People v. Pedregon

¶1I concur in the judgment only.

¶2I respectfully disagree with the majority that People v. Arbuckle (1978) 22 Cal.3d 749 [150 Cal.Rptr. 778, 587 P.2d 220], requires the judge before whom the plea is given to impose sentence in every case. By its very language Arbuckleis limited to its peculiar facts: “We agree that the plea bargain herein was entered in expectation of and in reliance upon sentence being imposed by the same judge. Our conclusion is supported by the judge’s repeated use of the personal pronoun when referring to sentencing in the proceeding in which the plea bargain was accepted.” People v. Arbuckle, supra, at page 756 (italics added).

¶3In the instant case not only is there a lack of Judge Fernandez’s use of the personal pronoun,1 but there is even less basis to speculate that an implied term of the bargain was that he, Judge Fernandez, would sentence the appellant. Unlike Arbuckle, the appellant herein was on notice that Judge Fernandez might not be around for sentencing, since Judge Fernandez was a visiting judge and it is well known that visiting judges do not visit forever.

¶4Furthermore, Arbuckledoes not even consider the application of Penal Code section 1053 to plea negotiations. Long before enactment of section 1053 in 1911 it was well settled that a different judge may sentence: “A judge who did not try the case, then, may have jurisdiction to pronounce the sentence.” People v. Henderson (1865) 28 Cal. 465. The Hendersoncourt, in upholding a second judge ruling on a motion for new trial, speaks in terms of “sufficient reason”: “We must presume that a sufficient reason existed to justify this change in the Bench ...” People v. Henderson, supra,at page 476. Whether or not such a presumption of sufficient reason applies to pleas of guilty in which there is no implied or express term to be sentenced by the judge taking the plea and there is no agreement of counsel has not been decided by any appellate authority.

¶5*728In any event, assuming that section 1053 does find application to plea negotiations, that section authorizes substitution only if the judge presiding “shall die, become ill, or for any other reason be unable to proceed with the trial.” The record here is totally barren of any suggestion that Judge Fernandez is UNABLE to proceed, and absent such a showing the appellant’s objection to being sentenced by a substitute judge is well taken.