People v. Superior Court, JAD21-03

Beau Espeso was charged (11/16/2020) with misdemeanor DUI (Veh. Code §23152(a) & (b)) and a special allegation his BAC was ≥ 0.15%.
Penal Code §1001.95 (court-initiated misdemeanor diversion) was enacted after the charge (effective Jan 2021).
Espeso requested diversion under §1001.95; the prosecutor opposed, citing Espeso’s .22 BAC and collateral property damage when he lost control of his vehicle.
On April 6, 2021 the trial court applied §1001.95 retroactively, found Espeso eligible and suitable, and granted 24-month diversion with conditions (AA and restitution).
The People petitioned for a writ to vacate the diversion order; the appellate court issued a Palma notice after finding the petition appeared meritorious; the trial court declined to rescind its order.
The appellate division held §1001.95 does not allow misdemeanor DUI diversion in light of Vehicle Code §23640 and issued a peremptory writ directing the trial court to vacate the diversion order and deny diversion.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether misdemeanor DUI defendants may be granted court-initiated diversion under Penal Code §1001.95 despite Vehicle Code §23640	Veh. Code §23640 bars suspension/stay/dismissal or considering dismissal for DUI based on program participation; it precludes diversion for DUI	§1001.95 creates a new court-initiated diversion remedy; its enactment (and some legislative comments) shows intent to allow DUI cases to be diverted	DUI is not eligible for diversion under §1001.95 because Vehicle Code §23640 clearly bars such diversion and there is no clear legislative intent to repeal §23640 by implication
Whether legislative history or prior pilot programs show an intent to implicitly repeal or override Vehicle Code §23640	Legislative silence in §1001.95 and some legislators’ comments support treating DUI as eligible; prior pilot differences suggest Legislature intended eligibility	Silence and differences are ambiguous; presumption against repeal by implication controls unless a clear legislative intent to repeal exists	Legislative history and the pilot program do not rebut the presumption against implied repeal; ambiguity resolves in favor of preserving Vehicle Code §23640

People v. Frahs, 9 Cal.5th 618 (2020) (ameliorative criminal statutes may apply retroactively to nonfinal cases)
In re Estrada, 63 Cal.2d 740 (1965) (presumption that ameliorative legislation applies retroactively)
State Dept. of Public Health v. Superior Court, 60 Cal.4th 940 (2015) (statutes should be harmonized; avoid repeal by implication)
Schelb v. Stein, 190 Cal.App.4th 1440 (2010) (presumption against repeal by implication when statutes conflict)
Moore v. Superior Court, 58 Cal.App.5th 561 (2020) (analyzing DUI diversion in light of Vehicle Code §23640)
Tellez v. Superior Court, 56 Cal.App.5th 439 (2020) (discussing ambiguity about DUI eligibility for new diversion programs)
Palma v. U.S. Industrial Fasteners, Inc., 36 Cal.3d 171 (1984) (procedural Palma notice practice for writ petitions)