NANCY GRASSI, Petitioner, v. THE SUPERIOR COURT OF ORANGE COUNTY, Respondent; THE PEOPLE, Real Party in Interest.
G060362 (Super. Ct. Nos. 19WM15522, 30-2021-01194652)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE
Filed 12/28/21
CERTIFIED FOR PUBLICATION
O P I N I O N
Martin F. Schwarz, Public Defender, Sara Ross, Assistant Public Defender, and Shawn McDonald, Deputy Public Defender, for Petitioner.
Todd Spitzer, District Attorney, and George Turner, Deputy District Attorney, for Real Party in Interest.
Nancy Grassi filed a petition for writ of mandate arguing the trial court erred by concluding she was statutorily ineligible for misdemeanor diversion. Grassi argues
In this case of first impression, we conclude the two statutes can be harmonized to provide diversion to misdemeanor defendants, except for those defendants excluded in
FACTS
In August 2019, the Orange County District Attorney (OCDA) filed a complaint charging Grassi with misdemeanor driving under the influence of drugs (
On January 1, 2021,
In this court, Grassi filed a petition for writ of mandate and exhibits. Seven exhibits concerned
DISCUSSION
I. Preliminary Matters
The OCDA states he will leave it to this court to determine whether writ review is timely and appropriate. The OCDA does not provide any argument on either subject. We trust that if he believed Grassi’s petition was untimely or review is inappropriate, he would say so. But he does not, and we will proceed to the merits. (Lee v. Kim (2019) 41 Cal.App.5th 705, 721 [failure to support contention with reasoned argument and legal authority results in forfeiture].)
II. Retroactivity
The Legislature enacted
III. Judicial Notice
The Orange County Public Defender (OCPD) requests we take judicial notice of the following exhibits he included with the reply, and not with the petition.
- Text of Assembly Bill No. 2124—Misdemeanor Diversion Pilot Program (LA pilot program) (Exhibit O);
- Transcript of the August 24, 2020, Assembly floor debate on Assembly Bill No. 3234 (AB 3234) (Exhibit P);
- Floor Alert—OCDA’s letter of August 20, 2020, Opposing AB 3234 (Exhibit Q);
- Floor Alert—California District Attorneys Association’s (CDAA) letter of August 24, 2020, Opposing AB 3234 (Exhibit R);
-
Floor Alert—Judicial Council of California’s (Judicial Council) letter of August 31, 2020, Opposing AB 3234 (Exhibit S); - Transcript of the August 31, 2020, Senate floor debate on AB 3234 (Exhibit T);
- The August 24, 2020, Assembly floor debate on AB 3234, which is available at: https://www.assembly.ca.gov/media/assembly-floor-session-20200824/video; and
- The August 31, 2020, Senate floor debate on AB 3234, which is available at: https://www.senate.ca.gov/media/senate-floor-session-20200831/video.
“A motion for judicial notice of published legislative history, such as the . . . analysis here, is unnecessary. [Citation.] ‘Citation to the material is sufficient. [Citation.] We therefore consider the request for judicial notice as a citation to those materials that are published.’ [Citation.]” (Wittenburg v. Beachwalk Homeowners Assn. (2013) 217 Cal.App.4th 654, 665, fn. 4.)
All of these documents were available when the OCPD filed his petition for writ of mandate, and all concern
Nevertheless, we treat Grassi’s request to take judicial notice of item Nos. 1, 2, 6, 7, and 8 as citations to those materials and deny her request to take judicial notice of them. As to item Nos. 3, 4, and 5, the floor alerts have sufficient relevance on appeal to support our taking judicial notice of them. (Greystone Homes, Inc. v. Midtec, Inc. (2008) 168 Cal.App.4th 1194, 1210-1211, fn. 6 [taking judicial notice of floor alerts].)
IV. Discussion
A. Statutory Language
Grassi contends
“This is a question of statutory construction. We seek to ‘ascertain the intent of the lawmakers so as to effectuate the purpose of the statute.’ [Citation.] ‘[W]e begin by looking to the statutory language. [Citation.] We
The starting point for our analysis is
Nevertheless, Grassi contends she was eligible for diversion pursuant to
“(a) 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.
“(b) A judge may continue a diverted case for a period not to exceed 24 months and order the defendant to comply with terms, conditions, or programs that the judge deems appropriate based on the defendant’s specific situation.
“(c) If the defendant has complied with the imposed terms and conditions, at the end of the period of diversion, the judge shall dismiss the action against the defendant.
“(d) If it appears to the court that the defendant is not complying with the terms and conditions of diversion, after notice to the defendant, the court shall hold a hearing to determine whether the criminal proceedings should be reinstituted. If the court finds that the defendant has not complied with the terms and conditions of diversion, the court may end the diversion and order resumption of the criminal proceedings.
“(e) A defendant may not be offered diversion pursuant to this section for any of the following current charged offenses:
(1) Any offense for which a person, if convicted, would be required to register pursuant to [s]ection 290.
(2) A violation of [s]ection 273.5.
(3) A violation of subdivision (e) of [s]ection 243.
(4) A violation of [s]ection 646.9.”
Both statutes are unambiguous in their plain language. When it comes to misdemeanor DUI defendants,
Before we consider
B. Diversion Statutes & Corresponding Case Authority
1. Developmentally Disabled Diversion
Over 30 years ago, the court in Weatherill, supra, 215 Cal.App.3d at page 1573, addressed the interplay between
After the Weatherill court discussed the Legislature’s intent to curb the evils of DUIs and the advent of diversion programs, including the “‘Lucky Deuce’” diversion program for first-time DUI offenders, by imposing swift and certain punishment, the court turned to defendant’s argument
In dissent, Justice Johnson explained he dissented in this “extraordinarily close case” where the majority “presented a well-reasoned” analysis “more out of frustration than conviction” because the Legislature “left the courts in a quandary.” (Weatherill, supra, 215 Cal.App.3d at pp. 1580-1581 (dis. opn. of Johnson, J.).) Justice Johnson agreed the two sections were in conflict, invited the Legislature to resolve the matter, and concluded the more persuasive view was defendant was eligible for diversion. (Id. at p. 1581.) He explained that “[i]t c[ould] be contended just as forcefully that
2. Military Diversion
Twenty-five years later, the Legislature enacted
The court in Hopkins v. Superior Court (2016) 2 Cal.App.5th 1275, 1278-1279 (Hopkins), addressed the identical issue as the VanVleck court, and reached the opposite conclusion. The Hopkins court examined the statutes’ express language and concluded it could not reconcile them. (Id. at pp. 1281-1283.) The court considered the canons of statutory construction. (Ibid.) Citing to Justice Johnson’s dissent in Weatherill, supra, 215 Cal.App.3d at page 1582 (dis. opn. of Johnson, J.), the Hopkins court found the general-versus-specific-statute canon unhelpful because it could apply either way depending on one’s “arbitrary choice of focus.” (Hopkins, supra, 2 Cal.App.5th at pp. 1283-1284.) The court instead concluded the earlier-versus-later-statute canon could only apply in one direction—the newer
Our Supreme Court granted review in both cases. (Hopkins, supra, 2 Cal.App.5th 1275, review granted Nov. 16, 2016, S237734; VanVleck, supra, 2 Cal.App.5th 355, review granted Nov. 16, 2016, S237219.) Before the court could rule, the Legislature resolved the conflict by amending
3. Mental Health Diversion
The following year, the Legislature enacted
The Tellez court explained the following: “This history establishes that the Legislature wanted the existing bar on diversion for DUI offenses [contained in
The Tellez court rejected defendant’s claim it should not read words into
As relevant here, the Tellez court opined the following: “We do not believe it is clear whether DUI offenses are eligible for the new misdemeanor diversion program, and we need not decide the issue. Even assuming that DUI offenses are eligible for such diversion, it does not follow that DUI offenses are also eligible for mental health diversion. Misdemeanor diversion already exists. In 1982, the Legislature enacted two sets of statutes providing for misdemeanor diversion programs. (. . .
In Moore v. Superior Court (2020) 58 Cal.App.5th 561, 579 (Moore), a slightly different panel of the same court reaffirmed its conclusion that if the Legislature had intended DUI defendants to be eligible for mental health diversion, it would have repealed or amended
No appellate court has weighed in on the issue before us. However, two superior court appellate division courts have.
In People v. Superior Court (Espeso) (2021) 67 Cal.App.5th Supp. 1, 6 (Espeso), the Los Angeles County Superior Court Appellate Division held the misdemeanor DUI defendant was ineligible for diversion. The court explained that “[t]o the extent there [was] a tension” between
In People v. Superior Court (Diaz-Armstrong) (2021) 67 Cal.App.5th Supp. 10, 13, 21 (Diaz-Armstrong), the majority in the Riverside County Superior Court Appellate Division held the misdemeanor DUI defendants were eligible for diversion. At the outset, the majority stated the issue was whether
The majority in Diaz-Armstrong, supra, 67 Cal.App.5th Supp. at page 24, turned to
In dissent, Judge Firetag opined all misdemeanor DUI defendants are categorically ineligible for diversion because
defendants and he found the latter cases, particularly Tellez and Moore, persuasive. (Id. at pp. 32-33section 1001.95 if it seeks to include DUIs for misdemeanor diversion.” (Id. at p. 32.)8
5. Application of Other Diversion Statute Authority to Section 1001.95
We agree with Grassi’s implicit assertion that Tellez, supra, 56 Cal.App.5th 439, and Moore, supra, 58 Cal.App.5th 561, are not controlling because they concerned a different diversion statute,
Grassi, however, relies on dicta from Tellez where the court mused DUI offenses were eligible for misdemeanor diversion pursuant to
C. Legislative History9
1. Background
On February 21, 2020, the Assembly introduced AB 3234, but its subject was the Government and Public Resources Codes; it was not
On August 3, 2020, the Assembly withdrew AB 3234 from the inactive file and placed it on the third reading file for the consideration of proposed amendments. AB 3234’s new subject was adding
On August 24, 2020, the Legislature amended AB 3234 to include subdivision (e)’s exclusions as enacted. The Legislative Counsel’s Digest to this amendment stated diversion would be available “except as specified.” The Assembly Floor Analysis for this version of the bill stated diversion was unavailable for the offenses listed in subdivision (e). The analysis repeated there were already diversion programs with “a number of exclusions[]” and repeated “[u]nlike existing general misdemeanor diversion,” no “misdemeanors [would] be statutorily excluded.” It reiterated the oppositions’ arguments. At the Assembly floor debate that day,
Assemblyman Jim Cooper stated
The OCDA, CDAA, and Judicial Council issued floor alerts opposing AB 3234 and expressing their respective opinions that as written DUI defendants were eligible for diversion pursuant to
On August 31, 2020, at the Senate floor debate, Senator Nancy Skinner stated AB 3234 was based on the LA pilot program. Senator Melissa Melendez stated
The Legislature passed AB 3234. The Legislative Counsel’s Digest repeated misdemeanor diversion was available “except as specified.”
On September 30, 2020, Governor Newsom signed AB 3234 into law. In his signing statement, he stated the following: “I am concerned that the crime of driving under the influence was not excluded from the misdemeanor diversion program. I will seek to expeditiously remedy this issue with the Legislature in the next legislative session.” (Governor’s message to Assem. on Assem. Bill No. 3234 (Sept. 30, 2020 (2020-2021 Reg. Sess.), at <https://www.gov.ca.gov/wp-content/uploads/2020/09/AB-3234.pdf> [as of Dec. 28, 2021].)
2. Analysis
Grassi contends
“Because the ultimate goal is to effectuate the Legislature’s intent [citation], courts should consider whether any legislative history provides insight into the legislative intent as to which statute prevails [citations].” (Turner v. Association of American Medical Colleges (2011) 193 Cal.App.4th 1047, 1064.) “[W]e consider legislative history ‘as dispositive only when that history is itself unambiguous.’ [Citation.]” (Coso Energy Developers v. County of Inyo (2004) 122 Cal.App.4th 1512, 1526.)
Here, there is scant evidence of legislative history concerning
However, the CDAA in its floor alert did make one observation that is helpful in providing context for the Legislature’s enactment of
AB 3234 originally concerned the Government and Public Resources Codes before the Assembly placed it on the inactive file. In the beginning of August 2000, the Legislature withdrew AB 3234 from the inactive file and its new subject was
Grassi’s primary argument is that unlike other diversion statutes, the Legislature’s intent in enacting
It is true the Assembly and Senate Floor Analyses stated there were other misdemeanor diversion statutes that had “numerous” exclusions. But even if the Legislature believed there were “too many exclusions” as Grassi asserts, the Legislature abandoned that belief when on August 24, 2000, it amended
Again for the first time in the reply, Grassi asserts
Finally, and again for the first time in the reply, Grassi relies on Cooper’s and Melendez’s unchallenged comments to assert DUI defendants are eligible for diversion pursuant to
“‘In construing a statute we do not consider the motives or understandings of individual legislators who cast their votes in favor of it. [Citations.] Nor do we carve an exception to this principle simply because the legislator whose motives are proffered actually authored the bill in controversy [citation]; no guarantee can issue that those who supported his proposal shared his view of its compass.’ [Citation.] A legislator’s statement is entitled to consideration, however, when it is a reiteration of legislative discussion and events leading to adoption of proposed amendments rather than merely an expression of personal opinion. [Citations.]” (California Teachers Assn. v. San Diego Community College Dist. (1981) 28 Cal.3d 692, 700.) This is a far cry from a full-scale legislative discussion on
Based on our review of
D. Canons of Statutory Construction
When both the statutory language and the legislative history are inconclusive, courts may look to canons of statutory construction to provide an answer. (Carmack, supra, 2 Cal.5th at pp. 849-850.) “The rules of grammar and canons of construction are but tools, ‘guides to help courts determine likely legislative intent. [Citations.]” (Burris v. Superior Court (2005) 34 Cal.4th 1012, 1017.)
The principle ”[e]xpressio unius est exclusio alterius means that ‘the expression of certain things in a statute necessarily involves exclusion of other things not expressed . . . .’ [Citation.]” (Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1391, fn. 13.) “‘If conflicting statutes cannot be reconciled, later enactments supersede earlier ones [citation], and more specific provisions take precedence over more general ones [citation].’ [Citation.] But when these two rules are in conflict, the rule that specific
In the diversion context, courts have utilized canons of statutory construction to reach varying results. A study of these cases demonstrates the canons of statutory construction are simply guides that can produce varying results, often in the same context, or in the same case.
For example, in Weatherill, the majority and dissent reached different results applying the same three canons. In the military diversion context, the VanVleck court concluded one canon was controlling while the Hopkins court concluded a different canon was controlling. The courts in Tellez and Moore explained that resort to the canons of statutory construction was unnecessary because the Legislature’s intent was clear. Regarding the diversion statute at issue here, misdemeanor diversion, the court in Espeso, supra, 67 Cal.App.5th Supp. 1, did not resort to the canons to conclude DUI defendants were ineligible for diversion. The majority in Diaz-Armstrong, supra, 67 Cal.App.5th Supp. at pages 22-23, however, concluded one canon was neutral while another canon supported the conclusion DUI defendants were eligible for diversion.
These varying results make clear the canons of statutory construction are not dispositive but rather are guides courts can resort to when a statute’s plain language and legislative history do not compel a particular result. Here, the canons do not compel a particular result.
It is true the canon “the expression of certain things in a statute necessarily involves exclusion of other things not expressed[]” would result in concluding
Grassi’s reliance on the canon the more recent statute supersedes the older statute would result in
E. Harmonization
“‘“A court must, where reasonably possible, harmonize statutes, reconcile seeming inconsistencies in them, and construe them to give force and effect to all of their provisions. [Citations.] This rule applies although one of the statutes involved deals generally with a subject and another relates specifically to particular aspects of the subject.” [Citation.] Thus, when “‘two codes are to be construed, they “must be regarded as blending into each other and forming a single statute.” [Citation.] Accordingly, they “must be read together and so construed to give effect, when possible, to all the provisions thereof.” [Citation.]’” [Citation.] Further, “‘“[a]ll presumptions are against a repeal by implication. [Citations.]” [Citation.] Absent an express declaration of legislative intent, we will find an implied repeal “only when there is no rational basis for harmonizing the two potentially conflicting statutes [citation], and the statutes are ‘irreconcilable, clearly repugnant, and so inconsistent that the two cannot have concurrent operation.’”’”’ [Citations.] [¶] But the requirement that courts harmonize potentially inconsistent statutes when possible is not a license to redraft the statutes to strike a compromise that the Legislature did not reach. [Citation.] The cases in which we have harmonized potentially conflicting statutes involve choosing one plausible construction of a statute over another in order to avoid a conflict with a second statute. [Citations.]” (State Dept. of Public Health, supra, 60 Cal.4th at pp. 955-956.) We presume the Legislature “was aware of existing related laws” when it enacted
We believe
V. Conclusion
In dissent about 32 years ago, Justice Johnson concluded with the following: “There is a tendency among appellate judges in writing their opinions, and I am as guilty of this as any other, to discuss tough cases as if they were easy, to characterize debatable answers as being obvious, and to write up razor thin cases as if a vast chasm separates the correct from the incorrect result. We may spend days in the quiet of our chambers trying to formulate our individual positions on a close question, then hours arguing among ourselves, and along the way shift our views to and for several times. Yet when we finally get around to writing the opinion we inform the reader it was a piece of cake. Logic, precedent and principle all pointed in a single direction and the result we reached was inevitable. [¶] Well, in all candor I do not regard the instant case as easy, the answer obvious, or the result inevitable. If nothing else, I hope this dissent exposes the depth of our problem. This time the Legislature has handed us a true conundrum.” (Weatherill, supra, 215 Cal.App.3d at pp. 1588-1589 (dis. opn. of Johnson, J.))
The Legislature again, in the identical setting, albeit a different diversion statute, handed the courts another diversion conundrum.
Justice Johnson’s candid observation that his and the majority’s opposing viewpoints were both persuasive applies equally in this case. The panel members here can surely imagine writing this opinion the other way, to conclude misdemeanor DUI defendants are eligible for diversion, based on say
We invite, indeed we implore, the Legislature to resolve yet another entirely avoidable diversion conundrum.
The petition for writ of mandate is denied. The previously ordered stay is dissolved.
O’LEARY, P. J.
WE CONCUR:
GOETHALS, J.
MARKS, J.*
*Judge of the Orange County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.