People v. Milazo CA4/1

Filed 9/21/21 P. v. Milazo CA4/1
Opinion following transfer from Supreme Court
OPINION AFTER TRANSFER FROM THE CALIFORNIA SUPREME
COURT
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D074159
Plaintiff and Respondent,
v. (Super. Ct. No. SCE360034)
MARK MILAZO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Theodore M. Weathers, Judge. Affirmed in part; and reversed in part, with
instructions.
Aurora Elizabeth Bewicke, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters,
Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney
General, Steve Oetting and Paige B. Hazard, Deputy Attorneys General, for
Plaintiff and Respondent.
To suggest that this case has a complicated—or, as the People say, a
“convoluted”—procedural history would be an understatement. It involves
the well-meaning, but ineffective, attempts by two separate branches of the
same court to coordinate various criminal actions involving defendant Mark
Milazo. In one such branch, at least seven different judges presided over his
cases at various times. Adding to the confusion was defendant’s
representation by multiple court-appointed defense attorneys, who at times
provided incorrect information1 to the court regarding the ruling or rulings of
a judge from the same, or another, branch, in connection with the cases
pending against defendant.2
This case began in late April 2016, when charges were filed against
defendant in the East County branch of the San Diego County Superior Court
(East County), case No. SCE360034 (hereinafter, 0034), for possession of
methamphetamine by a registered sex offender. (Health & Saf. Code,
§ 11377, subd. (a); Pen. Code,3 §§ 290, subd. (c), 667, subds. (b)-(i), 1170.12 &
667, subd. (e)(2)(C)(iv).) In October 2016 defendant pled guilty in case 0034
1 There is no evidence in the record to support a finding that defense
counsel purposely provided misinformation to the court. Instead, it appears
that such misinformation likely was the result of the complex procedural
history of this case, as discussed post.
2 The reporter’s transcript in this case is comprised of the transcript of
defendant’s initial plea, the court’s revocation of probation about a year and a
half later, and his sentencing shortly thereafter, plus about 33 additional
hearings in that time-span which were included as a result of defendant’s two
motions to augment and a motion to supplement. The clerk’s transcript
likewise was the subject of a motion to augment and a motion to supplement
by defendant.
3 Unless otherwise indicated, all further statutory references are to the
Penal Code.
2
and admitted that his 1996 prior convictions for committing lewd acts with
force upon a child under the age of 14 years (§ 288, subds. (a) & (b)) qualified
as a strike conviction (§§ 667, subds. (b)-(i) & 1170.12), and that he had two
prison prior convictions (§ 667.5, subd. (b)). The East County court sentenced
defendant in case 0034 to five years in prison, the upper term of three years
plus two years for each of the one-year prison prior enhancements, but stayed
execution of the sentence pending his successful completion of three years of
probation. However, the court warned defendant that it would revoke his
probation and impose the five-year prison term if he were convicted of a
felony offense or any serious misdemeanor.
In late December 2016, new charges were filed against defendant in the
South County branch of the San Diego County Superior Court (South
County), case No. SCS291034 (hereinafter, 1034), for felony possession of a
controlled substance (methamphetamine) by a sex offender (Health & Saf.
Code, § 11377, subd. (a); § 290, subd. (c), count 1); and for misdemeanor
possession of narcotic paraphernalia (Health & Saf. Code, § 11364, count 2).
In early January 2017, defendant pleaded guilty in case 1034 to count
1. Unaware that defendant was on probation in case 0034 pending in East
County, the South County court indicated that it would likely sentence
defendant to probation in case 1034 as a result of his plea. However, in early
February the South County court in case 1034 refused to impose the
indicated sentence after learning of defendant’s probation in East County
case 0034. Ultimately, case 1034 was dismissed and refiled in South County
under a new case number. Defendant also was charged with a new criminal
matter in that same branch.
Over about the next year and a half, the People sought execution of the
sentence in case 0034 while defendant sought to avoid prison. Finally, on
3
April 26, 2018, the South County court formally revoked defendant’s
probation in case 0034, and on May 30 it imposed the five-year prison term
that had been stayed by the East County court. On the People’s motion, the
court dismissed the remaining South County cases pending against
defendant.
On appeal, defendant initially claimed that he was denied conflict-free
counsel as a result of what he maintained were inconsistent orders by
separate South County judges; that a South County judge lacked authority to
revoke his probation and sentence him to prison on transferred case 0034
when another South County judge had refused to do so after repeatedly being
misinformed by defense counsel regarding the status of case 0034; that
imposition of one of his two, one-year prison prior enhancements under newly
amended section 667.5, subdivision (b), should be stricken because it did not
involve a sexually violent offense; that he, in any event, is entitled to pretrial
diversion under section 1001.36; and that his due process rights were violated
as a result of the court’s failure to consider his ability to pay the fines, fees,
and assessments imposed at his sentencing.
On June 22, 2020, we filed our opinion rejecting each of these claims
and affirmed the judgment. On September 9, 2020, the Supreme Court
granted defendant’s petition for review, and ordered briefing deferred
pending its decision in People v. Esquivel (S262551), which presented the
following issue: Is the judgment in a criminal case considered final for
purposes of applying a later ameliorative change in the law when probation is
granted and execution of sentence is suspended, or only upon revocation of
probation when the suspended sentence is ordered into effect?
On June 17, 2021, the Supreme Court issued its decision in People v.
Esquivel (2021) 11 Cal.5th 671 (Esquivel). Esquivel held that a case in which
4
sentence is imposed, but execution of that sentence is suspended, may be
final for purposes of appealability, but it is not final for purposes of
retroactivity pursuant to In re Estrada (1965) 63 Cal.2d 740 (Estrada).
(Esquivel, supra, at p. 679.) In reaching its decision, the Esquivel court
perceived “no persuasive reason to presume that the Legislature would wish
to extend the benefit of ameliorative legislation to suspended-imposition
defendants whose probation is revoked [citation], but not to suspended-
execution defendants whose probation is revoked.” (Id. at p. 680.)
On August 11, 2021, the Supreme Court transferred this case back to
this court with directions to vacate our June 22, 2020 decision and reconsider
the matter in light of Esquivel. On August 12, 2021, defendant filed a
supplemental brief arguing that under Esquivel, his case is not yet final and
thus, that he is entitled to (i) a one-year reduction in his prison term under
Senate Bill No. 136, which, effective January 1, 2020 (Stats. 2019, ch. 590,
§ 1) (Sen. Bill No. 136), amended section 667.5; and (ii) a conditional reversal
of his judgment for the court on remand to conduct a mental health diversion
eligibility hearing under section 1001.36.
On August 26, 2021, the People filed a supplemental brief and, with
one exception, agreed that, pursuant to Esquivel, defendant was entitled to
the relief that he sought in his supplemental brief. The disagreement
between the parties in their supplemental briefing involves whether this
court should remand for resentencing after striking the one-year
enhancement, as the People argue, or merely strike the one-year
enhancement and remand the matter solely for the purpose of allowing the
court to consider defendant’s eligibility for mental health diversion under
section 1001.36, as he argues.
5
As we explain, we agree with the parties that under Esquivel, the
appealed order revoking defendant’s probation and executing the five-year
suspended sentence is not final for Estrada retroactivity purposes. We also
agree that Sen. Bill No. 136 and section 1001.36 apply retroactively; that
defendant’s 1989 prison prior for grand theft must be stricken; and that
defendant is entitled to a limited remand for the court to consider his
eligibility for mental health diversion under section 1001.36.
Finally, we conclude that, because defendant’s plea did not include any
agreement with the People regarding the term of imprisonment, and because
defendant was sentenced to the upper term of three years along with the two,
one-year enhancements–one of which we now strike–upon revocation of
probation, the only issue remaining on remand is whether he is entitled to
relief under section 1001.36. In all other respects, the (conditional) judgment
is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
As noted, defendant pleaded guilty in East County case 0034 to
possession of methamphetamine by a registered sex offender in October 2016.
Defendant was initially represented in that case by the San Diego County
Public Defender’s Office (PD), until it declared a conflict and the Alternate
Public Defender (APD) took over his representation. As part of the plea, East
County judge John Thompson imposed a five-year prison term, but, as noted,
stayed sentence pending defendant’s successful completion of probation.
While on probation in case 0034, defendant was charged in South
County case 1034 for possession of a controlled substance
(methamphetamine) by a registered sex offender. Without disclosing the
existence of case 0034, the PD in case 1034 negotiated a deal in which
defendant would plead guilty to a felony and be placed on probation.
6
However, at defendant’s February 7, 2017 sentencing, South County judge
Francis Devaney stated that, before imposing sentence, the court wanted to
review the file of East County case 0034, which would be sent to South
County to consider together with case 1034. Defendant responded by
requesting a Marsden4 hearing, asking that PD Ryan Maguire-Fong be
relieved.
On February 21, South County judge Stephanie Sontag conducted the
Marsden hearing. The sealed transcripts from that hearing show that Judge
Sontag initially intended to appoint the APD to represent defendant, because
he wanted to withdraw his plea in case 1034 on the ground of ineffective
assistance of counsel. During that hearing, however, PD Maguire-Fong
informed Judge Sontag that defendant also was considering withdrawing his
plea in case 0034.
Judge Sontag in response stated that she was not going to “do
anything” with case 0034, adding: “Well, what I’m going to do is for this case
[i.e., 1034] I’m going to have the Office of Assigned Counsel [(OAC)]
appointed to represent you. So it’s neither [the] public defender nor [the]
Alternate Public Defender. . . . [¶] All right. So that way, no matter what
happens out in [East County], you can—I’m not creating another conflict
where you are going to have to come back and get a new lawyer appointed.”
The February 21 minute order issued by Judge Sontag shows that
defendant’s request to relieve PD Maguire-Fong was granted, that the OAC
was appointed to represent defendant in case 1034, that a status conference
would take place on February 28 before Judge Devaney, and that on March
14 Judge Devaney would also hear defendant’s motion to withdraw his plea
in case 1034.
4 People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
7
However, in a separate South County minute order also dated February
21 pertaining to case 0034, thick lines were drawn through Judge Sontag’s
order granting defendant’s request to relieve the PD and appointing OAC as
new defense counsel in case 1034. This separate minute order also showed
that PD Maguire-Fong was still representing defendant.
On February 28, Judge Devaney presided over defendant’s status
conference. The transcript from this hearing shows that APD Shannon
Sebeckis appeared on behalf of defendant, and not a lawyer from the OAC, as
also confirmed by the February 28 minute order that identified the APD as
defendant’s counsel of record on case 0034. The record shows that at the
outset of the hearing, the court recognized that APD Sebeckis had “just [been]
appointed to represent” defendant and the court asked defense counsel,
“[w]hat’s the game plan?”
Relevant to the instant issue, APD Sebeckis informed the court as
follows: “I did just want to clarify one thing. On a prior docket, it does look
like OAC was appointed, but [APD] was also appointed. I want to make clear
it is our office that has been appointed. We would be asking for that
appointment at this time and set further status for March 28, please.” Judge
Devaney responded, “Right. I can see that Judge Sontag, after the Marsden
hearing, relieved the [PD], and the clerk wrote OAC. I'll make sure it’s the
[APD], not OAC.”
During this hearing Judge Devaney also asked defense counsel the
following question, “Now, would the motions [to withdraw the guilty plea(s)]
be on our case, the El Cajon case, or both, or do you not know?” APD
Sebeckis responded, “I don’t know yet, Your Honor.” She told the court that
she would review the transcripts from East County case 0034. The court
stated that it had received the transcripts from the East County “matter” by
8
e-mail, as had PD Maguire-Fong, and thus, that the transcripts would be
available to APD Sebeckis. The court informed defendant that it would
conduct a follow-up status conference on March 28 and set the motion to
withdraw his guilty plea(s) for April 11.
Also relevant to the instant case, Judge Devaney’s February 28 minute
order stated “APD is appointed” and set a “Prob Rev” hearing on East County
case 0034 for March 28, to “trail” case 1034. Defendant was ordered to
remain in custody without bail.
Once again, the record also includes a separate February 28 minute
order from Judge Delaney arising from the same status hearing. Similar to
the February 28 minute order for case 0034, this separate minute order
states, “APD is appointed on this case.” It also provides, “Motion to withdraw
plea set for 4-11-17.” This minute order also lists APD Sebeckis as
defendant’s counsel of record.
On May 24, defendant’s motion to suppress, and, if the motion were
denied, his preliminary hearing in case 1034, were set to be heard by Judge
Sontag in South County, with East County case 0034 trailing for an
“evidentiary hearing.” APD Sebeckis appeared for, and confirmed APD’s
representation of, defendant. At the outset of the hearing, APD Sebeckis
requested that the court send case 0034 “back to [East County] to deal with
any probation violation,” and that it not consider any evidence proffered at
the suppression/preliminary hearing in determining whether to revoke
defendant’s probation.
The record shows that Judge Sontag reviewed the transcript of the
October 3, 2016 hearing when Judge Thompson accepted defendant’s plea in
East County case 0034. Judge Sontag ruled that the court would not use any
evidence from the hearing in case 1034 as a basis to revoke defendant’s
9
probation in case 0034. However, in so doing the court cogently noted that
case 0034 was “trailing for the wrong reason, which is, again, a sentencing
issue and not—not really a violation issue.” (Italics added.)
The record shows that the court proceeded to hear testimony on
defendant’s motion to suppress.5 At the conclusion of that testimony, the
court refused to bind defendant over in case 1034, finding that the prosecutor
had failed to “provide some substantiation, some evidence here, that there
was a 911 call or . . . or a report. Whether it was a call or some other manner,
there was a report of a robbery at [a convenience store].” The court noted
that the prosecutor had to call the “dispatcher” or “somebody” to show that a
911 call had been placed about the robbery, leading to defendant’s detention
and search; and that the responding officer’s testimony on that point was
insufficient.
DISCUSSION
I
The APD’s Appointment in Case 1034 Neither Created an Actual Conflict Nor
Prejudiced Defendant
Defendant claims that he was deprived of his constitutional right to
conflict-free counsel when Judge Devaney appointed the APD to represent
defendant in case 1034 in the court’s February 28 order, which defendant
5 Defendant’s motion does not appear to have been included in the
voluminous appellate record in this case. However, from the reporter’s
transcript of the hearing, it appears that defendant argued that, pursuant to
People v. Madden (1970) 2 Cal.3d 1017 and People v. Harvey (1958) 156
Cal.App.2d 516, the People were unable to show that the information
received by an officer through official channels had a legitimate source, and
that the People were unable to produce either the original informant as the
source of the information relied upon or the officer who received the
information from the informant.
10
alleges contradicted the February 21 order of Judge Sontag appointing the
OAC to represent him in that case.
A. Guiding Principles
“ ‘A criminal defendant is guaranteed the right to the assistance of
counsel by the Sixth Amendment to the United States Constitution and
article I, section 15 of the California Constitution. This constitutional right
includes the correlative right to representation free from any conflict of
interest that undermines counsel’s loyalty to his or her client.’ ” (People v.
Rices (2017) 4 Cal.5th 49, 65.) “ ‘As a general proposition, such conflicts
“embrace all situations in which an attorney’s loyalty to, or efforts on behalf
of, a client are threatened by his responsibilities to another client or a third
person or his own interests.” ’ ” (People v. Doolin (2009) 45 Cal.4th 390, 417
(Doolin).) The guaranty of conflict-free counsel “protects the defendant who
retains his own counsel to the same degree and in the same manner as it
protects the defendant for whom counsel is appointed, and recognizes no
distinction between the two.” (People v. Bonin (1989) 47 Cal.3d 808, 834.)
For both state and federal purposes, a defendant seeking to obtain
reversal of a judgment on conflict of interest grounds “must demonstrate that
(1) counsel labored under an actual conflict of interest that adversely affected
counsel’s performance, and (2) absent counsel’s deficiencies arising from the
conflict, it is reasonably probable the result of the proceeding would have
been different.” (People v. Mai (2013) 57 Cal.4th 986, 1010, 1011 (Mai).) An
actual conflict “ ‘is a conflict of interest that adversely affects counsel’s
performance.’ ” (Doolin, supra, 45 Cal.4th at p. 418.)
B. Analysis
Applying these principles here, we independently conclude that
defendant has failed to demonstrate that APD Sebeckis “labored under an
11
actual conflict of interest” in representing defendant in case 1034. (See Mai,
supra, 57 Cal.4th at p. 1010.) The record shows that, while there may have a
been a conflict between PD Maguire-Fong and defendant as a result of
defendant’s guilty plea to a felony in South County case 1034—opening up
the real possibility that Judge Thompson would revoke defendant’s probation,
lift the stay, and sentence him to prison for five years in East County case
0034, there was no such actual or apparent conflict between APD Sebeckis
and defendant in case 1034.
As a threshold matter, the record shows that there was substantial
confusion and likely merely a mix-up regarding whether defendant would be
represented by the APD or the OAC in case 1034 after the February 21
Marsden hearing; there is no evidence that Judge Devaney deliberately
reversed or refused to follow Judge Sontag’s order appointing the OAC to
represent defendant in that case.
As summarized ante, the two separate minute orders issued on
February 21 for cases 1034 and 0034 appear to conflict; the order for case
1034 provides that OAC would represent defendant, while the order for case
0034 has lines drawn through that portion of the order. Of course, it is
possible that the two February 21 orders initially were the same, with the
confusion or mix-up taking place a week later at the status conference before
Judge Devaney.
Indeed, the record shows that APD Sebeckis appeared at the February
28 status conference and raised the issue whether the APD or the OAC would
represent defendant in case 1034, that APD Sebeckis nonetheless
represented that the APD had been appointed in case 1034, that Judge
Devaney stated that he would look into the issue, and that, as a result of the
February 28 hearing, separate orders were created for cases 1034 and 0034,
12
with both orders providing that the APD had been appointed to represent
defendant.
Further, the record shows that in late May 2017 APD Sebeckis
appeared before Judge Sontag in case 1034 on defendant’s motion to suppress
evidence. At no time during that lengthy suppression hearing, for which
defendant was present, did the issue arise whether the APD, as opposed to
the OAC, was the proper agency to represent defendant in that matter. To
the contrary, the fact that the APD was representing defendant in case 1034
was a nonissue and made sense, inasmuch as this same agency was also
representing defendant in case 0034. We thus conclude that defendant
cannot show that the APD “labored under an actual conflict of interest” in
representing him in both cases. (See Mai, supra, 57 Cal.4th at p. 1010.)
Even assuming that defendant could show that an “actual conflict of
interest” existed in the APD’s representation of him in case 1034, his claim of
error still fails because he cannot show that it was “reasonably probable the
result of the proceeding would have been different” absent such an alleged
conflict. (See Mai, supra, 57 Cal.4th at p. 1010.) To the contrary, the record
shows that it was APD Sebeckis who filed the motion to suppress evidence in
case 1034, and, as noted, succeeded in having the court suppress evidence of
defendant’s detention and search, leading to the dismissal of that case
(subject to its refiling under a new case number).
In addition, the record shows that defendant, while primarily
represented by the APD, was able to avoid prison for about a year and a half,
despite reoffending and repeatedly failing to follow the terms of his probation
in case 0034, as summarized ante. Because we conclude that it is not
“reasonably probable the result of the proceeding[s] would have been
13
different” absent any presumed conflict by the APD, we reject this claim of
error for this reason, as well. (See Mai, supra, 57 Cal.4th at p. 1010.)
Relying on People v. Madrigal (1995) 37 Cal.App.4th 791 (Madrigal)
and a similar line of cases, defendant nonetheless claims that Judge Devaney
lacked the authority to appoint the APD to represent him in case 1034
because of the prior order by Judge Sontag appointing the OAC to that
representation. Madrigal, however, is factually inapposite to the instant
case.
In Madrigal, a judge revoked the defendant’s probation and sentenced
him to four years in prison, after the defendant had pleaded guilty in a
subsequent prosecution to attempted second degree burglary before a
different judge. (Madrigal, supra, 37 Cal.App.4th at pp. 794–795.) The plea
agreement in the new case stated that (1) the defendant would be placed on
probation for three years, and, key to the instant case, (2) his probation in the
first case would be revoked and reinstated with no additional time. (Ibid.)
The Madrigal court held that the first judge acted in excess of his authority
by revoking the defendant’s probation and sentencing him to state prison,
after the defendant’s probation violation matter had been properly assigned
to the second judge in accordance with a local court rule. (Id. at pp. 793–794.)
Unlike the situation in Madrigal where the defendant was clearly
prejudiced as a result of being revoked and sentenced to prison based on a
court order that conflicted with another judge’s order that the defendant’s
probation would be revoked and reinstated, in the instant case, we have
concluded that defendant was not prejudiced by Judge Devaney’s order
14
appointing the APD to represent defendant in case 1034.6 In sum, reviewing
de novo defendant’s claim of error, we conclude that he was not deprived of
his constitutional right to conflict-free counsel.7
II
Authority to Transfer Case 0034 to South County
Defendant next claims that Judge Devaney lacked authority to transfer
East County case 0034 to the South County for disposition in that branch
because Judge Devaney allegedly contravened the order of another South
County judge who had refused such a request. In support of this claim of
error and prejudice, defendant in his opening brief submitted a single-spaced,
six-page “summary” of the “procedural timeline” on this issue beginning in
late April 2016 and ending about two years later, when defendant was finally
revoked and sentenced to a five-year prison term.
A. Additional Background
Highlighting the main points of this “summary,” the record shows the
following:
* Case 0034 was filed in late April 2016. In October 2016 when East
County Judge Thompson imposed and stayed execution of the five-year
prison term in that case, the court told defendant that, while the prosecutor
would have the opportunity to argue that defendant’s probation should be
6 The lack of prejudice in the instant case also distinguishes other cases
that defendant relies on in support of his claim of error, including, for
example, In re Alberto (2002) 102 Cal.App.4th 421, 427, where one judge set
bail and another judge, believing the bail amount was erroneous, increased
that bail, to the prejudice of the defendant.
7 In light of our decision on the merits, we deem it unnecessary to reach
the People’s alternate contention that defendant forfeited this claim of error
on appeal by failing to raise it in the trial court.
15
revoked if defendant failed to register as a sex offender or committed a new
criminal offense, the court likely would not “violate [defendant] if [he]
pick[ed] up a simple misdemeanor.”
* In April 2017, Judge Thompson declined to revoke defendant’s
probation despite defendant’s felony guilty plea in new case 1034, after
defense counsel (from the APD) informed Judge Thompson that defendant
was seeking to withdraw his guilty plea in the new case to avoid prison.
During the hearing, defense counsel asked the court what it would be
inclined to do if defendant were unable to overturn his guilty plea in case
1034, to which the court responded, “Yeah, if he picked up a new felony, he’s
going to do the five years. It’s simple. That’s the deal we cut. He violated. I
promised him what was going to happen. I can’t now unpromise him.” The
court clarified that the issue was not “rocket science” and reiterated that
defendant would serve five years if he picked up a new felony.
* On May 24, South County judge Sontag refused to bind defendant
over on case 1034, as noted, after South County judge Gary Haenhle had
granted defendant’s motion to withdraw his guilty plea about a week earlier.
* On June 8, case 0034 was again before Judge Thompson. The
prosecutor informed the court that case 1034 had been dismissed, but that
the People intended to refile that case, and asked the court to trail 0034
pending the refiling of case 1034. APD Shervin Samimi asked the court to
“reinstate[ ]” defendant’s probation on case 0034 because defendant had not
been charged with a new felony conviction. The court in response
unambiguously stated that it was not taking any action with respect to
defendant’s probation; that once case 1034 was refiled, the People “can
schedule it for an OSC re revocation, or use whatever hearing down in South
County as a basis for revocation”; and that just to be “clear,” the court
16
reiterated it was “[t]aking no action,” and was “not going to reinstate
[defendant], because he shouldn’t have been revoked, at least at this point.”
* On or about June 26, the People refiled dismissed case 1034 in new
case SCS293962 (hereinafter, 3962), which APD Sebeckis calendared for
status review the following day before South County judge Edward Allard III.
At the June 27 hearing, the court reduced defendant’s bail to $5,000 on case
3962 and set arraignment for June 30.
* On June 30, defendant failed to appear for arraignment. The People
asked South County judge Theodore Weathers—then the sixth8 South
County judge to be involved in cases 1034 and/or 3962—to issue a bench
warrant for defendant and raise his bail. APD Sebeckis appeared on behalf
of defendant. She opposed the People’s request to transfer case 0034 to South
County, at one point incorrectly representing to the court that East County
judge Thompson had “reinstated” defendant’s probation at the June 8
hearing.
* On July 3, Judge Weathers granted the People’s request to have case
0034 transferred to South County to trail the new case, and for a probation
revocation hearing on July 5 before Judge Allard.
* On July 5, Judge Allard denied the People’s request to revoke
defendant’s probation in case 0034. During this hearing Judge Allard
ordered defendant released from custody, after finding that case 3962 was
not a new charge and relying on incorrect information provided by defense
counsel that the East County court allegedly had “heard the matter, and
8 The record shows in early April 2017, South County judge Ana Espana
had ordered cases 0034 and 1034 transferred to East County judge
Thompson. In addition to Judge Espana, proceedings in cases 0034, 1034
and/or 3962 were at times before South County judges Devaney, Sontag,
Haenhle, Allard, Weathers, and ultimately, as discussed post, Moring.
17
what they did is that at best, they revoked, reinstated, same terms and
conditions. That is why I say he is out on probation in the [East County]
case, despite this allegation and despite his record.” (Italics added.) At the
request of the prosecutor, the court agreed to have case 0034 brought to
South County, but then stated that it would consider that case for
“informational purposes only.” The court went on to note that it was not
putting case 0034 on calendar, because it did not want to “overstep[ ]” the
“authority” of an East County judge; and that because the East County court
allegedly had “heard” the matter, Judge Allard was “not going to second[-]
guess a court in [East County].”
* On September 8, South County judge Dwayne Moring presided over
defendant’s preliminary hearing in case 3962. Judge Moring bound
defendant over on the charges of possession of narcotics by a registered sex
offender and possession of drug paraphernalia. However, Judge Moring
denied the People’s request to revoke defendant’s probation in case 0034,
stating that matter was not before him.
* On October 10, Judge Devaney ordered case 0034 to be transferred to
South County, and set a bail review in case 3962 with case 0034 trailing
before Judge Allard. In so doing, Judge Devaney noted the “confusion” over
the status of defendant’s cases and further noted that, while Judge Allard
may have said that it was unnecessary to have case 0034 in South County, at
some point it would be necessary to consider that case if defendant was
convicted on case 3962. In opposing the transfer of case 0034 to South
County, APD Sebeckis again informed the court, incorrectly, that Judge
Thompson “had already made a decision based on the fact of this case, and
that was not to revoke [defendant’s] probation”; and that, because Judge
Thompson allegedly had already ruled not to revoke defendant, no other
18
judge could do so based on case 3962, which involved the same facts as
dismissed case 1034.
* On October 16, APD Sebeckis convinced Judge Allard to vacate all
future hearings in case 0034, despite Judge Devaney’s ruling about a week
earlier, after APD Sebeckis yet again incorrectly informed the court that
defendant in case 0034 had been reinstated on probation and released from
custody. Judge Allard repeated that he was “not going to backdoor [East
County]” by having case 0034 transferred to South County. During this same
hearing, the prosecutor informed Judge Allard that APD Sebeckis was not
correct in representing what Judge Thompson had done at the June 8
hearing in East County, instead noting that the court had taken “no action”
with respect to South County case 1034 because that case had been dismissed
and would soon be refiled (as case 3962). Judge Allard commented that was
not his understanding, and ordered case 0034 to remain in East County.
* On October 30, over objection, Judge Devaney entered a “final[,] ‘not
to be readdressed ruling’ again about these files,” ordering case 0034
transferred to South County, after issuing a bench warrant because
defendant had failed to appear for a readiness conference and had been out of
contact with parole for two and one-half weeks after his GPS bracelet battery
had died. Over the further objection of APD Sebeckis, Judge Devaney
admonished the parties not to file any future motions regarding the transfer
of the files of case 0034 to South County. Judge Devaney set defendant’s trial
in case 3962 for November 2, 2017. Defendant, however, failed to appear on
that date, leading the court to issue a bench warrant.
* On January 3, 2018, the People filed another new case, number
SCS297988 (hereinafter, 7988), based on defendant’s failure to appear at the
October 30 hearing in case 3962 while on bail as a result of a felony charge.
19
APD Brooke LaFrance appeared on behalf of defendant. Over objection,
Judge Devaney granted the People’s request that the preliminary hearing in
case 7988 could serve as an evidentiary hearing in determining whether
defendant had violated probation in East County case 0034.
* On January 25, defendant sought a two-week continuance after
representing that he was in the process of retaining private counsel. The
prosecutor opposed the continuance, noting that defendant “has been stalling
this case for the past year and a half.” In granting the short continuance,
Judge Weathers admonished defendant that the preliminary hearing in case
7988, and the evidentiary hearing in case 0034, would go forward on
February 8, 2018.
* On February 8, defendant arrived late for the preliminary hearing.
The court noted defendant’s “habitual tardiness”; defendant had been ordered
to appear at 8:30 a.m. and had arrived at about 10:15 a.m. Defendant
represented that he was in the process of finalizing his retention of private
counsel, and claimed that he was late to court because the batteries in his
cellphone had died, and because the manager of the hotel where defendant
was residing had failed to awaken him due to some “malfunction.”
* On March 29, defendant failed to appear for the continued
preliminary hearing, leading the court to issue a no-bail warrant, after noting
that it was “ironic” that defendant failed to appear “on a failure to appear.”
The prosecutor at this hearing informed the court that defendant had been
arrested for drug possession after the last court hearing. Judge Weathers
summarily revoked defendant’s probation in East County case 0034, noting
that the court already had “been around and around and around the block”
on that case.
20
* On April 26, the court bound over defendant on case 7988, after
hearing witness testimony, including by defendant; and found him in
violation of probation in case 0034 based on his failure to “remain law
abiding.”
* On May 30, Judge Weathers lifted the stay in case 0034, sentenced
defendant to five years in prison, and dismissed the remaining cases, after
Judge Weathers had previously granted the defense a short continuance to
allow a psychologist to evaluate defendant.
As noted, defendant claims that Judge Devaney lacked the authority to
transfer case 0034 to South County because Judge Allard had already ruled
at a prior hearing that case 0034 would remain in East County and that, in
any event, the transfer of that case to South County would be for
“informational purposes” only.
B. Guiding Principles
“An individual judge (as distinguished from a court) is not empowered
to retain jurisdiction of a cause. The cause is before the court, not the
individual judge of that court, and the jurisdiction which the judge exercises
is the jurisdiction of the court, not of the judge. Rules of court which provide
that posttrial proceedings in a cause shall be heard by the judge who tried
the matter are entirely proper, but the individual judge cannot order that
such proceedings must be heard by him [or her].” (People v. Osslo (1958) 50
Cal.2d 75, 104; see Shane v. Superior Court (1984) 160 Cal.App.3d 1237, 1249
[noting that the “jurisdiction of a multijudge, multidepartment superior court
is vested in the court as a whole and if one department exercises authority in
a matter which might properly be heard in another such action, although
‘irregula[r],’ it does not amount to a defect of jurisdiction”].)
21
However, when a “ ‘proceeding has been duly assigned for hearing and
determination to one department of the superior court by the presiding judge
of said court in conformity with the rules thereof, and the proceeding so
assigned has not been finally disposed of therein or legally removed
therefrom, it is beyond the jurisdictional authority of another department of
the same court to interfere with the exercise of the power of the department
to which the proceeding has been so assigned. [Citation.] In other words,
while one department is exercising the jurisdiction vested by the Constitution
in the superior court of that county, the other departments thereof are as
distinct therefrom as other superior courts. [Citation.] If such were not the
law, conflicting adjudications of the same subject-matter by different
departments of the one court would bring about an anomalous situation and
doubtless lead to much confusion.’ (Williams v. Superior Court (1939) 14
Cal.2d 656, 662–663 [(Williams)].)” (Madrigal, supra, 37 Cal.App.4th at
pp. 795–796.)
C. Analysis
Turning to the instant case, we conclude that Judge Devaney’s transfer
of case 0034 to South County to trail South County cases 3962 and 7988 was
a proper exercise of his authority. First, as demonstrated by the record,
neither case 0034, nor cases 1034, 3962, or 7988, was “duly assigned”—by
local rule or otherwise—exclusively to Judge Allard. (See Williams, supra, 14
Cal.2d at p. 663; Madrigal, supra, 37 Cal.App.4th at p. 796.) To the contrary,
the record shows that seven judges in South County at various times presided
over one or more of the criminal cases pending against defendant.
Second, the record shows that when Judge Allard ordered that case
0034 would be transferred to South County for “information purposes only”
22
on July 5, 2017, he was relying on misinformation regarding what East
County judge Thompson had done at the June 8 hearing.
As summarized in detail ante, the record shows that defense counsel
repeatedly represented at the July 5 hearing—and at other hearings
including on October 10 and 16—that, at the June 8 hearing, Judge
Thompson had revoked and reinstated defendant’s probation on the same
terms, when the unambiguous record shows that in fact, Judge Thompson
clearly stated that he was taking “no action” because South County case 1034
was being dismissed and would be refiled under a new case number. In our
view, Judge Devaney’s order to consolidate all of the cases against defendant
in one branch, finally and decisively ended the obvious “confusion” created by
defendant and his team of defense counsel.
In addition to relying on Madrigal, which we have already determined
to be inapposite, defendant also relies on People v. Ellison (2003) 111
Cal.App.4th 1360 (Ellison) to support his claim that Judge Devaney lacked
the authority to transfer case 0034 to South County. Ellison does not assist
defendant.
In Ellison, the first judge accepted the defendant’s guilty plea, but told
the defendant that he would be unavailable to impose sentence. Accordingly,
the defendant agreed to be sentenced by a different judge (Ellison, supra, 111
Cal.App.4th at p. 1363), waiving his rights under People v. Arbuckle (1978) 22
Cal.3d 749, 756 (Arbuckle). Arbuckle held that, absent a defendant’s waiver,
when a plea bargain is entered in expectation of and in reliance upon a
discretionary sentence being imposed by the same judge, a sentence imposed
by another judge will be vacated. At the sentencing hearing, the second
judge in Ellison ordered the defendant’s immediate release from jail pending
a supplemental probation report. However, the defendant was not released
23
because of an anonymous request made to a third judge to place a “hold” on
the defendant. (Ellison, supra, at p. 1364.) The defendant’s case thereafter
returned to the first judge, who withdrew the second judge’s release order
and ordered that the defendant be imprisoned. (Id. at p. 1366.)
In reversing, the Ellison court agreed with the defendant that the first
judge had no authority to countermand the second judge’s release order. The
court in Ellison instead concluded that the first and third judges had
interfered with the second judge’s release order, and that the second judge
had obtained exclusive jurisdiction over the sentencing of the defendant
based on the defendant’s Arbuckle waiver, which pertained to the first judge
but not to the second judge; and based on the second judge’s decision that the
defendant should be immediately released and referred back to probation for
the preparation of a supplemental report as a result of the defendant’s
mental health and drug issues. (See Ellison, supra, 111 Cal.App.4th at
pp. 1364, 1367.)
As we have noted, neither East nor South County exercised exclusive
control over case 0034, or, for that matter, any of the South County cases
filed against defendant. Moreover, unlike the unique situation in Ellison
where one judge defied the order of another judge in sentencing the
defendant, in the instant case there was no such conflict in any order
regarding the sentencing of defendant. Instead, the conflict, to the extent one
existed, with respect to the orders of Judges Devaney and Allard were the
direct result of misinformation provided by the defense, as we have
summarized. In any event, any such conflict went merely to the issue of
where case 0034 would be heard for purposes of sentencing defendant, once
and for all, as a result of the other criminal cases pending against him and/or
his performance on probation in case 0034.
24
We thus conclude, in light of the “confusi[ng]” procedural history of this
case, that Judge Devaney had the authority to transfer case 0034 to South
County to trail the additional criminal cases pending against defendant in
that branch.
III
Prison Prior Enhancements under Newly Amended Section 667.5
On October 8, 2019, the Governor signed Sen. Bill No. 136, amending
the circumstances under which the one-year sentence enhancement may be
imposed under newly amended section 667.5, subdivision (b). Under the new
law, the one-year enhancement applies only if a defendant has served a prior
prison term for a sexually violent offense as defined in Welfare and
Institutions Code section 6600, subdivision (b). (Stats. 2019, ch. 590, § 1.)
We agree with the parties that, pursuant to Esquivel, defendant is
entitled to relief under Sen. Bill No. 136 because a “case in which a defendant
is placed on probation with imposition of sentence suspended is not yet final
for [purposes of retroactivity] if the defendant may still timely obtain direct
review of an order revoking probation and imposing sentence.” (Esquivel,
supra, 11 Cal.5th at p. 673.) We therefore conclude that the one-year
enhancement imposed for defendant’s 1989 grand theft conviction must be
stricken.
The Supreme Court has held that “when part of a sentence is stricken
on review, on remand for resentencing [ordinarily] ‘a full resentencing as to
all counts is appropriate, so the trial court can exercise its sentencing
discretion in light of the changed circumstances.’ ” (People v. Buycks (2018) 5
Cal.5th 857, 893.) Appellate courts have applied this full-resentencing rule
after striking prison prior term enhancements under Sen. Bill No. 136, unless
the trial court imposed the maximum possible sentence. (See e.g., People v.
25
Keene (2019) 43 Cal.App.5th 861, 865; People v. Jennings (2019) 42
Cal.App.5th 664, 682; People v. Lopez (2019) 42 Cal.App.5th 337, 342.)
Because, as we also have noted, the trial court sentenced defendant to the
upper term of three years on count 1, and because, in any event, California’s
constitutional prohibition against double jeopardy precludes the imposition of
more severe punishment on resentencing (People v. Hanson (2000) 23 Cal.4th
355, 357), we conclude that defendant received the maximum possible
sentence and thus, that remand for resentencing is unnecessary for purposes
of Sen. Bill No. 136.
IV
Diversion under Section 1001.36
Section 1001.36 was enacted on June 27, 2018, and took effect
immediately. (Stats. 2018, ch. 34, §§ 24, 37.) It authorizes trial courts to
grant pretrial diversion to defendants with mental disorders, and it directs
courts to dismiss charges against participants who successfully complete
mental health treatment. (§ 1001.36, subds. (a), (c) & (e).)
We agree with the parties that under Esquivel, section 1001.36 applies
retroactively to defendant. (Esquivel, supra, 11 Cal.5th at p. 679 [holding
that a case in which sentence is imposed, but execution of that sentence is
suspended, may be final for purposes of appealability, but it is not final for
purposes of retroactivity pursuant to Estrada]; see People v. Frahs (2020) 9
Cal.5th 618, 631 (Frahs) [explaining that § 1001.36 “provides a possible
benefit to a class of criminal defendants,” and that it is “the ameliorative
nature of the diversion program [that] places it squarely within the spirit of
the Estrada rule”]; compare People v. Rodriguez (2021) __ Cal.App.5th __,
2021 WL 3926249 *3, fn. 3 [concluding that the defendant was not entitled to
mental health diversion because § 1001.36 became effective months before
26
the defendant pled guilty and was placed on probation, and therefore, that
the defendant’s eligibility for diversion was not governed by Frahs].)
The People previously conceded that if section 1001.36 applied
retroactively to defendant, he has made a prima facie showing that he will
meet the minimum requirements of eligibility for diversion.
Under section 1001.36, if a defendant is charged with a qualifying
offense, a trial court may grant pretrial diversion if it finds all of the
following: (a) the defendant suffers from a qualifying mental disorder; (b) the
mental disorder was a significant factor in the commission of the charged
offense; (c) in the opinion of a qualified mental health expert, the defendant's
symptoms will respond to mental health treatment; (d) the defendant
consents to diversion and waives his or her right to a speedy trial; (e) the
defendant agrees to comply with treatment as a condition of diversion; and (f)
the defendant will not pose an unreasonable risk of danger to public safety if
treated in the community. (§ 1001.36, subd. (b)(1)(A)-(F).)
A defendant bears the burden of making a prima facie showing that he
or she meets the minimum requirements of eligibility for diversion.
(§ 1001.36, subd. (b)(3).) Even if a defendant otherwise satisfies
the six eligibility requirements, the court must nonetheless be satisfied that
the recommended mental health treatment program “will meet the
specialized mental health treatment needs of the defendant.” (Id., subd.
(c)(1)(A).) “Before approving a proposed treatment program, the court shall
consider the request of the defense, the request of the prosecution, the needs
of the defendant, and the interests of the community.” (Id., subd. (c)(1)(B).)
If the six criteria in section 1001.36, subdivision (b)(1) are met, and if
the trial court “is satisfied that the recommended inpatient or outpatient
program of mental health treatment will meet the specialized mental health
27
treatment needs of the defendant” (§ 1001.36, subd. (c)(1)(A)), the court may
order diversion into an approved mental health treatment program for up to
two years (id., subd. (c)(1) & (3)). If the defendant commits an additional
offense or otherwise performs unsatisfactorily in the diversion program, the
court may reinstate the criminal proceedings. (Id., subd. (d).) However, “[i]f
the defendant has performed satisfactorily in diversion, at the end of the
period of 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,” and “the arrest upon which the diversion was based shall be
deemed never to have occurred.” (Id., subd. (e).)
Defendant included in his brief for sentencing after revocation the
psychological evaluation report prepared by licensed psychologist E. Warren
O’Meara, Ph.D. In addition to reviewing various police and medical reports
involving defendant, Dr. O’Meara conducted an in-person clinical interview
and mental status examination of defendant in May 2018. Using the
Diagnostic and Statistical Manual of Mental Disorders, Dr. O’Meara
concluded that defendant suffers from a qualifying severe attention-
deficit/hyperactivity disorder; delusional disorder, mixed type;
methamphetamine and opioid dependence; and bereavement. Dr. O’Meara
further concluded that defendant may have bipolar disorder, observing that
he could “be grandiose and cycle to being contrite.”
Dr. O’Meara noted that defendant had been in prison for most of his
adult life, that defendant has never received treatment for his drug addiction
and “psychological difficulties” and that without treatment, defendant would
“continue to reoffend cycling in and out of prison.”
At defendant’s sentencing on case 0034, which took place on May 30,
2018, the court noted that it had considered, among other documents, the
28
psychological evaluation of defendant prepared by Dr. O’Meara. The defense
argued that the court should reinstate probation and order defendant into an
appropriate residential drug treatment facility where defendant’s “mental
health and addiction disorders” could be addressed. Relying primarily on Dr.
O’Meara’s evaluation, the defense noted that defendant had a “long history of
mental illness” for which he has never been treated, that defendant, in
response, “self-medicat[ed]” for his mental health issues, which in turn led to
“drug addiction” and “criminality,” and that without treatment, defendant
would “just continue to cycle in and out of the prison system,” as also noted
by Dr. O’Meara.
Defendant also addressed the court at sentencing and admitted that his
mental health issues had gone untreated in part because he was
“embarrass[ed]” by them. Defendant appeared willing to participate in
mental health and substance abuse treatment in lieu of returning to prison.
Based on the foregoing, we agree with the parties that defendant has
made a prima facie showing that he will meet the minimum requirements of
eligibility for diversion under section 1001.36. We therefore conclude that
defendant is entitled to a conditional reversal of the judgment to allow the
court to consider on remand whether he is suitable for diversion.
V
Imposition of Fines, Fees, and Assessments
Finally, defendant contends that the trial court violated his due process
rights by imposing various fines, fees, and assessments without considering
his ability to pay, relying on People v. Dueñas (2019) 30 Cal.App.5th 1157(Dueñas). The People counter that defendant forfeited this claim by failing to
29
raise it in the trial court and that Dueñas in any event is distinguishable and
wrongly decided.9
In this case, the record shows that the court ordered defendant to pay
the minimum $300 restitution fine (§ 1202.4, subd. (b)) and a matching
probation revocation fine (§ 1202.45); a $40 court operations assessment fee
(§ 1465.8); a $30 criminal conviction assessment (Gov. Code, § 70373); and a
$154 criminal justice administrative fee (id., § 29550.1).
We need not decide whether defendant forfeited his right to object to
the imposition of the fines, fees, and assessments, or whether Dueñas applies
to him because on this record we conclude that defendant has the ability to
pay such fines, fees, and assessments based on his employment history.
Unlike the defendant in Dueñas who was unable to work because she was a
homeless mother with cerebral palsy, whose family was unable to afford basic
necessities (Dueñas, supra, 30 Cal.App.5th at pp. 1160–1161), the record here
shows that, prior to his arrest, defendant was working in his step-father’s
business earning $6,000 a month “or more.” We thus reject this claim of
error.
9 The Supreme Court will soon have the last word on this subject. (See
People v. Kopp (2019) 38 Cal.App.5th 47 (review granted November 13, 2019,
S257844). We note in passing, however, that several cases have disagreed
with Dueñas and found that due process principles do not require a court to
determine whether a defendant has the ability, present or otherwise, to pay
various fines, fees, and assessments before such are imposed. (See e.g.,
People v. Kingston (2019) 41 Cal.App.5th 272, 279; People v. Hicks (2019) 40
Cal.App.5th 320, 329, review granted Nov. 26, 2019, S258946; People v.
Aviles (2019) 39 Cal.App.5th 1055, 1069; People v. Caceres (2019) 39
Cal.App.5th 917, 928.)
30
DISPOSITION
The judgment is conditionally reversed. The case is remanded with
instructions to the trial court to determine whether defendant is eligible for
diversion under section 1001.36 and, if so, to exercise its discretion within the
procedures set forth in the statute. If the court does not grant diversion, or if
the court grants diversion but later determines that the criminal proceedings
should be reinstated, the court shall reinstate the judgment, as modified by
this opinion (i.e., striking under Sen. Bill No. 136 the one-year enhancement
for defendant’s 1989 conviction for grand theft). In all other respects, the
judgment is affirmed.
AARON, J.
WE CONCUR:
HALLER, Acting P. J.
IRION, J.
31