People v. Superior Court of Riverside Cnty.

• Decision Date: 27 July 2021
• Docket Number: APRI2100008, APRI2100009, APRI2100013
• Citation: 67 Cal.App.5th Supp. 10,282 Cal.Rptr.3d 891
• Court: California Superior Court
• Parties: The PEOPLE, Petitioner, v. SUPERIOR COURT OF RIVERSIDE COUNTY, Respondent, Sebastian Andres Diaz-Armstrong, Real Party in Interest. The People, Petitioner, v. Superior Court of Riverside County, Respondent, Joseph Samuel Spinelli, Jr., Real Party in Interest. The People, Petitioner, v. Superior Court of Riverside County, Respondent, Jessica Ortiz, Real Party in Interest.

67 Cal.App.5th Supp. 10

282 Cal.Rptr.3d 891

The PEOPLE, Petitioner,

v.SUPERIOR COURT OF RIVERSIDE COUNTY, Respondent,Sebastian Andres Diaz-Armstrong, Real Party in Interest.

The People, Petitioner,

v.Superior Court of Riverside County, Respondent,Joseph Samuel Spinelli, Jr., Real Party in Interest.

The People, Petitioner,

v.Superior Court of Riverside County, Respondent,Jessica Ortiz, Real Party in Interest.

APRI2100008, APRI2100009, APRI2100013

Appellate Division, Superior Court, California. RIVERSIDE COUNTY.

Filed July 27, 2021

Michael A. Hestrin, District Attorney, and Chris S. Bouffard, Senior Deputy District Attorney, for Petitioner.

No appearance for Respondent.

Steven L. Harmon, Public Defender, and Jason M. Cox, Deputy Public Defender, for Real Parties in Interest.

THE COURT^*

With the parties’ consent at oral argument we consolidated these three writ proceedings for hearing and decision because, even though they involve different, unconnected criminal defendants, "they involve common and interrelated issues of fact and law." ( In re Carl H. (2017) 7 Cal.App.5th 1019, 1022 fn. 1, 212 Cal.Rptr.3d 823 ; see People v. Williams (1997) 59 Cal.App.4th 1202, 69 Cal.Rptr.2d 690 ; People v. Sanchez (1987) 190 Cal.App.3d 224, 228, 235 Cal.Rptr. 264 ; People v. Superior Court (Kenner) (1977) 73 Cal.App.3d 65, 67–68, 139 Cal.Rptr. 343.) Indeed, they present the identical issue of law, one which surely arises daily in other courts throughout our state: are defendants charged with misdemeanor driving under the influence (DUI) statutorily eligible for pretrial diversion under Penal Code section 1001.95 ? We hold that such defendants are indeed so eligible, and deny the People's petitions for extraordinary relief.

PROCEDURAL BACKGROUND

INM2003410 / APRI2100008

Defendant and real party in interest Diaz-Armstrong was charged by misdemeanor complaint with DUI ( Veh. Code, § 23152, subds. (a), (b) ), was arraigned, and pleaded not guilty. At a pretrial hearing on January 21, 2021, the trial court placed defendant on diversion pursuant to Penal Code section 1001.95 (hereinafter " section 1001.95") over the prosecutor's objection. With regard to the threshold question of eligibility the trial court incorporated by reference the arguments and ruling it had made earlier that day in INM2002181, which we discuss immediately below. The trial court additionally found defendant to be otherwise suitable for diversion based on the particular circumstances of the case.

On February 17, 2021, the People filed a petition for writ of mandate or prohibition in this court and we issued an order to show cause.¹

INM2002181 / APRI2100009

Defendant and real party in interest Spinelli was also charged by misdemeanor complaint with DUI, was arraigned, and pleaded not guilty. At a pretrial hearing on January 21, 2021, the trial court placed defendant on section 1001.95 diversion. With regard to the threshold question of eligibility, the prosecutor had argued that DUI defendants are categorically ineligible for diversion by virtue of Vehicle Code section 23640 (hereinafter " section 23640"). The trial court, however, noted the history of subsequently enacted diversion "statutes which have extensively run afoul and butted heads with 23640," and observed the legislative history specific to section 1001.95, reasoning:

I think in this case, the best interpretation of the legislative history, given the fact that the author of the bill appears to be anticipating inclusion of DUIs and then even when the governor signed the bill, in his signing statement, the governor said, "I'm signing this bill" -- and I'm just paraphrasing -- "I do have some concern that it includes DUIs, and I expect the legislature is going to change that in the future. I'm going to work with the legislature to change that in the future."

So when I look at those together, I have to conclude the legislative history of this bill is it includes DUIs. ... In terms of -- that's eligibility.

Turning to suitability, the trial court found defendant's particular case otherwise suitable for diversion.

On February 18, 2021, the People filed a petition for writ of mandate or prohibition in this court and we issued an order to show cause.

INM2003659 / APRI2100013

Defendant and real party in interest Ortiz was also charged by misdemeanor complaint with DUI, was arraigned, and pleaded not guilty. On February 1, 2021, the date set for jury trial, the trial court placed defendant on section 1001.95 diversion over the prosecutor's objection. With regard to the threshold question of eligibility the trial court observed that "the legislature has seen fit to exclude four specific cases or categories of cases from 1001.95. And DUI or driving under the influence offenses were not excluded from there." In finding a legislative intent to include DUIs despite section 23640, the trial court found it significant that a recently introduced bill, Senate Bill No. 282, sought

to specifically exclude driving under the influence offenses as well as a few other categories and specific statutes.

One generally does not -- or the legislature does not move to amend a statute to exclude something unless it was otherwise included, so I do believe that that is a pretty clear manifestation that, at least, the legislature believed that DUIs were included. And since what I have to do is divine legislative intent, I don't think that there is much stronger indicator than the legislature themselves thinking that they included it, and that's why at least one legislature [sic ] has moved to amend the bill.

As the in the other two cases, the trial court found defendant otherwise suitable for diversion, the People filed a writ petition in this court, and we issued an order to show cause.

DISCUSSION

I. The Legal Issue and Its Background

The People's argument in each case is that DUIs are categorically ineligible for section 1001.95 misdemeanor diversion because of section 23640. They do not contest the trial court's secondary findings that each defendant was individually suitable for diversion.

Section 1001.95, which took effect January 1, 2021, sets forth an alternative dispositional scheme to the ordinary process of criminal adjudication, in which "[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 ...." ( § 1001.95, subd. (a), added by Stats. 2020, ch. 334, § 1.) As with other forms of pretrial diversion, "[i]f the defendant has complied with the imposed terms and conditions, at the end of the period of diversion, the judge shall dismiss the action against the defendant"; however, "[i]f the court finds that the defendant has not complied with the terms and conditions of diversion, the court may end the diversion and order resumption of the criminal proceedings." ( § 1001.95, subds. (c), (d) ; cf., e.g., Pen. Code, § 1000 et seq. ) By its plain terms, section 1001.95 applies to all misdemeanors except for these express exclusions: violations of Penal Code sections 273.5, 243, subdivision (e), 676.9, and any offense carrying mandatory sex offender registration. ( § 1001.95, subd. (e).) Misdemeanor DUIs are plainly not included in this list of ineligible offenses. But there is another statute to consider.

Section 23640, a preexisting statute dating back almost 40 years (see former Veh. Code, § 23202, added by Stats. 1981, ch. 940, § 32), provides in relevant part that,

[i]n any case in which a person is charged with a violation of [Vehicle Code] Section 23152 or 23153, prior to acquittal or conviction, the court shall neither suspend nor stay the proceedings for the purpose of allowing the accused person to attend or participate, nor shall the court consider dismissal of or entertain a motion to dismiss the proceedings because the accused person attends or participates during that suspension, in any one or more education, training, or treatment programs, 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.

In other words, the court may not grant pretrial diversion to a misdemeanor or felony DUI defendant. This is "[t]he unambiguous intent of" the section. ( People v. Darnell (1990) 224 Cal.App.3d 806, 810, 274 Cal.Rptr. 110.)

The issue confronting this court is not novel: whether the two statutes can be harmonized and, if they cannot, which statute controls. Of course, "[t]he proper interpretation of a statute is a question of law, which we determine independently, or de novo." ( People v. Jacobo (2019) 37 Cal.App.5th 32, 42, 249 Cal.Rptr.3d 236.) But there is a long and complex history surrounding judicial application of section 23640 to preexisting and subsequently enacted diversion schemes.

Diversion of defendants with developmental disabilities

The first case of note is People v. Weatherill (1989) 215 Cal.App.3d 1569, 264 Cal.Rptr. 298, which considered whether the forerunner of section 23640, Vehicle Code section 23202, barred a DUI defendant from being granted diversion for defendants with developmental disabilities under Penal Code section 1001.20 et seq. After first "[p]erceiving no ambiguity in section[ ] 23202" to exclude from diversion "all driving under the influence defendants, without exception," the court then examined the legislative history because the defendant had "contend[ed] that this seeming all inclusive prohibition against diversion is apparent only." ( Id. at p. 1574, 264 Cal.Rptr. 298 [emphasis in original].) But the legislative history of the bill that had added the prohibition, Assembly Bill No. 541 (1981–1982 Reg. Sess.), actually revealed a strong intent to curb the scourge of DUIs in accord...