LONGEN TAN,
A163715
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE
Filed 3/10/22
CERTIFIED FOR PUBLICATION; (San Mateo County Super. Ct. No. 19-NM-007168-A)
Tan filed a petition for misdemeanor diversion under
I. FACTUAL BACKGROUND
On May 28, 2019, the San Mateo County District Attorney charged Tan with two misdemeanor violations of
The trial court subsequently issued a written ruling, stating it had considered the briefing, attachments and arguments of both parties, and independently researched the legislative history of
II. DISCUSSION
Tan contends
A. Legal Standards
Whether defendants charged with misdemeanor DUI are eligible for diversion raises a question of statutory interpretation for our independent review. (People v. Gonzalez (2017) 2 Cal.5th 1138, 1141; People v. Tran (2015) 61 Cal.4th 1160, 1166.) ” ’ ” ‘As in any case involving statutory interpretation, our fundamental task . . . is to determine the Legislature‘s intent so as to effectuate the law‘s purpose. [Citation.] We begin by examining the statute‘s words, giving them a plain and commonsense meaning.’ ” ’ [Citation.] ‘[W]e consider the language of the entire scheme and related statutes, harmonizing the terms when possible.’ ” (Gonzalez, at p. 1141; People v. Valencia (2017) 3 Cal.5th 347, 357 [” ‘[t]he words of the statute must be construed in context, keeping in mind the statutory purpose, and statutes or statutory sections relating to the same subject must be harmonized, both internally and with each other, to the extent possible’ “].) If the language of the statute is clear and unambiguous, there is no need for judicial construction and our task is at an end. If the language is reasonably susceptible of more than one meaning, however, we may examine extrinsic aids such as the apparent purpose of the statute, the legislative history, the canons of statutory construction, and public policy. (Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 838 (Even Zohar); People v. Arias (2008) 45 Cal.4th 169, 177.)
B. Statutory Language
Generally, the most reliable indicator of legislative intent is the words of the statute. (Even Zohar, supra, 61 Cal.4th at pp. 837–838.) Accordingly, we turn first to the plain language of the statutes at issue.
Read separately, the statutes appear to conflict. On the one hand, defendants like Tan who have been charged with a misdemeanor DUI appear to qualify for judicial diversion under
C. Harmonization
Our Supreme Court has instructed that where statutes possibly conflict, “two principles of statutory construction are especially relevant. First, ’ “[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.” ’ ” (Even Zohar, supra, 61 Cal.4th at p. 838.) ” ‘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 as to give effect, when possible, to all the provisions thereof.” ’ ” ’ ” (State Dept. of Public Health v. Superior Court (2015) 60 Cal.4th 940, 955 ( State Dept. of Public Health); Lopez v. Sony Electronics, Inc. (2018) 5 Cal.5th 627, 634 (Lopez).)
“Second, all ’ ” ’ “presumptions are against a repeal by implication” ’ ” ’ [citation], including partial repeals that occur when one statute implicitly limits another statute‘s scope of operation [citation]. Thus, ’ ” ‘we will find an implied repeal “only when there is no rational basis for harmonizing . . . two potentially conflicting statutes [citation], and the statutes are ‘irreconcilable, clearly repugnant, and so inconsistent that the two cannot have concurrent operation.’ ” ’ ” ’ ” (Even Zohar, supra, 61 Cal.4th at p. 838; Apartment Assn. of Los Angeles County, Inc. v. City of Los Angeles (2009) 173 Cal.App.4th 13, 18 [“Absent an express declaration of legislative intent . . . we presume that a statute was not impliedly repealed by a subsequent statute unless there is no rational way to harmonize the two potentially conflicting statutes.“]; Newark Unified School Dist. v. Superior Court (2015) 245 Cal.App.4th 887, 907–908 [by harmonizing statutes court is able to ” ’ “maintain the integrity of both statutes,” ’ thereby honoring the presumed intent of the Legislature“].)
Here, the statutes are not irreconcilable. Nothing in the language of
“When the Legislature intends for a statute to prevail over all contrary law, it typically signals this intent by using phrases like ‘notwithstanding any other law’ or ‘notwithstanding other provisions of law.’ ” (In re Greg F. (2012) 55 Cal.4th 393, 406; see
Second, this “theory would lead to the remarkable conclusion that the Legislature creates exceptions to a specific code section merely by failing to mention it.” (People v. Siko (1988) 45 Cal.3d 820, 824 [petitioner‘s reliance on legislative silence to argue recently enacted
Moreover, harmonization is possible here because reconciling
Tan argues the legislative history of
Tan first argues Assembly Bill 3234 was modeled on the Los Angeles County Deferral of Sentencing Pilot Program (LA Pilot Program) that previously operated under
As an initial matter, we observe that Tan‘s argument that Assembly Bill 3234 is modeled on the LA Pilot Program is based on a statement in opposition to the bill by the California District Attorneys Association. (Assem. Floor Analysis, 3d reading analysis of Assem. Bill 3234, as amended Aug. 24, 2020, p. 5.) We find that statement in opposition to the bill particularly unhelpful in deciphering legislative intent. First, the statement is not competent evidence of the Legislature‘s collective intent. (See, e.g., American Financial Services Assn. v. City of Oakland (2005) 34 Cal.4th 1239, 1264 [“restatement of an argument made by certain industry groups does not purport to reflect debate within the Legislature“]; Purifoy v. Howell (2010) 183 Cal.App.4th 166, 179, fn. 14 [disregarding statement from bill‘s ” ‘ARGUMENTS IN OPPOSITION’ ” section of committee analysis by an opponent of the bill where the opponent represented an outside agency].) Second, the statement does not say anything one way or the other about whether DUIs are excluded under the proposed legislation, but observes only that DUIs were excluded under the LA Pilot Program. (Assem. Floor Analysis, 3d reading analysis of Assem. Bill 3234, as amended Aug. 24, 2020, p. 5 [recognizing that the ” ‘pilot program applied generally to first time offenders and included multiple exclusions—including . . . DUIs . . .’ “].) Third, the failure of
Tan also points to similar statements in both the Assembly and Senate floor analyses that, “Unlike existing general misdemeanor diversion, this bill would have no statutory requirements for the defendant to satisfy in order to be eligible nor would any misdemeanors be statutorily excluded.” (Assem. Floor Analysis, 3d reading analysis of Assem. Bill 3234, as amended Aug. 24, 2020, p. 3, italics added; Sen. Rules Com., Off. of Sen. Floor Analysis, 3d reading analysis of Assem. Bill 3234, as amended Aug. 24, 2020, p. 1 [“Unlike existing general misdemeanor diversion, this bill has no statutory requirements for the defendant to satisfy in order to be eligible nor would any misdemeanors be statutorily excluded.“].) Tan contends these statements “are not the type the [L]egislature would make if the Legislature simply intended that DUIs be excluded from diversion under
Tan also relies on transcripts from the legislative hearings on Assembly Bill 3234. On August 24, 2020, Assemblymember Jim Cooper stated during floor debate that “DUI with injury” was eligible for diversion under the statute.6 No legislator responded to that assertion, and the bill passed the Assembly by a vote of 41 to 22. Similarly, Tan notes that, on August 31, 2020, in a Senate floor debate, Senator Melissa Melendez stated that DUIs would be eligible for diversion under the new law. No one responded to the statement, and the bill passed in the Senate, 27 to 10. Tan emphasizes that at no point did any legislator respond to these concerns by pointing out DUIs would be unavailable for diversion based on
We are not persuaded. First, generally we cannot rely on statements from individual legislators as reflections of the Legislature‘s collective intent.
E. Other Canons of Construction
Tan argues that we need not consider the canons of statutory construction that later enactments supersede earlier ones and that more specific provisions take precedence over more general ones because the legislative history prevails over the canons of construction when it gives clues to legislative intent as it does here.7 Respondent, on the other hand, contends that
Pacific Palisades Bowl Mobile Estates, LLC v. City of Los Angeles (2012) 55 Cal.4th 783, 805 [rule supporting harmonization of statutes where possible applies even though one of the statutes deals generally with a subject and another applies specifically]; People v. Wheeler (1992) 4 Cal.4th 284, 293 [“The principle that a specific statute prevails over a general one applies only when the two sections cannot be reconciled.“]; People v. Price (1991) 1 Cal.4th 324, 385 [if court can reasonably harmonize two statutes dealing with the same subject, it must give “concurrent effect” to both].)
In any event, we agree 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. The rule that more specific provisions prevail over more general ones is unhelpful because “depending on one‘s arbitrary choice of focus, either [statute] could be construed as the more specific.” (Grassi, supra, 73 Cal.App.5th at pp. 306–307.) 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. (Id. at p. 306.)
F. Superior Court Appellate Decisions
As noted previously, prior to the Grassi opinion, no appellate court had decided the question at issue in this appeal, but two superior court appellate divisions published opinions reaching opposite conclusions. In People v. Superior Court (Espeso), supra, 67 Cal.App.5th Supp. 1 (Espeso), the Los Angeles County Superior Court Appellate Division determined that diversion is unavailable for defendants charged with misdemeanor DUI. The court reasoned, “[t]o the extent there is a tension between”
In People v. Superior Court (Diaz-Armstrong) (2021) 67 Cal.App.5th Supp. 10 (Diaz-Armstrong), a majority of the Riverside County Superior Court Appellate Division held in consolidated writ proceedings that defendants charged with misdemeanor DUI are eligible for diversion. (Id. at p. Supp. 13.) The court reviewed in depth the “long and complex history surrounding judicial application of [Vehicle Code]
Judge Firetag filed a dissent, stating that, in his opinion, “the two code sections operate in harmony with each other rather than in conflict,” and that he would hold misdemeanor DUI defendants are categorically ineligible for diversion “because
Though both of these superior court appellate division opinions offer thorough and well-reasoned analyses, we find the Espeso opinion and Judge Firetag‘s dissent in Diaz-Armstrong more persuasive for several reasons.
First, as we discussed previously, the best indicator of legislative intent is the words of the statutes themselves. While the silence in
Second, the Diaz-Armstrong majority opinion relied on the fact that the Legislature had created two new misdemeanor diversion programs and one deferred entry of judgment program, all of which included express exclusions for DUIs, despite the existence of
In the Assembly on August 24, 2020, only the bill‘s author, Assemblymember Philip Ting, and Assemblymember Cooper spoke during the very brief discussion of Assembly Bill 3234 prior to its passage. Cooper stated he had “a question for the author,” then asked, “So this removes all the misdemeanor stuff for the—correct?” Ting responded that “for the Judicial Diversion Program it removes the consideration of sex offenses and domestic violence offenses.” Cooper then stated: “Okay. It‘s gotten better . . . . but still, you have DUI with injury, firearms offenses, carrying a concealed firearm, loaded firearm in public, bringing a deadly weapon to a state building. So while it‘s a better bill than it was, there are still some issues that I‘m firmly opposed to it [sic]. And also, just another question for the author. The child pornography portion was taken out, is that correct?” (Italics added.) Ting indicated his “understanding” that it had been removed. After Cooper elaborated further about how important it was that child pornography offenses not be subject to diversion, Ting again confirmed his “understanding” that “[a]ll the sex offenses and the domestic violence offenses were all removed.”
During the Senate debate of Assembly Bill 3234 on August 31, 2020, Senator Holly Mitchell introduced the bill as a “public safety trailer bill that includes two criminal justice reforms that reflect the Governor and the legislature‘s data and evidence-based proposals for reducing our state‘s 13 billion dollar prison budget, protecting public safety and achieving overall budgetary savings.” She noted the bill “gives statewide judicial authority to offer optional misdemeanor diversion except for specified offenses,” and changes the eligibility criteria for an elderly parole suitability hearing to reduce the number of vulnerable people in the prisons in light of the ongoing COVID-19 pandemic.
In the debate that followed, several senators spoke in opposition to Assembly Bill 3234. Senator Jim Nielsen expressed concern about “dangerous individuals who have done very severe crimes” being granted
early
After Senator Grove, Senator Nancy Skinner spoke in defense of the bill: “What is in the bill before us is not a State mandate. It is an ability for a court, if a county approves it for a court, to be able to establish a misdemeanor diversion program. And even within that misdemeanor diversion there are a variety of crimes that have been excluded. So it does not allow for . . . sex offenses, domestic violence, a whole variety of—and of course I‘m now referring to misdemeanors, so these would be misdemeanant sex offenses and misdemeanant domestic violence and stalking. But those are excluded. So this is purely optional for courts and counties if they so choose, and it is based on a very successful diversion program that has been operating in L.A. County for a number of years. That is first and foremost. That is the diversion program that is in this bill.” Senator Skinner also spoke about the elderly parole suitability consideration provisions of the bill.
After Senator Skinner‘s remarks, Senator Melendez expressed her opposition to the bill, noting that it “allows a judge to provide unlimited diversion for any misdemeanor, with the exclusion of sex offenses, domestic violence and stalking. It does allow for diversion for those who commit child abuse, who have a DUI, hate crimes, bringing a firearm into a legislative office, assault, battery, identity theft, vehicular manslaughter, possessing a firearm upon or within public school, in, on the grounds, all eligible for a diversion.” (Italics added.) Melendez shared her view that the bill was “ridiculous” and “so inappropriate” and offered further comments on her opposition to the elderly parole program. Senator Andreas Borgeas offered further comments on the elderly parole program before debate concluded.
At the end of the floor debate, Senator Mitchell closed by “providing some . . . important clarifications.” With respect to the misdemeanor diversion program, she noted the “bill allows judges to do what prosecutors already can. Prosecutors can extend diversion in any case, including felonies. Judges will only be able to do so for misdemeanors. The judge will require the defendant to complete the same terms and conditions that he or she would have been traditionally sentenced [sic]. Again, it excludes those convicted of sex offenses, D.V. and stalking. Again, it only applies to misdemeanors, not felony charges as has been mentioned in prior hearings.”
Viewed in context, we are not convinced that the failure of the bill‘s author in the Assembly and sponsor in the Senate to respond to these lone italicized
Finally, in considering the policy objectives of the Legislature in passing
Under the separation of powers doctrine, courts may not encroach on matters normally left to the Legislature, and we are mindful that the policy judgments underlying the establishment of eligibility criteria for diversion are for the Legislature to make. (See Moore, supra, 58 Cal.App.5th at p. 581 [“it is for the Legislature to strike the proper balance between protecting public safety and mitigating the entry and reentry into the criminal justice system of individuals with mental disorders“]; California Teachers Assn v. Governing Board of Rialto Unified School Dist. (1997) 14 Cal.4th 627, 633 [“It cannot be too often repeated that due respect for the political branches of our government requires us to interpret the laws in accordance with the expressed intention of the Legislature.“].) We respect our constitutional role by not ignoring the express exclusions on eligibility for diversion established by the Legislature, including the express prohibition on diversion for DUI defendants in
In sum, we conclude, like the Espeso court and Judge Firetag‘s dissent in Diaz-Armstrong, that given the lack of discernible legislative intent to partially repeal the prohibition on diversion for DUI offenders,
As the decisions interpreting
More than 30 years ago, in Weatherill, supra, 215 Cal.App.3d 1569, the majority concluded the diversion scheme for misdemeanor defendants with developmental disabilities under
More recently our courts considered whether DUI defendants were eligible for diversion under
Finally, most recently, the Tellez, supra, 56 Cal.App.5th 439 and Moore, supra, 58 Cal.App.5th 561 opinions considered whether
As a review of these decisions illustrates, the other diversion programs and their legislative histories are all marked by significant differences from
Tan nonetheless argues we should look to Tellez because that court turned to the legislative history to determine whether
Tan also points to the language in Tellez suggesting that diversion is likely available to misdemeanor DUI defendants under
H. Tan‘s Other Claims
As noted above, Tan also argues the trial court erred by failing to exercise its discretion and that the San Mateo County Superior Court adopted its policy of denying diversion to DUI defendants in violation of his due process rights, state law, and the California Rules of Court. Because we have determined that the court has no discretion to offer diversion to misdemeanor DUI defendants, we need not address these arguments.
I. Conclusion
After a careful study of the issue, we conclude
“It is axiomatic that in assessing the import of a statute, we must concern ourselves with the Legislature‘s purpose at the time of the enactment.” (In re Pedro T. (1994) 8 Cal.4th 1041, 1048.) We acknowledge the Legislature has taken up several bills
III. DISPOSITION
The petition for writ of mandate is denied.
MARGULIES, J.
WE CONCUR:
HUMES, P. J.
BANKE, J.
A163715
Tan v. Superior Court
Trial Court: Superior Court of San Mateo County
Trial Judge: Donald J. Ayoob, Judge
Counsel:
Douglas I. Horngrad and Sam O‘Keefe for Petitioner.
Stephen M. Wagstaffe, San Mateo County District Attorney, Sean F. Gallagher, Chief Deputy District Attorney, Rebecca L. Baum, Shin-Mee Chang, Morris Maya and Ryan S. Geisser, Deputy District Attorneys for Respondent.
No appearance for Real Party in Interest.