K.R. v. Superior Court of Sacramento Cnty.
K.R. v. Superior Court of Sacramento Cnty.
Opinion of the Court
*298In 1978, this court established a basic background rule applicable to plea negotiations in criminal cases, holding that "[a]s 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." (People v. Arbuckle (1978)
**583As we explain, neither 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. Because the Court of Appeal held otherwise, we reverse.
*299*454I. FACTUAL AND PROCEDURAL BACKGROUND
In March 2013, when petitioner K.R. was 13 years old, the People filed a delinquency petition against him pursuant to Welfare and Institutions Code section 602 alleging he had committed the crimes of robbery and making criminal threats, both felonies (Pen. Code, §§ 211, 422 ), as well as brandishing a knife, a misdemeanor (id. , § 417, subd. (a)(1)). In August 2013, Judge James P. Arguelles presided over a jurisdictional hearing on the petition in department 97 of the Sacramento County Superior Court, sitting as a juvenile court, and found the allegations true. In September 2013, Judge Arguelles presided at a disposition hearing and adjudged K.R. a ward of the juvenile court, committed him to the custody of his mother, and placed him on probation subject to a number of conditions, including 150 days in juvenile hall (less 76 days' custody credit).
On March 10, 2014, the People filed a violation of probation (VOP) petition (Welf. & Inst. Code, §§ 602, 777 ) alleging K.R. had violated his probation by committing two counts of threatening school officials, both felonies (Pen. Code, § 71 ), two counts of issuing criminal threats against school officials, also felonies (id. , § 422 ), and trespassing on a school campus, a misdemeanor (id. , § 626.8). The next day, the People filed a second VOP petition, alleging the minor violated seven conditions of his probation stemming from his antisocial behavior in school and failure to complete court-ordered counseling. K.R. thereafter admitted one felony count of making criminal threats, as alleged in the first petition, and four probation violations, as alleged in the second petition. The court dismissed the remaining counts in the interest of justice, continued K.R. as a ward of the court, ordered him to serve 45 days in juvenile hall, and released him to his mother's custody and reinstated probation.
On May 16, 2014, the People filed a third VOP petition, this time alleging K.R. had violated the terms of his probation by committing two new felonies: carrying a concealed firearm and carrying a loaded firearm. (Pen. Code, §§ 25400, subd. (a)(2), former 12031, subd. (a)(1).) The juvenile court later dismissed this petition as superseded by another VOP petition (also designated the third petition) alleging the same two counts. On June 18, *3002014, K.R. admitted the first alleged violation (carrying a concealed weapon) and the court dismissed the second allegation; the court continued K.R. as a ward of the court and ordered him to serve 75 days in juvenile hall. His probation was then reinstated and he was released to the care and custody of his mother.
On April 9, 2015, the People filed a fourth VOP petition alleging that K.R. had again violated the terms of his probation. This new petition alleged the minor had remained away from his home overnight without parental permission, failed to keep his probation officer informed of his address and telephone number, used marijuana, and had committed three misdemeanors: possession of marijuana on a school campus, falsely identifying himself to a law enforcement officer, and being a disruptive presence on a school campus. (Health & Saf. Code, § 11357, subd. (e) ; Pen. Code, §§ 148.9, subd. (a), 626.8, subd. (a).) A week later, on April 14, the People filed a fifth VOP petition, alleging that *455K.R. had violated his probation yet again by brandishing a firearm (Pen. Code, § 417, subd. (a)(2) ), and brandishing a replica firearm (id. , § 417.4), both misdemeanors. **584Judge Doris Shockley, sitting on assignment in department 92, presided over a hearing held on the fourth and fifth VOP petitions. Judge Shockley ordered K.R. detained at juvenile hall and set a settlement conference hearing for April 28, 2015, in department 97, Judge Arguelles's department. She also ordered the probation department to prepare and submit a memorandum with recommendations for that hearing.
The probation department's subsequently prepared report indicated that although K.R. had been supervised for 20 months, his adjustment to probation continued to be poor. The report indicated that he refused to follow the directives of his mother, continued to incur numerous school infractions, and had been named as a suspect in a recent armed robbery. The department felt "a placement recommendation may be warranted," but noted, "the family [specifically, K.R.'s mother] has moved to the state of Nevada." The department, therefore, recommended that K.R.'s probation be revoked and reinstated, that he be permitted to travel to Las Vegas to reside with his mother "pursuant to Interstate Compact protocol," and that the proceedings be transferred to the juvenile court of Clark County, Nevada, for final disposition.
On April 28, 2015, the parties appeared in department 97 before Judge Jack Sapunor, a regular visiting judge in Sacramento County juvenile court. With Judge Sapunor presiding, the parties stipulated to continue the settlement conference hearing regarding the fourth and fifth VOP petitions to May *30112. On that day, the parties again appeared in department 97. Judge Arguelles presided over the continued settlement conference hearing but, at the request of K.R.'s attorney, continued the hearing again, this time to May 28.
On May 28, 2015, the parties again appeared in department 97 for the continued settlement conference hearing. Judge Sapunor was again presiding as a visiting judge. At that time, K.R.'s attorney told the court that the minor was prepared to admit two allegations (from the fourth petition, that he had remained away overnight without parental permission, and from the fifth petition, that he had brandished a replica firearm) "with an understanding that the disposition would be 54 days in custody of juvenile hall. He has 47 days as of today. [¶] The intention is in one week from today to recalendar this for proof that [K.R.'s grandmother] has purchased the plane ticket to Nevada as the minor's mother is currently a resident of the state of Nevada, and this case would be transferred out for [supervision] to Nevada."
Judge Sapunor confirmed with K.R.'s attorney that "[w]e're going to order the transfer today and then calendar it for a week to make sure that's been accomplished," and further confirmed with the prosecutor that this was the "recommended disposition." The court advised K.R. of his constitutional rights and obtained his waiver of them, whereupon K.R. admitted the two probation violations and Judge Sapunor granted the prosecutor's motion to dismiss the remaining allegations. The court then revoked and reinstated all previous orders. Before Judge Sapunor could finish the disposition, however, the probation officer serving as the presenter to the court interrupted, stating: "Your Honor, just a thought real quick, I know we just took the admission. My only concern is if we come back a week from now and there's not a ticket bought and if *456we do the dispo[sition] today, we may have to unravel all that we're doing right now-not the admission necessarily, just the disposition." The following colloquy then took place:
" THE COURT: Maybe we ought to put this out for a week to make sure that the disposition goes as planned.
" THE PRESENTER: That was just my thought that it all worked cleanly together. If for some reason it fell apart, we'll have to undo everything we're doing.
" MS. CONTRERAS: I am fine with putting whatever we need necessary [sic ]. My only request is that if we put the case over for one week, the time slots have to coordinate with the flight information. What is the quickest that he will be able to be processed to be released to get out to get on the plane?
*302" THE PRESENTER: If we come in first thing in the morning, 8:30, 9:00, 9:30, let's say the flight's purchased for 1:30, 2:00 in the afternoon, **585the later the better, we would be good to go.
" MS. CONTRERAS: That's agreeable. We can continue putting dispo[sition] over for the final terms to one week from today in the morning.
" THE PRESENTER: We can sign all the interstate [compact forms] on that date also.
" THE COURT: You want to have disposition one week from today which is going to be the 4th of June?
" MS. CONTRERAS: Yes. The intention is for him to be deemed time served at that time.
" THE COURT: Yes. He's to be deemed time served on June 4th at 8:30. All the other conditions, this case would be transferred to Clark County, Nevada, for final disposition, and then he will be released to go to Las Vegas. [¶] Okay. So come back, then, on the 4th at 8:30."
The minute order for the May 28 hearing shows that K.R. admitted two probation violations and the remaining allegations were dismissed, although the parties agreed they could be considered at the time of disposition. The disposition hearing was scheduled for June 4 in department 97.
On June 4, 2015, the parties again appeared in department 97, Judge Arguelles presiding. Judge Arguelles noted that he was not present when the plea was taken, but that the minute order indicated K.R. had admitted a violation of probation and the probation department "is recommending that he just be shipped off to [Las] Vegas to live with his mother." Based on his familiarity with K.R.'s criminal history, the nature and extent of his probation violations, and his overall poor performance while on probation, Judge Arguelles stated his view that it would not be in K.R.'s best interest to "just go live in [Las] Vegas." He said that his intention was "probably to send him to DJJ [Division of Juvenile Justice] but [he was] willing to hear argument for [a lesser level placement]." Because K.R.'s regular attorney was not present, however, Judge Arguelles agreed to continue the disposition hearing to June 8, when Ms. Contreras could be present.
*303At the continued hearing on June 8, K.R.'s regular attorney, Patricia Contreras, was present and objected to Judge Arguelles presiding over the disposition, citing the People's failure to secure an Arbuckle waiver from the minor at the May 28 hearing. Ms. Contreras requested the matter instead be set for hearing in front of Judge Sapunor, who she believed would be available for the next two weeks. Judge Arguelles reiterated his disagreement with the proposed disposition of sending K.R. to live with his mother in Las Vegas, set a schedule for the parties to *457brief the application of Arbuckle , and continued the matter to July 2.
Before the next hearing, however, K.R. filed a petition for writ of mandate with the Court of Appeal, requesting an order that Judge Arguelles either impose the agreed-upon disposition or set the case for a disposition hearing in front of Judge Sapunor. K.R. also requested a stay of further proceedings pending the appellate court's resolution of the matter. The Court of Appeal issued the requested stay, excepting from it " 'the superior court's determination on the Arbuckle waiver.' " Judge Arguelles subsequently denied K.R.'s claim under Arbuckle based on his finding the minor did not have a reasonable expectation that the judge who accepted his plea would also impose the disposition. As previously noted, the Court of Appeal agreed and denied K.R.'s petition for writ of mandate.
II. DISCUSSION
A. Arbuckle 's General Principle Relating to Plea Bargains
"Plea negotiations and agreements are an accepted and 'integral component of the criminal justice system and essential to the expeditious and fair administration of our courts.' [Citations.] Plea agreements benefit that system by promoting speed, economy, and the finality of judgments." (People v. Segura (2008)
"A plea agreement 'is a tripartite agreement which requires the consent of the defendant, the People and the court.' [Citations.] 'Acceptance *304of the agreement binds the court and the parties to the agreement.' " (People v. Feyrer (2010)
"[A] negotiated plea agreement is a form of contract and is interpreted according to general contract principles." (Doe v. Harris (2013)
One such implied term of a plea agreement was recognized in *458People v. Harvey (1979)
We recognized a different implied term for all plea agreements in Arbuckle, supra ,
Like the Harvey rule, the Arbuckle rule has entered the standard lexicon of California criminal procedure, and has been routinely applied in the courts. (People v. Rosaia (1984)
Even after Arbuckle , however, parties to a plea agreement-i.e., the pleading defendant and the prosecuting attorney-remained free to chart a different course by making explicit on the record that the defendant did not care if the same judge pronounced sentence. To do so, the prosecutor need only secure, at the time the plea is accepted, what has come to be known as an "Arbuckle waiver." (See People v. Martinez (2005)
Following this court's decision in Mark L. , supra ,
Accordingly, a number of post-Mark L. appellate courts declined to apply Arbuckle 's same-judge rule as a categorical presumption, and instead began examining the trial record for evidence of the parties' actual intent. For example, in In re James H., supra ,
Similarly, in People v. Ruhl (1985)
This purported modification of the rule in Arbuckle by some intermediate appellate courts has begun to creep into secondary sources as well. (See 4 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Pretrial Proceedings, § 363, pp. 657-658 ["It is not always an implied term of a plea bargain that the judge who accepts the plea will impose the sentence; rather the record must affirmatively show some basis on which a defendant may reasonably expect the same judge to do the sentencing."]
Of course, "it is established that a holding of the Supreme Court binds all of the lower courts in the state, including an intermediate appellate court." (Wall v. Sonora Union High School Dist. (1966)
With all respect, we conclude they have not. Despite the belt-and-suspenders approach in both Arbuckle , supra ,
Our conclusion is buttressed by the two dissenting justices' understanding of the opinion. Justice Frank Richardson, who dissented in part, explained his position: "I respectfully dissent ... from that portion of **590the majority opinion which holds that, as a general principle , whenever a judge accepts a plea bargain one of the implied and enforceable terms of the bargain is that sentence will be imposed by the particular judge who accepts the plea. In my opinion no express promise should be made by a court, the prosecutor, or defense counsel; nor should such a condition in the usual case be routinely implied ." (Arbuckle , supra , 22 Cal.3d at p. 758,
Nor did we modify that position in Mark L. , supra ,
In support of its conclusion that the commissioner's dispositional order had the same force as that of any juvenile court judge, a conclusion in contravention of statute, the Mark L. court examined the actual facts of the case, stating that "the record indicates an actual assumption by the court and the parties that the officer taking the plea would have final and exclusive *463dispositional authority." (Mark L ., supra , 34 Cal.3d at p. 177,
In so doing, the courts went astray. As explained above, Mark L . addressed and resolved a particular double variation of the standard Arbuckle situation: a juvenile offender instead of an adult, and a court commissioner instead of a judge. The court's remarks about the juvenile's intent related solely to the authority of the commissioner. That the court did not purport to undermine or recharacterize the basic Arbuckle premise is clear from its citation to and copious quotation from the Arbuckle opinion. Thus, before evaluating the "actual assumption" of the parties when the court received the minor's admissions, the Mark L. court said: "In [Arbuckle ] this court held that '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. Because of the range of dispositions available to a sentencing judge, the propensity in sentencing **591demonstrated by a particular judge is an inherently significant factor in the defendant's decision to enter a guilty plea. [Citations.]' Thus, the sentence imposed by a judge other than the one who took the plea 'cannot be allowed to stand.' " (Mark L. , supra , 34 Cal.3d at pp. 176-177,
Finally, we note that this court recently cited with apparent approval Arbuckle 's general rule of a term implied in all plea bargains, albeit in a *311slightly different context. In People v. Rodriguez (2016)
Focusing on whether the first trial judge is "available" within the meaning of Penal Code section 1538.5, subdivision (p), we held that "to adequately protect a defendant's statutory right under section 1538.5(p), ... 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. [Citations.] 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 , 1 Cal.5th at p. 691,
In reaching this conclusion, we observed our conclusion in Rodriguez was "in line" with that reached in Arbuckle (Rodriguez , supra , 1 Cal.5th at p. 691,
In sum, because of the plain meaning of the Arbuckle opinion, the contemporaneous understanding of that opinion by the Arbuckle dissenters, the understanding by the intermediate appellate courts and legal commentators in the years immediately following the case, this court's citation of Arbuckle with approval in both Mark L. , supra ,
In light of our conclusion today, the People's argument that the record does **592not indicate K.R. subjectively intended to retain his right to sentencing before Judge Sapunor is rendered moot. But the People also argue that even if the original understanding of Arbuckle is retained, K.R. is not entitled to relief because Judge Sapunor did not retain discretion over sentencing when he took the plea, as required by Arbuckle . It does not appear the People raised this argument below (Cal. Rules of Court, rule 8.500(c)(1) ; People v. Braxton (2004)
The People further argue a pleading defendant (or juvenile) can protect their Arbuckle rights by striking an express agreement to have the same judge preside at both change of plea (admissions) and sentencing (disposition). Such a rule, the People argue, "would encourage defendants to specifically negotiate an Arbuckle term and ensure it is placed on the record," and will "foster greater accuracy in the enforcement of plea agreements." But so long as parties to a plea agreement understand the same-judge guarantee is implied in every plea agreement (absent an Arbuckle waiver), the terms of the plea should be clear to all. To the extent the People seek to place the burden on a pleading defendant or juvenile to make his or her preferences explicit on pain *313of forfeiting the right to the same judge at sentencing, the People would turn Arbuckle on its head. Under the law as proposed by the People, the Arbuckle rule will have morphed from one in which courts should assume the same judge will be the sentencer unless the prosecution can show otherwise , to one in which courts will find the same judge will be the sentencer only if the defendant can show that the parties so intended . Were we to accept the People's argument, instead of opting out with an Arbuckle waiver , pleading defendants (and juveniles) would have to affirmatively opt in by providing an Arbuckle invocation . Considerations of stare decisis aside, the People have provided no persuasive reason to abandon the original meaning of Arbuckle .
III. CONCLUSION
The judgment of the Court of Appeal denying K.R.'s petition for writ of mandate is reversed, and the cause remanded with directions to grant the petition.
We Concur:
Liu, J.
Cuéllar, J.
Kruger, J.
DISSENTING OPINION BY CANTIL-SAKAUYE, C.J.
Cantil-Sakauye, C.J.
The majority today purports to return California law to the original rule intended by **593the majority of this court in People v. Arbuckle (1978)
Contrary to the view of the majority, the "clear import" of Arbuckle was not that a "same judge" term is necessarily implicit in every plea bargain in California. (Maj. opn., ante , at p. 461.) Indeed, Arbuckle 's statement that "[a]s 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" (Arbuckle, supra, 22 Cal.3d at pp. 756-757,
*314The latter meaning is more reasonable because it reads Arbuckle in light of the fundamental principles on which it was based.
As courts have recognized, "Arbuckle was not premised on constitutional or statutory mandates, but rather on contract principles, speaking to a 'defendant's expectations and reliance on the plea bargain's implied terms.' " (People v. McIntosh (2009)
The majority contends, however, that the two concurring and dissenting opinions in Arbuckle make clear that the contemporaneous understanding of the majority's language was that of a categorical rule, not simply of a generally true expectation that must find factual support in the circumstances of each case. I disagree. Although the majority opinion picks out certain phrases to highlight in Justice Richardson's concurrence and dissent and rephrases Justice Clark's concurrence and dissent to suggest that the dissenters understood the Arbuckle majority's language as recognizing a same-judge term would be implied in "all" plea bargains (maj. opn., ante , at pp. 461-462), I do not read their dissents to be making that point. Justice Richardson's position, with which Justice Clark agreed, was that "no express promise should be made by a court, the prosecutor, or defense counsel; nor should such a condition in the usual case be routinely implied. A promise to a defendant that a particular judge will impose sentence has been held to be improper, because it encourages 'judge-shopping,' an undesirable practice that should be discouraged." ( *467Arbuckle, supra , 22 Cal.3d at p. 758,
Regardless, what is clear is that a dissenting justice's views should not be used to construe the meaning of the majority opinion. "Characterization by the ... dissenters of the scope of the majority opinion is, of course, dubious authority...." (People v. Caballero (2012)
More relevant than the views of the dissenting justices is this court's method of analyzing the Arbuckle claim asserted in In re Mark L. (1983)
As the majority opinion points out, decisions of the Fifth District Court of Appeal initially applied Arbuckle 's principle categorically. (Maj. opn., *316ante , at pp. 458-459, citing People v. Rosaia (1984)
Indeed, as the Court of Appeal recognized here, "[n]otwithstanding ... vestiges of Arbuckle 's'general principle,' it appears ... to have been settled law for more than 25 years that an Arbuckle right to be sentenced by the *317judge who accepted a negotiated plea arises ... only when the specific facts of a given case show that the plea was given 'in expectation of and in reliance upon sentence being imposed by the same judge.' " This long-established view represents the better understanding of Arbuckle , supra ,
Moreover, if Arbuckle had actually identified a term universally implied in plea bargaining-that parties always intend the judge who accepts the plea bargain to be the judge who imposes sentence-one would expect to find common recognition of this principle by other courts in other *469jurisdictions. In fact, however, no other state or federal jurisdiction before or after Arbuckle has ever held that such an implied term exists in all plea bargaining situations. (See e.g., People v. Simmons (N.Y.Crim.Ct. 1996)
In my view, the majority's interpretation of Arbuckle also builds in an opportunity for gamesmanship. Under Arbuckle "mere administrative convenience" cannot thwart a defendant's reasonable expectation of having the same judge for sentencing. (Arbuckle, supra , 22 Cal.3d at p. 757, fn. 5,
And given that a same-judge term will hereafter always be implied in negotiated pleas, without reference to the record, and that some defendants may strategically decline to enter an Arbuckle waiver, the routine rotation of assignments for judges in multi-judge courts, perhaps sitting in different locations, may be hampered. The use of visiting and temporarily assigned judges, vital in many courts with judicial vacancies or case overloads, will be more difficult. Other practical problems for the administration of our system of plea bargaining may be posed. Although I accept that such difficulties must be accommodated when a same-judge term is part of the parties' actual plea *318bargain, the burden on our courts under the majority's opinion today is unjustified by any actual expectation of the defendant, prosecutor, or trial judge.
In my view, this case presents a clear example. On May 28, when K.R. appeared in department 97 for the settlement conference hearing, his attorney notified the court that a plea agreement had been reached and she summarized its terms for visiting Judge Sapunor. She gave no indication that Judge Sapunor's presence as a visiting, assigned judge was material to the agreement. After Judge Sapunor accepted K.R.'s admissions and as he was proceeding with disposition, the probation department presenter interrupted to raise a concern regarding the anticipated travel arrangements to be made by K.R.'s grandmother. In discussing whether, in light of such concern, the disposition should be "put ... out for a week," Judge Sapunor did not use the personal pronoun "I" in referring to any action to be taken at the continued disposition hearing. No mention was made of setting the hearing for a time when Judge Sapunor would be available. Nor was there any representation that Judge Sapunor would be returning to department 97 the following week. According to the ruling and order of Judge Arguelles, at the time of the plea, he was scheduled to be presiding over department 97 on the continued hearing date. It appears that department 97 was Judge Arguelles's regular *470department. Indeed, Judge Arguelles had presided over K.R.'s original delinquency proceedings in that department and had previously handled his violations of probation. Yet K.R.'s attorney stated that her "only request is that if we put the case over for one week, the time slots have to coordinate with the flight information." (Italics added.) In sum, there is simply nothing in the record to support the claim that K.R.'s admissions were given in expectation of and reliance upon disposition being imposed by Judge Sapunor the following week. By the majority's decision, K.R. is, therefore, reaping the benefit of a plea term that was not part of his plea deal.
I would affirm the judgment of the Court of Appeal in this case and therefore, dissent from the majority's decision.
We Concur:
Chin, J.
Corrigan, J.
Our factual summary is principally drawn from the record provided by K.R. with his petition for writ of mandate in the Court of Appeal, as supplemented with additional factual information contained in the juvenile court's July 6, 2015 order denying K.R.'s Arbuckle claim. As did the Court of Appeal below, we take judicial notice of that order on our own motion. (Evid. Code, §§ 452, subd. (d), 459, subd. (a).)
Arbuckle recognized that enforcing the same-judge rule might sometimes be inconvenient. "We recognize that in multi-judge courts, a judge hearing criminal cases one month may be assigned to other departments in subsequent months. However[,] 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. If the original judge is not available for sentencing purposes after a plea bargain, the defendant must be given the option of proceeding before the different judge available or of withdrawing his plea." (Arbuckle, supra, 22 Cal.3d at p. 757, fn. 5,
See, e.g., 2 Erwin et al., California Criminal Defense Practice (2016) Arraignment and Pleas, chapter 42.44[1], pages 42-154.8(5) to 42-154.9 ("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"); California Criminal Law: Procedure and Practice (Cont.Ed.Bar 2015) Pronouncing Judgment, section 35.11, page 1028 ("A defendant who pleads guilty has the right to be sentenced by the judge before whom the guilty plea was entered if that judge retained sentencing discretion under the agreement" (italics omitted)). Early editions of treatises by Professor Laurie Levenson and Bernard Witkin similarly interpreted Arbuckle as stating a general rule. (Levenson, Cal. Criminal Procedure (2002-2003) Plea Bargaining, ¶ 14:17, p. 598 ["When the plea agreement provides that the judge who accepts the plea retains sentencing discretion, that judge must sentence the defendant"]; Witkin, Cal. Criminal Procedure (1985 Supp.) Proceedings Before Trial, § 265-O, p. 335 quoting Arbuckle.)
California Judges Benchguides: Criminal Proceedings (CJER 2013) Felony Arraignment and Pleas, section 91.29, page 91-26 ("When 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").
In the 1997 edition of their treatise, authors Seiser and Kumli, citing Arbuckle, stated without qualification that "[a] minor has the right to have the same judge who took his or her admission conduct the disposition hearing." (Seiser & Kumli, Cal. Juvenile Courts Practice and Procedure (1997) Delinquency, § 3.92[1], p. 3-94.)
Letteer was disapproved on another point in Peracchi v. Superior Court (2003)
This qualifying statement, which appears in the 2012 edition of the Witkin and Epstein treatise, was first added by the treatise writers for the 1989 edition, citing People v. Ruhl, supra,
This qualifying statement, which appears in the 2016 edition of the Levenson treatise, was first added by the treatise writer for the 2010-2011 edition, citing People v. McIntosh, supra,
This qualifying statement, which appears in the 2016 edition of the Seiser and Kumli treatise, was first added by the treatise writers in the 2000 edition, citing People v. Horn, supra,
To the extent People v. McIntosh, supra,
According to the majority opinion, the Arbuckle rule, as understood by the appellate courts in Rosaia, DeJesus, and Ray O., "has entered the standard lexicon of California criminal procedure." (Maj. opn., ante, at p. 459.) In support, the majority opinion points to a number of secondary sources-treatises, practice manuals, and a bench guide. (Maj. opn., ante, at p. 459, fns. 3, 4, 5.) It is true that the "Arbuckle rule" has become part of our standard lexicon, but it is not true that secondary authorities uniformly understand that rule to be a categorical one. Indeed, later editions of several of the treatises cited by the majority opinion, as the majority acknowledges (maj. opn., ante, at p. 461), reflect a different view. (4 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Pretrial Proceedings, § 363, pp. 657-658 ["It is not always an implied term of a plea bargain that the judge who accepts the plea will impose the sentence; rather the record must affirmatively show some basis on which a defendant may reasonably expect the same judge to do the sentencing"]; Levenson, Cal. Criminal Procedure (The Rutter Group 2016) Plea Bargaining, ¶ 14:18, p. 14-20 ["The key to whether a defendant has the right to withdraw his plea when he will be sentenced by a different judge is a determination of whether the defendant's plea bargain carried with it an implied term or express promise to be sentence[d] by a particular judge"]; Seiser & Kumli, Cal. Juvenile Courts Practice & Procedure (2016) Delinquency Proceedings, Disposition of Ward, § 3.92[1], p. 3-159 ["A minor will have a right to have the same judge who took his or her admission conduct the disposition hearing [citation], only if the record affirmatively demonstrates a basis for the defendant's reasonable expectation that the same judge will retain sentencing discretion"].) The history of these secondary authorities parallels the views expressed by the Fifth District Court of Appeal, which, as we have noted, also changed its mind regarding the meaning of the pertinent language of Arbuckle. The differing views among the secondary authorities further demonstrate that Arbuckle does not have a "plain" meaning. (Maj. opn., ante, at p. 464.) Nor is the common reference to an " 'Arbuckle waiver' " (maj. opn., ante, at p. 459) inconsistent with the understanding of the Arbuckle rule as the recognition of a commonly implied term regarding who will be the sentencing judge, which must in turn be factually supported by the record.
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