73 Cal.App.5th 283
Cal. Ct. App.2021Background
- Nancy Grassi was charged with misdemeanor DUI (Veh. Code §23152). After Penal Code §1001.95 (new misdemeanor diversion statute) took effect on Jan 1, 2021, she moved for diversion; the Orange County DA opposed based on Vehicle Code §23640, which bars diversion for DUI charges.
- The trial court denied diversion (relying on §23640 and Tellez), the appellate division denied a writ, and Grassi petitioned the Court of Appeal which issued an order to show cause and heard argument.
- §23640 (formerly §23202) has long prohibited courts from suspending or staying DUI proceedings to permit diversion/treatment programs; §1001.95 authorizes discretionary misdemeanor diversion but lists specific exclusions in subdivision (e) that do not expressly mention DUI.
- The parties disputed whether §1001.95 implicitly repealed or superseded §23640 (making misdemeanor DUI eligible), or whether §23640 remained an exception to §1001.95.
- The court found the legislative history of §1001.95 sparse and inconclusive, and the traditional canons of construction did not resolve the conflict decisively.
- Holding: the court harmonized the statutes, concluding §1001.95 authorizes diversion for misdemeanors except those listed in subdivision (e) and except misdemeanor DUI defendants covered by Vehicle Code §23640; the writ was denied and the court urged the Legislature to clarify the law.
Issues
| Issue | Grassi's Argument | OCDA's Argument | Held |
|---|---|---|---|
| Whether Penal Code §1001.95 makes misdemeanor DUI defendants eligible for diversion despite Vehicle Code §23640 | §1001.95’s plain text and legislative history show diversion is available for all misdemeanors except the four listed in §1001.95(e); DUI is not listed, so Grassi is eligible | §23640 (and precedent interpreting it) expressly bars diversion for DUI; §1001.95 did not expressly override §23640 so DUI remains ineligible | The statutes can and should be harmonized: §1001.95 permits diversion for misdemeanors except those in §1001.95(e) and except misdemeanor DUI defendants under §23640; petition denied |
| Whether §1001.95 applies retroactively to Grassi’s pending (pre-enactment) DUI prosecution | §1001.95 provides an ameliorative benefit and applies to nonfinal cases, so Grassi can seek diversion | OCDA did not contest retroactivity in appellate briefing | Court concluded ameliorative rule applies: defendant has right to have court determine eligibility for diversion where case is not final |
Key Cases Cited
- People v. Weatherill, 215 Cal.App.3d 1569 (Cal. Ct. App. 1989) (held Vehicle Code provision barred diversion for DUI defendants and treated that bar as controlling absent clear legislative change)
- People v. VanVleck, 2 Cal.App.5th 355 (Cal. Ct. App. 2016) (concluded newer diversion statute did not override §23640 absent explicit inclusion of DUI)
- Hopkins v. Superior Court, 2 Cal.App.5th 1275 (Cal. Ct. App. 2016) (reached opposite result of VanVleck as to whether later diversion statute superseded §23640; highlighted tension in canons)
- Tellez v. Superior Court, 56 Cal.App.5th 439 (Cal. Ct. App. 2020) (concluded §23640 remained an exception to mental-health diversion where legislative history showed the Legislature did not intend to override §23640)
- Moore v. Superior Court, 58 Cal.App.5th 561 (Cal. Ct. App. 2020) (reaffirmed that DUI defendants remained excluded from mental-health diversion absent legislative action to override §23640)
- State Dept. of Public Health v. Superior Court, 60 Cal.4th 940 (Cal. 2015) (explained harmonization rules and that specific statutory provisions prevail over general ones when conflict arises)
- People v. Frahs, 9 Cal.5th 618 (Cal. 2020) (ameliorative criminal statutes apply retroactively to nonfinal cases)