Serrato

Under terms of a plea bargain, defendant pleaded guilty to first degree burglary (Pen. Code, § 459) and admitted a prior conviction (Pen. Code, § 667.5, subd. (b)). He was sentenced to four years, the middle term, for the burglary and one year for the prior conviction.

On appeal, defendant contends the court failed to exercise its discretion when it denied him probation and the court committed error because he was sentenced, without an Arbuckle waiver, by a different judge than the judge who accepted his plea. We shall affirm.

Defendant’s contention he was improperly denied probation fails. A grant or denial of probation is within the discretion of the trial court (People v. Phillips (1977) 76 Cal.App.3d 207, 213 [ 142 Cal.Rptr. 658 ]) and will not be disturbed unless it is shown the court exercised its discretion in an “arbitrary or capricious manner.” (People v. Edwards (1976) 18 Cal.3d 796, 807 [ 135 Cal.Rptr. 411 , 557 P.2d 995 ].)

Since defendant was convicted of first degree burglary, he was ineligible for probation unless unusual circumstances were found and enumerated on the record by the court. (Pen. Code, § 462.) Unlike the trial court in People v. Marquez…