People v. Smith CA2/8

Filed 4/20/21 P. v. Smith CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT

THE PEOPLE OF THE STATE B303440 OF CALIFORNIA, (Los Angeles County Plaintiff and Respondent, Super. Ct. No. SA069183) v.

MARLON SMITH,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, William L. Sadler, Judge. Reversed.

Lise M. Breakey, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Marvin E. Mizell, Deputy Attorneys General for Plaintiff and Respondent.

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INTRODUCTION Appellant filed a motion to expunge his criminal conviction. Before his appointment to the bench, the judge who heard and denied the motion was appellant’s defense attorney in the same case. Appellant asks us to reverse the order denying his motion on the ground he was denied an impartial tribunal, a due process violation. We agree and reverse.

BACKGROUND In 2009, appellant, while represented by attorney William L. Sadler, pled no contest to one stalking-related offense and was sentenced to formal probation. Appellant entered his plea pursuant to an agreement whereby the People agreed to move to dismiss 10 remaining counts. Mr. Sadler joined in the waivers and plea, and stipulated to a factual basis pursuant to the facts stated in the police report and the preliminary hearing transcript. In 2015, appellant admitted violating the terms of his probation. The trial court found him in violation and imposed a four-year sentence. Appellant was ordered to surrender to commence his sentence. He did not surrender and the trial court issued a bench warrant. On April 9, 2019, the People asked the court to recall the bench warrant and terminate probation because appellant was in federal custody until 2029 serving another sentence. The court granted those requests. On August 14, 2019, appellant, in pro per, filed a motion to expunge his stalking conviction. Appellant was not present at the October 17, 2019 hearing on the motion because he was in federal custody; neither was he represented by counsel. The People opposed the motion. The trial court, now presided over by