Metropolitan News-Enterprise


Tuesday, August 17, 2021


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Riverside Appeals Division Opinion Clashes With L.A. Ruling

Courts Are Divided on Whether Misdemeanor DUI Cases Are Subject to New Diversion Statute


By a MetNews Staff Writer


A person charged with misdemeanor driving under the influence of alcohol may be granted diversion, the Riverside Superior Court’s Appellate Division has held in a 2-1, reaching a conclusion opposite that set forth in an opinion by the Los Angeles Superior Court Appellate Division.

The Riverside opinion was filed July 27 and was posted yesterday after Div. Two of the Fourth District Court of Appeal found that transfer to itself was unnecessary. It comes in three consolidated cases.

Riverside Superior Court Appellate Division Presiding Judge Sunshine S. Sykes and Judge Otis Sterling joined in a “By the Court” opinion denying a writ of mandate sought by the county’s District Attorney’s Office, while Judge Chad W. Firetag dissented.

No mention is made in the opinion of the contrary July 14 decision by the Los Angeles Superior Court’s Appellate Division, but that decision was not made public until Aug. 2.

Sykes and Sterling defined the issue as being: “[A]re defendants charged with misdemeanor driving under the influence (DUI) statutorily eligible for pretrial diversion under Penal Code section 1001.95?” They answered:

“We hold that such defendants are indeed so eligible, and deny the People’s petitions for extraordinary relief.”

Vehicle Code Section

Uncertainty arises in light of Vehicle Code §23640(a) which says that where misdemeanor drunk driving 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....”

The misdemeanor diversion statute, Penal Code §1001.95, went into effect Jan. 1. It authorizes a judge to put the prosecution of a misdemeanor on hold for up to two years and then dismiss the case where the defendant has fulfilled all terms and conditions.

Riverside Superior Court Judge Dean Benjamini applied that §1001.95 in three cases and Sykes and Sterling backed him up; Los Angeles Superior Court Judge David K. Reinert took the same stance, but the Appellate Division for this county countermanded him in an opinion by Judge Alex Ricciardulli.

Riverside’s Majority View

Sykes and Sterling wrote:

“The Legislature…unequivocally enacted section 1001.95 in order to broadly shift persons charged with misdemeanors away from traditional punishment in order to achieve better long-term outcomes. Indeed, section 1001.95 diversion represents a sea change in the law of misdemeanors…..We cannot overstate the significance of this innovation, and our construction of the statutes must respect this rather than downplay it.

“There are no reliable indicators that the Legislature that enacted that statute intended to mark misdemeanor DUIs as particularly unamenable to the rehabilitative efforts characteristic of pretrial diversion. And section 23640 still operates to exclude felony DUIs from, for example, mental health diversion….It therefore furthers the enacted polices of section 1001.95 to hold—consistent with principles of statutory construction and the other legislative history—that the Legislature intended for defendants charged with misdemeanor DUI to be eligible for section 1001.95 diversion as an exception to the prohibition embedded in section 23640. If such was not the Legislature’s intent they could and should have clearly said otherwise.”

Firetag’s Dissent

Dissenting, Firetag reasoned:

“…Vehicle Code section 23640 expressly prohibits diversion and nothing in section 1001.95 provides otherwise. Although reasonable minds could certainly differ on the interplay between sections 1001.95 and 23640, I would find that a better argument could be made that the two code sections operate in harmony with each other rather than in conflict.”

He explained:

“There are two main reasons why. The first is that there is no textual support to conclude that section 23640’s prohibition on misdemeanor DUI diversion has been supplanted by section 1001.95….

“The second reason is that other appellate courts, including our own Fourth District Court of Appeal, Division Two most recently in 2020, have analyzed similar diversion statutes and found that persons charged with DUIs are categorically exempted from receiving diversion because of section 23640.”

The case is People v. Superior Court (Diaz-Armstrong), APRI2100008.

Governor’s View

Gov. Gavin Newsom has expressed the view on Sept. 30, in signing into law the bill enacting §1001.95, that DUIs are not exempted from diversion. He said:

“…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.”

Contradicting Newsom, Ricciardulli—who saw §23640 as foreclosing application of §1001.95 to misdemeanor drunk driving—declared:

“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.”

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


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