Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. 193345-01
NEEDHAM, J.
Judith Thrower (Thrower) appeals from a judgment of conviction and sentence entered after she pled guilty to robbery pursuant to a negotiated disposition. She contends that her sentence should be vacated because she was sentenced by a judge other than the judge who accepted her plea. We will affirm the judgment.
I. Facts and Procedural History
An information accused Thrower and codefendant Kevin McWay (McWay) 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 Thrower only was count 4, for unlawful taking and driving a vehicle owned by Suzanne Coveau (Coveau) (Veh. Code, § 10851, subd. (a)). Alleged as to McWay only were: count 3, attempted second degree robbery of Joanna Campbell (§§ 664, 212.5, subd. (c)), a serious felony within the meaning of section 1192.7, subd. (c)(19); count 5, unlawfully taking and driving Coveau’s vehicle (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)).
All further statutory references are to the Penal Code unless otherwise indicated.
Thrower was alleged to have suffered three prior conviction strikes (§§ 667, subds. (d) & (e), 1170.12, subds. (b) & (c)), for serious felonies within the meaning of section 667, subdivision (a). It was further alleged that McWay had one prior strike for a serious felony. Thrower entered a plea of not guilty and denied the allegations.
A. Factual Background
Because there was no trial and the preliminary hearing transcript is not part of the record in this appeal, we summarize the facts set forth in the probation department report dated May 12, 2006, which relied on the police department’s incident report.
Victim Austin returned to her vehicle in the Stonestown shopping mall and opened the door to put her child into a car seat. McWay grabbed her from behind, pulled her over to the driver’s side of another vehicle, and pushed her against it. Thrower was in the driver’s seat of the other car, with the engine running. Thrower grabbed Austin’s purse, and Thrower and Austin struggled over it while McWay got into the passenger seat of the car driven by Thrower. Thrower began driving off as she continued to struggle with Austin over the purse. When the purse strap broke, McWay got the purse. Austin was dragged for about 100 yards, until Thrower slowed the car down and Austin let go, falling to the ground and sustaining abrasions. Thrower drove off with Austin’s purse, which contained a pearl necklace and other valuables.
Thrower denied knowing what McWay was doing, driving the car, or touching the purse, claiming she was asleep in the car when she woke up to find McWay struggling with Austin.
B. Negotiated Plea
On February 3, 2006, after being advised of and personally waiving her constitutional rights, Thrower entered a plea of guilty to the robbery charge of count 1 and admitted a 1974 murder conviction as a strike and serious felony prior. Pursuant to the negotiated plea, the remaining counts against Thrower were dismissed (§ 1385). As a negotiated disposition, Thrower was to receive a state prison sentence of nine years.
Defense counsel stated the fixed term as follows: “The plea is offered as a result of extensive discussion with the Assistant District Attorney Tony Brass. And I have informed Miss Thrower that the district attorney will recommend, and the court has indicated, the following sentence: [¶] As to the robbery count in count I, the sentence anticipated is 2 years in state prison. That would be doubled by use of the prior conviction from 1974. That is charged under Penal Code section 667(d) and (e). So there would be a term of 4 years on that robbery. [¶] In addition, that prior conviction from 1974 would be used, under provision of section 667(a), to add an additional and consecutive 5 years to the sentence of 4 years, giving her a total state prison sentence on this matter of 9 years.”
Judge Herbert Donaldson took Thrower’s plea. Thrower agreed to be sentenced by another judge if Judge Donaldson was not available on the day of her sentencing. The court asked: “If I am not present on the day of sentencing, do you agree to be sentenced by another judge so long as the sentence is the same as is stated today?” Thrower responded: “Yes, sir.”
The matter was continued for sentencing.
Thrower and McWay were sentenced together. In summarizing the sentencing proceedings, we take judicial notice of the reporters transcripts included in the record of McWay’s appeal.
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, the matter was called 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 agreed “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 parties appeared 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 Thrower or McWay. 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.”
The court then asked Thrower if she had anything to say before sentence was imposed. She thanked the court for “judgment here today” and requested a stay of execution for two weeks to see her children, whom she had not seen for three years. Thrower’s attorney added that the record should show he attempted to have her strike eliminated. No objection was made to Judge McBride sentencing Thrower or McWay.
Judge McBride sentenced Thrower, in accordance with the negotiated disposition, to state prison for a term of nine years, as follows: the mitigated term of two years for the robbery of Austin (count 1), doubled pursuant to section 667, subdivisions (d) and (e); plus five years for the prior serious felony conviction enhancement (§ 667, subd. (a)).
On November 30, 2006, Thrower filed a notice of appeal, raising both sentencing and certificate issues. A request for a certificate of probable cause, based in part on the contention that she did not understand her Arbuckle rights before waiving them, was denied.
II. Discussion
Thrower 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 her plea and presided over the first sentencing hearing. She asks us to vacate her sentence and remand the case for sentencing by Judge Donaldson. Thrower’s contention has no merit.
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, 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 Thrower’s plea agreement. When Thrower entered her plea, she expressly agreed that, if Judge Donaldson was not present on the day of sentencing, she 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 Thrower to expect that Judge Donaldson was retaining sentencing discretion as an implied term of the plea agreement. When Thrower was later sentenced by Judge McBride, Judge Donaldson was not available and Thrower received a sentence that was the same as the one stated when she entered her plea. Arbuckle was not implicated.
Thrower nonetheless argues that Judge Donaldson should have been the one to impose sentence, 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. (Id. 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 Thrower’s agreement to be sentenced by another judge in Judge Donaldson’s absence. Under Ellison, Judge McBride had jurisdiction to sentence Thrower.
Thrower argues that, although she agreed when she entered her plea to be sentenced by another judge if Judge Donaldson was “not present on the day of sentencing,” sentencing actually commenced on July 7, 2006, before Judge Donaldson. Because Thrower did not state an additional waiver at the July 7 hearing, she argues, Judge Donaldson obtained exclusive jurisdiction over his sentencing, such that Judge McBride lacked jurisdiction to sentence Thrower on October 5. For this proposition, Thrower 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.”
Thrower 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, supra, at p. 757, italics added.) Here, the terms of Thrower’s plea bargain were established by the time she decided to enter her plea in February 2006. At that point, Thrower agreed to have another judge sentence her 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 Thrower and McWay if they provided information helpful to law enforcement. There is no indication that this possibility was part of the plea bargain. Because it was not implied in Thrower’s plea agreement that she would be sentenced by the judge who accepted her 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 Thrower and McWay 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 Thrower 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 Thrower and McWay 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 or his counsel request that he be sentenced by Judge Donaldson. Thrower and her attorney made no such assertion either, under Arbuckle or otherwise.
Nor did Thrower or her 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. Indeed, at the hearing on October 2, instead of objecting to Judge McBride sentencing Thrower, her counsel joined in requesting Judge McBride to act in the matter by striking a prior conviction for sentencing purposes.
Thrower 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 at p. 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 Thrower, McWay, 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 Thrower were correct that Judge Donaldson had obtained jurisdiction over sentencing as of July 7 under Ellison, she 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 Thrower’s sentence, to proceed with the sentencing. As Judge McBride explained 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 imposed the sentence that Thrower had agreed to as part of the negotiated disposition in the plea agreement before Judge Donaldson. Thrower incurred no prejudice, and there was no error.
Thrower fails to establish that Judge McBride’s order of sentence is void for lack of jurisdiction.
Thrower also contends that interference with Judge Donaldson’s jurisdiction constituted a violation of due process because it arbitrarily denied her 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, Thrower maintains, if we conclude that her defense attorney’s failure to object to Judge McBride’s sentencing order waived Thrower’s rights, her 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.