Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CRF05005
OPINION ON REHEARING
SIMS, J.
INTRODUCTION
Defendant Gabriel Jose Lopez, Jr., found guilty of violating drug-related and non-drug-related conditions of his probation for drug rehabilitation under Proposition 36 (Pen. Code, § 1210 et seq., added by Initiative Measure Prop 36, eff. July 1, 2001, approved Nov. 7, 2000 (Prop 36)), appeals following revocation of his Prop 36 probation and imposition of a prison sentence for the underlying narcotics conviction. Defendant contends the trial court sentenced him to prison based in part on the court’s unawareness of a 2006 legislative amendment (Sen. Bill 1137 (SB 1137)) to section 1210.1, allowing the court to use short-term jail incarceration as a tool to enhance compliance with a Prop 36 rehabilitation program. (§ 1210.1, subd. (f)(2); Stats. 2006, ch. 63, § 7, effective July 12, 2006.)
Undesignated statutory references are to the Penal Code.
Section 1210.1, as amended, provides in part: “(f)(1) If probation is revoked pursuant to the provisions of this subdivision, the defendant may be incarcerated pursuant to otherwise applicable law without regard to the provisions of this section. The court may modify or revoke probation if the alleged violation is proved. [¶] (2) If a defendant receives probation under subdivision (a), and violates that probation . . . by violating a non-drug-related condition of probation, and the state moves to revoke probation, the court may remand the defendant for a period not exceeding 30 days during which time the court may receive input from treatment, probation, the state, and the defendant, and the court may conduct further hearings as it deems appropriate to determine whether or not probation should be reinstated under this section. If the court reinstates the defendant on probation, the court may modify the treatment plan and any other terms of probation, and continue the defendant in a treatment program under the Substance Abuse and Crime Prevention Act of 2000. If the court reinstates the defendant on probation, the court may, after receiving input from the treatment provider and probation, if available, intensify or alter the treatment plan under subdivision (a), and impose sanctions, including jail sanctions not exceeding 30 days, a tool to enhance treatment compliance.” (§ 1210.1, subd. (f)(1), (2); Stats. 2006, ch. 63, § 7, eff. July 12, 2006, italics added.)
Our original opinion, filed March 19, 2008, stated we did not need to decide whether the trial court was unaware of the 2006 amendment, because the trial court could not have applied the amendment due to a “statewide” preliminary injunction from the Alameda County Superior Court in an unrelated case -- Gardner v. Schwarzenegger (Super. Ct. Alameda County, 2006, No. RG06278911) -- enjoining the Attorney General from expending public funds (Code Civ. Proc., § 526a) to enforce or give effect to the 2006 amendment pending adjudication of taxpayers’ claims that the 2006 amendment is unconstitutional. The Alameda County injunction was in effect at the time the Sutter County trial court acted in the case before us.
Defendant petitioned for rehearing on the ground the issue of the Alameda County injunction had not been briefed by either party. (Gov. Code, § 68081.) We granted rehearing and invited supplemental briefs on the question whether the Alameda County trial court’s preliminary injunction affects this case.
We shall conclude (1) the Alameda County case has no bearing on defendant’s case; (2) in the absence of a challenge by the People to the 2006 amendment’s constitutionality, we presume the amendment’s constitutionality; and (3) it appears from the record that the trial court was unaware of the amendment. We accordingly shall vacate defendant’s sentence and remand for resentencing.
FACTUAL AND PROCEDURAL BACKGROUND
In 2005, defendant was charged with two offenses committed on December 6, 2004 -- (1) second degree burglary for entering a locked vehicle with intent to steal it (§ 459); and (2) possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)). The prosecution also alleged defendant’s 1993 conviction for discharging a firearm at a vehicle (§ 246) was a prior serious felony conviction under sections 667.5 and 1192.7. In February 2006, defendant pleaded no contest to possession of a usable amount of methamphetamine (count two) and admitted the prior conviction, pursuant to a plea agreement in which defendant would be referred for Prop 36 probation (§ 1210.1) and the prosecution would dismiss the burglary charge (count one).
On April 17, 2006, the trial court imposed three years of probation under Prop 36 with various conditions, including completion of a Prop 36 rehabilitation program.
On May 22, 2006, the county probation department asked the court to issue a bench warrant based on a declaration of defendant’s probation officer alleging defendant violated his probation conditions by (a) submitting urine samples that tested positive for narcotics on four separate dates -- April 28 and May 2, 5, and 9; (b) failing to attend substance abuse counseling and “detox;” and (c) failing to advise his probation officer that the rehabilitation program discharged him. An amended declaration filed on November 13, 2006, added that defendant had failed to report to the probation officer since May 5, 2006, and left the state of California in May 2006 without the probation officer’s permission. On January 30, 2007, the probation officer filed another declaration alleging defendant left the state of California between January 19 and 30, 2007, without written consent of the probation officer.
At a contested hearing, defendant admitted he used heroin while on probation. He entered a rehabilitation program in Mexico. The probation department received a phone call from defendant’s sister saying defendant went out-of-state for drug treatment. Defendant was arrested when he tried to re-enter the country after learning an arrest warrant had issued.
On March 29, 2007, the trial court found true the allegations that defendant violated probation conditions by (a) testing positive for the presence of amphetamine and morphine on May 5, 2006; (b) failing to attend counseling and detox; and (c) failing to advise his probation officer of his discharge from the rehabilitation program. The court also found true the allegation of the January 2007 declaration, that defendant violated probation by leaving the state in January 2007 without the probation officer’s written consent.
On May 11, 2007, the trial court revoked defendant’s Prop 36 probation and sentenced him to four years in prison for the underlying offense of methamphetamine possession (the midterm doubled due to the prior conviction). The trial court explained its reasoning, stating most of the probation violations would entitle defendant to reinstatement on Prop 36 probation, except the non-drug-related violation of leaving the state without his probation officer’s consent. The court said even if it had discretion to reinstate defendant on Prop 36 probation, it would not do so.
Although the 2006 amendment to section 1210.1 (fn. 2, ante) gave the trial court discretion to impose a 30-day jail term while reinstating Prop 36 probation, the record shows the following during the discussion about “regular, formal felony probation:”
The court noted defendant said he had not used drugs for 10 or 11 months preceding the sentencing hearing (during part of which defendant was in custody for the probation violations). Defense counsel argued the way to test defendant’s current level of commitment was to reinstate probation. The trial court was unpersuaded and said:
“THE COURT: Mr. Tibbitts [defense counsel], I’m trying to lead you through this argument for one reason -- or two reasons and two reasons only: (1) the underlying crime involves possessing a tenth of a gram, isn’t it? A tenth of a gram of methamphetamine, and that really bothers me to send the man to prison for the amount of time, quite frankly, that he’s entitled to [sic], which is six years over a tenth of a gram.
“[(2)] The second thing that bothers me is the nature of Prop 36 is it can’t use jail time to motivate people to rehab themselves. [Italics added.] So consequently, prior to his arrest for the violation of probation which occurred when he was trying to return to the United States from Mexico, if I recall correctly, he only had two days in. Now he’s got a chunk of more jail time now because he’s been sitting in custody while we litigate the violation of probation. But he still has, I would imagine, 150 or more days left even after he gets good time/work time credit.
The trial court ultimately imposed a two-year midterm sentence, doubled to four years for the prior conviction, minus 224 days credit (150 days for actual time served in physical custody and 74 days good-time/work-time credit).
“Those are the things that, in my mind, weigh in his favor for an argument of a grant of probation. What weighs against him, in my mind, is the fact that No. 1: He’s got a strike prior. That’s how we get to the . . . double term. But that’s not his only felony. This is a gentleman who is presumptively ineligible for probation, and had he not been eligible for Prop 36 to start with, he would never have got probation because he has a prior conviction in ’93 for [section] 246 [firing a gun at a vehicle] . ., and that’s pretty darn serious, Mr. Tibbitts. [¶] Then I see a [2000 conviction for violation of Health & Safety Code, section] 11352 . . . . [¶] And then we roll up to his third felony conviction [a drug offense committed in 2004, after he finished his earlier probation].
“So had he not been eligible for Prop 36 back in February of last year, the court would have been denying probation and sending him to prison then, and that’s pretty persuasive in and of itself because he’s been given an opportunity to take advantage of Prop 36. He violated Prop 36 with drug-related violations, and violated that probation with a non-drug, non-reinstatement on probation type offense. By that, I mean Prop 36 probation, and that really weighs heavily against him.” (Italics added.)
Defendant appeals.
DISCUSSION
I. The Alameda County Case
We allowed the parties to file supplemental briefs regarding the effect, if any, of the Alameda County trial court’s injunction against enforcement of the 2006 legislative amendment to Prop 36. We shall conclude the Alameda County case has no effect on this case.
A. Background of the Alameda County Case
We take judicial notice of the following records of the Alameda County Superior Court in Gardner v. Schwarzenegger, supra, No. RG06278911: (1) The first amended complaint filed September 16, 2006; (2) the preliminary injunction order dated September 14, 2006; and (3) a May 7, 2008, order granting summary judgment (a copy of which was attached to the Attorney General’s supplemental brief). (Evid. Code, § 452, subd. (d).) We also take judicial notice of a judgment in the Alameda County case, filed on July 14, 2008 (after the parties in our case filed their supplemental briefs).
The Alameda County case, as construed by the Alameda County Superior Court, is a taxpayer suit to restrain waste of public funds under Code of Civil Procedure section 526a (CCP section 526a). The plaintiffs, who allege standing as taxpayers and citizens acting in the public interest, are Cliff Gardner, Drug Policy Alliance, and California Society of Addiction Medicine. The plaintiffs assert in the Alameda County trial court that SB 1137, which grants courts discretion to impose jail sanctions for probation violations, violates the constitutional provision (Cal. Const, art. II, § 10) restricting legislative amendment of initiative statutes.
Code of Civil Procedure section 526a provides: “An action to obtain a judgment, restraining and preventing any illegal expenditure of, waste of, or injury to, the estate, funds, or other property of a county, town, city or city and county of the State, may be maintained against any officer thereof, or any agent, or other person, acting in its behalf, either by a citizen resident therein, or by a corporation, who is assessed for and is liable to pay, or, within one year before the commencement of the action, has paid, a tax therein. This section does not affect any right of action in favor of a county, city, town, or city and county, or any public officer; provided, that no injunction shall be granted restraining the offering for sale, sale, or issuance of any municipal bonds for public improvements or public utilities . . . .”
In addition to alleging taxpayer standing, the Alameda County plaintiffs also allege “public interest standing” to enforce a public duty. The Alameda County trial court expressly found CCP section 526a taxpayer standing. We see no express finding of public interest standing apart from CCP section 526a. The parties in our case do not address the distinction, and we need not discuss the matter. We observe, of course, we have no jurisdiction over the Alameda County court, and nothing in our opinion affects that court’s proceedings.
The named defendants in Alameda County are the Governor (who signed SB 1137 into law), the Secretary of State (who would decide whether to place the matter on the state ballot if the court invalidated the statute), the Attorney General (who has supervisory powers over district attorneys and other law enforcement officials in the state pursuant to Cal. Const., art. V, § 13, and Gov. Code, §§ 12524, 12550 and 12560), the Alameda County Sheriff, and the Alameda County District Attorney.
CCP section 526a suits are appropriate vehicles to enjoin government officials from expending public funds to implement or enforce unconstitutional state statutes, including penal statutes. (Sundance v. Municipal Court (1986) 42 Cal.3d 1101 [trial court found drunk-in-public penal statute unconstitutional in part but denied taxpayer’s request for injunction because enforcement did not constitute waste of public funds]; Blair v. Pitchess (1971) 5 Cal.3d 258, 271 [civil claim and delivery statute implicated Fourth Amendment protection against unreasonable seizures]; Ames v. City of Hermosa Beach (1971) 16 Cal.App.3d 146, 150-151 [municipal ordinances prohibited loitering and rentals to minors and required landlords to report tenant information to Chief of Police].) Although CCP section 526a refers to suits against local government officials, it has been liberally construed to apply to suits against state agencies and state officers. (Blair v. Pitchess, supra, 5 Cal.3d at p. 268 [city/county officials who implement state statutes are proper parties defendant in CCP section 526a cases and may be enjoined from implementing statutes found to be unconstitutional]; Cates v. California Gambling Control Com. (2007) 154 Cal.App.4th 1302, 1308.)
The Alameda County trial court determined the plaintiffs showed a likelihood of prevailing on the merits and interim harm to the community at large and, on September 14, 2006, the Alameda County court issued the preliminary injunction, enjoining and restraining the defendants (Governor, Attorney General, Secretary of State, and Alameda County defendants) “from taking any action to implement, enforce or give effect to Senate Bill 1137 . . . .”
In response to the defendants’ argument that all of the plaintiffs’ evidence related to counties other than Alameda County, the trial court said the evidence was persuasive with respect to a law of “state-wide” applicability, and one that the County defendants would be bound to apply “just like any other county.” (Gardner v. Schwarzenegger, supra, RG06278911, order granting preliminary injunction, Sept. 14, 2006.) The trial court said in a footnote, “Because it does not affect the ruling on the preliminary injunction, the Court does not reach . . . the question of whether other defendants ought to be joined in this action, as argued by the County defendants.” (Ibid.)
While Lopez’s appeal was pending in this court, the Alameda County trial court, on May 7, 2008, issued an order (1) granting the plaintiffs’ motion for summary judgment on the ground the 2006 amendment to section 1210.1 is unconstitutional, (2) directing issuance of a writ of mandate prohibiting the defendants (including the Attorney General) from implementing the 2006 amendment (SB 1137), and (3) directing the plaintiffs to prepare a judgment.
The Alameda County order granting summary judgment does not mention the issue of unjoined parties. The Alameda County trial court found SB 1137 unconstitutional (Cal. Const., art. II, § 10 [Legislature may amend initiative statute without voter approval only where permitted by the initiative statute]), because Prop 36 allows legislative amendment only where such amendment furthers and is consistent with the purposes of Prop 36. (Prop. 36, § 9, 50D West’s Ann. Codes, Pen. Code, Historical and Statutory Notes to § 1210, p. 640.) The Alameda County trial court found certain provisions of SB 1137 are inconsistent with Prop 36’s purposes, because the purported amendments expand the court’s ability to exclude defendants from Prop 36 and allow up to 30 days incarceration without proof of a violation. The Alameda County trial court said that, because SB 1137 contained a nonseverability clause, the invalid provisions could not be severed from the whole of SB 1137, and therefore SB 1137 is invalid in its entirety. The Alameda County trial court concluded, “let a writ of mandate issue directing Defendants to refrain from implementing, enforcing or giving effect to any of the provisions of SB 1137. Plaintiffs are likewise entitled to a permanent injunction restraining Defendants from implementing, enforcing, or giving effect to any of the provisions of SB 1137, because certain of them are unconstitutional and the remainder are not severable.”
The Alameda County Superior Court on July 14, 2008, filed its “JUDGMENT GRANTING WRIT OF MANDATE AND INJUNCTIVE AND DECLARATORY RELIEF.” It declared SB 1137 invalid; issued an injunction enjoining the named defendants and their successors, agents, employees, and all persons acting in concert with them or participating with them, from taking any action to implement, enforce, or give effect to SB 1137; and directed issuance of a writ of mandate directing the named defendants and their successors in office, to refrain from taking any action to implement, enforce, or give effect to SB 1137, and to direct all persons acting under their direction or control to so refrain.
B. Effect of Alameda County Case on this Appeal
Our original opinion in this case cited People v. Hartley (2007) 156 Cal.App.4th 859, where we mentioned the Alameda County trial court’s preliminary injunction, though it had no potential effect because the Hartley trial court proceedings predated the 2006 amendment of section 1210.1. (Id. at p. 861, fn. 1.) We also referred to the Alameda County injunction as enjoining enforcement of the 2006 amendment in two subsequent cases -- People v. Enriquez (2008) 160 Cal.App.4th 230 at page 240, footnote 2 (applied pre-amendment version of § 1210.1), and People v. Hazle (2007) 157 Cal.App.4th 567 at page 577, footnote 1 (dictum).
We observe all three of these opinions were issued after defendant’s hearing and therefore could not have influenced the Sutter County trial court.
Defendant notes none of the three cases provides legal analysis of the issue whether the Alameda County injunction enjoined other county courts from applying the 2006 amendment.
Defendant argues the Alameda County injunction has no bearing on this Sutter County case, because the injunction did not enjoin any government official or governmental body responsible for operation and function of the state courts, and it is the court which implements section 1210.1, not the Attorney General. Defendant’s cited authorities miss the mark, because they involve rulings by different departments within the same superior court or are otherwise distinguishable. (People v. Gonzalez (1996) 12 Cal.4th 804, 815 [municipal court and appellate department of same county superior court had jurisdiction to entertain defendant’s collateral attack on validity of injunction that was the basis of contempt charges]; Williams v. Superior Court (1939) 14 Cal.2d 656, 662-663 [different departments of same superior court]; People v. Ellison (2003) 111 Cal.App.4th 1360, 1367 [different judges of same superior court]; People v. Madrigal (1995) 37 Cal.App.4th 791, 794-796 [different districts of same superior court].) Defendant cites dictum in Gonzalez, supra, 12 Cal.4th at page 815, that one superior court generally lacks jurisdiction to overturn, enjoin or declare void the order of another superior court (because the state Constitution limits the power to overturn superior court orders to the appellate courts). However, neither the Alameda County Superior Court nor the Sutter County Superior Court purported to overturn, enjoin or declare void any order of the other county.
The Attorney General does not address the Alameda County injunction but instead argues the Alameda County trial court’s recent declaration of the amendment’s unconstitutionality in the order granting summary judgment (and ensuing judgment) renders the amendment unenforceable in this case. However, the cited authorities merely refer to the jurisdiction of all courts to make decisions regarding the constitutionality of statutes; they say nothing about one superior court binding another superior court.
We shall conclude the Alameda County Superior Court proceedings have no bearing on the case before us.
As to the Alameda County preliminary injunction, an injunction is a personal decree that operates on the person of the defendant, or his or her agents, by commanding him or her to do or desist from certain action. (Comfort v. Comfort (1941) 17 Cal.2d 736, 741.) Injunctions may run to the defendant’s agents who have notice of the injunction. (Berger v. Superior Court (1917) 175 Cal. 719, 721.)
The Alameda County trial court did not purport to make its preliminary injunction binding on the Sutter County Superior Court or any officer of Sutter County. Although the Alameda County Superior Court used the terms “community at large” and “statewide,” it merely said that the interim harm test for an injunction could consider the community at large and, since the issue involved a law of statewide applicability, it was no defense for the county defendants from Alameda County to argue that the plaintiffs’ only evidence came from other counties (San Francisco and Los Angeles). The Alameda County trial court said in a footnote, “Because it does not affect the ruling on the preliminary injunction, the Court does not reach of [sic] the question of whether other defendants ought to be joined in this action, as argued by the County defendants.” Thus, the Alameda County trial court did not purport to enjoin anyone in Sutter County.
The Sutter County Superior Court, like all superior courts, has original jurisdiction of all causes, other than specified exceptions not applicable here. (Cal. Const., art. VI, § 10 [“Superior courts have original jurisdiction in all other causes”].) The Sutter County Superior Court had original jurisdiction over defendant’s case.
Generally, the Sutter County Superior Court is not required to follow a ruling by the Alameda County Superior Court, because trial courts make no binding precedents. (Santa Ana Hospital Medical Center v. Belshe (1997) 56 Cal.App.4th 819, 831; 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, §486, p. 546.)
We see nothing depriving the Sutter County Superior Court of its original jurisdiction to sentence defendant using the amended version of section 1210.1.
We recognize the Attorney General, who represents the People in this appeal, is a named defendant in the Alameda County case. We shall assume the Attorney General is a proper party defendant in the Alameda County case. (Serrano v. Priest (1976) 18 Cal.3d 728, 752 [in action challenging constitutionality of state statute, state officers with statewide administrative functions under the challenged statute are proper parties defendant].) However, though the Attorney General has authority to act as prosecutor in the trial court (Gov. Code, § 12550), the Attorney General does not normally do so and does not normally appear in criminal sentencing hearings in the trial court, where matters are handled by county district attorneys.
The Sutter County District Attorney is not a named party in the Alameda County case. Though the Attorney General supervises district attorneys, who represent the state in criminal prosecutions (Cal. Const., art. V, § 13; Pitts v. County of Kern (1998) 17 Cal.4th 340, 356-362), and though an injunction may enjoin a party’s agents (Ross v. Superior Court (1977) 19 Cal.3d 899, 903-905 [county board of supervisors which administered welfare payments was bound by injunction against state welfare department and its agents]), the Alameda County preliminary injunction did not expressly enjoin agents of the named defendants.
In any event, we seriously doubt that the Alameda County Superior Court’s preliminary injunction, which restrains expenditure of public funds on enforcement of SB 1137, could be binding on the Sutter County District Attorney. In our case, it is defendant, not the People, who seeks to invoke the amended version of section 1210.1, and it is the trial court which has authority to implement this sentencing statute, with or without the People’s consent. (People v. Thomas (2005) 35 Cal.4th 635, 640 [“imposition of sentence and the exercise of sentencing discretion are fundamentally and inherently judicial functions”].)
Injunctions in section 526a cases generally enjoin government officials who have the power to take some form of action (or inaction) to implement or enforce a statute challenged as unconstitutional by taxpayers. For example, Maria P. v. Riles (1987) 43 Cal.3d 1281, though an attorney fee case, involved a statewide injunction enjoining the state superintendent of schools from adopting regulations to implement an Education Code provision requiring schools to deny admission to illegal aliens and report the children’s immigration status to the Board of Supervisors, to be forwarded to the Immigration and Naturalization Service (INS). (Id. at pp. 1286, 1292.) Blair v. Pitchess, supra, 5 Cal.3d 258, enjoined county officers from seizing personal property in execution of a claim and delivery statute challenged as unconstitutional by taxpayers. Lundberg v. Alameda County (1956) 46 Cal.2d 644, allowed a taxpayer to pursue a CCP section 526a action to challenge the constitutionality of a statute pursuant to which the county gave tax exemptions to certain properties of religious/charitable groups used for educational purposes. Simpson v. City of Los Angeles (1953) 40 Cal.2d 271, allowed a taxpayer to pursue a section 526a action to prevent alleged illegal expenditures of municipal funds in enforcing an ordinance relating to surrender of unclaimed impounded animals for purpose of medical research.
Here, it would make no sense to enjoin the People from expending public funds to implement the 2006 amendment to section 1210.1, because it is defendant who wants it implemented, and the trial court has authority to implement it, with or without the People’s consent.
Though not cited by the parties, we note Regents of University of California v. Superior Court (Bradford) (1990) 225 Cal.App.3d 972 (Bradford) indicated in dictum that an Alameda County injunction against the University of California would not have been binding, but for the University’s election to comply, because, “[a] trial court declaration that a state statute is unconstitutional does not bind state agencies or officials. To the contrary, a state agency is forbidden to refuse to enforce a statute thought to be unconstitutional unless an appellate court has so determined. (Cal. Const., art. III, § 3.5.)” (Bradford, supra, 225 Cal.App.3d at p. 976, italics added.) Bradford cited California Constitution, article III, section 3.5, which provides in part: “An administrative agency, including an administrative agency created by the Constitution or an initiative statute, has no power: [¶] (a) To declare a statute unenforceable, or to refuse to enforce a statute, on the basis of it being unconstitutional unless an appellate court has made a determination that such statute is unconstitutional . . . .” However, the Fifth Appellate District has said: “The power of the administrative agency, not the power of the superior court, is the subject matter of section 3.5. Section 3.5 did not deprive the superior court of its power to declare a statute unconstitutional. The power of the judiciary to declare laws unconstitutional is firmly entrenched as a basic principle of our government. [Citations.] . . . When a superior court issues a writ directed to an administrative agency to not enforce a statute because it is unconstitutional as it relates to an individual petitioner, or class of petitioners, the administrative agency must obey that mandate. . . . If the superior court order relates to only a single petitioner, . . . the agency under the compulsion of section 3.5 and the doctrine of stare decisis is not permitted to apply the order to other persons. [Fn. omitted.] Such a result flows from the rule that the doctrine of stare decisis applies only to decisions of appellate courts and trial courts make no binding precedents. [Citation.]” (Fenske v. Board of Administration (1980) 103 Cal.App.3d 590, 596; see also, Burlington Northern & Santa Fe Ry. Co. v. Public Utilities Com. (2003) 112 Cal.App.4th 881, 886-888 [Cal. Const., art. III, § 3.5 prohibits administrative agencies from declaring statutes unconstitutional].) In the absence of any argument by the parties on this issue, we consider California Constitution, article III, section 3.5, inapplicable to this appeal.
We are confident the Alameda County injunction did not enjoin the Sutter County Superior Court from applying section 1210.1, as amended, with or without the People’s participation.
We conclude that, at the time the Sutter County trial court sentenced defendant, the Alameda County preliminary injunction had no effect on defendant’s case.
As to the Alameda County order granting summary judgment (submitted to us with the People’s supplemental brief) and the ensuing judgment, the general rule is that only the parties to an action and their successors are bound by a judgment in personam. (Berger v. Superior Court, supra, 175 Cal. at p. 721. see Card v. Community Redevelopment Agency (1976) 61 Cal.App.3d 570, 574-576 [referring to CCP section 526a suit as an action in personam].) As indicated, the Attorney General fails to develop any analysis supporting his assertion that the Alameda County Superior Court order is binding on this criminal case in Sutter County. The Attorney General merely cites authority the trial courts have authority to declare statutes unconstitutional. We therefore need not consider the matter further.
Neither side in this appeal develops any argument that the 2006 amendment is unconstitutional, and we see no reason to take up that issue in the absence of substantive argument by the parties.
We conclude defendant could be sentenced pursuant to the 2006 amended version of section 1210.1.
II. Remand Is Required
Defendant contends the trial court did not realize the 2006 amendment to section 1210.1 gave the court discretion to impose jail time together with reinstatement of Prop 36 probation. Defendant argues that, if we view defense counsel’s failure to raise the issue in the trial court as a forfeiture, then defendant has a claim for ineffective assistance of counsel. The People do not urge forfeiture. We shall reach the merits and conclude the trial court’s apparent unawareness of the amendment warrants remand.
We presume trial courts are aware of and follow the applicable law. (People v. Stowell (2003) 31 Cal.4th 1107, 1114.) Accordingly, defendant has the burden to show otherwise.
We agree with defendant that it appears from the record that the trial court was unaware of the 2006 amendment to section 1210.1, because the trial court stated, “the nature of Prop 36 is it can’t use jail time to motivate people to rehab themselves.” This comment on its face conflicts with the statutory amendment, which allows the court to use jail (up to 30 days) as a tool to enhance effectiveness of Prop 36 rehabilitation.
“‘[A] ruling otherwise within the trial court’s power will nonetheless be set aside where it appears from the record that in issuing the ruling the court failed to exercise the discretion vested in it by law. [Citations.]’” (People v. Downey (2000) 82 Cal.App.4th 899, 912; People v. Penoli (1996) 46 Cal.App.4th 298, 302.) The matter must therefore be remanded for a new determination made with awareness of all sentencing options provided by law.
The People assert without explanation that it is “unclear” whether the trial court was unaware of the change in the law. We disagree. It appears from the record that the trial court was unaware it had discretion to impose jail time while reinstating Prop 36 probation.
The People also assert that the court would not have reinstated Prop 36 probation even if it had known it could impose a 30-day jail term in the process, because the court found the factors in favor of revoking probation outweighed those in favor of reinstating it. However, we cannot say that it is reasonably probable the court would have balanced those factors in the same way had it known the full range of its options under Prop 36. Therefore we cannot agree with the People that the court’s error was harmless under the standard of People v. Watson (1956) 46 Cal.2d 818, 836.)
In favor of revoking probation the court found: (1) Defendant’s violation of a non-drug-related probation condition made him presumptively ineligible for the reinstatement of Prop 36 probation; (2) as for regular probation, defendant had both a prior strike and an additional prior felony; and (3) defendant had also violated his probation as to drug-related conditions. Against revoking probation, the court found only that defendant’s present conviction was for possessing a mere one-tenth of a gram of methamphetamine, and that “it speaks well of the defendant that he allegedly sought out treatment on his own” in Mexico.
We accordingly affirm defendant’s conviction but vacate his sentence and remand for further proceedings. We do not suggest that the trial court impose any particular sentence on remand, nor does anything in this opinion preclude any party from contending in the trial court that the 2006 amended version of section 1210.1 is unconstitutional -- an issue that we do not reach.
DISPOSITION
Defendant’s conviction is affirmed. The sentence is vacated and the matter is remanded for resentencing.
We concur: SCOTLAND, P.J., NICHOLSON, J.