Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County. Super. Ct. No. JJD063333 Hugo J. Loza, Temporary Judge (pursuant to Cal. Const., art. VI, § 21), and Juliet L. Boccone, Judge.
Monica Vogelmann, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, William K. Kim and Leslie W. Westmoreland, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Cornell, Acting P.J., Detjen, J. and Franson, J.
A juvenile wardship petition alleged that appellant, then 17 years old, committed the crimes of residential burglary (Pen. Code, § 459; Count 1), unlawful taking of a vehicle (Veh. Code, § 10851, subd. (a); Count 2), receiving a stolen motor vehicle (§ 496d, subd. (a); Count 3), and receiving stolen property (§ 496, subd. (a); Count 4). Appellant admitted the allegations of Counts 1 and 2, and the remaining counts were dismissed. Appellant’s admissions were made at a hearing held on August 18, 2010, before Judge Boccone.
All further statutory references are to the Penal Code unless otherwise noted.
Appellant’s disposition hearing took place on September 2, 2010, before Commissioner Loza. At appellant’s disposition hearing, the court ordered him to serve 365 days at the youth facility under specified terms and conditions of probation. One of those terms and conditions was that appellant register pursuant to section 186.30, subdivision (b) as a gang member, within 10 days of his release from custody, with the chief of police in the city in which he resides, or with the sheriff of the county if he should reside in an unincorporated area.
APPELLANT’S CONTENTIONS
Appellant raises two contentions. First, he argues that the condition of probation requiring section 186.30 registration did not comply with the substantive or procedural (see § 186.31) requirements for its imposition and should be stricken. Respondent concedes this point, and we need not address it further. Second, appellant contends that he had a right under People v. Arbuckle (1978) 22 Cal.3d 749 (Arbuckle), to have his disposition hearing heard by the same judge who accepted his admissions (Judge Boccone), that he did not waive this purported right, and that therefore the disposition ordered by Commissioner Loza should be reversed. As we shall explain, we disagree with appellant that he had any right to have his disposition hearing held before Judge Boccone.
We will order the subject condition of probation (condition no. “24”) to be stricken, but in all other respects we will affirm the court’s September 2, 2010, disposition order.
DISCUSSION
In Arbuckle, the court stated: “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. Because of the range of dispositions available to a sentencing judge, the propensity in sentencing demonstrated by a particular judge is an inherently significant factor in the defendant’s decision to enter a guilty plea.” (Arbuckle, supra, 22 Cal.3d at pp. 756-757.) The court in Arbuckle ruled that “[b]ecause the defendant has been denied that aspect of his plea bargain, the sentence imposed by another judge cannot be allowed to stand.” (Id. at p. 757.) “Arbuckle has been extended to dispositions by judges in juvenile cases.” (In re Mark L. (1983) 34 Cal.3d 171, 177 (Mark L.).)
After Arbuckle was decided, many courts, including this one, assumed that the “general principle” of Arbuckle was that a defendant had a right to be sentenced by the same judge who took the defendant’s plea. (See In re Ray O. (1979) 97 Cal.App.3d 136, and People v. Rosaia (1984) 157 Cal.App.3d 832.) Five years after Arbuckle, the California Supreme Court in Mark L. stated: “We emphasize that here, as in Arbuckle, the record indicates an actual assumption by the court and parties that the officer taking the plea would have final and exclusive dispositional authority.” (Mark L., supra, 34 Cal.3d at p. 177.) The Mark L. court then pointed and quoted various portions of the reporter’s transcript which the court found to be indicative of that “actual assumption by the court and parties.” (Ibid.) After the California Supreme Court decided Mark L. in 1983, the California Court of Appeal, Fifth Appellate District, at first continued to hold that “unless the record indicates otherwise, a defendant will be deemed to have negotiated for the imposition of sentence by the judge who accepted the guilty plea whenever the plea leaves judicial discretion to be exercised at the time of sentencing.” (People v. Davis (1988) 205 Cal.App.3d 1305, 1309.)
Other appellate districts, however, did not read Mark L. as permitting such an assumption, and in People v. Horn (1989) 213 Cal.App.3d 701, we reconsidered whether such an assumption was appropriate, and concluded that the answer was no. We held: “‘“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 demonstrate some basis upon which a defendant may reasonably expect that the judge who accepts the plea will retain sentencing discretion. [Citation.]” [Citation.]’” (Id. at pp. 707-708; following In re James H. (1985) 165 Cal.App.3d 911; People v. Ruhl (1985) 168 Cal.App.3d 311; and People v. Serrato (1988) 201 Cal.App.3d 761, 764.) We further stated: “[T]his court disapproves its previous opinions in Davis, supra, 205 Cal.App.3d 1305, Rosaia, supra, 157 Cal.App.3d 832, and In re Ray O., supra, 97 Cal.App.3d 136, to the extent they either hold or suggest the Arbuckle term is implied in all plea bargains even in the absence of an affirmative showing on the record supporting a reasonable expectation that the judge who accepted the plea will also impose sentence.” (People v. Horn, supra, 213 Cal.App.3d at p. 708.)
As we shall explain, the record on this appeal does not affirmatively demonstrate a basis upon which appellant could reasonably expect that the judge who accepted the plea (Judge Boccone) would retain sentencing discretion. Rather, it reflects an expectation that the disposition hearing would be held by Commissioner Loza. It also includes a written stipulation signed by the deputy district attorney, appellant’s counsel, and appellant himself, that Commissioner Loza could conduct that disposition hearing.
The juvenile wardship petition was filed on August 9, 2010. The next day, August 10, appellant, his counsel, and the deputy district attorney executed a written “STIPULATION FOR THE APPOINTMENT OF COURT COMMISSIONER AS TEMPORARY JUDGE.” It stated in pertinent part: “It is stipulated between the undersigned attorneys that the above-entitled matter has been assigned to and may be heard until final determination of the cause, including the trial thereof and sentencing, if any by HUGO J. LOZA, Commissioner for the County of Tulare, sitting as a Temporary Judge.” The stipulation further stated that it applied “For all purposes” and not merely for that day’s proceedings. A detention hearing was held on August 10 in the courtroom of Commissioner Loza (Department C). On that date, appellant was ordered to be placed on an electronic monitor.
On August 18, 2010, appellant admitted the Count 1 and Count 2 allegations in the courtroom of Judge Boccone (Department A). At the August 18 hearing, the deputy district attorney mentioned that Department C (Commissioner Loza’s department) “is dark today.” After appellant made his admissions, Judge Boccone ordered appellant to return on September 2 “in this department, for a disposition.” When the deputy district attorney then inquired “That will be in this department or Department C?” the court at first replied “[t]his one will be in this department” but then changed course and said “[w]ell, I can put it in Department C.” The August 10 hearing then ended. At this point everyone - appellant, appellant’s counsel, and the deputy district attorney, clearly all understood that the September 2 hearing would be in Department C (Commissioner Loza’s department). On September 2, that is exactly what happened - appellant’s disposition hearing was held in Department C, without objection from anyone.
Appellant argues that his failure to object on September 2, 2010, in Department C to his disposition hearing being held there “is insufficient to constitute a waiver of the right to enforce the implied term, ” but this argument erroneously assumes that an implied term of the agreement to admit Counts 1 and 2 and to dismiss Counts 3 and 4 was that appellant’s disposition hearing would be before Judge Boccone, not Commissioner Loza. There is nothing in the record which would support the existence of any reasonable expectation by appellant that his disposition hearing was to be held in Judge Boccone’s courtroom. “[A] defendant’s failure to object is relevant in determining whether the record supports the conclusion that the plea was entered in reliance on the sentencing judge being the same as the judge accepting the plea. The defendant’s failure to object is relevant in determining whether an Arbuckle right was ever a term of the plea. A defendant’s failure to object when faced with a different sentencing judge suggests he did not enter his plea in reliance on or with the understanding that the judge accepting his plea would also impose sentence.” (People v. Horn, supra, 213 Cal.App.3d at p. 709.) Here, not only does the lack of any objection at the September 2 disposition hearing before Commissioner Loza suggest that any plea agreement did not include an “Arbuckle right” - so does the lack of any objection at the August 18 admission hearing when Judge Boccone herself announced that she would not be holding the September 2 disposition hearing in her courtroom.
DISPOSITION
Condition “24” of the September 2, 2010, disposition order is stricken. In all other respects, the disposition order is affirmed.