People v. Serrato

[763]

Opinion

EVANS, J.

Under terms of a plea bargain, defendant pleaded guilty to first degree burglary (Pen. Code, § 459) and admitted a prior conviction (Pen. Code, § 667.5, subd. (b)). He was sentenced to four years, the middle term, for the burglary and one year for the prior conviction.

On appeal, defendant contends the court failed to exercise its discretion when it denied him probation and the court committed error because he was sentenced, without an

Arbuckle

waiver, by a different judge than the judge who accepted his plea.

1

We shall affirm.

Defendant’s contention he was improperly denied probation fails. A grant or denial of probation is within the discretion of the trial court

(People

v.

Phillips

(1977) 76 Cal.App.3d 207, 213 [142 Cal.Rptr. 658]) and will not be disturbed unless it is shown the court exercised its discretion in an “arbitrary or capricious manner.”

(People

v.

Edwards

(1976) 18 Cal.3d 796, 807 [135 Cal.Rptr. 411, 557 P.2d 995].)

Since defendant was convicted of first degree burglary, he was ineligible for probation unless unusual circumstances were found and enumerated on the record by the court. (Pen. Code, § 462.) Unlike the trial court in

People

v.

Marquez

(1983) 143 Cal.App.3d 797 [192 Cal.Rptr. 193], which failed to recognize its discretion to grant probation under the restrictions of Penal Code section 462, the court here recognized and exercised its discretion when it stated: “Mr. Serrato is not eligible for probation unless there are unusual circumstances where the interests of justice would be served, [fl] There are not such unusual circumstances whereby the interests of justice would be served by giving a grant of probation; therefore, probation is denied, ffl] Even if he were eligible for probation, based upon extensive criminal history, the Court would deny probation for him at this time.”