People v. Zhou CA2/5

Filed 1/15/21 P. v. Zhou CA2/5
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California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B301601
Plaintiff and (Los Angeles County
Respondent, Super. Ct. No. YA100202)
v.
PHILIP CHUNYUAN ZHOU,
Defendant and
Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Thomas R. Sokolov, Judge. Petition for writ
of mandate denied.
Ray and Bishop, Fredrick M. Ray, Lindsay M. Johnson,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Gloria L. Castro,
Senior Assistant Attorney General, E. A. Jones III,
Supervising Deputy Attorney General, Joshua M. Templet,
Deputy Attorney General, for Plaintiff and Respondent.
__________________________
Defendant and appellant Philip Chunyuan Zhou
appeals the trial court’s order restricting his license to
practice medicine in California as a condition of pre-trial
release. We conclude that the trial court did not err in
determining that Zhou posed an immediate risk to the public
by “clear and convincing [proof] and to a reasonable
certainty.”
FACTS AND PROCEDURAL HISTORY
The Alleged Offenses
In September of 2018, Los Angeles Sheriff’s
Department (LASD) Detective Kalassay was contacted by
the United States Department of Homeland Security (DHS),
which informed him that three packages containing illegal
narcotics had been intercepted at the International Mail
Facility in Torrance, California. Detective Kalassay took
possession of the packages, which contained 360 pills of
Zolpidem, which is sold under the brand name “Ambien” and
prescribed for sleeping disorders. Zhou’s name and address
were printed on the outside of the packages.
Detective Kalassay requested and received judicial
approval for a contingency search warrant on September 20,
2
2018. On September 21, 2018, members of the Health
Authority Law Enforcement Task Force (HALT), LASD
Major Crimes Bureau, and COPS team coordinated a
package delivery/search warrant operation. An undercover
detective knocked on the door of Zhou’s residence and asked
for him. Zhou accepted the package. Detective Kalassay
conducted a “knock notice” at the residence. Zhou answered
the door and was immediately detained without incident.
No other occupants were in the residence at that time. In
the bedroom that Zhou had identified as his own, detectives
found the package delivered by the undercover officer and
also discovered 310 Zaleplon capsules, 24 Xanax pills, 120
Soma tablets, and 57 Ritalin tablets. All of the
pharmaceutical drugs are controlled substances and
dangerous drugs. Zaleplon is used to treat sleeping
disorders, Xanax is prescribed for anxiety and panic
disorders caused by depression, Soma is a muscle relaxant
and pain reliever, and Ritalin is prescribed to treat ADHD.
Numerous other pharmaceuticals were discovered in Zhou’s
closet.
Zhou was advised of his Miranda rights, and agreed to
speak with Detective Kalassay without an attorney present.
Zhou reported that he was a resident physician in the
neurology department at UCLA. He had held that position
for three years and had lived in the apartment where the
search was conducted the entire time. Zhou previously lived
in Northern California and saw a primary care physician
there who prescribed him medication for his medical
3
condition. Once Zhou moved to Southern California he
ordered prescribed medication, including controlled
substances, over the internet for convenience. Zhou was
unaware that it was illegal to do so. Zhou said he self-
medicated on an as needed basis, but denied having an
addiction, and denied selling drugs. He stated that all of the
pharmaceuticals were for his personal use.
Based on his experience and training, Detective
Kalassay formed the opinion that Zhou was using and
possibly selling the pharmaceuticals seized from his
apartment. It would be unusual for a single individual to
consume the amount of drugs confiscated.
Zhou was transported to the sheriff’s station and
booked into custody. Detective Kalassay confirmed that
Zhou was a resident physician at UCLA. The detective
confiscated Zhou’s prescription pads and hospital
identification card and delivered them to the manager of the
Department of Health Services for safe keeping.
Proceedings Before the Trial Court
On May 21, 2019, a felony complaint was filed alleging
that Zhou sold/offered to sell/transport a controlled
substance, Zaleplon (Health & Saf. Code, § 11379, subd. (a)
[count 1]), possessed for sale a controlled substance,
Alprazolam (Health & Saf. Code, § 11378 [count 2]), and
possessed for sale a controlled substance, Methylphenidate
(Health & Saf. Code, § 11378 [count 3]). The Los Angeles
4
Sheriff’s Department incident report and supplementary
report relating to the incidents at issue, which were based on
Detective Kalassay’s personal knowledge and detailed the
facts of the case as recounted above, was duly sworn by him
and attached to the complaint. A warrant was issued for
Zhou’s arrest, with bail set at $90,000.
The case was called for arraignment on May 31, 2019.
Zhou waived arraignment, and waived reading of the
complaint and the statement of constitutional and statutory
rights. He pleaded not guilty to all counts. Defense counsel
moved to have Zhou released on his own recognizance, which
motion the trial court denied, and then moved for a bail
reduction from the amount set forth in the arrest warrant,
which was granted, and the court set bail at $25,000. A
hearing for setting preliminary hearing was scheduled for
July 29, 2019.
In a letter dated June 5, 2019, the Osteopathic Medical
Board of California (the Board) advised Zhou that it had
been informed of his arrest, and required that a typed,
detailed description of the incident be delivered to it no later
than March 28, 2019.1
Zhou’s attorney responded to the Board’s request in a
letter dated June 25, 2019, including the then-current case
summary of the matter by the Superior Court, and stating
that Zhou would not make any statements or provide any
disposition documents while the criminal matter was
1This was evidently a typographical error, as the letter
was sent several months after the purported due date.
5
pending. The letter informed the Board that the next
calendar event in the criminal case was a preliminary
setting appearance set for July 29, 2019.
On July 26, 2019, the Attorney General, on behalf of
Mark Ito, Executive Director of the Board, filed a “Notice of
Appearance by State Licensing Agency to Furnish
Information Pertinent to Public Protection Pre-trial Release
Condition Prohibiting Defendant from Use of License Issued
by the Osteopathic Medical Board of California Pending
Criminal Proceedings,” stating its intention to appear at the
July 29, 2019 hearing for the purpose of requesting that the
court order Zhou to refrain from practicing medicine, to
surrender all controlled substance prescription forms in his
possession, and prohibit Zhou from obtaining, ordering, or
using any additional prescription forms pending resolution
of the criminal proceedings. The notice of appearance
purported to be authorized pursuant to Penal Code sections
23, 1269c, 1270, 1275, and 1318, Business and Professions
Code section 320, and Health and Safety Code section 11161.
At the hearing on July 29, 2019, the court received and
filed Zhou’s opposition to the Board’s request. In the
opposition, Zhou argued that (1) restriction of an
occupational license as a condition of release violates due
process, as articulated in Naidu v. Superior Court (2018) 20
Cal. App. 5th 300 (Naidu) and Gray v. Superior Court (2005)
125 Cal. App. 4th 629 (Gray), (2) the Board had produced no
documentary evidence or oral testimony in support of the
petition, thereby circumventing the due process
6
requirements set forth in Naidu and Gray, (3) the Board was
not permitted to recommend suspension of an occupational
license as a condition of release pursuant to Penal Code
section 23, (4) suspension of Zhou’s medical license as a
condition of bail would violate Zhou’s legal right to have his
occupational license restricted after an interim suspension
proceeding governed by Business and Professions Code
section 494, and (5) the Board failed to show good cause or
changed circumstances that would justify placing additional
conditions on his release.
The parties stipulated to continue the July 29, 2020
hearing to September 11, 2019, as it pertained to the
recommended suspension of Zhou’s medical license.
On September 9, 2019, the Board filed a memorandum
of points and authorities in support of its request to have
Zhou’s medical license restricted as a condition of bail. The
Board argued that (1) it was authorized to appear pursuant
to Penal Code section 23, (2) the restriction on Zhou’s
medical license was authorized to protect public safety, (3)
the restriction on Zhou’s medical license was reasonable
under the circumstances because the crimes were
substantially related to Zhou’s profession, (4) Gray and
Naidu do not stand for the proposition that due process
prohibits restricting a license to practice medicine as a
condition of bail, and (5) utilization of administrative
procedures would cause conflicts between parallel
proceedings and increased expense. The Board further
argued that the court could require Zhou to surrender all
7
controlled substance prescription forms on motion of a law
enforcement agency supported by reasonable cause under
Health and Safety Code section 11161.
The following documents were attached to the Board’s
memorandum of points and authorities: (1) the declaration
of Deputy Attorney General Brian Roberts, (2) the
Osteopathic Medical Board of California’s Licensing Details
for Zhou, dated July 22, 2019, which reflected no adverse
actions taken against Zhou, (3) the Los Angeles Sheriff’s
Department incident report and supplementary report
authored by Detective Kalassay, and (4) the California
Department of Justice’s Controlled Substance Utilization
Review and Evaluation System’s Patient/Client Activity
Report for Zhou.
Zhou’s opposition to the Board’s request to restrict his
license was received and filed at the hearing on September
11, 2019. The opposition reiterated the legal arguments in
his earlier-filed opposition. Zhou emphasized that the Board
failed to offer evidence of potential harm to the public. He
had no known complaints from patients and an exemplary
record. Zhou also attached to the opposition a Physician
Evaluation Form completed by his supervisor reflecting his
superior performance in all areas evaluated, and stating,
“He is quite knowledgeable and will be a great asset to any
hospice agency,” a letter of recommendation from his
colleague and roommate, chief resident Dr. Tony Pang, a
letter of recommendation from his wife, Oanh Truong, and
certificates for continuing medical education.
8
At the hearing on September 11, 2019, the court
preliminarily noted that the Attorney General had
previously filed a motion to suspend Zhou’s medical license,
which the court had been prepared to hear on July 29, 2019.
It did not hear the motion that day because the parties
stipulated to continue the hearing to September 11, 2019.
The court stated that, ordinarily, the law would require that
unless there was a change in circumstances the court could
not change the conditions of bail. The court believed that in
the current situation, where the defendant had agreed to
continue the hearing, this rule did not apply, and it could
consider whether to impose additional conditions although
there had been no change in circumstances and bail had
been set previously. The court asked the Attorney General
to explain why it had taken so long to request that Zhou’s
license be suspended, and invited the parties to argue their
positions.
The Attorney General explained that any delay in the
Board’s motion was due to the process that was routinely
followed when the Board transmits a referral to the Attorney
General, who then has to review it as well. The Attorney
General then argued that, with respect to the Board’s
burden, decisions at bail hearings are often based on
hearsay, and that oral testimony was unnecessary. Under
Penal Code section 1204, the court could rely upon the
reports of law enforcement to set bail.
9
The court responded that it would not prohibit either
party from presenting any evidence that party deemed
appropriate.
Defense counsel argued that oral evidentiary testimony
was necessary due to the drastic measures that were being
considered. Zhou was entitled to a full evidentiary hearing.
There had been no change in circumstances that would
warrant a change in conditions of release, and new
conditions could not be imposed in the absence of changed
circumstances. The People had delayed in bringing the
matter significantly. Regardless of when the Attorney
General became aware of the issue, the Board had been
aware of it for a significant time period, and had not acted
with any urgency, or taken any action that demonstrated
that Zhou represented a concern. Had there been a concern,
the matter could have already been heard under Business
and Professions Code 494. Moreover, no patient had raised a
complaint, nor had any colleague raised a concern that Zhou
was impaired in any way. Zhou had not been found guilty of
any crime, and he had a vested interest in keeping his
medical license. No evidence had been presented other than
a “very scant police report which hasn’t been proven up.”
Defense counsel further argued that, if there were a
public concern, less stringent measures for protecting the
public should be considered. Zhou agreed to be routinely
tested for drug use, and to work under supervision.
The court stated that it understood the burden of proof
was “clear and convincing and to a reasonable certainty as
10
far as the court granting the motion.” In this case, the drugs
had been delivered to Zhou, his name was on the package,
and he admitted to receiving them. Zhou could only have
possessed the drugs for one of two reasons: (1) personal use,
or (2) sale. Regardless of whether the case involved a
consumer complaint, under either scenario—personal use or
sale—he presented a real danger to the public.
Defense counsel responded that there were steps the
court could take that were less drastic than suspending
Zhou’s license. Zhou could be randomly drug tested. There
was already a system in place because the Board routinely
drug tested individuals on probation. It would also be
possible to restrict Zhou’s license instead of fully suspending
it.
The Attorney General countered that there could be no
doubt that Zhou presented a danger to the public,
particularly if he were allowed to continue to prescribe
drugs. The Attorney General could not limit Zhou’s D.E.A.
license, and doubted whether the court could order the
Board to accept Zhou into its probation program for the
purpose of drug testing.
Defense counsel acknowledged that Zhou’s D.E.A.
permit was not under the Board’s control, but asserted that
it could be addressed in the court’s order. The court could
also order drug testing. Zhou could agree to the testing as a
condition of bail.
The court expressed its reluctance to take the drastic
action of suspending Zhou’s license, and stated that it had
11
considered alternative methods to protect the public.
However, in light of the serious public safety concerns, the
court granted the motion to suspend Zhou’s license as a
condition of bail.
Zhou appealed to this court on September 23, 2019.
DISCUSSION
Zhou argues that the trial court lacked authority to
suspend his medical license as a condition of release because
(1) due process prohibits suspension of an occupational
license as a condition of bail, (2) Penal Code 23 does not
authorize a licensing agency to make recommendations
regarding conditions of bail, (3) suspension of Zhou’s medical
license is governed by the Administrative Procedure Act, and
(4) the terms for release on bail may not be increased absent
a showing of good cause or changed circumstances.2
Appealability and Standard of Review
The Attorney General contends that Zhou’s appeal
must be dismissed because the trial court’s order imposing a
condition of bail is not an appealable order. We agree that
the order is not reviewable on direct appeal. “‘The right to
appeal is statutory only, and a party may not appeal a trial
court’s judgment, order or ruling unless such is expressly
2Zhou phrases many of his arguments as violations by
the Board, which is not a party to this appeal.
12
made appealable by statute.’ [Citation.]” (Gray v. Superior
Court (2016) 247 Cal. App. 4th 1159, 1163.) There exists no
such statutory authority; a challenge to a condition of bail
must be made by extraordinary writ. (In re Catalano (1981)
29 Cal. 3d 1, 8 (Catalano) [“a prisoner released on bail,
although not actually confined, is eligible to seek habeas
corpus”]; In re Humphrey (2018) 19 Cal. App. 5th 1006, 1022
[habeas corpus is the proper vehicle by which to question the
legality of a bail grant or deprivation]; In re McSherry (2003)
112 Cal. App. 4th 856, 859–860 [same].) Nevertheless, in
appropriate circumstances, we may treat a direct appeal
from a non-appealable order as a writ of habeas corpus in
the interests of judicial economy. (People v. Segura (2008) 44
Cal. 4th 921, 928, fn. 4 [defendant’s appeal from trial court’s
denial of post-judgment motion to reduce the jail term
included in his conditions of probation properly treated by
court of appeal as a writ of habeas corpus].)
Although a petition for writ of habeas corpus is
normally the vehicle for challenging a bail condition, a writ
of mandate is also appropriate in cases like the instant one
in which the defendant seeks “‘to compel the performance of
an act which the law specially enjoins, as a duty resulting
from an office, trust, or station’ . . . [Citations.]” (Flores v.
Department of Corrections & Rehabilitation (2014) 224
Cal. App. 4th 199, 205.) Under unusual circumstances, where
doing so would serve the interests of justice and judicial
economy, an appellate court may exercise its discretion to
construe an appeal as a petition for writ of mandate.
13
(Morehart v. County of Santa Barbara (1994) 7 Cal. 4th 725,
732.)
We have such a situation before us. In this case,
Zhou’s medical license has been suspended for a substantial
period of time. Any other potential avenue of relief would
significantly prolong Zhou’s uncertainty regarding his ability
to practice medicine, and involve unnecessary duplicative
effort and use of resources by this court. Moreover, as “the
issue is purely legal in nature, there is no need for an
evidentiary hearing permitted by the procedures governing
habeas corpus petitions.” (Gray, supra, 125 Cal.App.4th at
p. 636, fn. 3.) Accordingly, we construe the appeal as a
petition for writ of mandate.
Because the matter before us presents a pure question
of law, we review the trial court’s order setting bail
conditions de novo. (Naidu, supra, 20 Cal.App.5th at p. 306.)
Trial Court’s Authority
Zhou’s arguments on appeal ultimately pose two
questions: (1) whether a trial court may impose additional
conditions after bail has been posted, and (2) whether the
suspension of Zhou’s medical license was proper in this case.
14
Authority to Impose Additional Conditions After
Bail is Posted
Our Supreme Court has held that trial courts may
impose reasonable conditions of bail with a sufficient nexus
to public safety, and may do so even after a defendant has
posted bail. (In re Webb (2019) 7 Cal. 5th 270, 277–278
(Webb).) In Webb, the defendant was arrested, and charged
with two felony counts. She posted bail and was released.
At arraignment, the trial court imposed as an additional
condition of release that the defendant waive her fourth
amendment right to be free of warrantless and unreasonable
searches. (Id. at p. 271.) The defendant challenged the
search condition by writ of habeas corpus in the Superior
Court and her petition was denied. She then filed a petition
for writ of habeas corpus in the Court of Appeal, “‘contending
the magistrate lacked statutory or inherent authority to
impose the bail search condition, and imposition of the
condition constitutes a pretrial restraint without due process
protections such as notice and a hearing or any showing that
she poses a heightened risk of misbehaving while on bail.’
[Citations.]” (Id. at p. 272.) The Court of Appeal issued an
order to show cause and ultimately concluded that the court
lacked authority to impose the condition. (Ibid.) It did not
reach the question of whether the defendant’s due process
rights to notice and a fair hearing were violated by
imposition of the condition. (Id. at pp. 272–273.)
15
The District Attorney petitioned for review on the issue
of whether “‘trial courts possess inherent authority to impose
reasonable bail conditions related to public safety on felony
defendants who are released on monetary bail.’” (Webb,
supra, 7 Cal.5th at p. 273.) The Supreme Court answered
the question in the affirmative. It held, “trial courts have
authority to impose reasonable conditions related to public
safety on persons released on bail. We need not here
consider in detail the exact contours of this authority. We
stress, however, that, as the concurring justice noted below,
this authority is ‘fairly narrow.’ [Citation.] Any condition
must be reasonable, and there must be a sufficient nexus
between the condition and the protection of public safety.”3
(Id. at p. 278.)
In light of Webb’s holding that the trial court has
authority to impose bail conditions, we need not address
whether the Board was authorized to appear to make
recommendations regarding conditions of bail under Penal
Code section 23,4 as the trial court’s order would not become
3 The Webb court noted that “[t]he district attorney
expressly did not seek review of the specific question ‘of
whether the bail condition imposed in this case was a proper
exercise of the trial court’s inherent authority.’” (Webb,
supra, 7 Cal.5th at p. 274.) For this reason, and because the
question had become moot as to the defendant, the court did
not address it. (Ibid.)
4 As relevant here, Penal Code section 23 provides that
“In any criminal proceeding against a person who has been
16
invalid simply because the Board purported to appear
pursuant to that section.
We reject Zhou’s argument that the People must
demonstrate good cause or changed circumstances before the
trial court may impose additional conditions of release
pursuant to Penal Code section 1289. First, Penal Code
section 1289 provides in pertinent part: “After a defendant
has been admitted to bail upon an indictment or
information, the Court in which the charge is pending may,
upon good cause shown, either increase or reduce the
amount of bail.” The statute refers to the “amount of bail,”
not the “conditions of bail,” which indicates that the
Legislature intended that it apply to monetary bail, and not
conditions of release. (People v. Statum (2002) 28 Cal. 4th
682, 690 [“The plain language of the statute establishes
what was intended by the Legislature”].) Second, in Webb,
in which Penal Code section 1289 would have been directly
issued a license to engage in a business or profession by a
state agency pursuant to provisions of the Business and
Professions Code or the Education Code, or the Chiropractic
Initiative Act, the state agency which issued the license may
voluntarily appear to furnish pertinent information, make
recommendations regarding specific conditions of probation,
or provide any other assistance necessary to promote the
interests of justice and protect the interests of the public, or
may be ordered by the court to do so, if the crime charged is
substantially related to the qualifications, functions, or
duties of a licensee.” Zhou argues that the Board may
appear to make recommendations of conditions of probation
but not conditions of bail.
17
implicated if it were applicable, the Supreme Court placed
no such restraints on the trial court. While we recognize
that Webb does not expressly hold that Penal Code section
1289 is inapplicable, we find its omission from the discussion
significant. Third, we are inclined to agree with the trial
court that, even if Penal Code section 1289 is generally
applicable to release conditions, in a case where the court is
prepared to consider conditions of release at the time it sets
bail, but the defendant stipulates to continue the matter
with respect to release conditions, the People should be
excepted from demonstrating that good cause or changed
circumstances compel additional conditions.
Authority to Suspend Zhou’s Medical License in
This Case
Citing to Gray, supra, 125 Cal. App. 4th 629, and Naidu,
supra, 20 Cal. App. 5th 300, Zhou argues that conditioning
bail upon the restriction of his occupational license, which is
a vested property right, necessarily violates due process.
Neither case so holds.
In Gray, the Court of Appeal considered whether the
trial court could prohibit a physician—who was charged,
among other things, with unlawfully prescribing and
possessing controlled substances—from practicing medicine
as condition of bail, at the request of the Medical Board of
California. The Gray court held that “the bail condition
Gray challenges is not per se unreasonable. The Medical
18
Board could legitimately achieve the same result through a
variety of procedures available to it. What makes the
condition unreasonable is that its imposition violated Gray’s
right to procedural due process . . . .” (Gray, supra, 125
Cal.App.4th at p. 643.)
The Court of Appeal in Naidu agreed. There, the court
considered whether the trial court could suspend two
contractors’ occupational licenses as a condition of bail. The
Naidu court cited Gray with approval: “Gray acknowledges
that the bail condition at issue there was ‘not per se
unreasonable.’ [Citation.] To borrow words from Endler [v.
Schutzbank (1968) 68 Cal. 2d 162, 170]: ‘We are thus
concerned here not with the ends which might justify
governmental restrictions upon the right to follow a chosen
profession but only with the means which government must
employ in enforcing admittedly permissible restraints.’
[Citation.]” (Naidu, supra, 20 Cal.App.5th at p. 309.)
Thus, neither case held that the suspension of an
occupational license as a condition of bail was a violation of
due process per se. Both cases did hold, however, that when
a trial court imposes a bail condition that implicates a
fundamental liberty such as engaging in one’s occupation,
due process requires that certain procedural protections
apply.
In Gray, the court concluded that “[t]he trial court
significantly impaired Gray’s freedom to pursue a private
occupation without giving him notice, an effective
opportunity to confront the charges or witnesses against
19
him, or a full hearing, in violation of his due process rights.”
(Gray, supra, 125 Cal.App.4th at p. 638.) The Court held
that “[a]t a minimum, the suspension must be based on
evidence showing an immediate risk to the public. . . . [T]he
Medical Board seems to suggest it can seek an immediate
and indefinite suspension of a medical license without
notice, evidence, or an adequate opportunity to litigate the
issues, simply because criminal charges have been filed. We
find no support for the proposition that the due process and
proof required for a license suspension may be ignored when
a criminal complaint has been filed against a licensee.”
(Gray, supra, at p. 640.)
The Naidu court stated, “under both state and federal
law, ‘due process is flexible and calls for such procedural
protections as the particular situation demands.’ (Morrissey
v. Brewer (1972) 408 U.S. 471, 481 [(Morrissey)]; see [People
v.] Ramirez [(1979)] 25 Cal. 3d 260, 268 [(Ramirez)] [same].)
The federal due process inquiry ‘“must begin with a
determination of the precise nature of the government
function involved as well as of the private interest that has
been affected by governmental action.”’ (Morrissey, at
p. 481.) Similarly, under California law, ‘the extent to which
due process relief will be available depends on a careful and
clearly articulated balancing of the interests at stake in each
context. . . . More specifically, identification of the dictates
of due process generally requires consideration of (1) the
private interest that will be affected by the official action, (2)
the risk of an erroneous deprivation of such interest through
20
the procedures used, and the probable value, if any, of
additional or substitute procedural safeguards, (3) the
dignitary interest in informing individuals of the nature,
grounds and consequences of the action and in enabling
them to present their side of the story before a responsible
governmental official, and (4) the governmental interest,
including the function involved and the fiscal and
administrative burdens that the additional or substitute
procedural requirement would entail.’ (Ramirez, supra, 25
Cal. 3d 260 at p. 269.)” (Naidu, supra, 20 Cal.App.5th at
p. 311.) The court acknowledged that protection of the
public safety was the “‘primary consideration,’” but rejected
“any notion that the People have an interest in protecting
the public at the expense of a criminal defendant’s due
process rights, and, as we have intimated, due process
requires that at least some evidence of danger to the public
support an order suspending a business license as part of a
bail order.” (Id. at pp. 312–313.)
The Naidu court concluded that the trial court had
violated the defendants’ due process rights in that case.
(Naidu, supra, 20 Cal.App.5th at p. 314.) The only
“evidence” the People presented of the defendants’
dangerousness was counsel’s declaration stating that the
Contractors State License Board’s position that it believed
the defendants were dangerous and that their licenses
should be suspended pending the outcome of the criminal
proceedings. (Id. at p. 313.) Counsel’s statements were not
21
evidence absent a showing that the statements were made
on the basis of personal knowledge. (Id. at pp. 313–314.)
The Naidu court rejected the People’s argument that
defendants’ licenses could be suspended based on the filing
of a felony complaint. (Naidu, supra, 20 Cal.App.5th at
pp. 314–319.) The People argued that there were several
cases in which a suspension of an occupational license met
the requirements of due process where an information or
indictment had been filed. The Naidu court distinguished
these cases, explaining that “the first pleading in a felony
case (i.e., an indictment or information) is supported by
conclusions drawn by a magistrate or grand jury after
presentation of evidence. In contrast, the complaint in a
felony case is not supported by evidence but instead begins
the process of introducing it.” (Id. at p. 316.) The filing of an
information or indictment was sufficient in the cases the
People relied upon, because there had been “some form of
factfinding before the suspension of the license to practice a
trade [was] ‘[]justified.’ [Citation.] Either an information or
an indictment will likely demonstrate that such factfinding
has occurred, and that there is probable cause to think a
crime was committed by the defendant(s).” (Id. at p. 317.)
The Naidu court concluded that “[D]ue process
requires only a showing of probable cause that a criminal
defendant poses an immediate risk of danger to the public if
allowed to continue to operate under a professional license in
order to ensure that the suspension is not arbitrary,
baseless, or unwarranted. ([Federal Deposit Insurance
22
Corporation v.] Mallen [(1988)] 486 U.S. [230,] 240–241, 244;
American Liberty [Bail Bonds, Inc. v. Garamendi (2006)] 141
Cal.App.4th [1044,] 1060; [Gilbert v.] Homar [(1997)] 520
U.S. [924,] 934.) Unless a defendant can show that a
different standard is specifically required by a statute
applicable to the inquiry, we see no reason to depart from
the probable cause requirement.” (Naidu, supra, 20
Cal.App.5th at p. 319.)
Here, the parties disagree as to the appropriate burden
of proof. The People argue that the evidence need only be
sufficient to establish probable cause that Zhou posed an
immediate risk to the public, as the court held in Naidu.
Zhou argues that the standard of proof needed to support a
final decision restricting or revoking a medical license in an
administrative proceeding is clear and convincing proof to a
reasonable certainty, and that a lesser standard would be
inappropriate. (Ettinger v. Board of Medical Quality
Assurance (1982) 135 Cal. App. 3d 853, 856.) The trial court
employed the more stringent clear and convincing standard
that Zhou advocates. Because we conclude that the evidence
was sufficient for the trial court to find that clear and
convincing proof to a reasonable certainty supported
suspension of Zhou’s license, we need not address the issue
further.
In this case, Zhou received the appropriate due process
protections. With respect to notice, he was first informed of
the Board’s intention to appear and recommend suspension
of his license on July 29, 2019, approximately six weeks prior
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to the bail condition hearing. The Board filed its
recommendation on September 9, 2019, two days before the
hearing took place. Defense counsel timely filed an
opposition to the recommendation at the September 11, 2019
hearing, which the trial court reviewed and considered. The
opposition argued that the limited time for preparation was
a violation of due process, but defense counsel did not
request a continuance to better prepare for the hearing, or
object that Zhou would present additional evidence at a
hearing given adequate opportunity. In short, notice seems
to have been adequate to permit Zhou to respond to the
Board’s recommendation. As we will discuss post, the
evidence that supported the trial court’s finding was
Detective Kalassay’s sworn statement in the investigative
report, which was attached to the complaint. Defense
counsel could not have been surprised by the report. To the
contrary, she would have had access to it prior to July 29,
2019, when the Board first announced its intent to make the
recommendation, and therefore had the opportunity to
prepare to rebut the statements contained therein.
Additionally, Zhou was afforded the opportunity for a
full and fair evidentiary hearing. The parties agreed to
continue the proceedings on the issue of the recommended
license suspension from July 29 to September 11—i.e., the
entirety of the September 11 hearing was devoted to the
issue of Zhou’s licensure. Although defense counsel argued
that Zhou was entitled to a full evidentiary hearing, she did
not explain what aspect of the September 11 hearing was
24
lacking, or state what, if any, evidence she was unable to
proffer or rebut at that time. In fact, the trial court stated
clearly that it was “not limiting either side from presenting
any evidence they deem appropriate.” Defense counsel did
not complain following the trial court’s invitation, or request
a continuance to gather additional evidence, or proffer that
there was additional evidence that could be presented at a
later time. Under the circumstances, we cannot say that
Zhou was hampered in his defense.
Finally, clear and convincing proof to a reasonable
certainty supported the trial court’s ruling. Detective
Kalassay’s incident report, which contained his sworn
statements describing his personal knowledge of the case,
was attached to the complaint. In it, the detective stated
that Zhou accepted the illegal drugs that were addressed
and delivered to him in the undercover operation. The
detective was involved in the search and seizure operation.
He was present when some of the controlled substances were
discovered in the bedroom that Zhou identified as his own,
and assisted in cataloguing the drugs. Detective Kalassay
also spoke with Zhou, who admitted that he had ordered
controlled substances from foreign countries without a
prescription for his personal use.5 Zhou was a medical
doctor who had access to controlled substances and was
authorized to write medical prescriptions. These facts
constituted clear and convincing proof to a reasonable
5Zhou never refuted that he made any of these
statements to Detective Kalassay.
25
certainty that Zhou presented an immediate risk to the
public safety either through prescribing and selling
controlled substances in cases where there was no medical
justification, or through abusing the drugs himself.6
Moreover, the trial court took the relevant factors in
Zhou’s favor into consideration. The court heard and
considered argument regarding less stringent alternatives to
suspension of Zhou’s medical license, but found them
unsatisfactory. The court understood the gravity of its
ruling and the effect that it would have on Zhou, and
informed the parties that it was “very reluctant” to take this
“very drastic action,” but found that Zhou’s personal interest
in his medical license was outweighed by the risk of harm.
6 The present case differs significantly from Naidu,
where the evidence essentially consisted of the bare
allegations in the complaint. Here, it is not the complaint
that supports the trial court’s order but the sworn
statements attached thereto, upon which the trial court
based its findings.
26
DISPOSITION
The Peoples’ request for judicial notice filed August 28,
2020 is granted.
Zhou’s request for judicial notice filed September 16,
2020 is granted.
The petition for writ of mandate is denied.
MOOR, J.
We concur:
RUBIN, P. J.
BAKER, J.
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