Rosaia

Defendant was charged with assault with intent to commit rape (Pen. Code, § 220) and assault by means of force likely to produce great bodily injury (§ 245, subd. (a)). He pleaded guilty to assault by means of force likely to produce great bodily injury on condition that he be sentenced to no more than two years in state prison. The court dismissed the charge of assault with intent to commit rape.

Defendant was denied probation and sentenced to two years in state prison. He appeals but does not challenge the validity of his guilty plea.

The primary issue presented herein is whether the trial court’s failure to advise defendant at any stage of the proceeding that he was entitled to be sentenced by the same judge who accepted his guilty plea precludes a finding that defendant waived this right, notwithstanding the failure of defendant and his attorney to object to sentencing before a different judge. We conclude that, without such advice, silence and acquiescence in the sentencing by a different judge cannot be deemed a waiver. The rule we adopt requires us to remand for resentencing, but we intend the rule to be prospective only.

Defendant also urges that the trial…