P. v. Milazo

Filed 6/22/20 P. v. Milazo CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
MARK MILAZO,
Defendant and Appellant.
D074159
(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-

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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 information1 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.2
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,3 §§ 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))
1 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.
2 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.
3 Unless otherwise noted, all further statutory references are to the Penal Code.

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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.
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

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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 BACKGROUND4
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.
4 We summarize the evidence in the light most favorable to the judgment.
(See People v. Osband (1996) 13 Cal.4th 622, 690.)

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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 Marsden5 hearing, asking PD Ryan
Maguire-Fong to be relieved.
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]
5 People v. Marsden (1970) 2 Cal.3d 118 (Marsden).

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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,

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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.

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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.

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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

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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

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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

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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.

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(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 1034.6 In sum, reviewing de
novo his claim of error, we conclude defendant was not deprived of his constitutional
right to conflict-free counsel.7
6 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.
7 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.

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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.

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* 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 sixth8 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.
* 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
8 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.

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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

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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

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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

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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

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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

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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.

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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.9
9 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.

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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

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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).)

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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

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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.10
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).
10 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.)

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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.

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