People v. Watson

Opinion

CALDECOTT, P. J.

On August 3, 1977, defendant pleaded guilty before Judge Calcagno to possession of a completed check with intent to defraud (Pen. Code, § 475a). The plea was a negotiated one, entered upon condition that imposition of sentence would be suspended and that defendant would be placed on probation for 3 years with a maximum commitment of 160 days in county jail. The court thus retained some, albeit quite limited, discretion. On August 24, Judge Calcagno suspended imposition of sentence and placed defendant on probation for 3 years with the condition he serve 160 days in county jail.

Subsequently, the court summarily revoked defendant’s probation. On July 2, 1980, he appeared for formal revocation proceedings at

[7]

which time he moved to withdraw his guilty plea. He alleged that since Judge Calcagno had died in May of 1980, he would be unable to consider the question of probation revocation and imposition of sentence following revocation. Thus, under

People

v.

Arbuckle

(1978) 22 Cal.3d 749 [150 Cal.Rptr. 778, 578 P.2d 220, 3 A.L.R.4th 1171], defendant was entitled to the option of withdrawing his guilty plea.

The court denied defendant’s motion to withdraw his guilty plea. It then ordered probation continued but modified by a one-year extension and confinement in county jail for one year with credit for time served. Defendant filed a timely appeal in which he contests the denial of his motion to withdraw his guilty plea. We affirm.

People

v.

Arbuckle, supra, 22

Cal.3d at pages 756-757, held that when a judge accepts a plea bargain involving sentencing discretion, an implied term is that he will be the judge to impose sentence. Thus, a defendant is entitled either to be sentenced by that same judge or, if that is impossible, to withdraw his guilty plea. (See 22 Cal.3d at p. 757.)