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

PEOPLE of the State of California, Plaintiff and Respondent, v. Carlos Serafin MENDEZ, Defendant and Appellant.


Decided: April 22, 1987

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., John H. Sugiyama, Asst. Atty. Gen., Mark S. Howell, Supervising Deputy Atty. Gen., Gerald A. Engler, Deputy Atty. Gen., San Francisco, for plaintiff and respondent. Hubert Lenczowski, Hopland, for defendant and appellant.

Upon his guilty plea to a charge of second degree burglary, defendant Carlos Serafin Mendez (Mendez ) was denied probation and sentenced to state prison for two years.   He appeals from the judgment under which he was so sentenced.

We affirm the judgment for the reasons we now state.

The first of Mendez' two appellate contentions is that:  “The trial court erred by failing 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.”

Mendez' reliance is upon People v. Arbuckle (1978) 22 Cal.3d 749, 756–757, 150 Cal.Rptr. 778, 587 P.2d 220, which held:  “As a general principle ․ 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․  Because the defendant has been denied that aspect of his plea bargain, the sentence imposed by another judge cannot be allowed to stand.”

It will be noted that a condition of the application of People v. Arbuckle is that there be a “plea bargain ” which has been accepted by the trial court.

Mendez was charged by an information with (count I) the second degree burglary of a building in which a valuable “saddle and tack” were stolen.   He was also charged (count II) with grand theft of the same “saddle and tack” and, (count III) with receiving stolen property, i.e., the same “saddle and tack.”   The charges patently were in the alternative, and Mendez could be convicted only of one.

On June 27, 1986, Mendez and his attorney, Ms. Massini, were before the superior court and as here material, the following occurred:

“Ms. Massini:  Mr. Mendez wishes to withdraw his plea of not guilty and enter a plea of guilty to 459, your Honor, as to second degree.   The Court:  This is three alternate counts, is that correct?   Mr. Eckhoff [the prosecutor]:  I believe it is.  [Mendez was thereupon advised at length as to his constitutional rights, which he waived.]   The Court:  And do you understand what the possible sentence can be on this charge if you plead guilty?   The Defendant:  Yes.   The Court:  Well, to be sure, it's possible you could be given probation or serve in the county jail or you could be sent to state prison.   The Defendant:  Yes.   The Court:  If you're sent to state prison, the term there could possibly be 16 months or two years or three years.   In addition, you could receive three years on parole after that.   Understand that?   The Defendant:  Yes․  The Court:  The plea of not guilty to count one is set aside.   Mr. Mendez, how do you now plead to count one which charges a burglary in the second degree on April 15 of 1986?   The Defendant:  Guilty.”

We have read the superior court record.   We observe no suggestion by anyone that Mendez' guilty plea was in accordance with, or part of, a plea bargain.   Nor is any such suggestion pointed out to us.   Nor did Mendez obtain any benefit from his now claimed plea bargain;  upon such a plea to one of several alternative charges, it is mandatory that the remaining charges be dismissed.

It follows that Mendez' reliance on People v. Arbuckle is misplaced, and that the existent contention is invalid.

The remaining appellate contention of Mendez is stated as follows:  “Appellant did not receive effective assistance of counsel [and] defense counsel improperly argued against appellant during sentencing.”

The supporting argument seems to be that although Ms. Massini “had argued strongly [and it appears, successfully] against imposition of the upper term of three years recommended in the probation report, counsel failed in her duty to address the court to mitigating circumstances in favor of probation and to argue zealously in favor of a grant of probation.”   The argument is unsupported by the record and, we think, grossly unfair.   In our opinion Ms. Massini made a zealous, excellent (albeit unsuccessful), argument for probation.

The judgment is affirmed.

ELKINGTON, Associate Justice.

RACANELLI, P.J., and HOLMDAHL, J., concur.