Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Lake County Super. Ct. No. CR034984
SIMONS, J.
Scott Frank Williams (appellant) appeals his conviction by jury trial of making criminal threats. (Pen. Code, § 422.) Appellant admitted two prior strike convictions and two prior prison term allegations. (§§ 667, subds. (b)-(i); 1170.12, subds. (a)-(d); 667.5, subd. (b).) Following his conviction, he was sentenced to 27 years to life in state prison. Appellant raises numerous claims of evidentiary, instructional and sentencing error. He also contends the court erroneously recused itself after the verdicts were entered rather than at the start of trial, and erroneously denied his motion for new trial. We reject appellant’s contentions and affirm.
All undesignated section references are to the Penal Code.
Background
The victim, Tammie Cooley, testified she and appellant began a domestic relationship in October 2002 that she ended on June 16, 2003. At the time the relationship ended, the victim was seven months pregnant with appellant’s child.
Four days later, at about 4:00 or 5:00 p.m. on June 20, 2003, appellant drove up to the victim’s home, slammed on the brakes and yelled, “Here’s the baby pictures you left at the other house.” Appellant threw the pictures out of the car window and started to drive away. When the victim responded, “You really care about the well-being of this baby,” appellant slammed on the brakes and said, “I will level your whole fucking family.” Appellant got out of the car, approached the victim who was on the phone and said, “You better not be calling the police.” The victim said she was calling appellant’s parole officer. The parole officer told her to call the police, which she did. As the victim was dialing 911 appellant said, “If you’re calling the police, you better tell them to come strapped, because I will be.” He then got back into his car and motioned to the victim by drawing his finger across his throat in a slashing motion. Before driving off appellant said he “would get [the victim] before they got him.”
Five or 10 minutes later, appellant returned to the victim’s house, yelling expletives and demanding that the victim’s adult son come out to the car. The victim refused to let her son go to the car because she thought appellant had a gun. Someone had previously told the victim that appellant had hidden a sawed-off shotgun in the basement of her house, and later removed it.
As a result of appellant’s statements and gestures, the victim felt afraid for herself and her children because she “absolutely” felt that appellant would carry out his threats. After appellant left the second time, she screwed the front door and windows shut and she and one or both of her children spent part of the evening at a friend’s house. Because the victim was afraid for her life, she also asked her stepmother to bring her firearms so she could protect her family.
Prior to this incident, appellant had told the victim that he had punched his ex-wife in the face “like he’d punch a man.” He also told the victim that he had shot someone above the kneecap for a $50 debt, broken someone’s jaw for a $100 debt, killed two people and “ripped somebody’s insides out to get drugs out of it.” He also said that after his ex-wife had an affair, the man’s body was found floating in a lake. Appellant expressed no remorse or concern when telling the victim of these prior incidents. At trial, the victim said she was still afraid of appellant.
On cross-examination, the victim stated she told the 911 dispatcher that someone was threatening her. She conceded that while on the phone with the dispatcher, she yelled to appellant, “Oh yeah. You go ahead and do that, Scott.” She could not recall what her comment was in response to, but said she was afraid of appellant when she said it. The victim also admitted that while on the phone with the 911 dispatcher she yelled to appellant, “Yeah, you’re scaring me now,” and testified she had wanted to inform appellant that he was scaring her.
Theresa Showen, the victim’s neighbor, was home on June 20, 2003, when appellant sped down the street and stopped in front of the victim’s house. Showen was out in front of her house when she heard him yell profanities at the victim’s house and say, “I’m going to kill you. I’m going to kill your whole family.”
The victim’s teenage daughter, Brittnee, was also present when appellant told the victim he would “level [her] whole family” and made the throat slitting gesture. On cross-examination, Brittnee said that because she was in the doorway of her and the victim’s home when appellant threatened to level the victim’s family, she was not really frightened by his statement.
The victim’s friend, Stephen Christman saw appellant make the throat slitting gesture and heard appellant tell the victim, “You better get a gun,” or “You better watch your back.”
The Defense
On the day of the incident, Alonia Lee, an acquaintance of appellant and the victim, arrived at the victim’s house just before appellant. The victim came outside and said, “Motherfucker, you’re going to jail,” called 911 and told police that appellant was threatening her and her children. Appellant had made no threats and left after about a minute. On three or four prior occasions, Lee had heard the victim say appellant was going to jail and would never see his child.
Cynthia Lucas, an acquaintance of appellant and the victim, had seen the victim on a daily basis for about a year and had spent time with her in social settings. Lucas opined that the victim was not an honest person and had a reputation as not being an honest person. Lucas said that every time appellant and the victim fought, the victim threatened to send appellant back to jail to prevent him from seeing his child.
Allison Perry was a close friend of the victim for six or seven years. Perry also opined that the victim was not an honest person and did not have a good reputation. Perry arrived at the victim’s house with Lee on the day of the incident. When appellant arrived, the victim threatened to call the police. Appellant and the victim argued, the victim called the police and said appellant was armed and dangerous and had threatened her. Perry did not hear appellant make any threats.
Gregory James Rodenbaugh lived in a house formerly owned by the victim on the same block as the victim. When appellant stopped by Rodenbaugh’s home on the day of the incident, Rodenbaugh gave him a baby book belonging to the victim, and appellant said he would bring it to her. Minutes after appellant left, Rodenbaugh heard the victim screaming, “You’ll never see the baby ever again if I have anything to do with it,” and “They’ll believe me before they believe you.” Rodenbaugh heard no threats or yelling from appellant.
Discussion
I. Admission of Statements Regarding Appellant’s Prior Acts of Violence
On May 10, 2005, prior to the victim’s testimony, the prosecution filed, “People’s Motion in Limine to Admit Evidence of [Appellant’s] Prior Statements to Victim Concerning Acts of Violence and Threats of Violence to Her and to Others.” The motion, which sought to admit 12 separate, enumerated evidentiary statements, is not contained in the record on appeal. Appellant contends the court erred in permitting the prosecution to introduce 4 of the 12 statements contained within the in limine motion, resulting in the deprivation of his due process right to a fair trial. However, the inadequacy of the record before us requires us to reject appellant’s claim of error.
The parties’ appellate briefs neither address the fact that the written motion is not contained in the appellate record, nor cite to the written motion.
“ ‘Before an appellate court can knowledgeably rule upon an evidentiary issue presented, it must have an adequate record before it to determine if an error was made.’ [Citation.]” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1176.) Appellant points to testimony by the victim at trial regarding four prior statements by appellant about his past violence and threats, and argues that the court erroneously admitted those four statements at the pretrial in limine hearing. However, the record before us does not contain the exact language of the four statements admitted at the in limine hearing, leaving us unable to determine whether the four statements testified to by the victim at trial are the same as the statements admitted by the court at the pretrial in limine hearing. To the extent the statements made at trial materially differed from those admitted in limine, appellant would have been required to make a separate objection to the statements at trial in order to preserve the issue. (See People v. Morris (1991) 53 Cal.3d 152, 189-190.) No such objection was made by appellant. Thus, based on the inadequacy of the record before us, appellant’s claim of error is waived.
II. Sua Sponte Instruction on Lesser Offense of Attempted Threat Was Unwarranted
Appellant next contends the court erred in failing to instruct the jury sua sponte on the lesser included offense of attempted criminal threat, infringing his due process right to present a defense.
“ ‘ “[I]n criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case.” [Citation.] That obligation has been held to include giving instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged. [Citations.]’ [Citation.]” (People v. Wickersham (1982) 32 Cal.3d 307, 323-324; accord People v. Breverman (1998) 19 Cal.4th 142, 154.)
Section 422 provides, in relevant part: “Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family’s safety,” is guilty of a crime.
To prove a violation of section 422 the prosecution must prove the following elements: “(1) that the defendant ‘willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person,’ (2) that the defendant made the threat ‘with the specific intent that the statement . . . is to be taken as a threat, even if there is no intent of actually carrying it out,’ (3) that the threat—which may be ‘made verbally, in writing, or by means of an electronic communication device’—was ‘on its face and under the circumstances in which it [was] made, . . . so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat,’ (4) that the threat actually caused the person threatened ‘to be in sustained fear for his or her own safety or for his or her immediate family’s safety,’ and (5) that the threatened person’s fear was ‘reasonabl[e]’ under the circumstances.” (People v. Toledo (2001) 26 Cal.4th 221, 227-228; accord, People v. Maciel (2003) 113 Cal.App.4th 679, 682-683.) To violate section 422 the defendant must willfully threaten to kill or seriously injure another person. (Maciel, supra, at p. 683.)
Toledo recognized the crime of attempted criminal threat. (People v. Toledo, supra, 26 Cal.4th at p. 230.) “[A] defendant properly may be found guilty of attempted criminal threat whenever, acting with the specific intent to commit the offense of criminal threat, the defendant performs an act that goes beyond mere preparation and indicates that he or she is putting a plan into action. Furthermore, in view of the elements of the offense of criminal threat, a defendant acts with the specific intent to commit the offense of criminal threat only if he or she specifically intends to threaten to commit a crime resulting in death or great bodily injury with the further intent that the threat be taken as a threat, under circumstances sufficient to convey to the person threatened a gravity of purpose and an immediate prospect of execution so as to reasonably cause the person to be in sustained fear for his or her own safety or for his or her family’s safety.” (Id. at pp. 230-231.)
Toledo posited several potential circumstances that would fall within the reach of the offense of attempted criminal threat. (People v. Toledo, supra, 26 Cal.4th at p. 231.) One of those circumstances involves a defendant who acts with the requisite intent, makes a sufficient threat that is received and understood by the threatened person, but the threat does not actually cause the threatened person to be in sustained fear for his or her safety, even though, under the circumstances, that person reasonably could have been placed in such fear. (Ibid.) As Toledo explained, in such a situation, “only a fortuity, not intended by the defendant, has prevented the defendant from perpetrating the completed offense of criminal threat itself.” (Ibid.)
In addition, Toledo noted that a defendant commits the offense of attempted criminal threat when he takes all steps necessary to complete the crime but the threat never reaches its intended victim, or the recipient of the threat does not understand the threat. (Toledo, supra, 26 Cal.4th at p. 231.)
Appellant argues that the victim’s “sarcastic” statements to appellant while she was on the phone with the 911 dispatcher: “Oh yeah. You go ahead and do that, Scott.” and “Yeah, you’re scaring me now.” permitted the inference that the victim was not put in any actual fear by appellant’s alleged threats, warranting an attempted criminal threat instruction. We disagree; a sua sponte attempted threats instruction was not warranted based on the two statements by the victim. Appellant fails to construe the statements in context. The victim specifically testified she could not recall what her comment “Oh yeah. You go ahead and do that, Scott.” was in response to, but said she was afraid of appellant when she said it. She also testified she made the statement “Yeah, you’re scaring me now” to appellant because she wanted to inform appellant that he was scaring her. The statements were made in the context of a phone call to a 911 dispatcher in which the victim reported that appellant was threatening her, and do not reasonably permit the inference that appellant’s threats failed to place the victim in a state of actual fear. Nothing in our review of the recording of the 911 call would support the giving of an instruction on attempted criminal threats, sua sponte. This conclusion is reinforced by the fact that the entire thrust of the defense evidence in the case was that no threats were made. Each of the three defense witnesses who were present at the scene testified that appellant made no threats. No defense witness testified that appellant made threats, and the victim appeared unafraid. The court had no sua sponte duty to instruct on attempted criminal threats.
The undisputed evidence established that the victim was afraid for herself and her family as a result of appellant’s threats. The court had no sua sponte duty to instruct on attempted criminal threats.
Nothing in our review of the recording of the 911 call supports a sua sponte attempted criminal threats instruction.
III. The Motion for New Trial Was Properly Denied
After the jury returned its verdict, appellant moved for new trial under section 1181, subdivision (6), on the ground that there was insufficient proof that he uttered an unlawful threat and that the victim sustained any actual or reasonable fear from any such threat made by him. The trial court denied the motion after concluding that the victim’s testimony regarding appellant’s threats was corroborated by Brittnee, Christman and Showen.
“In considering a motion for a new trial made on the ground of insufficiency of the evidence to support the verdict, the trial court independently weighs the evidence, in effect acting as a ‘13th juror.’ ” (People v. Lagunas (1994) 8 Cal.4th 1030, 1038, fn. 6.) The court “must review the evidence independently, considering the proper weight to be afforded to the evidence and then deciding whether there is sufficient credible evidence to support the verdict. [Citation.]” (People v. Lewis (2001) 26 Cal.4th 334, 364.) While the court has “broad discretion” whether to grant a new trial, it is still “guided by a presumption in favor of the correctness of the verdict and proceedings supporting it. [Citation.]” (People v. Davis (1995) 10 Cal.4th 463, 524.) The court’s ruling on a motion for new trial “ ‘ “will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears.” ’ ” (Ibid.)
Appellant argues the court abused its discretion in denying his new trial motion because the corroboration relied upon was insufficient to make up for the victim’s “evidentiary deficit.” Appellant argues the “corroboration only reached the actual words spoken, not appellant’s subjective intent, [the victim’s] subjective fear or the reasonableness of that fear.” He asserts there was no evidence that he intended to intimidate the victim and no substantial evidence that the circumstances of his threat imparted gravity and immediacy of purpose. Instead, appellant claims his “angry outburst, while threatening death, was open ended and vague.” Appellant also asserts that his gesture of drawing his finger across his throat was ambiguous, or, if unambiguous, “added no specificity or immediacy to [his] words themselves.” He argues that, at most, the evidence established an attempted criminal threat.
Appellant relies primarily on In re Ricky T. (2001) 87 Cal.App.4th 1132, a sufficiency of the evidence challenge to a criminal threats conviction. In that case, the defendant, age 16, left his classroom to use the restroom. When he returned and found the classroom door locked, he pounded on it. Thereafter, the teacher pulled open the door, hitting the defendant in the head. The defendant angrily cursed the teacher and said, “ ‘I’m going to get you,’ ” or “ ‘I’m going to kick your ass.’ ” The teacher felt threatened by the defendant and sent him to the school office. No evidence was presented that the defendant had previously quarreled with or showed physical violence toward the teacher. (Id. at pp. 1135-1136, 1138.) Viewing the defendant’s statements in context, the appellate court concluded that the defendant’s statements lacked credibility as serious, deliberate statements of purpose. (Id. at p. 1137.) The court found that the fact that the defendant was merely sent to the school office, the police were not called until the following day and police did not interview the defendant again until a week later, showed no immediacy to the defendant’s threat. (Id. at pp. 1137-1138.) The court also noted that there were no circumstances to corroborate a true threat. (Id. at p. 1138.) The court concluded the threat was ambiguous and “no more than a vague threat of retaliation without [the] prospect of execution.” (Id. at p. 1138.)
In re Ricky T. is factually distinguishable. The incident in this case occurred four days after the victim ended her domestic relationship with appellant. In the past, appellant had told the victim about prior incidents in which he committed acts of violence against his ex-wife and others. On the day of the incident, appellant raced down the victim’s street, slammed on the brakes and angrily threw her baby pictures out of his car window before starting to drive away. In addition, appellant’s threats were neither ambiguous nor vague. He threatened to “level [the victim’s] whole fucking family,” and his throat slashing gesture was so unequivocal that it conveyed a sufficient gravity of purpose and immediate prospect of execution of the threat. (See People v. Franz (2001) 88 Cal.App.4th 1426, 1448.) Moreover, unlike In re Ricky T., the victim here called the police immediately after appellant made the threatening statement. After he returned, yelled expletives at her and left again, the victim secured her front door and windows, she and her children spent part of the evening at a friend’s house and she asked her stepmother to bring her firearms so she could protect her family. The victim’s testimony and the corroborating testimony of Showen, Brittnee and Christman indicate that appellant’s threats were immediate, unequivocal, and specific and that the victim was in sustained fear. We conclude, based on the surrounding circumstances in this case, that appellant’s words and conduct demonstrated that his threats were sufficiently unequivocal, unconditional, immediate and specific. The motion for new trial was properly denied.
IV. The Court’s Disqualification
Appellant next contends the court (Judge Stephen Hedstrom) erroneously failed to timely disqualify itself at the start of trial, improperly induced appellant to waive the court’s disqualification, and violated his rights pursuant to People v. Arbuckle (1978) 22 Cal.3d 749. He asserts the court’s untimely disqualification resulted in his being denied due process because he was sentenced by a different judge, and deprived, thereby, of the right to be sentenced by a judge familiar with the case, who could exercise a fully informed act of judicial discretion.
For purposes of resolving this claim of error, unless otherwise stated, all references to “the court” mean Judge Hedstrom.
Prior to the commencement of trial, the court noted that the information charged appellant with two prior strike convictions and two prior prison term allegations in Lake County, in 1988 and 1994, respectively. The court informed appellant that he had been the Lake County District Attorney from 1986 through January 1999, during which he handled at least 36,000 cases; and appellant suffered the two prior strike convictions while the court was the District Attorney. The court also informed appellant that although it had no memory of appellant’s prior cases, court records indicated that as District Attorney he had personally handled the 1994 sentencing hearing on appellant’s 1994 conviction. The court informed appellant that if he did not plan to admit the prior convictions and prior prison terms allegations before trial, the court would disqualify itself. Appellant stated he planned to admit the prior convictions and prior prison term allegations and it was acceptable for the court to preside over the trial. The prosecution also found it acceptable for the court to preside over the trial. Thereafter, appellant admitted the prior conviction and prison term allegations after being properly advised of the penal consequences.
Following the jury’s verdict, appellant moved for new trial and to strike at least one of the two prior strike conviction allegations. (§ 1385; People v. Superior Court (Romero) 13 Cal.4th 497.) At the sentencing hearing the court stated the case was in a “much different posture” than it was when the parties agreed to have the court to preside over the trial. The court stated that it was “inclined” to disqualify itself from presiding over appellant’s sentencing based on Code of Civil Procedure section 170.1, subdivision (a)(2) and Sincavage v. Superior Court (1996) 42 Cal.App.4th 224, because appellant was asking the court to strike a strike conviction that the court had personally participated in prosecuting. The court noted that section 170.3, subdivision (b)(2) states, “There shall be no waiver of disqualification if the basis therefor is either of the following: [¶] (A) The judge has a personal bias or prejudice concerning a party. [¶] (B) The judge served as an attorney in the matter in controversy . . . .” The court stated it had no personal bias or prejudice toward appellant but did serve as an attorney in the matter in controversy. The parties both stated a preference for waiving any potential conflict. After conducting further research the court stated its disqualification could not be waived because of its prior participation as a prosecutor in one of the prior strike convictions challenged by appellant. The court then disqualified itself pursuant to Sincavage and Code of Civil Procedure section 170.1, subdivision (a)(6)(C). Thereafter, appellant’s Romero motion was heard and denied by Judge David Herrick.
Section 170.1, subdivision (a) provides, in relevant part: “A judge shall be disqualified if . . . [¶](2)(A) The judge served as a lawyer in the proceeding, or in any other proceeding involving the same issues . . . .”
In Sincovage, Division Four of this court granted the defendant’s petition for writ of mandate and held that the trial court’s disqualification was required as a matter of law since the court was active in the prosecution of the defendant’s prior convictions. (Sincavage v. Superior Court, supra, 42 Cal.App.4th at pp. 230-231 (Sincavage).)
That provision has been renumbered as Code of Civil Procedure section 170.1, subdivision (a)(6)(A)(iii), and provides a judge shall be disqualified if “For any reason: [¶] A person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial.”
The thrust of appellant’s argument is that even assuming the court’s prior role as a prosecutor at one of appellant’s prior felony proceedings was “absolutely disqualifying,” the court was required to recuse itself at the start of the case, not just prior to sentencing. We disagree and find our Supreme Court’s decision in People v. Williams (1997) 16 Cal.4th 635 instructive.
Appellant asserts that the court’s recusal was not required because Sincavage did not compel the court’s recusal in that case and was distinguishable from the instant case, but does not appear to raise this as a claim of error.
In Williams, immediately after the defendant’s case was assigned to Judge Morrow, Judge Morrow told the parties about a potential conflict of interest due to his family relationship to a witness to the shooting at issue in the case. The prosecutor and defense counsel waived any objection to Judge Morrow’s presiding over the case, and the defendant stated that he had no objection. (People v. Williams, supra, 16 Cal.4th at p. 651.) On appeal, the defendant claimed it was error for Judge Morrow to preside over the trial given the judge’s conflict of interest under Code of Civil Procedure section 170.1. The defendant argued his due process right to a fair trial before an impartial judge was violated. (Id. at pp. 651-652.) The Supreme Court concluded that as a result of the defendant’s personal and express agreement to have Judge Morrow hear his case, he could not complain of error. (Id. at p. 652.)
Here, as in Williams, the judge assigned to the case, Judge Hedstrom, informed the parties at the outset of a potential conflict of interest. Appellant, defense counsel and the prosecutor all expressly agreed that they had no objection to Judge Hedstrom’s presiding over appellant’s trial. Moreover, as in Williams, appellant is now complaining on appeal that the judge’s failure to recuse violated appellant’s right to due process. As the Supreme Court concluded in Williams, appellant’s personal and express agreement to have Judge Hedstrom hear his case waives his right to complain that Judge Hedstrom’s presiding over his case constituted error.
Even if appellant had objected below, the People are correct that appellant’s failure to challenge the disqualification ruling by a pretrial writ, forfeited his right to complain on appeal. For the period relevant in this case, Code of Civil Procedure section 170.3, subdivision (d) provided, in relevant part: “The determination of the question of the disqualification of a judge is not an appealable order and may be reviewed only by a writ of mandate from the appropriate court of appeal sought within 10 days of notice to the parties of the decision and only by the parties to the proceeding.” This provision governs both peremptory challenges (Code Civ. Proc., § 170.6), and challenges for cause (Code Civ. Proc., § 170.1). (People v. Chatman (2006) 38 Cal.4th 344, 362; accord People v. Williams, supra, 16 Cal.4th at p. 652.) However, though appellant may not raise the statutory claim on appeal, he may assert the denial of his due process right to an impartial judge. (People v. Cook (2006) 39 Cal.4th 566, 585; People v. Williams, supra, 16 Cal.4th at p. 652, fn. 5.)
Effective January 1, 2007, this subdivision was amended as regards service of written notice of entry of the court’s order determining the question of disqualification. (Stats. 2006, ch. 567, § 4.)
The gist of appellant’s due process assertion is that the court’s failure to timely disqualify itself deprived him of being sentenced by a judge who was familiar with the case. In particular, he argues that “[g]iven the acknowledged unreliability of [the victim], it is reasonably likely a more favorable result would have ensued had sentencing been handled by a judge who actually heard the case.” Assuming, without deciding, that appellant’s claim is a cognizable due process claim of judicial bias, we conclude the claim lacks merit.
In denying appellant’s motion for new trial, the court noted that the evidence demonstrated that the victim had a motive to lie and evidence was presented of her bad character for truth or honesty. However, the court also noted that appellant had a substantial motive to threaten the victim because she ended their relationship and evidence was presented of his anger toward the victim. The court stated, “If the only evidence supporting this charge came from [the victim], perhaps a motion for new trial should be granted, but with the corroboration of [the victim] by [Brittnee, Christman and Showen], I’m satisfied that the motion should be denied . . . .”
In ruling on appellant’s Romero motion, Judge Herrick acknowledged that he was “at somewhat of a disadvantage with respect to the current offense because [he] was not the trial judge . . . .” However, Judge Herrick stated, “based upon what I have been . . . provided, both in writing and in live testimony, I think I have more than a flavor for the facts surrounding the current offense, both from the prosecution’s standpoint and from the defense perspective.” Judge Herrick also stated he had reviewed the victim’s impact statement, the jury’s unanimous verdict, and the transcript and papers from appellant’s new trial motion. Judge Herrick expressly stated that the victim’s testimony was apparently accepted as credible by the unanimous jury verdict and the court in denying the new trial motion.
Based on the record before us, appellant has failed to demonstrate that it is reasonably likely a more favorable result would have ensued had sentencing been handled by the same judge who presided over the trial.
Appellant contends that in light of Code of Civil Procedure section 170.3, subdivision (b)(2), which provides “There shall be no waiver of disqualification if the basis therefor is . . . [¶] (B) The judge served as an attorney in the matter in controversy,” the court’s offer not to recuse himself if appellant admitted the two prior convictions violated Code of Civil Procedure sections 170.3, subdivision (b)(3) which provides, “The judge shall not seek to induce a waiver . . . .” Appellant also contends the court’s inducement contravened People v. Collins (2001) 26 Cal.4th 297. For reasons previously stated, appellant’s statutory challenge is waived for failure to file a timely writ petition below. We also reject his Collins claim.
Appellant erroneously cites Code of Civil Procedure section 170.1, subdivision (a)(6)(A)(i) and (iii) for this proposition.
In Collins, the trial court induced the defendant to waive his right to jury trial by telling the defendant he would received “some benefit,” of a nature to be later determined, if defendant waived his right to jury trial. (People v. Collins, supra, 26 Cal.4th at pp. 302, 308-309.) The Supreme Court concluded that the trial court’s assurance of an unspecified benefit undermined the defendant’s waiver and the inducement prejudicially violated his right to due process. (Id. at pp. 300, 309, 312-313.)
Collins is inapposite. In this case, the court did not offer appellant any reward or benefit, specified or unspecified, in exchange for appellant’s decision to waive the court’s disqualification. The court merely asked appellant if it was acceptable to him that the court preside over the sentencing if appellant decided to admit the prior conviction allegations. Moreover, appellant’s brief expressly states, “Appellant by no means imputes any bad faith on Judge Hedstrom’s part. Quite the contrary. The desire of both sides to have him hear the case . . . bespeaks their confidence in his integrity.” Although in his reply brief, appellant argues that the court’s inducement was “to hold [some unspecified benefit from having the court remain on the case] hostage to a waiver of a jury trial on the prior convictions,” the assertion is unsupported by the record before us. Appellant waived his right to jury trial on the priors after being properly admonished by the court with no evidence of impropriety.
Appellant’s reply brief erroneously refers to Judge Herrick, rather than Judge Hedstrom.
Appellant asserts that the court’s sua sponte disqualification after the verdicts were rendered, together with its nullification of the previously agreed upon waiver of disqualification violated his rights under People v. Arbuckle, supra, 22 Cal.3d 749.
In Arbuckle, the Supreme Court stated as a general principle, that when a judge accepts a plea bargain and retains sentencing discretion under the plea agreement, an implied term of the agreement is that sentence will be imposed by that judge. (People v. Arbuckle, supra, 22 Cal.3d at pp. 756-757.) The court noted that given the range of dispositions within the discretion of the sentencing judge, a particular judge’s propensity in sentencing is an inherently significant factor in a defendant’s decision to enter a guilty plea. The court held that the sentencing of a defendant to prison by a judge other than the one who accepted the defendant’s plea bargain, entered into in reliance on that judge imposing the defendant’s sentence, was reversible error. (Id. at p. 757.)
Quite simply, Arbuckle is inapposite because this case did not involve a plea bargain. In any case, the rule in Arbuckle rests on contract principles. (People v. Martinez (2005) 127 Cal.App.4th 1156, 1159.) It contemplates a plea bargain entered on the condition that sentence will be pronounced by the same judge who took the defendant’s plea. And the failure of the judge who took the plea to preside over the defendant’s sentencing constitutes the failure of a condition, thus excusing the defendant from suffering conviction without trial, and entitling the defendant to rescind his plea bargain by withdrawing his guilty plea. Here, Judge Hedstrom fully informed counsel and appellant about his conflict and thought he had obtained appellant’s agreement not to challenge the prior convictions. Though appellant was entitled to raise a Romero motion, this challenge to those convictions triggered Judge Hedstrom’s recusal, excusing the judge’s “failure to perform” his obligation to sentence appellant.
V. Appellant’s Romero Motion Was Properly Denied
Finally, appellant contends Judge Herrick erred in denying his Romero motion to strike at least one of his prior strike convictions.
“[I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, on it own motion, ‘in furtherance of justice’ pursuant to . . . section 1385[,] [subdivision] (a), or in reviewing such a ruling, the court in question must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.” (People v. Williams (1998) 17 Cal.4th 148, 161.)
We review a court’s failure or refusal to dismiss or strike a prior conviction allegation under section 1385 under the abuse of discretion standard. (People v. Carmony (2004) 33 Cal.4th 367, 375.) “In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, ‘ “[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.” ’ [Citation.] Second, a ‘ “decision will not be reversed merely because reasonable people might disagree. ‘An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.’ ” ’ [Citation.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.” (Id. at pp. 376-377.)
At the commencement of the hearing on appellant’s Romero motion, Judge Herrick stated he had reviewed the pleadings on the motion. Thereafter, Michael Horner (appellant’s personal friend), Joann Williams (appellant’s mother), Kathy Williams (appellant’s sister-in-law), Marcia Devaraux (mother of appellant’s fiancée) and Duane Furman (volunteer minister at the Lake County Jail) testified as to appellant’s good character and urged the court to strike the prior strike allegations. Appellant argued his Romero motion should be granted because the impact of his threats on the victim’s family was not severe; the victim had a history of antagonizing him and knew she could “get him locked up”; his prior strike convictions were for burglary, not violent crimes; he did not act violently toward the victim or her family; he was not arrested for two weeks after this incident; and there was no evidence of his committing any prior domestic violence against the victim.
In denying the Romero motion Judge Herrick noted that the fact that appellant victimized a family member as opposed to a member of the general public was a somewhat mitigating factor. Judge Herrick also noted that although the prior strike residential burglaries did not involve a direct threat or act of violence they were serious offenses. Judge Herrick viewed the facts of the instant offense as “very serious violations” of section 422. In reviewing appellant’s background, Judge Herrick court noted that at age nine appellant was placed in a group home after setting fire to his bedroom, at age 12 he was declared a ward of the court after committing burglary, at age 15 he was sent to the California Youth Authority (CYA) after committing petty theft (§ 484) and possession of marijuana (Health & Saf. Code, § 11357, subd. (b)), and joyriding (§ 499). In 1988, he was sent to state prison for committing the first burglary strike, after which he was paroled twice, returned to prison and released in 1993. In 1993, he committed misdemeanor battery, and, in 1994, committed the second residential burglary strike. The instant offense was committed while appellant was on parole.
In denying the Romero motion Judge Herrick stated, “So I don’t know if I’d characterize [appellant] as a poster child for the application of the strikes law, but I certainly do not feel that I can in good conscience find that he is outside of the spirit of the scheme of the strikes law.”
Our review of the record indicates that Judge Herrick understood his discretion to strike the prior strike allegations, and reviewed all of the relevant documentation and considered appellant’s arguments prior to exercising its discretion. Based on the record, we conclude Judge Herrick’s decision to deny the Romero motion was not so irrational or arbitrary that no reasonable person could agree with it.
Disposition
The judgment is affirmed.
We concur. JONES, P.J, GEMELLO, J.