Opinion
D074159
06-22-2020
THE PEOPLE, Plaintiff and Respondent, v. MARK MILAZO, Defendant and Appellant.
Aurora Elizabeth Bewicke, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Paige B. Hazard, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCE360034) APPEAL from a judgment of the Superior Court of San Diego County, Theodore M. Weathers, Judge. Affirmed. Aurora Elizabeth Bewicke, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Paige B. Hazard, Deputy Attorneys General, for Plaintiff and Respondent.
To suggest this case has a complicated—or, as referred to by the People, 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 at times presided over his cases. Adding to the confusion was defendant's representation by multiple court-appointed defense attorneys, who at times provided incorrect information 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.
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.
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. The record on appeal is thus voluminous on what in the end was really a sentencing issue, as discussed post.
This case started 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 number SCE360034 (hereinafter, 0034), for possession of methamphetamine by a registered sex offender. (Health & Saf. Code, § 11377, subd. (a); Pen. Code, §§ 290, subd. (c), 667, subd. (b)-(i), 1170.12, & 667, subd. (e)(2)(C)(iv)). Defendant in October 2016 pleaded guilty in case 0034; 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, but stayed execution of the sentence pending his successful completion of three years of probation. The court, however, warned defendant it would revoke him and impose the five-year prison term if he was convicted of a felony offense or any serious misdemeanor.
Unless otherwise noted, all further statutory references are to the Penal Code.
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 number 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 in case 1034 pleaded guilty to count 1. Unaware defendant was on probation in case 0034 pending in East County, the South County court then indicated it likely would 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 case in that same branch.
Over about the next year and a half, the People sought to execute sentence in case 0034 while defendant sought to avoid prison. Finally, on April 26, 2018, the South County court formally revoked defendant's probation in case 0034, and on May 30, it executed sentence and imposed the five-year prison term as per defendant's plea agreement. On the People's motion, the court dismissed the remaining South County cases pending against defendant.
On appeal, defendant claims that he was denied conflict-free counsel as a result of what he further claims 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.
As we explain, we reject each of these claims and affirm his judgment.
FACTUAL AND PROCEDURAL BACKGROUND
We summarize the evidence in the light most favorable to the judgment. (See People v. Osband (1996) 13 Cal.4th 622, 690.)
As noted, defendant in October 2016 pleaded guilty in East County case 0034 to possession of methamphetamine by a registered sex offender. Defendant in that case was initially represented 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 on defendant, but stayed sentence pending his successful completion of probation.
While on probation in case 0034, as also noted 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. However, at defendant's February 7, 2017 sentencing, South County judge Francis Devaney stated that, before imposing sentence, the court needed to review the file of East County case 0034, which would be sent to South County to consider along with case 1034. Defendant responded by requesting a Marsden hearing, asking PD Ryan Maguire-Fong to be relieved.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
On February 21, South County judge Stephanie Sontag conducted the Marsden hearing. The sealed transcripts from that hearing show Judge Sontag initially intended to appoint the APD to represent defendant, as 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" in 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 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 Judge Devaney on March 14 would also hear defendant's motion to withdraw his plea in case 1034.
However, in a separate South County minute order also dated February 21 pertaining to case 0034, confusingly 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 PD Maguire-Fong was still representing defendant.
On February 28, Judge Devaney presided over defendant's status conference. The transcript from this hearing shows 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 very outset of the hearing, the court recognized that APD Sebeckis had "just [been] appointed to represent" defendant and the court therefore 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."
Judge Devaney during this hearing 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," and informed the court she would review the transcripts from East County case 0034. The court stated it had received the transcripts from the East County "matter" by email, as had PD Maguire-Fong, and thus were available to APD Sebeckis. The court informed defendant it would conduct a follow-up status conference on March 28, and set his 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"; set a "Prob Rev" hearing on East County case 0034 for March 28, to "trail" case 1034; and ordered defendant 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 but for case 1034. 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 denied, his preliminary hearing in case 1034 was 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.
The record shows 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 the court would not use any evidence from the hearing in case 1034 as a basis to revoke defendant in case 0034. However, in so doing the court cogently noted 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 the court then heard testimony on defendant's motion to suppress. At the conclusion of that testimony, the court refused to bind defendant over in case 1034, finding 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 needed to call the "dispatcher" or "somebody" to show 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 a Conflict Nor Prejudiced
Defendant
Defendant claims he was deprived of his constitutional right to conflict-free defense counsel when Judge Devaney in the court's February 28 order appointed the APD to represent defendant in case 1034, which defendant 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 grounds of conflict of interest "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 defendant in the present case has failed to demonstrate that APD Sebeckis "labored under an 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 there was substantial confusion and likely merely a mix-up regarding whether defendant in case 1034 would be represented by the APD or the OAC after the February 21 Marsden hearing. Conversely, 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, as 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 quite possible 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 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 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, with both orders providing the APD had been appointed to represent defendant.
What's more, the record shows APD Sebeckis in late May 2017 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 the APD was representing defendant in case 1034 was a nonissue and candidly, made perfect sense, inasmuch as this same agency was also representing defendant in case 0034. We thus conclude defendant cannot show the APD "labored under an actual conflict of interest" in representing him in both cases. (See Mai, supra, 57 Cal.4th at p. 1010.)
And, even assuming defendant could show 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 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 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 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 it is not "reasonably probable the result of the proceeding[s] would have been different" absent any such presumed conflict by the APD, for this separate reason we reject this claim of error. (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 Judge Devaney lacked 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 and does not inform our analysis on this issue.
In Madrigal, a judge revoked the defendant's probation and sentenced him to four years in prison, after the defendant in a subsequent prosecution had pleaded guilty to attempted second degree burglary before a different judge. (Madrigal, supra, 37 Cal.App.4th at pp. 794-795.) In that new action the plea agreement 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, as we have found, defendant was not prejudiced by Judge Devaney's order appointing the APD to represent defendant in case 1034. In sum, reviewing de novo his claim of error, we conclude defendant was not deprived of his constitutional right to conflict-free counsel.
The lack of prejudice in the instant case also distinguishes other cases 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.
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.
II
Authority to Transfer Case 0034 to South County
Defendant next claims 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 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 was inclined to do if defendant could not 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 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 about a week earlier had granted defendant's motion to withdraw his guilty plea.
* 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 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 sixth 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.
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.
* 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 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 it would consider that case for "informational purposes only." The court went on to note that it was not putting case 0034 on calendar, as 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. Judge Moring, however, denied the request of the People 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, setting 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 noted that, while Judge Allard may have said 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 incorrectly informed the court 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 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 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 the court had taken "no action" with respect to South County case 1034 because it 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 a 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. 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 he was in the process of retaining private counsel. The prosecutor opposed the continuance, noting 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," as 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 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 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 the court already had "been around and around and around the block" on that case.
* 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 defendant to be evaluated by a psychologist.
As noted, defendant claims Judge Devaney lacked 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 only be for "informational purposes."
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"].)
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 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 seven judges in South County at various times presided over one or more of the criminal cases pending against defendant.
Second, the record shows when Judge Allard on July 5, 2017 ordered that case 0034 would be transferred to South County for "information purposes only," 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 the defense repeatedly represented at the July 5 hearing—and at other hearings including on October 10 and 16—that Judge Thompson at the June 8 hearing had revoked and reinstated defendant's probation on the same terms, when the unambiguous record shows the opposite was true, as Judge Thompson clearly stated he was taking "no action" because South County case 1034 had been dismissed and would be refiled under a new case number. In our view, Judge Devaney's order to consolidate all 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 already have determined to be inapposite, defendant also relies on People v. Ellison (2003) 111 Cal.App.4th 1360 (Ellison) to support his claim Judge Devaney lacked authority to transfer case 0034 to South County. Ellison does not inform our decision here.
In Ellison, the first judge accepted the defendant's plea, but told the defendant he would be unavailable to impose sentence. Accordingly, the defendant agreed to be sentenced by a second judge (Ellison, supra, 111 Cal.App.4th at p. 1363), waiving his rights under People v. Arbuckle (1978) 22 Cal.3d 749, 756 (Arbuckle), which 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. The defendant, however, was not released because of an anonymous request made to a third judge to place a "hold" on the defendant. (Ellison, at p. 1364.) The defendant's case thereafter returned to the first judge, who withdrew the second judge's release order and ordered the defendant's imprisonment. (Id. at p. 1366.)
In reversing, the Ellison court agreed that the first judge had no authority to countermand the second judge's release order, as the defendant had argued. The court in Ellison instead found 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 his "Arbuckle" waiver of the first judge but not 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.)
Here, as we repeatedly 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, regarding the orders of Judges Devaney and Allard were the direct result of misinformation provided by the defense, as we have summarized; and, in any event, any such conflict merely went 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.
We thus conclude, in light of the "confusi[ng]" procedural history of this case, that Judge Devaney had authority to transfer case 0034 to South County to trail the additional criminal cases pending in that branch against defendant.
III
Prison Prior Enhancements under Newly Amended Section 667.5
The Governor on October 8, 2019 signed Senate Bill No. 136, amending the circumstances under which the one-year sentence enhancement may be imposed under newly amended section 667.5, subdivision (b). (See Stats. 2019, ch. 590, § 1, eff. Jan. 1, 2020.) Under the new law, the one-year enhancement only applies 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.)
The parties in supplemental briefing agree Senate Bill No. 136 applies retroactively to cases not yet final. (See In re Estrada (1965) 63 Cal.2d 740, 745 [noting courts presume the Legislature intended amendments that reduce the punishment for a crime to apply retroactively, at least in cases that are not yet final].) However, the People argue this new law is inapplicable to defendant because his case was final in October 2016 when the court entered, but stayed, execution of judgment as a result of defendant's guilty plea. We agree with the People.
The parties did not brief, and we therefore do not decide, whether defendant needed a certificate of probable cause to challenge his sentence in connection with the plea entered in case 0034. A certificate is required to appeal after a plea unless the appeal is based on "[g]rounds that arose after entry of the plea [that] do not affect the plea's validity." (Cal. Rules of Ct., rule 8.304(b)(4); see also id., rule 8.304(b)(1).) Here, although defendant seeks to avoid a portion of his sentence under the plea, and, as discussed post, by seeking placement in a pretrial diversion program under section 1001.36, he appears to recognize that his plea will remain unaltered if one of his prior prison enhancements is not struck, and/or if he is not qualified for, or granted diversion, or does not successfully complete a diversion program.
Our high court has recognized an "important distinction" between the situation just described, in which sentence is imposed, but stayed pending successful completion of probation, as was the case here, and the much different situation in which imposition of sentence is merely suspended. (See People v. Howard (1997) 16 Cal.4th 1081, 1087 (Howard).)
In the former situation, "if the court has actually imposed sentence, and the defendant has begun a probation term representing acceptance of that sentence, then the court has no authority, on revoking probation, to impose a lesser sentence at the precommitment stage." (Howard, supra, 16 Cal.4th at p. 1095.) To challenge the suspended term, a defendant must do so when the court initially grants probation. (Ibid. [concluding "[n]o good reason exists for allowing [a defendant] to [challenge his or her suspended sentence] once the court revoke[s the defendant's] probation"]; see People v. Superior Court (Rodas) (2017) 10 Cal.App.5th 1316, 1325-1326 (Rodas) [recognizing that, "because the order granting probation constitutes a final judgment of conviction under . . . section 1237 [citation], the order was directly appealable," that because the defendant "did not appeal the court's order granting probation, the judgment of conviction for transporting heroin became final for retroactivity purposes in 2007," and that the defendant therefore was "not entitled . . . to the benefit of the amendment to [Health and Safety Code] section 11352, which became effective nearly seven years later in 2014"]; see also People v. Glaser (1965) 238 Cal.App.2d 819, 821 [following revocation of probation after imposition of sentence had been suspended, the defendant was precluded from challenging any matters giving rise to his conviction and the ensuing order granting him probation because he failed to perfect timely an appeal under section 1237 from the probation order], disapproved on another ground as stated in People v. Barnum (2003) 29 Cal.4th 1210, 1219, fn. 1 & 1221.)
Because Judge Thompson in the instant case imposed sentence but stayed its execution in October 2016, almost two years before Senate Bill No. 136 was signed into law; and because defendant in 2016 thus had the right to appeal that order but did not do so; we conclude for "retroactivity purposes" that his judgment became final in October 2016. (See Rodas, supra, 10 Cal.App.5th at p. 1326.) As such, we further conclude defendant is not entitled to relief under newly amended section 667.5.
IV
Diversion under Section 1001.36
Defendant claims he is entitled to a remand for the trial court to consider his eligibility for mental health diversion under section 1001.36. Not unlike Senate Bill No. 136 discussed ante, section 1001.36 went into effect after defendant in 2016 pleaded guilty in case 0034, when, as noted, the court entered judgment but stayed its execution pending defendant's completion of three years of probation.
Section 1001.36 was enacted on June 27, 2018, and immediately took effect. (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 conclude defendant is not entitled to be considered for diversion under the statute because, as we have noted, his case was final in October 2016, almost two years before section 1001.36 became effective. (See Rodas, supra, 10 Cal.App.5th at p. 1326.) In reaching our decision, we note the People in their respondent's brief argued that section 1001.36 is not retroactive. The People further argued, however, that if this court found otherwise, defendant would be entitled to a conditional remand under section 1001.36.
We are not bound by the People's partial concession regarding defendant's alleged right to a conditional remand under section 1001.36. (See e.g., R.J. Land & Associates Construction Co. v. Kiewit-Shea (1999) 69 Cal.App.4th 416, 427, fn. 4 [recognizing the interpretation and applicability of a statute is a question of law and noting in the "public interest[,] we have discretion to reject [a party's] concession[ ] because our function to correctly interpret a statute is not controlled by [a party's] concession of its meaning"]; Bell v. Tri-City Hospital Dist. (1987) 196 Cal.App.3d 438, 449 [noting a reviewing court " 'is not bound to accept concessions of parties as establishing the law applicable to a case' "], disapproved on another ground as stated in State of California v. Superior Court (2004) 32 Cal.4th 1234, 1244.)
As we have discussed ante, the People in supplemental briefing appeared to have taken a contrary position regarding the retroactivity of a new law and its applicability to defendant, arguing that, even if retroactive, newly amended section 667.5 did not apply to defendant because his judgment was final and became appealable in October 2016 when the court imposed, but stayed, sentence in case 0034. We fail to see why this same reasoning would also not apply to section 1001.36, which was enacted more than two years after defendant's judgment became final. We thus find it unnecessary to remand the matter for the trial court to consider whether defendant qualifies for diversion under section 1001.36.
V
Imposition of Fines, Fees, and Enhancements
Finally, defendant contends the court violated his due process rights by imposing various fines, fees, and enhancements without considering his ability to pay such, relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). The People counter that defendant forfeited this claim by failing to raise it in the trial court and that Dueñas in any event is distinguishable and wrongly decided.
Our high court will soon have the last word on this subject, as it granted review in this court's decision of 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 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.) --------
In this case, the record shows the court ordered defendant to pay a $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 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." On this record, we thus find it unnecessary to remand the case for an ability-to-pay hearing.
DISPOSITION
The judgment is affirmed.
BENKE, Acting P.J. WE CONCUR: AARON, J. IRION, J.