Filed 2/6/18 P. v. Johnson CA3
NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Siskiyou)
----




THE PEOPLE,

Plaintiff and Respondent,

v.

ANDREW MALEN JOHNSON,

Defendant and Appellant.
C082206

(Super. Ct. Nos. MCYKCRF2012767, MCYKCRF20141595)






In People v. Arbuckle (1978) 22 Cal.3d 749 (Arbuckle), our Supreme Court held that as a “general principle,” a defendant who enters into a plea bargain is entitled to be sentenced by the judge who took his plea. (Id. at pp. 756-767; see also K.R. v. Superior Court (2017) 3 Cal.5th 295 (K.R.).)
Defendant Andrew Malen Johnson appeals from the imposition of a state prison sentence originally imposed but suspended pursuant to a plea bargain, contending that under Arbuckle, the judge who presided over his last violation of probation (VOP) hearing should have been the one to sentence him. We affirm because defendant has not raised a true Arbuckle claim or shown any other grounds for error in his sentencing.
FACTS AND PROCEEDINGS
It is unnecessary to recount the long and complex history of these proceedings in detail in order to resolve the narrow issue posed in this appeal. We therefore summarize the basic facts and focus on the critical hearings on which defendant’s claim of error depends.
A. Case No. 12-0767
On May 17, 2012, appearing before Siskiyou County Superior Court Judge Donald Langford, defendant pleaded guilty to misdemeanor assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1); unless otherwise set forth, statutory section references that follow are to the Penal Code), possession of a dirk or dagger (§ 21310), and sale of marijuana (Health & Saf. Code, § 11360, subd. (a)), and admitted three prior felony convictions and one prior strike, in return for the dismissal of other counts and allegations, dismissal of the strike for sentencing purposes under People v. Superior Court (Romero) (1996)13 Cal.4th 497, and the promise of three to five years’ probation, including up to one year in county jail. Defendant’s maximum exposure under the plea agreement was four years eight months.
On July 11, 2012, Siskiyou County Superior Court Judge Karen Dixon granted the People’s request to strike defendant’s strike, suspended imposition of sentence for three years, and granted formal probation for that period, with 90 days in county jail. The police report, which provided the factual basis for the plea, stated that on April 26, 2012, defendant threatened the victim with a knife in the course of a marijuana sales transaction.
B. Case No. 14-1595
Following four VOP’s and reinstatements on probation in case No. 12-0767, on October 31, 2014, a new felony complaint was filed in case No. 14-1595, charging defendant with violating section 594, subdivision (a) (count 1; vandalism of a church) and Health and Safety Code section 11377, subdivision (a) (count 2; possession of methamphetamine), both offenses occurring on October 29, 2014. The complaint alleged as to both counts that defendant had a prior strike and was ineligible for probation.
On the same date, defendant pleaded not guilty in case No. 14-1595 and denied the allegation that he had violated probation in case No. 12-767 by committing the new offenses. Judge Dixon allowed defendant to be released on his own recognizance pending the hearing on the probation violations and the preliminary hearing in the new prosecution.
On January 28, 2015, after a number of delays (including a suspension of proceedings to determine defendant’s competence to stand trial), Judge Davis granted the People’s motion to amend the complaint in case No. 14-1595 to add a misdemeanor vandalism count (the victim being an elementary school). Defendant pleaded guilty to all charges in that case and admitted the related VOP’s in case No. 12-0767. Judge Davis found defendant suitable for probation with mental health and substance abuse treatment due to unusual circumstances and the interests of justice, decided to disregard his prior strike for purposes of sentencing, imposed an indicated sentence of time served on the two misdemeanor counts contingent on obtaining mental health and substance abuse evaluations prior to sentencing, and again allowed defendant to be released on his own recognizance. Judge Davis noted that the plea form did not show an Arbuckle waiver and stated that that meant he would handle defendant’s sentencing.
On March 25, 2015, sentencing was continued because defendant was hospitalized after being hit by a car and suffering complications from surgery. On May 12, 2015, because there had been no Arbuckle waiver and Judge Davis was unavailable, Judge Langford continued the matter to May 19, 2015.
The probation report, filed May 19, 2015, called defendant a “marginal” candidate for probation. He was presumptively ineligible due to four prior felony convictions. (§ 1203, subd. (e)(4).) The report noted that the statutory presumption might be overcome under rule 4.413(c)(2)(B) of the California Rules of Court, which states: “The crime was committed because of a mental condition not amounting to a defense, and there is a high likelihood that the defendant would respond favorably to mental health care and treatment that would be required as a condition of probation.” But since defendant’s mental health problems correlated with his methamphetamine use, continued failure to obtain drug treatment would make further reinstatement on probation inappropriate.
According to the report, on October 29, 2014, defendant vandalized St. Anthony’s Catholic Church by breaking a stained glass window valued at $2,000 to $3,000 with a large stick; he told a police officer he “just got mad,” then said he went into the church “to kill vampires.” A search incident to arrest found a small baggie containing methamphetamine. On November 19, 2014, defendant broke into an elementary school by breaking a window; the cost of repairs was estimated at $1,856.30. Interviewed in jail, defendant claimed he committed the crimes because he heard screaming inside both buildings.
The report listed five factors in aggravation (the crimes involved damage of great monetary value; defendant’s prior convictions were numerous or of increasing seriousness; defendant had served a prior prison term; defendant was on probation when the crimes were committed; defendant’s prior performance on probation or parole was unsatisfactory) and only one in mitigation (admission of wrongdoing at an early stage). If probation were not reinstated, the upper term on the principal count was recommended, with an aggregate state prison sentence of five years four months for the two cases together.
On May 19, 2015, Judge Davis imposed an aggregate prison sentence of five years four months in the two cases (striking defendant’s strike for sentencing purposes), but suspended execution of sentence and continued defendant’s probation.
C. Further Proceedings in Both Cases
Between July 7, 2015, and January 7, 2016, defendant admitted numerous further VOP’s. Each time up until the latter date, probation was reinstated, dependent chiefly on his agreement to seek entry into a residential drug treatment program. He never actually entered any such program.
D. The Final VOP Hearing and the Sentencing Hearing
On January 7, 2016, Judge Dixon told defendant that if he admitted the latest VOP, he would be sent for a diagnostic evaluation pursuant to section 1203.03 (hereafter “section 1203.03”) to ascertain whether reinstatement on probation was suitable. Defense counsel stated that defendant wanted to admit the violation, but feared prison. Judge Dixon responded: “I can understand that. [¶] Unfortunately, I feel as if my hands are tied.”
At defense counsel’s request, Judge Dixon voir dired defendant, explaining: “I’m not making any promises about what sentence would be imposed. . . . [¶] [I]t would give me a greater degree of comfort to have an evaluation done so that I have some understanding of what your capabilities are. That would also give us some understanding of what we might be able to expect would be the benefit of having you incarcerated in state prison.”
Defendant admitted the VOP. Judge Dixon ordered defendant transported to the Department of Corrections and Rehabilitation (CDCR) for a section 1202.03 diagnostic evaluation to be performed within 90 days.
On March 28, 2016, CDCR filed its evaluation with the trial court. The evaluation noted that defendant lacked marketable job skills and had a history of homelessness, problems related to substance abuse, and receipt of welfare or public assistance. He also had an established record of past offenses, imprisonment, and probation violations, a generally antisocial orientation to society, defiance toward authority, and an inability to relate genuinely to others. Because granting probation would create excessive risk to the community, incarceration was recommended.
On April 5, 2016, Judge Dixon set the matter for a referral to probation and for sentencing on April 26, 2016.
The probation officer’s supplemental report concurred with the section 1202.03 evaluation. Defendant’s performance on probation had been poor, involving not only technical violations but new criminal offenses. While on supervision he had made very little effort to curtail his criminal behavior, which at times posed a serious risk to the community. Based on these facts, as well as on the diagnostic evaluation, defendant should receive the previously suspended state prison term of five years four months.
On April 26, 2016, Judge Davis presided at the sentencing hearing.
Defense counsel stated that defendant felt Judge Dixon needed to do the sentencing because she had presided at the hearing where the evaluation was ordered; moreover, counsel would be out of the office for three weeks after that day. The prosecutor replied: (1) Judge Dixon had not indicated any sentence, but had just said “[L]et’s get the 1203.03 and see what it says”; (2) Arbuckle did not apply to VOP hearings.
Judge Davis noted that he had read all the materials relevant to sentencing, and if the matter were continued until counsel returned, it would put off sentencing for almost a month. Therefore, he thought it appropriate to proceed at that time.
Defense counsel agreed with the prosecutor that Arbuckle did not apply to VOP hearings. Counsel argued, however, that defendant had taken Judge Dixon’s comments about the evaluation as having “essentially . . . started his . . . sentencing process.”
After determining that it would not be logistically possible to put the proceedings over to the next morning, when Judge Dixon and defense counsel would both be available, Judge Davis stated they would proceed on the existing calendar. Although Judge Davis would have been open to letting Judge Dixon handle the sentencing had it been feasible, under the circumstances it was not.
Defense counsel stated that defendant had “reluctantly agreed to go for” the evaluation based only on his expectation that Judge Dixon, having said, “she was unwilling to reinstate probation without a diagnostic,” would be the sentencing judge. The prosecutor replied that it was not up to defendant whether he got a diagnostic evaluation, and he was not entitled to have an “expectation” about it or to say, “I’ll go along with it,” as if it depended on his consent.
After consulting his files, Judge Davis stated: “I’m not showing that there was an inducement. [Defendant] may have misinterpreted the situation. But I’m not seeing that that was . . . any sort of condition or promise. And, of course . . ., the defendant does not have a right to have the judge who takes the admission be the sentencing judge on a probation violation.” Since they would have to wait nearly a month to make it possible for Judge Dixon to do the sentencing, which was not reasonable, they would move forward now.
Judge Davis indicated that he was inclined to adopt the probation officer’s recommendation. After allowing defendant to make an allocution, Judge Davis proceeded to deny reinstatement of probation and to impose the previously suspended prison sentence of five years four months.
This appeal followed.
DISCUSSION
Defendant contends that under his rights as set forth in Arbuckle, which he never waived, he was entitled to be sentenced by Judge Dixon because he entered a “plea of guilty” before her at his last VOP hearing. Therefore, his sentencing by Judge Davis violated Arbuckle and requires reversal.
Citing case law that held Arbuckle applied only if the defendant could show under the particular circumstances of his case that he had a reasonable expectation of sentencing by the judge who took his plea, the Attorney General originally argued that defendant had no such expectation. The Attorney General also argued, citing People v. Martinez (2005) 127 Cal.App.4th 1156, 1159-1160 (Martinez), that Arbuckle does not apply to VOP hearings, and that in any event, defendant’s claim was forfeited because he conceded below that Arbuckle was inapposite. Lastly, the Attorney General argued that “there was no plea bargain in appellant’s case” -- meaning that defendant never entered into a plea bargain, and that the VOP proceedings before Judge Dixon did not constitute a plea bargain.
After briefing was completed, our Supreme Court disapproved the “reasonable expectation” test and the decisions that employed it. The court held that since the Arbuckle condition is an implied term of every plea agreement unless waived, it is objectively reasonable for a criminal defendant or juvenile offender to expect this term to be honored; therefore, the offender’s subjective beliefs and the particular circumstances of his case are immaterial. (K.R, supra, 3 Cal.5th at pp. 298, 306-313 & fn. 10 (maj. opn. of Werdegar, J.).) The matter at issue in K.R. was a juvenile delinquency proceeding in which VOP hearings had produced what amounted to a new disposition negotiated among the parties, and the minor argued that he was entitled to be sentenced by the judge who presided over that negotiation. (Id. at pp. 299-303.) The high court found in effect that these facts made the last VOP hearing tantamount to a plea bargain for purposes of Arbuckle. (Id. at pp. 311-313.)
We requested supplemental briefing on the following questions: (1) In light of K.R., supra, what grounds (if any) remain for a finding that Arbuckle was not violated in this case? (2) In light of K.R., is the holding of Martinez, supra, still good law? (3) If an Arbuckle violation occurred, does defendant have to show prejudice to obtain reversal?
Defendant replied that no grounds remained to find Arbuckle was not violated, K.R. impliedly disapproved Martinez, and Arbuckle error is reversible per se. The Attorney General disagreed with all of these points.
Having considered the original and supplemental briefs, we conclude that defendant’s claim fails for a simple reason: he rests it not on his plea bargain in either of his cases, to which Arbuckle might apply, but on the hearing on his last VOP petition, to which Arbuckle does not apply.
Contrary to defendant’s premise for which he cites no authority, an admission of a probation violation is not a “plea of guilty” for purposes of Arbuckle. An alleged VOP need not be a criminal offense, and the finding of a violation is made by a mere preponderance of the evidence. (See, § 1203.2, subd. (a); People v. Galvan (2007) 155 Cal.App.4th 978.) Moreover, once the trial court finds a VOP in a case where probation was granted pursuant to a plea agreement which included a suspended prison sentence, the defendant has no bargaining power as to the outcome: so long as the court adheres to the terms of the plea agreement, it has full discretion to decide whether to revoke probation and impose sentence, or to reinstate probation (with or without new conditions). (§ 1203.3, subds. (a), (b); In re Larsen (1955) 44 Cal.2d 642, 645; People v. Bolian (2014) 231 Cal.App.4th 1415, 1420.) Thus, an admission of a VOP is not part of a plea negotiation, as a plea of guilty or no contest may be in the underlying criminal proceeding.
Although K.R. did involve VOP hearings, it is distinguishable because those hearings led to a proposed disposition not contemplated at the start of the case, resulting from negotiations akin to plea bargaining in adult criminal cases. (K.R, supra, 3 Cal.5th at pp. 299-303.) The VOP hearings in this case, as in most adult criminal proceedings, did not involve a negotiated or renegotiated plea agreement. Thus, we conclude the hearings did not implicate Arbuckle. K.R. is not to the contrary because it does not address VOP proceedings that do not involve plea bargaining. (Ginns v. Savage (1964) 61 Cal.2d 520, 524, fn. 2 [cases not authority for propositions they do not consider].)
Because defendant has not raised a genuine Arbuckle claim or alleged any other sort of sentencing error, we affirm the judgment.
DISPOSITION
The judgment is affirmed.



HULL , J.



We concur:



RAYE , P. J.



BLEASE , J.