Grassi v. Superior Court of Orange Cnty., G060362

• Court: California Court of Appeals
• Writing for the Court: O'LEARY, P. J.
• Citation: 288 Cal.Rptr.3d 385,73 Cal.App.5th 283
• Parties: Nancy GRASSI, Petitioner, v. The SUPERIOR COURT OF ORANGE COUNTY, Respondent; The People, Real Party in Interest.
• Decision Date: 28 December 2021
• Docket Number: G060362

73 Cal.App.5th 283
288 Cal.Rptr.3d 385

Nancy GRASSI, Petitioner,
v.
The SUPERIOR COURT OF ORANGE COUNTY, Respondent;

The People, Real Party in Interest.

G060362

Court of Appeal, Fourth District, Division 3, California.

Filed December 28, 2021

Martin F. Schwarz, Public Defender, Sara Ross, Assistant Public Defender, and Shawn McDonald, Deputy Public Defender, for Petitioner.

No appearance for Respondent.

Todd Spitzer, District Attorney, and George Turner, Deputy District Attorney, for Real Party in Interest.

OPINION

O'LEARY, P. J.

73 Cal.App.5th 288

Nancy Grassi filed a petition for writ of mandate arguing the trial court erred by concluding she was statutorily ineligible for misdemeanor diversion. Grassi argues Penal Code section 1001.95's plain language and legislative history makes diversion available to misdemeanor driving under the influence defendants despite Vehicle Code section 23640's prohibition on granting diversion to driving under the influence defendants.

In this case of first impression, we conclude the two statutes can be harmonized to provide diversion to misdemeanor defendants, except for those defendants excluded in Penal Code section 1001.95, subdivision (e), and misdemeanor driving under the influence defendants pursuant to Vehicle Code section 23640. We deny the petition.

FACTS

In August 2019, the Orange County District Attorney (OCDA) filed a complaint charging Grassi with misdemeanor driving under the influence of drugs ( Veh. Code, § 23152, subd. (f), hereinafter "DUI" or "DUIs"). At her arraignment weeks later, Grassi pleaded not guilty, and the trial

288 Cal.Rptr.3d 389

court ordered her to remain released on her own recognizance.

On January 1, 2021, Penal Code section 1001.95¹ went into effect. (Stats. 2020, ch. 334, § 1, pp. 3785-3786.) The following month, Grassi filed a motion for misdemeanor diversion pursuant to section 1001.95. The OCDA filed an opposition arguing she was statutorily ineligible for misdemeanor diversion pursuant to Vehicle Code section 23640 ( section 23640 or § 23640 ). Relying on section 23640 and Tellez v. Superior Court (2020) 56 Cal.App.5th 439, 270 Cal.Rptr.3d 418 ( Tellez ), the trial court denied the motion. Grassi filed a petition for writ of mandate with the appellate division. After further briefing, that court denied Grassi's petition.

In this court, Grassi filed a petition for writ of mandate and exhibits. Seven exhibits concerned section 1001.95's legislative history. This court issued an order to show cause. After the OCDA filed his return, Grassi filed a reply and included additional exhibits. Those exhibits included six new documents

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regarding section 1001.95's legislative history. With her reply, Grassi also filed a request for judicial notice of these documents and two recordings, which we discuss below. We heard oral argument.

DISCUSSION

I. Preliminary Matters

The OCDA states he will leave it to this court to determine whether writ review is timely and appropriate. The OCDA does not provide any argument on either subject. We trust that if he believed Grassi's petition was untimely or review is inappropriate, he would say so. But he does not, and we will proceed to the merits. ( Lee v. Kim (2019) 41 Cal.App.5th 705, 721, 254 Cal.Rptr.3d 546 [failure to support contention with reasoned argument and legal authority results in forfeiture].)

II. Retroactivity

The Legislature enacted section 1001.95 after the OCDA charged Grassi with misdemeanor DUI. Nevertheless, neither Grassi nor the OCDA discuss whether section 1001.95 applies retroactively. Since section 1001.95 provides for a potential ameliorative benefit, we conclude a person charged with misdemeanor DUI has the right to have the court determine if he or she is eligible and suitable for diversion if the case is not final. ( People v. Frahs (2020) 9 Cal.5th 618, 638, 264 Cal.Rptr.3d 292, 466 P.3d 844 ; In re Estrada (1965) 63 Cal.2d 740, 744-745, 48 Cal.Rptr. 172, 408 P.2d 948.)

III. Judicial Notice

The Orange County Public Defender (OCPD) requests we take judicial notice of the following exhibits he included with the reply, and not with the petition.

1. Text of Assembly Bill No. 2124—Misdemeanor Diversion Pilot Program (LA pilot program) (Exhibit O);

2. Transcript of the August 24, 2020, Assembly floor debate on Assembly Bill No. 3234 (AB 3234) (Exhibit P);

3. Floor Alert—OCDA's letter of August 20, 2020, Opposing AB 3234 (Exhibit Q);

4. Floor Alert—California District Attorneys Association's (CDAA) letter of August 24, 2020, Opposing AB 3234 (Exhibit R);

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5. Floor Alert—Judicial Council of California's (Judicial Council) letter of August 31, 2020, Opposing AB 3234 (Exhibit S);

6. Transcript of the August 31, 2020, Senate floor debate on AB 3234 (Exhibit T);

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7. The August 24, 2020, Assembly floor debate on AB 3234, which is available at: https://www.assembly.ca.gov/media/assembly-floor-session-20200824/video; and

8. The August 31, 2020, Senate floor debate on AB 3234, which is available at: https://www.senate.ca.gov/media/senate-floor-session-20200831/video.

"A motion for judicial notice of published legislative history, such as the ... analysis here, is unnecessary. [Citation.] ‘Citation to the material is sufficient. [Citation.] We therefore consider the request for judicial notice as a citation to those materials that are published.’ [Citation.]" ( Wittenburg v. Beachwalk Homeowners Assn. (2013) 217 Cal.App.4th 654, 665, fn. 4, 158 Cal.Rptr.3d 508.)

All of these documents were available when the OCPD filed his petition for writ of mandate, and all concern section 1001.95's legislative history, a topic the OCPD discusses in his petition. This practice is disfavored.

Nevertheless, we treat Grassi's request to take judicial notice of item Nos. 1, 2, 6, 7, and 8 as citations to those materials and deny her request to take judicial notice of them. As to item Nos. 3, 4, and 5, the floor alerts have sufficient relevance on appeal to support our taking judicial notice of them. ( Greystone Homes, Inc. v. Midtec, Inc. (2008) 168 Cal.App.4th 1194, 1210-1211, fn. 6, 86 Cal.Rptr.3d 196 [taking judicial notice of floor alerts].)

IV. Discussion

A. Statutory Language

Grassi contends section 1001.95's plain language requires diversion for all misdemeanor defendants, including misdemeanor DUI defendants, except those excluded in subdivision (e). Grassi's plain language construction of section 1001.95 is appealing, until one considers section 23640.

"This is a question of statutory construction. We seek to ‘ascertain the intent of the lawmakers so as to effectuate the purpose of the statute.’ [Citation.] ‘[W]e begin by looking to the statutory language. [Citation.] We

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must give "the language its usual, ordinary import and accord[ ] significance, if possible, to every word, phrase and sentence in pursuance of the legislative purpose. A construction making some words surplusage is to be avoided. The words of the statute must be construed in context, keeping in mind the statutory purpose, and statutes or statutory sections relating to the same subject must be harmonized, both internally and with each other, to the extent possible." [Citation.] If the statutory language is susceptible of more than one reasonable interpretation, we must look to additional canons of statutory construction to determine the Legislature's purpose. [Citation.] "Both the legislative history of the statute and the wider historical circumstances of its enactment may be considered in ascertaining the legislative intent." ’ [Citation.]" ( Carmack v. Reynolds (2017) 2 Cal.5th 844, 849-850, 215 Cal.Rptr.3d 749, 391 P.3d 625 ( Carmack ).) "This case poses a pure question of statutory interpretation, subject to independent review. [Citation.]"² ( Lopez v. Sony Electronics, Inc. (2018) 5 Cal.5th 627, 633, 234 Cal.Rptr.3d 856, 420 P.3d 767.)

The starting point for our analysis is section 23640. Operative in 1999, section 23640, subdivision (a), states, "In any case in which a person is charged with a violation of [Vehicle Code] [s]ection 23152

288 Cal.Rptr.3d 391

[DUI] or [ Vehicle Code section] 23153 [DUI causing injury], 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...