Tan v. Superior Court of San Mateo Cnty.

76 Cal.App.5th 130

291 Cal.Rptr.3d 292

Longen TAN, Petitioner,

v.The SUPERIOR COURT OF SAN MATEO COUNTY, Respondent;

The People, Real Party in Interest.

A163715

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

Filed March 10, 2022

Douglas I. Horngrad and Sam O'Keefe, San Francisco, for Petitioner.

Stephen M. Wagstaffe, San Mateo County District Attorney, Sean F. Gallagher, Chief Deputy District Attorney, Rebecca L. Baum, Shin-Mee Chang, Morris Maya and Ryan S. Geisser, Deputy District Attorneys for Respondent.

No appearance for Real Party in Interest.

Justice Margulies, J. Longen Tan was charged with misdemeanor driving under the influence. Effective January 1, 2021, the Legislature enacted a new law, Penal Code ¹ section 1001.95, making defendants charged with misdemeanors generally eligible for diversion at the discretion of the trial judge. The law expressly exempts several offenses from eligibility for diversion, but driving under the influence is not one of them. An older law, however, Vehicle Code section 23640, provides that those charged with driving under the influence (DUI) are categorically ineligible for diversion.

Tan filed a petition for misdemeanor diversion under section 1001.95, arguing that section 1001.95 superseded Vehicle Code section 23640 with respect to misdemeanor DUIs. After his petition was denied in the trial court, Tan filed a petition for writ of mandate in this court, asking us to direct the trial court to vacate its order denying his petition for diversion and grant it instead.² When he filed his petition, no Court of Appeal had decided the issue presented and there was a split of authority between two published superior court appellate division opinions as to the availability of diversion in cases of misdemeanor DUI. After the matter was fully briefed, Division Three of the Fourth Appellate District issued its opinion in Grassi v. Superior Court (2021) 73 Cal.App.5th 283, 288 Cal.Rptr.3d 385 ( Grassi ), concluding that section 1001.95 and Vehicle Code section 23640 can be harmonized, and that misdemeanor diversion is unavailable to defendants charged with DUI. Although we, like the Grassi court, believe it is a difficult and close question, we similarly hold the two statutes can be reconciled and that misdemeanor convictions for DUI are not eligible for statutory diversion. Accordingly, we deny the petition.

I. FACTUAL BACKGROUND

On May 28, 2019, the San Mateo County District Attorney charged Tan with two misdemeanor violations of Vehicle Code section 23152. ( Veh. Code, § 23152, subds. (a) & (b) ; counts 1 & 2.)

On April 19, 2021, Tan filed a petition requesting court-initiated misdemeanor diversion under sections 1001.95 and 1001.97.³ At the hearing on Tan's petition, the trial court heard argument from both sides, then stated its tentative ruling that "DUIs are not currently exempt from [ section] 1001.95" and that "Mr. Tan present[ed], ... if not a quintessential, a representative case in which such diversion may be warranted." The court took the matter under submission.

The trial court subsequently issued a written ruling, stating it had considered the briefing, attachments and arguments of both parties, and independently researched the legislative history of section 1001.95 and Assembly Bill No. 3234 (2019–2020 Reg. Sess.) (Assembly Bill 3234). The trial court concluded that the legislative history leading to the passage of Assembly Bill 3234 indicated the Legislature intended for misdemeanor DUI offenses to be eligible for diversion, and the trial court found Tan suitable for diversion. Nonetheless, the trial court denied the motion, citing a determination by the judges of San Mateo County Superior Court not to offer diversion in any prosecution for a misdemeanor DUI. Tan filed a petition for writ of mandate and prohibition in the superior court appellate division, which was summarily denied.

Tan subsequently filed a petition for writ of mandate and prohibition in this court.⁴

II. DISCUSSION

Tan contends section 1001.95 and Vehicle Code section 23640 "inherently conflict" because section 1001.95 permits misdemeanor diversion except for offenses specifically excluded under the statute, while Vehicle Code section 23640 prohibits diversion for DUIs. He asserts a "reading of the plain language of [ section 1001.95 ] ... leads one to understand that DUIs are in fact eligible [for misdemeanor diversion] because they are not specifically excluded" and the "only reason the statute is ambiguous is because of Vehicle Code section 23640." To resolve this conflict, Tan argues, we must look to the legislative history of section 1001.95, which "is sufficiently clear" and shows "that the Legislature intended that DUI defendants be eligible for diversion." As we discuss below, we find the Legislature's intent with respect to the potential conflict between these statutes anything but clear. After a careful examination of the statutory language, the legislative history, the canons of statutory construction, and related case law, we conclude diversion is not available to Tan under the legislation as currently enacted.⁵

A. Legal Standards

Whether defendants charged with misdemeanor DUI are eligible for diversion raises a question of statutory interpretation for our independent review. ( People v. Gonzalez (2017) 2 Cal.5th 1138, 1141, 218 Cal.Rptr.3d 150, 394 P.3d 1074 ; People v. Tran (2015) 61 Cal.4th 1160, 1166, 191 Cal.Rptr.3d 251, 354 P.3d 148.) " ‘ " ‘As in any case involving statutory interpretation, our fundamental task ... is to determine the Legislature's intent so as to effectuate the law's purpose. [Citation.] We begin by examining the statute's words, giving them a plain and commonsense meaning.’ " ’ [Citation.] ‘[W]e consider the language of the entire scheme and related statutes, harmonizing the terms when possible.’ " ( Gonzalez , at p. 1141, 218 Cal.Rptr.3d 150, 394 P.3d 1074 ; People v. Valencia (2017) 3 Cal.5th 347, 357, 220 Cal.Rptr.3d 230, 397 P.3d 936 [" ‘[t]he 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’ "].) If the language of the statute is clear and unambiguous, there is no need for judicial construction and our task is at an end. If the language is reasonably susceptible of more than one meaning, however, we may examine extrinsic aids such as the apparent purpose of the statute, the legislative history, the canons of statutory construction, and public policy. ( Even Zohar Construction & Remodeling , Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 838, 189 Cal.Rptr.3d 824, 352 P.3d 391 ( Even Zohar ); People v. Arias (2008) 45 Cal.4th 169, 177, 85 Cal.Rptr.3d 1, 195 P.3d 103.)

B. Statutory Language

Generally, the most reliable indicator of legislative intent is the words of the statute. ( Even Zohar , supra , 61 Cal.4th at pp. 837–838, 189 Cal.Rptr.3d 824, 352 P.3d 391.) Accordingly, we turn first to the plain language of the statutes at issue.

Section 1001.95 provides, in relevant part: "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 pursuant to these provisions." ( § 1001.95, subd. (a).) Subdivision (e) further provides that "A defendant may not be offered diversion pursuant to this section for any of the following current charged offenses," and includes any offense for which a person, if convicted, would have to register under section 290 (sex offender registration); violation of section 273.5 (inflicting corporal injury on domestic violence victim); violation of section 243, subdivision (e) (battery on a domestic violence victim); and violation of section 646.9 (stalking). ( § 1001.95, subd. (e).) Under the plain words of the statute, judges have discretion to offer diversion for misdemeanor offenses over the objection of a prosecuting attorney unless the offense is one of the specifically excluded categories listed in subdivision (e).

Vehicle Code section 23640, subdivision (a) provides: "In 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 ...." As our courts have concluded, the clear import of this language is that diversion is categorically unavailable to DUI defendants. ( Grassi , supra , 73 Cal.App.5th at p. 291, 288 Cal.Rptr.3d 385 ; Tellez v. Superior Court (2020) 56 Cal.App.5th 439, 443, 270 Cal.Rptr.3d 418 ( Tellez ).)

Read separately, the statutes appear to conflict. On the one hand, defendants like Tan who have been charged with a misdemeanor DUI appear to qualify for judicial diversion under section 1001.95 because DUIs are not expressly excluded from the statute. On the other hand, it appears Tan does not qualify for diversion under Vehicle Code section 23640 because that statute prohibits diversion for all DUIs.

C. Harmonization

Our Supreme Court has instructed that where statutes possibly conflict, "two principles of statutory construction are especially relevant. First, ‘ "[a] court must, where reasonably possible, harmonize statutes, reconcile seeming inconsistencies in them, and construe them to give force and effect to all of their provisions." ’ " ( Even Zohar , supra , 61 Cal.4th at p. 838, 189 Cal.Rptr.3d 824, 352 P.3d 391.) " ‘Thus, when " ‘two codes are to be construed, they "must be regarded as blending into each other and forming a single statute." [Citation.] Accordingly, t...