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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                                               B250299

         Petitioner,                                                     (Los Angeles County
                                                                         Super. Ct. No. MA059412)
         v.

THE SUPERIOR COURT OF LOS
ANGELES COUNTY,

         Respondent;

THE PEOPLE,

         Real Party in Interest.



         Petition for writ of mandate from orders of the Superior Court of Los Angeles
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 Code1 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)); 2 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.
                     FACTUAL AND PROCEDURAL BACKGROUND
       Defendant is charged with felony possession of methamphetamine (Health & Saf.
Code, § 11377, subd. (a)) and possession of a smoking device (Health & Saf. Code,
§ 11364.1, subd. (a)(1).)
       On April 29, 2013, Defendant entered a guilty plea to the charges and admitted the
prior conviction.3

1
      Statutory references are to the Penal Code except where otherwise stated. Sections
1210 and 1210.1 (sometimes referenced as Proposition 36) were adopted by initiative on
November 7, 2000 and became effective July 1, 2001.
2
       In pertinent part subdivision (c) of 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.”
3
       In 2006, Defendant was conviction of burglary (§ 459), served a prison term for
that conviction and committed a felony during the five years subsequent to the conclusion
of the prison term (§ 667.5).

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               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 clear and convincing evidence, to be
unamenable to any and all forms of available drug treatment, as defined in subdivision
(b) of Section 1210.”4
       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.”
       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,


4
       Section 1210 provides the following definition: “(a) The term „nonviolent drug
possession offense‟ means the unlawful personal use, possession for personal use, or
transportation for personal use of any controlled substance . . . . The term „nonviolent
drug possession offense‟ does not include the possession for sale, production, or
manufacturing of any controlled substance.”

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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].”
       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.]” (People v. Madrigal (1995)
37 Cal.App.4th 791, 795-796.) The proceedings conducted after the case was assigned
for sentencing brought about exactly that anomalous situation.
                                      DISCUSSION
       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.”

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       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

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without reference to any of the prior proceedings in the case. (Code Civ. Proc., § 170.1,
subd. (c).)
                                       DISPOSITION
       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.




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