Filed 1/6/20 P. v. Bautista CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

FRANCISCO JUAQUIN BAUTISTA,

Defendant and Appellant.

E070736

(Super.Ct.No. RIF1703617)

OPINION

APPEAL from the Superior Court of Riverside County. Arjuna (Vic) Saraydarian, Judge. (Retired Judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.). Affirmed in part, reversed in part with directions.

Jason L. Jones, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Warren J. Williams, Deputy Attorneys General, for Plaintiff and Respondent.

I.

INTRODUCTION

Defendant and appellant, Francisco Bautista’s girlfriend, E.A. (Mother), found defendant in her bedroom walk-in closet with her 14-year-old daughter, A.A. Believing defendant had been sexually abusing A.A., Mother threw defendant out of her home. The next day defendant returned, uninvited, and drugged, beat, and forced Mother to perform various sex acts with him.

A jury convicted defendant of domestic violence causing traumatic condition (Pen. Code, § 273.5, subd. (a); count 1); oral copulation by force or fear (§ 288a, subd. (c)(3); count 3); rape (§ 261, subd. (a)(2); count 4); false imprisonment (§ 236; count 5); attempted lewd and lascivious act on a child 14 or 15 years old (§§ 664, 288, subd. (c)(1); count 6); misdemeanor annoying or molesting a child under 18 (§ 647.6, subd. (a); count 7); and misdemeanor resisting arrest (§ 148, subd. (a)(1); count 8). The jury also found true the great bodily injury allegation on count 1 (§ 12022.7, subd. (e)).

Defendant admitted his prior convictions, which included two prior serious felony convictions (§ 667, subd. (a)), two prior strikes (§§ 667, subds. (c) and (e)(2)(A)), and one prior prison term (§ 667.5, subd. (b)). The jury found defendant not guilty of count 2, domestic violence causing traumatic condition (§ 273.5, subd. (a)). During sentencing, the court denied defendant’s oral motion to strike his strike priors, and sentenced him to 134 years to life in prison. Specifically, the court imposed consecutive 25-years-to-life terms for counts 1, 3, and 4, plus two consecutive five-year terms on each of the three counts. Defendant received 25 years to life on count 6, consecutive to count 5. The court sentenced defendant to a determinate mid-term of four years on count 5, and concurrent terms of 310 days on each of counts 7 and 8 (misdemeanors).

Defendant appeals his sentence, arguing the sentencing court abused its discretion by not continuing defendant’s sentencing hearing so that the same judge who conducted his trial could sentence him, instead of a different judge. Defendant also contends this case must be remanded under Senate Bill No. 1393 (2017-2018 Reg. Sess.) (SB 1393), to allow the trial court to exercise its discretion to strike his prior serious felony enhancements. In addition, defendant contends his sentence on count 7 must be stayed under section 654, and the probation sentence report, booking, and restitution fees must be stricken because of defendant’s inability to pay the fees.

We conclude the sentencing court abused its discretion by not continuing defendant’s sentencing hearing to allow defendant to be sentenced by the trial judge. Given that the matter must be remanded for total resentencing, the other sentencing issues raised by defendant are rendered moot. Defendant’s sentence is thus reversed and the matter is remanded for resentencing, with the judgment in all other respects affirmed.

II.

FACTS

Mother has three children, including A.A., who is the oldest (born in 2002). At the time of defendant’s charged crimes, in September 2017, Mother was no longer in a relationship with the children’s father. Mother had divorced him, moved out of the family home, and begun seeing defendant. During Mother and defendant’s two months together, defendant began staying at Mother’s home.

A couple of days before the incident on September 14, 2017, Mother noticed defendant started talking to himself and acting “weird.” A day or two before the incident, defendant slapped her in the face for no apparent reason and then apologized. Defendant told Mother he was “a black man” and his father was Marvin Gaye.

On September 14, 2017, defendant told Mother he wanted to be intimate with her. Mother agreed but told defendant to wait because her children were coming home from school. Defendant agreed and told Mother to go outside and wait for A.A. When A.A. came home and went inside with Mother, defendant asked A.A. to come upstairs and speak with him. Mother and A.A. went upstairs. A.A. went to speak with defendant while Mother went to her son’s room to hang up some clothing.

Defendant told A.A. he wanted to show her something. Defendant walked into the walk-in closet in Mother’s bedroom. A.A. followed him in. Defendant told A.A. to sit down on a small chair in the corner of the closet. As defendant stood over A.A., he began unzipping his pants. A.A. turned away, put her hands in front of her face, and repeatedly said “no.” A.A. testified that she might have seen the tip of defendant’s penis. Defendant asked her to suck his penis.

Mother went to her bedroom to find out why defendant wanted to talk to A.A. but did not see him or A.A. in the bedroom. She opened the closet door and found A.A. sitting on a chair in the corner, looking frightened. Defendant was in the closet entryway, zipping up his pants. Mother pulled A.A. out of the closet and punched defendant in the head, back, and chest. While Mother was punching defendant, he repeatedly said he was sorry and did not fight back. Mother told him to get out of the house and never return. Mother could not call the police because defendant had her phone. After defendant left Mother’s house, Mother locked her home. Defendant rang her doorbell throughout the evening and slept across the street on a neighbor’s driveway.

The following morning, on September 15, 2017, after Mother dropped the children off at school, she found defendant in her home. Mother asked him to leave but he refused. He remained there the rest of the day, during which he repeatedly told Mother, “‘I’m your husband. You’re my wife. Repeat it.’” Mother repeated the words many times because she did not want defendant to do anything to her.

When the children came home, Mother tried to keep things calm and kept defendant in her room until the children’s father picked up the children that evening. Defendant then made Mother perform various acts, including forcing her to take a cold shower with her clothes on. When Mother tried to get away, defendant grabbed her by the hair, held her there, and threatened her. Defendant forced Mother to orally copulate him two or three times over the course of the evening. He also forced her to have intercourse with him. Mother did not want to but was scared of defendant. Later that evening, defendant forced Mother to take two sleeping pills, when normally half a pill was enough to knock her out.

Defendant carried around a two-by-four board with a “thick, long screw” in it. Mother feared he would hit her with it, but he did not do so. Mother heard defendant arguing with himself and praying, while pacing, saying he did not want to “do it.” Then he said, “‘Okay. I’ll do it,’” and told Mother she was going to “have to go.” When Mother tried to run out of the house, defendant grabbed her, tossed her around, and threw her to the ground. Mother eventually fell asleep from the sleeping pills. Mother woke up when defendant smashed his fist into her face and she felt her face bleeding. She did not remember anything after that until a neighbor entered her home and yelled her name. The neighbor took her outside to her driveway, where she sat until an ambulance arrived.

On September 16, 2017, Officer Thomas was dispatched to Mother’s home in response to a domestic violence call. Bystanders flagged him down and told him a male (defendant) had run from Mother’s home and was down the street. Officer Thomas’s partner found defendant on the next street over. When Officer Thomas arrived, his partner was in the middle of the street with defendant, who was on all fours, sweating profusely, bloody, and panting. Defendant did not comply when ordered to go to the ground and was speaking incomprehensible words. Although defendant did not comply with any orders, he was not confrontational until he blurted out, “‘Get on your knees,’” stood up in an aggressive manner with his fists clenched, and aggressively approached the officers. Officer Thomas struck defendant in the knee. Defendant fell to the ground and was taken into custody.

The parties stipulated that defendant’s blood contained methamphetamine, amphetamine, and Benzodiazepine, and that an expert was unable to opine whether defendant was intoxicated.

Defendant testified he punched Mother in the face but denied forcing her to engage in sexual acts. Defendant stated Mother did not object to having sex with him and was not hesitant. He acknowledged he had taken drugs in the past but said it was different at the time of the incident. In the past he had heard voices but they were just mocking voices. At the time of the incident, the voices were compelling him to do things, such as call A.A. and take her into the closet. Defendant further testified the voices told him to hit Mother, and said that he was a “black man” and the son of Marvin Gaye.

Defendant said he remembered the events during the incident, but was not himself. A bad spirit, not God, was telling him what to do. Defendant explained that when the officer approached him, defendant did not have complete control over himself. His body was speaking in incomprehensible languages. Defendant said he remembered the officer telling him to get down, before the officer hit him.

III.

SENTENCING BY THE SAME JUDGE WHO TRIED DEFENDANT

Defendant contends the sentencing court abused its discretion by denying his motion to continue sentencing so that the judge who conducted his jury trial could sentence him, instead of a different judge. The People argue there was no abuse of discretion because defendant did not demonstrate good cause for a continuance. Judge Stroud was unavailable to sentence defendant because he had been reassigned to the civil court and his future availability to sentence defendant was unknown. (People v. Jacobs (2007) 156 Cal.App.4th 728, 739 (Jacobs); People v. Strunk (1995) 31 Cal.App.4th 265, 275-276, fn. 13.)

A. Procedural Background

After the court entered the jury verdicts and excused the jury on May 3, 2018, the trial judge, Judge Stroud, ordered the probation department to submit a presentence report on or before May 31, 2018. Defense counsel requested a sentencing hearing on June 8, 2018, before Judge Stroud. The prosecutor joined in defense counsel’s request. Judge Stroud stated that June 8, 2018, would be his first day assigned to civil court. He therefore did not know if he would be available to sentence defendant that day. Defense counsel acknowledged Judge Stroud likely would be busy that day and therefore requested sentencing on June 12, 2018, but noted counsel was flexible in accommodating Judge Stroud’s schedule. Judge Stroud agreed to set the sentencing hearing on June 12, 2018, adding that if he was available and could handle it, he would. Otherwise another judge would be sentencing defendant if Judge Stroud was unavailable.

Defendant’s case was then assigned to Judge Saraydarian, in Department 54, for sentencing on June 12, 2018. Judge Saraydarian began the sentencing hearing by explaining that Judge Stroud was unavailable to sentence defendant because he was completing a civil calendar that day and “will not be back.” Judge Saraydarian therefore concluded he could proceed with sentencing defendant. In response, defendant’s attorney objected to proceeding with sentencing on the following grounds: “It appears [that] there was an ambiguity as to the nature and length of Judge Stroud’s unavailability. Judge Stroud, as we’re aware, conducted the trial and our client did waive his Arbuckle rights; however, the caveat that should Judge Stroud be unavailable entirely, then the Arbuckle [waiver] would take effect. There’s ambiguity as to Judge Stroud’s unavailability and the defense is willing to wait until such time, today or a day in the future and location in the future, to avail ourselves [of] the trial court Judge Stroud.”

Judge Saraydarian stated defendant’s objection was noted for the record. Judge Saraydarian added that, according to the trial court calendar coordinator, Judge Stroud was not due to return for assignment in “this court.” Judge Saraydarian then proceeded with sentencing defendant, noting that the court had read and considered the probation report and the People’s sentencing brief. Defense counsel made an oral Romero motion to strike defendant’s prior felony conviction allegations under the “Three Strikes” law (§ 667, subds. (b)-(i), 1170.12). The People objected on the grounds defendant had an extensive criminal history, which included gang-related strikes, which were less than 10 years old. The court noted defendant’s criminal history began in 2007, with additional convictions in 2008, 2009, 2010, 2016, and 2017. The court concluded the prior convictions were within the scope and spirit of the Three Strikes law, and denied defendant’s Romero motion. The court stated the motion was denied because defendant had “too much history for me to strike the strike that was alleged in ’09.”

B. Applicable Law and Analysis

Relying on Jacobs, supra, 156 Cal.App.4th 728, defendant argues the sentencing court abused its discretion by not continuing sentencing so that Judge Stroud could sentence him. The issue here is whether, when the court denied a continuance, Judge Stroud was available to sentence defendant in the near future, even though Judge Stroud was assigned to the civil court. The record is unclear in this regard. Therefore, we conclude the record on appeal does not show good cause for a different judge to sentence defendant.

In Jacobs, the defendant argued (1) he had a right to be sentenced by the trial judge, and (2) the sentencing judge abused his discretion by refusing to grant defendant a continuance of the sentencing hearing. (Jacobs, supra, 156 Cal.App.4th at p. 731.) When the Jacobs defendant appeared for sentencing on a Wednesday, he discovered that the sentencing judge was not the judge who tried his case. The defendant objected and requested the trial judge to sentence him. The sentencing judge responded that the trial judge was not there. Defendant asked if the trial judge would be available within a reasonable period of time. The sentencing judge said he would be available the following Monday, but the sentencing judge nevertheless wanted to proceed with sentencing as scheduled. (Id. at pp. 731-732, fn. 2.)

When denying a continuance of sentencing, the sentencing judge in Jacobs stated: “‘The law clearly contemplates another judge doing the sentencing from time to time for different reasons. Judge Champlin is not here this week. We have a jail overcrowding issue which I always do my best to address whenever possible and this is one of those times. So I’ll go ahead and do the sentencing now.’” (Jacobs, supra, 156 Cal.App.4th at pp. 732-733.) The sentencing judge then sentenced defendant. (Id. at p. 733.) The Jacobs court held that, although the defendant did not have a right to be sentenced by the trial judge, under the circumstances, the court’s refusal to continue sentencing “was not in conformity with the spirit of the law, and could be said to impede or defeat the ends of justice.” (Id. at p. 731.) The Jacobs court thus reversed and remanded the case for sentencing by the trial judge. (Ibid.)

In reaching its holding, the court in Jacobs concluded that a defendant does not have a right to be sentenced by the same judge that tried the case. (Jacobs, supra, 156 Cal.App.4th at pp. 733, 736; see also, People v. Downer (1962) 57 Cal.2d 800, 816 [“It is settled that it is not error for a judge other than the one who tried a criminal case to pronounce judgment and sentence.”].) The court in Jacobs then addressed the defendant’s second argument that the sentencing judge abused his discretion by refusing to continue the sentencing hearing for three days, until the trial judge was available. (Jacobs, supra, at p. 735.) The Jacobs court acknowledged that “‘[t]he determination of whether a continuance should be granted rests within the sound discretion of the trial court. . . .’ (People v. Sakarias (2000) 22 Cal.4th 596, 646.) Absent a showing of abuse of discretion and prejudice to the defendant, the denial of a motion for continuance does not require reversal.” (Jacobs, supra, at pp. 735-736, citing People v. Samayoa (1997) 15 Cal.4th 795, 840.)

The court in Jacobs concluded the sentencing judge’s ruling denying a continuance and sentencing the defendant was not arbitrary or capricious. The Jacobs court explained: “Judge Kroyer expressed, and apparently acted upon, a legitimate concern for proceeding with the sentencing as scheduled—to help alleviate jail overcrowding. Judge Kroyer was also informed. He had read and considered the probation report. Indeed, to ensure that he had the ‘full picture of all the facts,’ Judge Kroyer inquired of counsel whether there was anything in the probation report’s statement of facts that was inconsistent with the evidence presented at trial, in response to which defense counsel identified a few discrepancies. Moreover, defendant’s counsel informed Judge Kroyer that defendant is ‘21 years old. He’s never been to prison before. This is a nonviolent crime, property crime. Apparently it was motivated because of his dependence on alcohol and drugs which isn’t necessarily a badge but is often the underlying reason for these types of offenses.” (Jacobs, supra, 156 Cal.App.4th at p. 736.)

The Jacobs court added, however, that an abuse of discretion is not limited to trial court action that is “‘whimsical, arbitrary, or capricious.’” (Jacobs, supra, 156 Cal.App.4th at p. 737.) The court explained that trial court discretion “‘is subject to the limitation of legal principles governing the subject of its action, and to reversal on appeal where no reasonable basis for the action is shown.’” (Id. at p. 738, quoting 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 358, pp. 406-407) Based on these concepts, the Jacobs court concluded that the sentencing judge’s refusal to continue the sentencing hearing briefly was an abuse of discretion. (Jacobs, supra, at p. 738.)

The Jacobs court reasoned that, while the defendant had no right to be sentenced by the trial judge, “it is well recognized that the strongly preferred procedure was for him to impose sentence.” (Jacobs, supra, 156 Cal.App.4th at p. 738.) The Jacobs court added: “We recognized this very point long ago, in People v. Cole [(1960)] 177 Cal.App.2d [458,] 460, where we noted as follows: ‘In our judgment it is normally the better procedure for the judge who tried the case and is presumably familiar with the course of the trial and the demeanor of the witnesses to act on the matter of probation and sentence, but we agree . . . that there is no error in another judge of the court performing that function.’ Indeed, the prosecutor here recognized this strong preference, agreeing with defendant’s counsel and advising [the sentencing judge] that ‘I think the court’s preference to do it on the day it was scheduled is outweighed by the fact that there is a very strong preference by the judicial system that the trial judge do the sentencing.’ We, too, agree, and hold that this preferred procedure should have been followed here.” (Jacobs, supra, at p. 738.)

In reaching its holding, the Jacobs court found apt discussion in Arbuckle, supra, 22 Cal.3d 749, regarding sentencing a defendant pursuant to a plea. In Arbuckle, the court stated that “a defendant’s reasonable expectation of having his sentence imposed, pursuant to bargain and guilty plea, by the judge who took his plea and ordered sentence reports should not be thwarted for mere administrative convenience.” (Arbuckle, supra, at p. 757, fn. 5.) Although Arbuckle is distinguishable because it involved a contractual plea agreement, Jacobs adhered to the principle articulated in Arbuckle, that court internal administrative practices should not override the implied natural course of proceedings expected by the defendant during sentencing. (Jacobs, supra, 156 Cal.App.4th at p. 739.) This includes the expectation that the judge who takes a plea or tries a defendant will also sentence the defendant. The Jacobs court stated that, “‘[a]bsent some agreement by the defendant or the unavailability of the trial judge for other than internal administrative problems or convenience of the court, or some other good cause shown, a defendant should be able to have the trial judge who was familiar with the evidence at the trial impose sentence. [Citation.]’” (Ibid, quoting People v. Strunk, supra, at pp. 275-276, fn. 13.)

Jacobs also found People v. Borousk (1972) 24 Cal.App.3d 147 instructive. In Borousk, the presiding judge, on his own motion, dismissed a criminal charge after mistrial, rather than allowing the trial judge to decide the matter. The Borousk court noted that transferring the matter to the trial judge was not required or essential “but certainly it [was] desirable. The trial judge would have a ‘feel’ of the case. . . . The trial judge is in a better position to deal with the intangibles with which a case is so often impressed . . . .” (Id. at p. 162; accord, Jacobs, supra, 156 Cal.App.4th at p. 739.) The court in Borousk further stated that it is “‘“preferable” and “the ends of justice are generally better served . . . for the member of the court who presided at the trial to hear [and determine] a motion for a new trial” [citations]; and that it is “normally the better procedure for the judge who tried the case . . . to act on the matter of probation and sentence.” [Citations.] It is recommended that if a section 1385 hearing before a judge other than the one who conducted the trial poses the likelihood of such difficulties as were here encountered, the matter be transferred to the trial judge if he is reasonably available.’” (Jacobs, supra, at pp. 739-740, quoting People v. Borousk, supra, 24 Cal.App.3d at p. 162.)

The court in Jacobs concluded the trial judge was reasonably available to sentence the defendant. (Jacobs, supra, 156 Cal.App.4th at p. 740.) The trial court in Jacobs specifically set the matter so that it would be assigned to his department for sentencing. The defendant and prosecutor expected the trial judge would sentence the defendant, and the defendant objected when sentencing was later assigned to a different judge. (Ibid.) The Jacobs court concluded that the sentencing judge’s reason for not continuing the sentencing hearing because of jail overcrowding was not “enough to overcome the recognized preferred procedure that defendant be sentenced by the trial judge.” (Ibid.) The Jacobs court further concluded that the sentencing judge’s failure to continue sentencing constituted prejudicial error because a more lenient sentence was possible and it was unknown what the sentence would have been had the trial judge sentenced the defendant. (Ibid.)

The California Supreme Court in People v. Rodriguez (2016) 1 Cal.5th 676 (Rodriguez) also discussed what constitutes unavailability of a judge, but in the context of a section 1538.5, subdivision (p) motion to suppress evidence. Section 1538.5(p) requires the original judge who ruled on a motion to suppress, to also rule on a refiled motion to suppress, “if the judge is available.” (§ 1538.5(p).)

In Rodriguez, after the trial court granted the defendant’s motion to suppress evidence, the People dismissed the criminal case and refiled a new complaint alleging the same offenses. (Rodriguez, supra, 1 Cal.5th at p. 680.) The defendant again filed a motion to suppress. The presiding judge denied the defendant’s request under section 1538.5(p) that the motion be heard before the same judge who heard the previous motion. The presiding judge explained that the previous judge was not available because he had been transferred to another division of the court in a different city. (Id. at pp. 680-681.) The refiled motion to suppress was assigned to a different judge over the defendant’s objection. (Id. at p. 680.)

The Supreme Court in Rodriguez reversed, holding that, although trial courts possess broad discretion to distribute business within their courts and determine availability of their judges, a judge may be found unavailable for hearing a refiled motion to suppress under section 1538(p) “only if the trial court, acting in good faith and taking reasonable steps, cannot arrange for that judge to hear the motion. The trial court must make its finding of unavailability on the record.” (Rodriguez, supra, 1 Cal.5th at p. 679.)

The Rodriguez court explained that “mere inconvenience is not sufficient to render a judge unavailable.” (Rodriguez, supra, 1 Cal.5th at p. 690.) “This is not to say that reviewing courts are now free to second-guess judgment calls that are better left to the trial courts. Trial courts have considerable discretion to administer their logistical affairs, and rightly so: lodged in trial courts is likely the contextual knowledge and motivation to deploy judicial resources effectively, and to learn over time. But to adequately protect a defendant’s statutory right under section 1538.5(p), we hold that a trial court must take reasonable steps in good faith to ensure that the same judge who granted the previous suppression motion is assigned to hear the relitigated motion. Only if the trial court has done so may it make a finding of unavailability. And the trial court must make such a finding on the record, so appellate review proves meaningful. (See People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1063-1064; cf. Still v. Pearson (1950) 96 Cal.App.2d 315, 318 [‘when a judge other than the one who presided at the trial proceeds to hear the motion for a new trial, it is the best practice, in the interests of certainty and convenience, to cause a record to be made reciting the fact of the inability or absence of the judge who presided at the trial’].) Such a finding, unsupported by record evidence demonstrating the reasonable measures a trial court has taken to honor a defendant’s section 1538.5(p) right, is an abuse of discretion.” (Rodriguez, supra, at p. 691.)

We recognize that Rodriguez is distinguishable because it concerns the section 1538.5(p) requirement that a refiled motion to suppress be heard by the same judge who heard the original motion. The instant case concerns strong policy that a defendant be sentenced by the same judge who conducted the trial. Despite this distinction, the California Supreme Court’s discussion in Rodriguez regarding determining whether a judge is available is instructive here.

Because section 1538.5(p) does not define the term “‘available’” or describe what considerations should guide a court’s determination of whether a judge is or is not available, the Rodriguez court considered the ordinary meaning of “‘available.’” (Rodriguez, supra, 1 Cal.5th at p. 686.) Such analysis is applicable in the instant case, which turns on the ordinary meaning of “‘available’” as applied to the determination of whether the judge who tried a defendant is available to sentence the defendant. (Ibid.) In discussing the ordinary meaning of “‘available,’” the Rodriguez court stated that, “[a]ccording to the Oxford English Dictionary, ‘available’ means, inter alia, ‘capable of being made use of, at one’s disposal, within one’s reach.’ (1 Oxford English Dict. (2d ed. 1989) p. 812.) At the time section 1538.5(p) was enacted, Black’s defined ‘available’ as follows: ‘Suitable; useable; accessible; obtainable; present or ready for immediate use.’ (Black’s Law Dict. (6th ed. 1990) p. 135, col. 1 (Black’s 6th ed.).)” (Rodriguez, supra, at p. 686.)

The Rodriguez court further noted that the purpose of requiring the same judge, if available (the same judge rule), was not only to prevent forum shopping, but also to ensure that “prosecutors will have to make their renewed case before a judge already familiar with the relevant facts and, more importantly, the bases for the original grant. That judge is in the best position to weigh whatever new evidence or arguments the People have brought to bear and test those against his or her reasons for granting the previous motion to suppress. (Cf. Francis, supra, 3 Cal.2d at p. 29 [‘To have the motion for a new trial heard by a judge familiar with the facts and law of the case, rather than by one totally unfamiliar with such facts and who has made no special study of the law applicable to those facts, was the very essence of section 661 of the Code of Civil Procedure.’].)” (Rodriguez, supra, 1 Cal.5th at p. 690.) Likewise, the judge who conducts a trial is in the best position to sentence the defendant.

Therefore, here, as in Rodriguez, “mere inconvenience is not sufficient to render a judge unavailable” for purposes of applying the same judge rule to sentencing. (Rodriguez, supra, 1 Cal.5th at p. 690.) “This is not to say that reviewing courts are now free to second-guess judgment calls that are better left to the trial courts. Trial courts have considerable discretion to administer their logistical affairs, and rightly so: lodged in trial courts is likely the contextual knowledge and motivation to deploy judicial resources effectively, and to learn over time.” (Id. at p. 691.) But in order to adequately protect defendant’s interest in having the same judge who tried his case also sentence him, the trial court must take reasonable steps in good faith to ensure that the same judge who tried defendant is assigned to sentence him. (Ibid.) “Only if the trial court has done so may it make a finding of unavailability. And the trial court must make such a finding on the record, so appellate review proves meaningful.” (Ibid.)

As the court in Rodriguez concluded, “[s]uch a finding, unsupported by record evidence demonstrating the reasonable measures a trial court has taken to honor a defendant’s section 1538.5(p) right, is an abuse of discretion.” (Rodriguez, supra, 1 Cal.5th at p. 691.) More than mere inconvenience is necessary before a judge can be deemed unavailable. (Id. at p. 692.) In Rodriguez, the court noted that “[t]he ineluctable realities of life sometimes mean that the judge designated by statute to hear a suppression motion has died, retired, resigned, or lacks the capacity to undertake his or her duty. This is not such a case. (Cf. Telefilm, Inc. v. Superior Court of Los Angeles County (1949) 33 Cal.2d 289, 292 [explaining that ‘a variety of contingencies’ can render a judge unable to hear a new trial motion under Code of Civil Procedure section 661, including ‘death or the happening of an equally significant event in life affecting his continued performance of his judicial duties, such as expiration of his term of office, resignation or retirement from service, disqualification, as well as some physical or mental disorder’].)” (Rodriguez, supra, at pp. 693-694.)

In Rodriguez, the presiding judge denied the defendant’s request for the same judge without taking reasonable steps to assign that judge. The presiding judge stated that the original judge was unavailable because he had been transferred to another division. The court in Rodriguez concluded the record did not show that the presiding judge ever attempted to contact the original judge or inquire as to when the original judge might be available to hear the defendant’s refiled motion to suppress. The Rodriguez court concluded this failure to take reasonable measures to honor the defendant’s right to the same judge was an abuse of discretion. (Rodriguez, supra, 1 Cal.5th at p. 694.)

Here, we similarly conclude the sentencing court’s failure to take reasonable measures to allow defendant to be sentenced by the trial judge was an abuse of discretion. When the trial court originally calendared the sentencing hearing, the parties and court were aware that the trial judge had been reassigned to the civil division. The scheduled sentencing hearing was set after the trial judge would no longer be in the criminal division. However, defendant reasonably believed he would nevertheless be sentenced by the trial judge and objected to a different judge sentencing him. The record does not show any justification, other than court administrative reasons, for not continuing sentencing to a date and time when the trial judge was available to sentence defendant. There was no showing that, because the trial judge was assigned to the civil department, he could not take time out from his civil calendar to sentence defendant.

We therefore conclude the sentencing court erred in not continuing sentencing to allow defendant to be sentenced by the trial judge. Furthermore, as in Jacobs, supra, 156 Cal.App.4th at page 740, we conclude this was prejudicial error, because of the range of dispositions available to the sentencing judge. We are therefore unable to say whether the trial court would have exercised its discretion differently, such that defendant would have received a lesser sentence. (Ibid.)

Given that the matter must be remanded for total resentencing, the other sentencing issues raised by defendant are rendered moot by reason of our remand for resentencing.

IV.

DISPOSITION

Defendant’s sentence is reversed and the matter is remanded for resentencing in accordance with this opinion. The trial court is directed to take reasonable steps in good faith to ensure the same judge who tried defendant is assigned to sentence him. (Rodriguez, supra, 1 Cal.5th at p. 691; Jacobs, supra, 156 Cal.App.4th at pp. 731, 739-740.) The judgment in all other respects is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON

Acting P. J.

We concur:

RAPHAEL

J.

MENETREZ

J.