People v. Uribe

Opinion

ALLPORT, J.

By information defendant was charged with selling heroin in violation of Health and Safety Code section 11352. He pled not guilty and the cause was set for trial by jury in department 2 before Judge Charles S. Stevens, Jr. Following waiver of his constitutional rights to jury trial, confrontation of witnesses and self-incrimination, the matter was submitted on the preliminaiy hearing transcript together with certain appropriate stipulations of fact. Defendant was found guilty as

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charged and the matter continued for sentencing in the.same department to January 10, 1975. By order of Presiding Judge Floyd C. Dodson the sentence hearing order was vacated and the matter advanced for probation-sentence hearing in department 1 on December 16, 1974. After a continuance to December 23, 1974, and, following denial of a written motion for an order reassigning the case for sentencing or in the alternative setting aside the conviction, the matter came on for hearing in department 1 where Judge Dodson sentenced defendant to state prison.

Defendant appeals from the judgment contending that, by denying his motion to transfer for sentencing, he was deprived of due process afforded him by rule 305

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because his agreement to submit the cause on the preliminary hearing transcript was conditioned upon being sentenced by Judge Stevens. The appeal lies. (Pen. Code, § 1237, subd. 1.)

Discussion

We view the procedure adopted by counsel as being an attempt to dispose of the matter by way of a plea bargain without judicial sanction. Other things being equal we would be quick to condemn the attempted disposition as being “judicial forum shopping” not to be condoned by this court. However, the existence of rule 305 in this case requires us to consider the propriety of the disposition in greater depth.

Certainly counsel were entitled under rule 305 to rely upon defendant’s being sentenced in the trial department if the cause was “. . . actually tried to verdict or decision in his trial department. . . .” Thus a question was immediately presented as to whether, under this rule, the submission on the preliminary transcript and certain stipulations of fact constituted a trial to decision before Judge Stevens or whether such was a “disposition by plea” in which case “. . . the probation sentence hearing shall be conducted by the presiding judge. . . .” Apparently counsel for both sides considered the submission to be a trial within the meaning of the rule. Judge Stevens apparently concurred in such interpretation of