Opinion
COWETT, J.
This appeal follows a conviction and sentence on a guilty plea. Defendant Francis Poole contends his case must be remanded for re-sentencing because:
(1)
Arbuckle
error was committed and he has the right to be resentenced by the judge who accepted his plea, or, in the alternative, he be allowed to withdraw his plea; and
(2) The sentencing judge prejudicially failed to apply the “double-the-base term” limit, denied him Penal Code section 2933 credits and was ambiguous as to the manner in which he intended to impose consecutive sentences.
Facts
A complaint charged Poole as follows: counts I through V, inclusive, robbery (Pen. Code, § 211)
and count VI, attempted robbery (§§ 664, 211). The complaint also alleged three prior prison terms within the meaning of section 667.5, subdivision (b).
On January 24, 1984, following a plea bargain, Poole pleaded guilty to counts I, II, III, V and VI, and admitted the first two prior prison term
allegations. Count IV was dismissed and the third prior prison term allegation was stricken.
The colloquy between Poole and the court at the time the plea was accepted included the following:
“The Court: All right. I think you have understood the plea bargain.
“Do you agree to be sentenced by any judge of this court, Mr. Poole? I’m not going to be here when you come back for sentencing.
“A. Yes.
“Q. You do.”
On February 28, 1984, Poole was sentenced to prison for a term of eight years. His sentence was computed as follows: the middle base term of three years was imposed as to count I; one year was imposed on each of counts II, III and V, each of these to be consecutive to count I and to each other; this term to be enhanced by two years pursuant to section 667.5, subdivision (b); sentence as to count VI to be served concurrently to count I.
The record is silent as to any discussion at the time of the plea (or any other time) of Poole having the right to a bifurcated trial on the validity of his prior convictions.
We conclude (1) there was no
Arbuckle
error in this case; (2) section 2933 does not apply, and to so find does not violate Poole’s equal protection rights; (3) the slight or apparent ambiguity concerning the manner of consecutive sentencing here does not require remand for resentencing;
and (4) the “double-the-base term” limit does not apply to Poole’s sentence.
Discussion
I
In
People
v.
Arbuckle
(1978) 22 Cal.3d 749 [150 Cal.Rptr. 778, 587 P.2d 220, 3 A.L.R.4th 1171], the California Supreme Court first artic
ulated the rule a defendant has a right to be sentenced by the same judge who accepts his guilty plea. The right created thereby is neither constitutional nor statutory, but is “a hybrid, judicially promulgated contractual right . . .
(In re Thomas S.
(1981) 124 Cal.App.3d 934, 939 [177 Cal.Rptr. 742]; see
In re Ray O.
(1979) 97 Cal.App.3d 136 [158 Cal.Rptr. 550]
[Arbuckle
applicable to juvenile proceedings].)
The court in
Arbuckle
explained the right it recognized as applying in every case where the judge accepts a plea bargain
and retains
sentencing discretion under the agreement because an implied term of the bargain is that sentence will be imposed by that judge whose sentencing propensities are an inherently significant factor in the defendant’s decision to enter a guilty plea. The court contemplated if internal court administrative procedures render it impossible for the defendant to be sentenced by the same judge who accepts his plea, then the defendant can choose to proceed with sentencing before a different judge, or withdraw his plea.
As with other rights, a defendant may waive his
Arbuckle
rights. A valid waiver of any right, however, presupposes an actual and demonstrable knowledge of the right being waived so that the waiver is deemed knowing and intelligent. Courts should not find a waiver by mere silence or acquiescence even when the defendant is represented by counsel.
(In re Thomas S., supra,
124 Cal.App.3d 934.) Since
Arbuckle
rights are not constitutional rights (such as the privilege against self-incrimination, the right to a trial by jury, and the right to confront witnesses) which must be expressly waived, it is a right which may be waived by conduct. "... [F]airness dictates that before accepting silence or acquiescence in sentencing by a different judge as a waiver, the court must satisfy itself from the record that defendant knew he had the right to be sentenced by the same judge who took his plea. The court cannot reasonably assume or speculate that the defendant had the requisite knowledge of his
Arbuckle
rights even if represented by an attorney.”
(People
v.
Rosaia
(1984) 157 Cal.App.3d 832, 840 [203 Cal.Rptr. 856].)
The recent case of
People
v.
Rosaia, supra,
157 Cal.App.3d 832, is particularly instructive as to the appropriate standard of review of the facts in this case concerning an
Arbuckle
waiver: “The preferable way to assure that the record reflects defendant’s knowledge of his
Arbuckle
rights is for the judge who takes the plea to advise the defendant of those rights at the time he takes the plea. However, we recognize that advisement of those rights may effectively occur at some later stage of the proceeding and that courts of different size and organization may adopt more practical and less onerous means of assuring that defendant knows of his
Arbuckle
rights. Moreover, statements or requests on the record by defendant or his counsel
may import such knowledge and make formal advisement by the court unnecessary. These considerations, among others, prompt us to refrain from stating specific requirements for advice to defendants of their
Arbuckle
rights. We believe the rights of the defendant are adequately protected and onerous duties avoided by requiring only that the
record
demonstrate the defendant’s knowledge of his
Arbuckle
rights to support a conclusion that defendant waived those rights by his conduct. Such a requirement is consistent with general judicial reluctance to find a waiver by silence or acquiescence. (See
People
v.
Mancheno
(1982) 32 Cal.3d 855 [187 Cal.Rptr. 441, 654 P.2d 211] [no waiver of right to diagnostic study under plea bargain by failure to state any reason why sentence should not be pronounced].)”
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Opinion
COWETT, J.
This appeal follows a conviction and sentence on a guilty plea. Defendant Francis Poole contends his case must be remanded for re-sentencing because:
(1)
Arbuckle
error was committed and he has the right to be resentenced by the judge who accepted his plea, or, in the alternative, he be allowed to withdraw his plea; and
(2) The sentencing judge prejudicially failed to apply the “double-the-base term” limit, denied him Penal Code section 2933 credits and was ambiguous as to the manner in which he intended to impose consecutive sentences.
Facts
A complaint charged Poole as follows: counts I through V, inclusive, robbery (Pen. Code, § 211)
and count VI, attempted robbery (§§ 664, 211). The complaint also alleged three prior prison terms within the meaning of section 667.5, subdivision (b).
On January 24, 1984, following a plea bargain, Poole pleaded guilty to counts I, II, III, V and VI, and admitted the first two prior prison term
allegations. Count IV was dismissed and the third prior prison term allegation was stricken.
The colloquy between Poole and the court at the time the plea was accepted included the following:
“The Court: All right. I think you have understood the plea bargain.
“Do you agree to be sentenced by any judge of this court, Mr. Poole? I’m not going to be here when you come back for sentencing.
“A. Yes.
“Q. You do.”
On February 28, 1984, Poole was sentenced to prison for a term of eight years. His sentence was computed as follows: the middle base term of three years was imposed as to count I; one year was imposed on each of counts II, III and V, each of these to be consecutive to count I and to each other; this term to be enhanced by two years pursuant to section 667.5, subdivision (b); sentence as to count VI to be served concurrently to count I.
The record is silent as to any discussion at the time of the plea (or any other time) of Poole having the right to a bifurcated trial on the validity of his prior convictions.
We conclude (1) there was no
Arbuckle
error in this case; (2) section 2933 does not apply, and to so find does not violate Poole’s equal protection rights; (3) the slight or apparent ambiguity concerning the manner of consecutive sentencing here does not require remand for resentencing;
and (4) the “double-the-base term” limit does not apply to Poole’s sentence.
Discussion
I
In
People
v.
Arbuckle
(1978) 22 Cal.3d 749 [150 Cal.Rptr. 778, 587 P.2d 220, 3 A.L.R.4th 1171], the California Supreme Court first artic
ulated the rule a defendant has a right to be sentenced by the same judge who accepts his guilty plea. The right created thereby is neither constitutional nor statutory, but is “a hybrid, judicially promulgated contractual right . . .
(In re Thomas S.
(1981) 124 Cal.App.3d 934, 939 [177 Cal.Rptr. 742]; see
In re Ray O.
(1979) 97 Cal.App.3d 136 [158 Cal.Rptr. 550]
[Arbuckle
applicable to juvenile proceedings].)
The court in
Arbuckle
explained the right it recognized as applying in every case where the judge accepts a plea bargain
and retains
sentencing discretion under the agreement because an implied term of the bargain is that sentence will be imposed by that judge whose sentencing propensities are an inherently significant factor in the defendant’s decision to enter a guilty plea. The court contemplated if internal court administrative procedures render it impossible for the defendant to be sentenced by the same judge who accepts his plea, then the defendant can choose to proceed with sentencing before a different judge, or withdraw his plea.
As with other rights, a defendant may waive his
Arbuckle
rights. A valid waiver of any right, however, presupposes an actual and demonstrable knowledge of the right being waived so that the waiver is deemed knowing and intelligent. Courts should not find a waiver by mere silence or acquiescence even when the defendant is represented by counsel.
(In re Thomas S., supra,
124 Cal.App.3d 934.) Since
Arbuckle
rights are not constitutional rights (such as the privilege against self-incrimination, the right to a trial by jury, and the right to confront witnesses) which must be expressly waived, it is a right which may be waived by conduct. "... [F]airness dictates that before accepting silence or acquiescence in sentencing by a different judge as a waiver, the court must satisfy itself from the record that defendant knew he had the right to be sentenced by the same judge who took his plea. The court cannot reasonably assume or speculate that the defendant had the requisite knowledge of his
Arbuckle
rights even if represented by an attorney.”
(People
v.
Rosaia
(1984) 157 Cal.App.3d 832, 840 [203 Cal.Rptr. 856].)
The recent case of
People
v.
Rosaia, supra,
157 Cal.App.3d 832, is particularly instructive as to the appropriate standard of review of the facts in this case concerning an
Arbuckle
waiver: “The preferable way to assure that the record reflects defendant’s knowledge of his
Arbuckle
rights is for the judge who takes the plea to advise the defendant of those rights at the time he takes the plea. However, we recognize that advisement of those rights may effectively occur at some later stage of the proceeding and that courts of different size and organization may adopt more practical and less onerous means of assuring that defendant knows of his
Arbuckle
rights. Moreover, statements or requests on the record by defendant or his counsel
may import such knowledge and make formal advisement by the court unnecessary. These considerations, among others, prompt us to refrain from stating specific requirements for advice to defendants of their
Arbuckle
rights. We believe the rights of the defendant are adequately protected and onerous duties avoided by requiring only that the
record
demonstrate the defendant’s knowledge of his
Arbuckle
rights to support a conclusion that defendant waived those rights by his conduct. Such a requirement is consistent with general judicial reluctance to find a waiver by silence or acquiescence. (See
People
v.
Mancheno
(1982) 32 Cal.3d 855 [187 Cal.Rptr. 441, 654 P.2d 211] [no waiver of right to diagnostic study under plea bargain by failure to state any reason why sentence should not be pronounced].)”
(People
v.
Rosaia, supra,
157 Cal.App.3d at p. 840.)
Here, the record supports a reasonable inference Poole knew he had the right to be sentenced by the judge who accepted his plea and Poole expressly agreed to be sentenced by another judge. We so hold because the express agreement to be sentenced by another judge in and of itself reasonably gives rise to the inference that Poole was informed he had a right to be sentenced by the same judge who took the plea. A defendant reasonably should know he would not be asked if he agrees to be sentenced by
a different
judge, to which the response is either yes or no, unless he had the right to say no and insist on being sentenced by the
same
judge. This is not a case where the record demonstrates mere silence or acquiescence in a different judge sentencing a defendant. Further, a judge retains no sentencing discretion when he certifies or sends the case to another judge for sentencing.
(People
v.
Miskiewicz
(1984) 158 Cal.App.3d 820, 825-826 [204 Cal.Rptr. 873].) Poole was not denied his
Arbuckle
rights.
II
Poole contends the “double-the-base term” limitations on the total length of a sentence as provided by section 1170.1, subdivision (g)
survive enactment of article I, section 28, subdivision (f) of the California Constitution and apply to limit his total sentence to a maximum of six years (rather than the eight years imposed). Relying on
People
v.
Whigam
(1984) 158 Cal.App.3d 1161 [205 Cal.Rptr. 227] we held the “double-the-base term” limit did apply to Poole’s sentence requiring a remand for resentencing. We must now decide whether the
Whigam
holding survives in light of the California Supreme Court’s recent decision,
People
v.
Jackson
(1985) 37 Cal.3d 826 [210 Cal.Rptr. 623, 694 P.2d 736],
In Jackson, the Supreme Court held although section 1170.1, subdivision (g) survives, it must be read as if it contained an exception for enhancements for prior serious felonies pursuant to section 667. (Id., at p. 838.) The issue here is whether section 1170.1, subdivision (g) should be read as if it also contains an exception for enhancements for any felony for which a prior separate prison term was served pursuant to section 667.5, subdivision (b).4
Poole asserts the holding of
Jackson
should be read as abrogating the double-the-base term limits for enhancements based on prior serious felonies only. He argues the focus of Proposition 8 was upon increasing sentences for serious felony repeat offenders only and the voters intended no change by Proposition 8 regarding enhancements based on other prior felonies because the limitations on these enhancements were already an accepted part of the determinate sentencing scheme. However, as pointed out in
People
v.
Rivera
(1984) 162 Cal.App.3d 141, 151-152 [207 Cal.Rptr. 756], the analysis of the proposition as presented to the voters in the ballot pamphlet prepared for the June 1982 election informed voters of two purposes: “This measure includes two provisions that would increase prison sentences for persons convicted of specified felonies. First, upon a second or subsequent conviction for one of these felonies, the defendant could receive, on top of his or her sentence, an
additional
five-year prison term for each such prior conviction, regardless of the sentence imposed for the prior conviction. . . . Second, any prior felony conviction could be used without limitation in calculating longer prison terms.” (Ballot Pamp., Proposed Initiative Stats. & Amend, to Cal. Const, with arguments to voters, Primary Elec. (June 8, 1982), analysis by Legislative Analyst, pp. 54-55, original italics.)
The Attorney General argues this court should find enhancements pursuant to section 667.5, subdivision (b) to be another exception to the double-the-base term limit because the rationale of
Jackson
and
Rivera
lead logically to this conclusion.
Both
Jackson
and
Rivera
remind us the broad language of article I, section 28, subdivision (f) of the California Constitution provides: “(f)
Use of Prior Convictions.
Any prior felony conviction of any person in any criminal proceeding, whether adult or juvenile, shall subsequently be used
without limitation
for purposes of . . . enhancement of sentence . . . .”
Thus,
Jackson
and
Rivera
emphasize that section 667, an enhancement statute, must be given its full, unabridged meaning so as not to render such enactments meaningless in whole or part and so as to give due effect to the statute’s intended purpose.
Jackson
recognized that Proposition 8, as a result of a draftsman’s oversight, failed to make all appropriate amendments to section 1170.1, subdivision (g) comparable to the failure to amend subdivision (f).
(People
v.
Jackson, supra,
37 Cal.3d at p. 838, fn., 15.)
Jackson
then concludes despite the uncertain meaning of article I, section 28, subdivision (f), section 667 must have been intended to be unlimited by section 1170.1, subdivision (g) in order to effectuate unfettered use of section 667 for enhancement purposes.
(Id.,
at p. 838.)
Because specific statutory language prevails over general language and because constitutional provisions prevail over conflicting legislative provisions (13 Cal.Jur.3d, Const. Law, § 27, pp. 63-64), we read section 1170.1, subdivision (g) as if it contained an exception for enhancements pursuant to section 667.5, subdivision (b) comparable to the exception now recognized pursuant to section 667.
III
Poole spent 53 days in actual presentence confinement in county jail. He was unable to post bail. The sentencing court gave Poole the proper number of good-time credits under section 4019 for the time he spent in county jail. Poole received no credits under section 2933. Poole contends that had he been able to post bail and thereafter serve all of his term in state prison he would have been entitled to reduce the entire period of confinement by 50 percent, by obtaining work credits under section 2933, rather than the less generous one-third reduction for good behavior for the first 53 days of confinement under section 4019. He claims the interpretation of section 2933 as being inapplicable to him unconstitutionally denies him equal protection of law.
We must first decide which of two standards to apply when addressing Poole’s equal protection argument, either the strict scrutiny standard or the traditional (and lower) “rationability” test
(In re Monigold
(1983) 139 Cal.App.3d 485 [188 Cal.Rptr. 698]).
Effective January 1, 1983, the Legislature substantially revised the statutory scheme for sentence reductions (see Stats. 1982, ch. 1234), amending
sections 2930, 2931, 2932 and 4019, and adding sections 2933, 2934, and 2935. Section 2933
now provides a prisoner with the opportunity to cut his sentence in half by participating in authorized work programs. Section 4019
allows for only a one-third reduction for work performance and good behavior in the county jail pending trial.
We apply the strict scrutiny test in analyzing this issue because the additional loss of liberty which is possible in this situation requires it. (See
People
v.
Olivas
(1976) 17 Cal.3d 236, 243 [131 Cal.Rptr. 55, 551 P.2d 375]; contra
In re Bender
(1983) 149 Cal.App.3d 380 [196 Cal.Rptr. 801].) In so doing, we conclude the challenged differential treatment is warranted because of the administrative impracticality of providing section 2933 credit programs before sentencing. We find the state has a compelling interest in
rehabilitating prisoners. Section 2933 credits are an inducement to prisoners to enter work, training and/or educational programs designed to prepare them for a rehabilitated reentry into society when released from prison. Clearly, custody credits are a strong incentive for voluntary participation, especially following conviction and sentencing. Although we find the distinctions drawn by the law are not theoretically necessary to further the cited compelling state interest, the administrative impracticality of providing such programs before sentencing establishes the inevitable ineffectiveness of such programs in accomplishing the underlying state interest in rehabilitation.
Under these circumstances, we hold the limited availability of section 2933 credits to postsentence imprisonment only is constitutionally valid.
(Accord
People
v.
Caruso
(1984) 161 Cal.App.3d 13 [207 Cal.Rptr. 221];
People
v.
Rosaia, supra,
157 Cal.App.3d at p. 848;
People
v.
Caddick
(1984) 160 Cal.App.3d 46, 50-53 [206 Cal.Rptr. 454].)
IV
Finally, Poole contends his case must be remanded for resentencing so the court may clarify the manner in which consecutive sentences are to be imposed.
The sentencing court stated the one-year terms on each of counts II, III and V were to be consecutive to count I. The judge never stated explicitly these 3 one-year terms were to be consecutive, not only to count I, but also consecutive to each other. The court’s intent must be implied from his statement that the total term is eight years.
Ambiguities in the Penal Code must be construed in favor of the defendant when the language of the statute is susceptible of two reasonable interpretations.
{In re Jeanice D.
(1980) 28 Cal.3d 210 [168 Cal.Rptr. 455, 617 P.2d 1087].) However, here we do not have an ambiguous statute.
Poole cites no authority for the proposition an ambiguity in sentencing requires remand, nor have we found any such authority. Here the ambiguity is clarified by the court when the judge states Poole is sentenced to state prison for eight years.
The clerk’s transcript also reflects the same total sentence of eight years.
Judgment affirmed.
Wiener, Acting P. J., and Lewis, J., concurred.
Appellant’s petition for review by the Supreme Court was denied August 29, 1985. Kaus, J., and Broussard, J., were of the opinion that the petition should be granted.