1

Filed 12/11/20

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

DAVID PETER MOORE, SR.,

Petitioner,

v.

THE SUPERIOR COURT OF

RIVERSIDE COUNTY,

Respondent;

THE PEOPLE,

Real Party in Interest. E074429

(Super.Ct.No. BAF1900312)

OPINION

ORIGINAL PROCEEDINGS; petition for writ of mandate. Mark E. Johnson,

Judge. Petition denied.

Steven L

. Harmon, Public Defender, William A. Meronek, Deputy Public

Defender, for Petitioner.

No appearance for Respondent.2

Michael A. Hestrin, District Attorney, Natalie M. Lough, Deputy District

Attorney, for Real Party in Interest.

I. INTRODUCTION

For nearly 40 years, Vehicle Code section 23640 and its predecessor

, Vehicle

Code former section 23202, have generally made DUI defendants 1 categorically

ineligible for any form of pretrial diversion. In 2018, the Legislature enacted Penal Code

section 1001. 36, making defendants charged with “a misdemeanor or felony ” and who

suffer from a qualifying mental health disorder generally eligible for pretrial mental

health diversion

. (Stats. 2018, ch. 34, § 24.) The Legislature then amended Penal Code

section 1001.36 to make persons charged with murder and other specified offenses

categorically ineligible for pretrial mental health diversion

. ( § 1001.36, sub d . (b)(2);

Stats. 2018, ch. 100 5 , § 1

. ) But the Legislature did not amend Pe nal Code section

1001.36 to clarify that DUI defendants are eligible for pretrial mental health diversion

,

notwithstanding Vehicle Code section 23640.

The question presented in this case is one of statutory interpretation: In light of

Vehicle Code sect ion 23640, are DUI defendants categorically in eligible for pretrial

mental health diversion under Penal Code section 1 0 01.36 ? In Tellez v. Superior Court

(2020) 56 Cal.App.5th 439 ( Tellez )

, this court addressed th e same question and

conclude d , based on the legislat ive history of Penal Code sections 1001.36 and 1001.80

1 We use the terms DUI defendant, DUI offense, and their plural forms to refer to

persons charged with or the offenses of either misdemeanor or felony violation s of

Vehicle Code section 23152 (driving under the influence of alcohol) or Vehicle Code

section 23153 (driving under the influence of alcohol, causing bodily injury)

.3

(military diversion), that the Legislature did not intend DUI defendants to be eligible for

pretrial mental health diversion under section 1001.36

. ( Te llez

, at pp. 447

- 448.)

We conclude

, consistently with Tellez

, that legislative history of Penal Code 2

section s 1001.36 and 1001.80 shows that the Legislature did not intend to make DUI

defendants eligible for pretrial mental health diversion under section 1001.36. We

publish this decision to illustrate that several canons of statutory construction buttress

Tellez’ s holding

.

I I. FACTS AND PROCEDURAL BACKGROUND

Petitioner, David Peter Moore, Sr., was charged in a felon y complaint with driving

under the influence of alcohol, causing injury (Veh. Code, § 23153, subd. (a); count 1)

and with driving with a blood

- alcohol content of 0 .08 percent or more, causing injury

(Veh. Code, § 23153, subd. (b); count 2.) The complaint further alleged that Moore had a

blood

- alcohol content of 0 .15 percent or more (Veh. Code, § 23578), personally inflicted

great bodily injury on one victim (Pen. Code, § 12022.7, subd. (a)), and proximately

caused bodily injury to two additional victims (V eh. Code, § 23558)

.

The offenses allegedly occurred on November 22, 2018

, when Moore’s vehicle

collided with another vehicle, injuring three occupants of the other vehicle. Moore pled

not guilty to the charges and denied the enhancement allegations. Bef ore trial, on

November 8, 2019, Moore’s counsel orally moved the trial court to hold a “prima facie

2 Undesignated statutory references are to the Penal Code.4

hearing” to determine whether Moore met the statutory criteria to qualify for pretrial

mental health diversion. (§ 1001.36, subd. (b)(1), (b)(3).)

The cour t denied Moore’s motion on the ground that Vehicle Code section 23640

renders all felony and misdemeanor DUI defendants ineligible for pretrial mental health

diversion under Penal Code section 1001.36. 3 Moore then petitioned this court for a writ

of mandate

, claiming the court’s order is contrary to the plain language of Penal Code

section 1001.36, its legislative history, and public policy . W e issued an order to show

cause and stayed the proceedings in the trial court

. For the reasons we explain, w e deny

Moore’s petition and dissolve the order staying the trial court proceedings.

I II. STATUTORY OVERVIEW

A. Vehicle Code Section 23640

Vehicle Code section 23640 prohibits courts from ordering any form of pretrial

diversion for defendants charged w ith misdemeanor or felony violations of either Vehicle

Code section 23152 or 23153. (See People v. Weatherill (1989) 215 Cal.App.3d 1569,

1572

- 1573 ( Weatherill ) [discussing Veh. Code, former § 23202, the predecessor statute

to Veh. Code, § 23640 ] .) The s tatute does this by prohibiting courts from suspending,

staying, or dismissing the criminal proceedings against a DUI defendant in order to allow

3 Given its ruling that Moore’s status as a DUI defendant rendered him ineligible

for pretrial mental health diversi on (Veh. Code, § 23640, subd

. (a)), the court did not

determine whether Moore suffered from a qualifying mental health disorder or met the

other criteria for pretrial mental health diversion (Pen. Code, § 1001.36, subd. (b)(1)(A)

- (F)). The record does not indicate what mental health disorder Moore would have

claimed he suffered from or whether that disorder, if any, was a significant factor in his

commission of the charged DUI offenses. (See i d . at subd. (b)(1)(A)

- (B).)5

the defendant to attend or participate in, or because the defendant has attended or

participated in, “any one or more education, training, or treatment programs

, . . .” (Veh.

Code, § 23640, subd. (a).) 4

Vehicle Code section 23640 has been the law in California for nearly 40 years. Its

predecessor statute, Vehicle Code former section 23202, was enacted in 1981, along with

other changes and additions to the Vehicle Code, “in response to growing public concern

about intoxicated drivers.” ( People v. Duncan (1990) 216 Cal.App.3d 1621, 1628.) 5

A companion statute, Vehicle Code section 23600 (Veh

. Code

, former § 23206), 6

imposes similar postconviction restraints on sentencing in DUI cases. (See People v.

Duncan

, supra

, 216 Cal.App.3d at p

. 1628.) It prohibits courts from staying or

4 The full text of 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, train ing, 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 alc ohol 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 af ter conviction and

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

of probation granted after conviction when permitted. ”

5 Vehicle Code former section 23202 was repealed and reenacted in 1998, without

substanti ve change, as Vehicle Code section 23640. (See People v. VanVleck (2016) 2

Cal.App.5th 355, 360

- 361 & fn. 2 ( VanVleck ).)

6 Vehicle Code former section 23206 was repealed and reenacted in 1998, without

substantive change, as Vehicle Code section 23600. (See VanVleck

, supra

, 2 Cal.App.5th

at pp. 360

- 361 & fn. 2.)6

suspending pronouncement of sentence in DUI cases and from absolving D UI defendants

of their “obligation of spending the minimum time in confinement, if any, or of paying

the minimum fine imposed by law.” (Veh. Code, § 23600 , subd. (c).)

Courts have consistently observed that the Legislature’s “ ‘ unambiguous intent ’ ”

in enacting Vehicle Code sections 23640 and 23600, and their predecessor statutes, was

“ ‘ to prohibit pre

- or postconviction stays or suspensions of proceedings to allow [DUI

defendants] to be diverted into a treatment program and avoid spending the statutor i l y

mandated minimum time in confinement or paying the statutorily imposed minimum

fine.’ ” ( VanVleck

, supra

, 2 Cal.App.5th at p

. 361, quoting People v. Darnell ( 1990 ) 224

Cal.App.3d 806, 810 ; see People v Duncan

, supra

, 216 Cal.App.3d at p

. 1628;

Weatheri ll

, supra

, 215 Cal.App.3d at pp. 1572

- 1573.)

During the 1970 ’ s, following the Legislature’s 1972 enactment of California’s first

diversion statute allowing pretrial diversion for certain drug offenders (§§ 1000 to

1000.4), police departments and district attorneys throughout California began

implementing diversion p rograms in their local jurisdictions. ( Davis v. Municipal Court

(1988) 46 Cal.3d 64, 73

- 74.) Many of these local diversion programs included “driving

under

- the

- influence diversion programs.” ( Weatherill

, supra

, 215 Cal.App.3d at

p

. 1576.)

The prolifer ation of local DUI diversion programs in California ultimately led to

the 1981 enactment of Vehicle Code former sections 23202 and 23206, the predecessors

to Vehicle Code sections 23640 and 23600. (See Weatherill

, supra

, 215 Cal.App.3d at7

p p

. 1574

- 1576.) As the Weatherill court explained , public support “was strong” for

Assembly Bill No. 541 (1981

- 1982 Reg. Sess.), the legislation that added these statutes to

the Vehicle Code and otherwise reformed California’s driving

- under

- the

- influence laws.

( Weatheri ll

, at pp

. 1574

- 1575.) The legislation ensured that “ all driving under the

influence defendants, without exception, shall have their guilt or innocence determined

without delay or diversion .” ( Id . at p

. 1577, fn. omitted, italics added .)

B. Penal Code Section 1001.36

Section 1001.36 was both enacted and amended in 2018. (S tats. 2018, ch. 34,

§ 24; Stats. 2018, ch. 1005, § 1. ) It created a pretrial diversion program for qualif ying

defendants who suffer from a diagnosed and qualifying mental disord er, “including

, but

not limited to, bipolar disorder, schizophrenia, schizoaffective disorder, or post

- traumatic

stress disorder

, but excluding antisocial personality disorder, borderline personality

disorder, and pedophilia

. . . .” (§ 1001.36, subd. (b)(1)(A).)

The statute provides: “On an accusatory pleading alleging the commission of a

misdemeanor or felony offense

, the court may, after considering the positions of the

defense and prosecution, grant pretrial diversion to a d efendant pursuant to this section if

the defendant meets all of the [six minimum eligibility] requirements specified in

paragraph (1) of subdivision (b).” (§ 1001.36, subd. (a), italics added .) 7

7 A defendant must meet six minimum eligibility requirements to qualify for

pretrial mental health diversion: “ First, the trial court must be ‘ satisfied that the

defendant suffers from a mental disorder ’ as described in the statute, and the evidence

provided ‘ shall include a recent diagnosis by a qualified mental h ealth expert. ’

( § 1001.36, subd. (b)(1)(A) .) Second, the court must also be satisfied that ‘ the8

“At any stage of the proceedings, the court may require t he defendant to make a

prima facie showing that the defendant will meet the minimum requirements of eligibility

for diversion and that the defendant and the offense are suitable for diversion

. . . . If a

prima facie showing is not made, the court may summarily deny the request for diversion

or grant any other relief as may be deemed appropriate.” ( § 1001.36, subd. (b)(3)

. ) But

if the court is satisfied that the defendant meets the six minimum eligibility requirements

(§ 1001.36, subd. (b)(1)), and th at the defendant and the offense are suitable for diversion

(§ 1001.36, subd. (b)(3) ) , the court may divert the defendant into an approved mental

health treatment program and suspend the criminal proceedings for a period of no more

than two years. (§ 1001 .36, subd. (c)(1), (c)(3).)

The statute defines “ ‘ pretrial diversion ’ ” as “the postponement of prosecution,

either temporarily or permanently, at any point in the judicial process from the point at

which the accused is charged until adjudication, to allo w the defendant to undergo mental

health treatment , subject to [several restrictions] .” (§ 1001.36, subd. (c).) The court may

reinstate criminal proceedings on several grounds, including if the defendant commits “an

defendant ’ s mental disorder was a significant factor in the commission of the charged

offense. ’ ( § 1001.36, subd. (b)(1)(B) .) Third, ‘ a qualified mental health expert ’ must

opine that ‘ defendant ’ s symptoms of the mental disorder motivating the criminal

behavior would respond to mental health treatment. ’ ( § 1001.36, subd. (b)(1)(C) .)

Fourth, subject to certain exceptions related to incompetence, th e defendant must consent

to diversion and waive his or her right to a speedy trial. ( § 1001.36, subd. (b)(1)(D) .)

Fifth, the defendant must agree to ‘ comply with treatment as a condition of diversion. ’

( § 1001.36, subd. (b)(1)(E) .) And finally, the cou rt must be ‘ satisfied that the defendant

will not pose an unreasonable risk of danger to public safety

. . . if treated in the

community. ’ ( § 1001.36, subd. (b)(1)(F) .) ” ( People v. Weaver (2019) 36 Cal.App.5th

1103, 1114

- 1115 & fn. 13.)9

additional misdemeanor” or “an additio nal felony” during the diversion period, performs

unsatisfactorily during diversion, or is “engaged in criminal conduct rendering the

defendant unsuitable for diversion.” (§ 1001.36, subd. (d).)

At the end of the diversion period, if the defendant has per formed satisfactorily in

diversion, “ the court shall dismiss the defendant ’ s criminal charges that were the subject

of the criminal proceedings at the time of the initial diversion.” ( § 1001.36, subd. (e) .)

Further, “the arrest upon which the diversion was based shall be deemed never to have

occurred” ( § 1001.36, subd. (e) ) and “[a] record pertaining to” the arrest “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.” (§ 1001.36, subd. ( f ).)

The stated purpose of section 1001.36 “is to promote all of the following: [¶]

(a ) Increased diversion of individuals with mental disorders to mitigate the individuals ’

entry and reentry into the criminal justi ce system while protecting public safety. [¶]

(b) Allowing local discretion and flexibility for counties in the development and

implementation of diversion for individuals with mental disorders across a continuum of

care settings. [¶] (c) Providing div ersion that meets the unique mental health treatment

and support needs of individuals with mental disorders.” (§ 1001.35.)

Section 1001.36 was enacted in 2018 as part of a budget trailer bill, Assembly Bill

No. 1810 (2017

- 2018 Reg. Sess.) (Assembly Bill 1810) and took effect on June 27, 2018.

(Stats. 2018, ch. 34, § 24.) Three months later, on September 30, 2018, the Governor

signed Senate Bill No. 215 (Stats. 2018, ch. 1005

, § 1 ) (Senate Bill 215)

.10

Senate Bill 215 amended section 1001.3 6, effective January 1, 2019, to provide

that defendants currently charged with specified offenses “may not be placed into a

diversion program

, pursuant to this section

, . . .” (§ 1001 .36 , subd. (b)(2), enacted by

Stats. 2018, ch. 1005, § 1.) These speci fied offenses include murder

, voluntary

manslaughter, rape

, other specified sex crimes, the use of a weapon of mass destruction,

and any offense “for which a person, if convicted, would be required to register pursuant

to Section 290 , except for a violatio n of Section 314 [indecent exposure].” ( § 1001.36,

subd. (b)(2)(A )

- ( H) .) DUI offenses are not among the specified offenses that are

categorically ineligible for pretrial mental health diversion. ( Ibid .)

I V . DISCUSSION

The question we must determine is whether Vehicle Code section 23640 renders

all DUI defendants

— that is, all persons charged either with a misdemeanor or a felony

violation of Vehicle Code section 23152 or 23153

— categorically ineligible for pretrial

mental health diversion under the more recently enacted Penal Code section 1001.36. 8

A. Standard of Review and Applicable Canons of Statutory Construction

Questions of statutory construction present questions of law and are reviewed de

novo. ( VanVleck

, supra

, 2 Cal.App.5th at p. 362; Jones v. Pierce (1988) 199 Cal.App.3d

8 We briefly ex plain why review of this novel issue of statutory construction by

extraordinary writ petition is proper. Both because the issue is novel and no appeal lies

from an order denying pretrial diversion in a criminal proceeding ( Morse v. Municipal

Court (1974) 13 Cal.3d 149, 155), the question of whether DUI defendants are

categorically ineligible for pretrial mental health diversion is likely to recur, both by

petitions for extraordinary writ and on appeal from judgments of conviction in DUI cases.

(See Wade v . Superior Court (2019) 33 Cal.App.5th 694, 706

- 707.)11

736, 741 [“Questions of statutory interpretation are, of course, pure matters of law upon

which we may exercise our independent judgment

. ”]. ) “ Our primary objective in

interpreting a statute is to determine and give effect to the un derlying legislative intent.

[Citation.] Intent is determined foremost by the plain meaning of the statutory language.

If the language is clear and unambiguous, there is no need for judicial construction.

When the language is reasonably susceptible of more than one meaning, it is proper to

examine a variety of extrinsic aids in an effort to discern the intended meaning. We may

consider, for example, the statutory scheme, the apparent purposes underlying the statute

and the presence (or absence) of inst ructive legislative history.” ( City of Brentwood v.

Central Valley Regional Water Quality Control Bd. (2004) 123 Cal.App.4th 714, 722.)

We may also consider “ ‘ “ ‘ the evils to be remedied ’ ” ’ ” by the statute and

public policy. ( People v. King (2006) 38 Cal.4th 617, 62 2 .) “The question [of statutory

interpretation] is ultimately one of legislative intent, as ‘[o]ur fundamental task in

construing a statute is to ascertain the intent of the lawmakers so as to effectuate the

purpose of the statut e.’ [Citation.] ” ( Martinez v. Combs (2010) 49 Cal.4th 35, 51.)

When the provisions of two statutes appear to be in conflict, “ ‘ “[a] court must,

where reasonably possible, harmonize [the] statutes, reconcile seeming inconsistencies in

them, and constru e 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.] T hus, when

“ ‘ two codes are to be construed, they “ must be regarded as blending into each other and12

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.] ’ ” ( State Dept

. of Public Health v. Superior Court (2015) 60

Cal.4th 940, 955 ( State Dept. ).)

Courts are required to “assume that the Legislature, when enacting a statute, was

aware of existing related laws and intended to maintain a consistent body of rules.”

( People v. Vessell (1995) 36 Cal.App.4th 285, 289.) Thus, in construing two potentially

conflicting statutes, “ ‘ “ ‘ “ [a]ll presumptions are against a repeal by implication.

[Citations. ] ” [Citation.] Absent an express declaration of legislative intent, we will find

an implied repeal [of one statute] “ only when there is no rational basis for harmonizing

the two potentially conflicting statutes [citation], and the statutes are ‘ irreconci lable,

clearly repugnant, and so inconsistent that the two cannot have concurrent

operation. ’ ” ’ ” ’ [Citations.]” ( State Dept

. , supra

, 60 Cal.4th at pp. 955

- 956.)

“[T]he implied repeal doctrine applies ‘ [w]hen two or more statutes [enacted by

the same legislature] concern the same subject matter and are in irreconcilable conflict

. . . . ’ [Citation.] In such cases, ‘ the doctrine of implied repeal provides that the most

recently enacted statute expresses the will of the Legislature, and thus to the extent of the

conflict impliedly repeals the earlier enactment. ’ [ Citation. ]” ( Stop Youth Addiction, Inc.

v. Lucky Stores, Inc. (1998) 17 Cal.4th 553, 56 8 .) But “[t] he law shuns repeals by

implication ,” and “ ‘ “ ‘ [t]he courts are bound, if possible

, to maintain the integrity of

both statutes if the two may stand together.’ ” ’ [Citations.]” ( Id

. at p. 569.)13

B. The Legislative History of Sections 1001.36 and 1001.80 Shows That t he

Legislature Did Not Intend to Make DUI Defendants Eligib le for Pretrial Mental Health

Diversion Under Section 1001.36

In Tellez, this court concluded

, based on the legislative history of sections 1001.36

and 1001.80 (military diversion), that “DUI offenses a re

. . . categorically ineligible for

mental health diversion ” under section 1001.36

. ( Tellez

, supra

, 56 Cal.App.5th at p p

.

444

- 448.) We summariz e and adopt Tellez’s reasoning here.

Ef fective January 1, 2015, section 1001.80 created a pretrial diversion program for

current and former members of the United States military who are charged with “a

misdemeanor offense ” and who may be suffering from certain afflictions as a result of

their military service, namely, “sexual trauma, traumatic brain injury, post

- traumatic

stress disorder, substance abuse, or mental health problems.” (§ 1001.80, subd. (a); Stats.

2014, ch. 658, § 1; see VanVleck

, supra

, 2 Cal.App.5th at p. 362.)

As originally enacted, Penal Code section 1001.80 did not address Vehicle Code

section 23640, or whether current and former military members who otherwise met the

criteria for military diversion

, but who were charged with misdemeanor DUI offense s

,

were eligible for pretrial military diversion. (Stats. 2014, ch. 658, § 1.) In 2016, two

appellate court s split on the issue : VanVleck held that misdemeanor DUI defen d ants are

in eligible for military diversion ( VanVleck

, supra

, 2 Cal.App.5th at p. 365 ), while the

court in Hopkins v. Superior Court (2016) 2 Cal. Ap p.5th 1275 ( Hopkins )

, held that Penal

Code section 1001.80 “supersedes Vehicle Code section 23640 to the extent that the latter14

statute prohibits pretrial diversion for defendants who meet the criteria set forth in [Penal

Code] section 1001.80, subdivision (a).” ( Hopkins

, at p. 12 8 4.)

Our Supreme C ourt granted review of the issue in both cases. ( VanVleck

, supra

, 2

Cal.App.5th 355, review gr anted Nov. 16, 2 0 16, S237219 ; Hopkins

, supra

, 2 Cal.App.5th

1275, review granted Nov. 16, 2016, S237734.) But in 2017, review of both cases was

dismissed as moot ( Hopkins

, review dism

. O ct. 18, 2017 ; VanVleck

, review dis m. Nov,

15, 2017 )

, after the Legislature amended section 1001.80

, effective August 7, 2017, t o

clarify that military members charged with misdemeanor DUI offenses are eligible for

military diversion

, provided they meet the criteria set forth in section 1001.80,

subdivision (a). ( Stats. 2017, ch. 17 9, § 1 (Sen. Bill No. 725) .)

Specifically, t he 2017 amendment added subdivision ( 1 ) to section 1001.80, which

provides : “ Notwithstanding any o ther law, including Section 23640 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. However, this section does not limit the authority

of the Department of Motor Vehicles to take administrative action concerning the driving

privileges of a person arrested for a violation of Section 23152 or 23153 of the Vehicle

Code. ” (§ 1001.80, subd. ( l ), added by Stats. 2017, ch. 17 9

, § 1 (Sen. Bill No. 725) .)

As Tellez explains, the August 2 0 17 amendment

, which added subdivision ( l ) to

section 1001.80

, and the 2018 enactment and amendment of section 1001.36 all occurred

during the 2017 to 2018 legislative session. ( Tellez

, supra

, 56 Cal.App.5th at p p

. 447

-15

448.) Additionally, the two bill s that enacted and amended section 1001.36

, namely,

Assembly Bill 1810 (2017

- 2018 Reg. Sess.) [enacting section 1001.36, effective June 27,

2018] and Senate Bill 215 (2017

- 2018 Reg. Sess.) [amend ing section 1001.36

, effective

January 1, 2019, to exclude from eligibility persons charged with murder and other

specified offenses ], “did not expressly address DUI offenses or give P e n a l C ode section

1001.36 broad application notwithstanding any other law.” ( Tellez

, supra

, at p. 447.)

As Tellez concluded, “ [t] h is history establishes that the Legislature wanted the

existing bar on diversion for DUI offenses [in Vehicle Code section 23640 ] to take

precedence [over Penal Code section 1001.36]. The Legislature was familiar with the

conflict between Vehicle Code section 23640 and diversion statute s 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.” ( Tellez

, supra

, 56 Cal.App.5th at

p. 448.) Indeed, t he Legislature’s failure to add a provision like Penal Code section

1001.80, subdivision ( 1 )

, to Penal Code section 1001.36 during the same legislative

session in which it enacted subdivision ( 1 ) of Penal Code section 1001.80, strongly

indicates that the Legislature did not intend to impliedly repeal Vehicle Code section

23640 insofar as it operates to bar DUI defendants from eligibility for pretrial mental

health diversion under Penal Code section 1001.36.

Moore maintains that the legislative his tory of Senate Bill 215, which amended

section 1001.36 to exclude defendants charged with murder and other specified offenses

from eligibility for pretrial mental health diversion (§ 1001.36, subd. (b)(2); Stats. 2018,16

ch. 1005, § 1), shows that the Legisl ature did not intend to also exclude DUI defendants

from such eligibility. He claims that the superior court, in ruling that his status as a DUI

defendant made him ineligible for pretrial mental health diversion, erroneously refused to

implement Senate Bi ll 215 “as written and intended.” We disagree.

As Moore observes

, Senate Bill No. 215 “went through a long process before

becoming law.” (See Tellez

, supra

, 56 Cal.App.5th at pp. 446

- 447 [ detailing history of

Senate Bill 215].) As originally introduced on February 1, 2017, the bill concerned

another subject and did not mention pretrial mental health diversion. (Sen. Bill No. 215

(2017

- 2018, Reg. Sess.) Feb. 1, 2017.) But a s amended on January 3, 2 018, the focus of

the bill became mental health diversion. Th is version of the bill would have added

section 1001.82 to the Penal Code, authorizing pretrial mental health diversion for “low

level offenders”

— that is, persons charged with misdemeanor or fel ony offenses

punishable by imprisonment in a county jail (Pen. Code, § 1170, subd. (h))

— but would

have prohibited diversion, without the consent of the prosecution, for specified offenses

including “a violation of Section 23152 or 23153 of the Vehicle Code ,” or DUI offenses.

(Sen. Amend. to Sen. Bill No. 215 (2017

- 2018 Reg. Sess., § 2) Jan. 3, 2018.) Moore

argues, “the Legislature already recognized in this early draft that to effectively exclude

DUIs from mental health diversion, it would need to specifi cally list Vehicle Code

sections 23152 and 23153 in its exclusionary language.”

On January 9, 2018, a third amended version of Senate Bill 215 included new

language in its preamble, stating that, “[s]pecified driving

- under

- the

- influence offenses17

would no t be eligible for diversion under these provisions.” (Sen. Amend. to Sen. Bill

No. 215 (2017

- 2018 Reg. Sess.) Jan. 9, 2018.) Moore argues it is “significant” that the

January 9 version of the bill removed DUI offenses from the list of offenses that could

not be diverted without the consent of the prosecution, and added a provision that would

have categorically excluded DUI offenses

— that is, any “violation of sections 23152 or

23153 of the Vehicle Code”

— from eligibility for diversion. Moore claims that, by the

January 9 amendment

, “the Legislature demonstrated its intention that .

. . DUI offenses

be excluded from mental health diversion altogether, even if the prosecution would

otherwise consent to such diversion.”

As Tellez observed, “Senate Bill 215 ex pressly excluded DUI offenses from

mental health diversion until August 6, 201 8, when the Assembly substantially revised

Senate Bill 215.” ( Tellez

, supra

, 56 Cal.App.5th at p. 447.) The August 6 version of the

bill omitted the prior provisions that had l imited diversion to low level offenders and that

had specified some offenses as eligible for diversion with the consent of the prosecution.

The August 6 version also gave courts discretion to deny diversion to defendants who

would pose an unreasonable ris k of danger to public safety.

“Up through this point,” Moore argues, the legislative history of Senate Bill 215

“indicated an explicit intent to exclude” DUI defendants “from mental health diversion

, ”

but when the bill was amended on August 6, 2018, the Legislature deleted the reference

to DUI ’ s in the preamble to the bill, deleted proposed section 1001.82 in its entirety, and18

replaced proposed section 1001.82 with amended section 1001.36. 9 (Sen. Amend. to

Sen. Bill No. 215 (2017

- 2018 Reg. Sess.) Aug. 6, 2018.) Moore argues that, by the

August 6 version of the bill, “the Legislature manifested an intent” to allow pretrial

mental health diversion for DUI defendants.

Moore finds further support for his position in the final , August 23, 2018 version

of Senate Bill 215

. (Stats. 2018, ch. 1005, § 1.) When the bill “received its final

redrafting” on August 23

, it included new section 1001.36, subdivision (b)(2), which

specified that defendants currently charged with murder, rape, and other offenses, but not

DUI offenses, a re ineligible for pretrial mental health diversion. (Sen. Amend. to Sen.

Bill No. 215 (2017

- 2018 Reg. Sess.) Aug. 23, 2018; Stats. 2018, ch. 1005, § 1.) Moore

claims that the final, August 23 version of the bill shows that, “[t]he Leg islature now

manifested its intention to allow mental health diversion for all but a specific list of

violent and sexually

- related offenses, but notably did not reinsert any DUI offense into

this list of disqualifying offenses.”

To summarize

, Moore claims that the history of Senate Bill 215 “ manifest ed a

clear legislative intent ” to make DUI defendants eligible for pretrial mental health

diversion. He argues that the Legislature’s rejection of the pre

- August 23, 2018 versions

of the bill “precludes a const ruction of the existing section [1001.36] which would again

9 By August 6, 2018, section 1001.36 had already been enacted, effective June 27,

2018, by Assembly Bill 1810 (2017

- 2018 Reg. Sess.) (Stats. 2018, ch. 34, § 24.) Thus,

the August 6, 2018 version of Senate Bill 215 proposed to amend rather than enact

secti on 1001.36. (Sen. Amend. to Sen. Bill No. 215 (2017

- 2018 Reg. Sess.) Aug. 6,

2018, § 1.)19

include the prohibition just as if it had not been eliminated by the Legislature.” ( People v

Bruno (1987) 191 Cal.App.3d 1102, 1107.) More generally, he claims, “ ‘[t]he rejection

by the Legisla ture of a specific provision contained in an act as originally introduced is

most persuasive to the conclusion that the act should not be construed to include the

omitted provision.’ ” ( Madrid v. Justice Court (1975) 52 Cal.App.3d 819, 825

( Madrid ) .)

But w hatever reasons the sponsors of Senate Bill 215 may have had for removing

any express exclusion of DUI defendants from the bill’s final August 23, 2018 version,

the Legislature left Vehicle Code section 23640 in full force and effect, both when it

enacted Penal Code section 1001.36 in 2018 (Stats. 2018, ch. 34, § 24 , eff. June 27, 2018 )

and when it amended the statute by passing Senate Bill 215. (Stats. 2018, ch. 1005, § 1

,

eff. Jan. 1, 2019 .) As the People point out, if the Legislature had intend ed 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 d o 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 inten t to keep all

DUI defendants ineligible for pretrial mental health diversion under Vehicle Code section

23640

. ( Tellez

, supra

, 56 Cal.App.5th at pp. 447

- 448.)20

C

. Canons of Statutory Construction Do Not Assist Moore’s Claim

Moore also relies on several canons of statutory construction in arguing that Penal

Code section 1001.36 must be construed as repealing Vehicle Code section 23640 by

implication, insofar as Vehicle Code section 23640 prohibits courts from granting pretrial

mental hea lth diversion to DUI defendants. Moore relies on the principle, “ Expres s io

unius est exclusio alterius . The expression of some things in a statute necessarily means

the exclusion of other things not expressed.” ( Gikas v. Zolin (1993) 6 Cal.4th 841, 852. )

Moore argues that because Penal Code section 1001.36 was amended in 2018 to exclude

defendants charged with specified offenses, but not DUI offenses, from eligibility for

pretrial mental health diversion (Pen. Code

, § 1001.36, subd. (b)(2)), the statute cannot be

interpreted as also excluding DUI defendants from eligibility. We disagree.

“ ‘Under the maxim of statutory construction, expressio unius est exclusio alterius

,

if exemptions are specified in a statute, we may not imply additional exemptions un less

there is a clear legislative intent to the contrary.’ ( Sierra Club v. State Bd. of Forestry

(1994) 7 Cal.4th 1215, 1230

- 1231 [court did not interpret intent of Legislature to exempt

timber harvesting from environmental legislation where it had exempt ed other types of

forest practices]. ) ‘The proper rule of statutory construction is that the statement of

limited exceptions excludes others, and therefore the judiciary has no power to add

additional exceptions; the enumeration of specific exceptions pre cludes implying others.’

[Citation.]” ( S.V. v. Superior Court (2017) 13 Cal.App.5th 1174, 1182.)21

The principle expressio unius est exclusio alterius is not “applied invariably” and

does not apply “ ‘if its operation would contradict a discernible and contrary legislative

intent.’ ” ( In re J.W. (2002) 29 Cal.4th 200, 209.) Its operation here would contradict the

Legislature’s discernible and contrary intent to exclude DUI defendants from eligibility

for pretrial mental health diversion under Penal Code section 1001.36.

Moore further argues that Penal Code section 1001.36 impliedly repealed Vehicle

Code section 23640 because Penal Code section 1001.36 was enacted after Vehicle Code

section 23640. Moore concedes that either statue can be construed as more specific than

the other , regarding their subject matters, 10 thus, he concedes that the rule that a specific

statute controls over a more general one “ does not as sist us in this case .” Accordingly, he

argues, we must apply the rule that “ ‘ “later enactments supersede earlier ones. ” ’ ”

( Hopkins

, supra

, 2 Cal.App.5th at p. 1284.)

We addressed this argument in Tellez and found it unpersuasive. ( Tellez

, supra

,

56 Cal. A pp.5th at pp. 448

- 449.) As we explained, canons of statutory construction are

merely tools to ascertaining probable legislative intent; they are not the formula that

always determines it. ( Ibid

, citing Stone v. Superior Court (1982) 31 Cal.3d 503, 521, fn.

10; Medical Board v. Superior Court (2001) 88 Cal.App.4th 1001, 1013.) Applying the

canon that later enactments supersede earlier ones would contravene the Legislature’s

10 On the one hand, Moore observes that “the matter or subject covered by [Penal

Code] section 1001.36 is a specific pretrial diversion program, i.e., mental healt h

diversion,’ . . . [Penal Code] section 1001.36 is thus more specific than Vehicle Code

section 23640, which precludes diversion for all defendants charged with a DUI. [¶] On

the other hand, it could be argued that Vehicle Code section 23640 is the more specific

statute because it only deals with DUI offenses.”22

intent in this case. As we have stressed, the Legisl ature manifested its intent not to make

misdemeanor or felony DUI defendants eligible for pretrial mental health diversion,

when, during its 2017 to 2018 legislative session, it enacted an express exception to

Vehicle Code section 23640, making misdemeanor DUI defendants eligible for military

diversion (Pen. Code, § 1001.80, subd. ( l ); Stats. 2017, ch. 17 9 § 1 (Sen. Bill 725 ),

without enacting any exception to Vehicle Code section 23640, for purposes of mental

health diversion. (Pen. Code, § 1001.36; Stats 2018, ch. 34, §§ 24, 37; Stats 2018, ch.

1001, § 1.)

D

. Public Policy Considerations Do Not Favor Moore’s Argument

Moore argues that public policy considerations favor making all DUI defendants

eligible for pretrial mental health diversion. When the plain meaning of the statutory text

is insufficient to resolve the question of its interpretation, we may consider, “the impact

of an interpretation on public policy, for ‘[w]here uncertainty exists consideration should

be given to the consequences that wi ll flow from a particular interpretation.’ [Citation.]”

( Mejia v. Reed (2003) 31 Cal.4th 657, 663.)

As Moore points out, one of the stated purposes of Penal Code section 1001.36 is

to promote, “increased diversion of individuals with mental disorders t o mitigate the

individuals’ entry and reentry into the criminal justice system while protecting public

safety.” (Pen. Code, § 1001.35, subd. (a).) Moore argues that, “the policy of increasing

diversion is best served” if DUI defendants who suffer from qu alifying mental health

disorders are eligible for pretrial mental health diversion. Although this may be so, it is23

for the Legislature to strike the proper balance between protecting public safety and

mitigating the entry and reentry into the criminal jus tice system of individuals with

mental disorders. The Legislature has struck this balance by declining to make DUI

defendants eligible for pretrial mental health diversion. DUI defendants remain ineligible

for pretrial mental health diversion under Vehic le Code section 23640.

E. Assembly Bill No. 3234 (2019

- 2020 Reg. Sess.)

Lastly, Moore relies on Assembly Bill No. 3234 (2019

- 2020 Reg. Ses.) (Assembly

Bill 3234) which enacted a new diversion program for defendants charged with

misdemeanors. (Stats. 202 0, ch. 334, § 1.) 11 Effective January 1, 2021, Assembly Bill

3234 adds sections 1001.95 through 1001.97 to the Penal Code. (Stats. 202, ch. 334, § 1;

s ee Cal. Const., art. IV, 8, subd. (c).)

As Moore points out, several misdemeanor offenses will be exp ressly excluded

from eligibility under the new misdemeanor diversion program (§ 1001.95, subd. (e) ) , but

misdemeanor DUI offenses are not expressly excluded

. The legislative history of

Assembly Bill 3234 also contains no references to misdemeanor DUI offenses or to

Vehicle Code section 23640. And, when he signed Assembly Bill 3234 on September

30, 2019, Governor Newsom noted in his signing statement that he was “concerned that

the crime of driving under the influence was not excluded f rom the misdemeanor

11 At Moore’s request, we take judicial notice of Assembly Bill 3234, several

interim drafts of the bill, several legislative analyses of the bill and the governor’s signing

statement for the bi ll. (Evid. Code, §§ 452, subds. (b), (c), 459, subd. (a).)24

diversion program,” and said he would “seek to expeditiously remedy this issue with the

Legislature in the next legislative session.” 12

Moore argues that the Legislature ’s failure to exclude misdemeanor DUI offenses

from the new misdeme anor program (§ § 1001.95

- 1001.97) shows that it intended to

include them. (§ 1001.95, subd. (e).) Likewise, he claims that the Legislature’s failure to

exclude misdemeanor and felony DUI offenses from eligibility for pretrial mental health

diversion (§ 1 001.36 , subd. (b)(2) ) shows that it intended to include them

. But w hether

misdemeanor DUI offenses are eligible for diver sion under new sections 1001.95 to

1001.97 is not before us , and even if they are, “it does not follow that [misdemeanor and

felony ] D UI offenses are [] eligible for mental health diversion” under section 1001.36.

( Tellez

, supra

, 56 Cal.App.5th at p. 450.) For the reasons explained, DUI offenses are

not eligible for diversion under section 1001.36.

V. DISPOSITION

Moore’s petition for a writ of mandate directing the superior court to reverse its

November 8, 2019 order denying Moore’s motion for a hearing to determine whether

12 Moore acknowledges that the governor’s signing statement “ is not binding

authority ” ( R.R. v. Superior Court (2009) 180 Cal.App.4th 185, 201 [“Nor are the

statements by the Governor binding, since the interpretation of a statue is a judicial

function”]) and “may not even be a reliable indicator of legislative intent.” ( Coastside

Fishing Club v. California Res ources Agency (2008) 158 Cal.App.4th 1183, 1196, fn. 7

[“We do not think a Governor’s post hoc signing statement is ordinarily a reliable

indication of legislative intent ”]. ) But, he argues, “in this case the signing statement is

relevant to show the Governor reasonably presumes diversionary statutes are applicable

to defendants who commi t DUI offenses where the statutes indicate that only expressly

listed offense s are disqualifying and DUIs are not included in the list.” In any event, the

Governor’s presumption concerning the scope of Assembly Bill 3234 is irrelevant to

whether DUI offen ses are eligible for diversion under section 1001.36.25

Moore qualifies for pretrial mental health diversion (Pen. Code, § 1001.36), is denied.

The order staying the t rial court proceedings in Moore’s case is dissolved.

CERTIFIED FOR PUBLICATION

FIELDS

J.

We concur:

SLOUGH

Acting P. J.

MENETREZ

J.