People v. Vanvleck

• Decision Date: 11 August 2016
• Docket Number: D069894,D069893
• Citation: 205 Cal.Rptr.3d 839,2 Cal.App.5th 355
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Appellant, v. Kyle Warren VANVLECK, Defendant and Respondent. The People, Plaintiff and Appellant, v. Jeremy Kluesner, Defendant and Respondent.

2 Cal.App.5th 355

205 Cal.Rptr.3d 839

The PEOPLE, Plaintiff and Appellant

v.Kyle Warren VANVLECK, Defendant and Respondent.

The People, Plaintiff and Appellant

v.Jeremy Kluesner, Defendant and Respondent.

D069893

D069894

Court of Appeal, Fourth District, Division 1, California.

Filed August 11, 2016

Jan I. Goldsmith, City Attorney, John C. Hemmerling, Assistant City Attorney, and Michael L. Ficken, Deputy City Attorney, for Plaintiff and Appellant.

Law Offices of C. Bradley Patton and C. Bradley Patton, Carlsbad, for Defendant and Respondent Kyle Warren VanVleck.

Leslie Legal Group and Sean F. Leslie, Carlsbad, for Defendant and Respondent Jeremy Kluesner.

Bonnie M. Dumanis, District Attorney, James E. Atkins and Harrison C. Kennedy, Deputy District Attorneys for San Diego County District Attorney, as Amicus Curiae on behalf of Plaintiff and Appellant.

McCONNELL

, P.J.

These consolidated appeals raise the issue of whether Vehicle Code section 23640

(section 23640 ) prohibits military diversion pursuant to Penal Code section 1001.80 (military diversion statute) for defendants charged with driving under the influence offenses.¹ We conclude military diversion is not available for defendants charged with driving under the influence offenses in violation of sections 23152 and 23153.

FACTUAL AND PROCEDURAL BACKGROUND

The People charged Kyle Warren VanVleck with misdemeanor violations of driving under the influence of alcohol and driving while having a measurable blood alcohol content of 0.08 percent or more (§ 23152, subds. (a), (b)). He moved to be placed in a military diversion program pursuant to the military diversion statute, which provides for pretrial diversion where the defendant: (1) is charged with a misdemeanor; (2) “was, or currently is, a member of the United States military;” and (3) “may be suffering from sexual trauma, traumatic brain injury

, post-traumatic stress disorder, substance abuse, or mental health problems as a result of his or her military service.” (Pen. Code, § 1001.80, subd. (a)(1)-(2).) VanVleck claimed he was on active duty in the United States Marine Corps and suffered from an alcohol use disorder of moderate severity as a result of his military service.

The People opposed diversion, arguing section 23640

prohibits diversion in all driving under the influence cases. The superior court granted VanVleck's motion and suspended proceedings for the diversion term of two years.

The People charged Jeremy Bryan Kluesner with three misdemeanors: driving under the influence of alcohol (§ 23152, subd. (a)), driving while having a measurable blood alcohol content of 0.08 percent or more (§ 23152, subd. (b)), and driving without a valid license (§ 12500, subd. (a)). Kluesner claimed he was a veteran of the United States Army and suffered from posttraumatic stress disorder, traumatic brain injury

, and alcohol abuse as a result of his military service. He moved to be placed in a diversion program pursuant to the military diversion statute. Over the People's opposition, the superior court granted Kluesner's motion and suspended proceedings for the diversion term of two years.

The People appealed both decisions to the appellate division of the superior court. Pursuant to Rule 8.1005(a)(1) of the California Rules of Court

, the appellate division of the superior court certified the cases for transfer to this court “to secure uniformity of decision and settle an important question of law.” We ordered the cases transferred to this court for hearing and decision and subsequently consolidated them.

We granted the San Diego County District Attorney's applications to file amicus briefs in both cases.

DISCUSSION

I. Requests for Judicial Notice

VanVleck and Kluesner requested we take judicial notice of two items from the legislative history of Senate Bill No. 1227, the bill that added the military diversion statute to the Penal Code. (Sen. Bill No. 1227 (2013–2014 Reg. Sess.).) Specifically, they request we take judicial notice of: (1) Senate Floor Analyses, dated August 21, 2014, and (2) a bill analysis from the Assembly Committee on Appropriations for a hearing on August 6, 2014. We grant the unopposed requests for judicial notice. (People v. Cruz (1996) 13 Cal.4th 764, 780, fn. 9, 55 Cal.Rptr.2d 117, 919 P.2d 731

; People v. Lamb (1999) 76 Cal.App.4th 664, 680, 90 Cal.Rptr.2d 565 [“Legislative committee reports and analyses generally have been found appropriate items of consideration in determining legislative intent.”].)

VanVleck also requests we take judicial notice of a superior court progress report for the military diversion program in San Diego County. VanVleck argues judicial notice is mandatory pursuant to Evidence Code section 451, subdivision (f)

, which provides the court shall take judicial notice of “[f]acts and propositions of generalized knowledge that are so universally known that they cannot reasonably be the subject of dispute.” The facts and propositions within the superior court progress report do not satisfy the requirements of Evidence Code section 451, subdivision (f). Further, “[w]hile courts may notice official acts and public records, ‘we do not take judicial notice of the truth of all matters stated therein.’ ”(Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063, 31 Cal.Rptr.2d 358, 875 P.2d 73 [declining to take judicial notice of a report of the United States Surgeon General and report to the California Department of Health Services regarding tobacco use and prevention]; see Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 193–194, 147 Cal.Rptr.3d 41 [declining to take judicial notice of the contents of an audit report prepared by the Office of the Inspector General of the United States Department of Treasury].) Accordingly, we deny VanVleck's request for judicial notice of the superior court's progress report on the military diversion program in San Diego County.

II. Section 23640

“In 1981, ... the Legislature made extensive statutory changes and additions to the Vehicle Code in response to growing public concern about intoxicated drivers. [Citation.] The legislation was designed to make it more difficult for those committing such offenses to avoid conviction and to increase the penalties consequent upon such a conviction.” (People v. Duncan (1990) 216 Cal.App.3d 1621, 1628, 265 Cal.Rptr. 612

(Duncan ).) Section 23640 (formerly section 23202), enacted at that time, provided:

“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.” (§ 23640, subd. (a)

, italics added.)

Section 23600 (formerly section 23206) imposes a similar postconviction restraint and “provides that no person convicted of a [section 23152 or 23153] offense may be absolved from spending the minimum time in confinement.” (Duncan, supra, at p. 1628, 265 Cal.Rptr. 612

; § 23600, subd. (c).)² “The unambiguous intent of [sections 23640 and 23600 ] is to prohibit pre- or postconviction stays or suspensions of proceedings to allow a defendant charged with driving under the influence to be diverted into a treatment program and avoid spending the statutorily mandated minimum time in confinement or paying the statutorily imposed minimum fine upon conviction.” (People v. Darnell (1990) 224 Cal.App.3d 806, 810, 274 Cal.Rptr. 110.)

III. Military Diversion Statute

In 2014, the Legislature proposed Senate Bill No. 1227 to add the military diversion statute to the Penal Code. The purpose of the original version of the bill was to “create a diversion program for veterans who commit misdemeanors or jail felonies and who are suffering from service-related trauma.” (Sen. Com. on Public Safety, Rep. on Sen. Bill No. 1227 (2013–2014 Reg. Sess.) as introduced Feb. 20, 2014.) According to the bill's author, many of California's two million military veterans suffer from service related trauma and “some veterans find themselves entangled in the criminal justice system.” (Sen. Com. on Public Safety, Analysis of Sen. Bill No. 1227 (2013–2014 Reg. Session) as introduced Feb. 20, 2014.) The author noted the well-established benefits of diversion programs, including reducing recidivism and incarceration costs. (Ibid .)

The bill set forth that existing law provides for “deferred entry of judgment for specified drug offenses” (Pen. Code, § 1000 et seq.

), “permits a court to create a ‘Back on Track’ deferred entry of judgment reentry program for first time non-violent drug offenders” (Pen. Code, § 100.8 et seq.), “provides for diversion of non-DUI misdemeanor offenses” (Pen. Code, § 1001.50 et seq. ), and “provides for diversion of misdemeanors when the defendant is a person with cognitive disabilities” (Pen. Code, § 1001.20 et seq. ). Senate Bill No. 1227, in turn, authorized the court to place an eligible current or former member of the military in a diversion program and to postpone prosecution, temporarily or permanently, of a misdemeanor or jail felony. (Sen. Com. on Public Safety, Analysis of Sen. Bill No. 1227 (2013–2014 Reg. Sess.) as introduced Feb. 20, 2014.) If the court found the defendant was not performing satisfactorily in the program or not benefiting from the treatment and services provided under the program, it could end diversion and resume criminal...