Wade v. Superior Court

Filed 3/28/19
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

ANDREW M. WADE, H045813
(Monterey County
Petitioner, Super. Ct. No. 17CR001569)

v.

THE SUPERIOR COURT OF
MONTEREY COUNTY,

Respondent;

THE PEOPLE,

Real Party in Interest.

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).)
2
(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

1
The district attorney argued that the following criteria should preclude a
defendant from military diversion: (1) excessive blood alcohol (0.15 or higher);
(2) refusal to submit to chemical testing; (3) driving under the influence and hit and run;
(4) prior DUI conviction; (5) arrest for DUI while on probation for any offense; or
(6) driving under the influence of combined drugs and alcohol.

3
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

2
The seven eligibility criteria listed on the information sheet provide that the
defendant: (1) is charged with a misdemeanor only; (2) is a current or former member of
the United States military; (3) may be suffering from one of the listed, service-related
traumatic or mental health conditions; (4) consents to military diversion and waives the
right to a speedy trial; (5) signs a waiver related to future disclosure of any record
relevant to treatment under military diversion; (6) will be assigned a probation officer to
set additional reporting and treatment requirements during the course of the military
diversion; and (7) has not been granted military diversion in another case.
(continued)
4
 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 29 factors of consideration include, among others: the nature of the charges;
whether the crime involved violence or bodily harm; whether the defendant was armed or
used a weapon; whether the defendant induced others to participate in the crime; whether
the defendant was on probation or parole; whether the crime involved damage of great
monetary value or a large quantity of contraband; the defendant’s prior convictions or
prior performance while under court supervision; whether the defendant engaged in
violent conduct that indicates a serious danger to society; whether the defendant
exercised caution to avoid harm to persons or damage to property; whether the defendant
has no prior record or an insignificant record of criminal conduct; and whether the
defendant voluntarily acknowledged wrongdoing before arrest or at an early stage of the
proceedings.

5
 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. The driving was bad driving in this particular case. . . .[3]
Also the fact that the defendant was not a passive participant . . . . He decided to drink
alcohol and decided to drive a motor vehicle. So that being said, in this particular case,
the Court believes that public safety would dictate that this particular case not come
within 1001.8[0], respectfully.”

3
It is unclear in the reference to “bad driving” whether the trial court may have
relied on inaccurate facts included in the People’s written opposition to the request for
pretrial diversion. (See Analysis post, part II.C.2.)

6
C. Petition for Writ of Mandate in the Superior Court Appellate Division
Wade filed a petition for writ of mandate in the trial court’s appellate division,
claiming the trial court “applied criteria and factors that do not accord with either the
letter or the spirit of section 1001.80.” Wade also sought a stay, citing irreparable
harm based on the denial of a substantial right conferred by the Legislature under
section 1001.80 and irreversible damage to his military career.
Wade later asked the appellate division to grant calendar preference, or
alternatively to certify and transfer the matter to the Court of Appeal. In a sworn
declaration, Wade outlined the pending repercussions of the driving under the influence
charge, including reinvestigation of his security clearance. He explained that the military
review panel would consider the outcome in civilian court, including if he is allowed to
participate in pretrial diversion. He noted that after completing his Master’s degree at the
Naval Postgraduate School he likely will be deployed, but his anticipated assignment as a
Special Forces Company Commander is in jeopardy pending resolution of the charge.
Wade also sought to correct “significant factual errors” in the People’s written
opposition to the request for pretrial diversion, namely that he had engaged in
“ ‘dangerous driving resulting in a collision’ ” and had “left the scene.” Wade avowed
responsibility for his “exceptionally poor judgment” in driving under the influence of
alcohol but asserted that he “did not cause an accident,” “did not hurt any other person or
property,” and “did not leave the scene of an accident.”

D. Appellate Division Denial of Writ Petition
A panel of the appellate division denied the writ petition in a divided two-to-one
opinion. Both the majority and the dissent concluded that like California’s other
diversion statutes, the primary objective of military diversion is for the court to consider
whether an eligible defendant will benefit from education, treatment, and rehabilitation.
Both opinions recognized that the trial court did not directly consider this primary
objective in making its decision but instead focused on factors from the information sheet

7
related to the nature of the offense. It is on this point that the majority and dissent
disagreed: whether these factors were a proper basis for the trial court’s decision to deny
Wade’s pretrial military diversion request.
The two-member majority opinion found no error in the trial court’s consideration
of the information sheet factors, which it likened to the statutorily-prescribed “mitigating
and aggravating factors” in the comparable context of deciding deferred entry of
judgment for juveniles. 4 Given the trial court’s discretion to deny pretrial diversion, the
majority was “reluctant to presume that the court did not consider the primary objective
of the statute” in rendering its decision, stating that “[t]o do so would be to fail to accord
all presumptions in favor of the judgment.” It reasoned that the court properly rejected a
blanket exclusion or rule based on blood alcohol level and stated it had considered
Wade’s submissions. The majority concluded that substantial evidence supported the
trial court’s decision, and Wade failed to meet his burden of showing an abuse of
discretion.
The dissenting judge disagreed that the trial court’s exercise of discretion was
properly based in law. The judge noted that the origin of the information sheet factors in
the felony sentencing guidelines means they are “heavily weighted toward the severity of
the crime as the primary objective,” which “unsurprisingly” led the trial court to focus on
the offense and its inherent dangers rather than on whether the defendant would benefit
from education, treatment, and rehabilitation. The dissent also questioned the public
safety rationale for the court’s decision, since the Legislature “expressly allowed for all

4
Welfare and Institutions Code section 791, subdivision (b), provides that a court
considering a deferred entry of judgment in lieu of jurisdictional and disposition hearings
must direct the probation department to investigate and “take into consideration the
defendant’s age, maturity, educational background, family relationships, demonstrable
motivation, treatment history, if any, and other mitigating and aggravating factors in
determining whether the minor is a person who would be benefited by education,
treatment, or rehabilitation.” (Italics added.)

8
persons charged with misdemeanor driving under the influence to be eligible for pretrial
military diversion (without limitation based on blood alcohol content),” even defendants
charged with driving under the influence and causing injury, who “arguably” pose a
greater safety risk. Finding “nothing in the record, either explicitly or by inference” to
show that the court considered the rehabilitative objectives, the dissenting judge
concluded that the court had based its discretion “on an incorrect primary objective.”
Wade filed a petition for writ of mandate in this court. We requested preliminary
opposition to the petition, stayed the superior court proceedings, and issued an order to
show cause why a peremptory writ should not issue.
II. DISCUSSION
Wade seeks writ relief to overturn the order denying his request for pretrial
diversion and to direct the trial court to place him in the diversion program. He contends
that the trial court’s discretion to decide whether he is suitable for diversion does not
extend to criteria that are incompatible with the intent and purpose of the military
diversion statute. The People respond that the statute leaves the determination of a
defendant’s suitability to the sound discretion of the court, including for reasons
considered by the trial court in this case, namely the nature of the crime charged, public
safety, and any aggravating factors.
We briefly address whether writ relief is proper. As noted in relation to drug
diversion in Morse v. Municipal Court (1974) 13 Cal.3d 149, 155 (Morse), “[a]n order
denying diversion is a preliminary determination from which no provision is made for
interlocutory review but which is subject to review on appeal from a judgment in the
criminal proceedings.” However, Wade’s petition suggests that the issues before the trial
court in this case reflect a broader effort by the district attorney’s office in Monterey
County to disqualify otherwise eligible military defendants from pretrial diversion based
on factors not contemplated in the statute such as blood alcohol level. He also argues that

9
the felony sentencing guidelines are not an appropriate guidance for the court since they
have little bearing on a military defendant’s suitability for diversion.
We believe these issues warrant prompt resolution given the relative novelty of the
military diversion program and likelihood that the issues presented here will repeat as
military defendants seek the chance to participate in the program. (See Cal. Rules of
Court, rules 8.500 & 8.1002; Morse, supra, 13 Cal.3d at p. 155.)

A. Statutory Background
Section 1001.80 was enacted in 2014 and amended in 2017. 5 Military diversion
represents a relatively new addition to the state’s diversion programs, 6 which generally
authorize trial courts to divert eligible persons charged with qualifying offenses from the
normal criminal process into treatment and rehabilitation. (People v. Superior Court (On
Tai Ho) (1974) 11 Cal.3d 59, 61 (On Tai Ho); People v. Bishop (1992) 11 Cal.App.4th
1125, 1128 (Bishop).) The primary purpose of diversion is rehabilitation. (Bishop,
supra, at p. 1130.) As described by the California Supreme Court in its analysis of
California’s drug diversion statute, “diversion is intended to offer a second chance to
offenders who are minimally involved in crime and maximally motivated to reform, and
the decision to divert is predicated on an in-depth appraisal of the background and
personality of the particular individual before the court.” (On Tai Ho, supra, at p. 66.)
Section 1001.80 authorizes a trial court to grant pretrial diversion to a defendant
charged with a misdemeanor who was, or currently is, a member of the United States

5
Section 1001.80 (added by Stats. 2014, ch. 658 (S.B. 1227), § 1, eff. Jan. 1,
2015) was amended in 2017 by the passage of Senate Bill No. 725 (Stats. 2017, ch. 179
(S.B. 725), § 1, eff. Aug. 7, 2017).
6
The Legislature has enacted a range of diversion statutes, including by way of
example, drug diversion (§§ 1000-1000.4), misdemeanor diversion (§§ 1001.1-1001.9),
and diversion of individuals with mental disorders (§§ 1001.35-1001.36). (See Davis v.
Municipal Court (1988) 46 Cal.3d 64, 73-77 [summarizing the history of statutorily
mandated pretrial diversion programs in California].)

10
military, and who may be suffering from sexual trauma, traumatic brain injury,
posttraumatic stress disorder (PTSD), substance abuse, or mental health problems as a
result of his or her military service. (§ 1001.80, subd. (a).) If the court determines the
defendant meets the criteria and consents to diversion, the court may place the defendant
in a pretrial diversion program. (Id., subd. (b).) This means “postponing prosecution,
either temporarily or permanently” to treat the defendant who is suffering from one of the
listed conditions as a result of his or her military service. (Id., subd. (k)(1).)
As amended in 2017, a misdemeanor offense for which a defendant may be placed
in pretrial military diversion expressly includes a violation of Vehicle Code
sections 23152 or 23153 (for driving under the influence or for driving under the
influence and causing bodily injury to another person); diversion does not limit potential
administrative sanctions against the defendant’s driving privileges. (§ 1001.80, subd. (l).)
The Legislature amended section 1001.80 by urgency statute to clarify that military
diversion is available to defendants charged with misdemeanor driving under the
influence, notwithstanding Vehicle Code section 23640, which generally prohibits a
suspension or stay of proceedings on charges of driving under the influence to allow the
accused to participate in education or treatment. 7
Under section 1001.80, criminal proceedings may be reinstated for a defendant
found to be “performing unsatisfactorily in the assigned program” or who “is not
benefiting from the treatment and services provided under the diversion program”
(§ 1001.80, subd. (c)), but “[i]f the defendant has performed satisfactorily during the
period of diversion, . . . the criminal charges shall be dismissed.” (Ibid.) The statute

7
Court of Appeal decisions from 2016 disagreed as to whether Vehicle Code
section 23640 precluded application of the military diversion statute to a military
defendant charged with misdemeanor driving under the influence offenses. (Compare
People v. VanVleck (2016) 2 Cal.App.5th 355, 358 with Hopkins v. Superior Court
(2016) 2 Cal.App.5th 1275, 1278.)

11
addresses the type of program or treatment services a court may select for military
diversion, whether federal or community-based (id., subds. (d), (e)), directs the court to
“give preference to a treatment program that has a history of successfully treating
veterans who suffer” from the listed conditions as a result of military service (id.,
subd. (f)), and authorizes collaboration with the state and federal departments of veterans
affairs “to maximize benefits and services provided to a veteran” (id., subd. (g)).

B. Standard of Review
Section 1001.80 grants discretionary authority to the trial court. (§ 1001.80,
subd. (b) [stating the court “may” place a defendant in military diversion upon
determining the person, charged with a misdemeanor offense, meets the dual criteria for
eligibility set forth in subd. (a)].) We therefore apply the abuse of discretion standard to
our review of the trial court’s denial of Wade’s request.
It is commonly said that a trial court abuses its discretion when it “ ‘exceeds the
bounds of reason, all of the circumstances before it being considered’ ” (Denham v.
Superior Court (1970) 2 Cal.3d 557, 566) or its decision is “so irrational or arbitrary that
no reasonable person could agree with it.” (People v. Carmony (2004) 33 Cal.4th 367,
377 (Carmony).) But judicial discretion must also be “ ‘guided and controlled by fixed
legal principles, to be exercised in conformity with the spirit of the law, and in a manner
to subserve and not to impede or defeat the ends of substantial justice.’ ” (People v.
Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977 (Alvarez).)
This understanding is essential to assess the scope of judicial discretion conferred
by statute. It means that “all discretionary authority is contextual . . . .” (Alvarez, supra,
14 Cal.4th at p. 978.) A reviewing court “cannot determine whether a trial court has
acted irrationally or arbitrarily . . . without considering the legal principles and policies
that should have guided the court’s actions.” (Carmony, supra, 33 Cal.4th at p. 377.)

12
 Where the source of discretion is statutory, we measure the trial court’s exercise of
judicial discretion “against the general rules of law and . . . against the specific law that
grants the discretion.” (Horsford v. Board of Trustees of California State University
(2005) 132 Cal.App.4th 359, 393 (Horsford).) “If the court’s decision is influenced by an
erroneous understanding of applicable law or reflects an unawareness of the full scope of
its discretion, the court has not properly exercised its discretion under the law. [Citation.]
Therefore, a discretionary order based on an application of improper criteria or incorrect
legal assumptions is not an exercise of informed discretion and is subject to reversal.”
(Farmers Ins. Exchange v. Superior Court (2013) 218 Cal.App.4th 96, 106 (Farmers).)
Simply stated, “an abuse of discretion arises if the trial court based its decision on
impermissible factors [citation] or on an incorrect legal standard.” (People v. Knoller
(2007) 41 Cal.4th 139, 156.)

C. Analysis
Wade argues that the trial court’s implementation of section 1001.80 must be
guided by the statute’s remedial purpose, clearly articulated in the legislative history. He
contends that the court committed legal error by considering factors designed to weigh
punishment for a convicted felon, not to assess whether a military defendant can benefit
from pretrial diversion. He claims in particular that by relying on the inherently
dangerous nature of driving under the influence, the trial court in effect added a limitation
to the statute that the Legislature could have, but did not include.
The People contend quite differently. They note, correctly, that section 1001.80,
subdivision (a) states the minimum eligibility requirements for military diversion,
providing a baseline upon which the trial court “may” place the defendant in a pretrial
diversion program as stated in subdivision (b). Since the statute does not list factors or
criteria to guide the court in deciding whether to grant pretrial diversion, and sets no
limits restricting what the court may consider, the People claim that trial judges

13
themselves must determine what criteria to apply. The People point to the information
sheet developed by the Monterey County Superior Court as one such example.
We are not entirely persuaded by either position. A trial court lacking specific,
statutory criteria to guide its suitability determination is not operating in a vacuum; that
the statute imposes no restrictions on what the court may consider does not alter the
court’s fundamental duty to exercise discretion consistent with the principles and purpose
of the governing law. (See Carmony, supra, 33 Cal.4th at p. 377.) But neither do we
view lawful limits on the exercise of discretion as a basis for limiting the court’s
consideration of factors or criteria that it deems relevant, so long as that assessment does
not reveal an erroneous understanding of or “ ‘transgress[] the confines of the applicable
principles of law’ ” (Horsford, supra, 132 Cal.App.4th at p. 393). The discretion to
consider a defendant’s suitability for pretrial military diversion necessarily requires
discretionary judgments about which criteria or factors best determine suitability, and
both operations of discretion must be informed by the legal principles and purpose of the
statute guiding the court’s actions.

1. The Purpose of Military Diversion Is to Promote the Treatment and
Rehabilitation of Eligible, Active Duty and Military Veterans Charged With
Misdemeanor Offenses, Including Driving Under the Influence
Our first step is to construe the military diversion statute. Our goal is to “ascertain
the intent of the Legislature so as to effectuate the purpose of the law. In determining
that intent, we consider the statute read as a whole, harmonizing the various elements by
considering each clause and section in the context of the overall statutory framework.”
(People v. Jenkins (1995) 10 Cal.4th 234, 246.)
Here, the statute defines eligibility only with reference to the defendant’s alleged
commission of a misdemeanor, his or her military status, and a listed condition related to
military service. (§ 1001.80, subd. (a) [diversion statute “shall apply” to cases in which
defendant is charged with a misdemeanor and is both (1) a current or former member of

14
the United States military and (2) suffering from sexual trauma, traumatic brain injury,
PTSD, substance abuse, or mental health problems as a result of military service].)
If these initial criteria are met and the defendant consents and waives the right to a speedy
trial, the court “may” place the defendant in a pretrial diversion program. (§ 1001.80,
subd. (b).) It is noteworthy that the Legislature did not limit eligibility by type or
category of misdemeanor crime, suggesting a broader intent than other diversion statutes
which do exclude specific offenses or conduct. 8 (People v. Cottle (2006) 39 Cal.4th 246,
254 [“ ‘ “[W]here a statute, with reference to one subject contains a given provision, the
omission of such provision from a similar statute concerning a related subject . . . is
significant to show that a different intention existed” ’ ”].)
We infer from these initial provisions that the Legislature’s primary consideration
in establishing eligibility was not the type of misdemeanor involved but the suffering of a
military or former military member from a traumatic condition related to his or her
military service. This is consistent with the emphasis of other provisions on rehabilitative
treatment under the program. Those provisions guide the trial court in program options
for the military defendant and assign preference to specialized treatment programs with
“a history of successfully treating veterans . . . .” (§ 1001.80, subd. (f).) They authorize
the court and treatment program to collaborate with state and federal veterans affairs
departments “to maximize benefits and services provided” to the veteran (id., subd. (g)).
The dismissal of the criminal charge after program completion preserves the rehabilitated
defendant’s options for employment and benefits. (See § 1001.80, subd. (i) [successful
diversion enables “the arrest upon which the diversion was based [to] be deemed to have

8
For example, misdemeanor diversion “shall not apply” to treatment for persons
convicted of driving under the influence violations (§ 1001.2, subd. (a)), and drug
diversion is limited to specified drug violations involving personal use but excludes those
violations involving sale, violence, or threatened violence (§ 1000, subd. (a)).

15
never occurred” and prevents it from being “used in any way that could result in the
denial of any employment, benefit, license, or certificate”].)
Although section 1001.80, subdivision (a) does not purport to exclude any specific
crime from eligibility for military diversion, Vehicle Code section 23640 prohibits
suspending or dismissing charges of driving under the influence in exchange for
participating in education or treatment for alcoholism or substance abuse. (Veh. Code,
§ 23640.) Conflicting appellate court decisions from 2016 prompted the Legislature to
amend section 1001.80 in 2017 to clarify that military diversion is available to eligible
defendants charged with misdemeanor driving under the influence or driving under the
influence and causing bodily injury to another person. Section 1001.80, subdivision (l)
thus eliminates any doubt about the Legislature’s intent to include military defendants
accused of misdemeanor drunk driving offenses within the scope of the military
diversion statute: “Notwithstanding any other law, including Section 23640 of the
Vehicle Code, a misdemeanor offense for which a defendant may be placed in a pretrial
diversion program in accordance with this section includes a misdemeanor violation of
Section 23152 or 23153 of the Vehicle Code.” (§ 1001.80, subd. (l).)
Based on the statute itself, we find that the intent of military diversion is to enable
trial courts to grant pretrial diversion for eligible military defendants to obtain specialized
treatment for a service-related trauma or condition, with the goal for that individual to
avoid the impediment of a misdemeanor record. It is evident that the principles behind
military diversion and the purpose of section 1001.80—what the dissenting appellate
division judge referred to as the “primary objective” of the statute—are rehabilitative,
irrespective of the misdemeanor charged.
To the extent the statutory language leaves any uncertainty of the Legislature’s
intent, we turn to the legislative history. (See Klein v. United States of America (2010)
50 Cal.4th 68, 77 [noting that courts look to a statute’s legislative history and the
historical circumstances behind its enactment when textual analysis “fails to resolve the
16
question of [the statute’s] intended meaning”].) Courts consider materials such as
committee reports and digests of the Legislative Counsel to be relevant because we “infer
that all members of the Legislature considered them when voting on the proposed
statute.” (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 46, fn. 9.)
The legislative history of section 1001.80 shows the intent was to tailor a pretrial
diversion program to the needs of active duty and military veterans who were not
adequately served by then-existing diversion programs for drug offenders, non-DUI
misdemeanor offenders, and misdemeanor offenders who suffered a cognitive defect.
(Sen. Pub. Safety Com., Com. on Sen. Bill No. 1227 (2013-2014 Reg. Sess.) Feb. 20,
2014, pp. 1-2.) The purpose of these diversion statutes, noted earlier, is rehabilitation.
(On Tai Ho, supra, 11 Cal.3d at p. 61; Bishop, supra, 11 Cal.App.4th at p. 1130; Morse,
supra, 13 Cal.3d at p. 158 [interpreting the Legislature’s “rehabilitative purpose” for
diversion statute].) The definition of “pretrial diversion” in section 1001.80,
subdivision (k)(1) uses the same language as section 1001.1. The drafters’ intent was to
extend the “well established” benefits of California’s pretrial diversion programs to
veterans, enabling the military defendant to “avoid the consequences of a conviction”
(Sen. Pub. Safety Com., Com. on Sen. Bill No. 1227 (2013-2014 Reg. Sess.), supra, p. 5)
and to access “appropriate treatment . . . programs with a history in dealing with the type
of trauma the veteran has suffered and in dealing with veterans” (id. at p. 5).
The legislative history of the bill that amended section 1001.80 in 2017 also
emphasized rehabilitation. Senate Bill No. 725 was enacted as an urgency statute in
order “to resolve conflicting interpretations of existing law . . . that may affect the rights
and liberties of veterans at the earliest time possible . . . .” (Stats. 2017, ch. 179, §1,
p. 2045.) The Legislative Counsel’s Digest for the bill described the existing diversion
law in terms of the trial court’s authority “to refer a military defendant to services for
treatment” and stated that under the amendment a defendant may be placed in a pretrial
diversion program for “a misdemeanor violation of driving under the influence or driving
17
under the influence and causing bodily injury.” (Legis. Counsel’s Dig., Sen. Bill No. 725
(2017-2018 Reg. Sess.) 1 Stats. 2017, p. 2043, italics added.)
Committee analyses framed the need to amend the statute in terms of public
safety. These documents emphasized the significant percentage of military defendants
seeking diversion who were charged with driving under the influence violations, the
nexus between substance abuse and service-related traumatic conditions, and the need for
timely and appropriate intervention to treat veterans and reduce recidivism. The attention
to these issues was not cursory; it formed the bulk of the argument for the amendment.
For example, the Senate Committee on Public Safety cited data showing that “California
courts are experiencing requests for military diversion from veterans charged with
violations of Vehicle Code sections 23152 and 23153 in significantly high numbers” and
explained “that timely and appropriate treatment for the conditions underlying substance
abuse yields effective results and greatly reduces recidivism.” (Sen. Pub. Safety Com.,
Com. on Sen. Bill No. 725 (2017-2018 Reg. Sess.) Feb. 17, 2017, p. 3.)
The Senate Rules Committee analysis similarly stated, “Data today shows that at
least 1/3 of all persons who seek military diversion are charged with violations of Vehicle
Code section 23152/23153 . . . . DUI’s make up the most common offenses committed
by veterans with mental health conditions—which is expected since self-medication is
widely known to be connected to symptoms of mental health conditions like post
traumatic stress disorder (PTSD) and traumatic brain injury (TBI). Any incentive that
gets the veteran into treatment helps protect the public safety.” (Sen. Rules Com., Off. of
Sen. Floor Analyses, 3d reading analysis of Sen. Bill No. 725 (2017-2018 Reg. Sess.) as
amended Jul. 17, 2017, p. 5.) The Assembly analysis referenced the same statistic for the
percentage of persons seeking military diversion and stated that “ ‘diversion and
treatment of veterans with behavioral health conditions stemming from their military
service is important to the safety and health of our veterans and communities. Untreated
behavioral health conditions have a strong propensity to lead to self-medication with
18
alcohol and drugs.’ ” (Assem. Pub. Safety Com., Analysis of Sen. Bill No. 725
(2017-2018 Reg. Sess.) as introduced Feb. 17, 2017, p. 3.)
This legislative history broadly reinforces the rehabilitative purpose of the military
diversion statute and shows an unambiguous intent to make pretrial diversion available to
military personnel whose suffering from service-related traumatic conditions manifests in
substance or alcohol abuse and, relatedly, in violations of Vehicle Code sections 23152 or
23153. This history does not, however, any more than the statutory text itself, specify
criteria for the trial court to consider. Since “ ‘[a]ll exercises of legal discretion must be
grounded in reasoned judgment and guided by legal principles and policies appropriate to
the particular matter at issue’ ” (Alvarez, supra, 14 Cal.4th at p. 977), we conclude that
the principles of access to treatment and potential for rehabilitation must inform the
exercise of discretion under section 1001.80.

2. The Trial Court’s Denial of Wade’s Pretrial Diversion Request Based Chiefly
on the Nature of the Offense Conflicts With the Legislature’s Express Intent to
Include Driving Under the Influence Offenses Within the Scope of the Military
Diversion Statute
We next consider whether the trial court abused its discretion by denying Wade’s
request for pretrial diversion based upon considerations that were inconsistent with the
rehabilitative purpose of the military diversion statute. Two questions emerge. First, did
the court rely on improper criteria in considering the information sheet factors? Second,
did the court’s decision, based primarily on the “inherently dangerous” driving under the
influence violation and on Wade’s blood alcohol concentration, contradict the
Legislature’s intent to include driving under the influence violations within the scope of
the statute? An affirmative answer to either question would constitute prejudicial legal
error. (Farmers, supra, 218 Cal.App.4th at p. 106 [“[A] discretionary order based on an
application of improper criteria or incorrect legal assumptions is not an exercise of
informed discretion and is subject to reversal”].)

19
 As to the first question, we are unable to conclude from the record in this case that
the trial court’s consideration of the information sheet factors alone constituted legal
error. We noted earlier that the Monterey County Superior Court compiled the
information sheet in collaboration with the local offices of the district attorney and the
public defender. The 29 “factors of con[s]ideration in granting or denying military
diversion” are derived from the felony sentencing guidelines set forth in California Rules
of Court, rules 4.414 (criteria affecting probation), 4.421 (circumstances in aggravation),
and 4.423 (circumstances in mitigation). These rules apply to felony convictions under
the state’s determinate sentencing system. (Id., rule 4.403.) They guide the sentencing
court’s exercise of discretion in deciding whether to grant probation, or if probation is
denied, whether to impose the upper, middle, or lower term. (Id., rule 4.420; People v.
Sandoval (2007) 41 Cal.4th 825, 836.)
Setting aside for a moment the trial court’s stated reasons for denying pretrial
diversion, there is no question that the information sheet factors, on their face, are driven
by different considerations than the military diversion statute. The rehabilitative purpose
of military diversion requires the trial court to assess whether an eligible candidate might
benefit from specialized treatment for veterans and potentially complete diversion in
furtherance of the statutory objectives. But under the determinate sentencing law, the
trial court considers factors relating to both the crime and the defendant to “select the
term which, in the court’s discretion, best serves the interests of justice.” (§ 1170,
subd. (b).) These pertain broadly to the severity of the crime, victim and community
impact, and the defendant’s personal culpability. (See People v. Black (2007) 41 Cal.4th
799, 816 [aggravating circumstances “serve as a consideration in the trial court’s exercise
of its discretion in selecting the appropriate term from among those authorized for the
defendant’s offense”].) The information sheet factors essentially duplicate these
considerations, none of which directly addresses a defendant’s disposition for “benefiting

20
from the treatment and services provided under the diversion program.” (§ 1001.80,
subd. (c).)
The fact that the information sheet factors reflect considerations more pertinent to
felony sentencing than to a defendant’s treatment and rehabilitation does not make them
improper or irrelevant to the court’s analysis, however. Many of the criteria included in
the information sheet—including, among others, the nature of the charges, whether the
defendant has engaged in violent conduct that presents a serious danger to society, the
defendant’s prior record, and whether the defendant voluntarily acknowledged
wrongdoing—may provide the diversion court with valid insight into an eligible
defendant’s disposition for rehabilitation under section 1001.80. We accordingly reject
any blanket characterization of the information sheet factors as improper criteria. What is
determinative on a case by case basis is whether the trial court’s consideration of
particular criteria was guided by the appropriate legal principles. (See Carmony, supra,
33 Cal.4th at p. 377.)
Here, the trial court relied on the rubric provided by the information sheet,
creating a record of its considerations. Though the court suggested it was not strictly
bound to the information sheet factors and that it had reviewed the submissions of
Wade’s counsel, its explanation for denying pretrial diversion gave no indication that it
was informed by the rehabilitative principles that define the military diversion statute.
On this point, we agree with the appellate division’s dissent, which found nothing in the
record to demonstrate, “either explicitly or by inference, that the trial court based its
discretion with the proper primary objective in mind.” 9 We conclude that the trial court’s
9
We do not concur with the appellate division majority opinion’s application of
the principle of appellate review to “accord all presumptions in favor of the judgment” on
this point because, as Wade points out, the record is not silent about the factors the court
considered. The presumption that the judge “knows and applies the correct statutory and
case law” and can “recognize those facts which properly may be considered in the
judicial decisionmaking process” (People v. Coddington (2000) 23 Cal.4th 529, 644,
(continued)
21
considered criteria—including the “inherently dangerous” nature of the offense, Wade’s
0.16 blood alcohol concentration, his “nonpassive” role in committing the offense, and
his purported “bad driving” at the time of the offense—was not an exercise of informed
discretion because there is no basis on which to infer that the court related those criteria
to Wade’s suitability for treatment and rehabilitation.
But even if the trial court’s stated considerations supported an inference that the
court applied the information sheet factors in a manner consistent with the purpose and
principles of the military diversion statute, the court’s specific findings based on the
misdemeanor driving under the influence charges lead to an untenable result. The court
cited public safety as the basis for rejecting Wade’s request, reasoning that “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” and “[t]he driving was
bad driving in this particular case.” 10 In treating the dangerous nature of Wade’s offense,
aggravated by his high blood alcohol concentration and “bad driving” as dispositive, the

overruled on other grounds by Price v. Superior Court (2001) 25 Cal.4th 1046, 1069,
fn. 13) operates when the record is silent. (People v. Coddington, supra, at p. 645; see
Ross v. Superior Court (1977) 19 Cal.3d 899, 913 [in the absence of contrary evidence,
the reviewing court is entitled to presume that the trial court properly followed
established law].) But here, the court stated its considerations on the record, and none
pertained to rehabilitative potential.
10
The trial court’s reasoning in full is as follows: “The Court has considered the
fact that you don’t have a record. The Court has also considered and reviewed the letters
presented by counsel. But when the Court looks at the nature of the charge, driving under
the influence—and I should indicate . . . we do have a driving under the influence for two
in our particular program as we speak. But 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. And . . . this was a .16. The driving was bad
driving in this particular case. So the Court will take a look at that particular factor. Also
the fact that the defendant was not a passive participant, but he did drive a motor vehicle
while under the influence of alcohol. He decided to drink alcohol and decided to drive a
motor vehicle. So that being said, in this particular case, the Court believes that public
safety would dictate that this particular case not come within 1001.8[0], respectfully.”

22
court contradicted the Legislature’s explicit intent in amending section 1001.80 to ensure
that military defendants charged with misdemeanor driving under the influence are not
excluded from consideration for pretrial diversion. (§ 1001.80, subd. (l).)
As noted in our mention of the legislative history, the Legislature viewed pretrial
diversion for active duty and military veterans as a critical measure to improve outcomes
for the substantial percentage of military defendants charged with driving under the
influence offenses. (See ante, part II.C.1.) The legislative history specifically addressed
the reality of military veterans turning to substances like alcohol to self-medicate their
service-related conditions. And as evidenced by the inclusion of misdemeanor driving
under the influence resulting in bodily injury to another person, the Legislature was
aware of the inherent dangers to public safety, which naturally are aggravated by an
offender’s level of intoxication. Notably, however, section 1001.80, subdivision (l) does
not impose a limit or carve out any exception based on blood alcohol concentration.
(Cf. Veh. Code, § 23578 [authorizing sentencing enhancement for driving under the
influence conviction with blood alcohol concentration of 0.15 or more].)
The Legislature’s clear intent to make the pretrial military diversion program
available to eligible, active duty military and veterans who are charged with driving
under the influence, with no stated limits based on blood alcohol concentration or the
inherently dangerous nature of the offense, severely limits the trial court’s discretion to
deny military diversion for an eligible defendant on those grounds. Simply put, the trial
court in this case did not have discretion to deny Wade’s request based on the inherently
dangerous nature of driving while intoxicated, because the Legislature implicitly
considered the commonly occurring features of DUI offenses but nevertheless elected to
include them in the statutory program without restriction.
It also appears that the trial court may have relied on inaccurate facts when it
based its decision in part on “bad driving in this particular case.” According to the
prosecutor’s summary at the hearing, Wade was driving slowly on the highway and
23
weaving in the lane; he also attempted to pull to the shoulder at an unsafe location. This
is inconsistent with the People’s written opposition brief, in which they stated that Wade
posed a “serious risk to the people of the community given his . . . dangerous driving
resulting in a collision, and decision to leave the scene of the collision.” Wade sought to
correct the People’s written misstatements in his later-filed declaration to the appellate
division. The likelihood that the “bad driving” determination was derived from
inaccurate statements in the written opposition further undermines the validity of the trial
court’s exercise of discretion on that basis.
Our holding is a narrow one; it does not limit the trial court’s discretion to decide
whether a military defendant is suitable for pretrial diversion under section 1001.80 or
restrict the court’s authority to identify factors or criteria relevant to its inquiry.
However, in the context of the military diversion statute, the court’s discretionary
determinations about who is suitable to participate in pretrial diversion and how to
evaluate suitability may not ignore or contravene the legislative intent to include
misdemeanor driving under the influence offenses within the scope of section 1001.80.
Because the determination that Wade’s case did “not come within [section] 1001.8[0]”
was antithetical to the Legislature’s purposeful inclusion of DUI offenses in the statute,
we conclude that the trial court abused its discretion in denying Wade’s diversion request
on that basis. Accordingly, we will grant Wade’s petition for writ of mandate.

D. Remedy
Wade asks this court to grant writ relief and to order the trial court to admit him
into the military diversion program based upon the merits of his request. The People
argue that the requested relief is improper. Based on our conclusion that the trial court
failed to exercise its discretion in conformity with section 1001.80, the proper remedy is
for the trial court to reconsider the diversion request, bearing in mind the statutory

24
principles and purpose and the legislative intent not to exclude eligible misdemeanor
driving under the influence offenders from consideration for military diversion.
III. DISPOSITION
Let a peremptory writ of mandate issue directing respondent superior court to
vacate its order of September 27, 2017, denying Wade’s request for placement in the
military diversion program. On remand, the superior court shall exercise its discretion in
conformity with the principles articulated here to decide whether Wade is a suitable
candidate for pretrial diversion, treatment, and rehabilitation. The temporary stay order is
vacated.

25
 Grover, J.

WE CONCUR:

Greenwood, P.J.

Elia, J.

Wade v. Superior Court
H045813
Trial Court: Monterey County Superior Court
Superior Court No. 17CR001569

Trial Judge: Hon. Pamela L. Butler

Counsel for Petitioner: Strong Appellate Law
Andrew M. Wade Jeanine G. Strong

Counsel for Real Party in Interest: District Attorney for Monterey County
The People Dean D. Flippo
Cristina Johnson
Deputy District Attorney

Counsel for Respondent: No appearance for respondent
Monterey County Superior Court

Wade v. Superior Court
H045813