Hall v. Superior Court
Filed 10/19/13 Hall v. Superior Court CA2/3
NOT TO BE PUBLISHED IN THE
OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
OTIS HALL,
Petitioner,
v.
THE SUPERIOR COURT OF LOS ANGELES COUNTY,
Respondent;
THE PEOPLE,
Real Party in Interest.
B250299
(Los Angeles County
Super. Ct. No. MA059412)
Petition
for writ of mandate from orders of the Superior Court of
County, Steven D. Ogden and David Walgren,
Judges. Granted in part, denied in part.
Ronald
L. Brown, Public Defender, Albert J. Menaster, John Henderson, and Karen E.
Nash, Deputy Public Defenders for Petitioner.
No
appearance for Respondent.
Jackie
Lacey, District Attorney, Roberta T. Schwartz and Phyllis C. Asayama, Deputy
District Attorneys for Real Parties in Interest.
_________________________
Having reviewed the petition for writ of mandate
and the varying views of the two judicial officers who have handled aspects of
the criminal proceeding against petitioner/defendant Otis Hall (Defendant) in
connection with whether section 1210.1 of the Penal Code
should be applied to the current charges against Defendant, we conclude the
most expeditious manner of resolving the conflict is to:
(1) vacate the order entered on May 8, 2013, and
all subsequent orders and proceedings, including any orders entered on May 13,
2013, June 20, 2013, and any other orders entered after Defendant’s guilty plea
made on April 29, 2013;
(2) on our own motion, and “in the interests of
justice†direct that further proceedings be heard before a trial judge other
than either of the judges whose orders are the subject of this proceeding (Code
Civ. Proc., § 170.1, subd. (c));
and
(3) remand for transfer to a new judicial officer
who shall, without consideration of the prior proceedings in this matter,
exercise his or her independent judgment
as to whether Defendant qualifies for the sentencing option provided in section
1210.1.
Defendant is charged with felony
possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and
& Saf. Code, § 11364.1, subd. (a)(1).)
On April 29, 2013, Defendant entered a guilty plea to the charges and
admitted the prior conviction.
name="_ftnref3" title="">[3]
Defendant
previously has received the treatment made available by subdivision (a) of
section 1210.1 which provides: “any
person convicted of a nonviolent drug possession offense shall receive
probation.†However, subdivision (b)(5)
of section 1210.1 provides the term “nonviolent drug possession offense†does
not apply to the following: “Any
defendant who has two separate convictions for nonviolent drug possession
offenses, has participated in two separate courses of drug treatment pursuant
to subdivision (a), and is found by the court, by
unamenable to any and all forms of available drug treatment, as defined in
subdivision (b) of Section 1210.â€
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On
May 8, 2013, Defendant appeared for sentencing.
The trial court expressed “serious concerns†as to whether Defendant is
amenable or suitable for the sentencing option provided in section 1210.1. The prosecutor pointed out that Defendant has
“a total of not less than nine drug offenses†and argued that Defendant is not
a suitable candidate for application of section 1210.1. The court then commented, “[T]he court does
not find the defendant amenable or suitable†for sentencing under section
1210.1 based on his record with multiple drug offenses and four prior probation
grants under section 1210.1. Two of the
grants were successfully completed and one was not completed.
However,
at a subsequent hearing on May 13, 2013, a different judicial officer noted that Defendant had twice “successfully
completed†sentencing pursuant to section 1210.1, and indicated “I’m not sure
that completing two programs shows that he’s unamenable.â€
The court and
counsel then discussed the May 8, 2013 hearing at which the presiding judge
expressed a view that Defendant is not unamenable for sentencing pursuant to
section 1210.1. The court described the
guilty plea entered on April 29, 2013, as conditional based on Hall’s belief he
would be sentenced under section 1210.1.
The court set another hearing, informing Defendant he will have his
choice of staying with the plea or withdrawing it and going to trial.
On
June 20, 2013, Defendant again appeared for sentencing, at which time the trial
judge described discussions he had conducted with other judges (none of which
are relevant here) and indicated, rather than exercising his own discretion in
sentencing commented, “my colleagues don’t agree with my interpretation of the
law and . . . [s]o I’m prepared to send [Defendant] to state prison [or he may
withdraw his plea].â€
The
matter was continued to permit the filing of this petition.
On
August 7, 2013, we issued a notice that we were considering issuance of a
peremptory writ of mandate (Lewis v. Superior Court (1999)
19 Cal.4th 1232; Palma v.
U.S. Industrial Fasteners, Inc.
(1984) 36 Cal.3d 171; Brown,
Winfield & Canzoneri, Inc. v. Superior Court (2010) 47 Cal.4th
1233), based on the established procedural rule that an order made in one
department during the progress of a cause cannot be changed by another
department. “ ‘One department of the
superior court cannot enjoin, restrain, or otherwise interfere with the
judicial act of another department of the superior court.’ †(Silverman
v. Superior Court (1988) 203 Cal.App.3d 145, 151.) Thus, a judgment rendered in one department
of the superior court is binding on that matter upon all other
departments. (Ibid.) “ ‘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.’
[Citation.]†(
37 Cal.App.4th 791, 795-796.) The
proceedings conducted after the case was assigned for sentencing brought about
exactly that anomalous situation.
Subdivision
(c) of section 1210 provides: “The term
‘successful completion of treatment’ means that a defendant who has had drug
treatment imposed as a condition of probation has completed the prescribed
course of drug treatment as recommended by the treatment provider and ordered
by the court and, as a result, there is reasonable cause to believe that the
defendant will not abuse controlled substances in the future.â€
Defendant
has “successfully†completed two court ordered treatment programs and each time
has returned to the use of drugs.
However, case law refers to three
chances at probation: “. . . a defendant
loses the protection of section 1210.1, subdivision (a), only after violating a
drug-related condition of probation three times.†(People
v. Guzman (2003) 109 Cal.App.4th 341, 348.)
The statement in Guzman is not
universally accepted as specifying an absolute right to three chances at
rehabilitation pursuant to section 1210.1.
Section 1210.1 “ordinarily allows eligible drug users three chances at
probation before a trial court may send a defendant to prison, although the
relevant statutes do not guarantee this result.†(People
v. Hazle (2007) 157 Cal.App.4th 567, 570.)
The Hazle court commented that
relapses are common among drug users.
“That is why the statute is structured to give the ordinary drug
probationer three strikes, albeit with the possibility that the trial court
will increase the intensity of the probation requirements with each relapse.†(Id.
at p. 576.) Hazle described section 1210.1 as giving a defendant three chances
at rehabilitation, with increasing penalties for conviction, so as to provide a
strong incentive to stop the drug usage.
(Ibid.)
Defendant has
about nine drug related offenses, two prior convictions for nonviolent drug
possession offenses and has participated in two separate courses of drug
treatment. On its face, the statute
applies to a defendant who has two prior convictions for nonviolent drug
possession offenses and has participated in two separate courses of drug
treatment unless he is “found by the
court, by clear and convincing evidence, to be unamenable to any and all forms
of available drug treatment.†(§
1210.1, subd. (b)(5), italics added.)
The trial court
clearly has discretion to determine whether there is clear and convincing
evidence, as to whether a defendant, such as Hall, is amenable to a third try
at the rehabilitation treatment provided in section 1210.1.
Having reviewed
the responses received from the parties following issuance of our interim
order, it is clear that the entire matter relating to whether Defendant is
eligible for treatment as provided in section 1210.1 should be considered by a
new judicial officer without reference to any of the prior proceedings in the
case. (Code Civ. Proc., § 170.1, subd.
(c).)
The
petition for writ of mandate is granted in part.
Let a peremptory writ of
mandate issue directing the trial court (1) to vacate all orders entered
subsequent to the May 8, 2013 order; and (2) transfer the case to a new
judicial officer with directions to exercise his or her own independent
discretion as to whether Defendant is eligible to once again be sentenced in
accord with the provisions of section 1210.1.
In
all other respects the petition is denied.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CROSKEY,
Acting P. J.
We concur:
KITCHING, J.
ALDRICH, J.
referenced as Proposition 36) were adopted by initiative on November 7, 2000
and became effective July 1, 2001.
Code of Civil Procedure section 170.1 provides:
“. . . on its own motion an appellate court shall consider whether in
the interests of justice it should direct that further proceedings be heard
before a trial judge other than the judge whose judgment or order was reviewed
by the appellate court.â€
