Wade v. Superior Court, H045813

• Decision Date: 28 March 2019
• Docket Number: H045813
• Court: California Court of Appeals Court of Appeals
• Parties: Andrew M. WADE, Petitioner, v. The SUPERIOR COURT of Monterey County, Respondent; The People, Real Party in Interest.

33 Cal.App.5th 694

245 Cal.Rptr.3d 435

Andrew M. WADE, Petitioner,

v.The SUPERIOR COURT of Monterey County, Respondent;

The People, Real Party in Interest.

H045813

Court of Appeal, Sixth District, California.

Filed March 28, 2019

Strong Appellate Law, Jeanine G. Strong, Carmel, for Petitioner.

District Attorney for Monterey County, Dean D. Flippo, Cristina Johnson, Deputy District Attorney, for Real Party in Interest.

No appearance for respondent

Grover, J.Andrew M. Wade is an active duty member of the United States Army Special Forces Group and affiliated with the Naval Postgraduate School in Monterey. Wade seeks relief by writ of mandate from an order of respondent Monterey County Superior Court denying his request to enter a pretrial diversion program after he was charged with misdemeanor driving under the influence with a blood alcohol concentration above 0.15 percent.

At issue is the trial court’s discretion to decide whether a defendant who is eligible to participate in pretrial diversion under the military diversion statute, Penal Code section 1001.80, is nevertheless unsuitable. We address whether the court in this case failed to exercise its discretion in conformity with the rehabilitative objectives of military diversion by relying on factors typically employed in felony sentencing. We also address whether the court’s decision to deny pretrial diversion for Wade based on the inherently dangerous nature of driving under the influence contravened recent changes to the statute to ensure that eligible military defendants charged with misdemeanor driving under the influence violations would be considered for the diversion program.

As we will explain, we find that the trial court departed from the principles behind Penal Code section 1001.80 by applying the felony sentencing guidelines without apparent consideration of the rehabilitative purpose of diversion, and abused its discretion by denying Wade’s request using criteria which the Legislature implicitly rejected. We will grant the petition for writ of mandate and direct the trial court to reconsider Wade’s request for military diversion consistent with the letter and intent of Penal Code section 1001.80.

I. FACTUAL AND PROCEDURAL BACKGROUND

Wade was arrested in June 2017 after police officers observed his pickup truck traveling north on Highway 1 just before 1:00 a.m. "weaving within the lane back and forth in a serpentine like fashion traveling at a slow speed." The truck crossed a solid white line several times and kept decreasing its speed; in response to the signal to pull over, Wade attempted an unsafe stop on a narrow shoulder. His blood alcohol concentration was measured at 0.16. The Monterey County district attorney filed charges of misdemeanor driving under the influence of alcohol ( Veh. Code, § 23152, subd. (a) ; count 1) and driving with 0.08 percent or higher blood alcohol ( id ., § 23152, subd. (b) ; count 2) and alleged as to both counts that Wade was driving with a blood alcohol concentration of 0.15 percent or higher.

At his September 2017 arraignment, Wade asked to be placed in the court’s pretrial diversion program pursuant to California’s military diversion statute. The statute authorizes the trial court to place a defendant charged with a misdemeanor offense in a pretrial diversion program upon determining that the defendant (1) was or currently is a member of the United States military, and (2) may be suffering from sexual trauma, traumatic brain injury

, posttraumatic stress disorder, substance abuse, or mental health problems as a result of his or her military service. ( Pen. Code, § 1001.80, subds. (a), (b).) (Unspecified statutory references are to the Penal Code.) If the defendant satisfactorily completes the diversion program, the criminal charge is dismissed. ( § 1001.80, subd. (c).) The People opposed the request, and the trial court set the matter for a contested hearing.

A. Request for Pretrial Military Diversion

The People did not dispute Wade’s eligibility for military diversion but argued in written opposition that the court should exercise its statutory discretion to limit military diversion of defendants charged with driving under the influence. Since the statute does not list factors for the trial court to consider in assessing a defendant’s suitability, the prosecutor urged the trial court to implement bright line criteria that would preclude military defendants from pretrial diversion under specified circumstances, such as when there is an allegation of excessive blood alcohol.¹ The People’s opposition asserted that Wade posed a "serious risk to the people of the community given his extreme level of intoxication, dangerous driving resulting in a collision, and decision to leave the scene of the collision." (As discussed in more detail post , the People’s written opposition to the request for pretrial diversion apparently misstated the facts, which as later presented to the trial court did not include a collision or Wade leaving the scene.)

Wade responded with a supplemental brief and supporting letters from an army superior and from his treating psychiatrist. He disputed any authority of the district attorney’s office to define suitability under the statute and argued that to preclude diversion for an eligible defendant based on blood alcohol level was contrary to the statutory intent, particularly since the Legislature amended section 1001.80 in 2017 to clarify that military diversion is available on misdemeanor charges of driving under the influence or driving under the influence causing injury. (See § 1001.80, subd. (l ).) Wade contended that he was "precisely the kind of person for which" military diversion was intended, noting he has served for 10 years in the army with multiple deployments; he has endured stressful and traumatic experiences while serving, which according to his psychiatrist are associated with "episodic binge drinking" that has allowed him to talk "with his Special Forces buddies" about otherwise classified experiences from deployments; he has since remained sober and is motivated to obtain appropriate treatment and continue his career; and he has no prior driving under the influence arrests and no criminal record.

A key issue disputed by the parties was how the trial court should utilize a worksheet entitled "Superior Court of California, County of Monterey, Military Diversion Information Sheet." The information sheet states that the court, in collaboration with the offices of the local district attorney and public defender, "has compiled the following information" regarding military diversion pursuant to section 1001.80. It states that "[e]ach case will be considered on an individual basis. The court has the sole discretion to grant or deny participation in Military Diversion after considering the relevant factors and nature of the charges." The information sheet lists seven "eligibility criteria" derived from the statute and 29 "factors of con[s]ideration in granting or denying military diversion" (information sheet factors).²

The parties debated the applicability of the information sheet factors—derived from the felony sentencing guidelines in the California Rules of Court—to the court’s suitability analysis. The People argued that based on the information sheet factors and the district attorney’s proposed bright line criteria, the court should find Wade unsuitable for military diversion. Wade argued that the plain language of section 1001.80 applies to any misdemeanor offense, so long as the baseline eligibility criteria are met. Wade argued that only three of the information sheet factors were relevant to his request: the nature of the charges, the defendant’s lack of prior record, and whether he was suffering from a mental or physical condition that significantly reduced culpability for the crime.

B. Trial Court Hearing and Denial of Military Diversion Request

Defense counsel argued at the hearing that to exclude Wade from military diversion based on his blood alcohol level would contradict the legislative intent behind providing diversion to defendants whose trauma from military service manifests in substance abuse. The prosecutor responded that in exercising its discretion under the diversion statute, the court must "balance the protection of the public .... At some point, there has to be a dividing line, and ....08 is the bright line rule for DUI." The prosecutor suggested the court has "the prerogative to create some reasonable rules" and urged it to deny Wade’s request "based upon the excessive alcohol in this case."

The prosecutor also summarized the facts of the offense for the court, which differed notably from the facts set forth in the People’s written opposition. According to the prosecutor at the hearing, Wade’s pickup truck was weaving serpentine-like on the highway and traveling at a slow speed, and when signaled by the police to pull over, Wade tried to stop in an unsafe place on a narrow shoulder.

The trial court denied Wade’s request. It dismissed any notion that the bright-line proposal was decisive, stating that the decision to admit a defendant into the military diversion program rested with the court. It viewed the information sheet as "designed to not be exclusive and to be inclusive if at all possible. ... [I]t really is just a sheet to hopefully give the Court ... some kind of a standard to base its decision with regards to these particular cases." The court noted it had "reviewed the factors of consideration in granting or denying military diversion" which were "basically taken from the factors of aggravation versus mitigation," and had considered Wade’s lack of criminal record and the letters presented by counsel. The court then stated that "look[ing] at the nature of the charge, ... driving under the influence while impaired is an inherently dangerous type of offense, especially when we’re talking about blood alcohols that are double the legal limit. ... [T]his was a .16....