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Court of Appeal, Fourth District, Division 1, California.

The PEOPLE, Plaintiff and Respondent, v. Henry Ervin HONEY, Jr., Defendant and Appellant.

Cr. 11695.

Decided: March 13, 1981

Quin A. Denvir, State Public Defender, Paul Bell, Deputy State Public Defender and Stephen J. Perrello, Jr., Panel Attorney, San Diego, under appointment by the Court of Appeal, for defendant and appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen. and Richard D. Garske and Harley D. Mayfield, Deputy Attys. Gen., for plaintiff and respondent.

Henry Ervin Honey, Jr. appeals sentencing in two cases, CRV 5767 and CRV 6035, claiming Arbuckle error—the denial of his right to be sentenced by the same judge who accepted his plea bargain.  (People v. Arbuckle (1978) 22 Cal.3d 749, 756–757, 150 Cal.Rptr. 778, 587 P.2d 220.)   We agree with his contention in CRV 6035 and accordingly reverse the judgment and remand to permit sentence to be imposed by the same judge before whom he entered his negotiated plea, or if impossible, to allow withdrawal of his guilty plea.   We affirm CRV 5767.

 Procedural Background

Honey pleaded guilty to one count of burglary before Municipal Judge J. Morgan Lester in CRV 5767 on the written understanding the district attorney would dismiss the remaining four counts and would not oppose local time.   Judge Lester approved the entry of the plea and then, pursuant to defense counsel's request, certified the case to himself as a Superior Court Judge for sentencing.1  He gave Honey three years probation on certain conditions, including Honey not violate any laws of California, serve 180 days and pay restitution.

About six months later, Honey was charged in CRV 6035 with a single count of burglary.   Based on that charge, the district attorney requested revocation of probation in CRV 5767.   Honey appeared before Municipal Judge Zalman J. Scherer who accepted his guilty plea in CRV 6035 pursuant to the district attorney's agreement Honey's sentence would be concurrent with any time imposed for the probation violation.   Judge Scherer told Honey of his right to have the same judge sentence him who had taken his plea unless he wished to waive that right.   Honey declined to do so and the minutes of the proceeding provide, “Judge Scherer to retain personal jurisdiction at defendant's request.”   On the continued date for sentencing, December 10, 1979, Honey went before Judge Scherer and admitted he violated the terms of his probation.   Judge Scherer referred Honey for a diagnostic study (Pen.Code, § 1203.03) and set March 10, 1980, for sentencing in both cases.   On that date, Honey with his two lawyers, one for each case, appeared before Judge Lester.   Judge Lester imposed a two-year prison term in CRV 6035 and after Honey again admitted his probation violation, imposed a two-year prison term in CRV 5767 to be served concurrently with CRV 6035.


 Honey correctly argues he was entitled to appear before Judge Scherer for sentencing in CRV 6035.   He has that right under People v. Arbuckle, supra, 22 Cal.3d 749, 756–757, 150 Cal.Rptr. 778, 587 P.2d 220;  he did not waive it when he entered his plea;  and since he was never advised at sentencing of his right to withdraw his plea if the bargain were not kept, his failure to affirmatively request that his plea be withdrawn cannot be deemed to be a waiver of his right to do so.  (People v. Johnson (1974) 10 Cal.3d 868, 872, 112 Cal.Rptr. 556, 519 P.2d 604.)   In reaching this conclusion, we reject the Attorney General's argument that Arbuckle does not apply here where the plea of guilty was entered before a municipal court judge sitting as a magistrate.   As noted previously (see footnote 1, supra ), all judges of the North County Municipal Court District were under a blanket assignment to the Superior Court of San Diego County as part of their cooperative effort with the superior court to expedite the processing of the burgeoning criminal case load.   Under such circumstances, where the assignment is a matter of common knowledge relied upon by members of the practicing bar, Arbuckle applies.   (See In re Ray O. (1979) 97 Cal.App.3d 136, 139–140, 158 Cal.Rptr. 550, extending Arbuckle to juveniles.)   We reverse solely to allow Judge Scherer to sentence in CRV 6035, but if impossible, Honey may withdraw his plea.

Honey asks us to go one step further.   He argues because Judge Scherer consolidated the cases at the continued sentencing hearing, he reasonably believed, and became entitled to have, Judge Scherer as his sentencing judge for both matters.

We understand how Honey reached this conclusion.   It logically follows from his right to be sentenced by Judge Scherer in CRV 6035 and the fact Judge Scherer later set the same date, time and place for sentencing for the probation violation in CRV 5767.   We fail to understand the logic, however, of why Honey's belief, in and of itself, entitles him to additional rights.

 The nature and extent of the rights acquired by a defendant through a negotiated plea occur at the time the bargain is fashioned.   One right acquired is 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.”  (People v. Arbuckle, supra, 22 Cal.3d 749, 756–757, 150 Cal.Rptr. 778, 587 P.2d 220.)   Here, Honey received the benefit of his bargain in CRV 5767 because Judge Lester sentenced him in that case.   Honey did not admit his probation violation (CRV 5767) before Judge Scherer pursuant to a new plea bargain and, accordingly, he did not acquire the implied right to be sentenced by that judge for that violation.   The only negotiated plea before Judge Scherer was Honey's guilty plea to CRV 6035 which we are reversing to allow him to be sentenced by Judge Scherer.   Although the Arbuckle court conceded “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 did not hold that absent a bargain a defendant has the right to be sentenced by the same judge who accepts his guilty plea.   We reject Honey's suggestion we should extend Arbuckle to non-negotiated admissions of probation violation which would require the judge before whom the admission is made, here Judge Scherer, to be the sentencing judge.

In arguing for Judge Scherer to be the sentencing judge in both cases, appellate counsel does not contend, nor did either trial counsel, that Honey's bargain in CRV 6035 included either the express or implied term that Judge Scherer was required to first sentence in CRV 6035 before sentence could be imposed for the probation violation.   Honey appears to acknowledge the contrary was to have occurred because he admits his time in custody in CRV 6035 was to be concurrent with CRV 5767 and not vice versa.   In any event, there were no strings in CRV 6035 as to which case, and necessarily which judge, was to have had the lead role.

We do not wish to increase the burdens of the trial bench or bar by adding more rules for disposition of cases pursuant to written plea bargains.   However, the obvious ambiguities in the negotiated plea before us, including the exact meaning of the word “concurrent” in the context used, highlights the importance of an articulate and complete written plea bargain form.   The interesting sentencing puzzle here, a variation on “which comes first, the chicken or the egg?”, is best resolved by having the negotiated plea expressly provide which case the parties intend to control the outcome for other cases where concurrent time in two or more cases is involved.


CRV 5767 is affirmed.   Judgment in CRV 6035 is reversed and remanded for the sole purpose of allowing Judge Zalman Scherer to resentence or, if impossible, to allow Honey to withdraw his guilty plea.2


1.   The parties have stipulated that for the period January 1, 1979 through December 31, 1980, all judges of the North County Municipal Court District, including the two judges referred to in this case, were assigned to sit as judges of the Superior Court of San Diego County.

2.   Honey claims sentencing should be conducted by a judge other than Judge Scherer because of what he says is the likelihood Judge Scherer had off-the-record conversations with Judge Lester with regard to sentencing, referring us to his application for release on bail.   This record will not support an inference that Judge Scherer is prejudiced, biased or otherwise incapable of acting in an objective and conscientious manner in fulfilling his responsibilities.   There is no reason to remand to another judge for resentencing.

WIENER, Associate Justice.

COLOGNE, Acting P. J., and TODD, J.,* concur.

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