Metropolitan News-Enterprise


Tuesday, August 3, 2021


Page 1


Los Angeles Superior Court Appellate Division:

Diversion Is Precluded in DUI/Alcohol Cases


By a MetNews Staff Writer


The misdemeanor diversion statute that went into effect on Jan. 1 does not apply to a person charged with driving under the influence of alcohol, the Appellate Division of the Los Angeles Superior Court has held, countermanding a trial court judge and rebuffing a contrary notion expressed by Gov. Gavin Newsom.

Judge Alex Ricciardulli authored the opinion which was filed July 14, reviewed by Div. One of this district’s Court of Appeal which on July 21 determined that transfer of the case to itself was unnecessary, and made public yesterday.

The misdemeanor diversion statute, Penal Code §1001.95, permits a judge to put the prosecution of a misdemeanor on hold for up to two years and to dismiss the case if the defendant fulfills all terms and conditions. Los Angeles Superior Court Judge David K. Reinert proceeded under that statute in granting diversion to Beau Espeso, charged with driving under the alcohol, in violation of Vehicle Code §23152(a) and driving with a blood-alcohol content of 0.08 percent or higher, in contravention of §23152(b).

Reinert’s Order

Over the objection of the Office of Torrance City Attorney, Reinert on April 6 placed Espeso on diversion and continued the matter for two years, ordering the defendant to attend Alcoholics Anonymous sessions and make restitution to the owner of a wall he knocked down when his vehicle crashed into it.

The prosecution sought a writ of mandate directing that the order for diversion be vacated. The Appellate Department responded by issuing a Palma notice indicating that was inclined to grant a writ in the first instance unless Reinert reconsidered his order and denied diversion; Reinert declined; the writ was issued.

Sec. 1001.95 does not apply to driving under the influence of alcohol, Ricciardulli declared in his opinion. He pointed to Vehicle Code §23640(a) which specifies that where a violation of §23152 (or §23153) is alleged, “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....”

Newsom’s View

Newsom on Sept. 30 signed into law Assembly Bill 3234, creating the diversion statute. However, he said in a message to the Assembly:

“…I am concerned that the crime of driving under the influence was not excluded from the misdemeanor diversion program. I will seek to expeditiously remedy this issue with the Legislature in the next legislative session.”

Ricciardulli wrote:

“Even if the Governor’s understanding was that diversion could be granted for driving under the influence cases under the bill he signed, we agree with petitioner the statement does not shed light on whether the Legislature intended to allow diversion in driving under the influence cases….

“Likewise, we find the fact that a bill is currently pending in the Legislature barring courts from granting diversion in driving under the influence cases…does not reflect on what the Legislature intended in 2020 when it approved legislation failing to specify one way or another whether diversion could be granted in these types of cases.”

Repeal by Implication

Responding the contention put forth by Espeso’s attorneys that the Legislature, in enacting §1001.95, overrode §23640(a), Ricciardulli recited that the presumption is against a repeal by implication.

The lawyers noted that earlier legislation creating a pilot diversion in Los Angeles expressly exempted driving-under-the-influence cases. By not including them in the list in §1001.95 of offenses which, where alleged, preclude diversion, the Legislature evinced a decision to permit diversion, they argued.

“Yet, even if the pilot was Penal Code section 1001.95’s predecessor, failing to state in section 1001.95 that driving under the influence is excluded does not show an unequivocal intent to allow diversion in driving under the influence cases,” Ricciardulli said. “Real party’s argument is speculative, as the Legislature could have just as easily come to the realization that the exclusionary language was unnecessary in light of Vehicle Code section 23640.”

Reconciling Statutes

He went on to say:

“In sum, the Legislature approved a bill in enacting section 1001.95 which was silent on whether misdemeanor diversion can be granted in driving under the influence cases. Against this backdrop. Vehicle Code section 23640, subdivision (a), in crystal clear language, bars diversion in such cases. We cannot discern an intent to overcome the rule that ‘[t]he law shuns repeal by implication’….We therefore give effect to both statutes, by finding a person is eligible to be considered for a grant of diversion in all cases, except the ones specifically listed in section 1001.95, subdivision (e) (cases where a person must register as a sex offender, domestic violence, and stalking), and driving under the influence cases as provided in Vehicle Code section 23640, subdivision (a).”

The case is People v. Superior Court (Espeso), BS 175803.

 Robert S. Ernenwein and Michelle A. Mathes of the Law Offices of Robert Ernenwein in Torrance represented Espeso. Torrance City Attorney Patrick Q. Sullivan and Deputy Torrance City Attorney Brandon J. Gonzaque acted for the People.

There was no appearance for the Superior Court.


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