81 Cal.App.5th 851
Cal. Ct. App.2022Background
- Jessica Ortiz was charged with two misdemeanor DUI counts (Veh. Code §§ 23152(a), (b)). The Riverside Superior Court granted pretrial diversion under Penal Code § 1001.95 over the prosecutor’s objection. The People sought a writ to vacate that diversion order.
- Penal Code § 1001.95 (enacted 2020) authorizes judges to offer pretrial diversion for "a misdemeanor," but lists certain misdemeanors as ineligible (sex offenses, domestic violence, stalking) and does not mention DUI or Vehicle Code § 23640.
- Vehicle Code § 23640 (originally enacted in the 1980s, reenacted 1998) bars any form of pretrial diversion for both felony and misdemeanor DUI offenses (Veh. Code §§ 23152, 23153).
- Several Courts of Appeal (Grassi, Tan, Islas, Espeso) held the statutes can be harmonized so § 23640 continues to bar DUI diversion; other panels (Tellez, Moore, Diaz-Armstrong majority) found irreconcilable conflict and either gave effect to the later diversion statute or used legislative history to conclude § 1001.95 prevailed.
- This court granted the People’s petition and held that § 23640 was not impliedly or partially repealed by § 1001.95; consequently misdemeanor DUI charges remain categorically ineligible for diversion under § 1001.95.
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument (Ortiz) | Held |
|---|---|---|---|
| Whether Penal Code § 1001.95 implicitly/partially repealed Vehicle Code § 23640 as to misdemeanor DUIs | § 23640 remains controlling; no clear legislative intent to repeal or override it | § 1001.95 allows diversion for “a misdemeanor” and legislative history shows lawmakers intended DUIs to be eligible; therefore § 1001.95 impliedly repealed § 23640 | Held: No implied partial repeal; § 23640 and § 1001.95 are harmonized so § 23640 bars diversion for misdemeanor DUIs |
| Whether the statutes can be harmonized or are irreconcilably in conflict | They can be harmonized: give effect to both by treating § 23640 as an independent bar to DUI diversion under § 1001.95 | They conflict: both are unambiguous and one permits what the other forbids; if irreconcilable, the later statute (§1001.95) should control | Held: The statutes can be harmonized; courts must give full effect to both statutes; therefore presumption against implied repeal applies |
| Whether legislative history rebuts the presumption against implied repeal | Legislative history is ambiguous/insufficient to show an unequivocal intent to repeal § 23640 | Floor statements and opposition showed the Legislature understood §1001.95 would allow DUI diversion, indicating intent to override §23640 | Held: Legislative history does not clearly and unequivocally demonstrate intent to partially repeal § 23640; it permits competing inferences and thus fails to rebut presumption against implied repeal |
| Whether the rule of lenity requires construing §1001.95 in favor of DUI defendants | N/A | If any ambiguity exists, interpret penal/ameliorative provisions to benefit the defendant | Held: Rule of lenity inapplicable because the statutes can reasonably be harmonized and legislative intent to repeal was not clearly shown |
Key Cases Cited
- State Dept. of Public Health v. Superior Court, 60 Cal.4th 940 (Cal. 2015) (statutory harmonization required when reasonably possible; strong presumption against repeal by implication)
- Tellez v. Superior Court, 56 Cal.App.5th 439 (Cal. Ct. App. 2020) (held Veh. Code §23640 controlled over Penal Code diversion statute in that context based on legislative history)
- Grassi v. Superior Court, 73 Cal.App.5th 283 (Cal. Ct. App. 2021) (harmonized §1001.95 and §23640 by treating §23640 as independent bar to DUI diversion)
- Tan v. Appellate Division, 76 Cal.App.5th 130 (Cal. Ct. App. 2022) (concluded statutes can be reconciled so DUIs remain ineligible under §1001.95)
- Hopkins v. Superior Court, 2 Cal.App.5th 1275 (Cal. Ct. App. 2016) (analyzed conflict between §23640 and military diversion statute; court considered irreconcilability and legislative intent)
- Moore v. Superior Court, 58 Cal.App.5th 561 (Cal. Ct. App. 2020) (agreed with Tellez that §23640 prevailed over mental-health diversion statute based on legislative history)
- Western Oil & Gas Assn. v. Monterey Bay Unified Air Pollution Control Dist., 49 Cal.3d 408 (Cal. 1989) (implied repeal requires undebatable evidence of intent to supersede earlier statute)
- Zamudio, People v. Superior Court (Zamudio), 23 Cal.4th 183 (Cal. 2000) (Legislature not presumed to intend to overthrow longstanding law absent clear expression)