. Code, § 1001.80 (military diversion)].)

Ortiz points out that, “ ‘[u]nder the maxim of statutory construction, expressio

unius est exclusio alterius, if exemptions are specified in a statute, we may not imply

additional exemptions unless there is a clear legislative intent to the contrary.’ ” (Rojas v.

Superior Court (2004) 33 Cal.4th 407, 424; Sierra Club v. State Bd. of Forestry (1994)

7 Cal.4th 1215, 1230.) But here, we are not implying an additional exemption for

misdemeanor DUI charges into Penal Code section 1001.95, subdivision (e). Instead, we

are reconciling Vehicle Code 23640’s longstanding prohibition on diversion for

misdemeanor DUI charges with Penal Code section 1001.95’s ostensibly nonexclusive

list of exempted misdemeanor charges, blending them together, and giving full effect to

both. (State Dept., supra, 60 Cal.4th at p. 955.) Again, Vehicle Code section 23640, by

its terms, applies to Penal Code section 1001.95 because no other statute, including Penal

Code section 1001.95, says that it does not. (Tan, supra, 76 Cal.App.5th at p. 139.)

Ortiz argues the Diaz-Armstrong majority correctly concluded that the two statutes

irreconcilably conflict, just as Tellez earlier concluded that Vehicle Code section 23640

irreconcilably conflicts with Penal Code section 1001.36. As noted, the Diaz-Armstrong

30

majority reasoned that harmonizing the statutes would contradict “the Court of Appeal’s

consistent understanding that section 23640 poses a real conflict with diversion statues

that would otherwise include DUIs.” (Diaz-Armstrong, supra, 67 Cal.App.5th at

p. Supp. 21, citing Tellez, supra, 56 Cal.App.5th at p. 444, Hopkins, supra, 2 Cal.App.5th

at pp. 1282-1283, & Weatherill, supra, 215 Cal.App.3d at p. 1577 & fn. 7.) Like this

court in Tellez, the Diaz-Armstrong majority concluded that the statutes irreconcilably

conflicted because, when viewed separately, each is unambiguous and one prohibits what

the other allows. But when viewed together, the statutes can be harmonized.

Tellez concluded that Vehicle Code section 23640 and Penal Code section 1001.36

conflicted and therefore could not be harmonized. As noted, Tellez explained: “Both

statutes are unambiguous in their plain language: One clearly prohibits diversion for

defendants charged with DUI offenses, and the other just as clearly allows mental health

diversion for any defendant who meets the minimum eligibility requirements (and who is

not charged with a disqualifying offense). When it comes to DUI offenses, Vehicle Code

section 23640 prohibits a court from doing what Penal Code section 1001.36 permits.

The two ‘statutes are in conflict and thus one must be interpreted as providing an

exception to the other.’ (State Dept. [, supra, 60 Cal.4th at p. 956].) The question is

which one. Is Vehicle Code section 23640 an exception to Penal Code section 1001.36?

Or is Penal Code section 1001.36 an exception to Vehicle Code section 23640?” (Tellez,

supra, 56 Cal.App.5th at p. 444.)

Tellez then turned to the legislative history of Penal Code section 1001.36 for

indicators of legislative intent concerning which of the two statutes was intended to be an

31

exception to the other and which was intended to prevail. The history answered the

question of legislative intent; it showed that the Legislature intended Vehicle Code

section 23640 to prevail. (Tellez, supra, 56 Cal.App.5th. at pp. 443-448.) The Diaz-

Armstrong majority followed Tellez’s reasoning in concluding, one, that Vehicle Code

23640 and Penal Code section 1001.95 irreconcilably conflicted, and two, that the

Legislature intended the diversion statute, Penal Code section 1001.95, to prevail. (Diaz-

Armstrong, supra, 67 Cal.App.5th at pp. Supp. 21, 24-28.)

As Ortiz argues, the texts of Penal Code sections 1001.36 and 1001.95 are quite

similar: both allow diversion, except for specified offenses, and neither states that its list

of ineligible offenses is exclusive. (§§ 1001.36, subds. (a), (b)(2), 1001.95, subds. (a),

(e).) Further, neither statute states that its provisions apply notwithstanding any other

law, including Vehicle Code section 23640. (Cf. § 1001.80, subd. (l).) Thus, both

statutes appear to conflict with Vehicle Code section 23640 in that both appear to allow

diversions for DUI charges when the statutes are viewed separately from Vehicle Code

section 23640. But since we have been called upon to determine whether each of these

diversion statutes can be reconciled with Vehicle Code section 23640, we cannot view

the diversion statutes in isolation from Vehicle Code section 23640. Instead, we must

view the diversion statutes with Vehicle Code section 23640, and when so viewed,

neither diversion statute irreconcilably conflicts with Vehicle Code section 23640.

Given the similarities between Penal Code sections 1001.36 and 1001.95 and the

recent Court of Appeal decisions in Grassi, Tan, and, Islas on the issue at hand, we have

to question whether Tellez correctly concluded that Penal Code section 1001.36 and

32

Vehicle Code section 23640 were irreconcilably conflicting and could not be

harmonized. Interpreting Penal Code sections 1001.36 and 1001.95 as subject to Vehicle

Code section 23640’s preexisting ban on any form of pretrial diversion for DUI charges

gives full effect to all of the provisions of both diversion statutes and Vehicle Code

section 23640. Nothing in either diversion statute prohibits this construction.

Although Tellez concluded that Vehicle Code section 23640 and Penal Code

section 1001.36 conflicted and could therefore not be harmonized (Tellez, supra,

56 Cal.App.5th at p. 444) and Moore did not address whether the statutes conflicted or

could be harmonized (Moore, supra, 58 Cal.App.5th at p. 573), the practical result in

both cases was that the statutes were effectively harmonized. The conclusions in both

cases that Vehicle Code section 23640 was intended to prevail, and therefore that DUI

charges are categorically ineligible for diversion under Penal Code section 1001.36

(Tellez, at p. 444; Moore, at p. 582), has meant that the statutes operate concurrently to

bar diversion for misdemeanor and felony DUI charges under Penal Code section

1001.36.

B. There Is Insufficient Evidence That the Legislature Intended to Partially Repeal

Vehicle Code Section 23640 When It Enacted Penal Code Section 1001.95

Given that the statutes can be harmonized—that is, they can operate concurrently

and one does not have to yield to the other—the presumption against implied repeals still

applies. (See State Dept., supra, 60 Cal.4th at pp. 956-962.) The next question is

whether there is sufficient evidence of legislative intent to partially repeal Vehicle Code

section 23640, in the legislative history of Penal Code section 1001.95, to rebut the

33

presumption against finding an implied partial repeal of the Vehicle Code section 23640

in the enactment of Penal Code section 1001.95.

As indicated, implied repeals can only be based on an express declaration of

legislative intent or other undebatable evidence of legislative intent to repeal the older

statute. (State Dept., supra, 60 Cal.4th at pp. 955-956; Western Oil, supra, 49 Cal.3d at

p. 420.) The intention to repeal must be “clearly expressed or necessarily implied.”

(People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 199 (Zamudio) [“We do not

presume that the Legislature intends, when it enacts a statute, to overthrow long-

established principles of law unless such intention is clearly expressed or necessarily

implied.”].)

1. The Parties’ Contentions

The parties dispute what the legislative history of the new diversion program

shows concerning the Legislature’s intent to partially repeal Vehicle Code section 23640.

The People claim the history “does not evidence a clear intent to repeal” Vehicle Code

section 23640. They argue that the courts in Grassi and Tan correctly concluded that the

history is “anything but clear” and “anything but unambiguous” as to whether the

Legislature’s intended to partially repeal Vehicle Code section 23640, and they urge us to

follow these courts’ analyses. (Grassi, supra, 76 Cal.App.5th at p. 304; Tan, supra,

76 Cal.App.5th at p. 136; see also Islas, supra, 78 Cal.App.5th at pp. 1109-1110

[following Grassi and Tan].)

Ortiz and amicus curiae CDLA argue that the courts in Grassi and Tan

“misconstrued and misapplied” the legislative history and failed to recognize what it

34

clearly and unequivocally shows: that the Legislature intended to make misdemeanor

DUI charges divertible under Penal Code section 1001.95 because it resisted the demands

of lawmakers in both houses to expressly exclude DUI charges from eligibility. (See

Diaz-Armstrong, supra, 67 Cal.App.5th at pp. Supp. 24-28.) According to this argument,

the Legislature, by necessary implication, partially repealed Vehicle Code section 23640

when it enacted the new diversion program because it cannot have intended to make

misdemeanor DUI charges eligible for diversion under Penal Code section 1001.95, by

not excluding them from eligibility, without partially repealing Vehicle Code section

23640.

The legislative history is discussed at length in Grassi, Tan, and other cases which

have addressed the apparent conflict between Vehicle Code section 23640 and Penal

Code section 1001.95. (Grassi, supra, 73 Cal.App.5th at pp. 300-302; Tan, supra,

76 Cal.App.5th at pp. 140-142; Espeso, supra, 67 Cal.App.5th at pp. Supp. 6-9; Diaz-

Armstrong, supra, 67 Cal.App.5th at pp. Supp. 24-25.) We summarize the history here,

then we explain why we believe it is insufficiently clear, or contains an insufficient

showing, to rebut the presumption against finding an implied repeal of Vehicle Code

section 23640.

2. The Legislative History

As introduced on February 21, 2020, Assembly Bill 3234 dealt with a different

subject than misdemeanor diversion, and on June 8 the bill was placed on the Assembly

inactive file. (Grassi, supra, 73 Cal.App.5th at pp. 300-301.) On August 3, the bill was

placed on the third reading file for the consideration of proposed amendments. (Grassi,

35

at p. 301.) In its August 3 form, the bill proposed “a court-initiated misdemeanor

diversion program” and to lower the minimum age limitation for the Elderly Parole

Program. (Assem. 3d reading analysis of Assem. Bill 3234 (2019-2020 Reg. Sess.) as

amended Aug. 3, 2020, p. 1.) The Assembly floor analysis of the August 3 version of the

bill explained that there were “multiple diversion programs under existing law” but that

certain misdemeanor offenses, including certain Vehicle Code offenses, were “ineligible

for diversion” under the existing programs. (Id. at pp. 2-3.) This analysis contrasted

existing misdemeanor diversion programs with the proposed new program without

specifying what the existing programs were: “This bill would create a court-initiated

misdemeanor diversion program. A superior court judge would be authorized to divert a

misdemeanor defendant over the objection of the prosecution. 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.

Whether or not to divert a misdemeanor defendant would be in the trial court’s

discretion.” (Assem. Bill 3234, supra, 3d reading, as amended Aug. 3, 2020, pp. 2-3,

italics added.)

The August 3 Assembly floor analysis also noted that, according to its opponents,

the bill was based on “an LA county pilot program, AB 2124 from 2014, which expired

in 2018” and which excluded multiple offenses, including “DUIs.” (Assem. Bill 3234,

supra, 3d reading, as amended Aug. 3, 2020, pp. 4-5.) The Los Angeles County pilot

program was codified in Penal Code former sections 1001.94 through 1001.99 (Stats.

2014, ch. 732, § 1, Assem. Bill No. 2124). The August 3 Assembly floor analysis did not

36

mention Vehicle Code section 23640 or otherwise indicate that “existing law” expressly

prohibited pretrial diversion for misdemeanor DUI charges.7

On August 20, 2020, the Orange County District Attorney (OCDA) issued a floor

alert to the Assembly, opposing the bill and urging the Legislature to vote no on it. This

floor alert claimed that the bill allowed for diversion in “ALL” misdemeanor cases,

“WITHOUT EXCEPTION,” including for “misdemeanor DUI w/injury” and “vehicular

manslaughter w/alcohol but without gross negligence.” This floor alert criticized the bill

as a “gut and amend” and a “slap dash” attempt at circumventing the legislative process,

given that it “incorporate[d] two main provisions in the public safety trailer bills that

were removed due to opposition.” It argued that the bill would “result in wholesale and

dangerous changes in public policy” that “should not be approved without full

consideration of their sweeping impact.”

On August 24, 2020, the Assembly amended the bill to exclude the offenses now

specified in Penal Code section 1001.95, subdivision (e), from eligibility under the

proposed new diversion program. (Assem. 3d reading analysis of Assem. Bill 3234

7 An earlier version the new misdemeanor diversion program, and of Penal Code

sections 1001.95 to 1001.97, was proposed as part of a public safety bill, Assembly Bill

No. 88 (2019-2020 Reg. Sess.) (Assembly Bill 88) on June 22, 2020. (Legis. Counsel’s

Dig., Assem. Comm. on Budget, Assem. Bill No. 88 (2019-2020, Summary Dig., § 14.)

This initial version of the new program also did not exclude any misdemeanors from

eligibility, nor did it state it would apply notwithstanding any other law. When Assembly

Bill 88 came up for debate in the Assembly Budget Subcommittee on June 26, 2020,

Assemblymember Cooper objected that the newly proposed misdemeanor diversion

program would allow diversion for defendants charged with any misdemeanor, and urged

that several charges, including DUI charges, be excluded from eligibility. During the

June 26 hearing, neither Assemblymember Cooper nor any other speakers mentioned

Vehicle Code section 23640 or that existing law prohibited diversion for DUI charges.

37

(2019-2020 Reg. Sess.), as amended Aug. 24, 2020, p. 1.) Like the August 3 Assembly

floor analysis, the August 24 Assembly floor analysis did not mention Vehicle Code

section 23640 or indicate that existing law expressly prohibited diversion for

misdemeanor DUI offenses. At some point, the California District Attorneys Association

(CDAA) issued a floor alert “joining other public safety organizations in strongly urging

the Legislature to vote NO on AB 3234.” Like the OCDA’s floor alert, the CDAA’s

floor alert criticized the bill as a “gut and amend” that allowed diversion for

“misdemeanor DUI w/injury” and “vehicular manslaughter w/alcohol but without gross

negligence.”

During the August 24 Assembly floor debate on the bill, the bill’s author,

Assemblymember Ting, noted that “we took amendments to remove consideration of sex

offenses and domestic violence offenses from the diversion program.” Assemblymember

Cooper then pointed out that the bill had “gotten better” but “you have DUI with injury”

and other offenses were not excluded, “[s]o while it’s a better bill than it was, there are

still some issues [and] I’m firmly opposed to it.” During the Assembly floor debate,

neither Ting nor any other lawmaker disputed Cooper’s statement that the bill did not

exclude “DUI with injury.” Following the floor debate, the Assembly voted 43 to 26 to

enact the bill.

On August 31, 2020, the Judicial Council issued a Senate floor alert, opposing the

bill unless it was “funded and amended to align” with the former Los Angeles County

pilot program. This floor alert contained a side-by-side comparison of the bill with the

2014 bill that enacted the Los Angeles County pilot program. This comparison showed

38

that the former pilot program excluded DUIs and other offenses that were not excluded

under the bill. During the August 31 Senate floor debate on the bill, Senator Melendez,

echoing Assemblymember Cooper’s August 24 objections on the Assembly floor,

objected to the bill on the ground it allowed “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 . . . have a DUI,” among other offenses. No other

senator disputed Senator Melendez’s statement that the bill allowed diversion for DUIs

and other offenses, including the bill’s Senate sponsor, Senator Mitchell. (Grassi, supra,

73 Cal.App.5th at p. 302.) The Senate voted 27 to 10 to enact the bill.

On September 8, 2020, the CDAA sent the Governor a veto request, “strongly”

opposing the bill on the ground it did not exclude DUIs and other offenses that had been

excluded from the former Los Angeles County pilot program. The veto request noted

that “this broad-ranging authority of courts to grant diversion without limitation on DUI

offenses potentially has a very serious impact on the ability of the criminal justice system

to deal with chronic and repeat DUI offenders,” and explained that the bill would allow

serially diverted DUI offenders to avoid identification as “high-risk, chronic, impaired

driver[s],” given that diverted DUI charges would be deemed to have never occurred.

In his September 30, 2020 signing statement for the bill, the Governor expressed

concern that “the crime of driving under the influence” was not excluded from the bill

and said he would “seek to expeditiously remedy this issue with the Legislature in the

next legislative session.” During the 2021 to 2022 legislative session, two bills to amend

section 1001.95 were introduced—one to expressly exclude DUIs (Assembly Bill

39

No. 282 (2021-2022 Reg. Sess.) as introduced Jan. 21, 2021) (Assembly Bill 282) and

another to place restrictions on diversion in DUI cases (Senate Bill No. 421 (2021-2022

Reg. Sess.), as introduced Feb. 12, 2021) (Senate Bill 421.) On May 27, 2021, Assembly

Bill No. 282 overwhelmingly passed the Assembly, 64 to 9, but it failed passage in the

Senate on July 13, 2021. Senate Bill No. 421 did not advance to a floor vote; it was

placed on the Senate Appropriations Committee suspense file on May 10, 2021.

3. Analysis

We begin by noting that the courts in Grassi, Tan, and Espeso have addressed the

parties’ arguments concerning particular facets of the legislative history, and we agree

with their analyses and conclusions on these points. (See Islas, supra, 78 Cal.App.5th at

p. 1110.) Nonetheless, we agree with Ortiz and CDLA that history as a whole

unequivocally shows that the Legislature voted to enact the new diversion program

(Assembly Bill 3234 (2019-2020 Reg. Sess.), over strenuous and consistent opposition,

in both houses of the Legislature and by prominent groups outside of the Legislature, that

the new diversion program did not exclude multiple charges, including DUI charges,

from eligibility. This suggests that the Legislature intended to permit diversion for

misdemeanor DUI charges under Penal Code section 1001.95.

We note here that this showing, without any other evidence, might be sufficient to

establish that Penal Code section 1001.95 was intended to prevail over Vehicle Code

section 23640, if the statutes irreconcilably conflicted. (See Tellez, supra,

56 Cal.App.5th at p. 444; Diaz-Armstrong, supra, 67 Cal.App.5th at pp. Supp. 24-28.) In

that event, one statute would have to give way to the other; one would, by necessary

40

implication in their texts, be impliedly repealed, and we would look to relevant legislative

history for clues or indications of the which statute the Legislature intended to prevail.

(Tellez, at p. 444.)

But the statutes do not irreconcilably conflict. They can be harmonized. They can

operate concurrently. One does not have to yield to the other; thus, the presumption

against implied repeals still applies. (See State Dept., supra, 60 Cal.4th at pp. 955-956.)

As noted, rebutting the presumption requires an unequivocal showing of legislative intent

to repeal. (Western Oil, supra, 49 Cal.3d at p. 420; Zamudio, supra, 23 Cal.3d at p. 199.)

That is, the intent to repeal must be “clearly expressed or necessarily implied.”

(Zamudio, at p. 199.) Conversely, the evidence of intent to repeal cannot be ambiguous

or equivocal; it cannot permit competing inferences.

According to Ortiz and CDLA, the intent to repeal Vehicle Code section 23640 is

necessarily implied because the Legislature cannot have intended to make misdemeanor

DUI charges eligible for diversion under Penal Code section 1001.95, by failing to

expressly exclude them from eligibility under the new statute, without intending to repeal

Vehicle Code section 23640’s existing ban on diversion for misdemeanor DUI charges.

We disagree, because the history permits a contrary intent that the Legislature did not

intend to partially repeal Vehicle Code section 23640.

To be clear, the history unequivocally shows that the Legislature enacted

Assembly Bill 3234 over strenuous and consistent opposition that it would permit

diversion for DUIs because it did not exclude diversion for DUIs. But, just as

unequivocally, the history also shows that the Legislature did not consider partially

41

repealing Vehicle Code section 23640 when it enacted the new diversion program. As

Ortiz concedes, “there is no evidence that the Legislature that enacted the new

misdemeanor statute even considered [Vehicle Code] section 23640.” (Italics added.)

As indicated, neither Vehicle Code section 23640, nor the fact that existing law

barred diversion for DUI charges was mentioned in any of the legislative reports,

analyses, debates, or other proceedings concerning Assembly Bill 3234 (2019-2020 Reg.

Sess.) or its predecessor, Assembly Bill, 88 (2019-2020 Reg. Sess.) Not even the

opponents of the bill ever mentioned Vehicle Code section 23640 or that existing law

barred diversion for DUI charges. As Tan observed, “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.” (Tan, supra, 76 Cal.App.5th at p. 148.)

The majority in Diaz-Armstrong found that Assemblyman Cooper’s and Senator

Melendez’s unrebutted objections to the bill amounted to “compelling evidence that the

Legislature as a whole intended to include misdemeanor DUIs” as eligible for diversion

under Penal Code section 1001.95.” (Diaz-Armstrong, supra, 67 Cal.App.5th at p. Supp.

26.) At most, however, this evidence, and the legislative history as a whole, shows that it

was understood by the legislators who voted on the bill, and the groups outside the

legislature who were lobbying against the bill, that the bill did not exempt misdemeanor

DUI charges from diversion, and therefore, that misdemeanor DUI charges would be

eligible for diversion under the bill. This understanding is distinct from a legislative

intent to partially repeal Vehicle Code section 23640. As far as the Legislature knew

when it voted to enact the bill, existing law did not prohibit diversion for DUI charges.

42

Under these circumstances, a vote to enact the bill cannot be equated with a vote to

partially repeal Vehicle Code section 23640 to the extent it would operate to bar

diversion for misdemeanor DUI charges under Penal Code section 1001.95.

Although no legislators disputed Assembleymember Cooper’s or Senator

Melendez’s floor statements that the bill did not exempt and therefore would allow

diversion for DUI charges, no legislator who supported the bill, during the floor debates

or in any other proceedings concerning the bill, ever said that the bill would permit

diversion for misdemeanor DUI charges. Further, DUI charges were never the focus of

the bill. During the Senate floor debate on the bill, Senator Melendez was the only

lawmaker who mentioned the term “DUI.” No one said the bill would partially repeal

Vehicle Code scion 23640, or existing law, and no one voiced support for the bill because

it would result in such a repeal. In sum, there is no affirmative showing, in any of the

legislative history, that the Legislature intended to partially repeal Vehicle Code section

23640 when it enacted Penal Code section 1001.95.

On this record, then, an implied repeal of Vehicle Code section 23640 would be

based on legislative silence: silence in the text of Penal code section 1001.95, which can

be harmonized with Vehicle Code section 23640, and silence in the legislative history of

Penal Code section 1001.95 of any legislative consideration, much less intention, to

partially repeal existing law’s ban on diversion for misdemeanor DUI charges. Implied

repeals based on silence, either in the text of the newer statute or its legislative history are

strongly disfavored. (Siko, supra, 45 Cal.3d at pp. 824-825 [“Had the Legislature

contemplated the [implied repeal] construction the People now advance, the reports

43

surely would have at least mentioned that potentiality.”]; In re Chrstian S. (1994)

7 Cal.4th 768, 792 [“We are asked in this case to decide whether the Legislature intended

to abolish a well-established legal doctrine that raises significant public policy

considerations. We are not persuaded the Legislature would have silently, or at best

obscurely, decided so important and controversial a public policy matter and created a

significant departure from the existing law.”].)

The problem with implied repeals based on silence is that they allow Legislatures

to repeal older statutes enacted by majorities of prior Legislatures without necessarily

having majority support in the current Legislature for repealing the older statutes. The

presumption against implied repeals, and the showing of unequivocal evidence of

legislative intent required to rebut it, serves the salutary purpose of preventing implied

repeals based on less-than-majority support in the current Legislature to repeal the earlier

enactment. Implied repeals based on silence allow such unauthorized repeals. (Zamudio,

supra, 23 Cal.4th at p. 199.)

Ortiz argues that our conclusion effectively tells the Legislature how to express its

intent in enacting statutes, which is not our province. Ortiz relies on People v. Lopez

(2022) 12 Cal.5th 957 (Lopez), where our Supreme Court applied the following principle:

“In cases concerning the presumption favoring retroactivity of ameliorative changes to

the criminal law, we have said that case law ‘do[es] not “dictate to legislative drafters the

forms in which laws must be written” to express an intent to modify or limit the

retroactive effect of an ameliorative change; rather, they require “that the Legislature

44

demonstrate its intention with sufficient clarity that a reviewing court can discern and

effectuate it.” ’ ” (Id. at p. 968.)

We are not telling the Legislature how to express its intent. Nor are we requiring

an express statement of legislative intent to partially repeal Vehicle Code section 23640

to rebut the presumption against implied repeal. (State Dept., supra, 60 Cal.4th at

pp. 955-956.) We are, however, requiring that the Legislature demonstrate its intent to

repeal Vehicle Code section 23640 with sufficient clarity so that we could discern and

effectuate it. (Lopez, supra, 12 Cal.5th at p. 968; Zamudio, supra, 23 Cal.4th at p. 199;

Western Oil, supra, 49 Cal.3d at p. 420.) Here, the Legislature did not express its intent

to repeal Vehicle Code section 23640 with sufficiently clarity to rebut the presumption

against finding an implied repeal of Vehicle Code section 23640, given that the record

shows that the Legislature did not consider partially repealing Vehicle Code section

23640 when it enacted Penal Code section 1001.95.

Lastly, we observe that, if Vehicle Code section 23640 and Penal Code

section 1001.95 were irreconcilably conflicting, as Ortiz maintains, then, and given the

lack of any clear indication of a legislative intent to partially repeal the older statute, the

older statute would prevail because it is the more specific on the subject of whether

misdemeanor DUI charges are eligible for diversion under the misdemeanor diversion

statute, Penal Code section 1001.95. “ ‘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

45

trumps the rule that later-enacted statutes have precedence.” (State Dept., supra,

60 Cal.4th at pp. 960-961; Agric. Labor Relations Bd. v. Superior Court (1976) 16 Cal.3d

392, 420; People v. Gilbert (1969) 1 Cal.3d 475, 479; In re Williamson (1954) 43 Cal.3d

651, 654; Code Civ. Proc., § 1859.)

Tan noted that the specific versus general canon did not apply because the statutes

could be harmonized. (Tan, supra, 76 Cal.App.5th at p. 143.) Grassi noted that the

application of the specific verses general canon had led to varying results in the prior case

law concerning the conflicts or potential conflicts between Vehicle Code section 23640

and other diversion statutes, and the canon was unhelpful in resolving the potential

conflict between Vehicle Code section 23640 and Penal Code section 1001.95 because,

as in the prior cases, “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 [“Like

the legislative history, the canons of statutory construction are of no assistance here.”].)

The application of the canon here does not depend on an arbitrary choice of focus.

In the prior cases, the diversion statutes in question authorized diversion for specific

persons. (§§ 1001.21 [persons with developmental disabilities], 1001.80 [U.S. military

members], and 1001.36 [persons suffering from qualifying mental health disorders.)

Penal Code section 1001.95 differs from these diversion statutes, in that it authorizes

diversion, not for specific groups of persons, but for anyone being prosecuted for “a

misdemeanor” except certain misdemeanors. (§ 1001.95, subds. (a), (e).) Vehicle Code

23640 bars diversion for anyone being prosecuted specifically for a misdemeanor DUI

offense. Thus, Vehicle Code section 23640 is the more specific statute on the subject of

46

whether misdemeanor DUI charges are eligible for diversion under Penal Code section

1001.95. (See Weatherill, supra, 215 Cal.App.4th at p. 1577-1578.)

C. The Rule of Lenity Does Not Apply

Ortiz claims the rule of lenity requires us to interpret Penal Code section 1001.95

as permitting pretrial diversion for misdemeanor DUI charges. Ortiz claims, “if there is

any ambiguity in Penal Code section 1001.95, it must be construed to permit eligibility

for DUI defendants.” Under the rule of lenity, “[w]hen language which is susceptible of

two constructions is used in a penal law, the policy of this state is to construe the statute

as favorably to the defendant as its language and the circumstance of its application

reasonably permit. The defendant is entitled to the benefit of every reasonable doubt as

to the true interpretation of words or the construction of a statute.” (People v. Overstreet

(1986) 42 Cal.3d 891, 896.)

Thus, “when ‘two reasonable interpretations of the same provision stand in

relative equipoise, i.e., . . . resolution of the statute’s ambiguities in a convincing manner

is impracticable,’ we construe the provision most favorably to the defendant.” (People v.

Hernandez (2003) 30 Cal.4th 835, 869, overruled in part on other ground.) Further,

[“t]he rule of lenity does not apply every time there are two or more reasonable

interpretations of a penal statute. [Citation.] Rather, the rule 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.” ’ [Citation] In

other words, ‘the rule of lenity is a tie-breaking principle, of relevance when “ ‘ two

47

reasonable interpretations of the same provision stand in relative equipoise . . . .’ ” ’ ”

(People v. Manzo (2012) 53 Cal.4th 880, 889.)

The rule of lenity does not apply here because Penal Code section 1001.95 is

unambiguous, and no two reasonable interpretations of the statute stand in relative

equipoise. As discussed, the statute can reasonably be harmonized with Vehicle Code

section 23640 to prohibit diversion for misdemeanor DUI charges. And, given that the

record does not clearly and unequivocally show that the Legislature intended to partially

repeal Vehicle Code section 23640 when it enacted Penal Code section 1001.95, this

prohibits us from finding an implied, partial repeal of Vehicle Code section 23640 in the

enactment of Penal Code section 1001.95. (State Dept., supra, 60 Cal.4th at p. 955;

Western Oil, supra, 49 Cal.3d at p. 420.) Rather, we maintain the integrity of both

statutes by construing Vehicle Code section 23640 as prohibiting pretrial diversion for

misdemeanor DUI charges under Penal Code section 1001.95. (Western Oil, at p. 419.)

V.

Let a writ of mandate issue, directing the superior court to vacate its order granting

respondent Ortiz pretrial diversion on misdemeanor charges of violating Vehicle Code

section 23152, subdivisions (a) and (b), and to enter a new order denying respondent

Ortiz pretrial diversion on her misdemeanor DUI charges under Penal Code section

1001.95.

48

Petitioner is directed to prepare and have a writ of mandate issued, copies served,

and the original filed with the clerk of this court, together with proofs of service on all

parties.

CERTIFIED FOR PUBLICATION

FIELDS

Acting P.J.

I concur:

RAPHAEL

J.

49

[People v. Superior Court (Ortiz), E077594]

RAPHAEL, J., Concurring.

In my view, the way to read these two statutes together is by applying the principle

that a specific statement from the Legislature typically controls over a conflicting general

statement.

This is, first, how we naturally read language. If one park sign states, “food and

drinks allowed” and one next to it states, “no alcoholic beverages,” their language

technically conflicts as to whether a parkgoer can open a bottle of wine. But any

picnicker understands the signs as meaning that they cannot do so. One sign gives a

general green light to eating and drinking, and the other prohibits some specific items.

Their commands technically conflict, but we easily read them together, understanding

that they express different levels of intent about what is allowed in the park.

This likewise is the natural reading of the two statutes here. One statute broadly

allows courts to offer diversion for “a misdemeanor,” with four listed exceptions that do

not include driving under the influence (DUI). (Pen Code § 1001.95 (section 1001.95).)

The other statute prohibits courts from offering diversion in “any case” in which a person

is charged with a DUI. (Veh. Code § 23640 (section 23640; other undesignated sections

are to the Penal Code).)

As with the parkgoer, the natural reading reconciles these two statutes just as Code

of Civil Procedure section 1859 says it should: “when a general and [a] particular

provision are inconsistent, the latter is paramount to the former. So a particular intent

1

will control a general one that is inconsistent with it.”1 In this case, the Legislature has

spoken specifically to preclude diversion in “any” DUI case, which evinces a “particular

intent” that is “paramount” to the statute that shows a “general one” allowing

misdemeanor diversion. (Code Civ. Proc., § 1859.) I would refer to this as the “specific-

over-general” canon of construction.2

The specific-over-general canon is especially appropriate for interpreting

democratically enacted statutes. We know that the Legislature enacting section 23640

voted to prohibit DUI diversion in any case, which means we know that Legislature’s

intent for this case. We do not know how many legislators who generally authorized

misdemeanor diversion by voting for section 1001.95 intended to eliminate the DUI

diversion prohibition for this case. What would have happened if the bill’s proponents

1 I disagree with the dissent’s view that whether the general statement includes

the word “all” determines how we read a conflicting specific statement. Rather, the

natural reading comes from comprehending a general and specific intent. If one

pandemic sign says “All Persons Must Wear Masks” and another nearby states “Masks

Not Required for Children Under Two” we read the second as governing babies, even

though they are persons covered under the first sign alone. If the first sign said simply

“Masks Required,” our reading would follow the same logic. My view is that if ordinary

readers were given the two laws in this case, they would have no trouble reconciling them

in favor of the specific DUI diversion prohibition. That would hold true if told (counter-

factually) that the DUI prohibition was later-enacted. The trouble that the Court of

Appeal has had with these two statutes originates not with the words in the laws, but with

the extra-textual knowledge that the general diversion statute was later-enacted.

2 At its deep legal roots, the specific-over-general canon was referred to as the

rule “generalia specialibus non derogant.” (Ex Parte Crow Dog (1883) 109 U.S. 556,

570.) Common law cases explained that its reason is “‘that the legislature having had its

attention directed to a special subject . . . does not intend, by a general enactment

afterwards, to derogate from its own act when it makes no special mention of its intention

to do so.’” (Id. at pp. 570-571.)

2

had added to section 1001.95 a specific statement that section 23640 does not apply?

Would the legislation have lost enough votes to doom it? Did the proponents keep the

statute silent as to DUI for that reason, allowing members to maintain varying views on

whether they were partially repealing section 23640? We cannot know. But a specific

statutory command should be met with a specific repeal. If we fail to require a specific

expression of legislative intent to repudiate one that the Legislature has already expressed

specifically, we allow one legislative session’s vague or general intent to overcome

another legislative session’s specific one. And we encourage proponents of a law to

muster a difficult majority to repeal a law by staying vague, hoping the courts will

complete the work that they might not accomplish by a vote on specific statutory text.

Importantly, our Supreme Court has stated that for the specific-over-general

canon, it does not matter which provision was enacted first: “‘It 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.’” (In re Williamson

(1954) 43 Cal.2d 651, 654 (Williamson).)3 Not unlike in this case, our Supreme Court

has held that a statute criminalizing a particular type of conspiracy was more specific

3 When our Supreme Court recently applied the specific-over-general canon in

Stoetzl v. Department of Human Resources (2019) 7 Cal.5th 718, 748, it stated that a

more specific statute “must prevail to the extent of a conflict.” In State Dept. of Public

Health v. Superior Court (2015), 60 Cal.4th 940, 960, the Court reiterated that “the rule

that specific provisions take precedence over more general ones trumps the rule that later-

enacted statutes have precedence [over earlier ones].”

3

(and thus the exclusive way to charge a crime) than one that generally criminalized all

conspiracies. (Id. at pp. 654-655.)

The cases that have decided our issue have rejected the specific-over-general

canon with the astute observation that, given two conflicting statutes, “depending on

one’s arbitrary choice of focus, either could be construed as the more specific.” (Grassi

v. Superior Court (2021) 73 Cal.App.5th 283, 307 (Grassi); Tan v. Superior Court (2022)

76 Cal.App.5th 130, 143.) There is a choice of focus whenever a purportedly specific

statute is not entirely a subset of the general one. The “choice of focus,” however, is not

arbitrary here, and that also is not our Supreme Court’s test for the canon’s application.

This case does not present an arbitrary choice as to which statute is general and

which is specific. Section 1001.95 broadly authorizes diversion for dozens of

misdemeanor statutes based on a sweeping rule, without listing each crime particularly.

That includes familiar misdemeanors dealing with simple assault and battery; burglary;

petty theft or shoplifting; checks and access cards; counterfeiting; drug offenses;

domestic violence; indecent exposure; child abuse or endangerment; obscene matter;

lewd conduct; prostitution; public drunkenness; liquor law violations; disorderly conduct;

disturbing the peace; graffiti; vandalism; trespassing; weapons offenses; hit and run;

driving on a suspended license; reckless driving; and gambling. There also are an

assortment of more obscure misdemeanors, including, among others, misdirecting a taxi

customer to a hotel different from the one requested (Pen. Code § 649); installing two-

4

way mirrors in locker rooms (Pen. Code § 653n), and selling an endangered animal or its

body part or product (Pen. Code § 653r). Few statutes are more general than this one.

Yet section 23640 carves out only two of this compendium of statutes, and it

identifies them in particular: the DUI crimes defined by Vehicle Code sections 23152

and 23153. Looked at in this way, it is hard to escape the conclusion that the prohibition

on DUI diversion is specific, while the authorization of diversion for misdemeanors is

general. One statute applies to a broad and unlisted set of crimes—more than we can

easily count—and another applies to just two identified ones in that set. Does anyone

really think the DUI diversion prohibition is more general?

In any event, where the conduct covered by the specific statute is not entirely a

subset of the general statute, our Supreme Court’s test for determining whether the canon

applies is not whether we can imagine different focal points to construe the statutes as

specific or general. The Court has rejected that by stating “‘[i]t is not correct’” that the

canon “‘is inapplicable whenever the general statute contains an element not found within

the four corners’” of the specific statute. (People v. Murphy (2011) 52 Cal.4th 81, 87.)

Rather, the test is whether “‘it appears from the entire context that a violation of the

“special” statute will necessarily or commonly result in a violation of the “general”

statute.’” (Ibid.; People v. Walker (2002) 29 Cal.4th 577, 585; People v. Jenkins (1980)

5

28 Cal.3d 494, 502 [test is “necessarily or commonly result” rather than whether the

specific statute “mirrored” the general one’s elements].)4

These statutes readily satisfy that test. By the terms of the Vehicle Code, the vast

majority of DUIs are misdemeanors: in many situations, a person’s first three DUI

convictions within a ten-year period are all misdemeanors. (See Veh. Code § 23546.)

Thus, from the face of the statute, conduct covered by the DUI statutes “necessarily or

commonly” is covered by the general misdemeanor statute as well. That is also the case

in experience. In 2020, about 96% of California DUI arrests were misdemeanor arrests.5

Finally, I recognize that the specific-over-general canon might in theory be

overcome by an adequate showing of legislative intent from legislative history. But

normally we rely on legislative history simply to construe the most appropriate meaning

of a statutory term. We typically discern the best application of the enacting legislature’s

intention. Here, in contrast, we must look for an acceptable showing that, despite not

enacting statutory text that abrogated section 23640, the Legislature intended to do so.

We have a countervailing statutory concern and a countervailing intent that we must

honor: the earlier Legislature enacted its intention to preclude DUI diversion into law.

4 The Court of Appeal has regularly applied the “necessarily or commonly” test to

discern legislative intent when criminal conduct falls under two statutes, one arguably the

specific one that governs. (See, e.g., People v. Joseph (2019) 33 Cal.App.5th 943, 956-

957 [as to filing a false stolen vehicle report, Veh. Code § 10501 is a specific statute and

Pen. Code § 118 (perjury) the general statute]; People v. Henry (2018) 28 Cal.App.5th

786, 796-797 [as to signing with a false name, Veh. Code § 40504, subd. (b) is a specific

statute and Pen. Code § 529 (impersonation) the general statute].)

5 The state Department of Justice’s 2020 crime report shows 4,245 DUI felony

arrests and 92,048 DUI misdemeanor arrests, for a total of 96,293 DUI arrests. (Crime in

California 2020 (2021) California Department of Justice, pp. 44, 46-48.)

6

That is why when there is no express declaration of legislative intent to repeal an earlier

law, we may find an implied repeal “only when there is no rational basis for harmonizing

the two potentially conflicting statutes, and the statutes are irreconcilable, clearly

repugnant, and so inconsistent that the two cannot have concurrent operation.”

(Tuolumne Jobs & Small Business Alliance v. Superior Court (2014) 59 Cal.4th 1029,

1039 [cleaned up].)

The prior legislature’s intention was enacted into statutory law, yet the analyses of

section 1001.95 prepared for the legislators contain no mention of section 23640, nor

even of DUI diversion. There appears to be not a single statement from any supporter of

the bill concerning DUI diversion or section 23640. We have some “floor alerts” and

other statements from the opponents of the bill that suggest that DUI will be covered, but

use of the arguments of those trying to defeat a bill is a weak way to prove the intent of

its supporters. Such opposing statements might be offered even if the proponents kept

vague their intention as to section 23640, knowing they disagreed as to their intent about

the applicability of that law, to gain a majority for their bill.

Our Legislature as recently as 2017 showed it is easy to draft a statutory provision

that allows diversion for DUIs despite section 23640. It enacted Penal Code section

1001.80, subdivision (l), which authorized misdemeanor diversion for the military

“notwithstanding” section 23640. Yet three years later, the proponents of section

1001.95 not only included no such clause in the statute, but they kept silent about DUI

diversion and section 23640 in their bill analyses and floor statements. Why not include

7

the same “notwithstanding” clause in section 1001.95, if the Legislature intended as

much? Why not at least refer in the official bill analyses to a view that the statute

authorizes DUI diversion despite section 23640, if they believed that? One answer may

be that expressly authorizing diversion for any California DUI misdemeanor—with no

restrictions due to recidivism or gravity of the DUI, and with no required conditions to

deter recurrence— is politically tough to enact. Section 23640 doesn’t incapacitate

today’s Legislature, but it requires it to face the issue of whether it wants DUI diversion

and, if so, how. So long as the Legislature’s specific section 23640 prohibition remains

on the books, we do the democratic process no favors by allowing a general statement

and (possibly tactical) silence to suffice to countermand it.

While I join the opinion, I believe the principle that a specific statement trumps a

general one is the way to reconcile these two statutes. And we should apply that canon,

as our Supreme Court often has, because it provides the Legislature with a default rule

that indicates that if it wishes to partially repeal a statute, it had best make that intention

express through the words of the statute. That’s what its predecessor Legislature did in

enacting the earlier law.

RAPHAEL

J.

8

[P. v. Superior Court of Riverside County; Jessica Ortiz, E077954]

MENETREZ, J., Dissenting.

Vehicle Code section 23640 prohibits diversion for both felony and misdemeanor

driving under the influence (DUI). Penal Code section 1001.95 authorizes diversion for

all misdemeanors subject to a short list of ineligible offenses, and DUIs are not on the

list. (Unlabeled statutory citations refer to the Penal Code.) Thus, section 1001.95 and

Vehicle Code section 23640 at least appear to conflict. The question presented in this

case is whether, given that apparent conflict, misdemeanor DUIs are eligible for diversion

under section 1001.95.

I conclude that they are, for the following reasons: The statutes irreconcilably

conflict, because they are unambiguous and Vehicle Code section 23640 prohibits what

section 1001.95 permits. The statutes therefore cannot be harmonized, i.e., they cannot

be interpreted in such a way as to resolve the conflict while giving full effect to both

statutes. Neither statute is more specific than the other—section 1001.95 is specific to

misdemeanors, and Vehicle Code section 23640 is specific to DUIs. Section 1001.95

therefore controls because it was enacted later. The legislative history is entirely in

accord. It contains ample evidence that the Legislature intended section 1001.95 to

authorize diversion for misdemeanor DUIs, and it contains no evidence to the contrary.

People v. Superior Court (Diaz-Armstrong) 67 Cal.App.5th Supp. 10 (Diaz-Armstrong)

agrees.

The majority and concurring opinions disagree. In so doing, they reach the same

conclusion as Grassi v. Superior Court (2021) 73 Cal.App.5th 283 (Grassi), Tan v.

1

Appellate Division of Superior Court (2022) 76 Cal.App.5th 130 (Tan), Islas v. Appellate

Division of Superior Court (2022) 78 Cal.App.5th 1104 (Islas), and People v. Superior

Court (Espeso) (2021) 67 Cal.App.5th Supp. 1 (Espeso). Like all four of those cases, the

majority and concurring opinions conclude that section 1001.95 and Vehicle Code

section 23640 can be harmonized by interpreting section 1001.95 as authorizing diversion

for all misdemeanors except those listed as ineligible in section 1001.95 and DUIs.

It is important to be clear about the nature of that holding. The majority and

concurring opinions and similar cases do not hold that section 1001.95 authorizes

diversion for misdemeanor DUIs but is overridden by Vehicle Code section 23640’s ban

on diversion for all DUIs. Rather, they hold that section 1001.95, when properly

interpreted, does not authorize diversion for misdemeanor DUIs in the first place. As a

result, the initial appearance of conflict between section 1001.95 and Vehicle Code

section 23640 turns out to be illusory. In reality, there is no conflict at all.

That distinction—between harmonizing the statutes, on the one hand, and

recognizing an irreconcilable conflict and deciding which statute trumps, on the other—is

crucial, because it decisively shapes the rest of the analysis. If we are harmonizing the

statutes, then our interpretation must be guided by the rule that “‘[a]ll presumptions are

against a repeal by implication.’” (Garcia v. McCutchen (1997) 16 Cal.4th 469, 476.)

That rule will lead us to make every effort to interpret the newer statute in such a way as

to leave the older statute undisturbed. But if I am right that the statutes cannot be

harmonized, then our analysis is governed by the opposite rule, that the newer statute is

controlling.

2

The same distinction will similarly influence our review of the legislative history.

If we believe the statutes can be harmonized, then the presumption against implied repeal

will lead us to try to explain away any evidence that the Legislature intended such a

repeal. But if we believe the statutes irreconcilably conflict and we are just trying to

figure out which statute the Legislature intended to be paramount, then our analysis of the

legislative history will not be dominated by a bias in favor of the older statute.

In Part 1 of this dissent, I describe the applicable doctrinal framework. In Part 2, I

argue that section 1001.95 and Vehicle Code section 23640 irreconcilably conflict. In

Part 3, I explain why section 1001.95 controls over Vehicle Code section 23640. Part 4

addresses the case law, Part 5 addresses the majority opinion, and Part 6 addresses the

concurrence.

Having comprehensively surveyed the analyses contained in the case law and in

today’s opinions, I have yet to find a meritorious argument for the conclusion that section

1001.95 and Vehicle Code section 23640 can be harmonized or that misdemeanor DUIs

are ineligible for diversion under section 1001.95. I therefore respectfully dissent.

1. Legal Framework

When deciding how to apply two statutes that appear to conflict, we apply the

following framework: “‘“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. [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

3

“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.]

“But 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. [Citation.] The cases in which [the Supreme Court has] harmonized

potentially conflicting statutes involve choosing one plausible construction of a statute

over another in order to avoid a conflict with a second statute. [Citations.] This canon of

construction, like all such canons, does not authorize courts to rewrite statutes.” (State

Dept. of Public Health v. Superior Court (2015) 60 Cal.4th 940, 955-956 (State Dept. of

Public Health).)

If there is an actual (rather than merely apparent) conflict between two statutes—

that is, they cannot be interpreted in such a way as to give full effect to both—then they

cannot be harmonized, and “one must be interpreted as providing an exception to the

other.” (State Dept. of Public Health, supra, 60 Cal.4th at p. 956; id. at p. 958 [rejecting

the lower court’s “harmonization efforts” because they “did not give full effect” to the

statutes at issue]; Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses,

4

LLC (2015) 61 Cal.4th 830, 838 (Even Zohar) [harmonizing two statutes by adopting “a

reasonable construction that gives full effect to both”].) “The rules we must apply when

faced with two irreconcilable statutes are well established. ‘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. of Public Health, at pp. 960-961.)

To summarize: There is a strong presumption against implied repeal.

Consequently, if we can interpret two seemingly conflicting statutes in such a way as to

resolve the apparent conflict while giving full effect to both statutes, then we must do so,

thereby harmonizing them. But we cannot rewrite the statutes in order to achieve that

result, either to avoid an implied repeal or for any other reason.

If the two statutes cannot be interpreted so as to resolve the conflict while giving

full effect to both, then we must determine which one is an exception to the other. In

doing so, we are no longer guided by the presumption against implied repeal. Rather, the

later-enacted or more specific statute takes precedence, and in case of a conflict between

those two canons, the more specific statute is controlling. Moreover, our overarching

goal is to give effect to the Legislature’s intent. (State Dept. of Public Health, supra, 60

Cal.4th at p. 961 [“‘[O]ur goal is to discern the probable intent of the Legislature so as to

effectuate the purpose of the laws in question’”].)

5

2. Section 1001.95 and Vehicle Code Section 23640 Conflict and Cannot Be

Harmonized

“[Vehicle Code] section 23640 bars diversion in DUI cases. [Citation.] The

statute has been the law since 1981. [Citation.] In relevant part, it states that ‘[i]n any

case in which a person is charged with’ violating Vehicle Code section 23152 (for DUI)

or 23153 (for DUI causing bodily injury), the court shall not suspend, stay, or dismiss the

proceedings ‘for the purpose of allowing the accused person to attend or participate . . . in

any one or more education, training, or treatment programs.’ (Veh. Code, § 23640, subd.

(a).)” (Tellez v. Superior Court (2020) 56 Cal.App.5th 439, 443 (Tellez), fn. omitted.)

Section 1001.95 provides for pretrial diversion for all misdemeanors, subject to a

short list of exceptions that does not include DUIs. Subdivision (a) of section 1001.95

provides as follows: “A judge in the superior court in which a misdemeanor is being

prosecuted may, at the judge’s discretion, and over the objection of a prosecuting

attorney, offer diversion to a defendant pursuant to these provisions.” The provisions of

section 1001.95 include subdivision (e), which provides that “[a] defendant may not be

offered diversion pursuant to this section for” registrable sex offenses, domestic violence,

and stalking. Section 1001.95 does not exclude any other misdemeanors from diversion.

Both statutes are unambiguous, and they directly conflict. Vehicle Code section

23640 unambiguously prohibits diversion for all DUIs, including misdemeanor DUIs.

Subdivision (a) of section 1001.95 unambiguously authorizes diversion for all

misdemeanors “pursuant to these provisions,” the only provision of section 1001.95

identifying any exceptions is subdivision (e), and DUIs are not listed in subdivision (e).

6

There is no way to interpret the language of either statute so as to resolve that conflict.

One statute unambiguously prohibits what the other statute unambiguously permits.

There are a couple of ways to see that there is an actual, rather than merely

apparent, conflict between the statutes and that they therefore cannot be harmonized.

One way is to consider related case law. In Hopkins v. Superior Court (2016) 2

Cal.App.5th 1275 (Hopkins), the court addressed the apparent conflict between Vehicle

Code section 23640 and the then-new military diversion program under section 1001.80.

(Hopkins, supra, at pp. 1278-1279.) At that time, section 1001.80 provided 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.” (Hopkins, at p. 1282, italics omitted.) Section

1001.80 authorized the court to order diversion for a defendant who met the requirements

of the statute. (Hopkins, at p. 1282.) The Hopkins court concluded that “[t]here 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.” (Ibid.) Because Vehicle Code section 23640 “is equally unambiguous” in its

prohibition of diversion for DUIs (Hopkins, at p. 1282), the statutes “cannot be reconciled

with respect to defendants in DUI cases who meet the stated criteria under section

1001.80.” (Id. at p. 1283.)

The court rejected the People’s contention that the statutes could be harmonized

by limiting section 1001.80 to non-DUI misdemeanors. (Hopkins, supra, 2 Cal.App.5th

7

at p. 1282.) The court explained, “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.’” (Ibid.)1

This court’s opinion in Tellez employed identical analysis and reached the same

conclusion. Tellez addressed the apparent conflict between Vehicle Code section 23640

and mental health diversion under section 1001.36. (Tellez, supra, 56 Cal.App.5th at

p. 442.) Section 1001.36 authorizes diversion for “a defendant” who is charged with “a

misdemeanor or felony offense” if the defendant has “a mental disorder” and meets

certain eligibility criteria. (§ 1001.36, subds. (a), (b)(1)(A).) The statute also includes a

short list of charges that are not eligible for diversion, but DUIs are not among them.

(Id., subd. (b)(2).) Tellez concluded that Vehicle Code section 23640 and section

1. Less than one month before Hopkins was decided, another court reached the

opposite conclusion, holding that diversion under section 1001.80 was not available for

DUIs. (People v. VanVleck (2016) 2 Cal.App.5th 355, 365 (VanVleck).) The doctrinal

basis for that conclusion was not entirely clear. On the one hand, the court stated that it

“reconcile[d] the conflict” between the two statutes. (Id. at p. 363.) On the other hand,

the court followed State Dept. of Public Health’s guidance for how to proceed “‘“[i]f

conflicting statutes cannot be reconciled.”’” (VanVleck, supra, at p. 365.) The court

ultimately concluded that Vehicle Code section 23640 was controlling because it was

more specific than section 1001.80. (VanVleck, at p. 365.) The Supreme Court granted

review in both Hopkins and VanVleck. (Hopkins, supra, 2 Cal.App.5th 1275, review

granted Nov. 16, 2016, S237734; VanVleck, 2 Cal.App.5th 355, review granted Nov. 16,

2016, S237219.) But before the Supreme Court decided either case, the Legislature

amended section 1001.80 to provide that military diversion is available for DUIs

“[n]otwithstanding any other law, including section 23640 of the Vehicle Code.”

(§ 1001.80, subd. (l).)

8

1001.36 “are unambiguous in their plain language: One clearly prohibits diversion for

defendants charged with DUI offenses, and the other just as clearly allows mental health

diversion for any defendant who meets the minimum eligibility requirements (and who is

not charged with a disqualifying offense). When it comes to DUI offenses, Vehicle Code

section 23640 prohibits a court from doing what [section 1001.36] permits.” (Tellez, at

p. 444.) We concluded that “[t]he two ‘statutes are in conflict and thus one must be

interpreted as providing an exception to the other.’” (Ibid.)

For purposes of analyzing the conflict with Vehicle Code section 23640, there is

no material difference between the language of section 1001.80 (addressed in Hopkins),

the language of section 1001.36 (addressed in Tellez), and the language of section

1001.95. Under section 1001.80, “a court” is authorized to order diversion for a qualified

defendant charged with “a misdemeanor.” Under section 1001.36, diversion is

authorized for “a defendant” charged with “a misdemeanor or felony,” subject to a short

list of exceptions that does not include DUIs. Under section 1001.95, “[a] judge” is

authorized to order diversion for “a defendant” charged with “a misdemeanor,” again

subject to a short list of exceptions that does not include DUIs. Thus, just as Hopkins and

Tellez identified an actual, irreconcilable conflict between Vehicle Code section 23640,

on the one hand, and sections 1001.80 and 1001.36, on the other, there is also an actual,

irreconcilable conflict between Vehicle Code section 23640 and section 1001.95.

Hopkins and Tellez are impossible to distinguish from the present case in that respect.

Vehicle Code section 23640 unambiguously prohibits what section 1001.80, section

1001.36, and section 1001.95 unambiguously permit.

9

Another way to see that there is an actual, rather than merely apparent, conflict

between the statutes and that they therefore cannot be harmonized is to consider the

following hypothetical: Suppose that the chronology were reversed, with section 1001.95

enacted before Vehicle Code section 23640. In that case, after the enactment of section

1001.95 but before the enactment of Vehicle Code section 23640, it would be beyond

dispute that section 1001.95 unambiguously authorizes diversion for misdemeanor DUIs.

By authorizing diversion for “a defendant” charged with “a misdemeanor,” it

unambiguously authorizes diversion for all misdemeanors, subject to a list of exceptions.

DUIs are not on the list of exceptions, so the statute unambiguously authorizes diversion

for misdemeanor DUIs. Later, after the enactment of Vehicle Code section 23640, no

one would claim that the statutes could be harmonized—section 1001.95 unambiguously

authorizes diversion for misdemeanor DUIs, and Vehicle Code section 23640

unambiguously prohibits it. No one would claim that now that Vehicle Code section

23640 has been enacted and we consider it together with section 1001.95, we are able to

perceive an ambiguity in section 1001.95 that we had not seen before, so perhaps it does

not authorize diversion for misdemeanor DUIs after all. There is no such ambiguity.

For all of the foregoing reasons, I conclude in accord with Hopkins and Tellez that

there is an actual, rather than merely apparent, conflict between Vehicle Code section

23640 and section 1001.95. Both statutes are unambiguous. One prohibits what the

other permits. They therefore cannot be harmonized.

10

3. Neither Statute Is More Specific, Section 1001.95 Was Enacted Later and

Therefore Controls, and the Legislative History Is Uniformly in Accord

Because Vehicle Code section 23640 and section 1001.95 conflict and cannot be

harmonized, we must determine which statute is an exception to the other. Again, under

State Dept. of Public Health, a more specific statute controls over a more general one, a

later statute controls over an earlier one unless the earlier one is more specific, and our

overarching goal is to give effect to the Legislature’s intent. (State Dept. of Public

Health, supra, 60 Cal.4th at pp. 960-961; see also Tellez, supra, 56 Cal.App.5th at

pp. 444-449 [holding that because of certain unique aspects of the legislative history of

§ 1001.36, it does not control over Veh. Code, § 23640 even though § 1001.36 was

enacted later and neither statute is more specific than the other].)

Here, neither statute is more specific than the other. Vehicle Code section 23640

applies only to DUIs, so in that sense section 1001.95 is more general, because it applies

to both misdemeanor DUIs and other misdemeanors. But section 1001.95 applies only to

misdemeanors, so in that sense Vehicle Code section 23640 is more general, because it

applies to both misdemeanor DUIs and felony DUIs. Thus, “unless we are prepared to

make an arbitrary choice of focus”—that is, arbitrarily focusing on the distinction

between misdemeanor DUIs and other misdemeanors or on the distinction between

felony DUIs and misdemeanor DUIs—“the general-versus-specific rule of statutory

construction gets us nowhere.” (Hopkins, supra, 2 Cal.App.5th at p. 1284.)

Until today, every published Court of Appeal opinion concerning the conflict

between Vehicle Code section 23640 and section 1001.95 had reached the same

11

conclusion. (Grassi, supra, 73 Cal.App.5th at pp. 306-307; Tan, supra, 76 Cal.App.5th

at p. 143; Islas, supra, 78 Cal.App.5th at p. 1109.) One published decision of the

Appellate Division of the Superior Court agreed as well. (Diaz-Armstrong, supra, 67

Cal.App.5th at p. Supp. 22.) (Another did not address the issue. (Espeso, supra, 67

Cal.App.5th at p. Supp. 1).) This court came to the same conclusion concerning Vehicle

Code section 23640 and section 1001.36. (Moore v. Superior Court (2020) 58

Cal.App.5th 561, 580 & fn. 10 (Moore).) And Hopkins reached the same conclusion

concerning Vehicle Code section 23640 and section 1001.80. (Hopkins, supra, 2

Cal.App.5th at pp. 1282-1284.)2

Because neither statute is more specific than the other, the later-enacted statute is

controlling unless some other indicator of legislative intent demonstrates the contrary.

(State Dept. of Public Health, supra, 60 Cal.4th at pp. 960-961; Tellez, supra, 56

Cal.App.5th at p. 444; see Lewis v. Ryan (1976) 64 Cal.App.3d 330, 334.) Section

1001.95 is therefore controlling because it is the later-enacted statute, and there is no

evidence of a contrary legislative intent. In fact, the legislative history uniformly tends to

2. VanVleck concluded that Vehicle Code section 23640 is more specific than section

1001.80, so Vehicle Code section 23640 is controlling even though section 1001.80 was

enacted later. (VanVleck, supra, 2 Cal.App.5th 365.) VanVleck derived its analysis from

People v. Weatherill (1989) 215 Cal.App.3d 1569 (Weatherill), which concerned Vehicle

Code section 23640 and a diversion program for developmentally disabled defendants.

(VanVleck, at p. 365.) The dissent in Weatherill, however, argued that neither statute was

more specific than the other (Weatherill, supra, at p. 1582 (dis. opn. of Johnson, J.)), and

subsequent opinions in this area have adopted the dissent’s analysis (Grassi, supra, 73

Cal.App.5th at pp. 306-307; Tan, supra, 76 Cal.App.5th at p. 143; Islas, supra, 78

Cal.App.5th at p. 1109; Diaz-Armstrong, supra, 67 Cal.App.5th at p. Supp. 22; Hopkins,

supra, 2 Cal.App.5th at pp. 1283-1284).

12

show that the Legislature intended to allow diversion for all misdemeanors other than the

exceptions listed in section 1001.95 and that it intended to allow diversion for DUIs in

particular.

The case law and the majority opinion extensively describe the legislative history,

so there is no need to repeat all of it here. Rather, the following points are sufficient:

Section 1001.95 was created by Assembly Bill No. 3234 (2019-2020 Reg. Sess.). The

bill’s original version of section 1001.95 did not exclude any misdemeanors from

diversion. (Grassi, supra, 73 Cal.App.5th at p. 301.) The Assembly floor analysis for

that version of the bill described the limitations of already-existing misdemeanor

diversion programs: In addition to imposing certain eligibility requirements on

defendants, “[e]xisting misdemeanor diversion has a number of exclusions,” such as

“certain Vehicle Code offenses.” The floor analysis explained that the new misdemeanor

diversion program under section 1001.95 would not be so limited: “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 No. 3234 (2019-

2020 Reg. Sess.) as amended Aug. 3, 2020.)

The bill was amended on August 24, 2020, to exclude the offenses listed in

subdivision (e) of section 1001.95. The Assembly floor analysis for the amended bill

accordingly explained that section 1001.95 “[a]uthorizes a superior court judge to offer

diversion to a person charged with a misdemeanor over the objection of a prosecuting

attorney, except that a defendant may not be offered diversion for any of the” offenses

13

listed in subdivision (e). The discussion in the previous floor analysis of the differences

between prior misdemeanor diversion programs and section 1001.95 was carried over

into the new floor analysis. It stated that “certain Vehicle Code offenses” were excluded

under existing misdemeanor diversion and that “[u]nlike 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 No. 3234 (2019–2020 Reg. Sess.) as

amended Aug. 24, 2020.)

The Senate Floor Analysis for the final version of Assembly Bill No. 3234 was

similar. It too stated that “[u]nlike 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.” At the same time, it acknowledged that the

misdemeanors listed in subdivision (e) of section 1001.95 “cannot be diverted.” (Sen.

Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Assem. Bill No. 3234, as

amended Aug. 24, 2020.)

The Orange County District Attorney and the California District Attorneys

Association issued floor alerts opposing the bill on various grounds, including that it

would allow diversion for DUIs. (See maj. opn., ante, at pp. 37-38.) During floor

debates in both houses, certain individual legislators likewise opposed the bill because it

would allow diversion for DUIs. (Id. at pp. 38-39.) No legislator, floor analysis, or

advocacy organization ever asserted that the bill would not allow diversion for DUIs,

either because of Vehicle Code section 23640 or for any other reason.

14

To summarize: As originally drafted, section 1001.95 had no exceptions, and the

floor analysis confirmed that no misdemeanors were excluded, in contrast to already-

existing misdemeanor diversion, which excluded certain Vehicle Code offenses and other

crimes. The exceptions in subdivision (e) of section 1001.95 were then added by

amendment, and subsequent floor analyses acknowledged the change while carrying over

the prior statements that no misdemeanors were excluded. The district attorneys and

individual legislators opposed the bill because section 1001.95 would allow diversion for

DUIs, and no one ever contradicted their interpretation. All of that legislative history

tends to show that the Legislature intended section 1001.95 to authorize diversion for all

misdemeanors other than those listed in subdivision (e) and to allow diversion for DUIs

in particular.

To be sure, the legislative history could be more explicit. For example, although

(1) the legislators were repeatedly told that the bill would allow diversion for DUIs, (2)

the legislators never said or were told anything to the contrary, (3) the statutory text on its

face allows diversion for all misdemeanors except those listed in subdivision (e) of

section 1001.95, and (4) DUIs are not on that list, it is nonetheless true that no legislator

who supported the bill ever said it would allow diversion for misdemeanor DUIs. None

of them said, “By this legislation we intend to authorize diversion for misdemeanor

DUIs,” or “We intend to override Vehicle Code section 23640.” Thus, it is conceivable

that the legislators who voted for the bill disbelieved the unrefuted district attorneys, the

unrefuted opposing legislators, and the bill’s unambiguous language, concluding that the

bill they were voting for did not allow diversion for misdemeanor DUIs.

15

There is no evidence, however, that the Legislature contained any such skeptics.

More broadly, the legislative history contains no evidence that the Legislature did not

intend to allow diversion for misdemeanor DUIs under section 1001.95.

In sum, the legislative history contains evidence that the Legislature intended to

allow diversion for DUIs under section 1001.95. Although that evidence is not perfectly

explicit and conclusive, it is the only evidence we have. The legislative history contains

no conflicting or contrary evidence. As Diaz-Armstrong put it, “[t]hough the indicators

found in the legislative history are perhaps sporadic, they are not ambiguous as they all

point in the same direction: that the Legislature did not intend to exclude misdemeanor

DUIs from section 1001.95 diversion.” (Diaz-Armstrong, supra, 67 Cal.App.5th at

p. Supp. 26.)

To summarize the analysis as a whole: Vehicle Code section 23640 and section

1001.95 conflict and cannot be harmonized. We consequently must determine which one

is an exception to the other. Neither statute is more specific or more general. Section

1001.95 is the later-enacted statute and therefore controls unless we have some other

strong evidence of a contrary legislative intent. We have none. Rather, the legislative

history uniformly supports the conclusion that the Legislature intended to allow diversion

for misdemeanor DUIs under section 1001.95. Section 1001.95 is therefore controlling

and authorizes diversion for misdemeanor DUIs.

4. The Case Law

As the majority opinion emphasizes, “[t]o date, the Court of Appeal has uniformly

held that misdemeanor DUI charges are ineligible for diversion under [section 1001.95].”

16

(Maj. opn., ante, at p. 3.) Although mindful that there is no horizontal stare decisis in the

Court of Appeal (In re Marriage of Shaban (2001) 88 Cal.App.4th 398, 409), I also am

not eager to be the sole justice parting ways with the position already taken by three

unanimous panels. But I find that I must respectfully disagree with the existing Court of

Appeal decisions because I do not find their analysis persuasive.

A. Grassi

Grassi was the first Court of Appeal decision to address the conflict between

Vehicle Code section 23640 and section 1001.95. (Grassi, supra, 73 Cal.App.5th at

p. 288.) The court considered the statutory language (id. at pp. 290-293), case law

concerning diversion and Vehicle Code section 23640 (Grassi, at pp. 293-301), section

1001.95’s legislative history (Grassi, at pp. 301-302), and canons of statutory

construction (id. at pp. 305-307). The court ultimately concluded that Vehicle Code

section 23640 and section 1001.95 “can be harmonized to give both effect.” (Grassi, at

p. 307.) The court held that “section 1001.95 authorizes diversion for all misdemeanor

defendants except those listed in subdivision (e), and misdemeanor DUI defendants

pursuant to Vehicle Code section 23640,” and the court asserted that its “conclusion does

not result in redrafting section 1001.95 to strike a compromise the Legislature did not

reach.” (Id. at p. 308.)

I believe that the error in Grassi’s analysis begins in its discussion of the statutory

language. That discussion contains the following paragraph: “Both statutes are

unambiguous in their plain language. When it comes to misdemeanor DUI defendants,

Vehicle Code section 23640 prohibits a court from doing what [section 1001.95] permits

17

it to do. ‘[T]he statutes are in conflict and thus one must be interpreted as providing an

exception to the other.’ [State Dept. of Public Health, supra, 60 Cal.4th at p. 956.] Is

[Vehicle Code] section 23640 an exception to section 1001.95? Or is section 1001.95 an

exception to [Vehicle Code] section 23640? Or can we harmonize the statutes to give

them both effect?” (Grassi, supra, 73 Cal.App.5th at p. 293, italics added.)

That final question shows that the Grassi court failed to appreciate the significance

of the conclusions that the court had reached earlier in the same paragraph. If both

statutes are unambiguous (and Grassi says they are), and one statute permits what the

other prohibits (and Grassi says they do), then it is impossible to harmonize them,

because harmonization requires interpreting the statutes so as to give full effect to both.

(See State Dept. of Public Health, supra, 60 Cal.4th at p. 958; Even Zohar, supra, 61

Cal.4th at p. 838.) Because the statutes are unambiguous, the statutory language is not

susceptible of multiple interpretations. Because one statute permits what the other

prohibits, we cannot give full effect to both. Harmonization is therefore impossible

according to Grassi’s own conclusions about the unambiguous meaning of the statutory

language.

That initial error—the failure to appreciate that harmonization is impossible

because one statute unambiguously prohibits what the other statute unambiguously

permits—is pivotal. If Grassi had recognized that harmonization was off the table, its

analysis would no longer have been guided by the presumption against implied repeal, a

presumption that strongly favors the earlier-enacted statute. Rather, that presumption

would have been replaced by a rule that points in precisely the opposite direction,

18

namely, the rule that the later-enacted statute is controlling (unless the earlier-enacted

statute is more specific). (State Dept. of Public Health, supra, 60 Cal.4th at pp. 960-961.)

The court could also have looked for other evidence of legislative intent. (Tellez, supra,

56 Cal.App.5th at p. 444.) But because the court was purportedly harmonizing the

statutes, all of its analysis was colored by the presumption against implied repeal. In

effect, because the court believed it was engaged in harmonization, the presumption

against implied repeal placed a thumb on the scale in favor of the earlier-enacted statute.

But if the statutes cannot be harmonized, then the thumb belongs on the other side.

Grassi’s explanation of its holding makes clear how that dynamic was dispositive.

The court stated, “Our Supreme Court’s instruction that repeal by implication is

disfavored is the bedrock of our holding.” (Grassi, supra, 73 Cal.App.5th at p. 307.) But

because the statutes cannot be harmonized according to Grassi’s own analysis of the

statutory language, the presumption against implied repeal should have been irrelevant.

The court continued, “As we explain above, the Legislature in enacting section

1001.95 gave no indication it intended to repeal [Vehicle Code] section 23640.” (Grassi,

supra, 73 Cal.App.5th at p. 307.) But according to Grassi’s own analysis of the language

of section 1001.95, the Legislature unambiguously authorized diversion for misdemeanor

DUIs. Why is that an insufficient indication of legislative intent? After all, “the statutory

language . . . generally is the most reliable indicator of legislative intent.” (People v.

Gutierrez (2014) 58 Cal.4th 1354, 1369 (Gutierrez).) Again, the court’s reasoning makes

sense only if driven by the presumption against implied repeal.

19

The court further explained, “We must presume the Legislature was aware of

Vehicle Code section 23640, the other diversion statutes, and Weatherill, VanVleck, and

Hopkins when it enacted section 1001.95, and concluded it was redundant to expressly

exclude misdemeanor DUIs in section 1001.95 in light of [Vehicle Code] section 23640.”

(Grassi, supra, 73 Cal.App.5th at p. 307.) But the inclusion of Hopkins on that list gives

the game away. Hopkins held that Vehicle Code section 23640 and section 1001.80

irreconcilably conflict, that section 1001.80 is controlling because it was enacted later,

and that section 1001.80 therefore is an exception to Vehicle Code section 23640 and

authorizes diversion for DUIs, even though section 1001.80 (at that time) did not mention

Vehicle Code section 23640. (Hopkins, supra, 2 Cal.App.5th at pp. 1282-1284.) If the

Legislature was aware of Hopkins, why would it think “it was redundant to expressly

exclude misdemeanor DUIs in section 1001.95 in light of [Vehicle Code] section

23640”? (Grassi, at p. 307.) It would be equally reasonable for the Legislature to

conclude that because section 1001.95 unambiguously authorizes diversion for

misdemeanor DUIs, the courts will carry out that legislative command, just as Hopkins

did with respect to section 1001.80 even before it was amended to overrule VanVleck.

Once again, the Grassi court’s analysis makes sense only if driven by the presumption

against implied repeal.

Grassi also notes that “the canon ‘the expression of certain things in a statute

necessarily involves exclusion of other things not expressed[]’” would appear to compel

the conclusion that “section 1001.95 permits diversion for misdemeanor DUI defendants

because they are not expressly excluded in subdivision (e).” (Grassi, supra, 73

20

Cal.App.5th at p. 306.) But given Vehicle Code section 23640, the court found it

“reasonable to conclude the Legislature chose not to include DUIs among the exclusions

in subdivision (e) of section 1001.95. To do so would have amounted to a redundancy.”

(Grassi, at p. 306.)

In my view, that analysis misapplies the canon. “‘Under the maxim of statutory

construction, expressio unius est exclusio alterius, if exemptions are specified in a statute,

we may not imply additional exemptions unless there is a clear legislative intent to the

contrary.’” (Lopez v. Sony Electronics, Inc. (2018) 5 Cal.5th 627, 635-636 (Lopez).) In

particular, we may not imply additional exemptions “when there is reason to believe a

legislative omission was intentional, such as when the statute contains a ‘specific list’ or

presents a ‘facially comprehensive treatment.’” (Id. at p. 636, italics added.) In case

after case, courts have applied the canon to lists of exemptions and concluded that

unlisted exemptions were precluded. (E.g., Lopez, supra, at p. 636; Sierra Club v. State

Bd. of Forestry (1994) 7 Cal.4th 1215, 1230; Mutual Life Ins. Co. v. City of Los Angeles

(1990) 50 Cal.3d 402, 410; Wildlife Alive v. Chickering (1976) 18 Cal.3d 190, 195-196;

S.V. v. Superior Court (2017) 13 Cal.App.5th 1174, 1182; In re James H. (2007) 154

Cal.App.4th 1078, 1083-1084.)

Here, we have a specific list, so we have reason to believe the omission of unlisted

offenses was intentional, precluding the addition of any unlisted offenses by implication.

The mere existence of Vehicle Code section 23640 is not clear evidence of legislative

intent to the contrary. The “‘proper role’” of the expressio unius canon is to resolve “‘an

ambiguity in statutory language or uncertainty in legislative intent.’” (State Farm Mutual

21

Automobile Ins. Co. v. Garamendi (2004) 32 Cal.4th 1029, 1046.) The Legislature’s

intent is (allegedly) uncertain here only because of Vehicle Code section 23640. The

existence of Vehicle Code section 23640 cannot both create the uncertainty and resolve

it.

Moreover, as already explained, the legislative history suggests that the

Legislature intended to make DUIs eligible for diversion under section 1001.95. Courts

do not apply the expressio unius canon if it defeats an otherwise discernable legislative

intent. (In re J.W. (2002) 29 Cal.4th 200, 209.) But in this case, both the canon and the

legislative history’s evidence of legislative intent support the same conclusion: The list

of exemptions in subdivision (e) is exclusive, so section 1001.95 authorizes diversion for

misdemeanor DUIs.

Grassi closes with a candid acknowledgement that “[t]he panel members here can

surely imagine writing this opinion the other way, to conclude misdemeanor DUI

defendants are eligible for diversion, based on say section 1001.95’s plain language

(DUIs are not expressly excluded), or the canons of statutory construction, the expression

of some things means the exclusion of others (§ 1001.95, subd. (e), provides exclusions

but again DUIs are not expressly excluded) or later enacted statutes supersede earlier

statutes (the Legislature enacted § 1001.95 in 2020 and Veh. Code § 23640 in 1998).”

(Grassi, supra, 73 Cal.App.5th at p. 308.) But the court then confirmed again that it

believed the presumption against implied repeal was controlling: “[A]s we explain

above, we follow our Supreme Court’s teaching and harmonize the statutes to avoid an

implied repeal.” (Ibid.)

22

For all of the foregoing reasons, I do not find Grassi persuasive. I agree with

Grassi’s determination that Vehicle Code section 23640 and section 1001.95 are

unambiguous and conflict because one permits what the other prohibits. But because the

opinion goes on to conclude that the statutes can still be harmonized, it is internally

inconsistent. And once that inconsistency is identified, the remainder of the opinion’s

justifications for its conclusion do not withstand scrutiny.

B. Tan

Tan, like Grassi, concludes that Vehicle Code section 23640 and section 1001.95

“can be reconciled and that misdemeanor convictions for DUI are not eligible for

statutory diversion.” (Tan, supra, 76 Cal.App.5th at p. 134.) Some of the details of

Tan’s analysis differ from Grassi’s, however, so it requires separate consideration.

After quoting subdivisions (a) and (e) of section 1001.95, Tan concludes that

“[u]nder 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).” (Tan, supra, 76

Cal.App.5th at p. 137.) The court then quoted Vehicle Code section 23640 and likewise

acknowledged that “the clear import of this language is that diversion is categorically

unavailable to DUI defendants.” (Tan, at p. 137.) Thus, “[r]ead separately, the statutes

appear to conflict.” (Ibid.)

But after describing relevant legal principles, including the presumption against

implied repeal, the court concluded that the conflict is merely apparent, not real, because

“the statutes are not irreconcilable.” (Tan, supra, 76 Cal.App.5th at p. 138.) The court

23

explained that “[n]othing 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. . . . [S]ection 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 [Vehicle Code] section 23640’s unambiguous prohibition of diversion in all

DUI cases.” (Ibid.)

There are two ways of reading those claims. On the one hand, they might mean

that nothing in the language of section 1001.95 indicates the Legislature intended to

authorize diversion for misdemeanor DUIs. (See Tan, supra, 76 Cal.App.5th at p. 139

[“nothing in § 1001.95 indicates an affirmative intent to allow misdemeanor diversion for

DUIs”].) On that reading, the claims are incorrect, as Tan’s own analysis of the statutory

language shows. The plain language of subdivision (a) of section 1001.95 authorizes

diversion for misdemeanor offenses other than those excluded by subdivision (e). (Tan,

at p. 137.) DUIs are not excluded by subdivision (e), so the plain language of subdivision

(a) unambiguously authorizes diversion for misdemeanor DUIs. Statutory language that

unambiguously authorizes diversion for misdemeanor DUIs indicates that the Legislature

intended to authorize diversion for misdemeanor DUIs. (Gutierrez, supra, 58 Cal.4th at

p. 1369 [statutory language is the most reliable indicator of legislative intent].) Thus, on

this reading, it is not true that “[n]othing 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.” (Tan, at p. 138.) Nor is it true that the language does not show “an

intent to establish an exception to [Vehicle Code] section 23640’s unambiguous

24

prohibition of diversion in all DUI cases.” (Ibid.) Rather, the statutory language does

show the Legislature intended to overrule and create an exception to that prohibition,

because the statutory language unambiguously authorizes diversion for misdemeanor

DUIs.

On the other hand, Tan’s claim that nothing in the language of section 1001.95

indicates legislative intent to overrule Vehicle Code section 23640 might mean the

language does not indicate that, when enacting section 1001.95, the Legislature had

Vehicle Code section 23640 in mind and consciously intended to overrule it. If that is

what the claim means, then it is irrelevant.

One way to see this is by considering the following hypothetical: Suppose section

1001.95 had been enacted without subdivision (e) and hence without any exceptions.

The statute thus would have unambiguously authorized diversion for all misdemeanors.

Suppose further that not a single member of the Legislature that enacted it was thinking

of Vehicle Code section 23640 at the time. Indeed, suppose that—contrary to the general

presumption that the Legislature is aware of existing laws (People v. Frahs (2020) 9

Cal.5th 618, 634)—none of them had ever heard of Vehicle Code section 23640 or had

any idea that there was a general statutory ban on diversion for DUIs. Under those

circumstances, the language of section 1001.95 would still unambiguously authorize

diversion for all misdemeanors and hence for misdemeanor DUIs. The legislators’

ignorance of Vehicle Code section 23640 or inattention to it would not render the

language of section 1001.95 ambiguous. We would therefore have an irreconcilable

25

conflict between the two statutes and would have to proceed accordingly. Harmonization

would not be an option.

If we change the hypothetical to include the list of exceptions in subdivision (e) of

section 1001.95, the result is the same. The plain language of the statute still

unambiguously authorizes diversion for all misdemeanors except those listed in

subdivision (e). Because DUIs are not listed in subdivision (e), the statute

unambiguously authorizes diversion for misdemeanor DUIs. Again, the Legislature’s

ignorance of or inattention to Vehicle Code section 23640 would not make any difference

or render subdivision (a) of section 1001.95 ambiguous. The plain language of section

1001.95 would still mean what it means, and harmonization would still be impossible.

For all of these reasons, Tan’s harmonization analysis falters at the first step. The

claim that “[n]othing 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” (Tan, supra, 76 Cal.App.5th at p. 138) is either false or irrelevant. Section

1001.95 unambiguously authorizes diversion for misdemeanor DUIs. The absence of an

explicit reference to Vehicle Code section 23640 (or to DUIs) does not render the

statutory language ambiguous and thus susceptible of harmonization with Vehicle Code

section 23640. Rather, the irreconcilable conflict with Vehicle Code section 23640

remains.

Tan next observes that the absence of a phrase like “notwithstanding other

provisions of law” in section 1001.95 “suggests the Legislature did not intend to abrogate

existing law excluding DUI cases from eligibility for diversion.” (Tan, supra, 76

26

Cal.App.5th at p. 138.) Diaz-Armstrong addressed that argument by noting that section

1001.95 also does not “signal deference or subjection to otherwise applicable law, which

the Legislature also knows how to draft.” (Diaz-Armstrong, supra, 67 Cal.App.5th at

p. Supp. 21.) For example, the Legislature could have included a phrase like “subject to

other provisions of law,” but it did not. Diaz-Armstrong concluded that the absence of

any such qualifiers (“notwithstanding” or “subject to”) in section 1001.95 tells us nothing

(ibid.), and I agree. Tan does not mention that analysis and contains no counterargument.

Tan further argues that even though DUIs “are not listed among the excluded

offenses . . . in subdivision (e),” it is not “clear” that misdemeanor DUIs are eligible for

diversion under section 1001.95 because “nothing in the language of subdivision (e)

indicates that the list of offenses is exclusive.” (Tan, supra, 76 Cal.App.5th at p. 139.)

Here too, there are two ways of understanding the claim that the list of exceptions

in subdivision (e) of section 1001.95 is not exclusive. If the claim means just what it

says—subdivision (e)’s list of exceptions to diversion is not an exclusive list—then

where subdivision (e) says “[a] defendant may not be offered diversion pursuant to this

section for any of the following current charged offenses,” what it means is: “A

defendant may not be offered diversion pursuant to this section for certain offenses,

including but not limited to the following.” Such an interpretation of the statute would be

absurd. It would mean that in subdivision (a) of section 1001.95 the Legislature

authorized diversion for all misdemeanors, but in subdivision (e) of the same statute the

Legislature said that diversion would be prohibited for some misdemeanors and gave a

few examples. If that were what section 1001.95 means, then for any misdemeanor not

27

listed in subdivision (e) it would be impossible to determine whether it was eligible for

diversion. Such an interpretation would obviously render the statute nonsensical. (Lopez

v. Ledesma (2022) 12 Cal.5th 848, 858-859 [statutory interpretations that lead to absurd

results are to be avoided].)

Tan does not, of course, adopt such an interpretation. Instead, Tan holds “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).” (Tan, supra, 76 Cal.App.5th at p. 151.) That is,

according to Tan, section 1001.95 authorizes diversion for all misdemeanors except those

listed in subdivision (e) and DUIs. On Tan’s interpretation, then, the list of exceptions in

subdivision (e) actually is exclusive—it excludes every misdemeanor other than DUIs.

Thus, Tan’s harmonizing interpretation of section 1001.95 is not that the list of

exceptions in subdivision (e) is not exclusive, but rather that the exclusive list in

subdivision (e) is missing one item: DUIs. Grassi’s interpretation is identical. (Grassi,

supra, 73 Cal.App.5th at p. 308 [“We hold section 1001.95 authorizes diversion for all

misdemeanor defendants except those listed in subdivision (e), and misdemeanor DUI

defendants pursuant to Vehicle Code section 23640”].)

There are at least two problems with Tan’s interpretation. First, as already

discussed, it violates the expressio unius canon. (See ante, at pp. 20-21.) Tan never

mentions that canon.

Second, if Tan’s interpretation constituted a valid harmonization of section

1001.95 with Vehicle Code section 23640, then literally any two statutes could be

28

harmonized. All that one would need to do is interpret one statute as including something

that its text does not contain, namely, an exception for application of the other statute.

That is what Tan’s interpretation does. If such “harmonization” were permissible, then

there would be no irreconcilable statutory conflicts. But there are (see, e.g., State Dept.

of Public Health, supra, 60 Cal.4th at pp. 958, 960), so Tan’s approach must be unsound.

In reality, Tan’s interpretation does not harmonize the two statutes. Rather, it

“create[s] an exception the Legislature did not enact” (Lopez, supra, 5 Cal.5th at p. 636)

and thereby “redraft[s] the statutes to strike a compromise that the Legislature did not

reach” (State Dept. of Public Health, supra, 60 Cal.4th at p. 956). The same is true of

Grassi, Islas, and today’s majority and concurring opinions.

The remainder of Tan’s analysis does not require extensive discussion, because all

of it flows from Tan’s conclusion that the statutes can be harmonized and, relatedly, from

the presumption against implied repeal. For example, Tan finds no “clarity” or

“persuasive evidence” in the legislative history. (Tan, supra, 76 Cal.App.5th at pp. 140,

142.) But that is only because Tan, like Grassi, has allowed the presumption against

implied repeal to put the thumb on the wrong side of the scale. (See ante, at p. 18.)

Tan also contains an extended critique of Diaz-Armstrong. (Tan, supra, 76

Cal.A

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