Filed 3/30/15 P. v. Marchbanks CA3
                                          NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     THIRD APPELLATE DISTRICT
                                                    (San Joaquin)
                                                            ----




THE PEOPLE,                                                                            C076376

                   Plaintiff and Respondent,                              (Super. Ct. No. SF123915A)

         v.

JOSEPH WILLIAM MARCHBANKS,

                   Defendant and Appellant.




         Following his no contest plea to receiving stolen property (Pen. Code, § 496, subd.
(a))1 and his admission of a prior strike (§§ 667, subd. (d), 1170.12, subd. (b)) and a prior



1 Undesignated statutory references are to the Penal Code.



                                                             1
prison sentence (§ 667.5), defendant Joseph William Marchbanks appeals alleging
procedural irregularities in his sentencing. Specifically, defendant contends the trial
court (1) violated his rights pursuant to People v. Arbuckle (1978) 22 Cal.3d 749
(Arbuckle) when a different judge considered his motion to strike his prior strike
conviction and sentenced him over his objection rather than permitting him to be
sentenced by the judge who took his plea; and (2) violated his due process rights by
sentencing him without permitting him to review the probation report. We agree and
shall remand the matter for resentencing.

                           PROCEDURAL BACKGROUND

       Defendant was charged with two counts of first degree burglary (§ 459) and a
single count of receiving stolen property (§ 496, subd. (a)). As to each count, it was
alleged defendant had been convicted of a prior serious felony—residential burglary
(§ 459)—within the meaning of sections 1170.12, subdivision (b) and 667, subdivision
(d), and that defendant had served a prior prison term, within the meaning of section
667.5, subdivision (b). As to the burglary counts, it was also alleged defendant was a
repeat offender within the meaning of section 667, subdivision (a)(1).

       On January 31, 2014, Judge Stephen G. Demetras presided over defendant’s
change of plea hearing. Defendant’s counsel recited the terms of the plea agreement,
stating, “He’ll enter a plea to [receiving stolen property] with the understanding he’d
receive the midterm, which is two years. He would admit his prior strike and admit his
prior prison term for a total of five years. We would ask that sentencing be put over so I
can file a Romero motion.”2 The court asked if defendant wanted a referral to probation,
and the judge added, “If I was going to be the sentencing judge, I would want to see that

2 People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (recognizing that a court has
discretion to strike a defendant’s prior strike conviction in certain circumstances pursuant
to section 1385).


                                             2
as well as the Romero motion.” Defendant pleaded no contest to receiving stolen
property and admitted the prior strike and prior prison term enhancement allegations. On
the People’s motion, the court dismissed the burglary counts in the interest of justice in
view of defendant’s plea. Defendant’s counsel specifically informed the court that
defendant had not waived his Arbuckle rights, and the clerk’s minutes from that hearing
indicate that sentencing was “to be heard by J/Demetr[a]s.”

       Defense counsel asked if Judge Demetras was available on February 28, 2014, to
conduct sentencing, and he replied, “I can’t promise a given date” but that “[S]he’ll find
me.” So the court scheduled sentencing for February 28, stating, “If I’m not here, I’ll be
somewhere— [¶] . . . [¶] . . . —and we can roll it over for a day or two.” Defendant
filed the Romero motion, which the People opposed. The February 28, 2014 hearing was
continued to April 21, 2014.

       On that date, the matter came before Judge Franklin M. Stephenson for hearing on
the Romero motion and for sentencing. Defendant informed the court that he had not
waived his Arbuckle rights. However, the court responded that “it was a visiting judge,
Judge Demetras, so therefore, it would not apply and I’m able to hear that this morning.”
Defense counsel argued that Judge Demetras “is available and he was here last week. So
it’s not like he’s not available.” But the court responded, “He’s not available today. He’s
not on the schedule for today. It is set for sentencing. I have had an opportunity to
review the change of plea transcript, as well as the points and authorities in support of the
motion, and reading the transcript, it’s indicated that Judge Demetras was going to
impose the midterm, double because of the prior serious conviction, add the sentence
prior for a total of five years [in] state prison. I would do the exact same thing here
today.” Defendant objected to having Judge Stephenson sentence defendant.

       Judge Stephenson denied defendant’s Romero motion. Defendant did not raise
any objection when the court then asked if there was any reason why judgment should


                                              3
not be pronounced. The court indicated it was sentencing defendant to an aggregate term
of five years in state prison (the middle term of two years for receiving stolen property,
doubled to four years due to the prior strike conviction, and an additional year due to the
prior prison sentence).

       Defense counsel then informed the court that she had not received the probation
report, and had not had an opportunity to review it with defendant. The court offered
defendant its extra copy and proceeded with sentencing. Defense counsel then objected
to sentencing because she had not received the probation report prior to sentencing. The
court put the matter over for sentencing on April 25, 2014, four days later, though it
noted it was an agreed-upon disposition. Defense counsel argued that Judge Demetras
was going to take the probation report into consideration in deciding the Romero motion,
and that was part of the basis of her objection to Judge Stephenson hearing the Romero
motion and sentencing defendant.

                                      DISCUSSION

                                  I. Arbuckle Violation

       Defendant contends his Arbuckle rights were violated when he was sentenced by a
judge other than the judge who took his plea because he reasonably expected that judge
would sentence him and his no contest plea “was clearly intertwined with that judge’s
willingness to consider his Romero motion with an open mind.” The People argue
Arbuckle is inapplicable because the judge who took defendant’s plea did not retain
sentencing discretion under the terms of the plea agreement and was unavailable for
reasons beyond the court’s control. We conclude Arbuckle applies because the judge
who took the plea did retain sentencing discretion to strike defendant’s prior strike
conviction and the record does not support the conclusion that the visiting judge was
unavailable for Arbuckle purposes.



                                             4
       “[W]henever 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.” (Arbuckle, supra, 22 Cal.3d at
pp. 756-757.) Where a “defendant has been denied that aspect of his plea bargain, the
sentence imposed by another judge cannot be allowed to stand.” (Id. at p. 757.)

       Here, the People contend the court retained no sentencing discretion because the
plea agreement included an agreed-upon disposition of five years. “ ‘Discretion is the
power to make the decision, one way or the other.’ ” (People v. Carmony (2004)
33 Cal.4th 367, 375.) Though the plea agreement did contemplate a five-year prison
sentence, it also contemplated defendant filing a Romero motion requesting the court to
exercise its discretion to strike defendant’s prior strike conviction, which would
significantly reduce defendant’s sentence. Indeed, sentencing was delayed so the Romero
motion could be prepared and a probation report obtained so it could be considered in the
context of the Romero motion. Thus, in accepting the plea agreement, Judge Demetras
retained sentencing discretion, and having him impose sentencing and decide the Romero
motion became an implied term of defendant’s plea agreement.

       The People also contend the judge who took the plea was not available. If a judge
is no longer available to impose sentencing, “through no fault of the court or the
prosecution,” a defendant must show “that a material term of the agreement has been
violated as a result [of the judge’s absence], or that there has been a ‘significant
deviation’ from the terms of the plea agreement” to assert his Arbuckle rights. (People v.
McIntosh (2009) 177 Cal.App.4th 534, 545 (McIntosh).) However, if the judge’s
unavailability is due to internal court administrative practices, “the defendant must be
given the option of proceeding before the different judge available or of withdrawing his


                                              5
plea,” for his “reasonable expectation of having his sentence imposed” by that judge
“should not be thwarted for mere administrative convenience.” (Arbuckle, supra,
22 Cal.3d at p. 757, fn. 5.) This rule applies equally to visiting judges. (People v.
Pedregon (1981) 115 Cal.App.3d 723, 724.) And, “[c]ertainly where the judge who
accepts a plea is otherwise available, there is a reasonable expectation that he or she will
impose sentence. . . .” (McIntosh, supra, 177 Cal.App.4th at p. 545.)

       In McIntosh, the court of appeal affirmed the denial of a motion to withdraw a plea
based on Arbuckle by a newly assigned judge where the judge who took the defendant’s
plea was a retired visiting judge on assignment who became unavailable for personal
reasons and could not handle the case. (McIntosh, supra, 177 Cal.App.4th at pp. 538-
539.) In that case, there was evidence the retired judge was not hearing any cases and
that there was “ ‘no possible way’ ” to have the matter placed before him. (Id. a p. 538.)
That is not the case here, where Judge Stephenson apparently assumed that merely
because Judge Demetras is a visiting judge and was not on calendar the day the matter
came up for sentencing, Judge Demetras was not available at all. Rather, there is
evidence that Judge Demetras was otherwise available, and Judge Stephenson’s
conclusion that Judge Demetras was not available was based on Judge Demetras’s status
as a visiting judge who was not on calendar that singular day. Thus, defendant is entitled
to specific performance of his agreement, i.e., to have Judge Demetras hear his Romero
motion and impose his sentence, or, if Judge Demetras is not available, to be permitted to
withdraw his plea.

                                   II. Probation Report

       Defendant contends the hearing was rendered fundamentally unfair when the court
ruled on the Romero motion before defense counsel had been provided the probation
report and had an opportunity to review it with defendant. A probation report must be
provided to the court and counsel at least five days prior to the hearing set by the court.


                                              6
(§ 1203, subd. (b)(2)(E).) Where the report is not timely received, and defense counsel
objects and requests a continuance, failure to comply amounts to a denial of due process.
(People v. Bohannon (2000) 82 Cal.App.4th 798, 808-809, disapproved on other grounds
by People v. Zambrano (2007) 41 Cal.4th 1082, 1135, fn. 13.) In that circumstance,
unless the defendant is wholly ineligible for probation, he need not demonstrate prejudice
to be entitled to remand for resentencing. (Bohannon, at p. 809; accord, People v. Leffel
(1987) 196 Cal.App.3d 1310, 1318-1319.)

       The People, citing section 1203, subdivision (e)(4), contend defendant was
statutorily ineligible for probation based on his prior felony convictions and, moreover,
argue any error in failing to permit defendant to review the probation report prior to
sentencing was harmless. Contrary to the People’s contention, a person who has two or
more felony convictions is not wholly ineligible for probation, but is presumptively
ineligible “[e]xcept in unusual cases where the interests of justice would best be served if
the person is granted probation . . . .” (§ 1203, subd. (e)(4).) However, defendant did not
raise an objection based on failure to have received the probation report until after the
court had already ruled on the Romero motion and pronounced the sentence and, when
defendant did object, the court continued the hearing to impose sentencing at a later date,
though it did not continue the hearing on the Romero motion. Nonetheless, because we
are remanding the matter for resentencing before the judge who took the plea, including
hearing defendant’s Romero motion, we need not decide whether the failure to provide
the probation report prior to the April 2014 sentencing hearing violated defendant’s due
process or if that claim was forfeited by defendant’s failure to timely object.

                                      DISPOSITION

       The matter is remanded to the trial court for resentencing (including a
determination whether to strike defendant’s prior strike conviction) before the judge who



                                              7
took defendant’s plea if possible or, if not, to permit defendant to be resentenced by a
new judge or to withdraw his plea.




                                                        BUTZ                  , J.



We concur:



      BLEASE                , Acting P. J.



      HULL                  , J.




                                             8
