People v. Superior Court of Riverside Cnty., E077594

• Court: California Court of Appeals
• Writing for the Court: FIELDS, Acting P.J.
• Citation: 81 Cal.App.5th 851,297 Cal.Rptr.3d 517
• Parties: The PEOPLE, Petitioner, v. The SUPERIOR COURT OF RIVERSIDE COUNTY, Respondent; Jessica Ortiz, Real Party in Interest.
• Docket Number: E077594
• Decision Date: 28 July 2022

81 Cal.App.5th 851
297 Cal.Rptr.3d 517

The PEOPLE, Petitioner,
v.
The SUPERIOR COURT OF RIVERSIDE COUNTY, Respondent;

Jessica Ortiz, Real Party in Interest.

E077594

Court of Appeal, Fourth District, Division 2, California.

Filed July 28, 2022

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, Riverside, and Michael W. Donaldson, for California DUI Lawyers Association as Amicus Curiae on behalf of Real Party in Interest.

OPINION

FIELDS, Acting P.J.

81 Cal.App.5th 857

I.

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

297 Cal.Rptr.3d 521

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.

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, 282 Cal.Rptr.3d 891 ( 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

81 Cal.App.5th 858

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, 288 Cal.Rptr.3d 385 ( Grassi ); Tan v. Superior Court (2022) 76 Cal.App.5th 130, 134, 137-139, 291 Cal.Rptr.3d 292 ( Tan ); Islas v. Superior Court (2022) 78 Cal.App.5th 1104, 1108-1110, 294 Cal.Rptr.3d 294 ( 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, 288 Cal.Rptr.3d 385 ; Tan , at p. 136, 291 Cal.Rptr.3d 292, see Islas , at pp. 1109-1110, 294 Cal.Rptr.3d 294 [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

297 Cal.Rptr.3d 522

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, 270 Cal.Rptr.3d 418 ( Tellez ) and other cases ( State Dept. of Public Health v. Superior Court (2015) 60 Cal.4th 940, 956-960, 184 Cal.Rptr.3d 60, 342 P.3d 1217 ( State Dept. ); Hopkins v. Superior Court (2016) 2 Cal.App.5th 1275, 1285-1286, 207 Cal.Rptr.3d 217 ( 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.

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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, 184 Cal.Rptr.3d 60, 342 P.3d 1217 ; Western Oil & Gas Assn. v. Monterey Bay Unified Air Pollution Control Dist. (1989) 49 Cal.3d 408, 419-420, 261 Cal.Rptr. 384, 777 P.2d 157 ( 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. 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, 282 Cal.Rptr.3d 891.) The People now petition this court for an original writ, directing respondent superior court to vacate the

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diversion order for Ortiz on the ground it is unauthorized by Vehicle Code section 23640.

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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

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...