Opinion
F061692
09-14-2011
THE PEOPLE, Plaintiff and Respondent, v. ANDREW LEE WHITE, JR., Defendant and Appellant.
Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Leanne Le Mon and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. 10CM0686)
OPINION
APPEAL from a judgment of the Superior Court of Kings County. Donna Tarter and James T. LaPorte, Judges.
Judge Tarter accepted defendant's no contest plea; Judge LaPorte imposed sentence.
Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Leanne Le Mon and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Andrew Lee White and his two codefendants surrounded several people near a bar and attacked them with box cutters. On appeal, defendant contends his Arbuckle right was violated because he was sentenced by a different judge than the one who took his plea. We will affirm.
People v. Arbuckle (1978) 22 Cal.3d 749 (Arbuckle).
PROCEDURAL SUMMARY
On October 5, 2010, the Kings County District Attorney charged defendant and his two codefendants with three counts of attempted murder (Pen. Code, §§ 187, subd. (a), 664; counts 1-3) and three counts of assault with a deadly weapon (§ 245, subd. (a)(1); counts 4-6). The information alleged that all three defendants had personally inflicted great bodily injury (§ 12022.7, subd. (a)), and that defendant had served a prior prison term (§ 667.5, subd. (b)).
All statutory references are to the Penal Code unless otherwise noted.
Defendant initially pled not guilty to all charges, but on October 22, 2010, he pled no contest to count 4, and the remaining counts were dismissed with a Harvey waiver on the motion of the district attorney.
People v. Harvey (1979) 25 Cal.3d 754.
--------
On December 7, 2010, the trial court sentenced defendant to the upper term of four years in prison with credit for 378 days in custody.
DISCUSSION
I. Background
At the October 22, 2010 plea hearing before Judge Tarter, the court addressed all three defendants:
"Now, gentlemen, what I'm going to do is I'm going to go over the plea agreement and all the rights that you have and the rights that you'll be giving up in order to take advantage of the plea agreement. If you have any questions, please interrupt the Court and I'll go over it more in detail.
"And first of all, this is going to be a West plea, and what a West plea means to the attorneys and the Court is that you're pleading guilty or no contest to avoid the more severe consequences of going to trial and losing. [¶] Is that your understanding of a West plea ...?"
Each defendant gave an affirmative answer.
The court advised the three defendants as follows:
"All right. The [section] 245 assault with a deadly weapon as charged in ... Count 4— [¶] ... [¶] —carries a triad of two years, three years, or four years. It is a strike. If you were sent to prison, upon your release from prison you'd be placed on parole for three years, and if you violate parole, you could go back to custody for twelve months for every violation and your period of parole would be extended to four years. [¶] ... [¶]
"Is there any prohibition to the granting of probation in this case? I believe there is. It's use of a deadly weapon. [¶] ... [¶] So you are statutorily ineligible for a grant of probation. [¶] ... [¶] It is [a] presumptive ineligib[ility] unless the Court were to find unusual circumstances and in the interests of justice. [¶] . . . [¶]
"There[ are] also certain fines that you'll be subjected to. One is a restitution fine .. There is another restitution fine .[;] that fine would be stayed[;] you would not have to pay that unless your probation or parole were to be violated in the future. [¶] ... [¶] There's a penalty fine .... [¶] There's actual restitution to the victim .. [¶] Do you understand those possible consequences ..?"
Then the court explained the various rights defendants would be giving up to take advantage of the plea agreement. After defendants stated that they understood and gave up those rights, the court explained the Harvey waiver:
"Do all the defendants understand that? In other words, [the counts are] transactionally related. There's going to be a Harvey Waiver which means in determining what sentence, whether to grant you probation, deny probation, whether to sentence you to prison if that's what the Court decides to do, what that sentence would be, the Court is going to look at all the victims, all the circumstances that happened—what happened. You cannot receive any more than the four years that the Court has already told you what the maximum is. And you would also be liable for restitution as to those victims that are not named in the Count 4." (Italics added.)
The court took defendants' pleas, each time stating:
"The Court will accept the no contest plea, find the defendant guilty and find that the defendant's plea is freely and voluntarily made with an understanding of the nature of the charges and the consequences of the plea."
At the end of the hearing, the court stated:
"We'll set this for a sentencing hearing in 20 court days. [¶] Gentlem[e]n, if you want the Court to read any letters of recommendation concerning the sentencing, you need to have those letters ... to the Probation Department two weeks before sentencing, all right?"
The clerk stated the date and time for sentencing in "this Department," and the court ordered defendants to appear.
The sentencing hearing took place on November 22, 2010, before Judge LaPorte. Defendant made no mention or objection regarding the different judge. Defense counsel answered that there was no legal cause why judgment should not be pronounced, and after a short discussion, defense counsel submitted on the sentencing recommendation, which was for the upper term of four years. At that point, the court imposed the four-year recommended sentence.
II. Analysis
In Arbuckle, the California Supreme Court held that when a judge accepts a plea bargain and retains sentencing discretion, it is generally an implied term of the bargain that sentence will be imposed by that judge. (Arbuckle, supra, 22 Cal.3d at pp. 756-757.) But an Arbuckle right does not arise unless the record affirmatively demonstrates that the defendant had a reasonable expectation that the judge who accepted the plea would also impose sentence. (People v. Letteer (2002) 103 Cal.App.4th 1308, 1313, disapproved on other grounds in Peracchi v. Superior Court (2003) 30 Cal.4th 1245, 1258, fn. 6; People v. Adams (1990) 224 Cal.App.3d 1540, 1543 (Adams); People v. Horn (1989) 213 Cal.App.3d 701, 707, citing In re Mark L. (1983) 34 Cal.3d 171, 177.) Such an expectation may be shown where the judge repeatedly or interchangeably uses "I" and "the Court" when referring to sentencing, implying that the judge and the court are one and the same. (In re Mark L., supra, at p. 177.) "The defendant's failure to object is relevant in determining whether an Arbuckle right was ever a term of the plea. A defendant's failure to object when faced with a different sentencing judge suggests he did not enter his plea in reliance on or with the understanding that the judge accepting his plea would also impose sentence." (People v. Horn, supra, at p. 709.)
In Arbuckle, the judge stated, "'I have agreed, as has your attorney, ... that before I could send you to the State Prison, I would have to get that 90-day diagnostic study and I would follow the recommendation.'" (Arbuckle, supra, 22 Cal.3d at p. 756, fn. 4.) In Adams, the court concluded that the defendant had a reasonable expectation of sentencing by that judge because the judge asked, "'Do you understand that the maximum sentence I could impose in this case is up to eight years in state prison and $20,000 fine?'" and the clerk suggested a date for sentencing in "this department." The appellate court stated: "While the judge who took the plea did not make 'repeated use of the personal pronoun when referring to sentencing' as in People v. Arbuckle, supra, 22 Cal.3d at page 756 or in In re Mark L., supra, 34 Cal.3d at page 177, the circumstances nevertheless lend credence to the conclusion Adams had a reasonable expectation of sentencing by that judge [citations]." (Adams, supra, 224 Cal.App.3d at p. 1543.)
Here, Judge Tarter used "I" sparingly, generally referring to "the Court." While we agree that Judge Tarter used "the Court" to refer to herself at times, we do not believe the hearing as a whole affirmatively demonstrates that defendant had a reasonable expectation that Judge Tarter would impose sentence. When she explained the plea agreement, she did not refer to a sentence she would impose personally, but instead used phrases such as, "If you were sent to prison ...." and "There[ are] also certain fines that you'll be subjected to." Furthermore, we think the following statements by Judge Tarter suggested that she might not be the judge imposing sentence: "[I]n determining what sentence, whether to grant you probation, deny probation, whether to sentence you to prison if that's what the Court decides to do, what that sentence would be, the Court is going to look at all the victims, all the circumstances that happened—what happened. You cannot receive any more than the four years that the Court has already told you what the maximum is." (Italics added.) In addition, when Judge Tarter mentioned letters of recommendation, she referred to their being read by the court, not specifically by her. Finally, when defendant appeared at the sentencing hearing before Judge LaPorte, defendant made no objection or mention of the new judge, again suggesting that he did not enter his plea in reliance on or with the understanding that Judge Tarter would also impose sentence.
Because the record fails to affirmatively show that defendant reasonably expected to be sentenced by Judge Tarter, no Arbuckle right arose during the plea hearing. We conclude that no error occurred when Judge LaPorte imposed sentence.
DISPOSITION
The judgment is affirmed.
Kane, J. WE CONCUR: Wiseman, Acting P.J. Levy, J.