Wednesday, February 20, 2019

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Defendant’s Arbuckle Right Not Forfeited By Failing to Raise It at Sentencing—C.A.

By a MetNews Staff Writer

The Fifth District Court of Appeal yesterday invalidated the sentence of a woman whose drunk driving resulted in the death of her son, holding that she had a right to be sentenced by the same judge who took her no-contest pleas even though she did not invoke that right at the time of sentencing.

Justice Mark W. Snauffer wrote the opinion which seeks to discern the California Supreme Court’s intent in its 2017 decision in K.R. v. Superior Court. There, then-Justice Kathryn Werdegar, now retired, wrote for the 4-3 majority in disapproving of departures by courts of appeal from the high court’s 1978 decision in People v. Arbuckle.

The court said in Arbuckle:

“As a general principle...whenever a judge accepts a plea bargain and retains sentencing discretion under the agreement, an implied term of the bargain is that sentence will be imposed by that judge.”

Werdegar’s Opinion

Werdegar wrote:

“In the ensuing years, some intermediate appellate courts have perceived some leeway in the Arbuckle rule, and declined to recognize a right to the same judge at sentencing unless the record contained sufficient evidence that the defendant subjectively intended, as a condition of his or her plea, that the judge who accepted the plea would also pronounce sentence….

“[N]either Arbuckle nor its progeny support the notion that a defendant’s ability to enforce the same-judge guarantee, a term implied in every plea agreement, is dependent on a defendant (or juvenile) first making a factual showing that he or she subjectively intended the judge taking the plea would also pronounce sentence….”

Not Expressly Discussed

Werdegar did not directly address the issue dealt with in yesterday’s Fifth District opinion: whether the right to be sentenced by the same judge who took the plea is forfeited if not raised at the time of sentencing.

It was Merced Superior Court Judge David W. Moranda who took defendant Vanessa Bueno’s no-contest pleas to gross vehicular manslaughter while intoxicated and four other counts. Retired Merced Superior Court Judge Frank Dougherty, sitting on assignment, sentenced Bueno to 11 years and four months in prison.

Snauffer said it is clear that Bueno did not intend, at the time she pled, to waive her Arbuckle right. On the plea form, she did not initial the statement, “I agree that any judge may impose sentence on me”—rather, placing an “X” by the statement, as she did with respect to portions that were inapplicable.

Her non-waiver, the jurist recited, was not discussed at the time of sentencing.

1980 Case Cited

The Office of Attorney General urged that the court adhere to the rule set forth in the 1980 Court of Appeal decision in People v. West. In that case, the First District said:

“Arbuckle recognizes that if a defendant’s case is assigned to a different judge for sentencing, the defendant can proceed before that judge or withdraw his plea….Furthermore, even if a defendant could demand the same judge, he must do so; he does not have the option of taking his chances before the different judge and, if the result is unfavorable, then demand the original judge.”

Snauffer concluded that Bueno, having been sentenced by Dougherty, does now have a right to be resentenced by Moranda.

He noted that West “predates the appellate court cases listed as disapproved by the Supreme Court in K.R.,” adding that “West was cited by and relied upon in four of the cases listed as disapproved by K.R.”

Distinction Without Difference

Snauffer went on to declare:

“While K.R. does not specify when the right would need to be invoked, i.e., if it would need to be invoked during the plea, at sentencing, or both, that is a distinction without a difference. Based on the Supreme Court’s interpretation of the Arbuckle waiver rule, the burden is never on the defendant to ensure that his or her rights under Arbuckle are invoked; rather, it is the prosecution’s burden to show that the rights under Arbuckle were knowingly and intelligently abandoned.”

He added:

“We acknowledge that in K.R., the issue of forfeiture of the juvenile’s Arbuckle rights did not arise because the minor did affirmatively object based on Arbuckle, but the trial court held that he had no reasonable expectation that the same judge who took his plea would impose his disposition. However, the Supreme Court’s discussion of whether a defendant’s rights under Arbuckle are an implied term of every plea agreement that must be waived rather than a right that will forfeited if not affirmatively invoked is material to its holding. To hold that Arbuckle rights are forfeited if not invoked by the defendant would necessarily undermine the main holding of K.R., in which it reaffirmed that the rights under Arbuckle are implied as part of every plea bargain, regardless of the defendant’s actions or intentions.”

The “Disposition” reads:

“The judgment is reversed. Bueno must be resentenced by Judge Moranda, the judge who accepted her plea, or, if Judge Moranda is not available, then Bueno must be given the option of proceeding before a different judge or withdrawing her plea. We express no opinion as to how Judge Moranda should exercise his sentencing discretion.”

The case is People v. Bueno, 2019 S.O.S. 788.