People v. Pedregon

• Decision Date: 04 February 1981
• Docket Number: Cr. 20860
• Citation: 171 Cal.Rptr. 468,115 Cal.App.3d 723
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Robert PEDREGON, Defendant and Appellant.

Page 468

171 Cal.Rptr. 468

115 Cal.App.3d 723

PEOPLE of the State of California, Plaintiff and Respondent, v. Robert PEDREGON, Defendant and Appellant.

Cr. 20860.

Court of Appeal, First District, Division 4, California.

Feb. 4, 1981.

Hovde, Worthington, Miller & Boyd by Thomas S. Worthington, Salinas, for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Crim. Div., Edward P. O'Brien, Asst. Atty. Gen., Thomas A. Brady, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

POCHE, Associate Justice.

Robert Pedregon appeals from a judgment of imprisonment imposed by a judge other than the one who accepted the plea bargain. The sole question is whether the rule of People v. Arbuckle (1978) 22 Cal.3d 749, 756-757, 150 Cal.Rptr. 778, 587 P.2d 220, applies to a visiting judge. We hold that it does.

Facts

By information filed in San Benito County, appellant was charged with (Count I) assault with intent to commit murder (Pen.Code, § 217), accompanied by infliction of great bodily injury (Pen.Code, § 12022.7) and use of a deadly weapon (Pen.Code, § 12022), (Count II) assault with a deadly weapon (Pen.Code, § 245) accompanied by the intentional infliction of great bodily injury (Pen.Code, § 12022.7), and (Count III) conspiracy to commit battery (Pen.Code, §§ 182, 242).

Judge William Fernandez, on assignment from Santa Clara County, accepted the plea bargain pursuant to which appellant entered a plea of guilty to assault with a deadly weapon and waived jury trial on the section 12022.7 allegation of intentional infliction of great bodily injury. In return it was agreed that Counts I and III would be dismissed. Sentencing was left "to the Judge's discretion."

At the trial on the section 12022.7 allegation Judge Fernandez determined appellant had intended to and did inflict great bodily injury. He then set June 5, 1979, for acceptance of the probation report and for sentencing. By that date Judge Fernandez had returned to Santa Clara County. Appellant insisted he was entitled to be sentenced by Judge Fernandez and he objected to being sentenced by any other judge. These objections were overruled, appellant was sentenced to prison and this appeal followed.

Arbuckle

Microscopic perusal of the Arbuckle text is not required to decide this case. The Supreme Court found it to be a general principle that "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." (Id., at pp. 756-757, 150 Cal.Rptr. 778, 587 P.2d 220.)

Respondent argues that the repeated use of the personal pronoun by the judge who accepted the plea in Arbuckle distinguishes the instant case where no such phrasing was employed. That contention was rejected not only by People v.De Jesus (1980) 110 Cal.App.3d 413, 419, 168 Cal.Rptr. 8 and In re Ray O. (1979) 97 Cal.App.3d 136, 139, 158 Cal.Rptr. 550, but as we have noted the Arbuckle court's finding of an implicit term in every plea bargain that the sentence will be imposed by the judge who accepts the plea.

Nor is Arbuckle, which arose in Los Angeles County, limited to interdepartmental transfers. Our Supreme Court, not oblivious to administrative difficulties, explicitly recognized that in "multi-judge courts, a judge hearing criminal cases one month may be assigned to other departments in subsequent months" but nevertheless held that "a defendant's reasonable expectation of having his sentence imposed, pursuant to bargain and guilty plea, by the judge who took the plea and ordered sentence reports should not be thwarted for mere administrative convenience. If the original judge is not available for sentencing purposes after plea bargain, the defendant must be given the option of proceeding before the different judge available or of withdrawing his plea." (Id., at p. 757, 150 Cal.Rptr. 778, 587 P.2d 220, fn. 5.) If administrative inconvenience in Los Angeles County does not modify the rule, neither does Judge Fernandez' trip from San Jose to Hollister.

The Attorney General's final argument that Arbuckle hinged upon the defendant's knowledge of the particular judge's reputation for sentencing and that the lack of such knowledge by the defendant in this case renders Arbuckle inapposite. We disagree. Although the court recognized that "propensity in sentencing demonstrated by a particular judge is an inherently significant factor in the defendant's decision to enter a guilty plea" (id., at p. 757, 150 Cal.Rptr. 778, 587 P.2d 220), it based its holding not on that factor but on the broader principle that plea bargaining is impliedly based upon the expectation that the sentence will be imposed by the judge who accepted the plea bargain.

Appellant is entitled to pronouncement of judgment by Judge Fernandez. In the event Judge Fernandez is not available, appellant must be allowed to withdraw his guilty plea. Should the guilty plea be withdrawn, the prosecution of course has the right to reinstate the dismissed counts.

Good Time/Work Time Credits

Appellant contends that he is entitled to additional presentence good time/work time credits. (People v. Sage (1980) 26 Cal.3d 498, mod. 27 Cal.3d 144a, 165 Cal.Rptr. 280, 611 P.2d 874 (as modified).) On remand the sentencing judge is directed to calculate the number of presentence custody days entitling defendant to conduct credits under People v. Sage, supra.

The judgment is reversed and the case remanded for further proceedings in accordance with the views expressed herein.

RATTIGAN, Acting P. J., concurs.

ANDERSON, ^* Associate Justice.

I concur in the judgment only.

I respectfully disagree with the majority that People v. Arbuckle (1978) 22 Cal.3d 749, 150 Cal.Rptr. 778, 587 P.2d 220, requires the judge before whom the plea is given to impose sentence in every case. By its very language Arbuckle is limited to its peculiar facts: "We agree that the plea bargain herein was entered in expectation of and in reliance upon...