Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. F04902897-8. Arlan L. Harrell, Judge.
Waldemar D. Halka, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and Robert C. Nash, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Gomes, Acting P.J., Dawson, J. and Kane, J.
Appellant Bruno Martinez entered a negotiated plea of no contest to the charge of false imprisonment by violence (Pen. Code, § 236). As part of the plea bargain, it was agreed his sentence would be a maximum term (or “mitigated lid”) of 16 months, with either a “paper” commitment to prison (since his custody credits exceeded the term) or probation. Commissioner Gottlieb accepted the plea and set a sentencing hearing for the following month. When appellant failed to appear for sentencing, a bench warrant was issued and he was arrested over a year later on the warrant. Thereafter, appellant was brought before a different judge, Judge Harrell, for the purpose of sentencing appellant on the original charges. Judge Harrell sought to follow the terms of the plea bargain and sentenced appellant to the term of 16 months without probation. This appeal followed. Appellant contends the trial court erred because he was not sentenced by the same judge who heard his plea agreement pursuant to People v. Arbuckle (1978) 22 Cal.3d 749 (Arbuckle). We will affirm the judgment.
Unless otherwise indicated, all further statutory references are to the Penal Code.
FACTUAL BACKGROUND
In May of 2004, appellant was arrested on charges of making criminal threats and committing false imprisonment by violence. A felony complaint was filed and appellant was retained in custody. The parties stipulated that Commissioner Gottlieb could hear all proceedings in the case, and they agreed to accept Commissioner Gottlieb as temporary judge “to be assigned on the matter before this court for all purposes.” The case was then set for preliminary hearing.
In June of 2004, following the preliminary hearing, an information was filed that charged appellant with two counts of making criminal threats in violation of section 422 (counts 1 & 2), and one count of false imprisonment by violence in violation of section 236 (count 3). Count 2 included an enhancement allegation that appellant personally used a firearm in the commission of the offense within the meaning of section 12022.5. Appellant pled not guilty and denied the enhancement.
On May 12, 2005, appellant entered a negotiated plea before Commissioner Gottlieb. Appellant pled no contest to count 3, and the remaining two counts were dismissed. The parties agreed to a maximum sentence (“lid”) of 16 months, which is the mitigated determinate term. As part of the plea agreement, appellant was released from jail and agreed to have no contact with the victim.
At that time, appellant was represented by Deputy Public Defender Paul Lyon.
The parties refer to this as a “mitigated lid.” We note the sentencing range for false imprisonment by violence is 16 months, two years, or three years in state prison. (§§ 18 and 237.)
Appellant signed and initialed a two-page felony advisement, waiver of rights and plea form (plea form). One of the paragraphs on the form states: “I understand that I have the right to enter my plea before, and be sentenced by a judge. I give up this right and agree to be sentenced by a TEMPORARY JUDGE.” The paragraph had places for appellant to date and sign, along with a box to enter his initials, but none were filled out and the entire paragraph had been lined out with a pen.
Before appellant’s plea was accepted by Commissioner Gottlieb, the district attorney summarized the terms of the plea agreement as follows: “The People’s offer in this matter is for the defendant to plead to count 3 in case ending 897-8 with a dismissal of the balance of that complaint and recommended release today. There is a mitigated lid, and then at the time of sentencing, for the court to determine whether or not a paper commit on a 16-month term or probation.” Commissioner Gottlieb questioned appellant to confirm that he understood the consequences of his plea. Among other things, Commissioner Gottlieb explained as follows: “Specifically, if the court were to place you on probation you’d be required to enroll in, participate in and complete a 52-week batterer’s intervention program. Do you understand that?” Appellant responded in the affirmative. When the advisements were completed, Commissioner Gottlieb heard and accepted appellant’s plea of no contest to the charge of false imprisonment by violence, a felony, as set forth in count 3 (§ 236).
Commissioner Gottlieb then set the sentencing hearing for June 15, 2005, and appellant agreed to the sentencing date. Commissioner Gottlieb also informed appellant that he must, by Tuesday of the next week, report to the probation department “so they can discuss your case with you and write a sentencing report for the court.” Appellant said he understood this additional requirement.
Appellant failed to report to the probation department. Appellant failed to appear for sentencing on June 15, 2005. A bench warrant was issued for his arrest, and on October 12, 2006, approximately 16 months later, appellant was arrested on the warrant.
On October 16, 2006, appellant appeared before Judge Arlan Harrell. The parties signed a waiver of disqualification in order to allow Judge Harrell to proceed. At that time, appellant was represented by Attorney Paul Lyon, the same deputy public defender who represented appellant when his negotiated plea was entered. Judge Harrell noted that “It does not appear that [appellant] has appeared in front of me before.” When Attorney Lyon asked if a probation report was prepared, the prosecutor responded “No” and advised the court that “[appellant] failed to appear for an appointment with probation back in June ’05 … [and] also in June he failed to appear for sentencing.” Judge Harrell then referred the matter to the probation department for preparation of the presentencing report, and a hearing date of November 14, 2006 was set for consideration of the report and for sentencing. Judge Harrell then told appellant to be present on that date and time, and ordered that appellant shall remain in custody with no bail.
The waiver stated: “The parties make this waiver pursuant to California Code of Civil Procedure § 170.3 based upon the fact that Judge Harrell is the brother of a supervising attorney employed by the Office of the Fresno County District Attorney.” It was signed by appellant, defense counsel (Paul Lyon) and the deputy district attorney (Steven Wright).
On November 14, 2006, appellant appeared before Judge Harrell for sentencing. Appellant was represented at this hearing by Deputy Public Defender Michael Borrero, and the People were represented by Monica Diaz. Judge Harrell noted the plea bargain entered in 2005 and stated: “The Court notes this was a request to mitigate. The Court agrees with the probation report. The Court will abide by that plea agreement.” Mr. Borrero informed the court: “[W]e are prepared for sentencing on today’s date. And we believe this is a mitigated lid.… I am thinking this is going to be a paper commitment.” Both counsel acknowledged they received a copy of the probation report and neither had any comments or corrections. Judge Harrell then asked if there was any legal cause why judgment should not be pronounced and Mr. Borrero responded “No.”
The probation report indicated that appellant would only be eligible for probation in unusual circumstances where interests of justice would be served thereby, but it found no such circumstances existed here. The report stated that there were circumstances in aggravation, but none in mitigation, and recommended the middle term of two years. The report also noted appellant had time credits of 613 days. The report did acknowledge the existence of the plea agreement for a “[m]itigated lid.”
Judge Harrell then sentenced appellant. He noted that he had read and considered the probation report. On the question of probation, Judge Harrell found appellant to be a suitable candidate for probation since appellant had no criminal history; however, due to the circumstances of the offense, probation was ultimately denied and the mitigated term of 16 months was imposed. The judge acknowledged “this would constitute a paperwork commitment” since appellant would receive time credits of 613 days toward the prison sentence. The judge ordered appellant to report to the parole office before noon of the following day.
On January 16, 2007, appellant’s notice of appeal was filed. In addition, appellant filed a certificate of probable cause challenging the validity of his plea based on the ground “[appellant] believed that he would … have the chance to earn a reduction of the conviction pursuant to P.C. § 17(b) following completion of the Batterer’s Intervention Program. Instead, he is now unable to have the conviction reduced because his sentence was a ‘paper commitment’ and he is not on probation.” On January 19, 2007, Judge Harrell denied the request for certificate of probable cause.
DISCUSSION
I. Appeal Timely Filed
As a preliminary issue, respondent argues the appeal was untimely because it was not filed within 60 days after the rendition of judgment as required by California Rules of Court, rule 8.308. Sentence was imposed on November 14, 2006, and notice of appeal was not filed until January 16, 2007. However, the 60th day after sentencing fell on Saturday, January 13, 2007. That day, along with the following day (Sunday), were judicial holidays. (Code Civ. Proc., §§ 10, 12a.) The next day, January 15, 2007, was the third Monday of January, which under Government Code section 6700, subdivision (c), was “Dr. Martin Luther King, Jr. Day,” also a judicial holiday. (Code Civ. Proc., § 135; Gov. Code, § 6700, subd. (c).) Because the last day for filing the appeal was a holiday, the time is extended to and including the next day that is not a judicial holiday. (Code Civ. Proc., § 12a; Alioto Fish Co. v. Alioto (1994) 27 Cal.App.4th 1669, 1680, fn. 6.) Therefore, the appeal was timely filed in this case.
II. No Arbuckle Error
Appellant contends he was denied the right recognized in Arbuckle, supra, 22 Cal.3d 749, to be sentenced by the same judge that took his plea. For the reasons which follow, we disagree.
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.) However, Arbuckle rights do not arise unless the record affirmatively demonstrates that the defendant had a reasonable expectation that the judge who accepted the plea will also impose sentence. (People v. Letteer (2002) 103 Cal.App.4th 1308, 1313; People v. Adams (1990) 224 Cal.App.3d 1540, 1543; People v. Horn (1989) 213 Cal.App.3d 701, 707, citing In re Mark L. (1983) 34 Cal.3d 171, 177.) For example, such an expectation may be indicated where the judge repeatedly or interchangeably used a personal pronoun (i.e., he or I) and “the Court” when referring to sentencing. (In re Mark L., supra, at p. 177.) In the event the record adequately supports the existence of an Arbuckle right, the next question that typically arises is whether there has been a waiver of the right to enforce the implied term of the plea bargain. (See People v. Adams, supra, at p. 1543; People v. Horn, supra, at pp. 708-709.)
Other appellate courts have concluded that Arbuckle rights are waived by failure to object at the time a different judge presides at sentencing. (People v. Adams, supra, 224 Cal.App.3d at pp. 1543-1544; People v. Serrato (1988) 201 Cal.App.3d 761, 764-765.) As explained in People v. Serrato, supra, at p. 765: “Knowledge by the defendant of his Arbuckle right as a part of the plea bargain is implicit in the reasoning of Arbuckle. Thus … when faced with a different sentencing judge, a defendant must object at that time or waive his Arbuckle rights.” We have taken the approach that mere failure to object does not waive Arbuckle rights, but such failure is relevant in determining whether an Arbuckle right was ever an implied term of the plea. (People v. Horn, supra, 213 Cal.App.3d at p. 709.) Regarding waiver, we stated: “[A]bsent some affirmative statement or conduct by the defendant acknowledging waiver of the implied term, silence at the time of sentencing is insufficient to constitute a waiver of the right to enforce the implied term.” (Id. at p. 709.)
We conclude the record does not affirmatively demonstrate a reasonable expectation that Commissioner Gottlieb would personally impose sentence. There was no repeated or interchangeable use of a personal pronoun and “the Court” in discussing sentencing. The plea form signed by appellant merely specifies that sentencing is to be determined “by the court,” not any particular judge. Although a prior stipulation was signed by appellant to allow Commissioner Gottlieb to act as temporary judge in all proceedings in the case, the provision in the plea form which would allow a temporary judge to impose sentence was lined out.
Finally, we believe appellant’s subsequent conduct was a significant indicator of whether the implied term of the plea bargain ever existed. When appellant had a clear opportunity to appear before Commissioner Gottlieb for purposes of sentencing, he chose not to appear. When he was subsequently brought before Judge Harrell, appellant and his attorney (the same attorney representing him at the time the plea was taken) signed a waiver of disqualification form in order to allow Judge Harrell to proceed, and it was reasonably apparent at this initial appearance before Judge Harrell that he would act as sentencing judge. Judge Harrell plainly alerted the parties that appellant had not appeared in front of him before. No objection was made by appellant or his attorney at the initial appearance before Judge Harrell or at the subsequent sentencing hearing. When asked at sentencing hearing if there was any legal cause why judgment should not be pronounced, appellant’s attorney said there was none. “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, 213 Cal.App.3d at p. 709.)
Because the record fails to affirmatively show that appellant reasonably expected to be sentenced by Commissioner Gottlieb, no Arbuckle right arose during the plea hearing. Since the record does not support appellant’s Arbuckle right, it is unnecessary to address the question of waiver. We conclude that no error occurred when Judge Harrell imposed sentence.
DISPOSITION
The judgment is affirmed.
We have no occasion in the present case to reexamine our ruling in People v. Horn, supra, 213 Cal.App.3d 701, regarding the requirements for a waiver of Arbuckle rights, since it is unnecessary to reach the waiver issue here. We recognize the concern that if failure to object does not create a waiver, there is an increased risk of gamesmanship contrary to the interests of justice. As stated in People v. West (1980) 107 Cal.App.3d 987, 992: “[A defendant] does not have the option of taking his chances before the different judge and, if the result is unfavorable, then demand the original judge.” As our Supreme Court explained in an analogous context: “‘[t]he defendant can not remain silent and take the chance of a favorable issue, and, losing, urge as [a] ground for reversal an error, which, but for his silence, might never have found its way into the case. His failure to object justly gives rise to the inference that at the time he saw no injury being done [to] him, and he can not complain on being met here by a barrier arising from his own omission.’” (People v. Vera (1997) 15 Cal.4th 269, 281, citing People v. Kramer (1897) 117 Cal. 647, 651.)