Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. 193345
NEEDHAM, J.
Kevin McWay (McWay) appeals from a judgment of conviction and sentence entered after he pled guilty to numerous counts pursuant to a negotiated disposition. He contends that his sentence should be vacated because he was sentenced by a judge other than the judge who accepted his plea. We will affirm the judgment.
I. FACTS AND PROCEDURAL HISTORY
An information accused McWay and codefendant Judith Thrower (Thrower) with: count 1, second degree robbery of Elizabeth Austin (Austin) (Pen. Code, § 212.5, subd. (c)), a serious felony within the meaning of section 1192.7, subdivision (c)(19); and count 2, assault upon Austin by means likely to produce great bodily injury (§ 245, subd. (a)(1)). Alleged as to McWay only were: count 3, attempted second degree robbery of Joanna Campbell (Campbell) (§§ 664, 212.5, subd. (c)), a serious felony within the meaning of section 1192.7, subdivision (c)(19); count 5, unlawfully taking and driving a vehicle of Suzanne Coveau (Coveau) (Veh. Code, § 10851, subd. (a)); count 6, burglary of a motor vehicle owned by Gregory and Marta Bayol (§ 459); and count 7, receiving stolen property belonging to Gabriella Bayol (§ 496, subd. (a)). Alleged as to Thrower only was count 4, for unlawful taking and driving the vehicle owned by Coveau (Veh. Code, § 10851, subd. (a)).
All further statutory references are to the Penal Code unless otherwise indicated.
McWay was alleged to have suffered one prior strike conviction within the meaning of section 667, subdivisions (d) and (e), and section 1170.12, subdivisions (b) and (c), for a serious felony within the meaning of section 667, subdivision (a). It was further alleged that Thrower had three prior conviction strikes (§§ 667, subds. (d) & (e), 1170.12, subds. (b) & (c)), for serious felonies (§ 667, subd. (a)).
McWay entered a plea of not guilty and denied the allegations.
A. PRELIMINARY HEARING
Inspector Brian Danker of the San Francisco Police Department testified to the following account provided to him by victim Austin. On December 5, 2003, Austin returned from shopping to her car parked at the Stonestown mall. As she was putting her baby in the car seat, a Black male, later identified as McWay, pulled her from the vehicle and spun her around. Austin then observed a Black female, later identified as Thrower, in the driver’s seat of a white Jeep Cherokee. Thrower grabbed ahold of Austin’s Prada purse, which Austin was carrying; Austin held on. McWay got into the passenger seat of the white Jeep and yelled at Thrower to go. Thrower drove off, with Austin still clutching her purse and running alongside the Jeep. After about 50 feet, Austin lost her grip on the purse and fell to the asphalt, sustaining numerous injuries. Austin’s purse contained a pearl necklace.
Inspector Danker showed Austin a photograph from the mall’s security camera system. Austin said that the man in the photograph wearing a hat and brown coat looked vaguely like the person who grabbed her. Inspector Danker later showed the photograph to another officer, who recognized the man in the photograph to be McWay.
On December 11, 2003, McWay and Thrower were arrested at 184 Harvard Street in San Francisco and brought to the Hall of Justice. In Thrower’s purse was a pearl necklace, which Austin identified as the necklace that was in her Prada purse when it was taken from her at the mall.
Police recovered a white Jeep about two to three blocks from 184 Harvard Street. DMV records identified Coveau as the owner of the Jeep. Coveau confirmed to Inspector Danker that it was her Jeep, she had reported it stolen, she had not allowed anyone to take it, she did not know Thrower, and she had not given Thrower or McWay permission to drive it.
Austin identified the white Jeep as similar to the one involved in the incident at the mall. Inside the Jeep were dry cleaning and store receipts with Austin’s bank account numbers; the receipts had been in Austin’s purse when it was stolen.
In a search of the 184 Harvard Street residence and the white Jeep, officers found a backpack, shoes, bracelet, headphones, and schoolwork belonging to a Gabriella Bayol. Gabriella Bayol’s mother, Marta Bayol, told Inspector Danker that her car had been broken into and property had been taken when the car was parked and locked behind the Stonestown Shopping Center on December 8, 2003. Marta Bayol identified the property seized from the 184 Harvard Street residence and from the white Jeep as belonging to her daughter Gabriella.
When Inspector Danker showed Austin a six-photo male lineup, she circled the photograph of McWay and wrote: “The individual in this photo looks like my attacker. I am sure this is the assailant.” Inspector Danker also showed Austin a six-photo female lineup. She circled the photo of Thrower and wrote: “This woman in the picture has distinct facial features that directly correlate with those of my assailant on Friday, December 5th.” In May 2004, Austin identified Thrower in a live lineup.
Inspector Danker further testified regarding the account victim Campbell had given him. In the Stonestown Shopping Center parking lot on December 8, 2003, Campbell saw a white Jeep Cherokee, whose driver appeared to be waiting for her to move her car in order to park in her space. Someone approached her from behind and grabbed her purse. She fought him off, keeping hold of her purse, and the man got into the Jeep and drove away. When Inspector Danker showed Campbell a photo lineup, she picked McWay’s photo, circled it, and wrote: “It was him,” “I saw his face and it was him.”
B. NEGOTIATED PLEA
On February 3, 2006, after being advised of and personally waiving his constitutional rights, McWay entered a plea of guilty to counts 1, 3, and 5 (second degree robbery of Austin, attempted second degree robbery of Campbell, and theft of Coveau’s vehicle), and admitted the prior strike and serious felony conviction allegations. Pursuant to the negotiated plea, the remaining counts against McWay were dismissed (§ 1385). As a negotiated disposition, McWay was to receive a state prison sentence of 10 years and four months, comprised of the following: four years for double the mitigated of two years for count 1, plus five years for the prior conviction under section 667, subdivision (a), plus eight months for one-third of the midterm for count 3, plus eight months for one-third of the midterm for count 5.
At the entry of McWay’s plea, his lawyer stated the fixed term of the negotiated disposition as follows: “I have advised him of the legal consequences of a guilty plea to the charge and that the punishment for the offenses is, as a result of our agreement with the district attorney, that he will receive the mitigated penalty of two years on count I, doubled by the presence of a prior strike conviction on his part; that he will receive the one-third of the base term on count III and count V, for a total of eight months on each one, total of one year and four months; and five years for the prior conviction, for a total of ten years and four months in state prison.”
Judge Herbert Donaldson took McWay’s plea. McWay agreed to be sentenced by another judge if Judge Donaldson was not available on the day of McWay’s sentencing. The court asked: “If I am not present on the date of sentencing, do you agree to be sentenced by another judge so long as the sentence is the same as is stated today?” McWay responded: “Yes.”
The matter was continued for sentencing.
C. SENTENCING
Although not part of the plea agreement, Assistant District Attorney (ADA) Anthony Brass (Brass) told counsel for McWay and Thrower that he would consider additional leniency at sentencing if McWay and Thrower provided useful information to law enforcement.
On July 7, 2006, the matter came on for sentencing before Judge Donaldson, but was continued to September 15, 2006, to enable the parties to explore a disposition “more favorable” to the defendants. At that hearing, Judge Donaldson stated: “It’s been suggested that this matter be put over to September 15th. Therefore, both of these cases will go over to September 15th at 9:00 on the Department 22 calendar to follow me, wherever I may be.”
On September 15, 2006, the matter was called in Department 22, with Judge McBride presiding. Thrower’s counsel, Henry Doering, informed Judge McBride, “[T]his has been an ongoing matter with Judge Donaldson” and additional information might be coming from the district attorney’s office. Judge McBride suggested the matter be postponed a week. Judge McBride explained: “Folks, your judge isn’t here today. We have to do it next Friday. Is that all right?” All parties agreed and sentencing was continued to September 22, 2006.
On September 22, 2006, McWay appeared in Department 22, again before Judge McBride. Judge McBride asked, “So this is following Judge Donaldson or not?” Attorney Doering, as Thrower’s counsel, replied “Yes.” ADA Pamela Pecora-Hansen (appearing for ADA Clark) advised, “There are Arbuckle waivers.” (See People v. Arbuckle (1978) 22 Cal.3d 749 (Arbuckle).) The court stated, “So it’s time to get a sentencing done, right?” Doering said, “I agree it’s probably rapidly approaching,” but requested that sentencing be continued again. In continuing the matter, Judge McBride made it clear the hearing would be before him: “See you on the 28th at 1:30.”
On September 28, 2006, the matter was called in Department 22, again before Judge McBride. Judge McBride informed the parties that he had received the pre-sentence reports and inquired whether they were ready to proceed for sentencing. Counsel responded affirmatively. ADA Clark told the court that McWay and Thrower had not provided information warranting a lesser sentence than the parties had agreed in the plea bargain. Testimony concerning the issue was taken after which the court stated, “I’m not satisfied that anything has happened for me to revisit the negotiated disposition.” Sentencing was continued to October 2, 2006, to give McWay’s counsel further opportunity to convince the district attorney’s office to reconsider McWay’s sentence.
Sentencing resumed on October 2, 2006, again before Judge McBride. ADA Clark reiterated that the People would not reconsider the previously negotiated sentences for McWay (and Thrower). McWay’s counsel, former District Attorney Terence Hallinan, asked Judge McBride to “reconsider [Judge McBride’s] decision on the strike, striking the strike, or staying the five-year prior.” Thrower’s counsel, Doering, joined in that request, which Judge McBride denied. When the judge asked McWay if he wanted to be heard before sentence was pronounced, McWay expressed a desire to call his mother as a character witness. McWay’s counsel asked that sentencing be continued yet again, this time to permit former ADA Brass, who was no longer with the district attorney’s office, to testify. The matter was continued to October 5, 2006.
On October 5, 2006, former ADA Brass spoke to Judge McBride at an unreported bench conference on the issue of McWay’s cooperation. On the record, McWay stated that Judge “Donaldson put it on record for the case to follow him, because at the time he had knowledge of what was going on.” McWay then explained, essentially, why he believed he should be treated leniently. Before acknowledging McWay’s position, Judge McBride replied that Judge Donaldson was unavailable but had not indicated any reason not to proceed with sentencing. Specifically, the court stated: “Mr. McWay, let me explain a couple of things. Judge Donaldson is a retired judge. He sits here by designation. [¶] . . . [¶] On Fridays.” McWay expressed his understanding. The court continued: “The Court: He is—let’s put it this way. He is a man of a certain age. His health is not all that good. [¶] [McWay]: I understand. [¶] The Court: He’s been here from time to time. And he did take—he did accept the plea here. But this is what’s called one where the District Attorney agreed. It’s what is called a negotiated disposition with the District Attorney. [¶] I spoke to him [Judge Donaldson] briefly about your case. Not in detail. But I asked him if he had any reason to keep it. And he said, ‘No, just go ahead if they have waived their right to be sentenced in front of me.’ [¶] He has not been here, I don’t think, on a day when you’ve been here. [¶] [McWay]: There’s two Fridays, the 15th and the 22nd. [¶] The Court: Right. [¶] [McWay]: And following on the 28th, I think he was in, but I guess you had spoke to him since then. [¶] The Court: Judge Donaldson swore me in as a judge 12-and-a-half, 13 years ago. And obviously I can’t speak for him. [¶] [McWay]: I understand. [¶] The Court: But nothing tells me he would do anything different after this hearing.”
No objection was made to Judge McBride sentencing McWay (and Thrower). McWay’s counsel again asked the court to strike McWay’s prior “strike,” and Judge McBride again denied the request.
In accordance with the negotiated disposition, Judge McBride sentenced McWay to state prison for a term of 10 years and four months, as follows: the mitigated term of two years for the robbery of Austin (count 1), doubled pursuant to McWay’s prior strike (§§ 1170.12, subd. (c)(1), 667, subd. (e)(1)); plus five years for the prior serious felony conviction enhancement (§ 667, subd. (a)); plus two consecutive eight-month terms (one-third the midterm of two years) for attempted second degree robbery of Campbell (count 3) and theft of Coveaus’ vehicle (count 5).
On October 12, 2006, McWay filed a notice of appeal.
On May 21, 2007, the trial court reduced McWay’s sentence to a term of nine years, as follows: the low term of two years on count 1 (robbery), doubled for the prior strike, plus five years for the prior serious felony conviction. In other words, the 16-month consecutive terms based on counts 3 and 5 were omitted from McWay’s sentence. Neither the record nor the parties’ briefs provide any explanation for this change of sentence.
II. DISCUSSION
McWay contends that the October 5 sentence imposed by Judge McBride is void for lack of jurisdiction under Arbuckle, because Judge McBride was not the judge who accepted his plea and presided over the first sentencing hearing. He asks us to vacate his sentence and remand the case for sentencing by Judge Donaldson. McWay’s contention is meritless for two reasons: (1) the appeal is moot; and (2) there was no Arbuckle error.
A. MOOTNESS
The order from which McWay appeals was issued by Judge McBride on October 5, 2006. McWay appealed from his conviction on October 12, 2006, contending inter alia that the sentencing by Judge McBride constituted Arbuckle error. By a subsequent order on May 21, 2007, however, McWay’s sentence was changed, reflecting a reduction from 10 years and four months to nine years.
Because the order of May 21, 2007, supplanted Judge McBride’s order of October 5, 2006, McWay’s challenge to Judge McBride’s order in this appeal is moot. In addition, no appeal has been filed from the May 21 order, and there is no indication in the record that McWay objected to the imposition of his reduced sentence by a judge other than Judge Donaldson.
Because the appeal is moot, it is subject to dismissal. However, since neither party has addressed the mootness issue (or whether the trial court had jurisdiction to lower McWay’s sentence during the pendency of this appeal), we proceed to discuss the parties’ arguments on the merits.
B. ARBUCKLE
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.” (Arbuckle, supra,22 Cal.3d at pp. 756-757.) 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, the 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. [Citation.]” [Citation.]’ [Citation.]” (People v. Horn (1989) 213 Cal.App.3d 701, 707-708 (Horn).)
Here, the record does not provide any basis for concluding that Judge Donaldson retained sentencing discretion under the terms of McWay’s plea agreement. When McWay entered his plea, he expressly agreed that, if Judge Donaldson was not present on the day of sentencing, he could “be sentenced by another judge so long as the sentence is the same as is stated today.” Under these circumstances, there was no reasonable basis for McWay to expect that Judge Donaldson was retaining sentencing discretion as an implied term of the plea agreement. And, sure enough, when McWay was later sentenced by Judge McBride, Judge Donaldson was not available and McWay received a sentence that was the same as the one stated when he entered his plea. Arbuckle was not implicated.
McWay nonetheless argues that Judge Donaldson should have been the one to sentence him, based on People v. Ellison (2003) 111 Cal.App.4th 1360 (Ellison). In Ellison, the judge who accepted the defendant’s plea told the defendant that he would not be available to impose sentence. The defendant waived his Arbuckle rights and agreed to be sentenced by a second judge. (Ellison, at p. 1363.) At the sentencing hearing, the second judge ordered the defendant’s immediate release from jail pending a final probation report. The jail did not release the defendant, however, because “someone at the jail” asked a third judge to put a “ ‘hold’ ” on the defendant. (Id. at p. 1364.) The case was then returned to the first judge, who rescinded the second judge’s release order and ordered the defendant’s imprisonment. (Id. at p. 1366.) On appeal, the court held that the first and third judges overstepped their authority, the first judge had no jurisdiction to sentence the defendant, and the defendant had to be sentenced by the second judge. (Id. at pp. 1367-1368.)
The court stated: “A superior court is but one tribunal, even if it be composed of numerous departments . . . . An order made in one department during the progress of a cause can neither be ignored nor overlooked in another department. . . . This is because the state Constitution, article VI, section 4 vests jurisdiction in the court, . . . whether sitting separately or together, the judges hold but one and the same court. One department of the superior court cannot enjoin, restrain, or otherwise interfere with the judicial act of another department of the superior court. The first department to assume and exercise jurisdiction over a matter acquires exclusive jurisdiction.” (Ellison, supra, 111 Cal.App.4th at p. 1366, citations and internal quotation marks omitted.)
Ellison is not on point. Ellison dealt with the situation where two judges interfered with the orders of a judge in another department, who had obtained jurisdiction by virtue of an Arbuckle waiver before a prior judge. Here, the second judge was Judge McBride, who obtained jurisdiction by virtue of McWay’s agreement to be sentenced by another judge in Judge Donaldson’s absence. Under Ellison, Judge McBride had jurisdiction to sentence McWay.
McWay argues that, although he agreed when he entered his plea to be sentenced by another judge if Judge Donaldson was “not present on the date of sentencing,” sentencing actually commenced on July 7, 2006, before Judge Donaldson. Because McWay did not state an additional waiver at the July 7 hearing, he argues, Judge Donaldson obtained exclusive jurisdiction over his sentencing, such that Judge McBride lacked jurisdiction to sentence McWay on October 5. For this proposition, McWay relies on a passage in Ellison, supra, 111 Cal.App.4th at page 1367, which states: “because appellant never made a subsequent Arbuckle waiver, [the second judge] obtained exclusive jurisdiction over sentencing.”
McWay is incorrect. No Arbuckle issue arises unless there is an express or implied term in the plea bargain that the judge accepting the plea will sentence the defendant. (Arbuckle, supra, 22 Cal.3d at pp. 756-757; Horn, supra, 213 Cal.App.3d at pp. 707-708.) As our Supreme Court explained in Arbuckle: “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.” (Arbuckle, at p. 757, italics added.) Here, the terms of McWay’s plea bargain were established by the time he decided to enter his plea in February 2006. At that point, McWay agreed to have another judge sentence him if Judge Donaldson were unavailable. Although Judge Donaldson at the July 7 hearing continued the matter to September 15 “on the Department 22 calendar to follow me, wherever I may be,” there is no indication that he did so in an effort to retain jurisdiction as part of the plea bargain. Rather, he apparently did so because the parties had subsequently apprised him that the district attorney might agree to a lesser sentence for McWay and Thrower if they provided information helpful to law enforcement. As McWay acknowledges in his opening brief, this possibility was not part of the plea bargain. Because it was not implied in McWay’s plea agreement that he would be sentenced by the judge who accepted his plea, Arbuckle does not apply.
Furthermore, by the time sentence was imposed, it was not Judge Donaldson who was most familiar with the basis on which McWay and Thrower were attempting to obtain lesser sentences, but Judge McBride, who had heard the testimony and argument regarding the information they had provided to law enforcement.
It is unnecessary to decide whether the passage in Ellison on which McWay relies is consistent with our Supreme Court’s holding in Arbuckle. Ellison is distinguishable from the matter at hand, because it did not squarely confront the issue before us. As another appellate court has observed: “Although Ellison’s procedural history involved the defendant’s Arbuckle rights—for without an Arbuckle waiver the second judge would not have obtained jurisdiction—the Ellison court’s analysis did not involve application of Arbuckle, other than to note the Arbuckle waiver was needed to vest jurisdiction with the second judge.” (People v. Martinez (2005) 127 Cal.App.4th 1156, 1161.)
Arbuckle is inapplicable here for another reason. The purpose of the Arbuckle rule was that the “range of dispositions available to a sentencing judge” could make a particular judge’s sentencing propensities important, thus raising the possibility that the defendant would want to assure that he would be sentenced by the judge who accepted the plea. (Arbuckle, supra, 22 Cal.3d at p. 757, italics added.) Here, however, there was no range of disposition, because McWay and Thrower pled to a negotiated disposition of a fixed term.
We also note that the parties never claimed that Arbuckle applied. At the sentencing on October 5, McWay asserted that Judge Donaldson had stated on the record for the case to follow him “because at the time he had knowledge of what was going on,” but never did McWay request that he be sentenced by Judge Donaldson or assert such a right. Counsel also made no such argument, under Arbuckle or otherwise.
Nor did McWay or his attorney assert any Arbuckle right when sentencing was discussed with Judge McBride at the four preceding sentencing hearings on October 2, September 28, September 22, and September 15. Although Thrower’s attorney stated on September 22 that the matter was “following Judge Donaldson,” no one disagreed when the ADA promptly clarified that there were Arbuckle waivers. To the contrary, when the court responded by stating it was time for sentencing, Thrower’s counsel agreed and the matter was set for September 28 before Judge McBride, without any objection by McWay or his attorney. Indeed, at the hearings on October 2 and October 5, instead of objecting to Judge McBride sentencing McWay, McWay’s counsel actually requested that Judge McBride act in the matter, by striking a prior conviction for sentencing purposes.
McWay may have waived or forfeited any Arbuckle right to be sentenced by Judge Donaldson at the October 5 hearing. (See People v. Adams (1990) 224 Cal.App.3d 1540, 1543-1544 [Fourth District]; People v. Serrato (1988) 201 Cal.App.3d 761, 764-765 [Third District]. But see Horn, supra, 213 Cal.App.3d 701, 709 [Fifth District; silence does not constitute waiver of implied term].) 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, at p. 1544.) But aside from the concept of waiver, the silence of McWay, Thrower, and their respective attorneys certainly confirms that no one believed it necessary under Arbuckle—or Ellison—for Judge Donaldson to pronounce sentence. 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, at p. 709.)
Finally, even if McWay were correct that Judge Donaldson had obtained jurisdiction over sentencing as of July 7 under Ellison, McWay still has not established reversible error. Ellison struck down orders of judges that undermined or rescinded the order of a judge in another department. (Ellison, supra, 111 Cal.App.4th at p. 1366 [“ ‘ “One department of the superior court cannot enjoin, restrain, or otherwise interfere with the judicial act of another department of the superior court.” ’ ”].) Here, by contrast, Judge McBride did not rescind or interfere with any order of Judge Donaldson, or issue any order in conflict with any of Judge Donaldson’s orders. To the contrary, Judge Donaldson advised Judge McBride, before the latter imposed McWay’s sentence, to proceed with the sentencing. As Judge McBride explained to McWay at sentencing: “I spoke to [Judge Donaldson] briefly about your case. Not in detail. But I asked him if he had any reason to keep it. And he said, ‘No, just go ahead if they have waived their right to be sentenced in front of me.’ ” Judge McBride then imposed the sentence that McWay had agreed to as part of the negotiated disposition in the plea agreement before Judge Donaldson. McWay incurred no prejudice, and there was no error.
McWay fails to establish that Judge McBride’s order of sentence is void for lack of jurisdiction.
McWay also contends that interference with Judge Donaldson’s jurisdiction constituted a violation of due process because it arbitrarily denied his rights under California law (Cal. Const., art. VI, §§ 4, 11). Because Judge McBride had jurisdiction to impose sentence, there is no due process violation. Lastly, McWay maintains, if we conclude that his defense attorney’s failure to object to Judge McBride’s sentencing order waived McWay’s rights, his attorney provided ineffective assistance of counsel. We need not address this issue, because we do not base our decision on waiver.
III. DISPOSITION
The judgment is affirmed.
We concur. SIMONS, Acting P. J., GEMELLO, J.