Opinion
NOT TO BE PUBLISHED
Solano County, Super. Ct. No. FCR225567
NEEDHAM, J.
Gregory A. Moss (Moss) appeals from a judgment of conviction and sentence imposed after he pled guilty to possessing a gun as a felon and a jury convicted him of felony assault with a semiautomatic firearm on a peace officer. He contends: (1) the jury’s verdict was not supported by substantial evidence; (2) his guilty plea should be set aside because he was deprived of effective assistance of counsel when his attorney advised him to enter the plea; (3) the jury verdict should be set aside because his attorney did not inform the jury about the plea; and (4) he is entitled to withdraw his plea because he was sentenced by a judge other than the one who accepted it. We will affirm the judgment.
I. FACTS AND PROCEDURAL HISTORY
An amended information charged Moss with: attempted murder of a peace officer (Pen. Code, §§ 664, subd. (e); 187, subd. (a)); felony assault with a semiautomatic firearm upon a peace officer (§ 245, subd. (d)(2)); and possession of a handgun by a felon (§ 12021, subd. (a)(1)).
Except where otherwise indicated, all statutory references are to the Penal Code.
As to all counts, it was alleged that Moss had used a firearm within the meaning of section 12022.53, subdivision (b) and section 12022.5. As to count three, four prior felony convictions were alleged for purposes of establishing that Moss was a felon at the time of the charged offense. For purposes of section 667.5, subdivision (b), it was further alleged that Moss had served prior prison terms for three of those four felony convictions.
Over Moss’s objection, the trial court granted the prosecution permission to use two of Moss’s prior convictions – a 1990 conviction in San Francisco for possession of a controlled substance for sale (Health & Saf. Code, § 11351) and a 1995 Contra Costa conviction for grand theft (§ 487) – as impeachment evidence if Moss testified, as proof of his motive and intent under Evidence Code section 1101, and as proof that Moss was a convicted felon for purposes of proving count three. The court denied Moss’s request to sanitize the priors so the jury would not know the nature of the convictions. The court also denied Moss’s motion to sever count three from the others.
On the day of trial, the amended information was further amended as to count three, deleting the enhancement allegations under section 12022.5 and section 12022.53 and the prior convictions other than the 1990 drug conviction and the 1995 grand theft conviction.
A. Guilty Plea as to Count Three
After consulting with his attorney, confirming to the court the voluntariness of his plea, and acknowledging and waiving his applicable rights, Moss pled guilty to count three (felon in possession of a firearm), admitted the two felony priors alleged in connection with that count, and admitted the prior prison terms alleged under section 667.5, subdivision (b). Judge Barclay accepted the plea and informed Moss that he faced a maximum prison term of four years on count three. It was agreed that Moss would be sentenced on count three after the jury trial was completed on counts one and two. There was no express agreement that Judge Barclay would sentence Moss.
B. Trial on Counts One and Two
A jury trial proceeded on the charges of attempted murder of a peace officer and assault upon a peace officer with a semiautomatic firearm.
1. Prosecution Case
Around 8:30 p.m. on July 19, 2005, Fairfield police officers Frank Piro and Paul Agusto were on duty, in uniform, and in a marked patrol car in an area known for criminal activity in Fairfield.
The amended information alleges that the offenses occurred on July 19, 1995. The reporter’s transcript indicates that the prosecutor referred to January 19, 2005 in his direct examination of Officer Piro. No issue is made of this discrepancy.
The officers observed a green Ford Thunderbird with a broken tail light and conducted an enforcement stop. Officer Piro parked the patrol vehicle behind the Thunderbird and contacted the driver (Gatson). Moss was in the front passenger seat. Officer Agusto was the cover officer.
The officers learned that Gatson was on probation, and Gatson agreed they could search the car. Gatson nonetheless became upset. Officer Piro took Gatson out of the car, brought him back to the patrol vehicle, and had him sit on the curb. Officer Agusto stood near Gatson, who was not in handcuffs.
Officer Piro then returned to the Thunderbird and told Moss that the officers were going to search the car. Piro was concerned that Moss’s baggy clothing and untucked T-shirt might be concealing a weapon in his waistband area.
Officer Piro instructed Moss to get out of the Thunderbird, placed him in a “control hold,” and had him step out of the car. (At trial, Piro explained that a control hold is a hold that does not apply pressure and is used by police to remove people from vehicles so they cannot fight or flee.)
Moss, who had his back to Officer Piro, suddenly swung his left arm toward Piro in an attempt to hit him, and tried to run forward to free himself from Piro’s grip. They struggled for a few seconds, and Piro, unable to regain control, released him. Officer Agusto ran over and shot Moss with his Taser. (At trial, the Taser was explained to be a non-lethal device that “locks up” muscles and makes it difficult to move.) The Taser’s darts struck Moss in the leg and near his left shoulder, and he fell to the ground about six to eight feet in front of the Thunderbird. As Moss lay on his stomach, Piro handcuffed Moss’s hands behind his back. It was now Agusto’s responsibility to stay with Moss while Piro completed the investigation.
Gatson then got up from the curb and walked towards the officers, who ordered him to sit down. Uncertain whether Gatson was going to flee or try to assist Moss, Officer Piro approached Gatson to handcuff him.
Officer Agusto, standing about three feet from Moss, was responsible for watching Moss and also covering Officer Piro as he attended to Gatson. The Taser darts were still in Moss’s body, and the Taser was still in Agusto’s hand. After looking towards Piro and Gatson, Agusto looked back at Moss, who was still on his stomach, and saw him reaching across the back of his body and attempting to place his hands or right hand underneath him, shifting his weight like he was rocking back and forth slightly. Agusto ordered Moss to keep his hands behind his back. Agusto checked on Piro, and when he looked back at Moss, Moss had completely concealed his right hand underneath his body, with his left arm pulled all the way to the right side of his back. Moss’s right hand was under his waistband area. Moss then rolled onto his left shoulder, toward Agusto, revealing a gun in his hand. Moss’s hand was on the grip of the gun and he was trying to get a better grasp of it. In a split second, Moss gained control of the gun and pointed it at Agusto; Agusto could see down the barrel of Moss’s gun.
Officer Agusto “sort of panicked” and, stepping out of the line of fire, reactivated the Taser and kicked Moss twice in the side; Moss rolled over onto the gun, with his arms behind his back. Agusto yelled “gun” to Officer Piro. Agusto activated the Taser a third time to immobilize Moss, rolled Moss onto his left side, pulled the gun out, and tossed it away.
When Officer Piro heard Officer Agusto yell “gun” and the sound of a Taser, he finished handcuffing Gatson, ordered him to stay on the ground, and ran to Agusto’s location. Piro got there within a couple of seconds, observing Agusto standing over Moss and pointing a Taser at him. Agusto pointed toward the sidewalk and yelled that a gun was there. Piro saw the gun on the sidewalk, about three feet from Moss, and secured it. The gun was a semi-automatic firearm, loaded with five rounds, with one round already in the chamber.
Officer Piro was 10-15 feet from Officer Agusto and Moss while he was handcuffing Gatson, and he had not seen Moss with a gun or observed Agusto kick Moss, move to avoid the line of fire, or roll Moss over to get the gun.
Officer Agusto radioed dispatch for more officers, explaining to the dispatcher that a suspect had pulled a gun on him. A recording of the call was played for the jury.
Officer Agusto also told Officer Piro that Moss had pulled a gun on him. Piro, who had known Agusto for over six years, had never seen Agusto so shaken up. Agusto testified that his hands were trembling and that he was overwhelmed by what had occurred. He was unable to concentrate further that day and had to return home.
Officer Piro took Moss to the Northbay Regional Medical Center to have the Taser darts removed. He noted no injuries on Moss except the dart wounds.
The prosecution placed into evidence the semi-automatic firearm in Moss’s possession and Moss’s prior convictions for grand theft and possession of a controlled substance for sale.
2. Defense Case
Moss testified that he and Gatson were going to Gatson’s grandmother’s house when they were stopped by Officers Piro and Agusto. Gatson produced his driver’s license, and Moss showed Piro his identification. Gatson became angry and asked, “Why you come after us, you racist?” Officer Agusto denied the accusation. Moss became fearful because he was armed with a gun that he intended to sell that night, and he knew the police were going to search them due to Gatson’s attitude.
Moss testified that Officer Piro went to the passenger side of the Thunderbird and asked Moss if he minded being searched. Moss objected, saying he was not on probation or parole. Officer Piro grabbed his arm, twisted it, and pulled him out of the car; in pain and afraid, Moss broke free in hopes that he could run and throw the gun away, but he was tasered. He fell to the ground and was unable to get rid of the gun before he was handcuffed with his hands behind him and his palms facing out. He was “kind of wiggling” because his gun was underneath his stomach, and Agusto tasered him again. Moss was on the verge of losing consciousness when he heard one officer say something about a gun; he moved around some more trying to get the gun away from his body, and then was tasered a third time.
At trial, Moss asserted that he never grabbed the gun and could not have grabbed it because his hands were cuffed behind his back. He also claimed it would have been suicidal for him to have attempted to shoot an officer.
During his trial testimony, Moss, wearing the clothes he wore on the night he was arrested, lay on the courtroom floor with his hands cuffed behind his back. Moss attempted to demonstrate that it was impossible for him to grab a gun in his waistband while his hands were handcuffed behind his back.
During cross-examination, Moss admitted that he was not supposed to be in possession of a gun because he had previous convictions for drug sales and theft. For this reason, he was very nervous about the stop by the police. He did not tell the police about the gun, even though he knew the police were going to find it.
3. Prosecution Rebuttal
The prosecution called Officers Piro and Agusto as rebuttal witnesses. Officer Piro, who had observed Moss’s demonstration in court, could not say whether Moss accurately demonstrated how he was handcuffed on the night of the incident. However, he heard Moss say during the demonstration that the handcuffs were tight, which is not how the police would normally handcuff a person. Though Moss had testified he was wearing tennis wristbands during the arrest, Piro did not remember him wearing wristbands that night. Officer Agusto testified that Moss did not show the same degree of determination in his in-court demonstration that he displayed on the night of the offense: Moss “didn’t even appear to be trying” to reach his hand into his waistband.
4. Jury Verdict
The jury found Moss not guilty of count one (attempted murder) but guilty of count two (assault with a semiautomatic firearm on a peace officer). The jury found true the personal use of a firearm allegations under section 12022.5, subdivision (a)(1), and section 12022.53, subdivision (b).
C. Sentencing
Sentencing on count two and Moss’s previous guilty plea as to count three was set for September 25, 2007. On that date, however, Moss’s trial attorney moved to be relieved as counsel. Judge Barclay granted the request, appointed the Solano County Public Defender to represent Moss, and continued the sentencing date.
On March 13, 2008, Moss made an oral Marsden motion to remove the deputy public defender who was representing him. (See People v. Marsden (1970) 2 Cal.3d 118 (Marsden). Judge Barclay denied the motion.
By minute order dated April 1, 2008, the court advised the parties that Judge Barclay would be unavailable for a number of months due to personal matters, and the case was transferred to Judge Dwight C. Ely for all purposes. On April 18, 2008, Judge Ely heard and granted Moss’s second Marsden motion, and a new defense attorney was appointed. On July 30, 2008, Moss made a motion for a new trial, which Judge Ely denied.
Sentencing on counts two and three took place on September 10, 2008, before Judge E. Bradley Nelson. Moss did not object to being sentenced by Judge Nelson rather than Judge Barclay, who had taken his plea on count three.
Moss was sentenced to an aggregate term of 17 years in state prison, consisting of: the mid-term of seven years on count two; a consecutive ten-year term for the enhancement for use of a firearm; and a concurrent two-year term for the guilty plea conviction on count three. Additional terms for enhancements under section 667.5, subdivision (b) and section 12022.5 were stayed pursuant to section 654.
This appeal followed.
II. DISCUSSION
Moss contends: (1) the jury’s verdict on count two (felony assault with a semiautomatic weapon on a peace officer) was not supported by substantial evidence; (2) his guilty plea on count three (felon in possession of firearm) should be set aside because he was deprived of effective assistance of counsel when his attorney advised him to plead guilty to count three; (3) his conviction on count two should be set aside because defense counsel did not advise the jury that Moss had taken responsibility for possessing a firearm; and (4) he is entitled to withdraw his plea on count three because the judge who accepted his plea did not sentence him. He also contends that he was deprived of effective assistance of counsel if he is found to have waived any of these arguments.
A. Substantial Evidence to Support Count Two Felony Assault
Moss argues that his conviction for assault with a semiautomatic firearm upon a peace officer was not supported by substantial evidence because the testimony of Officer Agusto, the only witness to testify directly about the assault, was inherently improbable. In particular, he urges, Officer Agusto’s testimony was inherently improbable because: what Agusto said Moss did while handcuffed and tasered was physically impossible; what Agusto said Agusto did could not have happened in the time frame he described; Officer Piro did not observe what Agusto claimed transpired; and Moss’s condition at the hospital did not reflect any injuries besides those caused by the Taser darts.
1. The Law
In our review for substantial evidence, we view the evidence in the light most favorable to respondent and presume every fact in support of the judgment that the jury could have reasonably deduced from the evidence. (People v. Rayford (1994) 9 Cal.4th 1, 23; People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) Witness credibility, including weaknesses and inconsistencies in eyewitness testimony, are matters solely for the jury. (Ochoa, at p. 1206; People v. Allen (1985) 165 Cal.App.3d 616, 623 (Allen).)
A very limited exception occurs where the evidence “is inherently improbable or incredible, i.e., ‘unbelievable per se,’ physically impossible, or ‘ “wholly unacceptable to reasonable minds.” ’ ” (See Kolender v. San Diego County Civil Service Commission (2005) 132 Cal.App.4th 1150, 1155 [nonetheless holding that substantial evidence supported the finding in question].) “ ‘To be improbable on its face the evidence must assert that something has occurred that... does not seem possible’ and the falsity ‘must be apparent without resorting to inferences or deductions.’ ” (People v. Mayberry (1975) 15 Cal.3d 143, 150 [holding that the evidence was not inherently improbable]; Allen, supra, 165 Cal.App.3d at p. 623 [requiring either a physical impossibility that the statements are true, or that their falsity be apparent without resorting to inferences or deductions].)
There is no dispute that, if Agusto’s testimony was not inherently improbable, it was sufficient to support the conviction. Moss was armed with a firearm. While on the ground, handcuffed, he reached to the front of his waistband, grabbed a gun, rolled over to his side and pointed the gun at Agusto, three feet away.
2. Application
Moss first argues that Officer Agusto’s account of Moss’s actions was inherently improbable because Moss had been tasered and was lying on his stomach with his hands cuffed behind him. From this position, he asserts, he could not have reached around his hip to the front of his waistband, taken hold of his gun, and raised himself up onto his left side far enough to be able to point the gun at Agusto’s head, all in six or seven seconds.
We disagree. There is nothing inherently impossible about a person who has his hands cuffed behind him being able to reach around to a gun in his front waistband area, pull it out, and point it at someone in six or seven seconds. While Moss introduced evidence, by way of his own demonstration, that it was impossible for him to do what Agusto said he did, there was also evidence that his demonstration was flawed because he did not exert the same effort he displayed on the night of the offense. This dispute and the credibility of the witnesses were matters for the jury to decide.
Moss also argues that Officer Agusto’s account of what Agusto did next is inherently implausible, because Agusto said it occurred in “a matter of a couple of seconds.” Within this period, Moss argues, Agusto could not have stepped to his left, reactivated the Taser darts, kicked Moss’s side twice, yelled “gun,” rolled Moss off the gun, tossed it out of the way, and radioed for additional officers.
Moss’s argument is meritless. In the first place, Officer Agusto did not testify that all those actions occurred within two seconds. His reference to “a matter of a couple of seconds” arose when he was asked at trial whether Moss dropped the gun or it fell out of his hand after Agusto kicked him. Agusto testified: “This whole encounter with the defendant from the time I saw the gun to the time it was completely over was a matter of a couple of seconds. So specifically at what time, how the gun fell, it just happened so fast.” Given its context, Agusto’s testimony about “a matter of a couple of seconds” could reasonably be found to mean that the events occurred so quickly he could not discern or recall exactly how the gun wound up on the ground, as opposed to representing that the entirety of the events transpired literally in two seconds and not a second more. Furthermore, it was not critical to Agusto’s testimony that all of his actions occurred within two seconds. Therefore, even if Agusto did not accurately recall the precise number of seconds in which the actions occurred, there was nothing about his description of the actions themselves that was physically impossible or unbelievable per se.
To put it slightly differently, no reasonable person would reject Agusto’s detailed depiction of the events merely because he might have underestimated their duration by a number of seconds.
Moss next emphasizes that Officer Piro did not see or hear Moss’s assault, despite having an unobstructed view from about 10-15 feet away. He believes this makes Officer Agusto’s testimony inherently implausible.
Again, we disagree. There is no evidence that Officer Piro was actually looking at Officer Agusto or Moss at the precise moment Moss attempted to gain control of his firearm and pointed it at Agusto. To the contrary, the evidence is that Piro was busy handcuffing Gatson at the time. Under those circumstances, it was not impossible for the events to have rapidly occurred as described by Agusto, without Piro noticing them.
Lastly, Moss points out that he suffered no injuries other than those from the Taser darts, and questions how he could be injury-free if he had been kicked twice in the side as Officer Agusto said. His argument has no merit. The force with which Agusto kicked Moss in the side is not material to whether Moss had committed a felony assault by pointing his semiautomatic firearm at Agusto. Furthermore, Agusto did not testify that he injured Moss when he kicked him in the side, so the fact that Moss did not suffer any apparent injuries to his side does not render Agusto’s testimony impossible. Nor was there any expert witness testimony, for example, that it was impossible for Agusto to have kicked Moss in the side given Moss’s physical condition. The fact that Officer Piro identified no other injuries to Moss does not render it impossible that Officer Agusto kicked Moss in the side, only that he did not employ force sufficient to cause noticeable injury.
Based on the evidence, it cannot be said that the events as described by Officer Agusto were unbelievable per se, physically impossible, or wholly unacceptable to reasonable minds. The testimony of Officer Agusto was therefore not inherently improbable, and substantial evidence supported the conviction on count two.
B. Effective Assistance of Counsel
Moss argues that he was denied effective assistance of counsel because his trial attorney (1) advised him to plead guilty to count three (felon in possession of a firearm) and (2) failed to inform the jury at trial that Moss accepted criminal responsibility for possessing a firearm by pleading guilty to count three, even though the jury had heard evidence that Moss was a convicted felon who should not have possessed a gun.
1. Background
As mentioned, the trial court granted the prosecution’s in limine request to introduce two prior convictions (grand theft and possession for sale of a controlled substance) for three purposes: impeachment if Moss testified, proof of Moss’s motive and intent under Evidence Code section 1101, and proof that Moss was a convicted felon for purposes of count three. The court also ruled that Moss could still be impeached with the two priors (if he testified), even if he pled guilty to count three.
Defense counsel thereafter advised the court that he and Moss had discussed the possibility of pleading guilty to count three, Moss believed it was “in his best interest to resolve this issue,” and “[n]ow that [Moss] has heard much of this Court’s ruling, we would like to plead guilty to Count Three only.” Moss did not object to his counsel’s statements. Subsequently, Moss pleaded guilty to count three, and defense counsel confirmed to the court that he had discussed with Moss the defense theory and that counsel believed it would be better for Moss to dispose of count three by pleading guilty.
At the trial on counts one and two, the prosecution introduced evidence of Moss’s prior convictions for grand theft and drug offenses. During his testimony, Moss admitted that he had prior convictions and was not supposed to have a gun. Specifically, on direct examination he testified: “Q. Okay. Now, you have told the jury you had the gun, we all know you had the gun? [¶] A. Yes. [¶] Q. And you knew you weren’t supposed to have the gun? [¶] A. Yes. [¶] Q. Because we know you have been previously convicted of drug sales and -- [¶] A. Yes. [¶] Q. –theft of person, so you knew you weren’t supposed to have that gun? [¶] A. Yes.” In closing argument, the prosecutor pointed out Moss’s admission that he was a convicted felon and, when stopped by the officers, did not want to return to jail.
2. The Law
To prevail on a claim of ineffective assistance of counsel, a defendant must show: (1) counsel’s performance was deficient because his representation fell below an objective standard of reasonableness under prevailing professional norms; and (2) prejudice flowing from counsel’s performance or lack thereof. (People v. Lucas (1995) 12 Cal.4th 415, 436.) We reverse convictions on the ground of inadequate counsel only if “the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission.” (People v. Fosselman (1983) 33 Cal.3d 572, 581.)
3. Pleading Guilty to Count Three
There is no dispute in this appeal that defense counsel discussed with Moss the relative merits of pleading guilty to count three. Moss argues that his attorney’s advice to plead guilty to count three was deficient, however, because the evidence of his prior convictions, which was admissible to prove count three, was still going to be admitted at trial for other purposes notwithstanding the plea. Respondent counters that the advice to plead guilty to count three was nonetheless prudent, because Moss had no defense to count three, and insisting on his innocence on that count at trial would have damaged his credibility. Furthermore, pleading guilty to count three before trial meant that he was accused before the jury of only two crimes, not three.
Moss has failed to show the prejudice necessary for an ineffective assistance claim. Where, as here, a defendant contends his attorney’s deficient advice led to his entering a guilty plea, the defendant must show prejudice by establishing a reasonable probability that, but for counsel’s errant advice, he would not have pleaded guilty. In this regard, we may consider whether Moss would have obtained a more favorable verdict if he had proceeded to trial. (In re Resendiz (2001) 25 Cal.4th 230, 239, 253-254.)
There is no reasonable probability that Moss would have obtained a more favorable verdict on count three if he had not pleaded guilty on that count. It is undisputed that, at the time of the incident, Moss was a felon and he possessed a gun. In fact, Moss later admitted so under oath. If he had proceeded to trial on count three, whether he testified or not, he would have been convicted. He therefore had no apparent hope of avoiding a conviction by going to trial, and there was at least some benefit to removing count three from the jury, for the reasons stated by respondent. Because there is no evidence that defense counsel failed to apprise Moss that his prior convictions would still come into evidence, and there is nothing in the record demonstrating that Moss would have proceeded to trial but for some legal or factual error stated to him by counsel, Moss fails to meet his burden of establishing prejudice.
Moss argues there is a reasonable probability he would have obtained a more favorable verdict on count two if he had not pleaded guilty on count three, because the jury ended up hearing that he possessed a gun as a felon but not that he had admitted responsibility for it by pleading guilty. This supposedly tainted the jury against him in its deliberations on count two. Because this argument is intertwined with Moss’s argument about his counsel’s failure to inform the jury of his plea, we address it next.
4. Not Telling the Jury About the Guilty Plea
Moss contends that his trial counsel provided ineffective assistance because no reasonable attorney would have kept Moss’s guilty plea to count three a secret from the jury, particularly since the prosecutor reminded the jury that Moss knew he was not supposed to have a gun as a felon. In Moss’s view, his counsel’s silence permitted the jury to think that he had not been charged with the violation and would walk out a free man if not convicted on count one or count two. This, he insists, put the jury in a dilemma by which it decided to convict him on count two.
In his reply brief, Moss contends his argument is supported by the fact that the jury did not convict him of attempted murder. He asserts that its decision not to convict him of attempted murder shows that it did not believe Agusto’s testimony that Moss pointed a loaded gun at Agusto’s face or that Moss attempted to use it, and thus the only reason he was convicted on the count two assault charge was because the jury did not want Moss to go free despite having possessed a gun as a felon. The argument is meritless. There is a difference between assault and attempted murder: an assault is an “unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another” (§ 240); attempted murder, by contrast, requires an actual intent to kill (§§ 187, 664). The jury, instructed accordingly, reasonably could have believed there was sufficient evidence to convict Moss for assault with a semiautomatic firearm on a peace officer, but not sufficient evidence to convict him of attempted murder.
Moss’s argument is untenable. There is absolutely no basis for concluding that Moss’s possession of a gun while a felon rendered the jury incapable of properly deciding whether the elements of the charged assault had been proved beyond a reasonable doubt. There is nothing so shocking, inflammatory, or prejudicial about a felon’s possession of a gun that would lead a jury to convict him of assault contrary to the evidence and the instructions of the court. More than adequate evidence supported a conviction on count two, and the jury was specifically instructed to base its decision solely on the evidence at trial and not to let bias, sympathy, prejudice, or public opinion influence its decision. The court further instructed the jury that it had to reach its decision without consideration of punishment and could consider only the evidence presented in the courtroom.
Moss fails to establish ineffective assistance of counsel.
C. Withdrawal of Plea on Count Three
Moss contends he should be able to withdraw his plea to count three because he was not sentenced by the judge who accepted his plea. His argument is without merit.
1. Background
After Moss’s plea was accepted by Judge Barclay, the parties agreed Moss would be sentenced on count three after he was tried on counts one and two. After the jury returned its verdict on counts one and two, sentencing was continued so that Moss’s new counsel could obtain the trial transcripts and file a motion for new trial. After Judge Barclay denied Moss’s first Marsden motion, the motion for new trial and the sentencing were set for April 18, 2008. On April 1, 2008, however, the presiding judge issued a minute order indicating that Judge Barclay would not be available for a “number of months” due to personal matters and reassigned the case to Judge Ely. Judge Ely granted Moss’s second Marsden motion and denied his motion for a new trial. On September 10, 2008, the matter came on for sentencing before Judge Nelson. Judge Nelson stated that he had not been the trial judge and had not read the trial transcript, but had read the probation report. After discussing the matter in chambers with counsel, Judge Nelson indicated he was receptive to imposing a lower sentence than what the probation department had recommended. Neither party objected to Judge Nelson sentencing Moss on any of the counts.
2. The Law
Our Supreme Court in Arbuckle stated: “As a general principle,... whenever a judge accepts a plea bargain and retains sentencing discretion under the agreement, an implied term of the bargain is that sentence will be imposed by that judge.” (See People v. Arbuckle (1978) 22 Cal.3d 749, 756-757 (Arbuckle).) If that judge is unavailable at the time of sentencing, the defendant has the option of proceeding before a different judge or withdrawing his plea. (Id. at p. 757 & fn. 5.)
Thus, sentence must be imposed by the judge who accepted the defendant’s plea only if that judge retained sentencing discretion under the agreement. Not every plea agreement contains a term that the judge will retain sentencing discretion. “ ‘ “It is not always an implied term of a plea bargain that the judge who accepts the plea will impose the sentence; rather, the record must affirmatively demonstrate some basis upon which a defendant may reasonably expect that the judge who accepts the plea will retain sentencing discretion.” ’ ” (People v. Horn (1989) 213 Cal.App.3d 701, 707-708 (Horn).)
3. Application
Moss’s Arbuckle claim is meritless because: (1) he had no basis for expecting that Judge Barclay would retain sentencing discretion on count three; (2) he waived any Arbuckle right by failing to object at sentencing; and (3) Arbuckle did not apply anyway.
First, Moss did not affirmatively demonstrate any basis for having a reasonable expectation, at the time he entered his guilty plea, that Judge Barclay would retain sentencing discretion. In this regard, Moss refers us to page 72 of the reporter’s transcript and pages 230 and 290 of the clerk’s transcript. Page 72 of the reporter’s transcript and page 230 of the clerk’s transcript (a minute order issued on August 8, 2007) merely indicate that, after Moss entered his plea, the parties agreed that sentencing on count three was waived until the jury trial was completed on counts one and two. There is no reference to any expectation, born of the plea agreement, that Moss would be sentenced only by Judge Barclay. (See Arbuckle, supra, 22 Cal.3d at p. 757 [“Because of the range of dispositions available to a sentencing judge, the propensity in sentencing demonstrated by a particular judge is an inherently significant factor in the defendant’s decision to enter a guilty plea”; italics added].)
Page 290 of the clerk’s transcript is a minute order of August 13, 2007, pertaining to the jury verdict on count one and two. An entry on that document reads: “No Arbuckle waiver given.” Based on this entry, Moss suggests he had previously asserted an Arbuckle right and now affirmatively declined to waive it.
The corresponding portion of the reporter’s transcript, however, refutes Moss’s contention. After the verdict, the court and counsel were discussing a date for sentencing on counts two and three. The court stated: “There is not an Arbuckle waiver in this case, it’s a jury trial.” (Italics added.) The court’s reference to there not being an Arbuckle waiver, therefore, reflected the fact that there was no issue of an Arbuckle waiver because the verdict on count two was by the jury rather than by a plea; it further suggests that the court had no understanding of any Arbuckle restriction in regard to the previous plea on count three, since the parties were discussing sentencing on count three as well as count two. While the court and parties were indeed attempting to find a date on which Judge Barclay would be available to sentence Moss, there is no indication that their efforts were compelled by Arbuckle. Moss has failed to demonstrate that sentencing by Judge Barclay was an implied term of his plea agreement.
Second, even if Moss did have an Arbuckle right to be sentenced by Judge Barclay, he waived or forfeited it by failing to object when he was sentenced by Judge Nelson. (See People v. Serrato (1988) 201 Cal.App.3d 761, 764-765 [Third District]; People v. Adams (1990) 224 Cal.App.3d 1540, 1543-1544 [Fourth District] (Adams); cf. Horn, supra, 213 Cal.App.3d at p. 709 [Fifth District; silence does not constitute waiver of implied term, but it may indicate no Arbuckle right ever arose in the first place].) After all, a defendant should not have “ ‘the option of taking his chances before the different judge and, if the result is unfavorable, then demand the original judge.’ ” (Adams, supra, 224 Cal.App.3d at p. 1544.)
Aside from the concept of waiver, the silence of Moss and his attorney certainly confirmed that no one believed it necessary under Arbuckle for Judge Barclay to pronounce sentence. There is no indication in the record that the parties ever claimed that Arbuckle applied, or that Moss or his counsel requested that Moss be sentenced by Judge Barclay. As the court explained in Horn: “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.” (Horn, supra, 213 Cal.App.3d at p. 709.)
Third, we question whether Moss would have been entitled to be sentenced by Judge Barclay under Arbuckle anyway. It appears from the record that Judge Barclay was unavailable to sentence Moss due to personal reasons, and not due to the court’s administrative convenience or internal court administrative practices, to which Arbuckle applies. (People v. Jackson (1987) 193 Cal.App.3d 393, 403; People v. Dunn (1986) 176 Cal.App.3d 572, 575 [“a negotiated plea does not carry with it an implied promise that the judge accepting the plea will not resign, retire, expire or be removed from the bench pending imposition of sentence”].)
Moss fails to establish any entitlement to withdraw his plea due to a violation of Arbuckle.
Moss’s quest to withdraw his plea to count three is perplexing. He admitted under oath at the trial on counts one and two that he possessed a gun at a time when, as a felon, he was not permitted to do so. He would be precluded from arguing otherwise in a trial on count three, and he offers no indication of any defense, evidence, or argument as to why he would not be convicted of the offense. Moreover, there is no indication he would obtain a sentence on count three that would be less than the concurrent two-year term he received. The concurrent two-year term imposed by Judge Nelson was more favorable to Moss than the probation department’s recommendation of a consecutive eight-month term. Furthermore, Judge Nelson selected the mid-term of sentence on counts two and three, notwithstanding the undisputed aggravating factor of Moss’s recidivism. The sentencing discretion exercised by Judge Nelson might well not be duplicated by Judge Barclay or any other judge.
D. Failure to Assert Rights in the Trial Court
Moss argues that if he failed to preserve any claim on appeal by not asserting it in the trial court, he was deprived of effective assistance of counsel. He has not shown any prejudice in this regard, however, because his claims on appeal lack merit for reasons other than waiver or forfeiture. In addition, it is not reasonably probable that he would have received a sentence on count two or count three that was more favorable than the one he received.
III. DISPOSITION
The judgment is affirmed.
We concur. SIMONS, Acting P. J., BRUINIERS, J.