Filed 5/20/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
ALICIA URBIETA ISLAS, H049445
(Santa Clara County
Petitioner, Super. Ct. Nos. F20001358,
21AP002718)
v.
THE SUPERIOR COURT OF SANTA
CLARA COUNTY,
Respondent;
THE PEOPLE,
Real Party in Interest.
Petitioner Alicia Urbieta Islas is charged with misdemeanor driving under the
influence of alcohol (DUI). (Veh. Code, § 23152, subds. (a) and (b).) She moved for
pretrial diversion under Penal Code section 1001.95, which gives judges discretion to
offer diversion to misdemeanor defendants. The trial court denied diversion based on
Vehicle Code section 23640, under which DUI defendants are categorically ineligible for
diversion. The trial court’s appellate division having denied mandate relief, petitioner
seeks that relief here. We stayed trial court proceedings and issued an order to show
cause. We received an opposition brief from the district attorney and an amicus brief in
support of the petition from attorney Paul Burglin.
Two appellate courts have published decisions finding misdemeanor DUI
defendants similarly situated to petitioner categorically ineligible for Penal Code
section 1001.95 diversion. (Grassi v. Superior Court (2021) 73 Cal.App.5th 283
(Grassi); Tan v. Superior Court (2022) 76 Cal.App.5th 130 (Tan).) We agree with the
reasoning in those authorities and will therefore deny the petition for writ of mandate.
This matter presents a single issue: whether misdemeanor DUI defendants are
categorically ineligible from Penal Code section 1001.95 diversion by operation of
Vehicle Code section 23640. The issue is a question of statutory interpretation, which we
review de novo. (People v. Gonzalez (2017) 2 Cal.5th 1138, 1141.) “As in any case
involving statutory interpretation, our fundamental task here is to determine the
Legislature’s intent so as to effectuate the law’s purpose.” (People v. Murphy (2001)
25 Cal.4th 136, 142.) “We begin by examining the statute’s words, giving them a plain
and commonsense meaning.” (Ibid.) We “consider the language of the entire scheme
and related statutes, harmonizing the terms when possible.” (Riverside County Sheriff’s
Dept. v. Stiglitz (2014) 60 Cal.4th 624, 632.) “When the language of a statute is clear, we
need go no further.” (People v. Flores (2003) 30 Cal.4th 1059, 1063 (Flores).) It is only
when language is susceptible of more than one reasonable interpretation that “we may
‘look to a variety of extrinsic aids, including the ostensible objects to be achieved, the
evils to be remedied, the legislative history, public policy, contemporaneous
administrative construction, and the statutory scheme of which the statute is a part.’ ” (In
re M.M. (2012) 54 Cal.4th 530, 536.)
Penal Code section 1001.95, subdivision (a) states: “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.” Penal Code section 1001.95, subdivision (e) states that a “defendant may
not be offered diversion” for any of the following charged offenses: Penal Code
section 273.5 (inflicting corporal injury on a domestic violence victim); Penal Code
section 243, subdivision (e) (battery on a domestic violence victim); Penal Code
section 646.9 (stalking); and any offense for which a person would have to register under
Penal Code section 290 (sex offender registration).
2
Vehicle Code section 23640, subdivision (a) provides: “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.”
GRASSI V. SUPERIOR COURT AND TAN V. SUPERIOR COURT
Two appellate courts have considered the identical issue presented here and
determined that misdemeanor DUI defendants are categorically ineligible for Penal Code
section 1001.95 diversion by operation of Vehicle Code section 23640. (Grassi, supra,
73 Cal.App.5th 283, 308; Tan, supra, 76 Cal.App.5th 130.) As both decisions rely on
similar reasoning, we summarize only the latter.
Tan petitioned for a writ of mandate in the appellate court after the trial court
denied his petition for Penal Code section 1001.95 diversion in a misdemeanor DUI case.
(Tan, supra, 76 Cal.App.5th at p. 135. Undesignated statutory references are to the Penal
Code.) The Tan court first examined the language of the two relevant statutes, noting
that section 1001.95 vests judges with discretion to offer diversion for misdemeanor
defendants unless the offense is one listed in subdivision (e) of that section, whereas
under Vehicle Code section 23640 “diversion is categorically unavailable to DUI
defendants.” (Tan, at p. 137.) The court harmonized the statutes by interpreting Vehicle
Code section 23640 as an exception to the availability of diversion provided by
section 1001.95. The court noted that “section 1001.95 does not make specific reference
3
to Vehicle Code section 23640, nor does it include any other language indicating an
intent to establish an exception to section 23640’s unambiguous prohibition of diversion
in all DUI cases.” (Tan, at p. 138.) The court reasoned that “nothing in the language of
[section 1001.95,] subdivision (e) indicates that the list of offenses is exclusive,” and
excluding DUI offenses based on Vehicle Code section 23640 therefore did not conflict
with the language of section 1001.95. (Tan, at p. 139.) Because “nothing in
section 1001.95 indicates an affirmative intent to allow misdemeanor diversion for DUIs
and Vehicle Code section 23640 clearly prohibits it,” the court concluded that
section 1001.95 diversion is categorically unavailable to DUI defendants. (Tan, at
p. 139.)
The Tan court went on to address other arguments about legislative intent.
Regarding legislative history, the court determined the “very limited legislative history
available” did not provide any clarity regarding legislative intent. (Tan, supra,
76 Cal.App.5th at p. 140.) Statements in early floor analyses of what would become
section 1001.95 to the effect that no misdemeanors would be statutorily excluded were
contrary to the final text of the legislation and its four non-exclusive categories of
ineligible offenses. (Tan, at pp. 140–141; see § 1001.95, subd. (e).) Floor statements by
one assemblymember and one senator to the effect that DUI defendants would be eligible
for diversion under what would become section 1001.95 were unpersuasive because “we
cannot rely on statements from individual legislators as reflections of the Legislature’s
collective intent.” (Tan, at p. 141; citing Graham v. DaimlerChrysler Corp. (2004)
34 Cal.4th 553, 572, fn. 5.)
Regarding Tan’s arguments about the canons of statutory construction, the Tan
court “agree[d] with the thoughtful analysis of the Grassi court that these general canons
of statutory construction are of little assistance in resolving the question posed here.”
(Tan, supra, 76 Cal.App.5th at p. 143; see Grassi, supra, 73 Cal.App.5th at pp. 303–307.)
The principle that more specific statutory provisions prevail over general ones does not
4
resolve the issue because either statute can be construed as the more specific depending
on the focus. And “while generally later enacted statutes prevail over earlier enacted
statutes, in this case application of that principle conflicts with the command that we are
to construe statutes together where possible and avoid implied repeals of existing law.”
(Tan, at p. 143.) The court also concluded that the rule of lenity (which calls for
ambiguity in a criminal statute to be resolved in a defendant’s favor) applies only when
there is an “ ‘ “ ‘egregious ambiguity and uncertainty’ ” ’ ” in a statute and there is no
such ambiguity in the statutes at issue. (Id. at p. 142, fn. 7.)
The Tan court considered the interaction between Vehicle Code section 23640 and
other diversion statutes, including sections 1001.20 (developmental disabilities) and
1001.36 (mental health disorders). (Tan, supra, 76 Cal.App.5th at pp. 149–151.) The
court explained that comparisons to those diversion programs did not aid in resolving this
issue because the “other diversion programs and their legislative histories are all marked
by significant differences from section 1001.95.” (Id. at p. 150.) Even after considering
other diversion programs and cases interpreting them, the court remained “unconvinced
the failure to use the same exclusionary language employed in other diversion statutes
reflects legislative intent to allow diversion for a group of offenders expressly prohibited
from qualification under Vehicle Code section 23640.” (Id. at p. 151.) The Tan court
concluded “section 1001.95 and Vehicle Code section 23640 can be harmonized and read
together so that section 1001.95 allows a judge to grant misdemeanor diversion in his or
her discretion except when a defendant has been charged with a DUI or one of the
offenses listed in section 1001.95, subdivision (e).” (Ibid.)
5
PETITIONER IS CATEGORICALLY EXCLUDED FROM SECTION 1001.95 DIVERSION
Petitioner’s arguments mirror those that were thoroughly addressed in the well-
1
reasoned Tan and Grassi opinions. Petitioner suggests that other materials not discussed
in Tan shed light on legislative intent, including a statement from the Legislative
Counsel’s Digest and a signing statement from the Governor. But those materials are not
germane to our review because the plain language of the two statutes, considered
together, is unambiguous. (Flores, supra, 30 Cal.4th at p. 1063; see also Moore v.
Superior Court (2020) 58 Cal.App.5th 561, 582, fn. 12 [Governor’s post hoc signing
statement not binding, and not a reliable indicator of legislative intent]; California
Teachers’ Assn. v. Governing Board (1983) 141 Cal.App.3d 606, 614 [“If a law is clear
the Legislative Counsel’s Digest must be disregarded.”].) We agree with Tan and Grassi,
and conclude that petitioner is categorically ineligible for diversion under section 1001.95
by operation of Vehicle Code section 23640.
DISPOSITION
The petition for writ of mandate is denied. Upon issuance of the remittitur, the
temporary stay order is vacated.
1
Petitioner was charged in this case several months before section 1001.95 took
effect in January 2021. Though not addressed by the parties, consistent with Grassi and
Tan we conclude that the new law applies retroactively to nonfinal cases like petitioner’s
because it provides a potential ameliorative benefit to criminal defendants. (Tan, supra,
76 Cal.App.5th at p. 136, fn. 5; citing In re Estrada (1965) 63 Cal.2d 740.)
6
____________________________________
Grover, J.
WE CONCUR:
____________________________
Elia, Acting P. J.
____________________________
Wilson, J.
H049445 - Islas v. Superior Court
Trial Court Santa Clara County Superior Court
Case Nos.: F20001358, 21AP002718
Trial Judge Hon. Jacqueline M. Arroyo
Attorneys for Petitioner Daniel H. Vaswani
Alicia Urbieta Islas Joseph Patrick McPeak.
Simone Ernia Chambliss
Red Metric APC
Attorneys for Respondent No appearance for Respondent
The Superior Court of Santa Clara
County
Attorneys for Real Party in Interest Jeffrey F. Rosen
The People of the State of California District Attorney
S. Sheryl Leung
Deputy District Attorney
County of Santa Clara