P. v. Wilson

Filed 6/7/06 P. v. Wilson CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Shasta)

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Defendant Lisa Marie Wilson admitted violating probation and was sentenced to two years in prison followed by three years on parole, a $400 restitution fine (Pen. Code, § 1202.4, subd. (b))^[1], a $400 parole revocation restitution fine (§ 1202.45), and 135 days of custody credit. On appeal, defendant asserts that her sentencing violated People v. Arbuckle (1978) 22 Cal.3d 749 (Arbuckle), because she was not sentenced by the judge who accepted her admission to violating probation. We reject defendant's contention and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Since this case involves a guilty plea, the facts of the underlying offense are taken from the police report. On January 31, 2003, defendant took her mother's 2002 Ford Focus station wagon from her mother's residence. Two days later, the station wagon was found undamaged at the house of defendant's cousin.

On June 17, 2003, defendant entered into a plea agreement, agreeing to plead guilty to vehicle theft (Veh. Code, § 10851) and admitted two misdemeanor probation violations. Her guilty plea included a waiver of her right to be sentenced by the judge who took her guilty plea. Defendant was sentenced to three years' formal probation for the vehicle theft along with a 37-day jail sentence with 37 days of custody credit. She was also sentenced to serve 90 days for the misdemeanor probation violations, with 37 days of custody credit. Judge Curle pronounced the sentence.

On September 19, 2003, probation revocation proceedings were initiated on the grounds that she possessed drug paraphernalia and that she left the county without her probation officer's consent. Defendant admitted the allegations, and probation was reinstated subject to her serving 60 days in jail with 12 days of custody credit. The admission and sentence were both taken by Judge Curle.

The revocation proceedings that form the basis of this appeal were initiated on December 20, 2004, this time alleging petty theft against a convenience store (§ 666), that defendant failed to submit a written report to her probation officer, and possession of a stolen credit card (§ 496, subd. (a)). On January 19, 2005, defendant admitted to violating probation and pled guilty to the petty theft and stolen credit card offenses. The admission and plea were taken by Judge Curle, and there is no record of an Arbuckle waiver. (Arbuckle, supra, 22 Cal.3d 749.)

On August 1, 2005, defendant was sentenced on the probation violation by Judge Harvey. In addition to the sentence mentioned above, defendant was also sentenced to 77 days for the petty theft violation^[2] with 77 days custody credit and a $100 fine. Defense counsel objected to Judge Harvey's sentencing defendant instead of Judge Curle, claiming that this violated Arbuckle, supra, 22 Cal.3d 749. Counsel's reasons for preferring Judge Curle were his familiarity with the case, and that he had made an indicated sentence, which counsel thought was beneficial to defendant. Defense counsel noted that the indicated sentence was not on the record, but told the court that Judge Curle indicated a two-year sentence to counsel at an earlier proceeding. The sentencing court noted that in the supplemental probation report â€