People v. Rosaia

• Decision Date: 26 June 1984
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. William V. ROSAIA, Defendant and Appellant. F002231.

Page 856

203 Cal.Rptr. 856

157 Cal.App.3d 832

The PEOPLE, Plaintiff and Respondent, v. William V. ROSAIA, Defendant and Appellant.

F002231.

Court of Appeal, Fifth District, California.

June 26, 1984.

Certified for Partial Publication.

Hearing Denied Sept. 27, 1984.

[157 Cal.App.3d 834] Quin Denvir, State Public Defender, Louis N. Hiken and Cynthia A. Thomas, Deputy State Public Defenders, Sacramento, for defendant and appellant.

[157 Cal.App.3d 835] John K. Van de Kamp, Atty. Gen., Eddie T. Keller, Gregory W. Baugher and Nancy

Sweet, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

OPINION

HAMLIN, Associate Justice.

Defendant was charged with assault with intent to commit rape (Pen.Code, § 220) ¹ and assault by means of force likely to produce great bodily injury (§ 245, subd. (a)). He pleaded guilty to assault by means of force likely to produce great bodily injury on condition that he be sentenced to no more than two years in state prison. The court dismissed the charge of assault with intent to commit rape.

Defendant was denied probation and sentenced to two years in state prison. He appeals but does not challenge the validity of his guilty plea.

The primary issue presented herein is whether the trial court's failure to advise defendant at any stage of the proceeding that he was entitled to be sentenced by the same judge who accepted his guilty plea precludes a finding that defendant waived this right, notwithstanding the failure of defendant and his attorney to object to sentencing before a different judge. We conclude that, without such advice, silence and acquiescence in the sentencing by a different judge cannot be deemed a waiver. The rule we adopt requires us to remand for resentencing, but we intend the rule to be prospective only.

Defendant also urges that the trial court erred in failing to state on the record adequate reasons for denying defendant probation. We disagree. ²

As will appear, we also reject defendant's contention that he is entitled to full one-for-one worktime credit for the presentence time he spent in county jail after January 1, 1983.

THE FACTS

Because this appeal follows a conviction on a guilty plea and because none of the issues raised by defendant necessitate a lengthy discussion of the underlying facts, a brief summary will suffice. Defendant gained entrance to the apartment of 16-year-old Julia B. while he was selling magazines. Defendant and the victim engaged in conversation for some time but defendant, knowing the victim was home alone, refused to leave when she requested that he do so. Instead, defendant pulled the victim to the floor, attempted to force her to kiss him, succeeded in tearing the victim's pajama bottoms and inserting his finger into her vagina and finally, after frustrating an escape attempt, attempted to orally copulate the victim. Defendant ceased the assault when the victim began crying and told him she had been molested by her father.

DISCUSSION

At oral argument, defendant's counsel confirmed that defendant had been released from prison on parole but urged that the appeal was not moot. The People do not disagree. We believe it is appropriate to resolve the issues on appeal.

I

Defendant's Right to be Sentenced by the Judge Who Accepted His Guilty Plea.

Defendant entered his change of plea before Judge Bianchi on February 3, 1983. When he appeared before Judge Bianchi on March 3 for sentencing, defense counsel stated:

"Your Honor, I'm asking for a formal sentencing hearing on this matter. There should be a notation in the Court's file. I called and notified the Court about this. I have been requesting that."

The court agreed to set the matter for a formal hearing and then stated to defendant:

"Mr. Rosaia, you have the right to proceed today on the sentencing and the hearing on the report; however, your counsel has indicated he has requested a formal hearing. The matters in our court for formal hearings are set in Department 1 and set on a specific date so witnesses may be called and longer arguments may be made. Do you waive time to proceed today?

"DEFENDANT ROSAIA: Yes.

"THE COURT: The matter will be set in Department 1 for formal hearing. If there is any interested party on a formal hearing, we send them to Department 1 so they may be heard there or sent to a courtroom that has more time because formal hearings are more lengthy and the victim or whoever that is interested can appear."

Sentencing was set over to March 11, and the sentencing hearing was ultimately held before Judge Osborn. Neither defendant nor his counsel objected to this procedure. Notwithstanding this lack of objection, defendant now contends that the procedure violated his rights under the Supreme Court decision in People v. Arbuckle (1978) 22 Cal.3d 749, 150 Cal.Rptr. 778, 587 P.2d 220. In Arbuckle the Supreme Court first articulated the rule that a defendant who pleads guilty has the right to be sentenced by the same judge who accepted the plea. The court explained in part:

"As a general principle, moreover, 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. 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. [Citations omitted.]

"Because the defendant has been denied that aspect of his plea bargain, the sentence imposed by another judge cannot be allowed to stand. [Citations omitted.] The defendant is entitled to be sentenced by Judge London, or if internal court administrative practices render that impossible, then in the alternative defendant should be permitted to withdraw his plea.5

This court has consistently applied the rule of People v. Arbuckle, supra. In In re Ray O. (1979) 97 Cal.App.3d 136, 158 Cal.Rptr. 550 this court held Arbuckle applicable to juvenile proceedings. It also declined to limit the rule of Arbuckle to cases in which the transcript of the hearing on the change of plea showed by the trial court's use of the first person pronoun, "I," that the trial court considered itself to be the sentencing court, thus rejecting grammatical fortuity as a basis for precluding the defendant's reliance that the same judge who accepted the plea would preside at the dispositional hearing. The court concluded:

"In the absence of clear waiver, whenever a juvenile enters a plea bargain before a judge he has the right to be sentenced by that same judge.... ( [I]n accordance with the procedure set forth in Arbuckle [22 Cal.3d] at p. 757 [150 Cal.Rptr. 778, 587 P.2d 220] ) if internal court administrative procedures render that impossible, then in the alternative Ray O. should be permitted to withdraw his admission of burglary. Should the admission be withdrawn, the prosecution shall have the right to reinstate the dismissed count." (In re Ray O., supra, [97 Cal.App.3d] at pp. 139-140, 158 Cal.Rptr. 550, fn. omitted.)

(See also People v. Pedregon (1981) 115 Cal.App.3d 723, 171 Cal.Rptr. 468.)

Similarly, in People v. De Jesus (1980) 110 Cal.App.3d 413, 168 Cal.Rptr. 8, this court applied the rule of Arbuckle to a situation in which the sentencing hearing had initially been continued and, on the continued date, the judge who had accepted the plea was absent from the court. Notwithstanding defense counsel's request in De Jesus to continue the sentencing hearing until the judge's return, a continuance was denied, and sentencing was conducted before a different judge. In reversing, this court stated:

"Judge Bradley's temporary absence until the 10th of October was not such a factor as to constitute impossibility within Arbuckle. Appellant was willing to waive time and a five-day continuance under the circumstances would not be excessive. Appellant, upon denial of his request to transfer the case to the judge who accepted the plea bargain, need not withdraw his plea of guilty or be deemed to have waived his right to appeal the ruling." (Id., at p. 419, 168 Cal.Rptr. 8.)

In the instant case, the People rely upon People v. West (1980) 107 Cal.App.3d 987, 165 Cal.Rptr. 24 for their premise that defendant's failure to object to sentencing before Judge Osborn constituted a waiver of his Arbuckle rights. In West, the defendant had entered a guilty plea before Judge McGuire and had subsequently appeared for sentencing before Judge Broderick, who was unable to accept the terms of the plea bargain and therefore permitted the defendant to withdraw his guilty plea. The defendant then proceeded to jury trial and was ultimately sentenced to a term in excess of what had been originally bargained for. The appellate court rejected defendant's assertion of his Arbuckle rights, stating in part:

"Assuming, then, that a term included by implication in every conditional plea, unless expressly excluded, is that the judge who approves it will decide whether to continue or withdraw such approval, the right to the same judge is no less conditional then the other terms of the plea. Arbuckle recognizes that if a defendant's case is assigned to a different judge for sentencing, the defendant can proceed before that judge or withdraw his plea. (22 Cal.3d at p. 757, fn. 5 [150 Cal.Rptr. 778, 587 P.2d 220].) Furthermore, even if a defendant could demand the same judge, he must do so; he does not have the option of taking his chances before the different judge and, if the result is unfavorable, then demand the original judge. Appellant did not move for reassignment to Judge McGuire or object to Judge Broderick. He may, for all the record shows to the contrary, have calculated that his chances would be better with Judge Broderick. He made his election and is bound by it." (People v. West, supra, 107 Cal.App.3d at p. 992, 165 Cal.Rptr. 24.)

We are not persuaded by the People's...