23640 (formerly section 23202), enacted at that time, provided:
"In any case in which a person is charged with a violation of Section 23152 or 23153, prior to acquittal or conviction, the court shall neither suspend nor stay the proceedings for the purpose of allowing the accused person to attend or participate, nor shall the court consider dismissal of or entertain a motion to dismiss the proceedings because the accused person attends or participates during that suspension, in any one or more education, training, or treatment programs, including, but not limited to, a driver improvement program, a treatment program for persons who are habitual users of alcohol or other alcoholism program, a program designed to offer alcohol services to problem drinkers, an alcohol or drug education program, or a treatment program for persons who are habitual users of drugs or other drug-related program." (§ 23640, subd. (a), italics added.)
Section 23600 (formerly section 23206) imposes a similar postconviction restraint
and "provides that no person convicted of a [section 23152 or 23153] offense may be
5
absolved from spending the minimum time in confinement." (Duncan, supra, at p. 1628;
§ 23600, subd. (c).)2 "The unambiguous intent of [sections 23640 and 23600] is to
prohibit pre- or postconviction stays or suspensions of proceedings to allow a defendant
charged with driving under the influence to be diverted into a treatment program and
avoid spending the statutorily mandated minimum time in confinement or paying the
statutorily imposed minimum fine upon conviction." (People v. Darnell (1990) 224
Cal.App.3d 806, 810.)
III. Military Diversion Statute
In 2014, the Legislature proposed Senate Bill No. 1227 to add the military
diversion statute to the Penal Code. The purpose of the original version of the bill was to
"create a diversion program for veterans who commit misdemeanors or jail felonies and
who are suffering from service-related trauma." (Sen. Com. on Public Safety, Rep. on
Sen. Bill No. 1227 (2013-2014 Reg. Sess.) as introduced Feb. 20, 2014.) According to
the bill's author, many of California's two million military veterans suffer from service
related trauma and "some veterans find themselves entangled in the criminal justice
system." (Sen. Com. on Public Safety, Analysis of Sen. Bill No. 1227 (2013-2014 Reg.
Session) as introduced Feb. 20, 2014.) The author noted the well-established benefits of
diversion programs, including reducing recidivism and incarceration costs. (Ibid.)
2 All further references to sections 23202 and 23206 are to the renumbered sections 23640 and 23600, respectively. (See Legis. Counsel's Dig., Sen. Bill No. 1186, 6 Stats. 1998 (1997-1998 Reg. Sess.) Summary Dig., p. 43 [Effective July 1, 1999, Sen. Bill No. 1186 "reorganize[d] specified provisions relating to … driving while under the influence offenses without making any substantive changes to those provisions."].) 6
The bill set forth that existing law provides for "deferred entry of judgment for
specified drug offenses" (Pen. Code, § 1000 et seq.), "permits a court to create a 'Back on
Track' deferred entry of judgment reentry program for first time non-violent drug
offenders" (Pen. Code, § 100.8 et seq.), "provides for diversion of non-DUI misdemeanor
offenses" (Pen. Code, § 1001.50 et seq.), and "provides for diversion of misdemeanors
when the defendant is a person with cognitive disabilities" (Pen. Code, § 1001.20 et seq.).
Senate Bill No. 1227, in turn, authorized the court to place an eligible current or former
member of the military in a diversion program and to postpone prosecution, temporarily
or permanently, of a misdemeanor or jail felony. (Sen. Com. on Public Safety, Analysis
of Sen. Bill No. 1227 (2013-2014 Reg. Sess.) as introduced Feb. 20, 2014.) If the court
found the defendant was not performing satisfactorily in the program or not benefiting
from the treatment and services provided under the program, it could end diversion and
resume criminal proceedings. (Ibid.)
The California District Attorneys Association opposed the bill unless it was
amended to exclude jail felonies from eligibility for the diversion program. (Sen. Com.
on Public Safety, Analysis of Sen. Bill No. 1227 (2013-2014 Reg. Sess.) as introduced
Feb. 20, 2014.) In response, the bill was amended to exclude jail felonies and apply to
misdemeanors only. (Assem. Com. on Appropriations, Rep. on Sen. Bill No. 1227
(2013-2014 Reg. Sess.) as amended Aug. 4, 2014.)
The Governor approved the amended bill in September 2014, and the military
diversion statute became effective January 1, 2015. (Stats. 2014, ch. 658, § 1.) As
enacted, the military diversion statute "appl[ies] whenever a case is before a court on an
7
accusatory pleading alleging the commission of a misdemeanor offense," and the
defendant is or was a member of the United States military suffering from service-related
trauma, substance abuse, or mental health problems. (Pen. Code, § 1001.80, subd. (a)(1)-
(2).)
IV. Conflict Between the Military Diversion Statute and Vehicle Code
A. General Legal Principles
"Statutory construction is a question of law we decide de novo. [Citation.] Our
primary objective in interpreting a statute is to determine and give effect to the
underlying 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 instructive legislative
history." (City of Brentwood v. Central Valley Regional Water Quality Control Bd.
(2004) 123 Cal.App.4th 714, 722.)
" ' "A court must, where reasonably possible, harmonize statutes, reconcile
seeming inconsistencies in them, and construe them to give force and effect to all of their
provisions. [Citations.] This rule applies although one of the statutes involved deals
generally with a subject and another relates specifically to particular aspects of the
subject." [Citation.] Thus, when " 'two codes are to be construed, they "must be
regarded as blending into each other and forming a single statute." [Citation.]
8
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.)
B. Analysis
This case requires us to resolve an apparent conflict between the military diversion
statute and section 23640. The People argue section 23640 prohibits diversion for all
driving under the influence offenses and the military diversion statute does not create an
exception to that rule. VanVleck and Kluesner argue the military diversion statute
supersedes section 23640's prohibition on diversion. The parties each rely on the plain
meaning of the military diversion statute, legislative history, and rules of statutory
interpretation, but reach different results. We reconcile the conflict and conclude the
military diversion statute does not create an exception to section 23640.
1. Plain Language and Legislative History
Read on its own, the military diversion statute applies "whenever a case is before a
court on an accusatory pleading alleging the commission of a misdemeanor offense."
(Pen. Code, § 1001.80, subd. (a), italics added.) However, that statute conflicts with the
plain language of section 23640, subdivision (a), which prohibits diversion "[i]n any case
in which a person is charged with a violation of Section 23152 or 23153," pertaining to
driving under the influence offenses.
VanVleck and Kluesner argue the legislative history of the military diversion
statute supports their position that it applies to all misdemeanors because opponents of
Senate Bill No. 1227 raised an objection to the inclusion of jail felonies, but not to any
9
misdemeanor covered by the statute. Further, in response to the objection, the
Legislature amended Senate Bill No. 1227 to exclude jail felonies and "did not place any
restrictions on which misdemeanor charges qualify for diversion." While the Legislature
did not specifically include or exclude driving under the influence misdemeanors from
military diversion, we presume the Legislature was aware of preexisting legal authority
and decisional interpretations, and enacted the military diversion statute with that in
mind. (People v. Hernandez (1988) 46 Cal.3d 194, 201.)
At the time the Legislature enacted the military diversion statute, the court had
previously considered a similar conflict between section 23640 and Penal Code section
1001.21, providing for diversion for defendants with cognitive developmental disabilities.
(People v. Weatherill (1989) 215 Cal.App.3d 1569 (Weatherill).) Like the statute at issue
in this case, the diversion statute for defendants with cognitive developmental disabilities
stated it applied to any eligible defendant charged with a misdemeanor offense. (Pen.
Code, § 1001.21, subd. (b).) In Weatherill, the court looked at the plain language of
section 23640 and found its "apparent meaning is that all driving-under-the-influence
defendants, without exception, shall have their guilt or innocence determined without
delay and without diversion and those found guilty shall be timely sentenced."
(Weatherill, supra, at p. 1573.) Based on the defendant's argument that the Legislature
intended to allow diversion for persons with cognitive developmental disabilities, the
court engaged in a detailed discussion of section 23640's legislative history. (Weatherill,
at pp. 1574-1577.)
10
The Weatherill court noted the public strongly supported section 23640 and the
" '[c]elerity and certainty of punishment' " it provided. (Weatherill, supra, 215
Cal.App.3d at p. 1575.) At the time the Legislature proposed section 23640, pretrial
diversion programs had proliferated. (Id. at p. 1576.) "It was to bar such diverse and
voluminous diversion programs that section [23640] was included in [Assembly Bill No.]
541." (Ibid.) Accordingly, in enacting section 23640, the Legislature "did not overlook a
major loophole to certainty of punishment, viz., pretrial diversion." (Id. at p. 1575.) The
Weatherill court concluded the legislative history of section 23640 supported the statute's
plain meaning that diversion did not apply, without exception, to defendants charged with
driving under the influence offenses. (Id. at p. 1577.)
In this case, the plain language of military diversion statute does not state whether
it creates an exception to section 23640 and authorizes diversion for defendants charged
with driving under the influence offenses. Further, the legislative history of that statute
does not mention or resolve the conflict with section 23640's ban on diversion for driving
under the influence offenses. However, we presume the Legislature was aware of the
Weatherill decision and its interpretation of section 23640 when it enacted the military
diversion statute. (People v. Hernandez, supra, 46 Cal.3d at p. 201.) Had the Legislature
intended to depart from the conclusion in Weatherill and create an exception to section
23640, it could have easily done so by stating the military diversion statute authorizes
pretrial diversion for defendants charged with violations of sections 23152 and 23153.
11
2. Application of Rules of Statutory Construction
While the parties generally agree on the rules of statutory construction, they
disagree regarding their application. VanVleck and Kluesner argue the military diversion
statute eliminated any bar on eligibility for diversion for current and former military
members charged with driving under the influence offenses because that statute was
enacted after section 23640. They also argue the military diversion statute prevails over
section 23640 because it is more specific in that it applies only to current and former
military members whereas section 23640 applies generally.
The People, on the other hand, contend section 23640 bars diversion because its
subject matter of driving under the influence diversion is more specific than general
misdemeanor diversion under the military diversion statute. Further, the People argue,
the rule that specific statutes control over general ones takes precedence over the rule that
later-enacted statutes control over older ones. We agree with the People.
" 'If conflicting statutes cannot be reconciled, later enactments supersede earlier
ones [citation], and more specific provisions take precedence over more general ones
[citation].' [Citation.] But when these two rules are in conflict, the rule that specific
provisions take precedence over more general ones trumps the rule that later-enacted
statutes have precedence." (State Dept. of Public Health v. Superior Court, supra, 60
Cal.4th at p. 960; see Miller v. Superior Court (1999) 21 Cal.4th 883, 895.)
As the court explained in Weatherill, "[t]he referent of 'general' and 'specific' is
subject matter." (Weatherill, supra, 215 Cal.App.3d at p. 1578.) While VanVleck and
Kluesner urge us to look at the classes of people covered by the two statutes at issue to
12
find the military diversion statute is more specific, we must look to the subject matter of
the statutes. Like the cognitive developmental disability diversion statute at issue in
Weatherill, the subject matter of the military diversion statute in this case is misdemeanor
diversion. (Ibid.) "By contrast, the subject matter of section [23640] is driving-under-
the-influence-diversion. It applies to a single type of conduct and comprehends only two
offenses, sections 23152 and 23153. Section [23640] is a specific statute and controls, to
the extent of their inconsistency, the general statute, Penal Code section [1001.80]."
(Ibid.)
Although the military diversion statute was enacted 23 years after section 23640,
the rule that the more specific statute controls over a general one prevails over the rule
that the later-enacted statute controls. Thus, pursuant to section 23640, current and
former military members charged with driving under the influence offenses in violation
of section 23152 and 23153 are ineligible for diversion.3
3. Other Misdemeanor Diversion Statutes
In its amicus brief, the San Diego County District Attorney notes other defendants
contending the military diversion statute applies to driving under the influences offenses
have argued if the Legislature intended to deny them diversion, it would have specifically
denied that right within the military diversion statute, just as it did in Penal Code sections
3 While we believe that the statutory analysis compels this result, if the Legislature intended for the military diversion statute to apply to driving under the influence offenses, it should make that intention clear by amending the statute to expressly allow for diversion in those cases. (See Williams v. Los Angeles Metro. Transit Auth. (1968) 68 Cal.2d 599, 611 ["If the Legislature in its wisdom believes the law should be otherwise, it may make the change by express statutory amendment."].) 13
1001.2, subdivision (a), and 1001.51, subdivision (b), pertaining to misdemeanor
diversion. In order to address this argument, we must look at the history of Penal Code
sections 1001.2 and 1001.51.
Penal Code sections 1001.2 and 1001.51 were enacted to negate an earlier opinion
from the Attorney General's Office that concluded the Legislature had preempted the
field of diversion, leaving no authority to local jurisdictions to create diversion programs.
(Davis v. Municipal Court (1988) 46 Cal.3d 64, 74-75 (Davis).) The Legislature wanted
to make clear it did not intend to preempt the pretrial diversion field (Pen. Code, § 1001)
and provided a " 'model' misdemeanor diversion program with legislatively prescribed
at p. 75.) In enacting these statutes, the Legislature also specifically confirmed
misdemeanor diversion does not apply to defendants charged with driving under the
influence offenses. (Pen. Code, §§ 1001.2, subd. (a), 1001.51, subd. (b).) The purpose of
doing so was "to avoid the risk of implied repeal" of section 23640. (Weatherill, supra,
215 Cal.App.3d at pp. 1579-1580.)
As we previously explained, when the Legislature created the military diversion
statute, it was aware of the Weatherill decision. Like the military diversion statute, the
diversion statute for defendants with cognitive developmental disabilities at issue in
Weatherill did not specifically prohibit diversion for driving under the influence offenses.
(Pen. Code, § 1001.21.) Regardless of the specific exemptions for driving under the
influence offenses in Penal Code sections 1001.2 and 1001.51 and failure of the
Legislature to include similar language in the cognitive developmental disability
14
diversion statute, the Weatherill court concluded section 23640 bars diversion for all
driving under the influence offenses. (Weatherill, supra, 215 Cal.App.3d at pp. 1579-
1580.)
Consistent with Weatherill, we conclude the Legislature's specific exclusion of
driving under the influence offenses in Penal Code sections 1001.2 and 1001.51, but not
in the military diversion statute, does not support a conclusion the Legislature intended
for the military diversion statute to supersede section 23640's bar on diversion. Given the
Weatherill decision, the Legislature could have specifically permitted military diversion
for driving under the influence offenses had it intended to do so. Given that it did not,
section 23640 continues to bar diversion for driving under the influence charges.
DISPOSITION
The orders are reversed.
MCCONNELL, P. J.
WE CONCUR:
HUFFMAN, J.
HALLER, J.
15
AI Brief
AI-generated · verify before citing
Holding. Vehicle Code section 23640 prohibits the application of the military diversion statute (Penal Code section 1001.80) to defendants charged with driving under the influence offenses. The specific prohibition against diversion for DUI offenses in the Vehicle Code takes precedence over the general misdemeanor diversion provisions of the military diversion statute.
Issues
Does Vehicle Code section 23640 prohibit military diversion under Penal Code section 1001.80 for defendants charged with driving under the influence?
Does the military diversion statute create an exception to the prohibition on diversion for DUI offenses found in Vehicle Code section 23640?
Disposition. Reversed
Quotations verified verbatim against the opinion
“We conclude military diversion is not available for defendants charged with driving under the influence offenses in violation of sections 23152 and 23153.”
“Section [23640] is a specific statute and controls, to the extent of their inconsistency, the general statute, Penal Code section [1001.80].”
“Thus, pursuant to section 23640, current and former military members charged with driving under the influence offenses in violation of section 23152 and 23153 are ineligible for diversion.”