1

Filed 7/28/22

See concurring and dissenting opinions

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Petitioner,

v.

THE SUPERIOR COURT OF 

RIVERSIDE COUNTY,

Respondent;

JESSICA ORTIZ,

Real Party in Interest.

E077594

(Super.Ct.No. APR12100013)

OPINION

ORIGINAL PROCEEDINGS; petition for extraordinary writ of mandate and/or 

prohibition. Dean Benjamini, Judge. Petition granted.
2

Michael A. Hestrin, District Attorney, and Emily R. Hanks, Deputy District 

Attorney, for Petitioner.

No appearance by Respondent.

Steven L. Harmon, Public Defender, and Jason M. Cox, Deputy Public Defender, 

for Real Party in Interest.

Bartell, Hensel & Gressley, Donald J. Bartell, Lara J. Gressley and Michael W. 

Donaldson for California DUI Lawyers Association as Amicus Curiae on behalf of Real 

Party in Interest.

I.

Penal Code section 1001.95 (Stats. 2020, ch. 334, § 1, eff. Jan. 1, 2021, as 

amended by Stats. 2022, ch. 58, § 6, eff. June 30, 2022) authorizes superior court judges 

to offer pretrial diversion, over the prosecution’s objection, to persons being prosecuted 

for “a misdemeanor.” (Pen. Code § 1001.95, subd. (a).)

1 The statute prohibits diversion 

for specified misdemeanors, namely, registrable sex offenses, domestic violence, and 

stalking. (§ 1001.95, subd. (e).) Misdemeanor charges of driving under the influence 

(DUI) (Veh. Code, §§ 23152, 23153) are not excluded from diversion in Penal Code 

section 1001.95. (§ 1001.95, subd. (e).) But an older statute, Vehicle Code section 

23640 (Stats. 1998, ch. 118, § 84), bars any form of pretrial diversion for felony and 

misdemeanor DUI charges.

1

 Undesignated statutory references are to the Penal Code.
3

The superior court granted diversion to real party in interest, Jessica Ortiz, on 

misdemeanor DUI charges (Veh. Code, § 23152, subds. (a), (b); counts 1 & 2) pursuant 

to Penal Code section 1001.95. In prior writ proceedings, the appellate division of the 

superior court upheld the diversion order for Ortiz and two other defendants who had also 

been granted diversion on misdemeanor DUI charges. (People v. Superior Court (DiazArmstrong) 67 Cal.App.5th Supp. 10, 24-28 (Diaz-Armstrong).)

The People petition this court for an original writ of mandate and/or prohibition, 

vacating the diversion order for Ortiz. They claim the order is unauthorized because 

Penal Code section 1001.95 did not impliedly and partially repeal Vehicle Code section 

23640 to the extent that the older statute prohibits diversion for misdemeanor (as opposed 

to felony) DUI charges. Thus, they argue, Vehicle Code section 23640 renders 

misdemeanor DUI charges categorically ineligible for diversion under Penal Code section

1001.95. We agree. Thus, we grant the petition.

II.

To date, the Court of Appeal has uniformly held that misdemeanor DUI charges 

are ineligible for diversion under Penal Code section 1001.95. Three other appellate 

courts have concluded that Vehicle Code section 23640 and Penal Code section 1001.95 

can be harmonized, by interpreting Penal Code section 1001.95 as authorizing diversion 

for all misdemeanors except those specified in Penal Code section 1001.95, 

subdivision (e), and misdemeanor DUI charges under Vehicle Code section 23640. 

(Grassi v. Superior Court (2021) 73 Cal.App.5th 283, 307-308 (Grassi); Tan v. Superior 

Court (2022) 76 Cal.App.5th 130, 134, 137-139 (Tan); Islas v. Superior Court (2022)
4

78 Cal.App.5th 1104, 1108-1110 (Islas) [following Tan and Grassi ].) These courts also 

found the legislative history of Penal Code section 1001.95 “anything but unambiguous” 

and “anything but clear” concerning whether the Legislature intended to partially repeal 

Vehicle Code section 23640 when it enacted the new program. (Grassi, at p. 304; Tan, at 

p. 136, see Islas, at pp. 1109-1110 [agreeing with Grassi’s and Tan’s view of the 

legislative history and noting that additional history materials were not germane to the 

court’s review “because the plain language of the two statutes, considered together, is 

unambiguous”].)

The People claim Grassi and Tan were correctly decided and urge us to follow 

their analyses and conclusions. Ortiz claims Grassi and Tan were wrongly decided. 

Ortiz argues that the statutes cannot be harmonized and that they irreconcilably conflict; 

thus, one must be interpreted as an exception to the other, and Penal Code section 

1001.95 prevails in this particular case because its legislative history shows that the 

Legislature intended to make misdemeanor DUI charges eligible for diversion under 

Penal Code section 1001.95. Ortiz claims the majority in Diaz-Armstrong followed the 

correct analysis and analytical framework set forth in Tellez v. Superior Court (2020) 

56 Cal.App.5th 439 at pages 444-448 (Tellez) and other cases (State Dept. of Public 

Health v. Superior Court (2015) 60 Cal.4th 940, 956-960 (State Dept.); Hopkins v. 

Superior Court (2016) 2 Cal.App.5th 1275, 1285-1286 (Hopkins), in concluding both that 

(1) the statutes irreconcilably conflict, and (2) the Legislature intended the new statute to 

prevail over Vehicle Code section 23640 and allow diversion for misdemeanor DUI 

charges.
5

We agree with Tan and the other courts that have concluded that the statutes can 

be harmonized—that is, effect can be given to all of their provisions; they can operate 

concurrently by interpreting them together as allowing judges to offer diversion for all 

misdemeanors charges except the misdemeanor charges specified as ineligible for 

diversion in Penal Code section 1001.95, subdivision (e) [registrable sex offenses, et al.] 

and Vehicle Code section 23640 [DUI charges]. The next question, and the more 

difficult one, we believe, is whether, given that we conclude the statutes can be 

harmonized, the record contains sufficient evidence to rebut the presumption against 

finding an implied, partial repeal of Vehicle Code section 23640 in the enactment of 

Penal Code section 1001.95. (See State Dept., supra, 60 Cal.4th at pp. 955-956; Western 

Oil & Gas Assn v. Monterey Bay Unified Air Pollution Control Dist. (1989) 49 Cal.3d 

408, 419-420 (Western Oil).)

We conclude there is insufficient evidence to rebut the presumption. Thus, we 

conclude that Vehicle Code section 23640 was not partially and impliedly repealed by the 

enactment of Penal Code section 1001.95, to the extent that Vehicle Code section 23640 

bars pretrial diversion for misdemeanor DUI charges. Instead, Vehicle Code section 

23640 operates concurrently and in harmony with Penal Code section 1001.95 to bar 

diversion for misdemeanor DUI charges under Penal Code section 1001.95.

III.

A. Procedural Background

In July 2020, Ortiz was charged in a misdemeanor complaint with driving under 

the influence of alcohol and driving with a blood-alcohol content in excess of 0.08. (Veh. 
6

Code, § 23152, subds. (a), (b); counts 1 & 2). Ortiz pled not guilty to the charges. In 

February 2021, the superior court granted Ortiz’s request to be placed in the new 

misdemeanor diversion program (Pen. Code, §§ 1001.95-1001.97, enacted by Stats. 

2020, ch. 334, § 1, eff. Jan 1. 2021 (A.B. 3234)), over the prosecuting attorney’s 

objections. The People petitioned the superior court appellate division for a writ 

directing the superior court to vacate the diversion order for Ortiz.

After consolidating Ortiz’s case with two others in which diversion was granted on 

misdemeanor DUI charges, the appellate division denied the People’s petitions to vacate 

the diversion orders in a published, split decision. (Diaz-Armstrong, supra,

67 Cal.App.5th at pp. Supp. 13-14, 28.) The People now petition this court for an 

original writ, directing respondent superior court to vacate the diversion order for Ortiz 

on the ground it is unauthorized by Vehicle Code section 23640.

We issued an order to show cause and heard oral argument. We also granted 

Ortiz’s unopposed request to take judicial notice of 19 items concerning the legislative 

history of section 1001.95 (Evid. Code, §§ 452, subds. (b), (c), (h), 459, subd. (a).) 

Amicus curiae, California DUI Lawyers Association (CDLA), has filed an amicus brief, 

joining Ortiz in arguing that the legislative history of section 1001.95 clearly shows that 

the Legislature intended section 1001.95 to allow diversion for DUI charges.2

2

 The parties do not discuss whether section 1001.95 applies retroactively to cases 

not final on appeal as of its January 1, 2021 effective date. But, because section 1001.95 

potentially ameliorates punishment for misdemeanor charges eligible for diversion under 

its terms, if the statute applied to misdemeanor DUI charges, it would apply to 

misdemeanor DUI cases not final on appeal on January 1, 2021. (Islas, supra, 

[footnote continued on next page]
7

B. Vehicle Code § 23640

Vehicle Code section 23640 prohibits any form of pretrial diversion for persons

charged with misdemeanor or felony violations of Vehicle Code section 23152 (driving

under the influence of alcohol) or 23153 (causing bodily injury while driving under the

influence) (DUI charges).3 A companion statute, Vehicle Code section 23600, imposes 

similar postconviction restraints on sentencing in DUI cases.

Former versions of Vehicle Code sections 23640 and 23600, Vehicle Code former 

sections 23202 and 23206, were enacted in 1981. (Stats. 1981, ch. 940, § 32 (A.B. 541).) 

In 1998, the former statutes were repealed and reenacted without substantive change as 

Vehicle Code sections 23640 and 23600. (Stats. 1998, ch. 118, § 84.) The Legislature’s 

“unambiguous intent” in enacting the former statutes, over 40 years ago, was “to prohibit

78 Cal.App.5th at p. 1110, fn. 1; Tan, supra, 76 Cal.App.5th at p. 136, fn. 5; Grassi,

supra, 73 Cal.App.5th at p. 289; People v. Frahs (2020) 9 Cal.5th 618, 638-639; In re 

Estrada (1965) 63 Cal.3d 740, 744-745.) This would include Ortiz’s misdemeanor DUI 

case.

3

 Vehicle Code section 23640 provides: “(a) In any case in which a person is 

charged with a violation of Section 23152 or 23153, prior to acquittal or conviction, the 

court shall neither suspend nor stay the proceedings for the purpose of allowing the 

accused person to attend or participate, nor shall the court consider dismissal of or 

entertain a motion to dismiss the proceedings because the accused person attends or 

participates during that suspension, in any one or more education, training, or treatment 

programs, including, but not limited to, a driver improvement program, a treatment 

program for persons who are habitual users of alcohol or other alcoholism program, a 

program designed to offer alcohol services to problem drinkers, an alcohol or drug 

education program, or a treatment program for persons who are habitual users of drugs or 

other drug-related program. [¶] (b) This section shall not apply to any attendance or 

participation in any education, training, or treatment programs after conviction and 

sentencing, including attendance or participation in any of those programs as a condition 

of probation granted after conviction when permitted.”
8

pre- or postconviction stays or suspensions of proceedings” in DUI cases. (People v.

Darnell (1990) 224 Cal.App.3d 806, 810.) “The public wanted and AB 541 provided

‘[c]elerity and certainty of punishment’ ” for DUI offenses. (People v. Weatherill (1989)

215 Cal.App.3d 1569, 1575 (Weatherill).)

C. The New Misdemeanor Diversion Program (§§ 1001.95-1001.97)

On September 30, 2020, the Governor signed Assembly Bill No. 3234 (2019-2020 

Reg. Sess.), effective January 1, 2021. (Stats 2020, ch. 334, § 1; see Cal. Const., art. IV, 

§ 8, subd. (c).) The bill added sections 1001.95 to 1001.97 to the Penal Code, creating a 

discretionary diversion program for persons charged with a misdemeanor. The statute 

provides: “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.” (§ 1001.95, subd. (a).)

As noted, Penal Code section 1001.95 specifies several offenses as ineligible for 

diversion under its terms: registrable sex offenses, domestic violence, and stalking. 

(§ 1001.95, subd. (e).)

4

 But it does not expressly exclude misdemeanor DUI charges 

4

 Section 1001.95, subdivision (e), provides: “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 Section 290 [sex offenses;] [¶] (2) Any offense involving domestic violence, as 

defined in Section 6211 of the Family Code or subdivision (b) of Section 13700 of this 

code [domestic violence]; [¶] (3) A violation of Section 646.9 [stalking].”
9

(Veh. Code §§ 23152 or 23153 violations) from eligibility. Vehicle Code section 23640 

is also not mentioned in Penal Code sections 1001.95 to 1001.97.

5

The Legislature’s ostensible purpose in enacting sections 1001.95 to 1001.97 was 

to “treat, restore, and rehabilitate.” (Grassi, supra, 73 Cal.App.5th at p. 292, fn. 4., citing 

Sen. Rules Com., Off. of Sen. Floor Analysis, 3d reading analysis of Assem. Bill No. 

3234 (2019-2020 Reg. Sess.) as amended Aug 24, 2020, p. 2 [“Diversion programs that 

are successfully completed allow a person to avoid the lifelong collateral consequences 

associated with a criminal record when they are seeking employment or housing.”]; DiazArmstrong, supra, 67 Cal.App.5th at p. Supp. 27 [“The Legislature . . . unequivocally 

enacted section 1001.95 in order to broadly shift persons charged with misdemeanors 

away from traditional punishment in order to achieve better long-term outcomes.”].)

D. Legal Principles, Overview

Whether misdemeanor DUI charges are eligible for diversion under Penal Code 

section 1001.95 is a question of statutory interpretation for our independent review. 

(Tan, supra, 76 Cal.App.5th at p. 136.) In cases involving statutory interpretation, our 

5

 Section 1001.95 authorizes the judge to continue a diverted case for up to 

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.” (§ 1001.95, 

subd. (b).) At the end of the diversion period, the judge is to dismiss the diverted charges 

if the defendant has complied with the terms of the diversion. (Id. at subd. (c).) But 

criminal proceedings may resume if, following a noticed hearing, the judge determines 

that the defendant has not complied with the terms of the diversion. (Id. at subd. (d).) 

Section 1001.96 lists the actions a defendant must complete and the conditions the 

defendant must satisfy in order to have the defendant’s diverted case dismissed. Section 

1001.97 addresses the status and treatment of the defendant’s arrest for the diverted 

charge upon the defendant’s successful completion of diversion.
10

fundamental task is to determine the Legislature’s intent so as to effectuate the law’s 

purpose. (People v. Gonzalez (2017) 2 Cal.5th 1138, 1141.)

Our first step in ascertaining the Legislature’s intent is to scrutinize the words of 

the statute, giving them a plain and common sense meaning. (California Teachers Assn. 

v. Governing Bd. of Rialto Unified School Dist. (1997) 14 Cal.4th 627, 633.) The words 

of a statute are generally the most reliable indicator of legislative intent; but, if the words 

are ambiguous or uncertain, we may resort to extrinsic sources to ascertain their meaning, 

including the statute’s legislative history and ostensible objects to be achieved. (People 

v. Gutierrez (2014) 58 Cal.4th 1354, 1369.) We may also consider the wider historical 

circumstances of a statute’s enactment in ascertaining legislative intent. (Dyna-Med, Inc. 

v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1387 (Dyna-Med).)

Canons of statutory construction may assist courts in ascertaining legislative intent 

(In re Marriage of Bonvino (2015) 241 Cal.App.4th 1411, 1433.) “But it is well 

established that ‘canons of statutory construction are merely aids to ascertaining probable 

legislative intent’ ” and are not to be “ ‘applied so as to defeat the underlying legislative 

intent otherwise determined.’ ” (Ferra v. Loews Hollywood Hotel, LLC (2021) 

11 Cal.5th 858, 879.) “ ‘ “No single canon of statutory construction is an infallible guide 

to correct interpretations in all circumstances.” ’ ” (Tellez, supra, 56 Cal.App.5th at 

p. 448.)

Thus, when the legislature history answers the question of legislative intent, or at 

least provides clues to legislative intent, the legislative history is a more reliable indicator 

of the legislative intent than inferences of intent based on canons of statutory 
11

construction. (Tellez, supra, 56 Cal.App.5th p. 449; Lewis v. Ryan (1976) 64 Cal.App.3d 

330, 333-334; Grassi, supra, 73 Cal.App.5th at p. 306 [“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.”].)

It is incumbent upon courts to harmonize statutes based on their texts, if that can 

reasonably be done: “ ‘ “ A court must, when 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.] 

. . . [T]hey “must be read together and so construed as to give effect, when possible, to 

all the provisions thereof.” ’ ” ’ ” (State Dept., supra, 60 Cal.4th at p. 955.)

“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.” ’ ” ’ ” (State Dept., 

supra, 60 Cal.4th at pp. 955-956; Penziner v. West American Finance Co. (1937) 

10 Cal.2d 160, 176.) There must be “no possibility of concurrent operation.” (Hays v. 

Wood (1979) 25 Cal.3d 772, 784.)
12

“Courts have also noted that implied repeal should not be found unless ‘ . . . the 

later provision gives undebatable evidence of an intent to supersede the earlier . . . .’ ” 

(Western Oil, supra, 49 Cal.3d at p. 420.) Implied repeals include not only complete 

repeals, but “partial repeals that occur when one statute implicitly limits another statute’s 

scope of operation.” (Even Zohar Construction & Remodeling, Inc. v. Bellaire 

Townhouses, LLC (2015) 61 Cal.4th 830, 838 (Even Zohar).)

E. Conflicts Between Vehicle Code section 23640 and Other Diversion Statutes

In prior cases, the Courts of Appeal have had to address conflicts between Vehicle 

Code section 23640 (and its predecessor) and diversion statutes that applied to charges 

generally but that were silent on the operation of the Vehicle Code bar on diversion for 

DUI charges. (Pen. Code, §§ 1001.20 et seq. [disability diversion], 1001.80 [military

diversion] 1001.36 [mental health diversion].) For multiple reasons, including

difficulties in ascertaining the legislative intent, the courts in these cases reached varying

conclusions on whether the diversion statutes allowed diversion for DUI charges.

1. Developmental Disability Diversion (§ 1001.20 et. seq.)

A split decision, People v. Weatherill (1989) 215 Cal.App.3d 1569 (Weatherill),

addressed a conflict between Vehicle Code former section 23202 and a diversion statute. 

The majority concluded that the statutory bar on diversion for DUI charges barred

diversion under Penal Code section 1001.20 et seq., a diversion program for persons with

cognitive developmental disabilities, enacted in 1981 (Stats. 1981, ch. 940, § 32), the

year after Vehicle Code former section 23202 was enacted in 1980 (Stats. 1980, ch. 1253,

§ 1). By its terms, the diversion statute applied to all misdemeanor charges and did not 
13

state that it applied notwithstanding any other law, although Vehicle Code former section 

23202 did not exist when it was enacted.

The Weatherill majority reasoned that “all-inclusive” support for the bill that 

enacted Vehicle Code former section 23202 (Assem. Bill No. 541) (1981-1982 Reg. 

Sess.) was “strong,” and that the legislative intent, as revealed by the statute’s legislative 

history, was consistent with the statute’s plain and all-inclusive language. (Weatherill,

supra, 215 Cal.App.3d at pp. 1572-1577.) The history showed that the Legislature’s 

“unambiguous intent” in enacting the former statute was to ensure that all DUI 

defendants, “without exception,” would have their guilt or innocence determined 

“without delay or diversion.” (Id. at p. 1577.)

Addressing what it deemed the “irreconcilable conflict” between Vehicle Code 

former section 23202 and Penal Code section 1001.20 et seq., the Weatherill majority 

concluded that two canons of statutory construction supported its conclusion that Vehicle 

Code former section 23202 was controlling: (1) it was the more specific of the two 

statutes on the subject of DUI diversion, and (2) it was the later-enacted statute. 

(Weatherill, supra, 215 Cal.App.3d at pp. 1577-1578.) A third canon, that the expression 

of certain things in a statute necessarily excludes others, did not apply because Vehicle 

Code former section 23202 was “all-inclusive.” (Weatherill, at pp. 1578-1579.)

The Weatherill majority rejected the defendant’s claim that Vehicle Code former 

section 23202’s “all-inclusive diversion bar” in DUI cases was inconsistent with “the 

selective” or specific DUI diversion bar in two other diversion statutes enacted in 1982, 

Penal Code section 1001 et seq. (Stats. 1982, ch. 42), and Penal Code section 1001.50 
14

et seq. (Stats. 1982, ch. 1251). (Weatherill, supra, 215 Cal. App.3d at pp. 1579-1580.) 

In enacting these diversion programs in 1982, the year after it enacted Vehicle Code 

former section 23202 in 1981, the Legislature expressly exempted all DUI charges from 

eligibility, despite Vehicle Code former section 23202’s “all-inclusive diversion bar.” 

(Id. at pp. 1579-1580; Pen. Code §§ 1001.2, subd. (a), 1001.51, subds. (b), (c)(6).) The 

majority reasoned that the Legislature exempted DUI charges from eligibility in the 

1982-enacted programs “to avoid the risk of implied repeal” of Vehicle Code former 

section 23202 in the enactment of the programs. (Weatherill, at pp. 1579-1580.)

In dissent, Justice Johnson pointed out that persuasive arguments could be made 

on both sides of the statutory construction issue, but a “marginally more persuasive 

argument” could be made that misdemeanor DUI cases were eligible for diversion under 

Penal Code section 1001.21. (Weatherill, supra, 215 Cal.App.3d at p. 1580 [dis. opn. of 

Johnson, J.]) First, the traditional rules or canons of statutory construction did not “seem 

to really solve the puzzle; they cancel[ed] each other out.” (Id. at p. 1581.) The canon 

that a specific statute prevails over a general one could be argued both ways; it could “be 

contended just as forcefully” that Vehicle Code section 23202 was the general statute 

because Penal Code section 1001.20 et seq. focused on a specific class of defendants and 

authorized diversion for them “no matter what misdemeanor they are charged with.” 

(Weatherill, at p. 1582 [dis. opn. of Johnson, J.]) Also, the “later-in-time” canon did not 

apply because the law disfavors implied repeals, and the statutes could be reconciled by 

allowing diversion in misdemeanor DUI cases under Penal Code section 1001.21, while 
15

barring diversion for all other DUI defendants. (Weatherill, at p. 1583 [dis. opn. of

Johnson, J.].)

Justice Johnson also reasoned that the Legislature’s failure to amend Penal Code 

section 1001.20 et. seq. to expressly exclude DUI charges in 1982, the year it enacted two 

other diversion programs that expressly excluded DUI charges, “strongly” indicated that 

the Legislature intended DUI charges to be divertible under the earlier-enacted Penal 

Code section 1001.20 et. seq. (Weatherill, supra, 215 Cal.App.3d at pp. 1583-1586 [dis. 

opn. of Johnson, J.].) Further, “nothing” in the legislative history of Vehicle Code former 

section 23202 indicated that the Legislature had 1980-enacted Penal Code section 

1001.20 et seq. in mind, in 1981, when it enacted Vehicle Code former section 23202. 

Rather, the legislative history materials concerning Vehicle Code section 23640 

“implied” that the Legislature only intended to eliminate locally-administered “ ‘Lucky 

Deuce’ ” diversion programs—local diversion programs for DUI charges—when it 

enacted Vehicle Code former section 23202 in 1981. (Weatherill, at pp. 1584-1585.)

In conclusion, Justice Johnson stated that he did not regard the case “as easy, the 

answer obvious, or the result inevitable.” (Weatherill, supra, 215 Cal.App.3d at p. 1589 

[dis. opn. of Johnson, J.].) He wrote that “this series of statutes” had “left the courts in a 

quandary,” and he expressed hope that the majority and dissenting opinions could “serve 

as signal to the Legislature.” (Id. at pp. 1580-1581.) The Legislature had handed the 

court “a true conundrum” by failing to make its intention clear on the question of whether 

DUI cases were eligible for diversion under section 1001.21. (Weatherill, at p. 1589.)
16

2. Military Diversion (§ 1001.80)

In 2014, the Legislature enacted Penal Code section 1001.80, authorizing pretrial

diversion for current and former members of the United States military charged with

misdemeanor offenses. (Stats. 2014, ch. 658, § 1, eff. Jan. 1, 2015.) Like the

misdemeanor diversion program for developmentally disabled persons (Pen. Code,

§ 1001.20 et seq.), Penal Code section 1001.80, as originally enacted, did not expressly

exclude any misdemeanors from eligibility for diversion. (Stats. 2014, ch. 658, § 1).6

In 2016, two Courts of Appeal reached opposite conclusions on whether Vehicle

Code section 23640 barred diversion for misdemeanor DUI charges under Penal Code

section 1001.80. The court in People v. VanVleck (2016) 2 Cal.App.5th 355 (VanVleck)

concluded that misdemeanor DUI charges were ineligible for diversion under the former

military diversion statute in light of Vehicle Code section 23640. (VanVleck, at pp. 364,

366-367.) Shortly thereafter, the court in Hopkins v. Superior Court (2016)

2 Cal.App.5th 1275 (Hopkins), disagreed with VanVleck and concluded that, when the

Legislature enacted Penal Code section 1001.80, it impliedly repealed Vehicle Code

section 23640 to the extent the older statute would have barred diversion for DUI charges

under the newer misdemeanor military diversion statute. (Hopkins, at p.1288.) Both

courts considered the texts of the two statutes, the legislative history of the military

6

 Section 1001.80 authorizes courts to grant diversion for “a misdemeanor” 

charge if the defendant is a current or former a member of the United States military and 

may be suffering from specified traumas or injuries as a result of the defendant’s military 

service. (§ 1001.80, subd. (a).) As enacted in 2014, section 1001.80 did not mention 

Vehicle Code section 23640 or exempt any misdemeanors, including misdemeanor DUI 

charges, from eligibility for diversion under its terms. (Stats. 2014, ch. 658, § 1.)
17

diversion statute, canons of statutory construction, and the Weatherill decision. 

(VanVleck, at pp. 362-367; Hopkins, at pp. 1281-1289.)

Van Vleck reasoned that the statutes appeared to conflict but reconciled them by 

concluding that Vehicle Code section 23640 prevailed because it was the more specific 

statute on the subject of DUI diversion. (VanVleck, supra, at pp. 363-365.) Hopkins

concluded that the statutes irreconcilably conflicted, thus, they could not be reconciled; 

the specific versus general canon was not helpful because its application depended on an 

“arbitrary choice of focus” of subject matter in determining which statute was the more 

specific. (Hopkins, supra, 2 Cal.App.5th at pp. 1282-1284) Hopkins reasoned that Penal 

Code section 1001.80 prevailed—the later-enacted statute allowed diversion for 

misdemeanor DUI charges despite Vehicle Code section 23640—both because it was the 

later-enacted statute and its legislative history showed that the Legislature intended it to 

allow diversion for misdemeanor DUI charges. (Hopkins, at pp. 1284-1285.)

Review was granted in both cases (2016 Cal.Lexis 9412 [VanVleck]; 2016 

Cal.Lexis 9420 [Hopkins]), and before our Supreme Court could resolve the conflict in 

the decisions, the Legislature rendered the conflict moot, during its 2017 to 2018 session, 

by amending section 1001.80 to make misdemeanor DUI charges expressly eligible for 

diversion under the statute. (Pen. Code, § 1001.80, subd. (l), added by Stats. 2017, 

ch. 179, §§ 1-2, eff. Aug. 7, 2017.) Our Supreme Court then dismissed as moot its earlier 

grant of review in both cases. (Hopkins v. Superior Court (2017) 2017 Cal.Lexis 8220; 

People v. VanVleck (2017) 2017 Cal.Lexis 8783.) Since 2017, section 1001.80, 

subdivision (l), has provided: “Notwithstanding any other law, including Section 23640 
18

of the Vehicle Code, a misdemeanor offense for which a defendant may be placed in a 

pretrial diversion program in accordance with this section includes a misdemeanor 

violation of Section 23152 or 23153 of the Vehicle Code.” (§ 1001.80, subd. (l).)

3. Mental Health Diversion (§ 1001.36)

Section 1001.36 authorizes courts to grant pretrial diversion for “a misdemeanor 

or felony offense” if certain criteria are met, including that the defendant suffers from a 

specified mental disorder, the court is satisfied that the mental disorder was a significant 

factor in the defendant’s commission of the charged offense, and in the opinion of a 

qualified mental health expert the defendant’s symptoms of the mental disorder would 

respond to mental health treatment. (§ 1001.36, subds. (a), (b)(1).)

As enacted in 2018, section 1001.36 did not exclude any misdemeanor or felony 

offenses from eligibility for diversion under its terms. (Stats 2018, ch. 34, § 24 

(A.B. 1810), eff. June 27, 2018.) Later in 2018, the legislature amended section 1001.36 

to exclude specified offenses, but not DUI offenses, from eligibility. (Pen. Code, 

§ 1001.36, subd. (b)(2); Stats. 2018, ch. 1005, § 1 (S.B. 215), eff. Jan. 1, 2019.) Penal 

Code section 1001.36 does not contain a provision like Penal Code section 1001.80, 

subdivision (l), expressly stating that it allows diversion for DUI charges notwithstanding 

any other law, including Vehicle Code section 23640.

In 2020, after the Governor signed Assembly Bill 3234, adding sections 1001.95 

to 1001.97 to the Penal Code (Stats. 2020, ch. 334, § 1, eff. Jan. 1, 2021), this court 

issued two decisions concluding that Vehicle Code section 23640 barred diversion for 

DUI charges under Penal Code section 1001.36. (Tellez, supra, 56 Cal.App.5th at p. 444; 
19

Moore v. Superior Court (2020) 58 Cal.App.5th 561, 585 (Moore).) Tellez reasoned that 

the two statutes were in conflict and could not be reconciled or harmonized: “Both

statutes are unambiguous in their plain language: One clearly prohibits diversion for

defendants charged with DUI offenses, and the other just as clearly allows mental health

diversion for any defendant who meets the minimum eligibility requirements (and who is

not charged with a disqualifying offense). When it comes to DUI offenses, Vehicle Code

section 23640 prohibits a court from doing what Penal Code section 1001.36

permits. The two ‘statutes are in conflict and thus one must be interpreted as providing

an exception to the other.’ ([State Dept., supra,] 60 Cal.4th [at p.] 956.) The question is 

which one. Is Vehicle Code section 23640 an exception to Penal Code section 1001.36? 

Or is Penal Code section 1001.36 an exception to Vehicle Code section 23640?” (Tellez, 

at p. 444.)

Tellez reasoned it was unnecessary to resort to canons of statutory construction to 

ascertain the Legislature’s intent concerning which of the two statutes was intended to be 

the exception to or to prevail over the other because the concurrent legislative histories of 

the military and mental health diversion statutes (§§ 1001.80, 1001.36), during the 2017 

to 2018 legislative session, answered the question of the Legislature’s intent in enacting 

section 1001.36. (Tellez, supra, 56 Cal.App.5th at p. 444.) Tellez recounted the complex 

legislative history of Penal Code section 1001.36, from its enactment in June 2018 

through its amendment in September 2018, through Senate Bill No. 215 (2017-2018 Reg. 

Sess.), to exclude offenses like murder, manslaughter and rape, but not DUI offenses, 

from eligibility. (Id. at pp. 444-447.) In the same 2017-2018 legislative session, the 
20

Legislature amended Penal Code section 1001.80 to add subdivision (l), but the 

Legislature did not include a similar provision in section 1001.36. (Id. at p. 447.)

Tellez explained: “This history establishes that the Legislature wanted the existing 

bar on diversion for DUI offenses to take precedence. The Legislature was familiar with 

the conflict between Vehicle Code section 23640 and diversion statutes and knew how to 

clarify that the diversion statute should control over the Vehicle Code, having recently 

confronted the issue with respect to military diversion. What is more, the earlier version 

of Senate Bill 215 would have clarified that mental health diversion applied 

notwithstanding any other law, but the Legislature abandoned that ‘notwithstanding’ 

clause in the final version of Senate Bill 215. The Legislature’s failure to amend Penal 

Code section 1001.36 in the same way that it had recently amended the military diversion 

statute indicates that the Legislature did not intend to override Vehicle Code section 

23640. Instead, the Legislature intended that the decades-old prohibition against 

diversion for DUI should prevail.” (Tellez, supra, 56 Cal.App.5th at p. 448.) Thus, 

“Vehicle Code section 23640 controls over Penal Code section 1001.36.” (Id. at p. 450.)

In Moore, another panel of this court agreed with Tellez’s point that the concurrent 

legislative histories of sections 1001.36 and 1001.80 showed that the Legislature did not 

intend to make DUI defendants eligible for diversion under section 1001.36. (Moore,

supra, 58 Cal.App.5th at pp. 575-580.) Among other things, Moore noted that the 

Legislature’s failure to add a provision like section 1001.80, subdivision (l), to section 

1001.36, during the same legislative session in which the Legislature added 

subdivision (l) to section 1001.80, strongly indicated that the Legislature did not intent to 
21

repeal Vehicle Code section 23640 insofar as it bars all DUI defendants from eligibility 

for mental health diversion under Penal Code section 1001.36. (Moore, at p. 579 [“If the 

Legislature had intended DUI defendants to be eligible for pretrial mental health 

diversion, it would have repealed or amended Vehicle Code section 23640, or it would 

have ‘carve[d] out an exception’ to Vehicle Code section 23640 in Penal Code section 

1001.36. Its failure to do either—during the same legislative session in which it 

amended Penal Code section 1001.80 to make military members charged with 

misdemeanor DUI offenses eligible for military diversion (§ 1001.80, subd. (l); 

Stats. 2017, ch. 179, § 1)—manifests its intent to keep all DUI defendants ineligible for 

pretrial mental health diversion under Vehicle Code section 23640.”].)

As noted, Tellez concluded that Vehicle Code section 23640 and Penal Code 

section 1001.36 irreconcilably conflicted; thus, one of the statutes had to be interpreted as 

providing for an exception to, and one as prevailing over, the other. (Tellez, supra, 

56 Cal.App.5th at p. 444, citing State Dept., supra, 60 Cal.4th at p. 956.) Moore did not 

discuss the conflict between Vehicle Code section 23640 and Penal Code section 1001.36 

and did not purport to harmonize the two statutes. Moore did note, however, that when 

statutes appear to conflict, a court is required, where reasonably possible, to harmonize 

them, reconcile seeming inconsistencies in them, and construe them to give force and 

effect to all of their provisions. (Moore, supra, 58 Cal.App.5th at p. 574, citing State 

Dept., supra, 60 Cal.4th at p. 955.) Further, all presumptions are against implied repeals, 

and absent an express declaration of legislative intent, courts are to find an implied repeal

“ ‘ “ ‘ “ ‘only when there is no rational basis for harmonizing the two potentially
22

conflicting statutes [citation], and the statutes are “irreconcilable, clearly repugnant, and

so inconsistent that the two cannot have concurrent operation.” ’ ” ’ ” ’ [Citations.] 

(State Dept., supra, 60 Cal.4th at pp. 955-956.)” (Moore, supra, 58 Cal.App.5th at

p. 574.)

F. Grassi, Tan, and Other Case Law Interpreting Section 1001.95

As noted, the Courts of Appeal in Grassi, Tan, and Islas have uniformly agreed 

that Penal Code section 1001.95 and Vehicle Code section 23640 can be harmonized by 

interpreting them together as excluding misdemeanor DUIs from eligibility for diversion 

under Penal Code section 1001.95, in addition to the misdemeanors specified as ineligible 

in Penal Code in section 1001.95, subdivision (e). (Grassi, supra, 73 Cal.App.5th at 

pp. 307-308; Tan, supra, 76 Cal.App.5th at pp. 137-139; Islas, supra, 78 Cal.App.5th 

1107, 1110 [following Tan and Grassi].) These courts also found the legislative history 

of Penal Code section 1001.95 “anything but clear” and “anything but unambiguous” as 

to whether the Legislature intended to partially repeal Vehicle Code section 23640, to the 

extent the older bars diversion for misdemeanor DUI charges, when the Legislature 

enacted Penal Code section 1001.95. (Tan, at pp. 137-139; Grassi, at pp. 302-306; Islas,

at pp. 1108, 1110 [following Tan and Grassi].)

In July 2021, the appellate division of the superior court in Los Angeles County 

was the first court to conclude that Vehicle Code section 23640 bars diversion for 

misdemeanor DUI charges under Penal Code section 1001.95. (People v. Superior Court 

(Espeso) 67 Cal.App.5th Supp. 1, 4-7 (Espeso).) Espeso reasoned: “To the extent there 

is a tension between Vehicle Code section 23640 and the misdemeanor diversion statute, 
23

it must be resolved in favor of both statutes being ‘ “ ‘ “ ‘read together and so construed 

as to give effect, when possible, to all the provisions thereof,’ ” ’ ” ’ ” given that all 

presumptions are against a repeal by implication. (Espeso, at p. Supp. 6.) Further, the 

legislative history of Penal Code section 1001.95 did not “reveal a clear intent” to 

partially repeal Vehicle Code section 23640; thus, the real party had “failed to rebut the 

presumption against a repeal by implication of Vehicle Code section 23640.” (Espeso, at 

pp. Supp. 6-7.)

Espeso’s summary of its holding aptly summarizes our holding and those of the 

other Court of Appeal which have confronted the issue: “ In sum, the Legislature

approved a bill in enacting section 1001.95 which was silent on whether misdemeanor

diversion can be granted in driving under the influence cases. Against this

backdrop, Vehicle Code section 23640, subdivision (a), in crystal clear language, bars

diversion in such cases. We cannot discern an intent to overcome the rule that ‘[t]he law

shuns repeal by implication’ [citation]. We therefore give effect to both statutes, by 

finding a person is eligible to be considered for a grant of diversion in all 

cases, except the ones specifically listed in section 1001.95, subdivision (e) . . . , 

and driving under the influence cases as provided in Vehicle Code section 23640, 

subdivision (a).” (Espeso, supra, 67 Cal.App.5th at p. Supp. 9.)

Shortly after Espeso was decided, the appellate division of the Riverside County 

Superior Court addressed the issue in Diaz-Armstrong, supra, 67 Cal.App.5th Supp. 10. 

Following Tellez, the majority concluded that the statutes irreconcilably conflicted, given 

that both were unambiguous in their plain language, and one prohibited what the other 
24

allowed: diversion for misdemeanor DUI charges under Penal Code section 1001.95. 

(Diaz-Armstrong, supra, 67 Cal.App.5th at p. Supp. 21.) The majority explained that 

harmonizing the statutes, as the dissent posited, “contradict[ed] the Court of Appeal’s 

consistent understanding [set forth in Tellez, Hopkins, and Weatherill,] that section 23640 

poses a real conflict with diversion statutes that would otherwise include DUIs”; the 

requirement that courts harmonize potentially inconsistent statutes “is not a license to 

redraft the statutes to strike a compromise the Legislature did not reach”; and the dissent 

offered “what we believe to be the very first appellate opinion directly concluding that 

true harmonization is possible.” (Diaz-Armstrong, at p. Supp. 21-22.)

The majority resolved the question of which of the two statutes was intended to 

prevail based on the legislative history of Penal Code section 1001.95 and the policy 

goals and ostensible objects to be achieved by the new diversion program. (DiazArmstrong, supra, 67 Cal.App.5th at pp. Supp. 21-28.) The majority found “compelling 

evidence” that the Legislature intended Penal Code section 1001.95 to prevail over 

Vehicle Code section 23640, given that, in the floor debate on the bill in each house, 

legislators objected to the bill on the ground it did not exclude DUIs among other 

charges, “they were never met with a rebuttal, and majorities of both houses passed the 

bill anyway.” (Diaz-Armstrong, at p. Supp. 26.)

In dissent, Judge Firetag explained that the statutes could operate in harmony for 

two reasons. (Diaz-Armstrong, supra, 67 Cal.App.5th at p. Supp. 31 [dis. opn. of Firetag, 

J.].) First, nothing in the text of Penal Code section 1001.95 supported the conclusion 

that the statute supplanted Vehicle Code section 23640’s prohibition on diversion for 
25

misdemeanor DUI charges. Penal Code section 1001.95 did not state that its list of 

excluded offenses was exclusive (§ 1001.95, subd. (e)), and nothing in the statute 

indicated that it was repealing Vehicle Code section 23640 in any manner. (DiazArmstrong, at pp. Supp. 29-31 [dis. opn. of Firetag, J.].)

Second, based on his review of the case law addressing conflicts between Vehicle 

Code section 23640 and other diversion statutes, Judge Firetag found no substantive 

difference between Penal Code sections 1001.36 and 1001.95, and therefore no reason to 

treat these two statutes differently. (Diaz-Armstrong, at pp. Supp. 29-31 [dis. opn. of 

Firetag, J.].) He explained: “Both sections provide the trial court with the power to grant 

diversion under certain circumstances. Both sections indicate that certain enumerated 

offenses are categorically ineligible for diversion. And, most importantly, neither section 

references in any way DUIs, section 23640 or language that indicates that the exceptions 

are exclusive. In my opinion, there is no reason why Tellez and Moore do not dictate a 

finding that DUIs are categorically prohibited under section 1001.95.” (Diaz-Armstrong,

at p. Supp. 33 [dis. opn. of Firetag, J.].)

IV.

A. Penal Code Section 1001.95 and Vehicle Code Section 23640 Conflict, But the 

Statutes Do Not Irreconcilably Conflict and Can Be Harmonized

The first question we must determine is whether Vehicle Code section 23640 and 

Penal Code section 1001.95 can be harmonized, as the People contend, or whether the

statutes irreconcilably conflict, as Ortiz argues. As emphasized, a court is required, when 

reasonably possible, to harmonize statutes, reconcile seeming inconsistencies in them, 
26

and construe them to give force and effect to all of their provisions; the statutes “ ‘ “must 

be regarded as blending into each other and forming a single statute” ’ ”; and “ ‘ “read 

together and so construed as to give effect, when possible, to all the provisions” ’ ” of 

each statute. (State Dept., supra, 60 Cal.4th at p. 955.)

Ortiz argues the statutes are unambiguous in their plain language. We agree that 

the statutes are unambiguous when viewed separately from each other. One expressly 

prohibits what the other implicitly allows. Vehicle Code section 23640 bars expressly 

diversion for misdemeanor DUI charges in “crystal clear language” (Espeso, supra, 

67 Cal.App.5th at p. Supp. 9), and Penal Code section 1001.95 allows courts to offer 

diversion to defendants being prosecuted for “a misdemeanor.” (§ 1001.95, subd. (a).) 

Penal Code section 1001.95 excepts several misdemeanors from eligibility for diversion 

under its terms, but misdemeanor DUI charges are not among them. (§ 1001.95, subds. 

(e), (e).) Thus, the statutes appear to conflict.

In considering whether two apparently conflicting statutes can be harmonized, we 

begin with their texts. (State Dept., supra, 60 Cal.4h at p. 956.) Statutes cannot be 

harmonized unless “full effect” can be given to all of their provisions. (Cf. State Dept.,

supra, 60 Cal.4th at p. 955-960 [disclosure provisions of two statutes directly conflicted; 

thus, full effect could not be given to the disclosure provisions of both statutes, and they 

could not be harmonized] and Lopez v. Sony Electronics, Inc. (2018) 5 Cal.5th 627, 637-

638 & fn. 6 [two statutes of limitation could not be harmonized because two limitations 

periods cannot govern the same claim] with Even Zohar, supra, 61 Cal.4th at pp. 840-841 

[harmonizing statutes] and In re Greg F. (2012) 55 Cal.4th 393, 408 [same].)
27

Based on their texts, Vehicle Code section 23640 and Penal Code section 1001.95 

can be harmonized. That is, full effect can be given to all of their provisions by 

interpreting them together as authorizing diversion for all misdemeanor charges, except 

those specified as ineligible for diversion in both Penal Code section 1001.95, 

subdivision (e) [registrable sex offenses, domestic violence, and stalking] and Vehicle 

Code section 23640 [DUI charges]. (Tan, supra, 76 Cal.App.5th at p. 138; Grassi, supra, 

73 Cal.App.5th at p. 307.)

It is significant that Penal Code section 1001.95 does not state either one of two 

things: (1) that the list of misdemeanors it specifies as excluded from eligibility is an 

exclusive list (§ 1001.95, subd. (e)), or (2) that its provisions apply notwithstanding 

“ ‘any other law’ ” including Vehicle Code section 23640. (Tan, supra, 76 Cal.App.5th 

at pp. 138-139.) The absence of these provisions allows us to harmonize the new statute 

with Vehicle Code section 23640, by interpreting them together as barring diversion for 

misdemeanor DUI charges under the new statute. “Nothing in the language of section 

1001.95 suggests that it is intended to overrule the prohibition on diversion in DUI cases 

contained in Vehicle Code section 23640.” (Tan, at p. 138.)

This construction also gives full effect to each provision of Penal Code section 

1001.95, including its key provisions authorizing diversion to be offered to persons being 

prosecuted for “a misdemeanor” except specified misdemeanors. (§ 1001.95, subds. (a), 

(e).) Construing Vehicle Code section 23640 as independently prohibiting diversion 

under Penal Code section 1001.95 does not undermine the effect of any provision of 

Penal Code section 1001.95. The text of the new statute is entirely consistent with 
28

construing it as subject to Vehicle Code section 23640’s existing ban on diversion for 

DUI charges. Diversion is still allowed for “a misdemeanor” except as specified in Penal 

Code section 1001.95 and in Vehicle Code section 23640. Penal Code section 1001.95 

does not state that it applies to “any misdemeanor” except as specified; if it did, that 

would make its text inconsistent with the text of Vehicle Code section 23640.

Thus, based on their texts, the statutes can be interpreted in a way that dispels their 

apparent conflict. That is, the statutes are not “ ‘ “ ‘ “ ‘ “so inconsistent” ’ ” ’ ” ’ ” that 

they cannot have concurrent operation. (State Dept., supra, 60 Cal.4th at p. 955.) And 

because it is possible to harmonize the statutes—that is, to give full effect to all of their 

provisions by making misdemeanor DUI charges ineligible for diversion under Penal 

Code section 1001.95 in light of Vehicle Code section 23640—the statutes must be so 

harmonized. (See Ibid.)

Ortiz argues that this construction or harmonization “reads into Penal Code section 

1001.95 an exclusion for DUI offenses that the Legislature did not put there and which 

would undermine some of the purpose of the new statute.” In other words, Ortiz argues, 

“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.” (State Dept., supra, 60 Cal.4th at p. 956; Hopkins, supra, 2 Cal.App.5th at 

p. 1282; Diaz-Armstrong, supra, 67 Cal.App.5th at p. Supp. 21). But our construction 

does not redraft the statutes to strike a compromise that the Legislature did not reach, 

because nothing in the statutes’ texts prohibits interpreting them together as barring 

diversion for misdemeanor DUI charges. (Tan, supra, 76 Cal.App.5th at p. 139; Grassi,
29

supra, 73 Cal.App.5th at p. 308; see Garcia v. McCutchen (1997) 16 Cal.4th 469, 479 

[“[T]he general policy underlying legislation ‘cannot supplant the intent of the 

Legislature as expressed in a particular statute.’ ”].) Moreover, it was indeed the 

Legislature which enacted each of these statutes.

Ortiz argues that the statutes can just as easily be harmonized by interpreting the 

list of misdemeanors specified as ineligible for diversion in Penal Code section 1001.95, 

subdivision (e), as exclusive, and interpreting Penal Code section 1001.95, subdivision 

(a), as allowing diversion for misdemeanor DUI charges, effectively notwithstanding

Vehicle Code section 23640. Ortiz argues that this “ ‘harmonization’ is far more 

defensible given the clear evidence in the legislative history of the Legislature’s intent to 

include DUIs” as eligible for diversion under Penal Code section 1001.95.

We disagree for two reasons. First, the harmonization rule focuses on the texts of 

the statutes, not their purposes, and asks whether the texts can be harmonized. (State 

Dept., supra, 60 Cal.4th at p. 956 [in harmonizing statutes, courts should begin with their 

texts, not their purposes].) Ortiz’s proposed construction does not harmonize the two

statutes; indeed, it utterly fails to give effect to Vehicle Code section 23640’s bar on 

diversion for misdemeanor DUI charges, without any support for doing so in the texts of 

either Penal Code section 1001.95 or Vehicle Code section 23640. Our harmonization of 

the statutes gives full effect to the provisions of each statute and does not limit the 

operation of any of the provisions of either statute.

Second, and as Tan pointed out, Ortiz’s proposed construction “ ‘would lead to the 

remarkable conclusion that the Legislature creates exemptions to a specific code section 
30

[here, Vehicle Code § 23640] merely by failing to mention it.’ . . . [T]he ‘normal rules 

of statutory construction [, however,] dictate a contrary presumption: [Vehicle Code

section 23640], like any other statute, is presumed to govern every case to which it

applies by its terms—unless some other statute creates an express exception.’ ” (Tan,

supra, 76 Cal.App.5th at p. 139, quoting People v. Siko (1988) 45 Cal.3d 820, 824 (Siko); 

see § 1001.80, subd. (l) [carving out exception to Veh. Code, § 23640 by expressly 

allowing diversion for DUI charges under Pen. Code, § 1001.80 (military diversion)].)

Ortiz points out that, “ ‘[u]nder the maxim of statutory construction, expressio 

unius est exclusio alterius, if exemptions are specified in a statute, we may not imply 

additional exemptions unless there is a clear legislative intent to the contrary.’ ” (Rojas v. 

Superior Court (2004) 33 Cal.4th 407, 424; Sierra Club v. State Bd. of Forestry (1994) 

7 Cal.4th 1215, 1230.) But here, we are not implying an additional exemption for 

misdemeanor DUI charges into Penal Code section 1001.95, subdivision (e). Instead, we 

are reconciling Vehicle Code 23640’s longstanding prohibition on diversion for 

misdemeanor DUI charges with Penal Code section 1001.95’s ostensibly nonexclusive 

list of exempted misdemeanor charges, blending them together, and giving full effect to 

both. (State Dept., supra, 60 Cal.4th at p. 955.) Again, Vehicle Code section 23640, by 

its terms, applies to Penal Code section 1001.95 because no other statute, including Penal 

Code section 1001.95, says that it does not. (Tan, supra, 76 Cal.App.5th at p. 139.)

Ortiz argues the Diaz-Armstrong majority correctly concluded that the two statutes 

irreconcilably conflict, just as Tellez earlier concluded that Vehicle Code section 23640 

irreconcilably conflicts with Penal Code section 1001.36. As noted, the Diaz-Armstrong 
31

majority reasoned that harmonizing the statutes would contradict “the Court of Appeal’s 

consistent understanding that section 23640 poses a real conflict with diversion statues 

that would otherwise include DUIs.” (Diaz-Armstrong, supra, 67 Cal.App.5th at 

p. Supp. 21, citing Tellez, supra, 56 Cal.App.5th at p. 444, Hopkins, supra, 2 Cal.App.5th 

at pp. 1282-1283, & Weatherill, supra, 215 Cal.App.3d at p. 1577 & fn. 7.) Like this 

court in Tellez, the Diaz-Armstrong majority concluded that the statutes irreconcilably

conflicted because, when viewed separately, each is unambiguous and one prohibits what 

the other allows. But when viewed together, the statutes can be harmonized.

Tellez concluded that Vehicle Code section 23640 and Penal Code section 1001.36

conflicted and therefore could not be harmonized. As noted, Tellez explained: “Both 

statutes are unambiguous in their plain language: One clearly prohibits diversion for 

defendants charged with DUI offenses, and the other just as clearly allows mental health 

diversion for any defendant who meets the minimum eligibility requirements (and who is 

not charged with a disqualifying offense). When it comes to DUI offenses, Vehicle Code 

section 23640 prohibits a court from doing what Penal Code section 1001.36 permits. 

The two ‘statutes are in conflict and thus one must be interpreted as providing an 

exception to the other.’ (State Dept. [, supra, 60 Cal.4th at p. 956].) The question is 

which one. Is Vehicle Code section 23640 an exception to Penal Code section 1001.36? 

Or is Penal Code section 1001.36 an exception to Vehicle Code section 23640?” (Tellez,

supra, 56 Cal.App.5th at p. 444.)

Tellez then turned to the legislative history of Penal Code section 1001.36 for 

indicators of legislative intent concerning which of the two statutes was intended to be an 
32

exception to the other and which was intended to prevail. The history answered the 

question of legislative intent; it showed that the Legislature intended Vehicle Code 

section 23640 to prevail. (Tellez, supra, 56 Cal.App.5th. at pp. 443-448.) The DiazArmstrong majority followed Tellez’s reasoning in concluding, one, that Vehicle Code 

23640 and Penal Code section 1001.95 irreconcilably conflicted, and two, that the 

Legislature intended the diversion statute, Penal Code section 1001.95, to prevail. (DiazArmstrong, supra, 67 Cal.App.5th at pp. Supp. 21, 24-28.)

As Ortiz argues, the texts of Penal Code sections 1001.36 and 1001.95 are quite 

similar: both allow diversion, except for specified offenses, and neither states that its list 

of ineligible offenses is exclusive. (§§ 1001.36, subds. (a), (b)(2), 1001.95, subds. (a), 

(e).) Further, neither statute states that its provisions apply notwithstanding any other 

law, including Vehicle Code section 23640. (Cf. § 1001.80, subd. (l).) Thus, both 

statutes appear to conflict with Vehicle Code section 23640 in that both appear to allow 

diversions for DUI charges when the statutes are viewed separately from Vehicle Code 

section 23640. But since we have been called upon to determine whether each of these 

diversion statutes can be reconciled with Vehicle Code section 23640, we cannot view 

the diversion statutes in isolation from Vehicle Code section 23640. Instead, we must 

view the diversion statutes with Vehicle Code section 23640, and when so viewed,

neither diversion statute irreconcilably conflicts with Vehicle Code section 23640.

Given the similarities between Penal Code sections 1001.36 and 1001.95 and the 

recent Court of Appeal decisions in Grassi, Tan, and, Islas on the issue at hand, we have

to question whether Tellez correctly concluded that Penal Code section 1001.36 and 
33

Vehicle Code section 23640 were irreconcilably conflicting and could not be 

harmonized. Interpreting Penal Code sections 1001.36 and 1001.95 as subject to Vehicle 

Code section 23640’s preexisting ban on any form of pretrial diversion for DUI charges

gives full effect to all of the provisions of both diversion statutes and Vehicle Code 

section 23640. Nothing in either diversion statute prohibits this construction.

Although Tellez concluded that Vehicle Code section 23640 and Penal Code 

section 1001.36 conflicted and could therefore not be harmonized (Tellez, supra, 

56 Cal.App.5th at p. 444) and Moore did not address whether the statutes conflicted or 

could be harmonized (Moore, supra, 58 Cal.App.5th at p. 573), the practical result in 

both cases was that the statutes were effectively harmonized. The conclusions in both 

cases that Vehicle Code section 23640 was intended to prevail, and therefore that DUI 

charges are categorically ineligible for diversion under Penal Code section 1001.36 

(Tellez, at p. 444; Moore, at p. 582), has meant that the statutes operate concurrently to 

bar diversion for misdemeanor and felony DUI charges under Penal Code section 

1001.36.

B. There Is Insufficient Evidence That the Legislature Intended to Partially Repeal 

Vehicle Code Section 23640 When It Enacted Penal Code Section 1001.95

Given that the statutes can be harmonized—that is, they can operate concurrently

and one does not have to yield to the other—the presumption against implied repeals still 

applies. (See State Dept., supra, 60 Cal.4th at pp. 956-962.) The next question is 

whether there is sufficient evidence of legislative intent to partially repeal Vehicle Code 

section 23640, in the legislative history of Penal Code section 1001.95, to rebut the 
34

presumption against finding an implied partial repeal of the Vehicle Code section 23640 

in the enactment of Penal Code section 1001.95.

As indicated, implied repeals can only be based on an express declaration of 

legislative intent or other undebatable evidence of legislative intent to repeal the older 

statute. (State Dept., supra, 60 Cal.4th at pp. 955-956; Western Oil, supra, 49 Cal.3d at 

p. 420.) The intention to repeal must be “clearly expressed or necessarily implied.” 

(People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 199 (Zamudio) [“We do not 

presume that the Legislature intends, when it enacts a statute, to overthrow longestablished principles of law unless such intention is clearly expressed or necessarily 

implied.”].)

1. The Parties’ Contentions

The parties dispute what the legislative history of the new diversion program 

shows concerning the Legislature’s intent to partially repeal Vehicle Code section 23640. 

The People claim the history “does not evidence a clear intent to repeal” Vehicle Code 

section 23640. They argue that the courts in Grassi and Tan correctly concluded that the 

history is “anything but clear” and “anything but unambiguous” as to whether the 

Legislature’s intended to partially repeal Vehicle Code section 23640, and they urge us to 

follow these courts’ analyses. (Grassi, supra, 76 Cal.App.5th at p. 304; Tan, supra, 

76 Cal.App.5th at p. 136; see also Islas, supra, 78 Cal.App.5th at pp. 1109-1110

[following Grassi and Tan].)

Ortiz and amicus curiae CDLA argue that the courts in Grassi and Tan

“misconstrued and misapplied” the legislative history and failed to recognize what it 
35

clearly and unequivocally shows: that the Legislature intended to make misdemeanor 

DUI charges divertible under Penal Code section 1001.95 because it resisted the demands 

of lawmakers in both houses to expressly exclude DUI charges from eligibility. (See 

Diaz-Armstrong, supra, 67 Cal.App.5th at pp. Supp. 24-28.) According to this argument, 

the Legislature, by necessary implication, partially repealed Vehicle Code section 23640 

when it enacted the new diversion program because it cannot have intended to make 

misdemeanor DUI charges eligible for diversion under Penal Code section 1001.95, by 

not excluding them from eligibility, without partially repealing Vehicle Code section 

23640.

The legislative history is discussed at length in Grassi, Tan, and other cases which 

have addressed the apparent conflict between Vehicle Code section 23640 and Penal 

Code section 1001.95. (Grassi, supra, 73 Cal.App.5th at pp. 300-302; Tan, supra,

76 Cal.App.5th at pp. 140-142; Espeso, supra, 67 Cal.App.5th at pp. Supp. 6-9; DiazArmstrong, supra, 67 Cal.App.5th at pp. Supp. 24-25.) We summarize the history here, 

then we explain why we believe it is insufficiently clear, or contains an insufficient 

showing, to rebut the presumption against finding an implied repeal of Vehicle Code 

section 23640.

2. The Legislative History

As introduced on February 21, 2020, Assembly Bill 3234 dealt with a different 

subject than misdemeanor diversion, and on June 8 the bill was placed on the Assembly 

inactive file. (Grassi, supra, 73 Cal.App.5th at pp. 300-301.) On August 3, the bill was 

placed on the third reading file for the consideration of proposed amendments. (Grassi,
36

at p. 301.) In its August 3 form, the bill proposed “a court-initiated misdemeanor 

diversion program” and to lower the minimum age limitation for the Elderly Parole 

Program. (Assem. 3d reading analysis of Assem. Bill 3234 (2019-2020 Reg. Sess.) as 

amended Aug. 3, 2020, p. 1.) The Assembly floor analysis of the August 3 version of the 

bill explained that there were “multiple diversion programs under existing law” but that 

certain misdemeanor offenses, including certain Vehicle Code offenses, were “ineligible 

for diversion” under the existing programs. (Id. at pp. 2-3.) This analysis contrasted 

existing misdemeanor diversion programs with the proposed new program without 

specifying what the existing programs were: “This bill would create a court-initiated 

misdemeanor diversion program. A superior court judge would be authorized to divert a 

misdemeanor defendant over the objection of the prosecution. 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. 

Whether or not to divert a misdemeanor defendant would be in the trial court’s 

discretion.” (Assem. Bill 3234, supra, 3d reading, as amended Aug. 3, 2020, pp. 2-3, 

italics added.)

The August 3 Assembly floor analysis also noted that, according to its opponents, 

the bill was based on “an LA county pilot program, AB 2124 from 2014, which expired 

in 2018” and which excluded multiple offenses, including “DUIs.” (Assem. Bill 3234, 

supra, 3d reading, as amended Aug. 3, 2020, pp. 4-5.) The Los Angeles County pilot 

program was codified in Penal Code former sections 1001.94 through 1001.99 (Stats. 

2014, ch. 732, § 1, Assem. Bill No. 2124). The August 3 Assembly floor analysis did not 
37

mention Vehicle Code section 23640 or otherwise indicate that “existing law” expressly 

prohibited pretrial diversion for misdemeanor DUI charges.7

On August 20, 2020, the Orange County District Attorney (OCDA) issued a floor 

alert to the Assembly, opposing the bill and urging the Legislature to vote no on it. This 

floor alert claimed that the bill allowed for diversion in “ALL” misdemeanor cases, 

“WITHOUT EXCEPTION,” including for “misdemeanor DUI w/injury” and “vehicular 

manslaughter w/alcohol but without gross negligence.” This floor alert criticized the bill 

as a “gut and amend” and a “slap dash” attempt at circumventing the legislative process, 

given that it “incorporate[d] two main provisions in the public safety trailer bills that 

were removed due to opposition.” It argued that the bill would “result in wholesale and 

dangerous changes in public policy” that “should not be approved without full 

consideration of their sweeping impact.”

On August 24, 2020, the Assembly amended the bill to exclude the offenses now 

specified in Penal Code section 1001.95, subdivision (e), from eligibility under the 

proposed new diversion program. (Assem. 3d reading analysis of Assem. Bill 3234 

7

 An earlier version the new misdemeanor diversion program, and of Penal Code 

sections 1001.95 to 1001.97, was proposed as part of a public safety bill, Assembly Bill 

No. 88 (2019-2020 Reg. Sess.) (Assembly Bill 88) on June 22, 2020. (Legis. Counsel’s 

Dig., Assem. Comm. on Budget, Assem. Bill No. 88 (2019-2020, Summary Dig., § 14.) 

This initial version of the new program also did not exclude any misdemeanors from 

eligibility, nor did it state it would apply notwithstanding any other law. When Assembly 

Bill 88 came up for debate in the Assembly Budget Subcommittee on June 26, 2020, 

Assemblymember Cooper objected that the newly proposed misdemeanor diversion 

program would allow diversion for defendants charged with any misdemeanor, and urged 

that several charges, including DUI charges, be excluded from eligibility. During the 

June 26 hearing, neither Assemblymember Cooper nor any other speakers mentioned 

Vehicle Code section 23640 or that existing law prohibited diversion for DUI charges.
38

(2019-2020 Reg. Sess.), as amended Aug. 24, 2020, p. 1.) Like the August 3 Assembly 

floor analysis, the August 24 Assembly floor analysis did not mention Vehicle Code 

section 23640 or indicate that existing law expressly prohibited diversion for 

misdemeanor DUI offenses. At some point, the California District Attorneys Association 

(CDAA) issued a floor alert “joining other public safety organizations in strongly urging 

the Legislature to vote NO on AB 3234.” Like the OCDA’s floor alert, the CDAA’s 

floor alert criticized the bill as a “gut and amend” that allowed diversion for 

“misdemeanor DUI w/injury” and “vehicular manslaughter w/alcohol but without gross 

negligence.”

During the August 24 Assembly floor debate on the bill, the bill’s author, 

Assemblymember Ting, noted that “we took amendments to remove consideration of sex 

offenses and domestic violence offenses from the diversion program.” Assemblymember 

Cooper then pointed out that the bill had “gotten better” but “you have DUI with injury” 

and other offenses were not excluded, “[s]o while it’s a better bill than it was, there are 

still some issues [and] I’m firmly opposed to it.” During the Assembly floor debate, 

neither Ting nor any other lawmaker disputed Cooper’s statement that the bill did not 

exclude “DUI with injury.” Following the floor debate, the Assembly voted 43 to 26 to 

enact the bill.

On August 31, 2020, the Judicial Council issued a Senate floor alert, opposing the

bill unless it was “funded and amended to align” with the former Los Angeles County 

pilot program. This floor alert contained a side-by-side comparison of the bill with the 

2014 bill that enacted the Los Angeles County pilot program. This comparison showed 
39

that the former pilot program excluded DUIs and other offenses that were not excluded 

under the bill. During the August 31 Senate floor debate on the bill, Senator Melendez, 

echoing Assemblymember Cooper’s August 24 objections on the Assembly floor, 

objected to the bill on the ground it allowed “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 . . . have a DUI,” among other offenses. No other 

senator disputed Senator Melendez’s statement that the bill allowed diversion for DUIs 

and other offenses, including the bill’s Senate sponsor, Senator Mitchell. (Grassi, supra, 

73 Cal.App.5th at p. 302.) The Senate voted 27 to 10 to enact the bill.

On September 8, 2020, the CDAA sent the Governor a veto request, “strongly” 

opposing the bill on the ground it did not exclude DUIs and other offenses that had been 

excluded from the former Los Angeles County pilot program. The veto request noted

that “this broad-ranging authority of courts to grant diversion without limitation on DUI 

offenses potentially has a very serious impact on the ability of the criminal justice system 

to deal with chronic and repeat DUI offenders,” and explained that the bill would allow 

serially diverted DUI offenders to avoid identification as “high-risk, chronic, impaired 

driver[s],” given that diverted DUI charges would be deemed to have never occurred.

In his September 30, 2020 signing statement for the bill, the Governor expressed 

concern that “the crime of driving under the influence” was not excluded from the bill 

and said he would “seek to expeditiously remedy this issue with the Legislature in the 

next legislative session.” During the 2021 to 2022 legislative session, two bills to amend 

section 1001.95 were introduced—one to expressly exclude DUIs (Assembly Bill 
40

No. 282 (2021-2022 Reg. Sess.) as introduced Jan. 21, 2021) (Assembly Bill 282) and 

another to place restrictions on diversion in DUI cases (Senate Bill No. 421 (2021-2022 

Reg. Sess.), as introduced Feb. 12, 2021) (Senate Bill 421.) On May 27, 2021, Assembly 

Bill No. 282 overwhelmingly passed the Assembly, 64 to 9, but it failed passage in the 

Senate on July 13, 2021. Senate Bill No. 421 did not advance to a floor vote; it was 

placed on the Senate Appropriations Committee suspense file on May 10, 2021.

3. Analysis

We begin by noting that the courts in Grassi, Tan, and Espeso have addressed the 

parties’ arguments concerning particular facets of the legislative history, and we agree 

with their analyses and conclusions on these points. (See Islas, supra, 78 Cal.App.5th at 

p. 1110.) Nonetheless, we agree with Ortiz and CDLA that history as a whole 

unequivocally shows that the Legislature voted to enact the new diversion program 

(Assembly Bill 3234 (2019-2020 Reg. Sess.), over strenuous and consistent opposition, 

in both houses of the Legislature and by prominent groups outside of the Legislature, that 

the new diversion program did not exclude multiple charges, including DUI charges, 

from eligibility. This suggests that the Legislature intended to permit diversion for 

misdemeanor DUI charges under Penal Code section 1001.95.

We note here that this showing, without any other evidence, might be sufficient to 

establish that Penal Code section 1001.95 was intended to prevail over Vehicle Code 

section 23640, if the statutes irreconcilably conflicted. (See Tellez, supra, 

56 Cal.App.5th at p. 444; Diaz-Armstrong, supra, 67 Cal.App.5th at pp. Supp. 24-28.) In 

that event, one statute would have to give way to the other; one would, by necessary 
41

implication in their texts, be impliedly repealed, and we would look to relevant legislative 

history for clues or indications of the which statute the Legislature intended to prevail. 

(Tellez, at p. 444.)

But the statutes do not irreconcilably conflict. They can be harmonized. They can 

operate concurrently. One does not have to yield to the other; thus, the presumption 

against implied repeals still applies. (See State Dept., supra, 60 Cal.4th at pp. 955-956.) 

As noted, rebutting the presumption requires an unequivocal showing of legislative intent 

to repeal. (Western Oil, supra, 49 Cal.3d at p. 420; Zamudio, supra, 23 Cal.3d at p. 199.) 

That is, the intent to repeal must be “clearly expressed or necessarily implied.” 

(Zamudio, at p. 199.) Conversely, the evidence of intent to repeal cannot be ambiguous 

or equivocal; it cannot permit competing inferences.

According to Ortiz and CDLA, the intent to repeal Vehicle Code section 23640 is 

necessarily implied because the Legislature cannot have intended to make misdemeanor 

DUI charges eligible for diversion under Penal Code section 1001.95, by failing to 

expressly exclude them from eligibility under the new statute, without intending to repeal 

Vehicle Code section 23640’s existing ban on diversion for misdemeanor DUI charges. 

We disagree, because the history permits a contrary intent that the Legislature did not 

intend to partially repeal Vehicle Code section 23640.

To be clear, the history unequivocally shows that the Legislature enacted 

Assembly Bill 3234 over strenuous and consistent opposition that it would permit 

diversion for DUIs because it did not exclude diversion for DUIs. But, just as 

unequivocally, the history also shows that the Legislature did not consider partially 
42

repealing Vehicle Code section 23640 when it enacted the new diversion program. As 

Ortiz concedes, “there is no evidence that the Legislature that enacted the new 

misdemeanor statute even considered [Vehicle Code] section 23640.” (Italics added.)

As indicated, neither Vehicle Code section 23640, nor the fact that existing law 

barred diversion for DUI charges was mentioned in any of the legislative reports, 

analyses, debates, or other proceedings concerning Assembly Bill 3234 (2019-2020 Reg. 

Sess.) or its predecessor, Assembly Bill, 88 (2019-2020 Reg. Sess.) Not even the 

opponents of the bill ever mentioned Vehicle Code section 23640 or that existing law 

barred diversion for DUI charges. As Tan observed, “the failure to even mention section 

23640 hardly evidences clear legislative intent that the new legislation would override its 

existing ban on diversion for DUIs.” (Tan, supra, 76 Cal.App.5th at p. 148.)

 The majority in Diaz-Armstrong found that Assemblyman Cooper’s and Senator

Melendez’s unrebutted objections to the bill amounted to “compelling evidence that the

Legislature as a whole intended to include misdemeanor DUIs” as eligible for diversion

under Penal Code section 1001.95.” (Diaz-Armstrong, supra, 67 Cal.App.5th at p. Supp.

26.) At most, however, this evidence, and the legislative history as a whole, shows that it

was understood by the legislators who voted on the bill, and the groups outside the

legislature who were lobbying against the bill, that the bill did not exempt misdemeanor

DUI charges from diversion, and therefore, that misdemeanor DUI charges would be

eligible for diversion under the bill. This understanding is distinct from a legislative

intent to partially repeal Vehicle Code section 23640. As far as the Legislature knew

when it voted to enact the bill, existing law did not prohibit diversion for DUI charges. 
43

Under these circumstances, a vote to enact the bill cannot be equated with a vote to

partially repeal Vehicle Code section 23640 to the extent it would operate to bar

diversion for misdemeanor DUI charges under Penal Code section 1001.95.

Although no legislators disputed Assembleymember Cooper’s or Senator

Melendez’s floor statements that the bill did not exempt and therefore would allow

diversion for DUI charges, no legislator who supported the bill, during the floor debates

or in any other proceedings concerning the bill, ever said that the bill would permit

diversion for misdemeanor DUI charges. Further, DUI charges were never the focus of

the bill. During the Senate floor debate on the bill, Senator Melendez was the only

lawmaker who mentioned the term “DUI.” No one said the bill would partially repeal

Vehicle Code scion 23640, or existing law, and no one voiced support for the bill because

it would result in such a repeal. In sum, there is no affirmative showing, in any of the

legislative history, that the Legislature intended to partially repeal Vehicle Code section

23640 when it enacted Penal Code section 1001.95.

On this record, then, an implied repeal of Vehicle Code section 23640 would be 

based on legislative silence: silence in the text of Penal code section 1001.95, which can 

be harmonized with Vehicle Code section 23640, and silence in the legislative history of 

Penal Code section 1001.95 of any legislative consideration, much less intention, to 

partially repeal existing law’s ban on diversion for misdemeanor DUI charges. Implied 

repeals based on silence, either in the text of the newer statute or its legislative history are 

strongly disfavored. (Siko, supra, 45 Cal.3d at pp. 824-825 [“Had the Legislature 

contemplated the [implied repeal] construction the People now advance, the reports 
44

surely would have at least mentioned that potentiality.”]; In re Chrstian S. (1994) 

7 Cal.4th 768, 792 [“We are asked in this case to decide whether the Legislature intended 

to abolish a well-established legal doctrine that raises significant public policy 

considerations. We are not persuaded the Legislature would have silently, or at best 

obscurely, decided so important and controversial a public policy matter and created a 

significant departure from the existing law.”].)

The problem with implied repeals based on silence is that they allow Legislatures 

to repeal older statutes enacted by majorities of prior Legislatures without necessarily

having majority support in the current Legislature for repealing the older statutes. The 

presumption against implied repeals, and the showing of unequivocal evidence of 

legislative intent required to rebut it, serves the salutary purpose of preventing implied 

repeals based on less-than-majority support in the current Legislature to repeal the earlier 

enactment. Implied repeals based on silence allow such unauthorized repeals. (Zamudio,

supra, 23 Cal.4th at p. 199.)

Ortiz argues that our conclusion effectively tells the Legislature how to express its 

intent in enacting statutes, which is not our province. Ortiz relies on People v. Lopez

(2022) 12 Cal.5th 957 (Lopez), where our Supreme Court applied the following principle: 

“In cases concerning the presumption favoring retroactivity of ameliorative changes to 

the criminal law, we have said that case law ‘do[es] not “dictate to legislative drafters the 

forms in which laws must be written” to express an intent to modify or limit the 

retroactive effect of an ameliorative change; rather, they require “that the Legislature 
45

demonstrate its intention with sufficient clarity that a reviewing court can discern and 

effectuate it.” ’ ” (Id. at p. 968.)

We are not telling the Legislature how to express its intent. Nor are we requiring 

an express statement of legislative intent to partially repeal Vehicle Code section 23640

to rebut the presumption against implied repeal. (State Dept., supra, 60 Cal.4th at 

pp. 955-956.) We are, however, requiring that the Legislature demonstrate its intent to 

repeal Vehicle Code section 23640 with sufficient clarity so that we could discern and 

effectuate it. (Lopez, supra, 12 Cal.5th at p. 968; Zamudio, supra, 23 Cal.4th at p. 199; 

Western Oil, supra, 49 Cal.3d at p. 420.) Here, the Legislature did not express its intent 

to repeal Vehicle Code section 23640 with sufficiently clarity to rebut the presumption

against finding an implied repeal of Vehicle Code section 23640, given that the record 

shows that the Legislature did not consider partially repealing Vehicle Code section 

23640 when it enacted Penal Code section 1001.95.

Lastly, we observe that, if Vehicle Code section 23640 and Penal Code 

section 1001.95 were irreconcilably conflicting, as Ortiz maintains, then, and given the 

lack of any clear indication of a legislative intent to partially repeal the older statute, the 

older statute would prevail because it is the more specific on the subject of whether 

misdemeanor DUI charges are eligible for diversion under the misdemeanor diversion 

statute, Penal Code section 1001.95. “ ‘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 provisions take precedence over more general ones
46

trumps the rule that later-enacted statutes have precedence.” (State Dept., supra, 

60 Cal.4th at pp. 960-961; Agric. Labor Relations Bd. v. Superior Court (1976) 16 Cal.3d 

392, 420; People v. Gilbert (1969) 1 Cal.3d 475, 479; In re Williamson (1954) 43 Cal.3d 

651, 654; Code Civ. Proc., § 1859.)

Tan noted that the specific versus general canon did not apply because the statutes 

could be harmonized. (Tan, supra, 76 Cal.App.5th at p. 143.) Grassi noted that the 

application of the specific verses general canon had led to varying results in the prior case 

law concerning the conflicts or potential conflicts between Vehicle Code section 23640 

and other diversion statutes, and the canon was unhelpful in resolving the potential 

conflict between Vehicle Code section 23640 and Penal Code section 1001.95 because, 

as in the prior cases, “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 [“Like 

the legislative history, the canons of statutory construction are of no assistance here.”].)

The application of the canon here does not depend on an arbitrary choice of focus. 

In the prior cases, the diversion statutes in question authorized diversion for specific 

persons. (§§ 1001.21 [persons with developmental disabilities], 1001.80 [U.S. military 

members], and 1001.36 [persons suffering from qualifying mental health disorders.) 

Penal Code section 1001.95 differs from these diversion statutes, in that it authorizes 

diversion, not for specific groups of persons, but for anyone being prosecuted for “a 

misdemeanor” except certain misdemeanors. (§ 1001.95, subds. (a), (e).) Vehicle Code 

23640 bars diversion for anyone being prosecuted specifically for a misdemeanor DUI 

offense. Thus, Vehicle Code section 23640 is the more specific statute on the subject of 
47

whether misdemeanor DUI charges are eligible for diversion under Penal Code section 

1001.95. (See Weatherill, supra, 215 Cal.App.4th at p. 1577-1578.)

C. The Rule of Lenity Does Not Apply

Ortiz claims the rule of lenity requires us to interpret Penal Code section 1001.95 

as permitting pretrial diversion for misdemeanor DUI charges. Ortiz claims, “if there is 

any ambiguity in Penal Code section 1001.95, it must be construed to permit eligibility 

for DUI defendants.” Under the rule of lenity, “[w]hen language which is susceptible of 

two constructions is used in a penal law, the policy of this state is to construe the statute 

as favorably to the defendant as its language and the circumstance of its application 

reasonably permit. The defendant is entitled to the benefit of every reasonable doubt as 

to the true interpretation of words or the construction of a statute.” (People v. Overstreet

(1986) 42 Cal.3d 891, 896.)

Thus, “when ‘two reasonable interpretations of the same provision stand in 

relative equipoise, i.e., . . . resolution of the statute’s ambiguities in a convincing manner 

is impracticable,’ we construe the provision most favorably to the defendant.” (People v. 

Hernandez (2003) 30 Cal.4th 835, 869, overruled in part on other ground.) Further, 

[“t]he rule of lenity does not apply every time there are two or more reasonable

interpretations of a penal statute. [Citation.] Rather, the rule applies ‘ “only if the court

can do no more than guess what the legislative body intended; there must be

an egregious ambiguity and uncertainty to justify invoking the rule.” ’ [Citation] In

other words, ‘the rule of lenity is a tie-breaking principle, of relevance when “ ‘ two
48

reasonable interpretations of the same provision stand in relative equipoise . . . .’ ” ’ ” 

(People v. Manzo (2012) 53 Cal.4th 880, 889.)

The rule of lenity does not apply here because Penal Code section 1001.95 is 

unambiguous, and no two reasonable interpretations of the statute stand in relative

equipoise. As discussed, the statute can reasonably be harmonized with Vehicle Code

section 23640 to prohibit diversion for misdemeanor DUI charges. And, given that the

record does not clearly and unequivocally show that the Legislature intended to partially

repeal Vehicle Code section 23640 when it enacted Penal Code section 1001.95, this

prohibits us from finding an implied, partial repeal of Vehicle Code section 23640 in the

enactment of Penal Code section 1001.95. (State Dept., supra, 60 Cal.4th at p. 955;

Western Oil, supra, 49 Cal.3d at p. 420.) Rather, we maintain the integrity of both

statutes by construing Vehicle Code section 23640 as prohibiting pretrial diversion for

misdemeanor DUI charges under Penal Code section 1001.95. (Western Oil, at p. 419.)

V.

Let a writ of mandate issue, directing the superior court to vacate its order granting

respondent Ortiz pretrial diversion on misdemeanor charges of violating Vehicle Code 

section 23152, subdivisions (a) and (b), and to enter a new order denying respondent 

Ortiz pretrial diversion on her misdemeanor DUI charges under Penal Code section 

1001.95.
49

Petitioner is directed to prepare and have a writ of mandate issued, copies served, 

and the original filed with the clerk of this court, together with proofs of service on all 

parties.

CERTIFIED FOR PUBLICATION

FIELDS

Acting P.J.

I concur:

RAPHAEL

J.
1

[People v. Superior Court (Ortiz), E077594]

RAPHAEL, J., Concurring.

In my view, the way to read these two statutes together is by applying the principle 

that a specific statement from the Legislature typically controls over a conflicting general 

statement.

This is, first, how we naturally read language. If one park sign states, “food and 

drinks allowed” and one next to it states, “no alcoholic beverages,” their language 

technically conflicts as to whether a parkgoer can open a bottle of wine. But any 

picnicker understands the signs as meaning that they cannot do so. One sign gives a 

general green light to eating and drinking, and the other prohibits some specific items. 

Their commands technically conflict, but we easily read them together, understanding 

that they express different levels of intent about what is allowed in the park.

This likewise is the natural reading of the two statutes here. One statute broadly 

allows courts to offer diversion for “a misdemeanor,” with four listed exceptions that do 

not include driving under the influence (DUI). (Pen Code § 1001.95 (section 1001.95).) 

The other statute prohibits courts from offering diversion in “any case” in which a person 

is charged with a DUI. (Veh. Code § 23640 (section 23640; other undesignated sections 

are to the Penal Code).)

As with the parkgoer, the natural reading reconciles these two statutes just as Code 

of Civil Procedure section 1859 says it should: “when a general and [a] particular 

provision are inconsistent, the latter is paramount to the former. So a particular intent 
2

will control a general one that is inconsistent with it.”1 In this case, the Legislature has 

spoken specifically to preclude diversion in “any” DUI case, which evinces a “particular 

intent” that is “paramount” to the statute that shows a “general one” allowing 

misdemeanor diversion. (Code Civ. Proc., § 1859.) I would refer to this as the “specificover-general” canon of construction.2

The specific-over-general canon is especially appropriate for interpreting 

democratically enacted statutes. We know that the Legislature enacting section 23640 

voted to prohibit DUI diversion in any case, which means we know that Legislature’s 

intent for this case. We do not know how many legislators who generally authorized 

misdemeanor diversion by voting for section 1001.95 intended to eliminate the DUI 

diversion prohibition for this case. What would have happened if the bill’s proponents 

1

I disagree with the dissent’s view that whether the general statement includes 

the word “all” determines how we read a conflicting specific statement. Rather, the 

natural reading comes from comprehending a general and specific intent. If one 

pandemic sign says “All Persons Must Wear Masks” and another nearby states “Masks 

Not Required for Children Under Two” we read the second as governing babies, even 

though they are persons covered under the first sign alone. If the first sign said simply 

“Masks Required,” our reading would follow the same logic. My view is that if ordinary 

readers were given the two laws in this case, they would have no trouble reconciling them 

in favor of the specific DUI diversion prohibition. That would hold true if told (counterfactually) that the DUI prohibition was later-enacted. The trouble that the Court of 

Appeal has had with these two statutes originates not with the words in the laws, but with 

the extra-textual knowledge that the general diversion statute was later-enacted. 

2

 At its deep legal roots, the specific-over-general canon was referred to as the 

rule “generalia specialibus non derogant.” (Ex Parte Crow Dog (1883) 109 U.S. 556, 

570.) Common law cases explained that its reason is “‘that the legislature having had its 

attention directed to a special subject . . . does not intend, by a general enactment 

afterwards, to derogate from its own act when it makes no special mention of its intention 

to do so.’” (Id. at pp. 570-571.)
3

had added to section 1001.95 a specific statement that section 23640 does not apply? 

Would the legislation have lost enough votes to doom it? Did the proponents keep the 

statute silent as to DUI for that reason, allowing members to maintain varying views on 

whether they were partially repealing section 23640? We cannot know. But a specific 

statutory command should be met with a specific repeal. If we fail to require a specific 

expression of legislative intent to repudiate one that the Legislature has already expressed 

specifically, we allow one legislative session’s vague or general intent to overcome 

another legislative session’s specific one. And we encourage proponents of a law to 

muster a difficult majority to repeal a law by staying vague, hoping the courts will 

complete the work that they might not accomplish by a vote on specific statutory text.

Importantly, our Supreme Court has stated that for the specific-over-general 

canon, it does not matter which provision was enacted first: “‘It is the general rule that 

where the general statute standing alone would include the same matter as the special act, 

and thus conflict with it, the special act will be considered as an exception to the general 

statute whether it was passed before or after such general enactment.’” (In re Williamson

(1954) 43 Cal.2d 651, 654 (Williamson).)3 Not unlike in this case, our Supreme Court 

has held that a statute criminalizing a particular type of conspiracy was more specific 

3 When our Supreme Court recently applied the specific-over-general canon in 

Stoetzl v. Department of Human Resources (2019) 7 Cal.5th 718, 748, it stated that a 

more specific statute “must prevail to the extent of a conflict.” In State Dept. of Public 

Health v. Superior Court (2015), 60 Cal.4th 940, 960, the Court reiterated that “the rule 

that specific provisions take precedence over more general ones trumps the rule that laterenacted statutes have precedence [over earlier ones].”
4

(and thus the exclusive way to charge a crime) than one that generally criminalized all 

conspiracies. (Id. at pp. 654-655.)

The cases that have decided our issue have rejected the specific-over-general 

canon with the astute observation that, given two conflicting statutes, “depending on 

one’s arbitrary choice of focus, either could be construed as the more specific.” (Grassi 

v. Superior Court (2021) 73 Cal.App.5th 283, 307 (Grassi); Tan v. Superior Court (2022) 

76 Cal.App.5th 130, 143.) There is a choice of focus whenever a purportedly specific 

statute is not entirely a subset of the general one. The “choice of focus,” however, is not 

arbitrary here, and that also is not our Supreme Court’s test for the canon’s application.

This case does not present an arbitrary choice as to which statute is general and 

which is specific. Section 1001.95 broadly authorizes diversion for dozens of 

misdemeanor statutes based on a sweeping rule, without listing each crime particularly. 

That includes familiar misdemeanors dealing with simple assault and battery; burglary; 

petty theft or shoplifting; checks and access cards; counterfeiting; drug offenses; 

domestic violence; indecent exposure; child abuse or endangerment; obscene matter; 

lewd conduct; prostitution; public drunkenness; liquor law violations; disorderly conduct; 

disturbing the peace; graffiti; vandalism; trespassing; weapons offenses; hit and run; 

driving on a suspended license; reckless driving; and gambling. There also are an 

assortment of more obscure misdemeanors, including, among others, misdirecting a taxi 

customer to a hotel different from the one requested (Pen. Code § 649); installing two-
5

way mirrors in locker rooms (Pen. Code § 653n), and selling an endangered animal or its 

body part or product (Pen. Code § 653r). Few statutes are more general than this one.

Yet section 23640 carves out only two of this compendium of statutes, and it 

identifies them in particular: the DUI crimes defined by Vehicle Code sections 23152 

and 23153. Looked at in this way, it is hard to escape the conclusion that the prohibition 

on DUI diversion is specific, while the authorization of diversion for misdemeanors is 

general. One statute applies to a broad and unlisted set of crimes—more than we can 

easily count—and another applies to just two identified ones in that set. Does anyone 

really think the DUI diversion prohibition is more general?

In any event, where the conduct covered by the specific statute is not entirely a 

subset of the general statute, our Supreme Court’s test for determining whether the canon 

applies is not whether we can imagine different focal points to construe the statutes as 

specific or general. The Court has rejected that by stating “‘[i]t is not correct’” that the 

canon “‘is inapplicable whenever the general statute contains an element not found within 

the four corners’” of the specific statute. (People v. Murphy (2011) 52 Cal.4th 81, 87.) 

Rather, the test is whether “‘it appears from the entire context that a violation of the 

“special” statute will necessarily or commonly result in a violation of the “general” 

statute.’” (Ibid.; People v. Walker (2002) 29 Cal.4th 577, 585; People v. Jenkins (1980) 
6

28 Cal.3d 494, 502 [test is “necessarily or commonly result” rather than whether the 

specific statute “mirrored” the general one’s elements].)4

These statutes readily satisfy that test. By the terms of the Vehicle Code, the vast 

majority of DUIs are misdemeanors: in many situations, a person’s first three DUI 

convictions within a ten-year period are all misdemeanors. (See Veh. Code § 23546.) 

Thus, from the face of the statute, conduct covered by the DUI statutes “necessarily or 

commonly” is covered by the general misdemeanor statute as well. That is also the case 

in experience. In 2020, about 96% of California DUI arrests were misdemeanor arrests.5

Finally, I recognize that the specific-over-general canon might in theory be 

overcome by an adequate showing of legislative intent from legislative history. But 

normally we rely on legislative history simply to construe the most appropriate meaning 

of a statutory term. We typically discern the best application of the enacting legislature’s 

intention. Here, in contrast, we must look for an acceptable showing that, despite not 

enacting statutory text that abrogated section 23640, the Legislature intended to do so. 

We have a countervailing statutory concern and a countervailing intent that we must 

honor: the earlier Legislature enacted its intention to preclude DUI diversion into law. 

4 The Court of Appeal has regularly applied the “necessarily or commonly” test to 

discern legislative intent when criminal conduct falls under two statutes, one arguably the 

specific one that governs. (See, e.g., People v. Joseph (2019) 33 Cal.App.5th 943, 956-

957 [as to filing a false stolen vehicle report, Veh. Code § 10501 is a specific statute and 

Pen. Code § 118 (perjury) the general statute]; People v. Henry (2018) 28 Cal.App.5th 

786, 796-797 [as to signing with a false name, Veh. Code § 40504, subd. (b) is a specific 

statute and Pen. Code § 529 (impersonation) the general statute].)

5 The state Department of Justice’s 2020 crime report shows 4,245 DUI felony 

arrests and 92,048 DUI misdemeanor arrests, for a total of 96,293 DUI arrests. (Crime in 

California 2020 (2021) California Department of Justice, pp. 44, 46-48.)
7

That is why when there is no express declaration of legislative intent to repeal an earlier 

law, we may find an implied repeal “only when there is no rational basis for harmonizing 

the two potentially conflicting statutes, and the statutes are irreconcilable, clearly 

repugnant, and so inconsistent that the two cannot have concurrent operation.” 

(Tuolumne Jobs & Small Business Alliance v. Superior Court (2014) 59 Cal.4th 1029, 

1039 [cleaned up].) 

The prior legislature’s intention was enacted into statutory law, yet the analyses of 

section 1001.95 prepared for the legislators contain no mention of section 23640, nor 

even of DUI diversion. There appears to be not a single statement from any supporter of 

the bill concerning DUI diversion or section 23640. We have some “floor alerts” and 

other statements from the opponents of the bill that suggest that DUI will be covered, but 

use of the arguments of those trying to defeat a bill is a weak way to prove the intent of 

its supporters. Such opposing statements might be offered even if the proponents kept 

vague their intention as to section 23640, knowing they disagreed as to their intent about 

the applicability of that law, to gain a majority for their bill.

Our Legislature as recently as 2017 showed it is easy to draft a statutory provision 

that allows diversion for DUIs despite section 23640. It enacted Penal Code section 

1001.80, subdivision (l), which authorized misdemeanor diversion for the military 

“notwithstanding” section 23640. Yet three years later, the proponents of section 

1001.95 not only included no such clause in the statute, but they kept silent about DUI 

diversion and section 23640 in their bill analyses and floor statements. Why not include 
8

the same “notwithstanding” clause in section 1001.95, if the Legislature intended as 

much? Why not at least refer in the official bill analyses to a view that the statute 

authorizes DUI diversion despite section 23640, if they believed that? One answer may 

be that expressly authorizing diversion for any California DUI misdemeanor—with no 

restrictions due to recidivism or gravity of the DUI, and with no required conditions to 

deter recurrence— is politically tough to enact. Section 23640 doesn’t incapacitate 

today’s Legislature, but it requires it to face the issue of whether it wants DUI diversion 

and, if so, how. So long as the Legislature’s specific section 23640 prohibition remains 

on the books, we do the democratic process no favors by allowing a general statement 

and (possibly tactical) silence to suffice to countermand it.

While I join the opinion, I believe the principle that a specific statement trumps a 

general one is the way to reconcile these two statutes. And we should apply that canon, 

as our Supreme Court often has, because it provides the Legislature with a default rule 

that indicates that if it wishes to partially repeal a statute, it had best make that intention 

express through the words of the statute. That’s what its predecessor Legislature did in 

enacting the earlier law.

RAPHAEL

J.
1

[P. v. Superior Court of Riverside County; Jessica Ortiz, E077954]

MENETREZ, J., Dissenting.

Vehicle Code section 23640 prohibits diversion for both felony and misdemeanor 

driving under the influence (DUI). Penal Code section 1001.95 authorizes diversion for 

all misdemeanors subject to a short list of ineligible offenses, and DUIs are not on the 

list. (Unlabeled statutory citations refer to the Penal Code.) Thus, section 1001.95 and 

Vehicle Code section 23640 at least appear to conflict. The question presented in this 

case is whether, given that apparent conflict, misdemeanor DUIs are eligible for diversion 

under section 1001.95.

I conclude that they are, for the following reasons: The statutes irreconcilably 

conflict, because they are unambiguous and Vehicle Code section 23640 prohibits what 

section 1001.95 permits. The statutes therefore cannot be harmonized, i.e., they cannot 

be interpreted in such a way as to resolve the conflict while giving full effect to both 

statutes. Neither statute is more specific than the other—section 1001.95 is specific to 

misdemeanors, and Vehicle Code section 23640 is specific to DUIs. Section 1001.95 

therefore controls because it was enacted later. The legislative history is entirely in 

accord. It contains ample evidence that the Legislature intended section 1001.95 to 

authorize diversion for misdemeanor DUIs, and it contains no evidence to the contrary. 

People v. Superior Court (Diaz-Armstrong) 67 Cal.App.5th Supp. 10 (Diaz-Armstrong) 

agrees.

The majority and concurring opinions disagree. In so doing, they reach the same 

conclusion as Grassi v. Superior Court (2021) 73 Cal.App.5th 283 (Grassi), Tan v. 
2

Appellate Division of Superior Court (2022) 76 Cal.App.5th 130 (Tan), Islas v. Appellate 

Division of Superior Court (2022) 78 Cal.App.5th 1104 (Islas), and People v. Superior 

Court (Espeso) (2021) 67 Cal.App.5th Supp. 1 (Espeso). Like all four of those cases, the 

majority and concurring opinions conclude that section 1001.95 and Vehicle Code 

section 23640 can be harmonized by interpreting section 1001.95 as authorizing diversion 

for all misdemeanors except those listed as ineligible in section 1001.95 and DUIs.

It is important to be clear about the nature of that holding. The majority and 

concurring opinions and similar cases do not hold that section 1001.95 authorizes 

diversion for misdemeanor DUIs but is overridden by Vehicle Code section 23640’s ban 

on diversion for all DUIs. Rather, they hold that section 1001.95, when properly 

interpreted, does not authorize diversion for misdemeanor DUIs in the first place. As a 

result, the initial appearance of conflict between section 1001.95 and Vehicle Code 

section 23640 turns out to be illusory. In reality, there is no conflict at all.

That distinction—between harmonizing the statutes, on the one hand, and 

recognizing an irreconcilable conflict and deciding which statute trumps, on the other—is 

crucial, because it decisively shapes the rest of the analysis. If we are harmonizing the 

statutes, then our interpretation must be guided by the rule that “‘[a]ll presumptions are 

against a repeal by implication.’” (Garcia v. McCutchen (1997) 16 Cal.4th 469, 476.) 

That rule will lead us to make every effort to interpret the newer statute in such a way as 

to leave the older statute undisturbed. But if I am right that the statutes cannot be 

harmonized, then our analysis is governed by the opposite rule, that the newer statute is 

controlling.
3

The same distinction will similarly influence our review of the legislative history. 

If we believe the statutes can be harmonized, then the presumption against implied repeal 

will lead us to try to explain away any evidence that the Legislature intended such a 

repeal. But if we believe the statutes irreconcilably conflict and we are just trying to 

figure out which statute the Legislature intended to be paramount, then our analysis of the 

legislative history will not be dominated by a bias in favor of the older statute.

In Part 1 of this dissent, I describe the applicable doctrinal framework. In Part 2, I 

argue that section 1001.95 and Vehicle Code section 23640 irreconcilably conflict. In 

Part 3, I explain why section 1001.95 controls over Vehicle Code section 23640. Part 4 

addresses the case law, Part 5 addresses the majority opinion, and Part 6 addresses the 

concurrence.

Having comprehensively surveyed the analyses contained in the case law and in 

today’s opinions, I have yet to find a meritorious argument for the conclusion that section 

1001.95 and Vehicle Code section 23640 can be harmonized or that misdemeanor DUIs 

are ineligible for diversion under section 1001.95. I therefore respectfully dissent.

1. Legal Framework

When deciding how to apply two statutes that appear to conflict, we apply the 

following framework: “‘“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 
4

“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.” [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 [the Supreme Court has] 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.] This canon of 

construction, like all such canons, does not authorize courts to rewrite statutes.” (State 

Dept. of Public Health v. Superior Court (2015) 60 Cal.4th 940, 955-956 (State Dept. of 

Public Health).)

If there is an actual (rather than merely apparent) conflict between two statutes—

that is, they cannot be interpreted in such a way as to give full effect to both—then they 

cannot be harmonized, and “one must be interpreted as providing an exception to the 

other.” (State Dept. of Public Health, supra, 60 Cal.4th at p. 956; id. at p. 958 [rejecting 

the lower court’s “harmonization efforts” because they “did not give full effect” to the 

statutes at issue]; Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, 
5

LLC (2015) 61 Cal.4th 830, 838 (Even Zohar) [harmonizing two statutes by adopting “a 

reasonable construction that gives full effect to both”].) “The rules we must apply when 

faced with two irreconcilable statutes are well established. ‘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 provisions take precedence over more 

general ones trumps the rule that later-enacted statutes have precedence. [Citations.]” 

(State Dept. of Public Health, at pp. 960-961.)

To summarize: There is a strong presumption against implied repeal. 

Consequently, if we can interpret two seemingly conflicting statutes in such a way as to 

resolve the apparent conflict while giving full effect to both statutes, then we must do so, 

thereby harmonizing them. But we cannot rewrite the statutes in order to achieve that 

result, either to avoid an implied repeal or for any other reason.

If the two statutes cannot be interpreted so as to resolve the conflict while giving 

full effect to both, then we must determine which one is an exception to the other. In 

doing so, we are no longer guided by the presumption against implied repeal. Rather, the 

later-enacted or more specific statute takes precedence, and in case of a conflict between 

those two canons, the more specific statute is controlling. Moreover, our overarching 

goal is to give effect to the Legislature’s intent. (State Dept. of Public Health, supra, 60 

Cal.4th at p. 961 [“‘[O]ur goal is to discern the probable intent of the Legislature so as to 

effectuate the purpose of the laws in question’”].)
6

2. Section 1001.95 and Vehicle Code Section 23640 Conflict and Cannot Be 

Harmonized

“[Vehicle Code] section 23640 bars diversion in DUI cases. [Citation.] The 

statute has been the law since 1981. [Citation.] In relevant part, it states that ‘[i]n any 

case in which a person is charged with’ violating Vehicle Code section 23152 (for DUI) 

or 23153 (for DUI causing bodily injury), the court shall not suspend, stay, or dismiss the 

proceedings ‘for the purpose of allowing the accused person to attend or participate . . . in 

any one or more education, training, or treatment programs.’ (Veh. Code, § 23640, subd. 

(a).)” (Tellez v. Superior Court (2020) 56 Cal.App.5th 439, 443 (Tellez), fn. omitted.)

Section 1001.95 provides for pretrial diversion for all misdemeanors, subject to a 

short list of exceptions that does not include DUIs. Subdivision (a) of section 1001.95 

provides as follows: “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.” The provisions of 

section 1001.95 include subdivision (e), which provides that “[a] defendant may not be 

offered diversion pursuant to this section for” registrable sex offenses, domestic violence, 

and stalking. Section 1001.95 does not exclude any other misdemeanors from diversion.

Both statutes are unambiguous, and they directly conflict. Vehicle Code section 

23640 unambiguously prohibits diversion for all DUIs, including misdemeanor DUIs. 

Subdivision (a) of section 1001.95 unambiguously authorizes diversion for all 

misdemeanors “pursuant to these provisions,” the only provision of section 1001.95 

identifying any exceptions is subdivision (e), and DUIs are not listed in subdivision (e). 
7

There is no way to interpret the language of either statute so as to resolve that conflict. 

One statute unambiguously prohibits what the other statute unambiguously permits.

There are a couple of ways to see that there is an actual, rather than merely 

apparent, conflict between the statutes and that they therefore cannot be harmonized. 

One way is to consider related case law. In Hopkins v. Superior Court (2016) 2 

Cal.App.5th 1275 (Hopkins), the court addressed the apparent conflict between Vehicle 

Code section 23640 and the then-new military diversion program under section 1001.80. 

(Hopkins, supra, at pp. 1278-1279.) At that time, section 1001.80 provided that “‘[t]his 

chapter shall apply whenever a case is before a court on an accusatory pleading alleging 

the commission of a misdemeanor offense,’ and the defendant is a former or current 

member of the military who may be suffering from service-related trauma, PTSD, 

substance, or mental health issues.” (Hopkins, at p. 1282, italics omitted.) Section 

1001.80 authorized the court to order diversion for a defendant who met the requirements 

of the statute. (Hopkins, at p. 1282.) The Hopkins court concluded that “[t]here is no 

ambiguity in this language: ‘whenever’ a qualified defendant is charged with ‘a 

misdemeanor offense,’ the court may place the defendant in a pretrial diversion 

program.” (Ibid.) Because Vehicle Code section 23640 “is equally unambiguous” in its 

prohibition of diversion for DUIs (Hopkins, at p. 1282), the statutes “cannot be reconciled 

with respect to defendants in DUI cases who meet the stated criteria under section 

1001.80.” (Id. at p. 1283.)

The court rejected the People’s contention that the statutes could be harmonized 

by limiting section 1001.80 to non-DUI misdemeanors. (Hopkins, supra, 2 Cal.App.5th 
8

at p. 1282.) The court explained, “the People’s attempt to harmonize rewrites section 

1001.80 to add an additional criterion not found in the express language, i.e., that the 

defendant cannot be charged with a misdemeanor DUI offense. But, as the Supreme 

Court instructs, the requirement to ‘harmonize potentially inconsistent statutes when 

possible is not a license to redraft the statutes.’” (Ibid.)

1

This court’s opinion in Tellez employed identical analysis and reached the same 

conclusion. Tellez addressed the apparent conflict between Vehicle Code section 23640 

and mental health diversion under section 1001.36. (Tellez, supra, 56 Cal.App.5th at 

p. 442.) Section 1001.36 authorizes diversion for “a defendant” who is charged with “a 

misdemeanor or felony offense” if the defendant has “a mental disorder” and meets 

certain eligibility criteria. (§ 1001.36, subds. (a), (b)(1)(A).) The statute also includes a 

short list of charges that are not eligible for diversion, but DUIs are not among them. 

(Id., subd. (b)(2).) Tellez concluded that Vehicle Code section 23640 and section 

1. Less than one month before Hopkins was decided, another court reached the 

opposite conclusion, holding that diversion under section 1001.80 was not available for 

DUIs. (People v. VanVleck (2016) 2 Cal.App.5th 355, 365 (VanVleck).) The doctrinal 

basis for that conclusion was not entirely clear. On the one hand, the court stated that it 

“reconcile[d] the conflict” between the two statutes. (Id. at p. 363.) On the other hand, 

the court followed State Dept. of Public Health’s guidance for how to proceed “‘“[i]f 

conflicting statutes cannot be reconciled.”’” (VanVleck, supra, at p. 365.) The court 

ultimately concluded that Vehicle Code section 23640 was controlling because it was 

more specific than section 1001.80. (VanVleck, at p. 365.) The Supreme Court granted 

review in both Hopkins and VanVleck. (Hopkins, supra, 2 Cal.App.5th 1275, review 

granted Nov. 16, 2016, S237734; VanVleck, 2 Cal.App.5th 355, review granted Nov. 16, 

2016, S237219.) But before the Supreme Court decided either case, the Legislature 

amended section 1001.80 to provide that military diversion is available for DUIs 

“[n]otwithstanding any other law, including section 23640 of the Vehicle Code.” 

(§ 1001.80, subd. (l).)
9

1001.36 “are unambiguous in their plain language: One clearly prohibits diversion for

defendants charged with DUI offenses, and the other just as clearly allows mental health 

diversion for any defendant who meets the minimum eligibility requirements (and who is 

not charged with a disqualifying offense). When it comes to DUI offenses, Vehicle Code 

section 23640 prohibits a court from doing what [section 1001.36] permits.” (Tellez, at 

p. 444.) We concluded that “[t]he two ‘statutes are in conflict and thus one must be 

interpreted as providing an exception to the other.’” (Ibid.)

For purposes of analyzing the conflict with Vehicle Code section 23640, there is 

no material difference between the language of section 1001.80 (addressed in Hopkins), 

the language of section 1001.36 (addressed in Tellez), and the language of section 

1001.95. Under section 1001.80, “a court” is authorized to order diversion for a qualified 

defendant charged with “a misdemeanor.” Under section 1001.36, diversion is 

authorized for “a defendant” charged with “a misdemeanor or felony,” subject to a short 

list of exceptions that does not include DUIs. Under section 1001.95, “[a] judge” is 

authorized to order diversion for “a defendant” charged with “a misdemeanor,” again 

subject to a short list of exceptions that does not include DUIs. Thus, just as Hopkins and 

Tellez identified an actual, irreconcilable conflict between Vehicle Code section 23640, 

on the one hand, and sections 1001.80 and 1001.36, on the other, there is also an actual, 

irreconcilable conflict between Vehicle Code section 23640 and section 1001.95. 

Hopkins and Tellez are impossible to distinguish from the present case in that respect. 

Vehicle Code section 23640 unambiguously prohibits what section 1001.80, section 

1001.36, and section 1001.95 unambiguously permit.
10

Another way to see that there is an actual, rather than merely apparent, conflict 

between the statutes and that they therefore cannot be harmonized is to consider the 

following hypothetical: Suppose that the chronology were reversed, with section 1001.95 

enacted before Vehicle Code section 23640. In that case, after the enactment of section 

1001.95 but before the enactment of Vehicle Code section 23640, it would be beyond 

dispute that section 1001.95 unambiguously authorizes diversion for misdemeanor DUIs. 

By authorizing diversion for “a defendant” charged with “a misdemeanor,” it 

unambiguously authorizes diversion for all misdemeanors, subject to a list of exceptions. 

DUIs are not on the list of exceptions, so the statute unambiguously authorizes diversion 

for misdemeanor DUIs. Later, after the enactment of Vehicle Code section 23640, no 

one would claim that the statutes could be harmonized—section 1001.95 unambiguously 

authorizes diversion for misdemeanor DUIs, and Vehicle Code section 23640 

unambiguously prohibits it. No one would claim that now that Vehicle Code section 

23640 has been enacted and we consider it together with section 1001.95, we are able to 

perceive an ambiguity in section 1001.95 that we had not seen before, so perhaps it does 

not authorize diversion for misdemeanor DUIs after all. There is no such ambiguity.

For all of the foregoing reasons, I conclude in accord with Hopkins and Tellez that 

there is an actual, rather than merely apparent, conflict between Vehicle Code section 

23640 and section 1001.95. Both statutes are unambiguous. One prohibits what the 

other permits. They therefore cannot be harmonized.
11

3. Neither Statute Is More Specific, Section 1001.95 Was Enacted Later and 

Therefore Controls, and the Legislative History Is Uniformly in Accord

Because Vehicle Code section 23640 and section 1001.95 conflict and cannot be 

harmonized, we must determine which statute is an exception to the other. Again, under 

State Dept. of Public Health, a more specific statute controls over a more general one, a 

later statute controls over an earlier one unless the earlier one is more specific, and our 

overarching goal is to give effect to the Legislature’s intent. (State Dept. of Public 

Health, supra, 60 Cal.4th at pp. 960-961; see also Tellez, supra, 56 Cal.App.5th at 

pp. 444-449 [holding that because of certain unique aspects of the legislative history of 

§ 1001.36, it does not control over Veh. Code, § 23640 even though § 1001.36 was 

enacted later and neither statute is more specific than the other].)

Here, neither statute is more specific than the other. Vehicle Code section 23640 

applies only to DUIs, so in that sense section 1001.95 is more general, because it applies 

to both misdemeanor DUIs and other misdemeanors. But section 1001.95 applies only to 

misdemeanors, so in that sense Vehicle Code section 23640 is more general, because it 

applies to both misdemeanor DUIs and felony DUIs. Thus, “unless we are prepared to 

make an arbitrary choice of focus”—that is, arbitrarily focusing on the distinction 

between misdemeanor DUIs and other misdemeanors or on the distinction between 

felony DUIs and misdemeanor DUIs—“the general-versus-specific rule of statutory 

construction gets us nowhere.” (Hopkins, supra, 2 Cal.App.5th at p. 1284.)

Until today, every published Court of Appeal opinion concerning the conflict 

between Vehicle Code section 23640 and section 1001.95 had reached the same 
12

conclusion. (Grassi, supra, 73 Cal.App.5th at pp. 306-307; Tan, supra, 76 Cal.App.5th 

at p. 143; Islas, supra, 78 Cal.App.5th at p. 1109.) One published decision of the 

Appellate Division of the Superior Court agreed as well. (Diaz-Armstrong, supra, 67 

Cal.App.5th at p. Supp. 22.) (Another did not address the issue. (Espeso, supra, 67 

Cal.App.5th at p. Supp. 1).) This court came to the same conclusion concerning Vehicle 

Code section 23640 and section 1001.36. (Moore v. Superior Court (2020) 58 

Cal.App.5th 561, 580 & fn. 10 (Moore).) And Hopkins reached the same conclusion 

concerning Vehicle Code section 23640 and section 1001.80. (Hopkins, supra, 2 

Cal.App.5th at pp. 1282-1284.)2

Because neither statute is more specific than the other, the later-enacted statute is 

controlling unless some other indicator of legislative intent demonstrates the contrary. 

(State Dept. of Public Health, supra, 60 Cal.4th at pp. 960-961; Tellez, supra, 56 

Cal.App.5th at p. 444; see Lewis v. Ryan (1976) 64 Cal.App.3d 330, 334.) Section 

1001.95 is therefore controlling because it is the later-enacted statute, and there is no 

evidence of a contrary legislative intent. In fact, the legislative history uniformly tends to 

2. VanVleck concluded that Vehicle Code section 23640 is more specific than section 

1001.80, so Vehicle Code section 23640 is controlling even though section 1001.80 was 

enacted later. (VanVleck, supra, 2 Cal.App.5th 365.) VanVleck derived its analysis from 

People v. Weatherill (1989) 215 Cal.App.3d 1569 (Weatherill), which concerned Vehicle 

Code section 23640 and a diversion program for developmentally disabled defendants. 

(VanVleck, at p. 365.) The dissent in Weatherill, however, argued that neither statute was 

more specific than the other (Weatherill, supra, at p. 1582 (dis. opn. of Johnson, J.)), and 

subsequent opinions in this area have adopted the dissent’s analysis (Grassi, supra, 73 

Cal.App.5th at pp. 306-307; Tan, supra, 76 Cal.App.5th at p. 143; Islas, supra, 78 

Cal.App.5th at p. 1109; Diaz-Armstrong, supra, 67 Cal.App.5th at p. Supp. 22; Hopkins, 

supra, 2 Cal.App.5th at pp. 1283-1284). 
13

show that the Legislature intended to allow diversion for all misdemeanors other than the 

exceptions listed in section 1001.95 and that it intended to allow diversion for DUIs in 

particular.

The case law and the majority opinion extensively describe the legislative history, 

so there is no need to repeat all of it here. Rather, the following points are sufficient: 

Section 1001.95 was created by Assembly Bill No. 3234 (2019-2020 Reg. Sess.). The 

bill’s original version of section 1001.95 did not exclude any misdemeanors from 

diversion. (Grassi, supra, 73 Cal.App.5th at p. 301.) The Assembly floor analysis for 

that version of the bill described the limitations of already-existing misdemeanor 

diversion programs: In addition to imposing certain eligibility requirements on 

defendants, “[e]xisting misdemeanor diversion has a number of exclusions,” such as 

“certain Vehicle Code offenses.” The floor analysis explained that the new misdemeanor 

diversion program under section 1001.95 would not be so limited: “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 No. 3234 (2019-

2020 Reg. Sess.) as amended Aug. 3, 2020.)

The bill was amended on August 24, 2020, to exclude the offenses listed in 

subdivision (e) of section 1001.95. The Assembly floor analysis for the amended bill 

accordingly explained that section 1001.95 “[a]uthorizes a superior court judge to offer 

diversion to a person charged with a misdemeanor over the objection of a prosecuting 

attorney, except that a defendant may not be offered diversion for any of the” offenses 
14

listed in subdivision (e). The discussion in the previous floor analysis of the differences 

between prior misdemeanor diversion programs and section 1001.95 was carried over 

into the new floor analysis. It stated that “certain Vehicle Code offenses” were excluded 

under existing misdemeanor diversion and that “[u]nlike 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 No. 3234 (2019–2020 Reg. Sess.) as 

amended Aug. 24, 2020.)

The Senate Floor Analysis for the final version of Assembly Bill No. 3234 was 

similar. It too stated that “[u]nlike 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.” At the same time, it acknowledged that the 

misdemeanors listed in subdivision (e) of section 1001.95 “cannot be diverted.” (Sen. 

Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Assem. Bill No. 3234, as 

amended Aug. 24, 2020.)

The Orange County District Attorney and the California District Attorneys 

Association issued floor alerts opposing the bill on various grounds, including that it 

would allow diversion for DUIs. (See maj. opn., ante, at pp. 37-38.) During floor 

debates in both houses, certain individual legislators likewise opposed the bill because it 

would allow diversion for DUIs. (Id. at pp. 38-39.) No legislator, floor analysis, or 

advocacy organization ever asserted that the bill would not allow diversion for DUIs, 

either because of Vehicle Code section 23640 or for any other reason.
15

To summarize: As originally drafted, section 1001.95 had no exceptions, and the 

floor analysis confirmed that no misdemeanors were excluded, in contrast to alreadyexisting misdemeanor diversion, which excluded certain Vehicle Code offenses and other 

crimes. The exceptions in subdivision (e) of section 1001.95 were then added by 

amendment, and subsequent floor analyses acknowledged the change while carrying over 

the prior statements that no misdemeanors were excluded. The district attorneys and 

individual legislators opposed the bill because section 1001.95 would allow diversion for 

DUIs, and no one ever contradicted their interpretation. All of that legislative history 

tends to show that the Legislature intended section 1001.95 to authorize diversion for all 

misdemeanors other than those listed in subdivision (e) and to allow diversion for DUIs 

in particular.

To be sure, the legislative history could be more explicit. For example, although 

(1) the legislators were repeatedly told that the bill would allow diversion for DUIs, (2) 

the legislators never said or were told anything to the contrary, (3) the statutory text on its 

face allows diversion for all misdemeanors except those listed in subdivision (e) of 

section 1001.95, and (4) DUIs are not on that list, it is nonetheless true that no legislator 

who supported the bill ever said it would allow diversion for misdemeanor DUIs. None 

of them said, “By this legislation we intend to authorize diversion for misdemeanor 

DUIs,” or “We intend to override Vehicle Code section 23640.” Thus, it is conceivable 

that the legislators who voted for the bill disbelieved the unrefuted district attorneys, the 

unrefuted opposing legislators, and the bill’s unambiguous language, concluding that the 

bill they were voting for did not allow diversion for misdemeanor DUIs.
16

There is no evidence, however, that the Legislature contained any such skeptics. 

More broadly, the legislative history contains no evidence that the Legislature did not 

intend to allow diversion for misdemeanor DUIs under section 1001.95.

In sum, the legislative history contains evidence that the Legislature intended to 

allow diversion for DUIs under section 1001.95. Although that evidence is not perfectly 

explicit and conclusive, it is the only evidence we have. The legislative history contains 

no conflicting or contrary evidence. As Diaz-Armstrong put it, “[t]hough the indicators 

found in the legislative history are perhaps sporadic, they are not ambiguous as they all 

point in the same direction: that the Legislature did not intend to exclude misdemeanor 

DUIs from section 1001.95 diversion.” (Diaz-Armstrong, supra, 67 Cal.App.5th at 

p. Supp. 26.)

To summarize the analysis as a whole: Vehicle Code section 23640 and section 

1001.95 conflict and cannot be harmonized. We consequently must determine which one 

is an exception to the other. Neither statute is more specific or more general. Section 

1001.95 is the later-enacted statute and therefore controls unless we have some other 

strong evidence of a contrary legislative intent. We have none. Rather, the legislative 

history uniformly supports the conclusion that the Legislature intended to allow diversion 

for misdemeanor DUIs under section 1001.95. Section 1001.95 is therefore controlling 

and authorizes diversion for misdemeanor DUIs.

4. The Case Law

As the majority opinion emphasizes, “[t]o date, the Court of Appeal has uniformly 

held that misdemeanor DUI charges are ineligible for diversion under [section 1001.95].” 
17

(Maj. opn., ante, at p. 3.) Although mindful that there is no horizontal stare decisis in the 

Court of Appeal (In re Marriage of Shaban (2001) 88 Cal.App.4th 398, 409), I also am 

not eager to be the sole justice parting ways with the position already taken by three

unanimous panels. But I find that I must respectfully disagree with the existing Court of 

Appeal decisions because I do not find their analysis persuasive.

A. Grassi

Grassi was the first Court of Appeal decision to address the conflict between 

Vehicle Code section 23640 and section 1001.95. (Grassi, supra, 73 Cal.App.5th at 

p. 288.) The court considered the statutory language (id. at pp. 290-293), case law 

concerning diversion and Vehicle Code section 23640 (Grassi, at pp. 293-301), section 

1001.95’s legislative history (Grassi, at pp. 301-302), and canons of statutory 

construction (id. at pp. 305-307). The court ultimately concluded that Vehicle Code 

section 23640 and section 1001.95 “can be harmonized to give both effect.” (Grassi, at 

p. 307.) The court held that “section 1001.95 authorizes diversion for all misdemeanor 

defendants except those listed in subdivision (e), and misdemeanor DUI defendants 

pursuant to Vehicle Code section 23640,” and the court asserted that its “conclusion does 

not result in redrafting section 1001.95 to strike a compromise the Legislature did not 

reach.” (Id. at p. 308.)

I believe that the error in Grassi’s analysis begins in its discussion of the statutory 

language. That discussion contains the following paragraph: “Both statutes are 

unambiguous in their plain language. When it comes to misdemeanor DUI defendants, 

Vehicle Code section 23640 prohibits a court from doing what [section 1001.95] permits 
18

it to do. ‘[T]he statutes are in conflict and thus one must be interpreted as providing an 

exception to the other.’ [State Dept. of Public Health, supra, 60 Cal.4th at p. 956.] Is 

[Vehicle Code] section 23640 an exception to section 1001.95? Or is section 1001.95 an 

exception to [Vehicle Code] section 23640? Or can we harmonize the statutes to give 

them both effect?” (Grassi, supra, 73 Cal.App.5th at p. 293, italics added.)

That final question shows that the Grassi court failed to appreciate the significance 

of the conclusions that the court had reached earlier in the same paragraph. If both 

statutes are unambiguous (and Grassi says they are), and one statute permits what the 

other prohibits (and Grassi says they do), then it is impossible to harmonize them, 

because harmonization requires interpreting the statutes so as to give full effect to both. 

(See State Dept. of Public Health, supra, 60 Cal.4th at p. 958; Even Zohar, supra, 61 

Cal.4th at p. 838.) Because the statutes are unambiguous, the statutory language is not 

susceptible of multiple interpretations. Because one statute permits what the other 

prohibits, we cannot give full effect to both. Harmonization is therefore impossible 

according to Grassi’s own conclusions about the unambiguous meaning of the statutory 

language.

That initial error—the failure to appreciate that harmonization is impossible 

because one statute unambiguously prohibits what the other statute unambiguously 

permits—is pivotal. If Grassi had recognized that harmonization was off the table, its 

analysis would no longer have been guided by the presumption against implied repeal, a 

presumption that strongly favors the earlier-enacted statute. Rather, that presumption 

would have been replaced by a rule that points in precisely the opposite direction, 
19

namely, the rule that the later-enacted statute is controlling (unless the earlier-enacted 

statute is more specific). (State Dept. of Public Health, supra, 60 Cal.4th at pp. 960-961.) 

The court could also have looked for other evidence of legislative intent. (Tellez, supra, 

56 Cal.App.5th at p. 444.) But because the court was purportedly harmonizing the 

statutes, all of its analysis was colored by the presumption against implied repeal. In 

effect, because the court believed it was engaged in harmonization, the presumption 

against implied repeal placed a thumb on the scale in favor of the earlier-enacted statute. 

But if the statutes cannot be harmonized, then the thumb belongs on the other side.

Grassi’s explanation of its holding makes clear how that dynamic was dispositive. 

The court stated, “Our Supreme Court’s instruction that repeal by implication is 

disfavored is the bedrock of our holding.” (Grassi, supra, 73 Cal.App.5th at p. 307.) But 

because the statutes cannot be harmonized according to Grassi’s own analysis of the 

statutory language, the presumption against implied repeal should have been irrelevant.

The court continued, “As we explain above, the Legislature in enacting section

1001.95 gave no indication it intended to repeal [Vehicle Code] section 23640.” (Grassi, 

supra, 73 Cal.App.5th at p. 307.) But according to Grassi’s own analysis of the language 

of section 1001.95, the Legislature unambiguously authorized diversion for misdemeanor 

DUIs. Why is that an insufficient indication of legislative intent? After all, “the statutory 

language . . . generally is the most reliable indicator of legislative intent.” (People v. 

Gutierrez (2014) 58 Cal.4th 1354, 1369 (Gutierrez).) Again, the court’s reasoning makes 

sense only if driven by the presumption against implied repeal.
20

The court further explained, “We must presume the Legislature was aware of 

Vehicle Code section 23640, the other diversion statutes, and Weatherill, VanVleck, and 

Hopkins when it enacted section 1001.95, and concluded it was redundant to expressly 

exclude misdemeanor DUIs in section 1001.95 in light of [Vehicle Code] section 23640.” 

(Grassi, supra, 73 Cal.App.5th at p. 307.) But the inclusion of Hopkins on that list gives 

the game away. Hopkins held that Vehicle Code section 23640 and section 1001.80 

irreconcilably conflict, that section 1001.80 is controlling because it was enacted later, 

and that section 1001.80 therefore is an exception to Vehicle Code section 23640 and 

authorizes diversion for DUIs, even though section 1001.80 (at that time) did not mention 

Vehicle Code section 23640. (Hopkins, supra, 2 Cal.App.5th at pp. 1282-1284.) If the 

Legislature was aware of Hopkins, why would it think “it was redundant to expressly 

exclude misdemeanor DUIs in section 1001.95 in light of [Vehicle Code] section 

23640”? (Grassi, at p. 307.) It would be equally reasonable for the Legislature to 

conclude that because section 1001.95 unambiguously authorizes diversion for 

misdemeanor DUIs, the courts will carry out that legislative command, just as Hopkins

did with respect to section 1001.80 even before it was amended to overrule VanVleck. 

Once again, the Grassi court’s analysis makes sense only if driven by the presumption 

against implied repeal.

Grassi also notes that “the canon ‘the expression of certain things in a statute 

necessarily involves exclusion of other things not expressed[]’” would appear to compel 

the conclusion that “section 1001.95 permits diversion for misdemeanor DUI defendants 

because they are not expressly excluded in subdivision (e).” (Grassi, supra, 73 
21

Cal.App.5th at p. 306.) But given Vehicle Code section 23640, the court found it 

“reasonable to conclude the Legislature chose not to include DUIs among the exclusions 

in subdivision (e) of section 1001.95. To do so would have amounted to a redundancy.” 

(Grassi, at p. 306.) 

In my view, that analysis misapplies the canon. “‘Under the maxim of statutory 

construction, expressio unius est exclusio alterius, if exemptions are specified in a statute, 

we may not imply additional exemptions unless there is a clear legislative intent to the 

contrary.’” (Lopez v. Sony Electronics, Inc. (2018) 5 Cal.5th 627, 635-636 (Lopez).) In 

particular, we may not imply additional exemptions “when there is reason to believe a 

legislative omission was intentional, such as when the statute contains a ‘specific list’ or 

presents a ‘facially comprehensive treatment.’” (Id. at p. 636, italics added.) In case 

after case, courts have applied the canon to lists of exemptions and concluded that 

unlisted exemptions were precluded. (E.g., Lopez, supra, at p. 636; Sierra Club v. State 

Bd. of Forestry (1994) 7 Cal.4th 1215, 1230; Mutual Life Ins. Co. v. City of Los Angeles

(1990) 50 Cal.3d 402, 410; Wildlife Alive v. Chickering (1976) 18 Cal.3d 190, 195-196; 

S.V. v. Superior Court (2017) 13 Cal.App.5th 1174, 1182; In re James H. (2007) 154 

Cal.App.4th 1078, 1083-1084.) 

Here, we have a specific list, so we have reason to believe the omission of unlisted 

offenses was intentional, precluding the addition of any unlisted offenses by implication. 

The mere existence of Vehicle Code section 23640 is not clear evidence of legislative 

intent to the contrary. The “‘proper role’” of the expressio unius canon is to resolve “‘an 

ambiguity in statutory language or uncertainty in legislative intent.’” (State Farm Mutual 
22

Automobile Ins. Co. v. Garamendi (2004) 32 Cal.4th 1029, 1046.) The Legislature’s 

intent is (allegedly) uncertain here only because of Vehicle Code section 23640. The 

existence of Vehicle Code section 23640 cannot both create the uncertainty and resolve 

it.

Moreover, as already explained, the legislative history suggests that the 

Legislature intended to make DUIs eligible for diversion under section 1001.95. Courts 

do not apply the expressio unius canon if it defeats an otherwise discernable legislative

intent. (In re J.W. (2002) 29 Cal.4th 200, 209.) But in this case, both the canon and the 

legislative history’s evidence of legislative intent support the same conclusion: The list 

of exemptions in subdivision (e) is exclusive, so section 1001.95 authorizes diversion for 

misdemeanor DUIs.

Grassi closes with a candid acknowledgement that “[t]he panel members here can 

surely imagine writing this opinion the other way, to conclude misdemeanor DUI 

defendants are eligible for diversion, based on say section 1001.95’s plain language 

(DUIs are not expressly excluded), or the canons of statutory construction, the expression 

of some things means the exclusion of others (§ 1001.95, subd. (e), provides exclusions 

but again DUIs are not expressly excluded) or later enacted statutes supersede earlier 

statutes (the Legislature enacted § 1001.95 in 2020 and Veh. Code § 23640 in 1998).” 

(Grassi, supra, 73 Cal.App.5th at p. 308.) But the court then confirmed again that it 

believed the presumption against implied repeal was controlling: “[A]s we explain 

above, we follow our Supreme Court’s teaching and harmonize the statutes to avoid an 

implied repeal.” (Ibid.)
23

For all of the foregoing reasons, I do not find Grassi persuasive. I agree with 

Grassi’s determination that Vehicle Code section 23640 and section 1001.95 are 

unambiguous and conflict because one permits what the other prohibits. But because the 

opinion goes on to conclude that the statutes can still be harmonized, it is internally 

inconsistent. And once that inconsistency is identified, the remainder of the opinion’s 

justifications for its conclusion do not withstand scrutiny.

B. Tan

Tan, like Grassi, concludes that Vehicle Code section 23640 and section 1001.95 

“can be reconciled and that misdemeanor convictions for DUI are not eligible for 

statutory diversion.” (Tan, supra, 76 Cal.App.5th at p. 134.) Some of the details of 

Tan’s analysis differ from Grassi’s, however, so it requires separate consideration.

After quoting subdivisions (a) and (e) of section 1001.95, Tan concludes that 

“[u]nder the plain words of the statute, judges have discretion to offer diversion for 

misdemeanor offenses over the objection of a prosecuting attorney unless the offense is 

one of the specifically excluded categories listed in subdivision (e).” (Tan, supra, 76 

Cal.App.5th at p. 137.) The court then quoted Vehicle Code section 23640 and likewise 

acknowledged that “the clear import of this language is that diversion is categorically 

unavailable to DUI defendants.” (Tan, at p. 137.) Thus, “[r]ead separately, the statutes 

appear to conflict.” (Ibid.)

But after describing relevant legal principles, including the presumption against 

implied repeal, the court concluded that the conflict is merely apparent, not real, because 

“the statutes are not irreconcilable.” (Tan, supra, 76 Cal.App.5th at p. 138.) The court 
24

explained that “[n]othing in the language of section 1001.95 suggests that it intended to 

overrule the prohibition on diversion in DUI cases contained in Vehicle Code section 

23640. . . . [S]ection 1001.95 does not make specific reference to Vehicle Code section 

23640, nor does it include any other language indicating an intent to establish an 

exception to [Vehicle Code] section 23640’s unambiguous prohibition of diversion in all 

DUI cases.” (Ibid.)

There are two ways of reading those claims. On the one hand, they might mean 

that nothing in the language of section 1001.95 indicates the Legislature intended to 

authorize diversion for misdemeanor DUIs. (See Tan, supra, 76 Cal.App.5th at p. 139 

[“nothing in § 1001.95 indicates an affirmative intent to allow misdemeanor diversion for 

DUIs”].) On that reading, the claims are incorrect, as Tan’s own analysis of the statutory 

language shows. The plain language of subdivision (a) of section 1001.95 authorizes 

diversion for misdemeanor offenses other than those excluded by subdivision (e). (Tan, 

at p. 137.) DUIs are not excluded by subdivision (e), so the plain language of subdivision 

(a) unambiguously authorizes diversion for misdemeanor DUIs. Statutory language that 

unambiguously authorizes diversion for misdemeanor DUIs indicates that the Legislature 

intended to authorize diversion for misdemeanor DUIs. (Gutierrez, supra, 58 Cal.4th at 

p. 1369 [statutory language is the most reliable indicator of legislative intent].) Thus, on 

this reading, it is not true that “[n]othing in the language of section 1001.95 suggests that 

it intended to overrule the prohibition on diversion in DUI cases contained in Vehicle 

Code section 23640.” (Tan, at p. 138.) Nor is it true that the language does not show “an 

intent to establish an exception to [Vehicle Code] section 23640’s unambiguous 
25

prohibition of diversion in all DUI cases.” (Ibid.) Rather, the statutory language does 

show the Legislature intended to overrule and create an exception to that prohibition, 

because the statutory language unambiguously authorizes diversion for misdemeanor 

DUIs.

On the other hand, Tan’s claim that nothing in the language of section 1001.95 

indicates legislative intent to overrule Vehicle Code section 23640 might mean the 

language does not indicate that, when enacting section 1001.95, the Legislature had 

Vehicle Code section 23640 in mind and consciously intended to overrule it. If that is 

what the claim means, then it is irrelevant.

One way to see this is by considering the following hypothetical: Suppose section 

1001.95 had been enacted without subdivision (e) and hence without any exceptions. 

The statute thus would have unambiguously authorized diversion for all misdemeanors. 

Suppose further that not a single member of the Legislature that enacted it was thinking 

of Vehicle Code section 23640 at the time. Indeed, suppose that—contrary to the general 

presumption that the Legislature is aware of existing laws (People v. Frahs (2020) 9 

Cal.5th 618, 634)—none of them had ever heard of Vehicle Code section 23640 or had 

any idea that there was a general statutory ban on diversion for DUIs. Under those 

circumstances, the language of section 1001.95 would still unambiguously authorize 

diversion for all misdemeanors and hence for misdemeanor DUIs. The legislators’ 

ignorance of Vehicle Code section 23640 or inattention to it would not render the 

language of section 1001.95 ambiguous. We would therefore have an irreconcilable 
26

conflict between the two statutes and would have to proceed accordingly. Harmonization 

would not be an option.

If we change the hypothetical to include the list of exceptions in subdivision (e) of 

section 1001.95, the result is the same. The plain language of the statute still 

unambiguously authorizes diversion for all misdemeanors except those listed in 

subdivision (e). Because DUIs are not listed in subdivision (e), the statute 

unambiguously authorizes diversion for misdemeanor DUIs. Again, the Legislature’s 

ignorance of or inattention to Vehicle Code section 23640 would not make any difference 

or render subdivision (a) of section 1001.95 ambiguous. The plain language of section 

1001.95 would still mean what it means, and harmonization would still be impossible.

For all of these reasons, Tan’s harmonization analysis falters at the first step. The 

claim that “[n]othing in the language of section 1001.95 suggests that it intended to 

overrule the prohibition on diversion in DUI cases contained in Vehicle Code section 

23640” (Tan, supra, 76 Cal.App.5th at p. 138) is either false or irrelevant. Section 

1001.95 unambiguously authorizes diversion for misdemeanor DUIs. The absence of an 

explicit reference to Vehicle Code section 23640 (or to DUIs) does not render the 

statutory language ambiguous and thus susceptible of harmonization with Vehicle Code 

section 23640. Rather, the irreconcilable conflict with Vehicle Code section 23640 

remains.

Tan next observes that the absence of a phrase like “notwithstanding other 

provisions of law” in section 1001.95 “suggests the Legislature did not intend to abrogate 

existing law excluding DUI cases from eligibility for diversion.” (Tan, supra, 76 
27

Cal.App.5th at p. 138.) Diaz-Armstrong addressed that argument by noting that section 

1001.95 also does not “signal deference or subjection to otherwise applicable law, which 

the Legislature also knows how to draft.” (Diaz-Armstrong, supra, 67 Cal.App.5th at 

p. Supp. 21.) For example, the Legislature could have included a phrase like “subject to 

other provisions of law,” but it did not. Diaz-Armstrong concluded that the absence of 

any such qualifiers (“notwithstanding” or “subject to”) in section 1001.95 tells us nothing 

(ibid.), and I agree. Tan does not mention that analysis and contains no counterargument.

Tan further argues that even though DUIs “are not listed among the excluded 

offenses . . . in subdivision (e),” it is not “clear” that misdemeanor DUIs are eligible for 

diversion under section 1001.95 because “nothing in the language of subdivision (e) 

indicates that the list of offenses is exclusive.” (Tan, supra, 76 Cal.App.5th at p. 139.)

Here too, there are two ways of understanding the claim that the list of exceptions 

in subdivision (e) of section 1001.95 is not exclusive. If the claim means just what it 

says—subdivision (e)’s list of exceptions to diversion is not an exclusive list—then 

where subdivision (e) says “[a] defendant may not be offered diversion pursuant to this 

section for any of the following current charged offenses,” what it means is: “A 

defendant may not be offered diversion pursuant to this section for certain offenses, 

including but not limited to the following.” Such an interpretation of the statute would be 

absurd. It would mean that in subdivision (a) of section 1001.95 the Legislature 

authorized diversion for all misdemeanors, but in subdivision (e) of the same statute the 

Legislature said that diversion would be prohibited for some misdemeanors and gave a 

few examples. If that were what section 1001.95 means, then for any misdemeanor not 
28

listed in subdivision (e) it would be impossible to determine whether it was eligible for 

diversion. Such an interpretation would obviously render the statute nonsensical. (Lopez 

v. Ledesma (2022) 12 Cal.5th 848, 858-859 [statutory interpretations that lead to absurd 

results are to be avoided].)

Tan does not, of course, adopt such an interpretation. Instead, Tan holds “that 

section 1001.95 allows a judge to grant misdemeanor diversion in his or her discretion 

except when a defendant has been charged with a DUI or one of the offenses listed in 

section 1001.95, subdivision (e).” (Tan, supra, 76 Cal.App.5th at p. 151.) That is, 

according to Tan, section 1001.95 authorizes diversion for all misdemeanors except those 

listed in subdivision (e) and DUIs. On Tan’s interpretation, then, the list of exceptions in 

subdivision (e) actually is exclusive—it excludes every misdemeanor other than DUIs. 

Thus, Tan’s harmonizing interpretation of section 1001.95 is not that the list of 

exceptions in subdivision (e) is not exclusive, but rather that the exclusive list in 

subdivision (e) is missing one item: DUIs. Grassi’s interpretation is identical. (Grassi, 

supra, 73 Cal.App.5th at p. 308 [“We hold section 1001.95 authorizes diversion for all 

misdemeanor defendants except those listed in subdivision (e), and misdemeanor DUI 

defendants pursuant to Vehicle Code section 23640”].)

There are at least two problems with Tan’s interpretation. First, as already 

discussed, it violates the expressio unius canon. (See ante, at pp. 20-21.) Tan never 

mentions that canon.

Second, if Tan’s interpretation constituted a valid harmonization of section 

1001.95 with Vehicle Code section 23640, then literally any two statutes could be 
29

harmonized. All that one would need to do is interpret one statute as including something 

that its text does not contain, namely, an exception for application of the other statute. 

That is what Tan’s interpretation does. If such “harmonization” were permissible, then 

there would be no irreconcilable statutory conflicts. But there are (see, e.g., State Dept. 

of Public Health, supra, 60 Cal.4th at pp. 958, 960), so Tan’s approach must be unsound.

In reality, Tan’s interpretation does not harmonize the two statutes. Rather, it 

“create[s] an exception the Legislature did not enact” (Lopez, supra, 5 Cal.5th at p. 636) 

and thereby “redraft[s] the statutes to strike a compromise that the Legislature did not 

reach” (State Dept. of Public Health, supra, 60 Cal.4th at p. 956). The same is true of 

Grassi, Islas, and today’s majority and concurring opinions.

The remainder of Tan’s analysis does not require extensive discussion, because all 

of it flows from Tan’s conclusion that the statutes can be harmonized and, relatedly, from 

the presumption against implied repeal. For example, Tan finds no “clarity” or 

“persuasive evidence” in the legislative history. (Tan, supra, 76 Cal.App.5th at pp. 140, 

142.) But that is only because Tan, like Grassi, has allowed the presumption against 

implied repeal to put the thumb on the wrong side of the scale. (See ante, at p. 18.)

Tan also contains an extended critique of Diaz-Armstrong. (Tan, supra, 76 

Cal.App.5th at pp. 144-148.) But Tan never mentions the critical first step in DiazArmstrong’s analysis, namely, its holding that section 1001.95 and Vehicle Code section 

23640 irreconcilably conflict and therefore cannot be harmonized. (Diaz-Armstrong, 

supra, 67 Cal.App.5th at pp. Supp. 21-22.) That omission vitiates Tan’s entire critique. 

Tan of course disagrees with that first step. But if Diaz-Armstrong is right that the 
30

statutes cannot be harmonized, then Tan provides no reason to believe that the remainder 

of Diaz-Armstrong’s analysis is unsound.

Tan’s descriptions of Hopkins and Tellez are similarly incomplete and misleading. 

Those cases held that Vehicle Code section 23640 irreconcilably conflicts with section 

1001.80 (Hopkins, supra, 2 Cal.App.5th at p. 1283) and section 1001.36 (Tellez, supra, 

56 Cal.App.5th at p. 444). Tan never mentions those holdings. (Tan, supra, 76 

Cal.App.5th at pp. 149-150.) As a result, Tan never explains how its harmonizing 

interpretation is consistent with Hopkins and Tellez. In my view, it is not. (See ante, at 

pp. 6-9.)

For all of the foregoing reasons, I do not find Tan’s analysis persuasive. It 

purports to harmonize Vehicle Code section 23640 and section 1001.95, but (1) it does 

not identify any relevant ambiguity in the statutory language, (2) it never mentions the 

expressio unius canon, and (3) it reconciles the two statutes in a manner that would allow 

any two conflicting statutes to be harmonized, namely, by rewriting one of them to 

include an exception for the other.

C. Islas

Islas expressly “agree[s] with the reasoning” of Grassi and Tan. (Islas, supra, 78 

Cal.App.5th at p. 1107.) Most of the opinion’s discussion merely summarizes and adopts 

Tan’s analysis. (Islas, at pp. 1108-1110.) It consequently does not require separate 

treatment.
31

D. The Appellate Division Cases

Espeso was the first appellate decision to address the conflict between Vehicle 

Code section 23640 and section 1001.95. Like Grassi, Tan, and Islas, it concluded that 

the two statutes could be harmonized and that misdemeanor diversion is available “in all 

cases, except the ones specifically listed in section 1001.95, subdivision (e) . . . and

driving under the influence cases as provided in Vehicle Code section 23640, subdivision 

(a).” (Espeso, supra, 67 Cal.App.5th at p. Supp. 9.) Its analysis was expressly driven by 

the presumption against implied repeal (see, e.g., id. at p. Supp. 6), and its discussion 

contains no points that I have not already addressed.

Diaz-Armstrong is the only appellate decision to hold that Vehicle Code section 

23640 and section 1001.95 irreconcilably conflict and that section 1001.95 is controlling. 

(Diaz-Armstrong, supra, 67 Cal.App.5th at pp. Supp. 21-22.) I agree with its analysis in 

its entirety.

The dissent in Diaz-Armstrong concludes that the statutes can be harmonized 

because the list of exceptions in subdivision (e) of section 1001.95 is not exclusive. 

(Diaz-Armstrong, supra, 67 Cal.App.5th at pp. Supp. 29-30 (dis. opn. of Firetag, J.).) 

Like Espeso, it contains no points that I have not already addressed.

5. The Majority Opinion

The majority opinion concludes, like Grassi, Tan, Islas, Espeso, and the DiazArmstrong dissent, that Vehicle Code section 23640 and section 1001.95 can be 

harmonized and that section 1001.95 does not authorize diversion for misdemeanor 

DUIs. (Maj. opn., ante, at pp. 4-5.) The opinion’s analysis, however, differs in 
32

significant ways from prior cases. In particular, the majority opinion expressly declines 

to follow this court’s opinion in Tellez, and the majority opinion holds, contrary to 

Grassi, Tan, and Islas, that Vehicle Code section 23640 is more specific than section 

1001.95 and is therefore controlling.

The majority opinion recognizes that Tellez held that Vehicle Code section 23640 

and section 1001.36 irreconcilably conflict and therefore cannot be harmonized. (Maj. 

opn., ante, at pp. 18-19, 31.) The majority opinion also recognizes that, for purposes of 

evaluating the conflict with Vehicle Code section 23640, the language of section 1001.36 

is not materially distinguishable from the language of section 1001.95. (Maj. opn., ante, 

at p. 32.) Thus, Tellez would appear to compel the conclusion that Vehicle Code section 

23640 and section 1001.95 irreconcilably conflict as well. Tan and Islas never addressed 

that issue because neither case mentioned that Tellez held that Vehicle Code section 

23640 and section 1001.36 cannot be harmonized. Grassi never addressed the issue 

either, even though it briefly acknowledged that Tellez held the statutes “conflicted.” 

(Grassi, supra, 73 Cal.App.5th at p. 296.)

The majority opinion solves the problem by declining to follow Tellez, expressly 

concluding that, contrary to Tellez, section 1001.36 can be harmonized with Vehicle 

Code section 23640. According to the majority opinion, “[i]nterpreting [sections 1001.36 

and 1001.95] as subject to Vehicle Code section 23640’s preexisting ban on any form of 

pretrial diversion for DUI charges gives full effect to all of the provisions of both 
33

diversion statutes and Vehicle Code section 23640. Nothing in either diversion statute 

prohibits this construction.” (Maj. opn., ante, at pp. 32-33.)3

Putting aside the majority opinion’s treatment of this court’s precedent, the central 

question remains: Can section 1001.95 and Vehicle Code section 23640 be harmonized? 

On that issue, the majority opinion relies on two arguments that I have already addressed. 

First, the majority opinion observes that section 1001.95 does not state that the list of 

exemptions in subdivision (e) is exclusive, and the opinion concludes that it is not. (Maj. 

opn., ante, at pp. 27, 30.) I have already addressed that argument (see ante, at pp. 26-28), 

and the majority opinion’s presentation of it does not include anything calling for 

additional analysis.

Second, the majority opinion follows Tan in relying on the absence of a 

“notwithstanding other law” clause in section 1001.95. (Maj. opn., ante, at p. 27.) But 

the majority opinion also follows Tan in failing to mention, let alone rebut, DiazArmstrong’s refutation of that argument. (See ante, at pp. 25-26; Diaz-Armstrong, supra, 

67 Cal.App.5th at p. Supp. 21.) Again, no additional analysis is required.

3. In so doing, the majority opinion also declines to follow this court’s opinion in 

Moore, although the majority opinion discusses Moore in a manner that tends to cloud 

the issue. The majority opinion states that Moore “did not address whether the statutes 

conflicted or could be harmonized” (maj. opn., ante, at p. 33), thereby suggesting that 

Moore left open the possibility that section 1001.36 and Vehicle Code section 23640

could be harmonized. That is not correct. Although Moore does not expressly state that 

the statutes cannot be harmonized, Moore does expressly “adopt Tellez’s reasoning.” 

(Moore, supra, 58 Cal.App.5th at p. 575.) Determining whether the statutes can be 

harmonized is necessarily the first step in the analysis, so Moore necessarily adopts 

Tellez’s holding that the statutes cannot be harmonized.
34

The majority opinion does, however, contain at least one new argument. In 

explaining why its harmonizing interpretation is fully consistent with the authorization 

for misdemeanor diversion in subdivision (a) of section 1001.95, the majority opinion 

argues as follows: “Diversion is still allowed for ‘a misdemeanor’ except as specified in 

[section 1001.95] and in Vehicle Code section 23640. [Section 1001.95] does not state 

that it applies to ‘any misdemeanor’ except as specified; if it did, that would make its text 

inconsistent with the text of Vehicle Code section 23640.” (Maj. opn., ante, at pp. 27-

28.) That is, harmonization is possible because subdivision (a) authorizes diversion for 

“a misdemeanor” rather than for “any misdemeanor.”

The argument is meritless. In English, when a noun phrase begins with an 

indefinite article (“a” or “an”), the phrase might be universal—meaning “all” or “any” or 

“every”—or it might be particular—meaning “one” or “at least one” or “there is at least 

one” or “some.” We routinely rely on context to disambiguate. “My neighbor bought an 

electric car” means my neighbor bought one (or perhaps at least one) electric car. But 

“You do not put gas in an electric car” means you do not put gas in any electric car. The 

same dual uses of the indefinite article occur when the noun phrase is the subject rather 

than the object of the sentence. “An airplane has wings” means any airplane has wings 

(or every airplane has wings or all airplanes have wings). “An airplane broke the sound 

barrier” means one (or at least one or some) airplane broke the sound barrier. The 

phenomenon is ubiquitous, and any English speaker accurately interprets such phrases 

instantly and effortlessly, without even thinking about it. Linguists would point out that 
35

my description of the function of noun phrases with indefinite articles is somewhat 

oversimplified, and it is. But for purposes of this case, it is sufficient.

Subdivision (a) of section 1001.95 provides as follows: “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.” Any English speaker reading that sentence understands that all of the 

noun phrases beginning with indefinite articles are universal. Where the sentence says 

“[a] judge in the superior court,” it is unambiguously authorizing any judge in the 

superior court to offer diversion. Where the sentence authorizes diversion over the 

objection of “a prosecuting attorney,” it is unambiguously referring to any prosecuting 

attorney. Where the sentence authorizes diversion for “a defendant pursuant to these 

provisions,” it is unambiguously authorizing diversion for any defendant pursuant to 

these provisions. And where the sentence refers to a judge in a court where “a 

misdemeanor is being prosecuted,” it is unambiguously referring to any misdemeanor.4

The majority opinion’s defense of its putative harmonization of Vehicle Code 

section 23640 and section 1001.95 therefore fails. According to the majority opinion, 

harmonization is possible because subdivision (a) of section 1001.95 says “a 

misdemeanor” instead of “any misdemeanor”; if it said “any misdemeanor,” then 

4. Similar noun phrases are used in section 1001.80 (“a case,” “a court,” “an 

accusatory pleading,” “a misdemeanor”) and section 1001.36 (“an accusatory pleading,” 

“a misdemeanor,” “a defendant”), all with the same universal meaning. The same is true 

of Vehicle Code section 23640 (“a person,” “a violation”). If “a person” and “a 

violation” in Vehicle Code section 23640 did not carry the universal meaning that they 

plainly do, there would not be even an appearance of conflict with the diversion statutes.
36

harmonization would be impossible. (Maj. opn., ante, at pp. 27-28.) But the phrase “a 

misdemeanor,” as used in subdivision (a) of section 1001.95, means “any misdemeanor.” 

(If the majority opinion interprets it to mean something else, the majority opinion never 

says what that might be.) Thus, by the majority opinion’s own reasoning, harmonization 

is impossible.

The majority opinion contains several other points that should be addressed or 

highlighted. First, the majority opinion argues that its interpretation does not violate the 

expressio unius canon because “we are not implying an additional exemption for 

misdemeanor DUI charges into Penal Code section 1001.95, subdivision (e). Instead, we 

are reconciling Vehicle Code 23640’s longstanding prohibition on diversion for 

misdemeanor DUI charges with Penal Code section 1001.95’s ostensibly nonexclusive 

list of exempted misdemeanor charges, blending them together, and giving full effect to 

both.” (Maj. opn., ante, at p. 30.)

The argument is meritless because the majority opinion’s statement that “we are 

not implying an additional exemption for misdemeanor DUI charges into [section 

1001.95], subdivision (e)” (maj. opn., ante, at p. 30) is incorrect. Subdivision (a) of 

section 1001.95 authorizes diversion for all misdemeanors “pursuant to these provisions.” 

Subdivision (e) provides a list of exemptions, and DUIs are not on the list. But the 

majority opinion holds that section 1001.95 authorizes diversion for all misdemeanors 

except those listed in subdivision (e) and DUIs. It follows that the majority opinion is 

implying an additional exemption for misdemeanor DUIs. The majority opinion’s denial 

of that fact is inexplicable.
37

Second, the majority opinion acknowledges that the legislative history “suggests 

that the Legislature intended to permit diversion for misdemeanor DUI charges under 

[section 1001.95].” (Maj. opn., ante, at p. 40.) The majority opinion therefore concedes 

that the legislative history “might be sufficient to establish that [section 1001.95] was 

intended to prevail over Vehicle Code section 23640, if the statutes irreconcilably 

conflicted.” (Ibid.) But because the majority opinion concludes that the statutes can be 

harmonized and interpretation of the statutes is therefore guided by the presumption 

against implied repeal, the majority opinion holds the legislative history to a higher 

standard. (Id. at p. 41.) Applying that heightened standard, the majority opinion finds 

the legislative history “permit[s] competing inferences” and therefore is insufficient to 

rebut the presumption against implied repeal. (Ibid.)

I disagree with the ultimate conclusion, but I agree with the majority opinion’s 

acknowledgement of the crucial role played by the initial determination that the statutes 

can be harmonized. Once we make that determination, we are forced to view the 

legislative history through the prism of the presumption against implied repeal. As a 

result, all of the evidence that the Legislature intended to authorize diversion for

misdemeanor DUIs can, with effort, be explained away. We can always come up with 

“competing inferences.” (Maj. opn., ante, at p. 41.) But if we recognize that the statutes 

cannot be harmonized, then we are freed from the presumption against implied repeal, 

and the legislative history appears in a completely different light. All of it tends to show 

that the Legislature intended to authorize diversion for misdemeanor DUIs. None of it 

tends to show the contrary. Because we are no longer trying to find irrefutable evidence 
38

to rebut a presumption but rather are simply trying to figure out what the Legislature 

intended, we find that the legislative history speaks with more than sufficient clarity: The 

Legislature intended to authorize diversion for misdemeanor DUIs.

Third, the majority opinion contains a complex argument concerning legislative 

intent and legislative silence. The majority opinion begins by distinguishing between 

legislative intent to authorize diversion for misdemeanor DUIs and legislative intent to 

partially repeal Vehicle Code section 23640. The majority opinion acknowledges that 

the legislative history shows that legislators who voted to enact section 1001.95 

understood “that the bill did not exempt misdemeanor DUI charges from diversion, and 

therefore, that misdemeanor DUI charges would be eligible for diversion under the bill.” 

(Maj. opn., ante, at p. 42.) But the majority opinion argues that “[t]his understanding is 

distinct from a legislative intent to partially repeal Vehicle Code section 23640. As far as 

the Legislature knew when it voted to enact the bill, existing law did not prohibit 

diversion for DUI charges.” (Id. at p. 42.) “No one said the bill would partially repeal 

Vehicle Code [section] 23640, or existing law,” so there is no evidence “that the 

Legislature intended to partially repeal Vehicle Code section 23640 when it enacted 

[section 1001.95].” (Id. at p. 43.)

The majority opinion then connects that conclusion with broader concerns about 

the integrity of the legislative process. Because neither the text of section 1001.95 nor its 

legislative history expressly refers to Vehicle Code section 23640 or a preexisting ban on 

diversion for DUIs, “an implied repeal of Vehicle Code section 23640 would be based on 

legislative silence.” (Maj. opn., ante, at p. 43.) And the majority opinion contends that 
39

“[t]he problem with implied repeals based on silence is that they allow Legislatures to 

repeal older statutes enacted by majorities of prior Legislatures without necessarily 

having majority support in the current Legislature for repealing the older statutes.” (Id. at 

p. 44.) That is, we know that the older statute was passed by a legislative majority, but 

because the newer statute does not explicitly target the older statute and thereby express a 

conscious intent to repeal it, we do not know that such an explicit repeal could have 

garnered majority support. As a result, “[i]mplied repeals based on silence” create the 

risk that the work of a legislative majority will be undone by less-than-majority support 

in a subsequent legislature. (Ibid.)

It is not clear what role any of that argumentation is supposed to play in the 

analysis. First, the argument has no tendency to show that section 1001.95 is or is not 

ambiguous, or that it can or cannot be harmonized with Vehicle Code section 23640. 

Second, if the statutes cannot be harmonized, then the point of the argument appears to be 

that the earlier statute should control unless it is explicitly targeted for repeal by the later 

statute. But that would be contrary to the doctrinal framework of State Dept. of Public 

Health and related Supreme Court case law, under which (1) there is no such requirement 

for an explicit repeal, and (2) the later-enacted statute is controlling unless it is less 

specific. (See State Dept. of Public Health, supra, 60 Cal.4th at pp. 960-961.) We are 

bound by that case law. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 

455.) Third, if the statutes can be harmonized, then the point of the argument appears to 

be that implied repeals by silence should be disfavored. But we already knew that 
40

harmonization is guided by the presumption against implied repeal, and every implied 

repeal is an implied repeal by silence. That is what makes it implied.

In sum, it appears that the argument either is contrary to binding precedent or adds 

nothing to the analysis. Nonetheless, the argument’s reflections on the legislative process 

and legislative intent warrant a response, because I believe they impose an unjustified 

requirement of explicitness while neglecting the significance of lack of ambiguity, and 

they thereby exaggerate the immutability of a statute like Vehicle Code section 23640.

As I explained in my discussion of Tan, if section 1001.95 had been enacted 

without subdivision (e) and thus without any exceptions, it would unambiguously and 

irreconcilably conflict with Vehicle Code section 23640. As the later-enacted statute, 

section 1001.95 would be controlling (unless Veh. Code, § 23640 were more specific, 

which every court before today has concluded it is not). Moreover, section 1001.95 

would be controlling and therefore partially repeal Vehicle Code section 23640 even 

though it contained no explicit reference to Vehicle Code section 23640. In this way, 

when statutes irreconcilably conflict, existing legal doctrine actually favors implied 

repeals by making the later-enacted statute controlling.

All of those conclusions remain unchanged even if the legislative history never 

mentions Vehicle Code section 23640 or an existing prohibition on diversion for DUIs, 

and even if no legislator who voted for section 1001.95 had ever heard of Vehicle Code 

section 23640 or was aware that there was a general statutory ban on diversion for DUIs. 

The majority opinion’s distinction between legislative intent to authorize diversion for 

misdemeanor DUIs and legislative intent to partially repeal Vehicle Code section 23640
41

is therefore of no consequence. If section 1001.95 unambiguously authorizes diversion 

for misdemeanor DUIs, then it irreconcilably conflicts with Vehicle Code section 23640 

and is controlling because it was enacted later.

The rule that the later-enacted statute is controlling is not an arbitrarily chosen 

tiebreaker. Rather, as Diaz-Armstrong cogently explains, the rule “reflects a deeper, 

more fundamental concept, that the dead hand of a past legislative session does not 

constrict the freedom of the current Legislature to enact laws consistent with 

contemporary public policy. With limited exception (see Cal. Const., art. II, § 10, subd. 

(c) [limitations on amending initiative statutes]), long-standing statutes do not derive their 

force merely from their venerability; they derive it primarily from the sufferance of the 

current Legislature. ‘[A]n act of one legislature is not binding upon, and does not tie the 

hands of future legislatures. [Citation.] . . . [¶] “. . . The legislature . . . cannot declare in 

advance the intent of subsequent legislatures or the effect of subsequent legislation upon 

existing statutes,”’ and so ‘“the later law prevails as the last expression of the legislative 

will . . . .”’” (Diaz-Armstrong, supra, 67 Cal.App.5th at p. Supp. 22.)

Vehicle Code section 23640 is not enshrined in the California Constitution. Nor is 

it a fundamental principle of criminal law that has been embedded in our legal system 

since 1872. (Cf. People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 198-199 

[declining to find an implied repeal of the rule that error in a criminal case is not 

reversible unless it prejudiced the defendant’s substantial rights]; In re Christian S.

(1994) 7 Cal.4th 768, 771 [declining to find an implied repeal of the doctrine of imperfect 

self-defense].) It is just a statute like any other, and it (or rather its predecessor) was 
42

enacted in the 1980s. (Tellez, supra, 56 Cal.App.5th at p. 443.) The Legislature is free to 

override or repeal it in whole or in part, explicitly or implicitly, using any language of the 

Legislature’s choosing. The Legislature does not have to mention Vehicle Code section 

23640 or DUIs, and it is not our place to impose such a drafting requirement.

For all of the foregoing reasons, I believe the majority opinion’s reflections on the 

legislative process and legislative intent are not only unhelpful but also misguided. 

Although undoubtedly well-intended, they have the pernicious consequence of licensing 

judicial defiance of the legislative will.

Finally, the majority opinion recognizes that the rule that the more specific statute 

controls over the more general one does not apply if the statutes can be harmonized. 

(Maj. opn., ante, at p. 46; see Tan, supra, 76 Cal.App.5th at p. 143.) But the majority 

opinion holds that if Vehicle Code section 23640 and section 1001.95 could not be 

harmonized, the result in this case would be the same, because Vehicle Code section 

23640 is the more specific statute and therefore is controlling. (Maj. opn., ante, at pp. 45-

47.) In so concluding, the majority opinion conflicts with Grassi, Tan, and Islas, all of 

which concluded that either statute could be regarded as more specific, depending upon 

an arbitrary choice of focus. (Grassi, supra, 73 Cal.App.5th at pp. 306-307; Tan, supra, 

76 Cal.App.5th at p. 143; Islas, supra, 78 Cal.App.5th at p. 1109.) As explained earlier, I 

agree with the cases’ reasoning on that point. (See ante, at pp. 11-12.)

The majority opinion rejects that reasoning because earlier cases like Hopkins

considered diversion programs that targeted specific types of defendants, such as United 

States military personnel. Thus, in those cases the diversion statute was more specific if 
43

one focused on the type of defendant, but Vehicle Code section 23640 was more specific 

if one focused on the charged offense, namely, DUI. The majority opinion concludes that 

because section 1001.95 is not limited to a specific type of defendant, and Vehicle Code 

section 23640 is limited to a specific charge, Vehicle Code section 23640 is more 

specific. (Maj. opn., ante, at pp. 46-47.)

The majority opinion’s argument fails because the conclusion that Vehicle Code 

section 23640 is more specific still depends on an arbitrary choice of focus, as explained 

earlier. (See ante, at pp. 11-12.) Vehicle Code section 23640 is more specific in that it 

applies only to DUIs, but it is more general in that it applies to both felonies and 

misdemeanors. Section 1001.95 is more specific in that it applies only to misdemeanors,

but it is more general in that it applies to both DUIs and other misdemeanors. 

Consequently, “the general-versus-specific rule of statutory construction gets us 

nowhere.” (Hopkins, supra, 2 Cal.App.5th at p. 1284.)

For all of the foregoing reasons, I conclude that the majority opinion provides no 

additional support for Grassi, Tan, and Islas’s conclusion that Vehicle Code section 

23640 and section 1001.95 can be harmonized. On the contrary, the majority opinion 

actually supports the opposite conclusion by recognizing that if subdivision (a) of section 

1001.95 said “any misdemeanor” instead of “a misdemeanor,” harmonization would be 

impossible. As used in subdivision (a) of section 1001.95, “a misdemeanor” 

unambiguously means “any misdemeanor,” so harmonization is indeed impossible.
44

6. The Concurrence

According to the concurrence, section 1001.95 and Vehicle Code section 23640 

can be “reconcile[d]” “by applying the principle that a specific statement from the 

Legislature typically controls over a conflicting general statement.” (Conc. opn., ante, at 

p. 1.) I find the concurrence unpersuasive for several reasons.

First, as already noted, the rule that the more specific statute controls over the 

more general applies only when the two statutes cannot be reconciled. (Maj. opn., ante, 

at p. 46; Tan, supra, 76 Cal.App.5th at pp. 142-143; 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.”].) That makes sense, because if the statutes 

can be reconciled, then neither controls over the other—both statutes are given full effect. 

Accordingly, the majority opinion holds that the statutes can be reconciled but, in the 

alternative, if they could not be reconciled, then Vehicle Code section 23640 would 

control because it is more specific. (Maj. opn., ante, at pp. 45-47.) I disagree with that 

analysis (because the statutes cannot be reconciled and neither is more specific), but I 

recognize that it is consistent with applicable legal doctrine, including binding Supreme 

Court precedent. The concurrence, in contrast, concludes that the statutes can be 

reconciled because Vehicle Code section 23640 is more specific and therefore controls. 

For the reasons just given, that position is doctrinally incoherent and therefore 

unpersuasive.

Second, the concurrence opens with the following example of “how we naturally 

read language”: “If one park sign states, ‘food and drinks allowed’ and one next to it 
45

states, ‘no alcoholic beverages,’ their language technically conflicts as to whether a 

parkgoer can open a bottle of wine. But any picnicker understands the signs as meaning 

that they cannot do so. One sign gives a general green light to eating and drinking, and 

the other prohibits some specific items. Their commands technically conflict, but we 

easily read them together, understanding that they express different levels of intent about 

what is allowed in the park.” (Conc. opn., ante, at p. 1.) The concurrence concludes that 

the same “natural reading reconciles” section 1001.95 with Vehicle Code section 23640. 

(Ibid.)

The analysis fails because the concurrence misunderstands its own example. First, 

some background: As explained earlier, a noun phrase beginning with an indefinite 

article can have what I described as a universal or a particular meaning, and we generally 

rely on context to disambiguate. (Ante, at p. 33.) A noun or noun phrase with no article 

can manifest the same ambiguity, and we again rely on context to disambiguate. 

“Airplanes can fly faster than the speed of sound” does not mean they all can, but 

“airplanes have two wings” means they all do.

In the concurrence’s example, the sign that says “food and drinks allowed” 

exhibits the same ambiguity. It might mean “all food and drinks allowed,” or it might 

mean “some food and drinks allowed” (which is equivalent to “not all food and drinks 

prohibited”). To the extent a picnicker might be tempted to interpret it the first way, as 

allowing absolutely any food and drinks, the sign saying “no alcoholic beverages” should 

convince them to resist that temptation. The first sign means that some food and drinks 
46

are allowed, but it does not mean they all are. The picnicker’s interpretation thus 

reconciles the two signs by resolving a genuine ambiguity in the first one.

But suppose we modify the example to remove the ambiguity, so the first sign 

expressly states “all food and drinks allowed,” and the second sign says “no alcoholic 

beverages.” Can the signs now be reconciled? Obviously not. The first sign 

unambiguously allows all beverages, and the second sign unambiguously prohibits 

alcoholic beverages. When it comes to alcoholic beverages, it is impossible to give full 

effect to both signs. Still, the prudent picnicker would probably decide that, all things 

considered, one should not bring alcoholic beverages to that park. But in so doing, the 

picnicker would decide that the second sign overrides the first and operates as an 

exception to it. The picnicker would not thereby reconcile the signs, interpreting them in 

such a way as to dispel the apparent conflict. No such interpretation is possible.

As previously explained, the parallel issue in this case is whether the phrase “a 

misdemeanor” in subdivision (a) of section 1001.95 means “any misdemeanor.” (See 

ante, at pp. 33-34.) Any English speaker knows that it does, and no one (Grassi, Tan, 

Islas, the majority opinion, or the concurrence) has ever offered an alternative 

interpretation. Subdivision (a) of section 1001.95 is therefore materially distinguishable 

from the “food and drinks allowed” sign in the concurrence’s example, and it is 

materially indistinguishable from the “all food and drinks allowed” sign in my 

modification of that example.
47

The concurrence’s mistaken analysis of its own example is its only defense of the 

claim that Vehicle Code section 23640 and section 1001.95 can be reconciled. I 

consequently remain unconvinced that harmonization is possible.5

Third, most of the concurrence’s discussion is based on cases applying “a doctrine 

often referred to as the Williamson rule, based on . . . In re Williamson (1954) 43 Cal.2d 

651, 654 (Williamson). Under the Williamson rule, if a general statute includes the same 

conduct as a special statute, the court infers that the Legislature intended that conduct to 

be prosecuted exclusively under the special statute.” (People v. Murphy (2011) 52 

Cal.4th 81, 86 (Murphy).) For example, under the Williamson rule, when a defendant 

gives law enforcement a false report of vehicle theft, a “felony conviction under a general 

statute governing the offering of a false instrument for filing in a public office ([§ 115, 

subd. (a)]) is precluded by special statutes in the Vehicle Code that make it a 

misdemeanor to make or file a false report of vehicle theft (Veh. Code, § 10501, subd. 

(a)) or to file a false statement with the Department of Motor Vehicles (Veh. Code, 

§ 20).” (Murphy, supra, at pp. 84-85.) Similarly, in Williamson the issue was whether a 

conspiracy to violate Business and Professions Code section 7028 could be prosecuted 

under the general prohibition on criminal conspiracies in section 182 or only under 

Business and Professions Code section 7030, a specific prohibition on conspiracy to 

5. The concurrence also “disagree[s] with the dissent’s view that whether the general 

statement includes the word ‘all’ determines how we read a conflicting specific 

statement.” (Conc. opn., ante, at p. 2, fn. 1.) This dissent expresses no such view.
48

violate certain provisions of the Business and Professions Code. (Williamson, supra, at 

pp. 653-654.)

Although the Williamson rule has been described “as an aid to judicial 

interpretation when two statutes conflict” (People v. Walker (2002) 29 Cal.4th 577, 586), 

a Williamson rule case does not involve conflicting statutes in the sense at issue here or in 

State Dept. of Public Health. In a Williamson rule case, the same conduct is punishable 

under two different statutes, and the issue is whether one of the statutes should be treated 

as exclusive. The issue is not that it appears to be impossible to give full effect to both 

statutes. Rather, one could give full effect to both statutes by allowing the conduct to be 

punished under both, but the issue is whether the Legislature intended that it be punished 

under only one.

This is not a Williamson rule case. The issue here is not that the same conduct is 

punishable under two different statutes and we need to decide whether one statute was 

intended to be exclusive. The issue is that Vehicle Code section 23640 and section 

1001.95 appear to conflict irreconcilably—it appears to be impossible to give full effect 

to both, because one unambiguously prohibits what the other unambiguously permits. 

Because the Williamson rule is irrelevant, so is the bulk of the concurrence’s discussion.

Fourth and finally, the concurrence echoes the majority opinion’s discussion of the 

legislative process, legislative intent, and implied repeals. (Conc. opn., ante, at pp. 2-3; 

see maj. opn., ante, at pp. 43-44.) In the same vein, the concurrence expresses the view 

that the Legislature can partially repeal Vehicle Code section 23640 only by explicitly 

targeting it; merely enacting a statute that unambiguously conflicts with Vehicle Code 
49

section 23640 is not enough. (Conc. opn., ante, at p. 3 [“a specific statutory command 

should be met with a specific repeal”]; id. at p. 8 [Veh. Code, § 23640 “requires [the 

Legislature] to face the issue of whether it wants DUI diversion and, if so, how”].) I 

addressed those issues in my discussion of the majority opinion (ante, at pp. 38-40), and 

the concurrence does not add anything warranting separate treatment.

7. Conclusion

For all of the foregoing reasons, I do not find the case law, the majority opinion, or 

the concurrence persuasive. In my view, their analyses suffer from readily identifiable 

defects. All of them purport to harmonize section 1001.95 with Vehicle Code section 

23640 but do so in a manner that would allow any two conflicting statutes to be 

harmonized, namely, by interpreting one of them as including an unstated exception for 

the other. Some of the opinions are internally inconsistent (e.g., holding that the statutes 

are unambiguous and that one prohibits what the other permits but that they can still be 

harmonized). Some fail to address applicable canons of statutory construction (e.g., 

expressio unius). Some fail to address rebuttals to their own arguments (e.g., DiazArmstrong’s treatment of the absence of a “notwithstanding” clause in section 1001.95). 

All of them hold that section 1001.95 and Vehicle Code section 23640 can be 

harmonized, but none of them identifies any ambiguity in the statutory language. The 

closest that any of them comes is the majority opinion’s observation that subdivision (a) 

of section 1001.95 says “a misdemeanor” rather than “any misdemeanor.” But the 

argument goes nowhere because, as used in subdivision (a) of section 1001.95, “a 

misdemeanor” means “any misdemeanor,” and the majority opinion never offers an 
50

alternative interpretation. Elsewhere, the majority opinion concedes “that the statutes are 

unambiguous when viewed separately from each other” (maj. opn., ante, at p. 26), but it 

never identifies any ambiguity that surfaces when the statutes are considered together.

California’s district attorneys told the Legislature that section 1001.95 would 

authorize diversion for DUIs and therefore should not be enacted. The Legislature 

enacted it anyway. Having lost in the Legislature, the district attorneys concluded that 

section 1001.95 does not authorize diversion for DUIs after all, and they turned to the 

courts to give them the victory they were unable to secure in the Legislature. With the 

exception of the excellent majority opinion in Diaz-Armstrong, one court after another 

has acquiesced.

In so doing, the courts have declined, on no sound basis that I can identify, to give 

effect to the Legislature’s unambiguous statutory command that diversion under section 

1001.95 be available for all misdemeanors other than those listed in subdivision (e). I 

conclude that the petition should be denied, and I therefore respectfully dissent.

MENETREZ

J.