Filed 7/13/15 P. v. Roggero CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F067482
         Plaintiff and Respondent,
                                                                            (Super. Ct. Nos. CRM023445,
                   v.                                                       CRM022958, & CRM021351)

ANDREW GARDNER ROGGERO,
                                                                                         OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Merced County. Donald J.
Proietti and Mark Bacciarini, Judges.†
         John Doyle, under appointment by the Court of Appeal, for Defendant and
Appellant.


*        Before Franson, Acting P.J., Peña, J. and Smith, J.
†      Judge Proietti presided over appellant’s change of plea hearing in which he
admitted most of the allegations in two criminal actions. Judge Bacciarini presided over
appellant’s jury trial for an arson allegation and sentenced him.
       Kamala D. Harris, Attorney General, Dane R. Gillette and Gerald A. Engler, Chief
Assistant Attorneys General, Michael P. Farrell, Senior Assistant Attorney General,
Daniel B. Bernstein and Alice Su, Deputy Attorneys General, for Plaintiff and
Respondent.
                                          -ooOoo-
                              PROCEDURAL SUMMARY
       Appellant, Andrew Gardner Roggero, was charged in a second amended
information filed on November 14, 2012, with second degree burglary (Pen. Code, 1
§ 459, count 1), two counts of grand theft (§ 487, subd. (a), counts 2 & 3), arson (§ 451,
subd. (d), count 4), vehicle theft (Veh. Code, § 10851, subd. (a), count 5), and receiving
stolen property (Pen. Code, § 496, subd. (a), count 6). The second amended information
further alleged that appellant committed the offenses while released on bail (§ 12022.1,
subd. (b)) and was eligible for two prior prison term enhancements (§ 667.5, subd. (b)).2
       On November 14, 2012, in a hearing before Judge Proietti, appellant agreed to
admit all of the allegations in the second amended information except for the arson count,
as well as the sale of marijuana allegation in the unrelated criminal action. Judge Proietti
told appellant his indicated sentence without the arson allegation, but including all of the
admitted allegations, was eight years.




1      All further statutory references are to the Penal Code unless otherwise indicated.
2       On September 20, 2012, appellant was charged in an information in Merced
Superior Court case No. CRM022958, an unrelated action, with possession of marijuana
for sale (Health & Saf. Code, § 11359). The information further alleged that he was
eligible for two prior prison term enhancements. The instant action began as a single
grand theft allegation in criminal complaint filed in February 2012, in case No.
CRM021351. On October 11, 2012, the trial court granted the prosecutor’s motion to
consolidate this action with the possession of marijuana case and case No. CRM021351
with the instant action.

                                              2
       Appellant executed an advisement of rights, waiver, and plea form for felonies
acknowledging the consequences of his plea and his constitutional rights pursuant to
Boykin v. Alabama (1969) 395 U.S. 238 and In re Tahl (1969) 1 Cal.3d 122. Appellant
waived his constitutional rights and agreed to admit all of the allegations against him in
the two pending criminal actions except for the arson allegation. Appellant executed a
change of plea form in the instant action as well as the sale of marijuana case. Appellant
did not initial or agree to a waiver of his rights pursuant to People v. Arbuckle (1978) 22
Cal.3d 749 (Arbuckle) in either plea form. The prosecutor did not sign the plea form and
lodged her objection to the trial court taking appellant’s plea. Judge Proietti informed
appellant that he would “need to be the judge who imposes sentence,” there was no
guarantee appellant would receive the indicated sentence, and there would be no
Arbuckle waiver. The court established a factual basis for the plea and appellant pled no
contest to the allegations in both cases except for the arson allegation in count 4.
       A jury trial on the arson allegation began on January 23, 2013, presided over by
Judge Bacciarini. At the close of the prosecution’s case, the trial court denied appellant’s
motion for a judgment of acquittal pursuant to section 1118.1. The jury convicted
appellant of arson on January 25, 2013.
       On April 30, 2013, Judge Bacciarini sentenced appellant to the upper term of three
years on count 1. The court sentenced appellant to consecutive sentences of eight months
(one third the midterm) on each of counts 3, 4, and 5. The court sentenced appellant to a
consecutive sentence of eight months (one third the midterm) in case No. CRM022958.
The court stayed appellant’s sentences on counts 2 and 6 pursuant to section 654. The
court imposed consecutive sentences of two years for the on-bail enhancement and one
year for each of the two prior prison term enhancements. Appellant’s total prison term is
nine years eight months.



                                              3
       Appellant was awarded actual custody credits of 407 days, conduct credits of 406
days, and total custody credits of 813 days. Judge Bacciarini imposed a restitution fine of
$2,520 and direct victim restitution of $24,640. Defense counsel then argued to the court
that there was a plea bargain for seven years four months on everything but the arson
charge.3 The court informed counsel there was no plea bargain between the defense and
the prosecution and appellant had pled straight up to all of the pending allegations except
the arson charge. The court noted that Judge Proietti made no sentencing guarantee and
appellant’s recidivism supported the upper term on count 1. When defense counsel told
the court he wanted to make a motion for the defendant to withdraw his plea, the court
found it lost jurisdiction and denied the motion. Judge Bacciarini later denied appellant’s
motion for a certificate of probable cause to challenge the plea agreement.
       Appellant contends the trial court erred in denying his acquittal motion on the
arson allegation. We disagree and affirm the judgment. In supplemental briefing,
appellant further contends that the sentencing judge failed to adhere to the terms of the
plea agreement and he was sentenced by the wrong judge in violation of Arbuckle. We
find merit to appellant’s Arbuckle argument.
                                          FACTS
Prosecution Case
       On February 10, 2012, Bill Cook, who worked as the operations manager for
Wilbur-Ellis Company in Merced County, was notified that the company had been
burglarized.4 A Freightliner truck that was stolen was tracked by computer using its
global positioning system (GPS) to appellant’s address. Cook knew appellant’s address.



3      Counsel forgot to add the eight month sentence for the marijuana conviction in the
unrelated criminal action.
4      Further date references are to the year 2012.

                                             4
       The company uses GPS systems for its tractors to plow straight rows in fields.
Part of the tractor GPS was made of metal. A GPS for a tractor was also stolen. Other
pieces of farm equipment that belonged to Wilbur-Ellis, including fertilizer knives and
clamps, a tool bar, and the bay station base of a GPS antenna that sits on the ground, were
retrieved from Atwater Iron & Metal. Other parts of the GPS antenna were also found.
Cook retrieved only some of the property that was stolen. The rest already had been cut
up. Approximately 20 gallons of fuel was also stolen.
       Timothy Warner worked as ranch coordinator for Wilbur-Ellis and was
responsible for dispatching the company’s trucks. Warner explained that the GPS for the
Freightliner truck placed it at 897 Roosevelt Road in El Nido at 4:30 a.m. the morning of
the burglary.
       Merced County Sheriff’s Deputy Herman Prock was one of the deputies who
investigated the burglary and photographed a shoe impression left on the Wilbur-Ellis
property.5 This photograph was admitted as People’s exhibit 108. Detective Erick
Macias went to 897 Roosevelt Road the day of the burglary but there was no residence
there. The closest residence was appellant’s home at 923 Roosevelt Road in El Nido.
Macias found tire impressions leading up to appellant’s house that were consistent with a
Freightliner. The Freightliner, however, was no longer at appellant’s residence and was
found at another location.
       Macias received a search warrant for appellant’s home and executed it that
afternoon. While searching appellant’s bedroom, Macias came across black tennis shoes
with a V pattern on the tread. Photographs of the shoes, including the V pattern on the
tread were admitted as People’s exhibits 122 and 124. Macias also found a sweatshirt
that smelled like diesel fuel. Macias described the bedroom as messy and a pigsty.

5     All references to law enforcement are to deputies and detectives of the Merced
County Sheriff’s Department.

                                            5
There were other bedrooms in the home but appellant’s bedroom appeared to be the one
being lived in and the clothing appeared to belong to a man. There was no women’s
clothing in the room Macias believed belonged to appellant.
       Although Macias thought he probably saw the burn pile, or burn pit, while
executing the search warrant, he did not think to actually check it on February 10.
Macias did not see smoke or active burning on the appellant’s property when executing
the search warrant. Appellant denied being at Atwater Iron & Metal. Appellant
identified the residence on Roosevelt as his and said he had been living there and also in
his father’s house on Gettysburg in Merced. Appellant identified all of the items in the
Roosevelt residence as belonging to him.
       Philip Toews worked as the purchasing manager for Atwater Iron & Metal, a scrap
metal recycling business. At 7:30 a.m. on February 10, appellant arrived at the business
with Eugene Leonardo in a white truck to recycle some items. Metal transactions require
identification. Appellant did not want to use his own identification because he said it was
expired, so Leonardo used his identification. Toews had appellant and Leonardo go out
to unload the metal. Because law enforcement had contacted Toews that there was an
alert for Leonardo, Toews contacted the sheriff’s department.
       Detective Roy Tighe received Toews’s call at 7:35 a.m. on February 10. On
February 14, Toews sent pictures by email to Tighe of the property brought by appellant
and Leonardo four days earlier. Tighe explained that recyclers prefer copper without
insulation on it because “bright and shiny copper” is sold by the pound and “brings a
higher dollar value because the recycler doesn’t have to clean any of that material up”
before sending it off. Recyclers either strip the insulation off the wire by slicing it with
some type of razor blade, pull it off, or burn it.
       Tighe and Macias went back to appellant’s residence and met Lorna Morehouse
there. Morehouse was also known to recycle metal and was appellant’s girlfriend.

                                               6
Macias learned that Morehouse had been taking appellant to recycling locations and
recycling material in her name. When the detectives asked Morehouse if she knew
anything about the tractor GPS, she initially said that she did not know anything about it.
Later, Morehouse told the detectives that they should check the bushes or the burn pit.
Morehouse showed the detectives the burn pile. Tighe and Macias dug into the burn pile
and found the GPS unit.
       Tighe did not immediately recognize the object as a GPS and got completely dirty
handling the burnt items. There was no active fire in the burn pit. One of the items in the
pile, however, had some type of antenna looking device and the detectives thought it
might be part of the GPS. Photographs of the appellant’s property, the burn pit, and
objects in the burn pile were admitted into evidence and shown to the jury.
       People’s exhibit 111 depicted part of the GPS device found by the detectives.
Tighe described it being with or underneath other stuff that was burnt in the burn pile.
There were burnt cables on the GPS, and areas where the insulation had not burned away.
There were other cables and insulation on the GPS that had not been completely burned
off.
       Macias prepared a property inventory sheet showing that the GPS was stolen and
recovered, meaning that it had been located. According to Macias, the GPS was under
debris in the burn pile and was not really buried. Macias and Tighe did not have to dig
very deep with a shovel or a pitchfork to find it. Macias looked for a serial number on
the GPS, but it was hard to locate “with the way it was destroyed.” The parties stipulated
to the jury that appellant was convicted of the theft offenses referred to by the witnesses
during the trial.
Defense Case
       Appellant’s father, Anthony Roggero (Anthony), testified that appellant lived with
him on Gettysburg Avenue in Merced for the past few years, including during February

                                             7
2012. No one was living at 923 Roosevelt Road in El Nido, though people, including
Anthony and appellant, occasionally stayed there. In late 2011 or early 2012, Anthony
and his son dismantled a mobile home on the Roosevelt property and recycled it. Some
parts of the mobile home, including electrical wiring, were left over and physically on the
ranch.
         There were two burn piles on the ranch. Anthony explained he had a burn permit
and used the pits to burn tumbleweeds, clippings, and ditch bank grass, but nothing else
was burned in the burn piles. There was a lot of material in the burn pits, but Anthony
had not burned anything recently because there were no burn days in January and
February. Anthony was the only person authorized to burn on the ranch and he never
burned metal or wire and had never seen anyone else do so on the property.
         Anthony was not on the ranch on February 10. Appellant was arrested on
February 11. Anthony was not at the ranch that day. Anthony had been on the ranch on
the Tuesday or Wednesday following the Super Bowl, which was played on February 5.
The door to the house was broken. Anthony went to the property on Tuesday the seventh
or Wednesday the eighth. Anthony reported the incident with the door to the ranch house
within a day or two after he noticed it. Anthony was told by investigators that the door
was broken down during the execution of a search warrant.
Rebuttal Testimony
         John McLaughlin lived near 923 Roosevelt Road and was familiar with the
property. McLaughlin smelled fires on that property and remembered seeing black
smoke and the smell of plastic, burnt wire. McLaughlin explained that insulation on
electrical wire has a distinct smell he will never forget.
                        REVIEW OF SECTION 1118.1 MOTION
         Appellant contends the trial court erred in denying his section 1118.1 motion for
acquittal on the arson allegation. Appellant argues there is reasonable doubt that he

                                              8
committed the arson because Morehouse and Leonardo were also involved in helping him
sell the property he had stolen. We disagree.
       When a defendant brings a motion pursuant to section 1118.1, the trial court
applies the same standard as an appellate court reviewing the sufficiency of the evidence.
The court must consider whether there is substantial evidence of each element of the
charged offense sufficient for a reasonable trier of fact to find the defendant guilty
beyond a reasonable doubt. We review the trial court’s ruling independently. (People v.
Harris (2008) 43 Cal.4th 1269, 1286; People v. Cole (2004) 33 Cal.4th 1158, 1212-
1213.) The same standard applies in cases where the prosecution relies primarily on
sufficiency of the evidence. (People v. Young (2005) 34 Cal.4th 1149, 1175.)
       Under section 451, a person is guilty of arson when he or she willfully and
maliciously sets fire to or burns, or causes to be burned, any structure or property. Arson
is a general intent crime requiring intent to willfully commit the crime of setting on fire
under such circumstances that the direct, natural, and highly probable consequences
would be for the burning of the structure or property. (People v. Atkins (2001) 25 Cal.4th
76, 88-89.)
       The intent to which one acts is rarely susceptible of direct proof and must be
inferred from the facts and circumstances surrounding the offense. (People v. Massie
(2006) 142 Cal.App.4th 365, 371.) Circumstantial evidence may be relied upon to
establish culpability for arson. Significant factors include prior presence in the building,
or in this case the property, evidence of intentional incendiary cause, lack of evidence
showing natural or accidental cause, and more than one fire with temporal or spatial
proximity. (People v. Belton (1980) 105 Cal.App.3d 376, 379-380.)
       In assessing a claim of insufficiency of evidence, the reviewing court’s task is to
review the entire record in the light most favorable to the judgment to determine whether
it contains substantial evidence -- evidence that is reasonable, credible, and of solid value

                                              9
such that a reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt. The standard of review is the same in cases in which the prosecution relies mainly
on circumstantial evidence. It is the jury, not the appellate court, which must be
convinced of a defendant’s guilt beyond a reasonable doubt. If the circumstances
reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the
circumstances might also reasonably be reconciled with a contrary finding does not
warrant a reversal of the judgment. (People v. Rodriguez (1999) 20 Cal.4th 1, 11; see
also Jackson v. Virginia (1979) 443 U.S. 307, 317-320 and People v. Johnson (1980) 26
Cal.3d 557, 578.)
       In reviewing a challenge to the sufficiency of the evidence, appellate courts do not
determine the facts. We examine the record as a whole in the light most favorable to the
judgment and presume the existence of every fact the trier of fact could reasonably
deduce from the evidence in support of the judgment. (People v. Guerra (2006) 37
Cal.4th 1067, 1129 [questioned on another ground in People v. Rundle (2008) 43 Cal.4th
76, 151].) Unless the testimony of a single witness is physically impossible or inherently
improbable, it is sufficient for a conviction. (Evid. Code, § 411; People v. Young (2005)
34 Cal.4th 1149, 1181.)
       An appellate court must accept logical inferences that the jury might have drawn
from circumstantial evidence. (People v. Maury (2003) 30 Cal.4th 342, 396.) Before
setting aside the judgment of the trial court for insufficiency of the evidence, it must
clearly appear that there was no hypothesis whatever upon which there was substantial
evidence to support the verdict. (People v. Conners (2008) 168 Cal.App.4th 443, 453;
People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.)
       Appellant argues that his father claimed ownership of 923 Roosevelt Road in El
Nido, he lived in Merced, he was arrested on February 11 and could not have burned the
GPS while in jail, and the burn pit had not been recently used. Appellant argues that

                                              10
Morehouse and Leonardo were involved in assisting him with the sale of stolen items to
recyclers and could have been responsible for the arson.
       Early on the morning of February 10, a Freightliner truck, farm equipment, diesel
fuel, and a GPS for a tractor were stolen from the Wilbur-Ellis Company in Merced
County. The operations manager located the position of the truck by its own GPS system
next to appellant’s property at 923 Roosevelt Road in El Nido and that it had been stolen
about 4:30 that morning.
       Detective Macias went to the adjoining property, did not find the Freightliner, but
saw tire tracks consistent with a Freightliner at 923 Roosevelt Road. After executing a
search warrant at the Roosevelt property, officers found a bedroom that appeared to be
occupied by a male. Officers found a pair of tennis shoes with a tread pattern consistent
with a shoe print impression made at the Wilbur-Ellis property, and clothing that smelled
like diesel fuel which had been stolen from Wilbur-Ellis that day.
       At 7:30 a.m. on February 10, appellant and Leonardo brought property from the
Wilbur-Ellis theft for recycling at Atwater Iron & Metal. The purchasing manager for the
recycling company notified the sheriff’s department at 7:35 the morning of February 10,
that appellant and Leonardo were present at the business recycling metal. Some of the
items they recycled were stolen from Wilbur-Ellis, including part of an antenna system
for a GPS. Appellant would not use his identification during the transaction but relied on
Leonardo’s identification.
       Although Detective Macias did not notice whether there was a burn pit on the 923
Roosevelt property on February 10, he did not think at that time to look for one. Four
days later, Morehouse actually told the detectives about the location of the burn pit as
they were questioning her about the possible location of the tractor GPS. Detectives
Macias and Tighe located a burn pit on the property with a GPS that had been burned and
disfigured toward the top of the burn pit. In Tighe’s experience, recyclers strip off or

                                             11
burn off the insulation on metal and copper wire because it is more valuable that way.
Although appellant’s father denied conducting any burns at 923 Roosevelt in early 2012,
and Detective Macias did not notice a recent fire, a neighbor testified that he smelled
burning insulation more than once on the property.
       Freightliner tire tracks and a foot impression that matched appellant’s tennis shoes
were left behind on the Wilbur-Ellis property. The Freightliner was parked next to
appellant’s property. Appellant recycled property actually stolen the day appellant
recycled it.   Clothing in appellant’s bedroom smelled like diesel fuel. Appellant
admitted to the detectives that he lived at 923 Roosevelt Road and the property at the
residence was his. The burned and missing tractor GPS was located in a burn pit on
appellant’s property. The trial court and the jury could reasonably infer from these facts
that appellant possessed and controlled the items found in the burn pit.
       Nearly every piece of evidence presented by the prosecution at trial linked
appellant to the burn pit and the burned GPS unit, including appellant’s admission to the
investigating detectives that he lived at 923 Roosevelt Road and the property in the
residence belonged to him. Appellant, for instance, did not present his identification at
the recycling business but had Leonardo do so.
       Although the burn pit was not discovered until four days after the theft of Wilbur-
Ellis property, Detective Macias explained that he did not think to look for a burn pit on
appellant’s property during the execution of the search warrant on February 10. Had the
GPS been burned on February 10, a day prior to appellant’s arrest and incarceration, the
fire would likely be cold four days later when the GPS was found. Contrary to testimony
from appellant’s father, a neighbor testified that he could smell burning insulation and
saw black smoke emanating from burn pits on appellant’s property. Detective Tighe
testified that burning off insulation from wire and metal makes it more valuable to



                                            12
recyclers. The jury could reasonably infer that appellant burned the GPS to destroy the
trail of evidence linking him to the burglaries as well as to harvest recyclable metal.
       Appellant has marshaled the exculpatory evidence from the trial.6 On appeal,
however, we do not review the evidence de novo. We give deference to the express and
implied factual findings of the jury and to the trial court’s review of the evidence in the
appellant’s motion for acquittal.
       The prosecution’s evidence is understandably circumstantial because no
independent witness watched the tractor GPS being burned. There was substantial
evidence in this case from which the jury could reasonably infer that appellant’s theft of
farm equipment property and diesel fuel from Wilbur-Ellis were linked to the arson and
that appellant was the perpetrator of the arson. The trial court did not err in denying
appellant’s motion for acquittal. The jury was entitled to give the evidence, including
exculpatory defense evidence, the weight it believed the evidence deserved. Viewed in
the light most favorable to the prosecution’s case, the evidence presented was sufficient
and substantial enough to establish appellant’s guilt for committing arson beyond a
reasonable doubt.
                                    ARBUCKLE ERROR
       Appellant contends that his plea agreement was violated when Judge Bacciarini
sentenced him to a longer prison term of nine years eight months rather than Judge
Proietti’s indicated sentence of eight years eight months, which included Judge Proietti’s
indicated sentence for arson. Appellant further contends Judge Bacciarini violated the
rule announced in Arbuckle by sentencing him rather than having Judge Proietti impose
sentence. We find merit in appellant’s allegation of Arbuckle error.



6      We note that appellant’s acquittal motion was filed prior to the case presented by
the defense.

                                             13
       The parties’ supplemental briefs present lengthy argument concerning whether
Judge Bacciarini properly exercised his sentencing discretion and whether he still
retained jurisdiction after imposing sentence to entertain a motion by appellant to
withdraw his plea. We find, however, that these issues are superseded by the holding of
Arbuckle as discussed by the appellant in his addendum to the supplemental brief.
       The California Supreme Court held in Arbuckle that where a plea bargain is
entered with the expectation the judge taking the plea will also sentence the defendant,
essentially as a term of the bargain, it is error for another judge to sentence the defendant.
Arbuckle noted that the judge who took the defendant’s plea repeatedly used the personal
pronoun when referring to sentencing as the judge took the defendant’s change of plea.
Arbuckle found that the propensity in sentencing “demonstrated by a particular judge
[was] an inherently significant factor in the defendant’s decision to enter a guilty plea”
and the judgment was reversed for further proceedings. (Arbuckle, supra, 22 Cal.3d at
pp. 756-757.)
       The People argue that Arbuckle is inapplicable in this case because here there was
not a negotiated plea bargain between the parties, the prosecutor objected to the plea
agreement, and appellant failed to object to Judge Bacciarini sentencing him. In People
v. Clancey (2013) 56 Cal.4th 562 (Clancey), the California Supreme Court reviewed the
circumstances in which a trial court enters into an improper plea agreement without the
consent of the prosecutor who acts as the representative of the executive branch of
government. (Id. at pp. 569-588.)
       Our high court’s analysis in Clancey started with the foundational point that the
charging function is entrusted to the executive. Courts have no authority to substitute
themselves as the People’s representative in the negotiation process under the guise of
plea bargaining to agree to a disposition of a case over the prosecutor’s objection.
(Clancey, supra, 56 Cal.4th at p. 570.) Where, however, the defendant pleads guilty to

                                             14
all of the charges leaving only the pronouncement of judgment and sentencing, there is
no requirement for the People to consent to a guilty plea. In such a circumstance, the
court may indicate its proposed sentence with confirmation of a given set of facts,
“‘irrespective of whether guilt is adjudicated at trial or admitted by plea.’” (Ibid.)
       The prosecutor objected to the court’s indicated sentence in Clancey because,
outside of agreement by the People, the trial court offered to strike a prior serious felony
allegations as well as on-bail enhancements, and impose a reduced sentence. (Clancey,
supra, 56 Cal.4th at pp. 568-569.) Here, Judge Proietti accepted appellant’s plea of no
contest to all of the counts and all of the allegations in the theft case and the sale of
marijuana case, except for the arson allegation. Judge Proietti did not dismiss the arson
allegation, appellant agreed to have a trial on that count.
       Unlike the prosecutor in Clancey who did not agree to the dismissal of strikes
allegations and on-bail enhancements, the prosecutor here had no count or enhancement
dismissed when Judge Proietti accepted appellant’s no contest plea. The one count that
was not resolved by the plea agreement was the arson allegation, but this count was set
for trial and was not dismissed. The People do not currently argue that Judge Proietti
entered into an improper plea agreement with appellant in violation of the process set
forth in Clancey and we find no violation by Judge Proietti of the limitations on judicial
plea agreements as examined in Clancey.
       Because appellant admitted or was tried on every allegation in the pending
criminal actions against him, there was no requirement for the People to consent to
appellant’s no contest plea and Judge Proietti did not err in indicating what his sentence
would be depending on the confirmation of a given set of facts. As explained in Clancey,
the circumstances of the instant no contest pleas and admissions by appellant constituted
an exception to the requirement that the People affirm the plea agreement. The plea
agreement reached by appellant and Judge Proietti was equivalent to a plea bargain

                                              15
between a defendant and the prosecutor. An express term of the agreement was that
Judge Proietti sentence appellant. Although the prosecutor objected to a plea agreement,
she did not object to Judge Proietti’s announcement that he would have to sentence
appellant.
       For these reasons, we find the Arbuckle rule applicable to the instant action. We
therefore reject the People’s assertion that there is no Arbuckle issue here because there
was no plea bargain between the parties and appellant has relinquished his right to raise
this issue on appeal.
       Where, as here, there were no dismissed allegations, it appears that an important
condition to appellant admitting the allegations was that he be sentenced by Judge
Proietti. In accepting appellant’s plea to the theft offenses, sale of marijuana allegation,
and the alleged enhancements, Judge Proietti noted that the two plea forms were executed
by appellant and they indicated “there will be no Arbuckle Waiver.” Judge Proietti
further stated, “So this court will need to be the judge who imposes the sentence.” This
statement was equivalent to use of the personal pronoun in setting forth who would
sentence appellant. We again observe that although the prosecutor objected to the taking
of appellant’s plea, she did not specifically object to Judge Proietti’s statement that he
would preside over the sentencing hearing.
       From the plea forms executed by appellant and Judge Proietti’s statement that he
would need to be the judge who imposes sentence, we conclude that appellant was
induced to admit all of the allegations against him, except for the arson count, because he
anticipated Judge Proietti would impose sentence. The plea by appellant was entered in
expectation of, and reliance upon, a sentence being imposed by the same judicial officer.7


7       The parties and Judge Proietti apparently contemplated that Judge Proietti would
try the arson allegation, although he noted that the time set for a trial of the arson count
potentially conflicted with another scheduled trial.

                                             16
(See In re Mark L. (1983) 34 Cal.3d 171, 177.) Appellant did not expressly or impliedly
waive his Arbuckle right at the change of plea hearing.
       The People further argue that appellant waived his right to have Judge Proietti
sentence him by failing to object to Judge Bacciarini conducting the sentencing hearing.
In People v. Horn (1989) 213 Cal.App.3d 701 (Horn), this court found that mere silence
alone does not constitute waiver of the right to enforce an implied term of an agreement.
(Id. at p. 709.) Horn reasoned, however, that the right to be sentenced by a particular
judge is not automatically assumed and whether it is express or implied, there must be
affirmative evidence in the record to show it is a term of the plea agreement. (Id. at pp.
704-710.) The court in Horn found that a defendant’s failure to object to a different
judge sentencing him than the judge who took his plea, could constitute waiver where
there was no indication in the record that being sentenced by a particular judge was a
term of the plea agreement. (Id. at p. 710.)
       In the instant action, in contrast to Horn, there is express and affirmative evidence
that a condition of appellant entering his no contest pleas and admitting the alleged
enhancements was being sentenced by Judge Proietti. Appellant’s failure to raise this
point to Judge Bacciarini, therefore, did not constitute a waiver of his Arbuckle right.
Accordingly, Judge Bacciarini’s sentence is vacated and the matter is remanded for
resentencing.8 We note that Judge Proietti’s sentence was an indicated sentence, not a
guarantee of a particular term in state prison.




8      Because we find Arbuckle error, we do not reach the issue discussed by both
parties that Judge Bacciarini erred in denying appellant an opportunity to withdraw his
plea or the effect of appellant not being advised pursuant to section 1192.5. We observe
that absent a section 1192.5 admonition, courts cannot assume a defendant knew he or
she had the right to withdraw a plea. (People v. Walker (1991) 54 Cal.3d 1013, 1026
[overruled on another ground in People v. Villalobos (2012) 54 Cal.4th 177, 183].)

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                                    DISPOSITION
      The appellant’s convictions are affirmed. The appellant’s sentence is vacated and
the case remanded to Judge Proietti to conduct a new sentencing hearing.




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