Opinion
F052882
6-25-2008
THE PEOPLE, Plaintiff and Respondent, v. TOMMY LEE PUENTE, Defendant and Appellant.
William Davies, 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, Lloyd G. Carter, Louis M. Vasquez, Carlos A. Martinez and Catherine G. Tennant, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published
OPINION
Before Levy, Acting P.J., Cornell, J. and Dawson, J.
All further statutory references are to the Penal Code unless otherwise stated.
Tommy Lee Puente (appellant) entered a plea of nolo contendere to one count of making a criminal threat (Pen. Code, § 422).1 As part of the plea bargain, his offense would be reduced to a misdemeanor if he successfully completed outpatient therapy within 90 days. If he failed to do so, he would receive his sentence as a felony. Judge Hamilton accepted the plea and set a sentencing/review hearing for 120 days.
The sentencing/review hearing was held before a different judge. Appellant had not completed the 90-day program and Judge Peña sentenced him on his offense as a felony to two years formal probation with 180 days in jail. Imposition of judgment and sentence was suspended for a period of two years.
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.
FACTUAL BACKGROUND
On October 11, 2006, appellant was charged with making a criminal threat (count 1) and obstructing or delaying a peace officer (count 2). On October 27, 2006, appellant entered a negotiated plea before Judge Hamilton. Appellant pled nolo contendere to count 1, and the remaining count was dismissed. In exchange, the count would be reduced to a misdemeanor after appellant completed a 90-day outpatient treatment program. Judge Hamilton explained to appellant that if he did not complete the outpatient program or if he did not follow other conditions of probation "in that 90 days," the offense "would not be a misdemeanor," but "would remain a felony and you would be sentenced as a felony." The court advised appellant several times that, as a felony, the offense was a strike under the three strikes law.
Appellant signed and initialed a two-page felony advisement, waiver of rights and plea form. The form indicated that the maximum sentence appellant could receive as part of his plea was three years in state prison and up to 48 months of parole.
At the time the plea was taken, defense counsel asked whether the misdemeanor reduction would be automatically granted if "theres not any problem," or whether the court wished to hold a review hearing "to make sure thats all in line." The court stated that it thought it would be best to "have it back on for a review in probably 120 days." The sentencing/review hearing was set for February 27, 2007.
On February 27, 2007, appellant appeared before Judge Peña. At that time, appellant was represented by the same counsel who represented him when his negotiated plea was entered. Defense counsel explained that appellant had not completed the 90-day outpatient treatment program because "his insurance didnt cover him," but that he had "substantially complied" with his agreement, and counsel requested that the criminal threat conviction be reduced to a misdemeanor.
The court noted that appellants plea agreement was "not an agreement that was worked out with me as the judge," but that it appeared that appellant was "given essentially 90 days to complete the program and then it would be reduced to a misdemeanor before sentencing," and "[a]pparently thats not occurred." The court found that appellant did not comply with the requirements of the plea agreement "so as to earn a reduction to a misdemeanor." It noted that it had read and considered the probation report, and it then suspended imposition of judgment for a period of two years, ordered appellant to serve 180 days in jail with credit for 30 days, and imposed various terms of probation. The court clarified the sentence to appellant, stating:
"You failed to comply with your end of the agreement which was to do the 90 day program to have this reduced to a misdemeanor. The court has sentenced you to the felony. Youve been granted probation for a period of two years. I have ordered 180 days in jail, however you can be released to the treatment program directly from jail so that, as soon as [defense counsel] has that arranged, whether it is next week or in three weeks, you will be released directly to that program and youre to complete that and follow all of the terms or all of the directions of the probation office."
DISCUSSION
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.) But 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, 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; 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 indicated where the judge repeatedly or interchangeably uses a personal pronoun (i.e., he or 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.)
In the event the record adequately supports the existence of an Arbuckle right, the next question is whether there has been a waiver of the right to enforce the implied term of the plea bargain. (People v. Horn, supra, 213 Cal.App.3d at p. 709.) While 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), we have concluded that "absent 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." (People v. Horn, supra, at p. 709.) But "[a]lthough silence does not constitute a waiver of the implied term, a defendants failure to object is relevant in determining whether the record supports the conclusion that the plea was entered in reliance on the sentencing judge being the same as the judge accepting the plea." (Ibid.) In other words,
"The defendants failure to object is relevant in determining whether an Arbuckle right was ever a term of the plea. A defendants 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.)
Appellant claims Judge Hamiltons use of the personal pronouns "I" and "we," when he stated "I think we probably ought to have it back on for a review in probably 120 days," gave appellant reason to expect Judge Hamilton would be the sentencing judge. Judge Hamilton also used the pronoun "we" when he said, "Well put it back on for ... February 27, 2007" and "Well release you on ... your own recognizance." Appellant contends that the courts statement indicated that it wanted to personally review the case to decide if the offense should be reduced to a misdemeanor. We disagree with appellant and conclude that the record does not affirmatively demonstrate a reasonable expectation that Judge Hamilton would personally impose sentence.
The use of a personal pronoun here is minute in comparison to factors relied on in Arbuckle where the judge stated, inter alia, "`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 would follow the recommendation." (Arbuckle, supra, 22 Cal.3d at p. 756.) Or in People v. Adams, where the court concluded that the defendant had an Arbuckle right because the court 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?" (People v. Adams, supra, 224 Cal.App.3d at p. 1543.)
Here there was no repeated or interchangeable use of a personal pronoun and "the Court" in discussing sentencing; personal pronouns were only used to set a review/sentencing date and release appellant on his own recognizance, well after the terms of the plea were discussed. The terms of the plea, specifically, were that, if appellant did complete the outpatient therapy within the 90 days, the offense would be reduced to a misdemeanor; if not, the offense would be sentenced as a felony.
In addition, when appellant was brought before Judge Peña, it was appellants attorney, the same attorney who represented him at the time the plea was taken, who explained that the instant hearing was "the time and date set for sentencing ...." During the course of the hearing, Judge Peña specifically stated that "this [was] not an agreement that was worked out with me as the judge." When Judge Peña noted that appellant had not completed the required program to reduce the conviction to a misdemeanor, defense counsel agreed that that did not occur. And when asked whether there was any legal cause why judgment should not be pronounced, defense counsel said, "No."
Because the record fails to affirmatively show that appellant reasonably expected to be sentenced by Judge Hamilton, no Arbuckle right arose during the plea hearing. Since the record does not support appellants Arbuckle right, it is unnecessary to address appellants alternate claim of ineffective assistance of counsel for counsels failure to make an objection. We conclude that no error occurred when Judge Peña imposed sentence.
DISPOSITION
The judgment is affirmed.