P. v. Super. Ct.

Filed 1/24/17 P. v. Superior Court CA2/4
Reposted to correct file date
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Petitioner,
v.
THE SUPERIOR COURT OF
LOS ANGELES COUNTY,
APPELLATE DIVISION,
Respondent,
JOHN KARL COOK,
Real Party in Interest.
B277626
(Los Angeles County
Super. Ct. No. 6TR01907)
(Appellate Div. Case No.
BS162640)
ORIGINAL PROCEEDINGS in mandate, George F. Bird,
Judge. Petition denied.
Jackie Lacey, District Attorney, Steven Katz, Head Deputy
District Attorney, June Chung, Deputy District Attorney, for
Petitioner.
No appearance for Respondent.

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Law Offices of Myles L. Berman, Scott D. Karpf; Law
Offices of Dennis A. Fischer and Dennis A. Fischer, for Real
Party in Interest.
_____________________________
After John Karl Cook was charged with misdemeanor
driving under the influence of alcohol (DUI) and related Vehicle
Code violations (Veh. Code, §§ 23152, subds. (a)-(b), 20002, subd.
(a)), the trial court granted his request to participate in a military
diversion program pursuant to Penal Code section 1001.80.1
The
appellate division of the Los Angeles Superior Court granted the
People’s petition for writ of mandate, and directed the trial court
to vacate its order granting diversion on the ground that Cook
was statutorily barred from pretrial diversion by Vehicle Code
section 23640. We transferred the case to this court pursuant to
California Rules of Court, rule 8.1002. We conclude that Vehicle
Code section 23640 does not bar Cook from participating in the
section 1001.80 military diversion program.
FACTUAL AND PROCEDURAL SUMMARY
On April 4, 2016, Cook was charged in a misdemeanor
complaint with three offenses: driving under the influence of
alcohol (Veh. Code, § 23152, subd. (a)), driving while having a
measurable blood alcohol content of 0.08 percent or more (Veh.
Code, § 23152, subd. (b)), and hit-and-run driving resulting in
property damage (Veh. Code, § 20002, subd. (a)). Cook requested
permission from the trial court to participate in a military
diversion program pursuant to section 1001.80, which applies to
1
Further undesignated statutory references are to the Penal
Code.

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misdemeanor charges if the defendant was, or currently is, a
member of the United States military and suffers from sexual
trauma, traumatic brain injury, posttraumatic stress disorder
(PTSD), substance abuse, or mental health problems as a result
of his or her military service.2
On May 13, 2016, the trial court
granted Cook’s request to take advantage of the military
diversion program.
On June 3, 2016, the People filed a petition for writ of
mandate seeking to reverse the trial court order on the ground
that Cook was statutorily barred from military diversion by
Vehicle Code section 23640, which prohibits pretrial diversion in
any case where a defendant is charged with violating Vehicle
Code section 23152 or 23153.3
On August 9, 2016, the appellate
2 Penal Code section 1001.80 provides in pertinent part:
“(a) This chapter shall apply whenever a case is before a court on
an accusatory pleading alleging the commission of a
misdemeanor offense, and both of the following apply to the
defendant: [¶] (1) The defendant was, or currently is, a member
of the United States military. [¶] (2) The defendant may be
suffering from sexual trauma, traumatic brain injury, post-
traumatic stress disorder, substance abuse, or mental health
problems as a result of his or her military service . . . . [¶] (b) If
the court determines that a defendant charged with an applicable
offense under this chapter is a person described in subdivision
(a), the court, with the consent of the defendant and a waiver of
the defendant’s speedy trial right, may place the defendant in a
pretrial diversion program, as defined in subdivision (k). [¶]
(c) . . . If the defendant has performed satisfactorily during the
period of diversion, at the end of the period of diversion, the
criminal charges shall be dismissed.”
3
Vehicle Code section 23640 provides in pertinent part:
“(a) In any case in which a person is charged with a violation of

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division issued a peremptory writ of mandate directing the trial
court to vacate its order granting diversion and to enter a new
order denying diversion.
On August 11, 2016, Division One of the Fourth Appellate
District held that Vehicle Code section 23640 prohibits diversion
pursuant to section 1001.80 for defendants charged with DUI
offenses. (People v. VanVleck (2016) 2 Cal.App.5th 355, review
granted Nov. 16, 2016, S237219.) On September 1, 2016, this
court reached the opposite conclusion in Hopkins v. Superior
Court (2016) 2 Cal.App.5th 1275, review granted Nov. 16, 2016,
S237734. Based on these conflicting decisions, Cook filed a
petition to transfer the case from the appellate division to this
court under rule 8.1006 of the California Rules of Court. On
September 29, 2016, pursuant to rule 8.1002 of the California
Rules of Court, we ordered the case transferred from the
appellate division to this court in order to secure uniformity of
decision and to settle important questions of law. (See, e.g.,
Borsuk v. Appellate Division of the Superior Court (2015) 242
Cal.App.4th 607, 610-611 [ordering transfer of petition for writ 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.”

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mandate from the appellate division of the superior court to the
court of appeal].)
DISCUSSION
The sole issue in this case is whether Vehicle Code section
23640 precludes diversion under section 1001.80 for defendants
charged with misdemeanor DUI offenses. This requires us to
resolve an apparent conflict between the two statutes. In 2014,
the California Legislature enacted section 1001.80, which
authorizes a trial court to grant pretrial diversion to eligible
military personnel and veterans charged with any misdemeanor
offense. The provision states: “This chapter shall apply whenever
a case is before a court on an accusatory pleading alleging the
commission of a misdemeanor offense,” and the defendant is a
former or current member of the military who may be suffering
from service-related trauma, PTSD, substance abuse, or mental
health issues. (§ 1001.80, subd. (a), italics added.) Vehicle Code
section 23640, on the other hand, states that a court shall not
grant pretrial diversion “[i]n any case in which a person is
charged with a violation of Section 23152 or 23153 [DUI
offenses].” (Veh. Code, § 23640, subd. (a), italics added.)
The California Supreme Court has reiterated that courts
faced with this kind of apparent conflict must first attempt to
reconcile seeming inconsistencies and harmonize the statutes
where reasonably possible. (State Dept. of Public Health v.
Superior Court (2015) 60 Cal.4th 940, 955 (State Dept.).) Because
we find, and the parties agree, that Vehicle Code section 23640
and section 1001.80 directly conflict and cannot be reconciled, we
turn to the rules of construction that apply when courts are
confronted with two irreconcilable statutes. “‘If conflicting

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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., at p. 960.)
The parties disagree on the proper interpretation of these
two statutes. The People argue that Vehicle Code section 23640
prohibits diversion for anyone charged with a DUI offense; and
that section 1001.80 does not carve out an exception to this
general rule. Cook argues that the Legislature, by enacting
section 1001.80, impliedly repealed Vehicle Code section 23640 to
the extent it precludes pretrial diversion for qualifying
defendants.
Relying on People v. Weatherill (1989) 215 Cal.App.3d 1569
(Weatherill), the People contend Vehicle Code section 23640 is a
specific statute and section 1001.80 is a general statute; therefore
Vehicle Code section 23640 controls. In Weatherill, Division
Seven of this district held that former Vehicle Code section 23202
(now Vehicle Code section 23640) prohibited pretrial diversion
even though the defendant was eligible under section 1001.21, a
separate diversion program for individuals with mental
disabilities. (Weatherill, at p. 1578.) The majority opinion
reasoned: “The referent of ‘general’ and ‘specific’ is subject
matter. Thus, in the instant case, the subject matter
of . . . section 1001.21 is misdemeanor diversion. That section,
applying as it does to all misdemeanors . . . comprehends
hundreds of misdemeanors in scores of codes and is therefore a
general statute. [¶] By contrast, the subject matter of [former]
section 23202 is driving-under-the-influence diversion. It applies

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to a single type of conduct and comprehends only two offenses,
sections 23152 and 23153. [Former s]ection 23202 is a specific
statute and controls, to the extent of their inconsistency, the
general statute . . . section 1001.21.” (Id. at p. 1578.)
The People contend that the majority’s analysis in
Weatherill should govern in this case. We disagree. The rule
that a specific statute controls over a more general statute has
limited utility where, as here, the specificity or generality of the
respective statutes depends on how the subject matter of each
statute is framed. On the one hand, the subject matter of section
1001.80 can be described as a specific diversion program for
qualifying defendants who are or were members of the military.
(§ 1001.80, subd. (a).) Framed in this way, section 1001.80 is
more specific than Vehicle Code section 23640, which prohibits
diversion for all defendants charged with DUI offenses. On the
other hand, if the subject matter of section 1001.80 is framed by
reference to the charged offense, Vehicle Code section 23640 is
more specific because it applies solely to DUI offenses whereas
section 1001.80 applies to all misdemeanors. Dissenting in
Weatherill, Justice Johnson similarly questioned the application
of the general-versus-specific rule: “[i]t can be contended just as
forcefully that [former] Vehicle Code section 23202 contains a
general provision prohibiting diversion for any defendant in
drunk driving cases while . . . section 1001.20 et seq. focus
specifically on mentally [disabled] defendants and authorize
diversion for this specific class of defendants no matter what
misdemeanor they are charged with.” (Weatherill, supra,
215 Cal.App.3d at p. 1582 (dis. opn. of Johnson, J.).)
Because the general-versus-specific rule of statutory
construction does not provide useful guidance as to which

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provision controls in this case, we look to the rule that later
statutory enactments supersede earlier ones. (See State Dept.,
supra, 60 Cal.4th at p. 960.) There is no dispute that section
1001.80 is the later enactment. Section 1001.80 was enacted in
2014 (Stats. 2014, ch. 658, § 1) while Vehicle Code section 23640
was enacted in 1998 (Stats. 1998, ch. 118, § 84), and its
predecessor, former Vehicle Code section 23202, was enacted in
1981 (see Weatherill, supra, 215 Cal.App.3d at p. 1579).
Accordingly, we conclude section 1001.80 supersedes Vehicle
Code section 23640 to the extent that the later provision
prohibits diversion for defendants who qualify for the program
under section 1001.80, subdivision (a).
The People maintain there is nothing in the language of
section 1001.80 nor the statute’s legislative history to suggest the
Legislature intended to carve out an exception to Vehicle Code
section 23640. They note the presumption that the Legislature is
aware of statutes and prior judicial decisions, and enacts new
statutes in light of existing law. (See McLaughlin v. State Bd. of
Education (1999) 75 Cal.App.4th 196, 212 (McLaughlin).
Accordingly, the Legislature is deemed to be aware of the
interpretation of Vehicle Code section 23640’s predecessor in
Weatherill, and thus there was no need for the Legislature to
specifically exclude DUI offenses from the misdemeanors subject
to diversion under section 1001.80.
We do not find this argument persuasive. The presumption
that the Legislature enacts new statutes in light of prior judicial
decisions is not conclusive when the new statute directly conflicts
with existing law. (See, e.g., McLaughlin, supra, 75 Cal.App.4th
at p. 213 [“unlike cases where lawmakers can be presumed to
borrow from existing law to supply omitted meaning to later

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enactments, the presumption that one legislates with full
knowledge of existing law is not conclusive, and not even helpful,
in cases where a later enactment directly conflicts with an earlier
law”].) Further, “‘“[t]he presumption of legislative acquiescence
in prior judicial decisions is not conclusive in determining
legislative intent. . . . ‘Legislative silence after a court has
construed a statute gives rise at most to an arguable inference of
acquiescence or passive approval. . . . In the area of statutory
construction, an examination of what the Legislature has done
(as opposed to what it has left undone) is generally the more
fruitful inquiry’ . . . .”’” (People v. Morante (1999) 20 Cal.4th 403,
429.)
The legislative history of section 1001.80 supports our
conclusion that the military diversion program was intended to
apply to all misdemeanors, including DUI offenses. The Senate
Committee on Public Safety analysis of Senate Bill No. 1227,
which enacted section 1001.80, explained the importance of
establishing a diversion program for veterans. (Sen. Com. on
Public Safety, Analysis of Sen. Bill No. 1227 (2013-2014 Reg.
Sess.) Apr. 8, 2014, p. 4 (Analysis).) The bill analysis also
includes a section summarizing other diversion programs under
existing law, noting that “[e]xisting law provides for diversion of
non-DUI misdemeanor offenses.” (Analysis, at p. 2, italics
added.) In contrast, the analysis makes no reference to any
exemption for DUI offenses when describing the new military
diversion program, noting that the statute would apply to all
qualifying defendants who are “accused of a misdemeanor or jail
felony.”4
(Ibid.)
4
As introduced, Senate Bill No. 1227 applied to
misdemeanors and felonies punishable under section 1170,

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The absence of an express exemption for DUI offenses in
section 1001.80 is significant because, by contrast, other
diversion programs specifically prohibit diversion for DUI
offenses. As the majority in Weatherill noted, after former
Vehicle Code section 23202 was enacted, “when the Legislature
enacted or reenacted diversion programs, e.g., Penal Code section
1001 et seq. (Stats. 1982, ch. 42) and Penal Code section 1001.50
et seq. (Stats. 1982, ch. 1251), in order to avoid the risk of implied
repeal, it specifically exempted all driving-under-the-influence
charges.” (Weatherill, supra, 215 Cal.App.3d at pp. 1579-1580.)
Similarly, the Los Angeles County Deferral of Sentencing Pilot
Program that took effect on January 1, 2015 expressly excludes
defendants charged with DUI offenses from deferral eligibility.
(§ 1001.98, subd. (h)(3).) The fact that the Legislature did not
expressly exclude DUI offenses in section 1001.80 supports the
inference that it did not intend Vehicle Code section 23640 to
preclude diversion in misdemeanor DUI cases involving military
veterans.
We conclude that, in enacting section 1001.80, the
Legislature impliedly repealed Vehicle Code section 23640 to the
extent it precludes pretrial diversion for qualifying defendants
under section 1001.80, subdivision (a). Accordingly, we find that
Vehicle Code section 23640 does not bar Cook from participating
in the section 1001.80 military diversion program, and therefore
the appellate division erred in granting the People’s petition.
subdivision (h). (Sen. Bill No. 1227 (2013-2014 Reg. Sess.), as
introduced Feb. 20, 2014.) It was amended to exclude felonies.
(Assem. Amend. to Sen. Bill No. 1227 (2013-2014 Reg. Sess.) Aug.
4, 2014.)

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DISPOSITION
The petition for writ of mandate is denied.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
EPSTEIN, P. J.
We concur:
WILLHITE, J.
MANELLA, J.

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