P. v. Brejcha

Filed 9/29/06 P. v. Brejcha CS3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Yuba)

----

Defendant pled no contest to vehicle theft (Veh. Code,

§ 10851, subd. (a)) and was sentenced to a three year

eight month prison term by a judge other than the one who took his plea, even though the record contains no waiver pursuant to People v. Arbuckle (1978) 22 Cal.3d 749 (Arbuckle). Since the record supports defendant’s claim that the procedure violated the plea agreement, we will vacate the sentence and remand for a new sentencing hearing.

BACKGROUND

Defendant broke into the victim’s residence, demanded his car keys, and threatened him with a screwdriver. The victim handed the keys to defendant, and defendant drove away. Defendant was charged by complaint with burglary (Pen. Code, § 459), carjacking (id., § 215, subd. (a)), robbery (id., § 211), and making a criminal threat (id., § 422). Following his waiver of the preliminary examination, the People filed an information alleging a single count of robbery (§ 211).

Due to inconsistencies in the victim’s statements, the parties agreed to resolve the charges with a negotiated plea. The People would amend the information to include “a felony violation of Vehicle Code section 10851, straight up[,]” in exchange for dismissal of the robbery count.

The plea was entered before Judge Kathleen O’Connor in Department 5 of the Yuba County Superior Court. Judge O’Connor indicated agreement with the negotiated disposition, but she withheld approving it until the prosecutor submitted a written statement explaining the reason for dismissing the robbery count. (Pen. Code, § 1192.6.) She informed defendant that “[t]he consequences of the plea are that you could be placed on probation for up to a period of five years. However, you are statutorily ineligible for a grant of probation unless the Court makes an unusual case finding within the meaning of the sentencing rules because you have two prior felony convictions.” The court added: “And to convince a Court to make such a finding is very difficult, and it is likely that you would not be granted probation.” Judge O’Connor stated, “I will advise that the District Attorney prepare and await approval of the plea until receiving that information.” (Italics added.) This passage indicates that she expected to approve or disapprove of the plea herself. Judge O’Connor referred the case to the Yuba County Probation Department and set the sentencing hearing for March 28, 2005, “in this department.”^[1] The court further ruled that “bail will continue on at no bail and see you back here on March 28th.” Neither the parties nor the court suggested that defendant enter an Arbuckle waiver.

When the parties appeared at Department 5 on March 28, Judge James Curry was presiding. Defendant asked for, and the court granted, a two-week continuance, to prepare a statement in mitigation. Defendant timely submitted the statement in mitigation, that included defendant’s handwritten letter addressed to Judge O’Connor asking for leniency due to his methamphetamine addiction, for which he had never received treatment.

When the parties appeared in Department 5 on April 11, Judge Curry was again presiding. He asked whether the parties were ready to proceed with sentencing. Defendant’s trial counsel objected, stating, “Your Honor, I don’t know if Mr. Brejcha has entered an Arbuckle waiver. I believe this plea was taken in front of Department 5.” Judge Curry responded: “I believe it was a straight-up plea, and there were no conditions.” Defense counsel offered no further objection. The court thereafter denied probation and imposed the upper term of three years for the vehicle theft conviction, based on defendant’s prior felony convictions, with a consecutive eight-month term for an unrelated conviction in Sutter County.

DISCUSSION

Defendant contends his sentence must be set aside because Judge Curry’s decision to proceed with and impose sentence contravened the implicit term of the plea agreement that Judge O’Connor would sentence defendant. We agree.

People v. Arbuckle articulated the “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. 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.]” (Arbuckle, supra, 22 Cal.3d at pp. 756-757.) Where “the defendant has been denied that aspect of his plea bargain, the sentence imposed by another judge cannot be allowed to stand. [Citations.] The defendant is entitled to be sentenced by [the judge who took the defendant’s plea], or if internal court administrative practices render that impossible, then in the alternative defendant should be permitted to withdraw his plea.“ (Arbuckle, supra, at p. 757, fn. omitted.)

“A negotiated plea agreement is a form of contract, and it is interpreted according to general contract principles. [Citations.] ‘The fundamental goal of contractual interpretation is to give effect to the mutual intention of the parties. [Citation.] If contractual language is clear and explicit, it governs. [Citations.] On the other hand, “[i]f the terms of a promise are in any respect ambiguous or uncertain, it must be interpreted in the sense in which the promisor believed, at the time of making it, that the promisee understood it.” [Citations.]’ [Citation.] ‘The mutual intention to which the courts give effect is determined by objective manifestations of the parties’ intent, including the words used in the agreement, as well as extrinsic evidence of such objective matters as the surrounding circumstances under which the parties negotiated or entered into the contract; the object, nature and subject matter of the contract; and the subsequent conduct of the parties. [Citations.]’ [Citations.]” (People v. Shelton (2006) 37 Cal.4th 759, 767.)

In the present case, Judge O’Connor accepted defendant’s plea of no contest to one count of vehicle theft on condition that the prosecutor submit a satisfactory explanation pursuant to section 1192.6 for dismissal of the robbery count. The plea agreement also reserved to the court the full range of sentencing options. Considering that Judge O’Connor retained discretion to disapprove the plea agreement, it is not unreasonable to infer that she intended to retain sentencing discretion as well, that this fact was known to the parties, and that it was an implicit term of the plea agreement, in accordance with Arbuckle, supra, 22 Cal.3d at pages 756-757. This conclusion is consistent with other facts of record, including Judge O’Connor’s setting the sentencing hearing in the same court where the plea was entered, her statement to defendant that she would “see you back here on March 28th,” the absence of a routine Arbuckle waiver, defendant’s decision to address his sentencing letter to Judge O’Connor personally, the defense request to continue the sentencing hearing when Judge O’Connor was not present, and defendant’s objection to sentencing going forward before Judge Curry.

Respondent questions the probative force of these facts, and points out that Judge O’Connor, when summarizing possible dispositions to defendant, stated that “a court” or “the court” would make these determinations, rather than “I” or “me”, indicating the court did not anticipate sentencing defendant. While it is true that the court used no personal pronouns, this fails to refute the evidence indicating the opposite conclusion. The present case is well within the ambit of Arbuckle, supra, 22 Cal.3d 749.

Judge Curry’s reliance on the parties’ misleading reference to a “straight up“ plea to the vehicle theft charge does not undermine this conclusion. A “straight up” plea is one in which the defendant admits all charges and allegations but receives nothing in return. (Cf. People v. Superior Court (Ramos) (1991) 235 Cal.App.3d 1261, 1271.) There is no bargained for agreement. (Pen. Code, § 1192.7, subd. (b) [“plea bargaining” means “any bargaining, negotiation, or discussion between a criminal defendant, or his or her counsel, and a prosecuting attorney or judge, whereby the defendant agrees to plead guilty or nolo contendere, in exchange for any promises, commitments, concessions, assurances, or consideration by the prosecuting attorney or judge relating to any charge against the defendant or to the sentencing of the defendant”].) Without such an agreement there can be no implicit condition regarding who will sentence the defendant. Here, though, the parties reached a negotiated disposition subject to Arbuckle, supra, 22 Cal.3d 749. Defendant’s plea was “straight up” only in the sense that Judge O’Connor had the full range of sentencing options available, from probation to an upper term prison sentence. It was not a general waiver of all rights with respect to sentencing, and it did not undermine the implicit term of the plea agreement that Judge O’Connor would sentence defendant. Consequently, we will remand for a new sentencing hearing.

Our conclusion obviates the need to discuss defendant’s separate challenge to the upper term sentence on constitutional grounds.

DISPOSITION

The matter is remanded to the trial court with directions to set a new sentencing hearing before Judge O’Connor. If she is unavailable, the court shall so note in a written order that is filed and served on the parties. In that event, defendant shall have the opportunity to withdraw his plea and, if he does so, for further proceedings. Should he fail to withdraw the plea within 60 days of the date of the order notifying him of Judge O’Connor’s unavailability, the judgment is affirmed.

MORRISON , J.

We concur:

BLEASE , Acting P.J.

BUTZ , J.

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^[1] Subsequent events occurred in 2005.