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Name: People v. McIntosh
Case #: A122142
Court: CA Court of Appeal
District 1 DCA
Division: 5
Opinion Date: 09/08/2009

Where sentencing discretion is constrained by terms of the plea bargain and the sentencing judge becomes unavailable for reasons beyond the control of the court or prosecution, defendant is not entitled to withdraw his plea, absent a showing that individualized judicial sentencing discretion was a material element of the plea agreement. Appellant entered into a plea agreement whereby it was agreed that he would initially be granted probation on condition he serve a year in jail, have no contact with the victim, register as a sex offender, and comply with other specified conditions of probation. Thereafter, the visiting judge, who took the plea became unavailable as his assignment was terminated. Appellant attempted to withdraw his plea but, following an evidentiary hearing, the trial court denied the motion. The appellate court upheld the denial. As a general principle, whenever a judge accepts a plea bargain and retains sentencing discretion under the terms of the agreement, an implied term of the agreement is that sentence will be imposed by that judge. In view of the range of sentencing dispositions available, propensity in sentencing demonstrated by a particular judge is an inherently significant factor in defendant’s decision to change his plea. (People v. Arbuckle (1978) 22 Cal.3d 749.) Here, the appellate court noted that Arbuckle was premised on contract principles and only impossibility of performance of a material term of the contract will excuse the other party from performing. Where sentencing is circumscribed by the terms of the agreement, as in the instant case, unless defendant can show otherwise, the exercise by a different judge of the limited sentencing options remaining available outside the terms of the agreement, is not a sufficiently material factor under contract principles to permit appellant to withdraw from the agreement.