Filed 3/10/22

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

LONGEN TAN,

Petitioner,

v.

THE SUPERIOR COURT OF SAN 

MATEO COUNTY,

Respondent;

THE PEOPLE,

Real Party in Interest.

 A163715

 (San Mateo County

 Super. Ct. No. 19-NM-007168-A)

Longen Tan was charged with misdemeanor driving under the 

influence. Effective January 1, 2021, the Legislature enacted a new law, 

Penal Code1 section 1001.95, making defendants charged with misdemeanors 

generally eligible for diversion at the discretion of the trial judge. The law 

expressly exempts several offenses from eligibility for diversion, but driving 

under the influence is not one of them. An older law, however, Vehicle Code 

section 23640, provides that those charged with driving under the influence 

(DUI) are categorically ineligible for diversion.

Tan filed a petition for misdemeanor diversion under section 1001.95, 

arguing that section 1001.95 superseded Vehicle Code section 23640 with 

1 All further statutory references are to the Penal Code unless 

otherwise specified. 
2

respect to misdemeanor DUIs. After his petition was denied in the trial 

court, Tan filed a petition for writ of mandate in this court, asking us to

direct the trial court to vacate its order denying his petition for diversion and 

grant it instead.

2 When he filed his petition, no Court of Appeal had decided 

the issue presented and there was a split of authority between two published 

superior court appellate division opinions as to the availability of diversion in 

cases of misdemeanor DUI. After the matter was fully briefed, Division 

Three of the Fourth Appellate District issued its opinion in Grassi v. Superior 

Court (2021) 73 Cal.App.5th 283 (Grassi), concluding that section 1001.95 

and Vehicle Code section 23640 can be harmonized, and that misdemeanor 

diversion is unavailable to defendants charged with DUI. Although we, like 

the Grassi court, believe it is a difficult and close question, we similarly hold 

the two statutes can be reconciled and that misdemeanor convictions for DUI 

are not eligible for statutory diversion. Accordingly, we deny the petition.

I. FACTUAL BACKGROUND

On May 28, 2019, the San Mateo County District Attorney charged Tan 

with two misdemeanor violations of Vehicle Code section 23152. (Veh. Code, 

§ 23152, subds. (a) & (b); counts 1 & 2.) 

2 Tan also asserts that the San Mateo County Superior Court instituted 

a court-wide policy prohibiting trial judges from granting diversion in 

misdemeanor DUI cases. Tan argues the trial court did not follow proper 

procedures, violated his due process and equal protection rights, and asks us 

to prohibit the trial court from enforcing its policy of categorically denying 

diversion to defendants charged with misdemeanor DUI. As we explain 

below, we need not consider these arguments because we conclude diversion 

is unavailable in misdemeanor DUI cases. 
3

On April 19, 2021, Tan filed a petition requesting court-initiated 

misdemeanor diversion under sections 1001.95 and 1001.97.

3 At the hearing 

on Tan’s petition, the trial court heard argument from both sides, then stated 

its tentative ruling that “DUIs are not currently exempt from [section] 

1001.95” and that “Mr. Tan present[ed], . . . if not a quintessential, a 

representative case in which such diversion may be warranted.” The court 

took the matter under submission. 

The trial court subsequently issued a written ruling, stating it had 

considered the briefing, attachments and arguments of both parties, and 

independently researched the legislative history of section 1001.95 and

Assembly Bill No. 3234 (2019–2020 Reg. Sess.) (Assembly Bill 3234). The 

trial court concluded that the legislative history leading to the passage of 

Assembly Bill 3234 indicated the Legislature intended for misdemeanor DUI 

offenses to be eligible for diversion, and the trial court found Tan suitable for 

diversion. Nonetheless, the trial court denied the motion, citing a 

determination by the judges of San Mateo County Superior Court not to offer 

diversion in any prosecution for a misdemeanor DUI. Tan filed a petition for 

writ of mandate and prohibition in the superior court appellate division, 

which was summarily denied. 

3 Section 1001.97 provides that upon successful completion of diversion, 

the defendant’s arrest “shall be deemed to have never occurred,” the 

defendant “may indicate in response to any question concerning their prior 

criminal record that they were not arrested,” and a record pertaining to an 

arrest resulting in successful completion of diversion “shall not, without the 

defendant’s consent, be used in any way that could result in the denial of any 

employment, benefit, license, or certificate.” (§ 1001.97, subd. (a).) 
4

Tan subsequently filed a petition for writ of mandate and prohibition in 

this court.4 

II. DISCUSSION

Tan contends section 1001.95 and Vehicle Code section 23640 

“inherently conflict” because section 1001.95 permits misdemeanor diversion 

except for offenses specifically excluded under the statute, while Vehicle Code 

section 23640 prohibits diversion for DUIs. He asserts a “reading of the plain 

language of [section 1001.95] . . . leads one to understand that DUIs are in 

fact eligible [for misdemeanor diversion] because they are not specifically 

excluded” and the “only reason the statute is ambiguous is because of Vehicle 

Code section 23640.” To resolve this conflict, Tan argues, we must look to the 

legislative history of section 1001.95, which “is sufficiently clear” and shows 

“that the Legislature intended that DUI defendants be eligible for diversion.” 

As we discuss below, we find the Legislature’s intent with respect to the 

potential conflict between these statutes anything but clear. After a careful 

examination of the statutory language, the legislative history, the canons of 

statutory construction, and related case law, we conclude diversion is not 

available to Tan under the legislation as currently enacted.5 

4 We issued an order to show cause. The parties elected to rely on their 

informal opposition and reply briefs as their return and traverse, 

respectively. 

5 Tan was charged with misdemeanor DUI before section 1001.95 

became effective. Neither party addresses whether section 1001.95 applies 

retroactively. Like the Grassi court, we conclude that because 

section 1001.95 provides a potential ameliorative benefit to criminal 

defendants with nonfinal cases, it applies retroactively. (Grassi, supra, 

73 Cal.App.5th at p. 289; People v. Esquivel (2021) 11 Cal.5th 671, 675; 

People v. Frahs (2020) 9 Cal.5th 618, 631–632; In re Estrada (1965) 63 Cal.2d 

740, 744–745.) 
5

A. Legal Standards

Whether defendants charged with misdemeanor DUI are eligible for 

diversion raises a question of statutory interpretation for our independent 

review. (People v. Gonzalez (2017) 2 Cal.5th 1138, 1141; People v. Tran 

(2015) 61 Cal.4th 1160, 1166.) “ ‘ “ ‘As in any case involving statutory 

interpretation, our fundamental task . . . is to determine the Legislature’s 

intent so as to effectuate the law’s purpose. [Citation.] We begin by 

examining the statute’s words, giving them a plain and commonsense 

meaning.’ ” ’ [Citation.] ‘[W]e consider the language of the entire scheme and 

related statutes, harmonizing the terms when possible.’ ” (Gonzalez, at 

p. 1141; People v. Valencia (2017) 3 Cal.5th 347, 357 [“ ‘[t]he words of the 

statute must be construed in context, keeping in mind the statutory purpose, 

and statutes or statutory sections relating to the same subject must be 

harmonized, both internally and with each other, to the extent possible’ ”].) If 

the language of the statute is clear and unambiguous, there is no need for 

judicial construction and our task is at an end. If the language is reasonably 

susceptible of more than one meaning, however, we may examine extrinsic 

aids such as the apparent purpose of the statute, the legislative history, the 

canons of statutory construction, and public policy. (Even Zohar Construction 

& Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 838

(Even Zohar); People v. Arias (2008) 45 Cal.4th 169, 177.) 

B. Statutory Language

Generally, the most reliable indicator of legislative intent is the words 

of the statute. (Even Zohar, supra, 61 Cal.4th at pp. 837–838.) Accordingly, 

we turn first to the plain language of the statutes at issue. 

Section 1001.95 provides, in relevant part: “A judge in the superior 

court in which a misdemeanor is being prosecuted may, at the judge’s 
6

discretion, and over the objection of a prosecuting attorney, offer diversion to 

a defendant pursuant to these provisions.” (§ 1001.95, subd. (a).) 

Subdivision (e) further provides that “A defendant may not be offered 

diversion pursuant to this section for any of the following current charged 

offenses,” and includes any offense for which a person, if convicted, would 

have to register under section 290 (sex offender registration); violation of 

section 273.5 (inflicting corporal injury on domestic violence victim); violation 

of section 243, subdivision (e) (battery on a domestic violence victim); and 

violation of section 646.9 (stalking). (§ 1001.95, subd. (e).) Under 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). 

Vehicle Code section 23640, subdivision (a) provides: “In any case in 

which a person is charged with a violation of [Vehicle Code] 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 . . . .” As our courts have concluded, the clear import of this 

language is that diversion is categorically unavailable to DUI defendants. 

(Grassi, supra, 73 Cal.App.5th at p. 291; Tellez v. Superior Court (2020) 

56 Cal.App.5th 439, 443 (Tellez).) 

Read separately, the statutes appear to conflict. On the one hand, 

defendants like Tan who have been charged with a misdemeanor DUI appear 

to qualify for judicial diversion under section 1001.95 because DUIs are not 

expressly excluded from the statute. On the other hand, it appears Tan does 
7

not qualify for diversion under Vehicle Code section 23640 because that 

statute prohibits diversion for all DUIs.

C. Harmonization

Our Supreme Court has instructed that where statutes possibly 

conflict, “two principles of statutory construction are especially relevant. 

First, ‘ “[a] court must, where reasonably possible, harmonize statutes, 

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

and effect to all of their provisions.” ’ ” (Even Zohar, supra, 61 Cal.4th at 

p. 838.) “ ‘Thus, when “ ‘two codes are to be construed, they “must be 

regarded as blending into each other and forming a single 

statute.” [Citation.] Accordingly, they “must be read together and so 

construed as to give effect, when possible, to all the provisions thereof.” ’ ” ’ ” 

(State Dept. of Public Health v. Superior Court (2015) 60 Cal.4th 940, 955

(State Dept. of Public Health); Lopez v. Sony Electronics, Inc. (2018) 5 Cal.5th 

627, 634 (Lopez).) 

“Second, all ‘ “ ‘ “presumptions are against a repeal by 

implication” ’ ” ’ [citation], including partial repeals that occur when one 

statute implicitly limits another statute’s scope of operation [citation]. Thus, 

‘ “ ‘we will find an implied repeal “only when there is no rational basis for 

harmonizing . . . two potentially conflicting statutes [citation], and the 

statutes are ‘irreconcilable, clearly repugnant, and so inconsistent that the 

two cannot have concurrent operation.” ’ ” ’ ” (Even Zohar, supra, 61 Cal.4th 

at p. 838; Apartment Assn. of Los Angeles County, Inc. v. City of Los Angeles 

(2009) 173 Cal.App.4th 13, 18 [“Absent an express declaration of legislative 

intent . . . we presume that a statute was not impliedly repealed by a 

subsequent statute unless there is no rational way to harmonize the two 

potentially conflicting statutes.”]; Newark Unified School Dist. v. Superior 
8

Court (2015) 245 Cal.App.4th 887, 907–908 [by harmonizing statutes court is 

able to “ ‘ “maintain the integrity of both statutes,” ’ thereby honoring the 

presumed intent of the Legislature”].)

Here, the statutes are not irreconcilable. Nothing in the language of 

section 1001.95 suggests that it intended to overrule the prohibition on 

diversion in DUI cases contained in Vehicle Code section 23640. When the 

Legislature enacted section 1001.95, section 23640 and its predecessor, 

Vehicle Code former section 23202, had been in operation for almost 40 years. 

(Moore v. Superior Court (2020) 58 Cal.App.5th 561, 570 & fn. 5 (Moore).) We 

presume the Legislature is aware of all existing laws when it enacts a statute

and intends to enact a consistent body of rules. (People v. Frahs, supra,

9 Cal.5th at p. 634; People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 

199.) Yet section 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 section 23640’s unambiguous prohibition of 

diversion in all DUI cases. 

“When the Legislature intends for a statute to prevail over all contrary 

law, it typically signals this intent by using phrases like ‘notwithstanding 

any other law’ or ‘notwithstanding other provisions of law.’ ” (In re Greg F. 

(2012) 55 Cal.4th 393, 406; see § 1001.80, subd. (l), added by Stats. 2017, 

ch. 179, § 1 [amending military diversion statute to clarify that DUI cases are 

eligible for diversion by adding language “Notwithstanding any other law, 

including Section 23640 of the Vehicle Code”].) The absence of such language

in section 1001.95 suggests the Legislature did not intend to abrogate 

existing law excluding DUI cases from eligibility for diversion. 

Nor is it clear, as Tan argues, that DUIs are eligible for diversion under 

the plain language of section 1001.95 because they are not listed among the 
9

excluded offenses (sex offender cases, domestic violence, and stalking) in 

subdivision (e). First, nothing in the language of subdivision (e) indicates 

that the list of offenses is exclusive. Rather, the language simply states a 

court may not grant diversion in four specific situations. 

Second, this “theory would lead to the remarkable conclusion that the 

Legislature creates exceptions to a specific code section merely by failing to 

mention it.” (People v. Siko (1988) 45 Cal.3d 820, 824 [petitioner’s reliance on 

legislative silence to argue recently enacted § 667.6, subd. (c) overruled 

§ 654’s proscription on multiple punishment for single act or omission was 

“untenable”].) Here, the “normal rules of statutory construction . . . 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.” (Siko, at p. 824.) Had the 

Legislature intended to partially override Vehicle Code section 23640’s 

application to DUI cases and create an exception to allow diversion in 

misdemeanor cases, it could have said so expressly in the language of 

section 1001.95. 

Moreover, harmonization is possible here because reconciling 

section 1001.95 and Vehicle Code section 23640 does not require us to rewrite 

the statutes, or strike a compromise the Legislature itself did not reach. 

(Grassi, supra, 73 Cal.App.5th at p. 308; cf. State Dept. of Public Health, 

supra, 60 Cal.4th at pp. 956–958 [statute requiring disclosure of redacted 

information conflicted with statute prohibiting disclosure of same information 

and harmonization would result in disclosure scheme inconsistent with 

requirements of either statute]; Lopez, supra, 5 Cal.5th at pp. 637–638 

[statutes could not have concurrent operation because two different statutes 

of limitations could not govern the same claim].) As we have explained, 
10

nothing in section 1001.95 indicates an affirmative intent to allow 

misdemeanor diversion for DUIs and Vehicle Code section 23640 clearly 

prohibits it. Reading section 1001.95’s general grant of authority to permit 

misdemeanor diversion, together with section 23640’s specific prohibition of 

diversion for DUI offenses, allows us to respect the expressed legislative 

intent to prohibit diversion for DUIs, while not inferring a legislative intent 

to allow such diversion based on silence in section 1001.95. (See, e.g., In re 

Christian S. (1994) 7 Cal.4th 768, 782 [“We are not persuaded the Legislature 

would have silently, or at best obscurely, decided so important . . . a public 

policy matter and created a significant departure from the existing law.”].) 

D. Legislative History

Tan argues the legislative history of section 1001.95 makes clear the 

Legislature’s intent that misdemeanor DUI offenses be eligible for diversion

and contends legislative history must prevail over the canons of statutory 

construction when that history provides clues to legislative intent. But we 

find no such clarity in the very limited legislative history available to us. 

(See Grassi, supra, 73 Cal.App.5th at pp. 301–303 [describing in detail the 

“scant evidence” of legislative history concerning § 1001.95].) 

Tan first argues Assembly Bill 3234 was modeled on the Los Angeles 

County Deferral of Sentencing Pilot Program (LA Pilot Program) that 

previously operated under section 1001.94 et seq. between January 1, 2015 

and December 31, 2017. Unlike section 1001.95, the LA Pilot Program 

specifically stated that DUIs were exempt from misdemeanor diversion. (See 

former § 1001.98, subd. (h)(3).) Tan also observes that existing general 

misdemeanor diversion statutes expressly exclude DUIs. (§§ 1001–1001.9,

1001.2, subd. (a), 1001.50 et seq., 1001.51, subds. (b),(c)(6).) Tan contends “in 

enacting [Assembly Bill] 3234, the authors of the legislation deliberately and 
11

intentionally shortened the list of disqualifying misdemeanor offenses that 

were ineligible under the Pilot Program and the existing general 

misdemeanor diversion schemes,” and “eliminated any language rendering 

DUI defendants ineligible for diversion under the new section 1001.95 

diversion statute.” 

As an initial matter, we observe that Tan’s argument that Assembly 

Bill 3234 is modeled on the LA Pilot Program is based on a statement in 

opposition to the bill by the California District Attorneys Association.

(Assem. Floor Analysis, 3d reading analysis of Assem. Bill 3234, as amended 

Aug. 24, 2020, p. 5.) We find that statement in opposition to the bill 

particularly unhelpful in deciphering legislative intent. First, the statement 

is not competent evidence of the Legislature’s collective intent. (See, e.g., 

American Financial Services Assn. v. City of Oakland (2005) 34 Cal.4th 1239, 

1264 [“restatement of an argument made by certain industry groups does not 

purport to reflect debate within the Legislature”]; Purifoy v. Howell (2010) 

183 Cal.App.4th 166, 179, fn. 14 [disregarding statement from bill’s 

“ ‘ARGUMENTS IN OPPOSITION’ ” section of committee analysis by an 

opponent of the bill where the opponent represented an outside agency].) 

Second, the statement does not say anything one way or the other about 

whether DUIs are excluded under the proposed legislation, but observes only 

that DUIs were excluded under the LA Pilot Program. (Assem. Floor 

Analysis, 3d reading analysis of Assem. Bill 3234, as amended Aug. 24, 2020, 

p. 5 [recognizing that the “ ‘pilot program applied generally to first time 

offenders and included multiple exclusions—including . . . DUIs . . .’ ”].) 

Third, the failure of section 1001.95 to expressly exclude DUIs unlike these 

other diversion programs “does not demonstrate an unambiguous intent to 

allow diversion in misdemeanor DUI cases,” as the Legislature “could have 
12

simply realized excluding DUIs was redundant in light of [Vehicle Code] 

section 23640.” (Grassi, supra, 73 Cal.App.5th at pp. 304–305.) 

Tan also points to similar statements in both the Assembly and Senate 

floor analyses that, “Unlike existing general misdemeanor diversion, this bill 

would have no statutory requirements for the defendant to satisfy in order to 

be eligible nor would any misdemeanors be statutorily excluded.” (Assem. 

Floor Analysis, 3d reading analysis of Assem. Bill 3234, as amended Aug. 24, 

2020, p. 3, italics added; Sen. Rules Com., Off. of Sen. Floor Analysis, 3d 

reading analysis of Assem. Bill 3234, as amended Aug. 24, 2020, p. 1 [“Unlike 

existing general misdemeanor diversion, this bill has no statutory 

requirements for the defendant to satisfy in order to be eligible nor would any 

misdemeanors be statutorily excluded.”].) Tan contends these statements 

“are not the type the [L]egislature would make if the Legislature simply 

intended that DUIs be excluded from diversion under Vehicle Code 

section 23640,” but he does not explain his argument. It is true that both

floor analyses indicate no “misdemeanors [would] be statutorily excluded,” 

but as Tan concedes in a footnote, the version of Assembly Bill 3234 that was 

signed into law included statutory exclusions. Tan’s argument that the 

“original intent was to have no statutory exclusions,” is obviated by the

Legislature’s amendment of the legislation to exclude certain offenses. (See 

Grassi, supra, 73 Cal.App.5th at p. 304 [Legislature clearly abandoned any 

intention that no misdemeanors would be excluded from § 1001.95 when it 

amended statute to add subd. (e) exclusions].)

Tan also relies on transcripts from the legislative hearings on Assembly 

Bill 3234. On August 24, 2020, Assemblymember Jim Cooper stated during 

floor debate that “DUI with injury” was eligible for diversion under the 
13

statute.6 No legislator responded to that assertion, and the bill passed the 

Assembly by a vote of 41 to 22. Similarly, Tan notes that, on August 31, 

2020, in a Senate floor debate, Senator Melissa Melendez stated that DUIs

would be eligible for diversion under the new law. No one responded to the 

statement, and the bill passed in the Senate, 27 to 10. Tan emphasizes that 

at no point did any legislator respond to these concerns by pointing out DUIs

would be unavailable for diversion based on Vehicle Code section 23640. 

We are not persuaded. First, generally we cannot rely on statements 

from individual legislators as reflections of the Legislature’s collective intent. 

(See, e.g., Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 572, fn. 5 

[“ ‘such materials are generally not evidence of the Legislature’s collective 

intent’ ”]; Advocate Health Care Network v. Stapleton (2017) 581 U.S. ___, ___ 

[137 S.Ct. 1652, 1661] [floor statements by individual lawmakers are “ ‘the 

sort of stuff we have called ‘among the least illuminating forms of legislative 

history’ ”]; Mt. Hawley Ins. Co. v. Lopez (2013) 215 Cal.App.4th 1385, 1401 

[testimony or argument to a house of the Legislature or one of its committees 

is relevant “but ‘[m]aterial showing the motive or understanding of an 

individual legislator . . . is generally not considered’ ”].) Second, even 

assuming the brief statements made by two individual legislators during the 

floor debates can be relied on as evidence of the intent of the Legislature as a 

whole, a different inference is equally plausible: that the Legislature, by not 

expressly stating DUI offenders would be eligible for misdemeanor diversion, 

or not amending Vehicle Code section 23640, intended that diversion would 

6 Statements from the floor debates discussed herein are taken from 

copies of certified transcripts of the August 24, 2020 Assembly floor debate 

and August 31, 2020 Senate floor debate separately filed as exhibits to Tan’s 

petition. 
14

not be allowed in such cases. (See People v. Superior Court (Espeso)

67 Cal.App.5th Supp. 1, 7.) In any event, as we discuss further below, even 

considered in context the comments do not amount to persuasive evidence the 

legislative body as a whole intended to abrogate section 23640. 

E. Other Canons of Construction

Tan argues that we need not consider the canons of statutory 

construction that later enactments supersede earlier ones and that more 

specific provisions take precedence over more general ones because the 

legislative history prevails over the canons of construction when it gives clues 

to legislative intent as it does here.

7 Respondent, on the other hand, 

contends that Vehicle Code section 23640 is the more specific statute and 

controls over section 1001.95. But we need not resolve these arguments 

because those rules of statutory construction apply only when harmonization 

is not possible. (State Dept. of Public Health, supra, 60 Cal.4th at p. 960; 

7 Tan also argues cursorily in the conclusion of his informal reply that 

“if there were ambiguity on the issue of the inclusion of DUIs in 

section 1001.95, the rule of lenity . . . requires the ambiguity to be resolved in 

the Petitioner’s favor.” We need not consider this claim raised for the first 

time on reply without any discussion, legal analysis, or citation to pertinent 

authority. (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764 [appellate 

court will not consider points raised for first time on reply]; Singh v. Lipworth 

(2014) 227 Cal.App.4th 813, 817 [points asserted without legal analysis will 

be forfeited].) In any event, we would reject the argument because the rule of 

lenity 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.” ’ ” (People v. Manzo (2012) 

53 Cal.4th 880, 889, italics added by Manzo.) “In other words, ‘the rule of 

lenity is a tie-breaking principle, of relevance when “ ‘two reasonable 

interpretations of the same provision stand in relative equipoise.’ ” ’ ” (Ibid.) 

Here, in light of the express prohibition on diversion in DUI cases in Vehicle 

Code section 23640, we conclude the more reasonable interpretation is that 

diversion is not available for misdemeanor DUIs under section 1001.95.
15

Pacific Palisades Bowl Mobile Estates, LLC v. City of Los Angeles (2012) 

55 Cal.4th 783, 805 [rule supporting harmonization of statutes where 

possible applies even though one of the statutes deals generally with a 

subject and another applies specifically]; People v. Wheeler (1992) 4 Cal.4th 

284, 293 [“The principle that a specific statute prevails over a general one 

applies only when the two sections cannot be reconciled.”]; People v. Price 

(1991) 1 Cal.4th 324, 385 [if court can reasonably harmonize two statutes 

dealing with the same subject, it must give “concurrent effect” to both].) 

In any event, we agree with the thoughtful analysis of the Grassi court

that these general canons of statutory construction are of little assistance in 

resolving the question posed here. The rule that more specific provisions 

prevail over more general ones is unhelpful because “depending on one’s 

arbitrary choice of focus, either [statute] could be construed as the more 

specific.” (Grassi, supra, 73 Cal.App.5th at pp. 306–307.) And while

generally later enacted statutes prevail over earlier enacted statutes, in this 

case application of that principle conflicts with the command that we are to 

construe statutes together where possible and avoid implied repeals of 

existing law. (Id. at p. 306.)

F. Superior Court Appellate Decisions

As noted previously, prior to the Grassi opinion, no appellate court had 

decided the question at issue in this appeal, but two superior court appellate 

divisions published opinions reaching opposite conclusions. In People v. 

Superior Court (Espeso), supra, 67 Cal.App.5th Supp. 1 (Espeso), the Los 

Angeles County Superior Court Appellate Division determined that diversion 

is unavailable for defendants charged with misdemeanor DUI. The court 

reasoned, “[t]o the extent there is a tension between” Vehicle Code 

section 23640 and section 1001.95, they must be read together to give all of 
16

their provisions effect and to avoid a repeal by implication of section 23640. 

(Espeso, at p. Supp. 6.) The court rejected Espeso’s arguments that the 

legislative history revealed a clear intent to repeal or render inoperative 

section 23640.8 (Espeso, at pp. Supp. 6–8.) Comparing the legislative silence

as to the availability of misdemeanor diversion in DUI cases in section 

1001.95 with the “crystal clear” prohibition of diversion in DUI cases found in 

Vehicle Code section 23640, the Espeso court concluded it could 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, at p. Supp. 9.) 

In People v. Superior Court (Diaz-Armstrong) (2021) 67 Cal.App.5th 

Supp. 10 (Diaz-Armstrong), a majority of the Riverside County Superior 

Court Appellate Division held in consolidated writ proceedings that 

defendants charged with misdemeanor DUI are eligible for diversion. (Id. at 

p. Supp. 13.) The court reviewed in depth the “long and complex history 

surrounding judicial application of [Vehicle Code] section 23640 to 

preexisting and subsequently enacted diversion schemes,” including laws 

establishing developmental disabilities diversion, military diversion, and,

most recently, mental health diversion. (Id. at pp. Supp. 16–20.) Noting that 

none of the cases addressing other diversion statutes “is entirely congruent 

with ours,” the court turned to an examination of the statutory text, canons of 

statutory construction, the history of the Legislature’s other misdemeanor 

8 Most of the arguments raised by Espeso regarding the legislative 

history of section 1001.95 are similar to the arguments raised by Tan in this 

case and discussed in the previous section of this opinion. (Espeso, supra,

67 Cal.App.5th at pp. Supp. 6–8.) 
17

diversion programs, the legislative history of section 1001.95, and the policy 

goals behind section 1001.95. (Diaz-Armstrong, at pp. Supp. 20–27.) 

Ultimately, the Diaz-Armstrong majority concluded that the Legislature’s 

policy goals in section 1001.95 to “treat, restore, and rehabilitate” 

misdemeanor defendants rather than punish them, consistent with principles 

of statutory construction and the legislative history of section 1001.95, 

reflected legislative intent to make defendants charged with misdemeanor 

DUI eligible for diversion. (Diaz-Armstrong, at pp. Supp. 27–28.) 

Judge Firetag filed a dissent, stating that, in his opinion, “the two code 

sections operate in harmony with each other rather than in conflict,” and that 

he would hold misdemeanor DUI defendants are categorically ineligible for 

diversion “because Vehicle Code section 23640 expressly prohibits diversion 

and nothing in section 1001.95 provides otherwise.” (Diaz-Armstrong, supra,

67 Cal.App.5th at p. Supp. 28, fn. omitted (dis. opn. of Firetag, J.).) Judge

Firetag highlighted the absence of textual support for the premise Vehicle 

Code section 23640 had been supplanted by section 1001.95, and relied on the 

case law interpreting other, similar diversion statutes to conclude that 

diversion is not available to defendants charged with misdemeanor DUI. 

(Diaz-Armstrong, at pp. Supp. 29–34 (dis. opn. of Firetag, J.).)

Though both of these superior court appellate division opinions offer 

thorough and well-reasoned analyses, we find the Espeso opinion and Judge 

Firetag’s dissent in Diaz-Armstrong more persuasive for several reasons.

First, as we discussed previously, the best indicator of legislative intent 

is the words of the statutes themselves. While the silence in section 1001.95 

regarding DUIs is ambiguous, the explicit prohibition on diversion in DUI 

cases in Vehicle Code section 23640 could not be clearer. (Veh. Code, 

§ 23640, subd. (a) [court “shall neither suspend nor stay the proceedings” for 
18

diversion “[i]n any case in which a person is charged with a violation of 

Section 23152 or 23153”]; People v. Darnell (1990) 224 Cal.App.3d 806, 810 

[“The unambiguous intent” of Veh. Code, § 23640’s predecessor statutes “is to 

prohibit pre- or postconviction stays or suspensions of proceedings” to allow 

DUI defendants to participate in diversion programs]; Diaz-Armstrong, 

supra, 67 Cal.App.5th at p. Supp. 30 (dis. opn. of Firetag, J.).) In the absence 

of a similarly clear expression of legislative intent to partially repeal or 

override that law, we defer to the “crystal clear” command in section 23640 

that diversion is not available to DUI defendants. (Espeso, supra, 

67 Cal.App.5th at p. Supp. 9.) 

Second, the Diaz-Armstrong majority opinion relied on the fact that the 

Legislature had created two new misdemeanor diversion programs and one 

deferred entry of judgment program, all of which included express exclusions 

for DUIs, despite the existence of Vehicle Code section 23640. (§§ 1001.2, 

subd. (a), 1001.51, subd. (b), former § 1001.98, subd. (h)(3).) The court found 

the fact that the Legislature did not use similar exclusionary language in 

section 1001.95 significant, concluding that “we should understand as 

purposeful the Legislature’s omission of language that it has employed in 

related statutes.” (Diaz-Armstrong, supra, 67 Cal.App.5th at pp. Supp. 23–

24.) But as discussed above, the failure to expressly exclude DUIs in 

section 1001.95 does not demonstrate an unambiguous intent to make 

misdemeanor diversion available to DUI defendants. (See, e.g., Grassi,

supra, 73 Cal.App.5th at p. 305; Tellez, supra, 56 Cal.App.5th at p. 448 [“we 

need not read the ineligibility of DUI offenses into Penal Code section 

1001.36—Vehicle Code section 23640 accomplishes that”]; People v. 

Weatherill (1989) 215 Cal.App.3d 1569, 1579–1580 (Weatherill) [recognizing

statutory diversion schemes enacted in 1982 expressly excluded DUIs, 
19

explaining this served to “avoid the risk of implied repeal” of Veh. Code, 

former § 23202 and expressed the consistent intent of the Legislature to bar 

all diversion programs for DUI defendants].) The Diaz-Armstrong majority 

also acknowledged the principle that courts must presume the Legislature 

was aware of preexisting legal authority and case law, but reasoned that 

principle was of little assistance where the decisional authority was not 

monolithic. (Diaz-Armstrong, supra, 67 Cal.App.5th at p. Supp. 24.) 

However, we must presume that the Legislature was aware not only of 

decisional authority, but the relevant statutes themselves, including Vehicle 

Code section 23640, and in the absence of clear evidence to the contrary, 

intended to enact a consistent body of rules. (People v. Superior Court

(Zamudio), supra, 23 Cal.4th at p. 199.) 

Third, the Diaz-Armstrong majority opinion relied heavily on the 

legislative history of section 1001.95, in particular, statements made by 

Assemblymember Cooper and Senator Melendez during floor debates 

suggesting that DUIs would be eligible for diversion. The Diaz-Armstrong 

court reasoned that while generally we do not consider the motives or 

understanding of individual legislators, we can use them as evidence of 

legislative intent when they are comments made to subcommittees or the 

Legislative body as a whole. (Diaz-Armstrong, supra, 67 Cal.App.5th at pp. 

Supp. 25–26; see, e.g., In re Marriage of Bouquet (1976) 16 Cal.3d 583, 590; 

McDowell v. Watson (1997) 59 Cal.App.4th 1155, 1161, fn. 3.) But even if we 

may consider them, we do not believe the statements made during the floor 

debates here are particularly illuminating. 

In the Assembly on August 24, 2020, only the bill’s author, 

Assemblymember Philip Ting, and Assemblymember Cooper spoke during 

the very brief discussion of Assembly Bill 3234 prior to its passage. Cooper 
20

stated he had “a question for the author,” then asked, “So this removes all the 

misdemeanor stuff for the—correct?” Ting responded that “for the Judicial 

Diversion Program it removes the consideration of sex offenses and domestic 

violence offenses.” Cooper then stated: “Okay. It’s gotten better . . . . but 

still, you have DUI with injury, firearms offenses, carrying a concealed 

firearm, loaded firearm in public, bringing a deadly weapon to a state 

building. So while it’s a better bill than it was, there are still some issues 

that I’m firmly opposed to it [sic]. And also, just another question for the 

author. The child pornography portion was taken out, is that correct?”

(Italics added.) Ting indicated his “understanding” that it had been removed. 

After Cooper elaborated further about how important it was that child 

pornography offenses not be subject to diversion, Ting again confirmed his 

“understanding” that “[a]ll the sex offenses and the domestic violence offenses 

were all removed.” 

During the Senate debate of Assembly Bill 3234 on August 31, 2020, 

Senator Holly Mitchell introduced the bill as a “public safety trailer bill that 

includes two criminal justice reforms that reflect the Governor and the 

legislature’s data and evidence-based proposals for reducing our state’s 13 

billion dollar prison budget, protecting public safety and achieving overall 

budgetary savings.” She noted the bill “gives statewide judicial authority to 

offer optional misdemeanor diversion except for specified offenses,” and 

changes the eligibility criteria for an elderly parole suitability hearing to 

reduce the number of vulnerable people in the prisons in light of the ongoing 

COVID-19 pandemic. 

In the debate that followed, several senators spoke in opposition to 

Assembly Bill 3234. Senator Jim Nielsen expressed concern about 

“dangerous individuals who have done very severe crimes” being granted 
21

early release from prison because of COVID. Senator Brian Dahle voiced 

similar concerns. Senator Cathleen Galgiani opposed the bill primarily 

because it allowed diversion for dissuading a witness or crime victim from 

testifying or reporting a crime. Senator Shannon Grove relayed several 

anecdotes regarding specific criminal incidents and stated her opposition to 

releasing prisoners to save the state money without considering the impact to 

their victims. 

After Senator Grove, Senator Nancy Skinner spoke in defense of the 

bill: “What is in the bill before us is not a State mandate. It is an ability for a 

court, if a county approves it for a court, to be able to establish a 

misdemeanor diversion program. And even within that misdemeanor 

diversion there are a variety of crimes that have been excluded. So it does 

not allow for . . . sex offenses, domestic violence, a whole variety of—and of 

course I’m now referring to misdemeanors, so these would be misdemeanant 

sex offenses and misdemeanant domestic violence and stalking. But those 

are excluded. So this is purely optional for courts and counties if they so 

choose, and it is based on a very successful diversion program that has been 

operating in L.A. County for a number of years. That is first and foremost. 

That is the diversion program that is in this bill.” Senator Skinner also spoke 

about the elderly parole suitability consideration provisions of the bill. 

After Senator Skinner’s remarks, Senator Melendez expressed her 

opposition to the bill, noting that it “allows a judge to provide unlimited 

diversion for any misdemeanor, with the exclusion of sex offenses, domestic 

violence and stalking. It does allow for diversion for those who commit child 

abuse, who have a DUI, hate crimes, bringing a firearm into a legislative 

office, assault, battery, identity theft, vehicular manslaughter, possessing a 

firearm upon or within public school, in, on the grounds, all eligible for a 
22

diversion.” (Italics added.) Melendez shared her view that the bill was 

“ridiculous” and “so inappropriate” and offered further comments on her 

opposition to the elderly parole program. Senator Andreas Borgeas offered 

further comments on the elderly parole program before debate concluded. 

At the end of the floor debate, Senator Mitchell closed by “providing 

some . . . important clarifications.” With respect to the misdemeanor 

diversion program, she noted the “bill allows judges to do what prosecutors 

already can. Prosecutors can extend diversion in any case, including felonies. 

Judges will only be able to do so for misdemeanors. The judge will require 

the defendant to complete the same terms and conditions that he or she 

would have been traditionally sentenced [sic]. Again, it excludes those 

convicted of sex offenses, D.V. and stalking. Again, it only applies to 

misdemeanors, not felony charges as has been mentioned in prior hearings.” 

Viewed in context, we are not convinced that the failure of the bill’s 

author in the Assembly and sponsor in the Senate to respond to these lone 

italicized comments by Assemblymember Cooper and Senator Melendez, 

particularly when they were buried among a host of concerns about other 

crimes and aspects of the bill, reflects the Legislature’s collective will that 

section 1001.95 would supersede Vehicle Code section 23640’s express 

prohibition on diversion for DUIs. Rather, we find these isolated remarks

from two individual legislators about their own understanding of the impact 

of the bill at best ambiguous. 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. 

Finally, in considering the policy objectives of the Legislature in 

passing section 1001.95, the Diaz-Armstrong majority emphasized the goal of 

the statute is to “treat, restore, and rehabilitate,” rather than to punish. 
23

(Diaz-Armstrong, supra, 67 Cal.App.5th at p. Supp. 27.) But that was a

general goal of the statute, and the Legislature obviously balanced that 

objective against other considerations when, for example, it specifically 

excluded certain offenses in subdivision (e) of section 1001.95.

9 Under the 

separation of powers doctrine, courts may not encroach on matters normally 

left to the Legislature, and we are mindful that the policy judgments 

underlying the establishment of eligibility criteria for diversion are for the 

Legislature to make. (See Moore, supra, 58 Cal.App.5th at p. 581 [“it is for 

the Legislature to strike the proper balance between protecting public safety 

and mitigating the entry and reentry into the criminal justice system of 

individuals with mental disorders”]; California Teachers Assn v. Governing 

Board of Rialto Unified School Dist. (1997) 14 Cal.4th 627, 633 [“It cannot be 

too often repeated that due respect for the political branches of our 

government requires us to interpret the laws in accordance with the 

expressed intention of the Legislature.”].) We respect our constitutional role

by not ignoring the express exclusions on eligibility for diversion established 

by the Legislature, including the express prohibition on diversion for DUI 

defendants in Vehicle Code section 23640.

In sum, we conclude, like the Espeso court and Judge Firetag’s dissent 

in Diaz-Armstrong, that given the lack of discernible legislative intent to 

partially repeal the prohibition on diversion for DUI offenders, Vehicle Code 

9 The legislative history relied on by the Diaz-Armstrong court also 

suggests the Legislature may have had other policy goals beyond treatment 

and rehabilitation. (See Diaz-Armstrong, supra, 67 Cal.App.5th at p. Supp. 

27 [referencing argument in support of bill discussing goals of promoting 

racial justice in our criminal legal system and decreasing taxpayer costs].) 
24

section 23640 renders misdemeanor DUI defendants ineligible for diversion 

under section 1001.95. 

G. Other Diversion Programs 

As the decisions interpreting section 1001.95 have recognized, the 

courts of this state have a long history of considering the interaction of 

Vehicle Code section 23640 and its predecessor (Veh. Code, former § 23202) 

with other diversion statutes. (See Grassi, supra, 73 Cal.App.5th at pp. 293–

297; Diaz-Armstrong, supra, 67 Cal.App.5th at pp. Supp. 23–24; id. at pp. 

Supp. 32–33 (dis. opn. of Firetag, J.).) We now examine whether these 

decisions support our interpretation of section 1001.95. 

More than 30 years ago, in Weatherill, supra, 215 Cal.App.3d 1569, the 

majority concluded the diversion scheme for misdemeanor defendants with 

developmental disabilities under section 1001.20 et seq. did not apply to DUI

defendants. The court reasoned that the unambiguous language of Vehicle 

Code former sections 23202 and 23206 meant that “all driving-under-theinfluence defendants, without exception, shall have their guilt or innocence 

determined without delay and without diversion.” (Weatherill, at p. 1573.) 

The majority then analyzed the legislative history of Assembly Bill No. 541 

(1981–1982 Reg. Sess.) (which added former §§ 23202 & 23206 to the Vehicle 

Code) and the canons of statutory interpretation, concluding they supported

the court’s holding. (Weatherill, at pp. 1574–1579.) In dissent, Justice 

Johnson wrote the case was “extraordinarily close” and “the majority . . .

presented a well-reasoned argument in support of its resolution of the conflict 

between these two statutes,” but he nonetheless felt compelled to “explain the 

opposite view.” (Id. at pp. 1580–1581 (dis. opn. of Johnson, J.).) Analyzing 

the same legislative history and canons of statutory construction, Johnson 

determined the statutes were not in “irreconcilable conflict” and could be 
25

reconciled by applying section 1001.20 to developmentally disabled 

defendants accused of drunk driving and Vehicle Code former section 23202 

to all other defendants accused of drunk driving. (Weatherill, at pp. 1583–

1588 (dis. opn. of Johnson, J.).) 

More recently our courts considered whether DUI defendants were 

eligible for diversion under section 1001.80, the diversion program for 

members of the military and veterans. In People v. VanVleck (2016) 

2 Cal.App.5th 355, review granted Nov. 16, 2016, S237219, the court relied 

on Weatherill, the presumption that the Legislature was aware of the 

existence of Vehicle Code section 23640, and the canon that specific statutes 

prevail over general statutes to conclude that DUI defendants were not 

eligible for military diversion. (VanVleck, at pp. 363–367.) The court in 

Hopkins v. Superior Court (2016) 2 Cal.App.5th 1275, 1278–1279, review 

granted Nov. 16, 2016, S237734, disagreed, noting the canon of construction 

that specific statutes prevail over general statutes could be applied either 

way, and that the canon that later enacted statutes prevail over earlier ones 

and the legislative history pointed to allowing diversion for military DUI 

defendants. (Hopkins, at pp. 1283–1288.) Although the Supreme Court 

granted review in both cases, the Legislature amended section 1001.80 to 

allow military diversion for misdemeanor DUI offenses before the Supreme 

Court could decide the issue. (§ 1001.80, subd. (l), added by Stats. 2017, ch. 

179, § 1; Hopkins, review dism. as moot, Oct. 18, 2017, S237734; VanVleck, 

review dism. as moot, Nov. 15, 2017, S237219.) 

Finally, most recently, the Tellez, supra, 56 Cal.App.5th 439 and 

Moore, supra, 58 Cal.App.5th 561 opinions considered whether 

section 1001.36, the mental health diversion statute, excluded DUI

defendants. In Tellez, the court relied on the legislative history of 
26

sections 1001.36 and 1001.80 to conclude the Legislature did not intend DUI 

defendants would be eligible for mental health diversion. (Tellez, at pp. 447–

448.) The Moore court agreed with the Tellez court’s analysis, and further 

explained how the canons of statutory construction supported that holding. 

(Moore, at pp. 568, 579–580.) 

As a review of these decisions illustrates, the other diversion programs 

and their legislative histories are all marked by significant differences from 

section 1001.95. In Weatherill, for example, the court relied in part on the 

fact that Vehicle Code former section 23202 was more recent than 

section 1001.21, and therefore reflected the Legislature’s more recent 

judgment. (Weatherill, supra, 215 Cal.App.3d at p. 1578.) The reverse is true 

here because Vehicle Code section 23640 is the earlier enacted statute. In 

the military diversion context, the Courts of Appeal were split on the correct 

interpretation of section 1001.80, but the Legislature resolved the issue by 

amending the statute to allow diversion for misdemeanor DUIs for members 

of the military. Finally, in Moore and Tellez, the courts relied in part on the 

fact that section 1001.36 was enacted during the same legislative session as 

the amendment of the military diversion statute, section 1001.80. The failure 

of the Legislature to expressly overrule Vehicle Code section 23640, when it 

was clearly aware of the issue after having amended the military diversion 

statute in the same session, was a strong indicator it intended to give 

section 23640 continued effect. (Tellez, supra, 56 Cal.App.5th at p. 448; 

Moore, supra, 58 Cal.App.5th at p. 579.) Because each of these courts relied

at least in part on facts that distinguish their diversion schemes from 

section 1001.95, their direct application to section 1001.95 misdemeanor 

diversion is inconclusive at best. 
27

Tan nonetheless argues we should look to Tellez because that court 

turned to the legislative history to determine whether section 1001.36 and 

Vehicle Code section 23640 conflict and which one prevailed. But 

section 1001.36 has a very different legislative history than section 1001.95, 

and we have already addressed why the scant legislative history of Assembly 

Bill 3234 is unhelpful in resolving the question at issue here. 

Tan also points to the language in Tellez suggesting that diversion is 

likely available to misdemeanor DUI defendants under section 1001.95. (See 

Tellez, supra, 56 Cal.App.5th at pp. 449–450.) The Tellez court noted that, in 

1982, the Legislature enacted two misdemeanor diversion statutes that 

expressly excluded DUI offenses from eligibility and “[i]n view of that history, 

the Legislature’s failure to expressly exclude DUI offenses this time around is 

a good indicator that it intended DUI offenses to be eligible for the new 

misdemeanor program.” (Id. at p. 450.) But whether misdemeanor diversion 

is available to DUI defendants under section 1001.95 was not before the court 

in Tellez, and its statement is dictum. (Tellez, at p. 449 [“We do not believe it 

is clear whether DUI offenses are eligible for the new misdemeanor diversion 

program, and we need not decide the issue.”].) In any event, as we have 

already explained, we are unconvinced the failure to use the same 

exclusionary language employed in other diversion statutes reflects 

legislative intent to allow diversion for a group of offenders expressly 

prohibited from qualification under Vehicle Code section 23640. 

H. Tan’s Other Claims

As noted above, Tan also argues the trial court erred by failing to 

exercise its discretion and that the San Mateo County Superior Court

adopted its policy of denying diversion to DUI defendants in violation of his 

due process rights, state law, and the California Rules of Court. Because we 
28

have determined that the court has no discretion to offer diversion to 

misdemeanor DUI defendants, we need not address these arguments. 

I. Conclusion

After a careful study of the issue, we conclude section 1001.95 and 

Vehicle Code section 23640 can be harmonized and read together so 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). As we have discussed 

above, however, we also recognize that the scant legislative history was 

particularly ambiguous in this case and of little assistance in divining the 

will of the Legislature. 

“It is axiomatic that in assessing the import of a statute, we must 

concern ourselves with the Legislature’s purpose at the time of the 

enactment.” (In re Pedro T. (1994) 8 Cal.4th 1041, 1048.) We acknowledge 

the Legislature has taken up several bills aimed at clarifying whether 

misdemeanor diversion is available to those charged with DUIs.

10 We join 

the Grassi court in urging the Legislature to clarify its intent with respect to 

10 Assembly Bill No. 282 (2021–2022 Reg. Sess.) made DUIs exempt 

from misdemeanor diversion under section 1001.95. The bill passed in the 

Assembly. The Senate Public Safety Committee voted against the bill in July 

2021, but granted reconsideration. Senate Bill No. 421 (2021–2022 Reg. 

Sess.) made misdemeanor DUIs eligible under certain conditions. Two 

Senate committees approved this bill in April and May 2021, but no further 

action was taken and the bill died. Senate Bill No. 783 (2021–2022 Reg. 

Sess.) declared express legislative intent to promote racial equity and reduce 

recidivism by making misdemeanor DUIs eligible for diversion under certain 

conditions. The bill was amended in the Senate and referred to the Senate 

Rules Committee in September 2021, but again no further action was taken 

and the bill died. Thus far, section 1001.95 has not been amended. 
29

the availability of diversion for misdemeanor DUI defendants under 

section 1001.95. 

III. DISPOSITION

The petition for writ of mandate is denied. 
30

MARGULIES, J.

WE CONCUR:

HUMES, P. J.

BANKE, J.

A163715

Tan v. Superior Court
31

Trial Court: Superior Court of San Mateo County 

Trial Judge: Donald J. Ayoob, Judge

Counsel: 

Douglas I. Horngrad and Sam O’Keefe for Petitioner.

Stephen M. Wagstaffe, San Mateo County District Attorney, Sean F. 

Gallagher, Chief Deputy District Attorney, Rebecca L. Baum, Shin-Mee 

Chang, Morris Maya and Ryan S. Geisser, Deputy District Attorneys for 

Respondent. 

No appearance for Real Party in Interest.