R. (K.) v. S.C. (PEOPLE)

Petitioner’s Petition for Review with Request for Stay

Cal.January 11, 2016

$231'709 SUPREME COURT FILED CASE NO. JAN 11 2016 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA Frank A. McGuire Clerk KR, Deputy COURT OF APPEAL NO. C079548 Petitioner, Vv. SUPERIOR COURT OF SACRAMENTO COUNTY,SITTING AS A JUVENILE SUPERIOR COURT OF SACRAMENTO | COURT, DEPARTMENT 97 COUNTY, SITTING AS A JUVENILE COURT, Juvenile Court Petition No. 134953 Respondent, PEOPLE OF THE STATE OF | HONORABLE JAMES P. ARGUELLES, Les CALIFORNIA, JUDGE (916) 876-9047 i... Party in Interest. PETITION FOR REVIEW FROM DENIAL OF PETITION FOR WRIT OF MANDATE AND REQUEST FOR IMMEDIATESTAY OF JUVENILE DELINQUENCY PROCEEDINGSSET FOR FRIDAY, JANUARY15, 2015 PAULINO G. DURAN PUBLIC DEFENDER County of Sacramento 9605 Kiefer Blvd., Room 302 Sacramento, California 95827 *ARTHUR L. BOWIE, SBN 157861 Supervising Assistant Public Defenders (916) 874-5208 bowiea@saccounty.net Patricia Contreras, SBN 214497 Assistant Public Defender Attorneys for Petitioner CASE NO. IN THE SUPREME COURT OF THE STATE OF CALIFORNIA K.R., COURT OF APPEAL NO. C079548 Petitioner, Vv. SUPERIOR COURT OF SACRAMENTO COUNTY, SITTING AS A JUVENILE SUPERIOR COURT OF SACRAMENTO COURT, DEPARTMENT97 COUNTY, SITTING AS A JUVENILE COURT, Juvenile Court Petition No. 134953 Respondent, PEOPLE OF THE STATE OF HONORABLEJAMESP. ARGUELLES, CALIFORNIA, JUDGE (916) 876-9047 Party inInterest. PETITION FOR REVIEW FROM DENIAL OF PETITION FOR WRIT OF MANDATE AND REQUEST FOR IMMEDIATE STAY OF JUVENILE DELINQUENCY PROCEEDINGSSET FOR FRIDAY, JANUARY15, 2015 PAULINO G. DURAN PUBLIC DEFENDER County of Sacramento 9605 Kiefer Blvd., Room 302 Sacramento, California 95827 *ARTHUR L. BOWIE, SBN 157861 Supervising Assistant Public Defenders (916) 874-5208 bowiea@saccounty.net 3 Patricia Contreras, SBN 214497 Assistant Public Defender od in M A D M A N a t t i a e Attorneys for Petitioner -II- QZreereteretetenenaseeeecnnnteeeeecceeceneccennnannnanseeenenseensen406°8LUNODAOSIN VINYOAITVOOLLINVOSUNdNOILVOMILYSOLVWYOdSarda CZrorttrneeeteesenneeesnneeenanseeeeneesssnaseceesssasnecsssnansesescanaccsanecesensstesNOISN’IONOD oc0™‘$10280AVINVDAEYONNdVSADNAN!NOLLISOdSIC CHLVILODANAHLALATdANOOOLYTYONEYVAWIdOdd NOGdaSVdLYNOODATINAANLFHLSVONILLIS“YONNdVS MOVEADaNLLUNOSDWOPMsAdNSAINNODOLNAWVAOVS OLSOVASVOS.YaNOILILAdYAASNVULOLONISOSAA NIGaeta“LUNOODATINAANLFHLSVDNILLIS“SHTTANDUV SHNVFOGNLLUNODWORIAdNSALNNOSDOLNYNVAOVS yzrrtsrresetesseeeseteesseeeneensennasenusesnsseesnannasesunsseesunnenneten GycirstrreretsseetneeentnsseeensecssaeeeseeseeseeneeseeeNOINTdOTydda¥40LAN0D yycwrtesseesseenseotnsesensnsonssnsseuseseuseenssesasannsnvenS1vddOINIWALVIS gycrissesseenssessnetnseseseseeneensesscevnsenssetenstnASV)JHILdOINIWALVILS GceesttsssetsseennsnetnsseeennstensninenAMIATYONILNVYDdOFONVLYOUNI ZvttsstesssessnnsssonnssseesenoussnssousensnseAMAIATHYOdCALNASTHaSANSSI [ppcreecesseessesseenseeensoneseenatnaetnnnenannnsneeannieSSILTIOHLAVAOFIAVL ypsrssrsseessenseesssesnseeesetuseeseasaeusnanneunnnnansenSINAINODdOFTaVI SINALNODJOaTdvViL TABLE OF AUTHORITIES Cases Inre James H. (1985) 165 Cal.App.3d 911 ooeeeeeseeessenereeseeesaceeees 15 Inre Mark L, (1983) 34 Cal.3d 171cecccccesseseesseseeeseceeeeeesenceeeeeeseees passim In re Ray O. (1979) 97 CalApp.3d 136.00... csseceseeseesreeeeeateesenees 3,5, 22 Inre Thomas S. (1981) 124 Cal.App.3d 934oeeeseesceceeeneeeseeeees 5, 15, 22 John L. v. Superior Court (People) (2004) 33 Cal.4th 158 oo.eeseeeeees 8 People v. Arata (2007) 151 Cal.App.4th 778 occceeesseeeessssesenseeenens 4,19 People v. Arbuckle (1978) 22 Cal.3d 749 oo... eseeesesssecetessseesersetees passim People v. De Jesus (1980) 110 CalApp.3d 413 ooeeeeeceseeeeeeeteees 5, 22 People v. Horn (1989) 213 Cal.App.3d 701 cseesseecseeeeeeens 7, 15, 18, 24 People v. Pedregon (1981) 115 Cal.App.3d 723 oeeseeeseeeeseteeseesees 5, 22 People v. Rosania (1984) 157 CalApp.3d 832 oo. ceeecssscsessnecterseeeeseeeseeaes 5 People v. Ruhl (1985) 168 Cal.App.3d 311 oo.eeesesseesseeeseseeeseeetesaeeees 7 Statutes Penal Code section 211 oo... eeececeseesseessoneeeseeseesevscerseeseanereeesesseeeeeseetseeens 8 Penal Code section 417(a)(1).....c...ccccesccsssssssssesssessesecseeecssesseecssensueceeaeeesees 8 Penal Code section 417.4iceesessssssssneccsssseesssevseeceesesescnaseseeeseesretasseees 10 Penal Code section 417(a)(1).........csccssscscessssecsscessssessesseaesssseecessrsseeesesaesatens 8 Penal Code section 417(a)(2).........::cccsscecesssssessssssesssnsessneesnneseessesesessnessesaes 10 Penal Code section 422 oo... cssccesseseeeeeseeneeensvessevseceseecessueeccessueceseeseesee 8 | Welfare and Institutions Code section 250-2540... ecsseseeesseeesreeeeees 6, 23 Welfare and Institutions Code section 602 0.0... eeeeeeesLestesenceneeesnecsesaceees 8 Welfare and Institutions Code section 777(8)(2) ......ccsscccsscccsessessesseeeenees 9-10 Rules California Rules of Court, Rule 8.500 wu...cccseeesesesssssssescsssssssessenseseees 5 California Rules of Court, Rule 8.504 oo... cescccscsseccecsserececeesecsesersstessess 26 - iii - ARTHUR L. BOWIE, SBN 157861 SUPERVISING ASSISTANT PUBLIC DEFENDER OFFICE OF THE PUBLIC DEFENDER SACRAMENTO COUNTY 9605 KIEFERBOULEVARD, ROOM 302 SACRAMENTO, CALIFORNIA 95827 (916) 874-5208 | NO. S IN THE SUPREME COURT OF THE STATE OF CALIFORNIA K.R., COURT OF APPEAL NO.C079548 A Minor AndPetitioner, Vv. SUPERIOR COURT OF SACRAMENTO COUNTY, SITTING AS A JUVENILE SUPERIOR COURT OF SACRAMENTO COURT, DEPARTMENT97 COUNTY,SITTING AS A JUVENILE COURT, Juvenile Court Petition No. 134953 Respondent, PEOPLE OF THE STATE OF HONORABLE JAMESP. ARGUELLES, CALIFORNIA, JUDGE (916) 876-9047 Parties in Interest. MINOR/APPELANT/PETITIONER’S PETITION FOR REVIEW ISSUES PRESENTED FOR REVIEW The issues presented here is whether “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” as announced in People y. Arbuckle (1978) 22 Cal.3d 749, 756-757; or, does a defendant/minor have to enter an express condition of the plea agreementthat the judge that takes his/her admission will impose sentence/disposition as a condition of the plea agreement. In this case after petitioner, the prosecutor, and Sacramento County Superior Court Judge Jack Sapunor, Sitting as the Juvenile Court, worked out a plea/admission agreement to which petitioner would admit that he violated the terms and conditions of his probation for an indicated disposition, when another judge, Sacramento County Superior Court Judge James Arguelles, Sitting as the Juvenile Court, intervened and refused to carry out the negotiated disposition, and likewise refused to allow petitioner to set this matter at a date certain that Judge Sapunor wasavailable to impose the negotiated disposition, in violation of Arbuckle. (Petition for Writ of Mandate Exhibit 1.)! ' Petition for Writ of Mandate hereinafter referred to as “PWM”. Petitioner entered into a negotiated admission that he violated the terms and conditions of his probation with an indicated disposition as part of the negotiated admission. Petitioner has a right to the benefit of the bargain and to a disposition by the judge that approved the negotiated admission pursuant to Arbuckle. The instant court has refused to impose the negotiated disposition and unlawfully refused to allow petitioner to return to the court that approved and tookpetitioner’s admission as part of the negotiated admission. Thereafter, petitioner filed a writ of mandate in the Third District Court of Appeal which wrongfully decided the issue and denied petitioner’s writ in case number C079548. In denying petitioner’s writ, the court of appeal misinterpreted Arbuckle when juxtaposed with this Court’s holding in In re Mark L. (1983) 34 Cal.3d 171, stating, “In applying Arbuckle in Mark L., the Supreme Court took the opposite course from that charted by the courts of appeal in Ray O. and its progeny. Specifically, the Supreme Court did not invoke the broad general rule from Arbuckle and instead looked to the record in the case before it to see whether the record ‘indicate[d] an actual assumption by the court and parties that the officer taking the plea would have final and exclusive dispositional authority.’ (Mark L., at 177.)” (Slip opinion at p. 13.) Based on this interpretation of Mark L., the Court of Appeal in error has now created a requirement that Arbuckle essentially has to be an express condition of a plea bargain, rather TE T E R A E r a E S R n e a than the general rule that it is an implied condition. So now, rather than having to enter an “Arbuckle waiver,” a defendant has to show that it was a condition of the plea bargain. However, the court of appeal does acknowledge that there is still confusion as to Arbuckle’s “broad statements of the general rule” in other jurisdictions, e.g., People v. Arata (2007) 151 Cal.-App.4th 778,787, and in variouslegal treatises. (See slip opinionat p. 15.) The question here is whether Arbuckle’s general rule 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.” (People v. Arbuckle (1978) 22 Cal.3d 749 756-757.) Or, does a defendant/minor have to enter an express condition that the judge who takes his admission as part of a plea agreement will impose sentence/disposition as a condition of the plea agreement. Furthermore, in this case particularly, did the court error in finding that petitioner did not have a reasonable expectation that the judge that took his admission to the violation of probation retained sentencing discretion based on the record before the court, even if its interpretation of Mark L. is correct. (Slip opinionat p. 23.) IMPORTANCE OF GRANTING REVIEW A decision on this issue is necessary to settle an important issue of law. (Cal. Rules of Court, rule 8.500, subdivision (b)(1).) People v. Arbuckle (1978) 22 Cal.3d 749, 756-757, holds, “As a general principle. . whenevera 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.” For several years following that decision from the California Supreme Court the courts of appeal consistently applied the general rule stated in Arbuckle, without regard to any individualized analysis as to whether the defendant in a particular case had reason to believe based on the specific facts of the case that the judge who accepted the negotiate plea would be the one who imposed sentence. (See In re Ray O. (1979) 97 Cal.App.3d 136; People v. DeJesus (1980) 110 Cal.App.3d 413; People v. Pedregon (1981) 115 Cal.App.3d 723; In re Thomas S. (1981) 124 Cal.App.3d 934; People v. Rosania (1984) 157 Cal.App.3d 832.) In 1983, the California Supreme Court issued an opinion in Jn re Mark L. (1983) 34 Cal.3d 171, to resolve the issue as to “whether [Arbuckle] applied to the bargained plea in this case, since the plea was entered before a juvenile court officer other than a regular judge.” (Mark L. at p. 177.) The issues surrounding Mark L. were solely related to court commissioners or juvenile court referees taking pleas and retaining disposition rights under Arbuckle in light of the juvenile court’s review powers expressed in Welfare and Institutions Code section 250-254. In passing, this Court made the observation that, “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.” This statement by the Court was simply dicta; a factual observation, and not a holding of the Court that in every case henceforth the record had to explicitly show that the court taking a plea would have final and exclusive dispositional or sentencing authority. As a result, the misinterpretation of Mark L. has resulted in a quarter century of confusion in this area of the law. The Mark L. decision was not a reworking or refining of Arbuckle, but simply a statementas to how it applied to juvenile court commissioners and referees. However, as a result of Mark L. several lower courts went off on a tangent and began to broaden the interpretation of Arbuckle to no longer be a general proposition or “right,” but holding that in light of Mark L., the pronouncementin Arbuckle is not “always an implied term of a plea bargain that the judge who accepts the admission or plea will impose the sentence”; instead, the record must be examined to determine whether it contains “the type of factors relied on in Arbuckle and In re Mark L. to support the assumption that the admission was entered in expectation of and reliance upon disposition being imposed by the same judge.” (James H. (1985) 165 Cal.App.3d 911, 919-920.) Since then, several cases have followed this line of reasoning when applying an Arbuckle analysis. (See People v. Ruhl (1985) 168 Cal.App.3d 311; People v. Horn (1989) 213 Cal.App.3d 701.) Now,the court of appeal in this case has gone one step further and essentially held that what was once knownas an “Arbuckle waiver” which recognized the general rule that the judge that was taking the plea in a negotiated settlement implicitly would be the sentencing judge, has evolved into a requirement that a defendant make Arbuckle an express condition that the judge whotakes the plea will also be the sentencing judge, effectively overruling People v. Arbuckle. Due to the confusion raised by the misinterpretation of Mark L.; the contrary guidance being given in the legal literature interpreting Arbuckle; the split of opinions in the courts of appeal interpreting Arbuckle; and the court of appeal’s error in this case in finding that petitioner did not have a reasonable expectation of and reliance upon the judge that took his admission would preside over his disposition, petitioner urges this court to grant review. Failure to do so will only lead to further confusion in the lower courts and a misunderstanding of Arbuckle’s general rule that in S O R E N E E E r e g every plea bargain is an implied condition that the judge taking the plea will be the judge imposing sentencing. If that is not the case, then there should be a clear statement from this Court indicating that every plea bargain should contain an express condition that the judge taking the plea will be the sentencing judge. This Court may transfer the case back to the Court of Appeal to correct the errors made below. (Cal. Rules of Court, rule 8.500, subdivision (b)(4); John L. v. Superior Court (People) (2004) 33 Cal.4th 158, 168.) STATEMENT OF THE CASE Petitioner is the minor in the above-entitled juvenile delinquency action now pending in Sacramento County Superior Court Sitting as the Juvenile Court. When petitioner was 13-years-old, he was charged by way of a Welfare and Institutions Code section 602” original petition, filed on March 13, 2013, alleging he committed one count of robbery, in violation of Penal Code section 211, a felony; one count of criminal threats, in violation of Penal Code section 422, a felony; and one count of brandishing a knife, in violation of Penal Code section 417, subdivision (a)(1). (PWM Exhibit 2.) ? Statutory referencesare to the Welfare and Institutions Code unless otherwise specified. On August 8 & 20, 2013, the juvenile court held a jurisdictional hearing before Sacramento County Superior Court Judge James Arguelles, Sitting as the Juvenile Court, on the originalpetition filed March 13, 2013. (PWM Exhibit 3; and PWM Exhibit 4.) At the conclusion of the jurisdictional hearing the court sustained all of the alleged counts of the original petition. (PWM Exhibit 4.) On September 6, 2013, Sacramento County Superior Court Judge James Arguelles, Sitting as the Juvenile Court, held a disposition hearing on the original petition. (PWM Exhibit 5.) The court adjudged petitioner a ward of the court; committed him to the care and custody of his mother under the supervision of the probation officer: ordered him to serve 150 days in juvenile hall, with 76 days predisposition custody credit; and ordered him to perform 40 hours of community service, among over 20 other terms and conditions of probation. (PWM Exhibit 5.) On April 9, 2015, petitioner’s probation officer filed a violation of probation pursuant to section 777, subdivision (a)(2), alleging that petitioner violated his probation by remaining away from homeovernight without permission;failing to keep the probation officer informed abouthis location; using marijuana; and for violating the law by possessing marijuana on school grounds, giving a false name to a law enforcement officer, and trespass on a school campus. (PWM Exhibit6.) On April 14, 2015, the prosecutor filed a violation of probation pursuant to section 777, subdivision (a)(2), alleging that petitioner violated the terms and conditions of his probation by brandishing a firearm, in violation of Penal Code section 417, subdivision (a)(2); and by brandishing a replica firearm, in violation of Penal Code section 417.4 (PWM Exhibit 7.) On April 15, 2015, petitioner appeared before the juvenile court relative to the two violations ofprobation filed against him on April 9, 2015 (PWM Exhibit 6), and April 14, 2015 (PWM Exhibit 7), for a detention hearing before Sacramento County Superior Court Judge Doris Shockley, Sitting as the Juvenile Court. (PWM Exhibit 8.) Petitioner was ordered detained and a settlement conference was set for April 28, 2015. (PWM Exhibit8 at p. 2.) On April 28, 2015, petitioner appeared before Sacramento County Superior Court Judge Jack Sapunor, Sitting as the Juvenile Court for a settlement conference regarding the twoviolations of probation filed April 9, 2015 and April 15, 2015. The settlement conference was continued to May 12, 2015. (PWM Exhibit 9.) On May 12, 2015, petitioner appeared before Sacramento County Superior Court Judge James Arguelles, Sitting as the Juvenile Court for a settlement conference regarding the two violations of probation filed April 9, 2015 and April 15, 2015. Again the settlement conference was continued to May 28, 2015. (PWM Exhibit 10.) -10- On May 28, 2015, petitioner appeared before Sacramento County Superior Court Judge Jack Sapunor, Sitting as the Juvenile Court for a settlement conference regarding the two violations of probation filed April 9, 2015 and April 15, 2015. (PWM Exhibit 11.) At the May 28, 2015, settlement conference, petitioner negotiated a plea/admission agreement with the prosecutor in that he would admit that he “remained away from home overnight without the permission of his parent,” as alleged in the violation of probation filed on April 8, 2015 [sic]; and that he brandished a replica firearm as alleged in the violation of probation filed on April 14, 2015. (PWM Exhibit 11 at p. 1.) In exchange for his admission to the two violations of probation, it was agreed “with an understanding that the disposition would be 54 days in custody of juvenile hall.” (PWM Exhibit 11 at pp. 1-2.) The parties further agreed, in exchange for petitioner’s admission that the case would be reset for June 4, 2015, to allow petitioner’s grandmother time to show proof that she purchased an airline ticket for petitioner to travel to Nevada where his mother currently resides, and the case would then be transferred-out to Nevada for purposes of wardship supervision in the State of Nevada. (PWM Exhibit 11 at p. 2.) The court (Judge Sapunor) agreed with the negotiated plea/admission and indicated disposition with the understanding that the court was “going to order the transfer today and then calendar it for a week to make sure that [is] accomplished.” (PWM Exhibit 11 at p. 2.) -1ll- With that understanding, the court took petitioner’s admission to the two violations of probation and waiver by counsel. (PWM Exhibit 11 at pp. 2-4.) Prior to the court imposing disposition, the court presenter (probation officer) explained to the court that if the parties came back in a © week and the grandmother did not have anairline ticket for petitioner, the parties ran the risk of having to redo the disposition orders. The court agreed and suggested that the case “ought to [be] put [] out for a week to make sure that the disposition goes as planned.” The parties agreed and coordinated the scheduling of the case. Counsel for petitioner memorialized the agreement of the parties stating, “We can continue putting dispo over for the final terms to one week from today in the morning. (PWM Exhibit 11 at p. 4.) The court presenter included, “We can sign all the interstate on that date also.” (PWM Exhibit 11 at p. 5.) The court continued the disposition hearing to June 4, 2015, concluding “TPetitioner’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.” (PWM Exhibit 11 at p. 5.) On June 4, 2015, petitioner appeared before Sacramento County Superior Court Judge James Arguelles, Sitting as the Juvenile Court for further disposition regarding the two violations of probation filed April 9, 2015 and April 14, 2015. Petitioner’s grandmother was present. (PWM -12- R R E E Exhibit 12.) Rather than simply following through with the negotiated admission/plea, at the beginning of the continued disposition, the court indicated that it recognized that counsel appearing on behalfof petitioner and counsel appearing on behalf of the District Attorney were not the lawyers involved in the negotiated admission/plea that occurred on May 28, 2015. The court stated, “Ms. Dominisse I understand is standing in for Ms. Contreras.” The court continued, THE COURT: I was not here when the plea was taken. I have a minute order saying that May 28th the minor admitted to a violation of probation. Apparently, probation is recommending that he just be shipped off to Vegas [sic] to live with his mother.’ But as I indicated off the record I remember Khaalis from his first trial here which was a 707(b) offense and things seemed to have gotten progressively worse, and I do notthink it’s in his best interest to just go live in Vegas. I understand why from probation’s perspective it’s in their best interest because he’s not their problem anymore. But I don’t see how — he needsstructure and he’s not going to getit living with his mom in Vegas. THE COURT:So myintention was to either — my intention is probably to send him to DJJ but I'd be willing to hear argument for Level B but I understand Ms. Dominisseit’s not your case. You obviously weren’t prepared for that today so we’ve agreed just to continue the disposition over until > On April 20, 2015, priorto petitioner’s negotiated plea, the probation _ officer submitted an addendum disposition report to the court recommendingpetitioner “be continued a Ward of the Court and released to the care and custodyofhis parents Khaalis Reid Sr. and/or DeAngela Jackson or his grandmother Carol Starks. Furthermore [petitioner] is permitted to travel to Las Vegas in Clark County Nevada to reside with his mother DeAngela Jackson pursuant to Interstate Compact protocol.” (PWM Exhibit 13 at pp. 8-9.) The negotiated settlementin this case was in accord with the probation officer’s recommendation. -13- Monday which is June 8th when Ms. Contreras will be back and you can let Ms. Contreras know my comments and then — q... THE COURT:-- she can properly prepare to argue the case. (Exhibit 12 at pp. 1-2.) The court, in error, failed to follow through with the negotiated disposition in this matter and continued for further disposition hearing to June 8, 2015. (PWM Exhibit 12 at pp. 2-3.) On June 8, 2015, Superior Court Judge James Arguelles, Sitting as the Juvenile Court, in error, held a further disposition on petitioner’s case over petitioner’s objection. The original parties to the negotiated admission/plea and disposition of May 28, 2015, ie. petitioner’s counsel and prosecutor, were present. Petitioner’s grandmother was also present. (PWM Exhibit 1 at p. 1.) The court indicated that it had read the minute order from May 28, 2015 and noted that petitioner had entered an admission to counts as alleged in the two violations of probation, (one each) with the rest of the counts being dismissed. The court also indicated that “there was nothing in the minute order about an Arbuckle Waiver.” The court concluded that “Either way there’s nothing in the minute order about any kind of cap on the plea.” (PWM Exhibit 1 at pp. 1-2; PWM Exhibit 14.) -14- The court followed its observations regarding the minute order of May 28, 2015, by commenting that it was familiar with petitioner’s case, in that it conducted the original jurisdictional hearing. The court stated it reviewed all the sentencing materials. Based on the court’s preconceived observationsofpetitioner, it indicated it was not prepared to agree with the previously negotiated admission and disposition and was prepared to commit petitioner to “DJJ” but “would hear argument on Level B.” (PWM Exhibit 1 at pp. 2-3.) Petitioner’s counsel objected to the court’s going forward with a disposition hearing, explaining to the court the petitioner had not entered an Arbuckle waiver allowing another court to hold a disposition hearing in light of petitioner’s negotiated plea. Petitioner’s counsel informed the court and submitted to the court cases that support the applicability of Arbuckle to juvenile delinquency proceedings, i.c., People v. Horn (1989) 213 Cal.App.3d 701, In re James H. (1985) 165 Cal.App.3d 911, and Jn re Thomas S. (1981) 124 Cal.App.3d 934. (PWM Exhibit 1 at pp. 3-5.) Counsel argued that petitioner had the “right to [have his] disposition in front of the trial court that took [his] admission, in this case that is Judge Sapunor.” (PWM Exhibit 1 at p. 5.) Counsel further explained to the court that on May 28, 2015, the agreement ofthe parties with the approvalof the court was that petitioner’s grandmother would pay for transportation as the probation department had recommended and petitioner would be sent to -15- sn eo e ag re ei ng e n n m e w e e s re ne e ui Nevada to reside with his mother. (PWM Exhibit | at p. 5.) Counsel further explained to the court that petitioner’s grandmother appeared in court on June 4, 2015, as agreed and recommended by the probation officer, with an airline ticket for petitioner to leave th{at] afternoon at 6:50 p.m. and fly to Clark County, Nevada to be reunited with his mother where she is a permanent resident. Counsel also informed the court that the understanding with Judge Sapunor wasthat petitioner would be time served on June 4, 2015, upon proper documentation of the airline ticket and released to his grandmother to return to his mother. That was the recommendation of the probation officer and the benefit of the bargain. (PWM Exhibit 1 at p. 6; see also PWM Exhibit 11 at pp. 1-5, and PWM Exhibit 13 at pp. 8-9.) Counsel further informed the court that Judge Sapunoris presiding in Sacramento County Superior Court, Sitting as the Juvenile Court for the next two weeks (June 15-26, 2015). Counsel concluded by asking the court to set petitioner’s, now continuing, disposition in front of Judge Sapunor for him to complete petitioner’s disposition if the instant court was not willing to follow the negotiated plea/admission and disposition. Petitioner further reiterated that the instant court did not have jurisdiction to impose disposition in this case because there was no Arbuckle waiverin this case, i.e., he was not waiving his right * Judge Sapunoris a regular visiting judge for the Sacramento County - 16 - to have his disposition hearing in front of the judge that took his admission and approved the negotiated settlement. (PWM Exhibit1 pp. 6-7.) The court ordered that petitioner brief the issue of whether there was an Arbuckle waiver in this case. However, petitioner objected to further briefing in that all of the relevant cases on the issues regarding Arbuckle waivers in juvenile court had already been presented to the court; the court lacked jurisdiction to hear further disposition; and Judge Sapunor was immediately available to complete petitioner’s disposition the next week. The court, in error, denied petitioner’s objections and requests. (PWM Exhibit 1 at p. 7-8.) Counsel also, with the prosecutor present, informed the court that the District Attorney “in regards to the disposition . . . it was the intention ofall parties to have [petitioner] sent to Nevada and wardship be transferred to Nevada for Nevada County [sic] to supervise him as his mother is a resident. The court responded, “All right. So whatever. I’ve issued a briefing schedule. If you don’t want to file a brief, I guess you don’t haveto file a brief. I don’t know whatto tell you. If you don’t want to file a brief, you don’t have to file a brief.” Thereafter, the court continued the matter to July 2,2015. (Exhibit 1 at pp. 7-8.) After briefing by the parties, on June 25, 2015, petitioner filed a petition for writ of mandate in the Third District Court of Appeal. Shortly Superior Court Sitting as the Juvenile Court. -17- thereafter, on July 6, 2015, Judge Arguelles issued a written ruling in which he denied petitioner’s objection to him conducting the disposition hearing. On December 30, 2015, the court of appeal denied petitioner’s writ of mandate in a published opinion. (See slip opinion below.) STATEMENT OF FACTS For purposes of this Petition only, the underlying facts of his juvenile delinquency case are not relevant to the issues presented. Any necessary facts will be incorporated into the argument below as needed. COURT OF APPEAL OPINION The Court of Appeal denied the writ in Third District Court of Appeal Case No. C079548. (Copy attached as Exhibit A.) In this case the - court of appeal ruled, amongother things, “the minor has failed to persuade us that he entered into ‘the plea agreement here in expectation of and reliance upon Judge Sapunorpresiding over the disposition hearing. Thus, the right to have Judge Sapunor imposedisposition was neither express nor an implicit term of his plea agreement. Accordingly, the minor is not entitled to the relief he seeks in this proceeding.” (Slip opinionat p. 23.) The court of appeal based its conclusions in part on a misinterpretation of In re Mark L. as interpreted by People v. Horn (1989) 213 Cal.App.3d 701 and its progeny. However, the court of appeal did recognize that there was still confusion or differences of interpretation of - 18 - Mark L. as it applied Arbuckle citing People v. Arata (2007) 151 Cal.App.4th 778, and different interpretations of Arbuckle in severallegal treatises. (See slip opinion at pp. 15-16.) -19- DISCUSSION SACRAMENTO COUNTY SUPERIOR COURT JUDGE JAMES ARGUELLES, SITTING AS THE JUVENILE COURT, ERRED IN REFUSING TO TRANSFER PETITIONER’S CASE BACK TO SACRAMENTO COUNTY SUPERIOR COURT JUDGE JACK SAPONUR,SITTING AS THE JUVENILE COURT BASED ON PEOPLE V. ARBUCKLE TO COMPLETE THE NEGOTIATED DISPOSITION JUDGE SAPUNOR BEGAN MAY28, 2015. In this case petitioner entered into anegotiated plea/admission and disposition between himself, the District Attorney and Sacramento County Superior Court Judge Jack Sapunor, Sitting as the Juvenile Court. Petitioner admitted he violated terms and conditions of his probation in exchangefor credit time served in the juvenile hall and to be transferred to the residence of his mother in Clark County, Nevada. (PWM Exhibit 1.) The negotiated settlement and disposition was in accordance with the recommendation of the probation officer. In accordance with the negotiated plea/admission and indicated disposition, the probation officer made arrangements with Clark County, Nevada, for an interstate compact for purposed of supervising petitioner upon his arrival at his mother’s residence. (PWM Exhibit 14.) At the date and time of the admission and disposition, the probation officer was reluctant to release petitioner to his grandmother for transportation to his mother’s residence because petitioner's grandmother had not purchased anairline ticket for petitioner as of that date. The probation officer recommended to Judge Sapunorthat - 20 - the matter be put over for a few days to give petitioner’s grandmother time to secure transportation. (PWM Exhibit 1.) On the day the case was continued for petitioner’s grandmother to show proofof transportation, she did so. However, Judge Arguelles was presiding instead of Judge Sapunor. (PWM Exhibit 12.) Judge Arguelles refused to complete the disposition orders imposed by Judge Sapunor and also refused to continuepetitioner’s disposition to the next week for Judge Sapunor to finish the dispositional orders based on petitioner objection to Judge Arguelles imposing disposition pursuant to People v. Arbuckle. (PWM Exhibit 1.) - Relying on People v. Arbuckle (1978) 22 Cal.3d 749, and its progeny, petitioner contends his case must be sent back to the judge that approved his negotiated settlement, took his admissions to violations of probation, and began his dispositional orders because the record does not show he knowingly waived his right to enforce the implied term of his plea bargain and that he would be sentenced by the same judge whoaccepted his plea/admission. (PWM Exhibit1.) In Arbuckle the court held that the right to be sentenced by the same judge as the one whoaccepted the plea was an implied term of the bargain wherethe record reflected the plea bargain had been “entered in expectation of and reliance upon sentence being imposed by the same judge.” (Arbuckle, supra, 22 Cal.3d at p. 756.) There, the judge accepting the plea -21- specifically led the defendant to believe he would be the sentencing judge by use of the personal pronoun “I” when referring to sentencing in the proceeding in which the plea bargain was accepted. (Ibid.) The Supreme 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.) In this case, petitioner certainly was under the belief that the dispositional orders of his negotiated plea would be carried out at his next appearancein that the court that took his plea/admission told the parties, when they realized some logistical problems, “Maybe we ought to put this out for a week to make sure that the disposition goes as planned.” (Exhibit 11 at p. 4.) The word, “we”is likewise a personal pronoun. Subsequently, several attempts were made to distinguish Arbuckle where the judge accepting the plea did not use the personal pronoun when accepting the plea or when discussing sentencing. (In re ThomasS. (1981) 124 Cal.App.3d 934, 939; People v. Pedregon (1981) 115 Cal.App.3d 723, 725; People v. De Jesus (1980) 110 Cal.App.3d 413, 419; In re Ray O. (1979) 97 Cal.App.3d 136.) In Jn re Ray O., the court rejected the -22- argument stating: “We do not consider that significant and are not persuaded that grammar should or does expressly preclude any reliance by Ray O.that the same judge would be presiding at the dispositional hearing.” (Id. at p. 139.) Such should be the case here. Although Judge Sapunordid not use the personal pronoun “I” when he took petitioner’s admission,it wasclear he intended that the negotiated plea and disposition be carried out whenthe used the personalpronoun “we.” (PWM Exhibit 11 at p. 4.) The California Supreme Court reaffirmed Arbuckle in In re MarkL. In Mark L., the court stressed the significance the record plays in determining whether the defendant had a reasonable expectation that the judge who accepted his plea would also impose the sentence. The court “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 havefinal and exclusive dispositional authority. However, the court in Mark L. was addressing Arbuckle in the context of a court commissioner taking an admission in a juvenile case subject to review pursuant to Welfare and Institutions Code sections 250-254. Mark L. did not overrule Arbuckle’s general proposition that an implied condition of a plea bargain is that the judge that took the plea would also be the sentencing judge. Mark L simply made the observation that the record in that case was’ consistent with the record in Arbuckle that there was “an actual assumption by the court andparties that the officer taking the plea would havefinal and -23- exclusive dispositional authority.” (Mark L. at p. 177.) It is clear in this case that the parties assumed that disposition would be carried out as anticipated by Judge Sapunor in that it was the only possible disposition contemplated by the court at the time of the negotiated settlement and beginning of the dispositional hearing on May 28, 2015. If any doubt on that score remained, petitioner laid it to rest by immediately announcing petitioner’s right to have the same judicial officer who took his plea/admission handle complete the disposition pursuant to Arbuckle. (Exhibit 1.) Moreover, there was absolutely no objection by the prosecution in this case. And, despite Judge Sapunor’s visiting judge status, it was certain that he was going to be back in the very near future and could have personally handled the matter himself. (Exhibit 1 at p. 9) Based onthese factors, “There seems ample basis to conclude ‘that the plea bargain herein was entered in expectation of and reliance upon [disposition] being imposed by the same [judicial officer].’ [Citation.]” (See Mark L. at p. 177.) Even if the court of appealis correct in its analysis of Mark L., and the cases that follow the reasoning in People v. Horn, in petitioner’s case, the record affirmatively demonstrate a basis on which petitioner reasonably could expect the judge who accepted his admission would also be the dispositional judge. Although Judge Sapunor did not complete the dispositional orders, based on the probation officers request to put the -24- matter over for petitioner’s grandmother to secure an airline ticket for petitioner, Judge Sapunor certainly anticipated the plea/admission agreement and disposition would be carried out as agreed. Judge Sapunor further stated: Because the record does reflect an affirmative basis on which petitioner reasonably could have expected the judge who accepted his plea would also impose the sentence, no Arbuckle waiver could have been implied in the plea bargain. Accordingly, the terms of the plea bargain were violated when Judge Arguelles attempted to hold a disposition hearing and refused to send petitioner’s case back to Judge Sapunor for completion of the disposition hearing pursuantto the negotiated plea/admission. CONCLUSION Having shown that the juvenile court erred in not imposing the negotiated disposition in this case, and thereafter further erred by not sending petitioner’s case back to the judge that took his admission began the disposition hearing without an Arbuckle waiver,petitioner respectfully request this Court issue a stay of further juvenile court proceedings and grant review ofpetitioner’s case. Respectfully submitted, at ff * é “ -aa Arthur L. Bowie, Supervising Assistant Public Defender -25- EXHIBIT A Court of Appeal. Third Appellate District Deena C. Fawcett, Clerk/Administrator Electronically FILED on 12/30/2015 by D. Welton, Deputy Clerk CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento) K.R., C079548 Petitioner, (Super. Ct. No. JV134953) V. THE SUPERIOR COURT OF SACRAMENTO COUNTY, Respondent; _ THE PEOPLE, Real Party in Interest. ORIGINAL PROCEEDINGin mandate. Stay issued. Petition denied. JamesP. Arguelles, Judge. Paulino G. Duran, Public Defendant, Arthur L. Bowie and Patricia Beza Contreras, Assistant Public Defenders, for Petitioner. No counsel for Respondent. Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Jesse Witt, Deputy Attorneys General, for Real Party in Interest. The question in this case is whether K. R.(the minor) has a right under our Supreme Court’s decision in People v. Arbuckle (1978) 22 Cal.3d 749 to insist that Judge Jack Sapunor preside over the disposition of his admissions that he twice violated the terms of his probation in a juvenile delinquency proceeding. Forthe reasonsset forth below, we conclude he does not. While the minorcertainly had a reasonable expectation that he would receive the agreed-upon disposition that was part of the plea agreement approved by Judge Sapunor, and the refusal by Judge James P. Arguelles to impose that disposition certainly entitles the minor to withdraw his negotiated plea, the minorhas failed to show that he entered into the plea agreementin expectation of and reliance upon Judge Sapunorconducting thedisposition hearing. Thus, the minoris notentitled to have the disposition hearingset in front of Judge Sapunor,noris he entitled to an order requiring Judge Arguelles to impose the agreed-upon disposition. Accordingly, we will deny the minor’s petition for a writ of mandate and vacate our stay on the juvenile court proceeding. | | FACTUAL AND PROCEDURAL BACKGROUND L- Preliminary Matters Before weset forth the facts underlying this mandamusproceeding, wefirst address two procedural matters. First, we note that in response to the minor’s writ petition, this court issued an order to show cause, and in responseto the order to show cause, the People filed a documentthey labeled a “return,” but which was neither a demurrernor a verified answer to the verified allegations of the minor’s petition; instead, the People’s “return” was essentially in the form of an unverified legal brief like those commonly filed in direct appeals, separated into three sections: a statement ofthe case, a statement of facts, and argument. This is not the proper procedure. (See Cal. Rules of Court, rule 8.487(b)(1) [“If the court issues an alternative writ or order to show cause, the respondentor anyreal party in interest, separately or jointly, may serve and file a return by demurrer, verified answer, or both”); Bank ofAmerica, N.A. v. Superior Court (2013) 212 Cal.App.4th 1076, 1085 [noting that, “[b]y filing a responsive brief” rather than a return by demurrer or verified answer, “the real parties in interest did not follow the correct procedures”’].) “The failure to submit a return with a verified answer or demurrer is not a technicality, but is an integral andcritical step in the procedure for determining the merit of a petition for extraordinary relief.” (Bank ofAmerica, N.A. v. Superior Court, supra, 212 Cal.App.4th at p. 1085.) One possible consequenceof filing an unverified return that is neither a demurrer nor an answeris thatthe return will be stricken and therefore not considered in determining the merits of the mandate petition. (See Universal City Studios, Inc. v. Superior Court (2003) 110 Cal.App.4th 1273, 1287.) That could be fatal. Fortunately for the People, there is a less catastrophic consequence available to us to addresstheir failure. “In the absence ofa true return,all well-pleaded and verified allegations of the writ petition are accepted as true.” (Bank ofAmerica, N.A. v. Superior Court, supra, 212 Cal.App.4th at p. 1084; see also Titmas v. Superior Court (2001) 87 Cal.App.4th 738, 741; Shaffer v. Superior Court(1995) 33 Cal.App.4th 993, 996,fn. 2.) Applying this rule, the People’s “return”is effectively treated as a return by demurrer, because a demurrer admits the facts pleaded in a writ petition. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Thus, we take the facts below from the well-pleaded, verified allegationsof the minor’s writ petition.! 1 Fortunately for the People, those “facts” do not include certain of the minor’s assertions in his petition, like that the trial court “illegally and improperly denied [his] right to have his negotiated disposition imposed by the judge that took his plea/admission.” That allegation,like others in the petition, is not an allegation offact, but rather a legal conclusion, which a demurrer does not admit. (See Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713 [“A demurrer admits all material and issuable facts properly pleaded” but “does not admit contentions, deductions or conclusionsoffact or law’’].) Second, we note a deficiency involving the exhibits attached to the minor’s writ petition. A petition for a writ of mandate must be verified. (Code Civ. Proc., § 1086; Cal. Rules of Court, rule 8.486(a)(4).) In addition, “[a] petition that seeks review of a trial court ruling must be accompanied by an adequate record, including copies of: [9] (A) The ruling from whichthepetition seeksrelief} [§] (B) All documents and exhibits submittedto the trial court supporting and opposingthe petitioner’s position; [and] [{] (C) Any other documents or portions of documents submitted to the trial court that are necessary for a complete understanding of the case and the ruling under review.” (Cal. Rules of Court, rule 8.486(b)(1).) Because the petitioner’s right to relief will ordinarily “be resolved upon the parties’ verified papers” (Star Motor Imports, Inc. v. Superior Court (1979) 88 Cal.App.3d 201, 205), without the taking of additional evidence,it is important that the verification of the petition encompassnot only the allegationsofthe petition but also the authenticity and accuracy of the exhibits submitted in support ofthe petition. (See ibid. (“A valid petition for mandate and such exhibits as may be referenced or incorporated therein will ordinarily state facts, verified as required by Code of Civil Procedure section 1086, calling for judicial relief,” italics omitted]; 1 Appeals and Writs in Criminal Cases (Cont.Ed.Bar 3d ed. 2014) § 8.42,p. 8-37 [The record should be verified by specific reference in the verified petition, by separate declaration, or by certificates”].) Here,at the end ofthe substantive allegations detailing the underlying facts, the petition lists 14 exhibits, introduced by theassertion that “[t]he following documents reflecting the above proceedings are attached hereto and incorporated herein by reference.” At no point, however, does the petition allege that the exhibits are true and correct copies of documents submitted to the juvenile court and/or containedin the juvenile court’s file in this matter, nor did the minor submit a separate declaration attesting to the authenticity and accuracy ofthe exhibits.2_ Thus, when the minor’s attorney declaresin the verification that she has “read the foregoingpetition for writ of mandate and know[s] the contents thereof, and . . . the same[is] true to [her] own knowledge,” she is not actually verifying that the attached exhibits are in fact what they purport to be. Nevertheless, because the People have not challenged the accuracy of any of the minor’s exhibits, we will treat the exhibits as though they were properly authenticated and verified. II The Juvenile Court Proceedings Weturn to the relevant facts. In March 2013, when the minor was13 yearsold, a delinquency petition was filed alleging he had committed the crimes of robbery, criminal threats, and brandishing a knife. In August 2013, Judge James P. Arguelles presided over a jurisdictional hearing on the petition in Department 97 and foundtheallegationstrue. At a disposition hearing in Department 97 in September 2013, Judge Arguelles granted the minorprobation with a numberof conditions, including 150 days of confinement. In April 2015, the minor’s probation officer filed a petition alleging the minor had violated his probation by remaining away from his home overnight withoutparental permission; failing to keep his probation officer informed of his address and telephone number; using marijuana; and committing the crimes of having marijuana on a school campus,falsely identifying himself to a law enforcementofficer, and being a disruptive presence on a school campus. A weeklater, the People filed a petition alleging the minor 2 Thethree exhibits that are copies of reporter’s transcripts of relevantoral proceedingsin the case do include copiesofreporter’s certificates certifying the completeness and accuracy ofthe transcriptions, but nowhereisit alleged orattested that these copies are true and correct copiesofthe original transcripts orcertificates. had violated his probation by committing the crimes of brandishing a firearm and brandishing a replica firearm. On April 15, 2015, a detention hearing was held on both petitions in Department 92 before Judge Doris Shockley. Judge Shockley ordered the minor detained at juvenile hall and set a settlement conference hearing for April 28 in Department 97. She also ordered the probation departmentto prepare and submit a memorandum with appropriate recommendations for that hearing. The probation department subsequently prepareda disposition report in whichthe department noted that while “a placement recommendation may be warranted,” “the family [specifically, the minor’s mother] has movedto the state of Nevada.” Thus, the department recommendedthat the minor’s probation be revoked andreinstated, that he be permitted to travel to Las Vegas to reside with his mother “pursuantto Interstate Compactprotocol,” and that the proceedings be transferred to the juvenile court of Clark County, Nevada, for final disposition. On April 28, the parties, appearing before Judge Jack Sapunor in Department 97, stipulated to continue the settlement conference hearing to May 12. Judge Sapunoris a “regular visiting judge” in juvenile court in Sacramento County. On May12, the parties appeared before Judge Arguelles in Department 97 for the continued settlement conference hearing, but at the request of the minor’s attorney, Judge Arguelles continued the hearing again, this time to May 28. On May28, the parties appeared before Judge Sapunor in Department97 for the settlement conference hearing. The minor’s attorney told the court the minor was prepared to admitthe allegation in the first petition that he remained away from his home overnight without parental permission and the allegation in the secondpetition that he brandished a replica firearm “with an understanding that the disposition would be 54 days in custody in juvenile hall. He has 47 days as of today. [{]] The intention is in one week from today to recalendarthis for proof that [the minor’s grandmother] has purchased the plane ticket to Nevada as the minor’s motheris currently a residentof the state of Nevada, and this case would be transferred out for [supervision] to Nevada.” The following colloquy then occurred: “THE COURT: We’re going to order the transfer today and then calendarit for a week to makesure that’s been accomplished? “(THE MINOR’S ATTORNEY]: Yes. “THE COURT: That would be the Petitioner’s recommendeddisposition? “(THE PROSECUTOR]: Yes, your Honor.” | At that point, the court solicited the minor’s waiverofhis right to a hearing on the alleged violations, his rights to remain silent and against self-incrimination,his right to confront and cross-examine the witnesses against him, andhisright to testify. The minor then admitted the two violations of probation, the court granted the prosecutor’s motion to dismiss the remainingallegations, and the court revoked andreinstated all previous orders. Before the court could finish the disposition, however, the probation officer serving as the presenter to the court interrupted: “Your Honor, just a thought real quick,I knowwejust took the admission. My only concern is if we come back a week from now and there’s not a ticket bought and if we do the dispo today, we may have to unravelall that we’re doing right now -- not the admission necessarily,just the disposition.” The following colloquy then took place: “THE COURT: Maybe we oughtto 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. “(THE MINOR’S ATTORNEY]: I am fine with putting whatever we need necessary. Myonly requestis that if we put the case over for one week,the timeslots have to coordinate with the flight information. Whatis the quickest that he will be able to be processedto be released to get out to get on the plane?” a “THE PRESENTER: If we comeinfirst 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, the later the better, we would be good to go. “(THE MINOR’S ATTORNEY]: That’s agreeable. We can continue putting dispo overfor the final terms to one week from today in the morning. “THE PRESENTER: Wecan sign all the interstate on that date also. “THE COURT:You wantto have disposition one week from today whichis going to be the 4th of June? “(THE MINOR’S ATTORNEY]: Yes. The intention is for him to be deemed time served atthat 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 comeback, then, on the 4th at 8:30.” The minute order for the May 28 hearing showedthat the minor had admitted two violations and the remaining allegations had been dismissed, although the parties agreed they could be considered at the time of disposition. The minute order further showedthat the disposition hearing wasset for June 4. On June 4, the parties appeared again in Department97; this time, Judge Arguelles waspresiding. Judge Arguelles noted that there was “a minute order saying that May 28th the minor admitted a violation of probation” and “[a]pparently, probation is recommendingthat [the minor] just be shipped off to Vegas to live with his mother.” Judge Arguelles disagreed with that proposalandstatedthat his intention was “probably NE RY C gh de a e S a to send him to DJJ [Department of Juvenile Justice] but I’d be willing to hear argument for Level B.” Because the minor’s regular attorney was not present, however, Judge Arguelles agreed to continue the disposition hearing to June 8, when she would be back. u s At the hearing on June 8, the minor’s attorney objected to Judge Arguelles presiding overthe disposition because “we have notaffirmatively asserted an Arbuckle waiver in this case.” She requested that the matter be set for hearing in front of Judge Sapunor, whoshebelieved wassitting in Sacramento for the next two weeks. Judge Arguelles reiterated his disagreement with the proposed disposition of sending the minor to live with his mother in Las Vegas, set a schedule for the parties to brief the application ofArbuckle, and continued the matter to July 2. On June 25, the minor commenced the present proceeding in this court by filing a petition for a writ of mandate, essentially requesting that we order Judge Arguelles to either: (1) imposethe disposition the parties had agreed uponin front of Judge Sapunor or (2) set the case for a disposition hearing in front of Judge Sapunor. The minoralso requested a stay on further proceedings in the juvenile court pending our resolution of the matter. We issued the requested stay that same day, excepting from the stay “the superior court’s determination on the Arbuckle waiver.” On July 6, Judge Arguelles issued a written ruling in which he denied the minor’s objection to him conducting the disposition hearing “because the minordid not have a reasonable expectation that the same judge whotook his admission/plea would be the same judge who imposed the disposition.” Judge Arguelles also acknowledgedthat his rejection of the proposed disposition that was part of the plea agreement would entitle the minor to withdraw his plea but noted that the stay ordered by this court precluded him from either offering the minor the right to do so or proceeding with disposition if the minor elected not to. do so. 3 While the superior court’s order of July 6, 2015, was not part of the record produced by the minorin support of his petition (because the order did not yet exist when the minorfiled his petition), we take judicial notice of it on our own motion. (Evid. Code, §§ 452, subd. (d), 459, subd.(a).) DISCUSSION As wenotedat the outset of this opinion, the question in this case is whetherthe | minor has a right under Arbuckleto insist that Judge Sapunor preside over his disposition hearing. In support of his writ petition, the minor argues that his case must be sent back to Judge Sapunorfor disposition “because the record does not show he knowingly waived his right to enforce the implied term of his plea bargain . . . that he would be sentenced by the same judge whoacceptedhis plea/admission.” Of course, this assertion begs the question of whether the minorhad such right in thefirst place -- that is, whetherit was an implied term of his plea agreement that Judge Sapunor would imposethe disposition in the minor’s case. If the minor never had an “Arbuckle right” to be sentenced by the same judge whoaccepted his negotiated plea, then he had nothing to waive, knowingly or otherwise. Thus, the real question for us to resolve is not waiver, but whether the minor ever had an Arbuckle right. To answerthat question, we first examine Arbuckle and manyofthe cases that have followed in its wake. In Arbuckle, Judge Robert H. Londonaccepted a negotiated plea of guilty from the defendant to a charge of assault with a deadly weapon in exchange fordismissal of two other charges and agreementthat the judge would follow the sentencing recommendation in a diagnostic report from the Department of Corrections. (People v. Arbuckle, supra, 22 Cal.3d at pp. 752-753.) The report ultimately recommendedprison,although a minority report recommended probation with maximum jail time. (/d. at p. 752.) Before 4 Werefer to the minor being sentenced, knowingthatis not the right term, only to avoid unnecessarily complicating the discussion in this case. Arbuckle applies equally to criminal proceedings and delinquency proceedings where wardship is premised on the minor’s violation of a criminal law. The formercases involve defendants, pleas, and sentences; the latter cases involve minors, admissions, and dispositions. For ease of discussion, however, we will sometimes use the terms applicable to the formercases, although in doing so we intend to encompassthe terms applicable to the latter cases as well. 10 the sentencing hearing, however, Judge London wastransferred to another department. (Id. at p. 753.) Whenthe case was called before Judge RaymondR. Roberts, the defendant objected to imposition of sentence by Judge Roberts andinsisted that he was entitled to be sentenced by Judge London. (/bid.) Judge Roberts disagreed and sentenced him to prison. (/bid.) On review, the Supreme Court agreed with the defendant “that the plea bargain herein was entered in expectation of and in reliance upon sentence being imposed by the same judge.” (People v. Arbuckle, supra, 22 Cal.3d at p. 756.) The court noted that its conclusion was “supported by the judge’s repeated use ofthe personal pronoun when referring to sentencing in the proceeding in which the plea bargain was accepted.» (Ibid.) The court then continuedas follows: “As a general principle, moreover, whenever a judge accepts a plea bargain andretains sentencing discretion under the agreement, an implied term ofthe bargainis that sentence will be imposedby that judge. Becauseofthe range of dispositions available to a sentencing judge, the propensity in sentencing demonstrated bya particular judge is an inherently significant factor in the defendant’s decisionto enter a guilty plea.” (Id. at pp. 756-757.) The court determined that “[b]ecause the defendanthas been denied that aspect of his plea bargain, the sentence imposed by another judge cannotbe allowed to stand,” and defendant was “entitled to be sentenced by Judge London,orif internal court administrative practices renderthat impossible, then in the alternative defendant should be permitted to withdraw his plea.” (Id. at p. 757.) 5 Specifically, Judge Londontold the defendant,“‘I have agreed, as has your attorney, Mr. Kenner,that before I could send youtothe State Prison, J] would have to get that 90-day diagnostic study and I would follow the recommendation.” (People v. Arbuckle, supra, 22 Cal.3d at p. 756, fn. 4.) 11 As can be seen, the brief discussion in Arbuckle of the right to be sentenced by the judge who accepted a negotiated plea was somewhat confusing. First, the Supreme Court engagedin an individualized analysis of the case and determined that based on what Judge Londonsaid to the defendant at the plea hearing, the defendant enteredinto the plea agreement“in expectation of and in reliance upon sentence being imposedbythe same judge.” (People v. Arbuckle, supra, 22 Cal.3d at p. 756.) Immediately thereafter, however, the Supreme Court appeared to announce a broad and generalrule that “whenever a judge accepts a plea bargain and retains sentencing discretion under the agreement, an implied term ofthe bargain is that sentence will be imposed by that judge.” (Id. at pp. 756-757,italics added.) In the first six years that followed Arbuckle, the courtsof appeal consistently applied the general rule stated in Arbuckle, eschewing any individualized analysis as to whether the defendantin a particular case had reasonto believe based on the specific facts of the case that the judge who accepted the negotiated plea would be the one who imposed sentence. (See Jn re Ray O. (1979) 97 Cal.App.3d 136, 139-140 [“In the absence of clear waiver, whenevera juvenile enters a plea bargain before a judge he has the right to be sentenced by that same judge,” fn. omitted]; People v. DeJesus (1980) 110 Cal.App.3d 413, 418 [“The court in Arbuckle held that the defendantis entitled to be sentenced by the judge whoaccepts the guilty plea pursuantto plea bargain”; Peoplev. Pedregon (1981) 115 Cal.App.3d 723, 725 [referring to “the Arbuckle court’s finding of an implicit term in every plea bargain that the sentence will be imposed by the judge who accepts the plea’’]; In re ThomasS. (1981) 124 Cal.App.3d 934, 937 [“Arbuckle held that an implicit term of a plea bargain is the trial judge who takes the plea will also be the sentencing judge”); People v. Rosaia (1984) 157 Cal.App.3d 832, 837 [referring to “the rule that a defendant whopleads guilty has the right to be sentenced by the same judge whoaccepted the plea”].) This line of cases gaverise to the term “Arbuckle right” (In re ThomasS., at p. 937) or sometimes, “Arbuckle rights” (Rosaia, at p. 838), which was 12 understoodasthe right of every defendant who enters a negotiated plea to be sentenced by the judge who acceptedthe plea. The concept of an Arbuckle right, in turn, engendered tworelated concepts: an Arbuckle admonishment and an Arbuckle waiver. On the latter point (waiver), the appellate court in Ray O. observed early on that the night to be sentenced by the same judge who accepted the negotiated plea could be relinquished by “a clear waiver.” (Jn re Ray O., supra, 97 Cal.App.3d at pp. 139-140.) Two yearslater, the court in ThomasS. first employed the term “Arbuckle waiver” to describe such a relinquishment. (/n re Thomas S., supra, 124 Cal.App.3d at p. 937.) On the former point (admonishment), the court in Thomas S. also concludedthat “a juvenile court should advise a minorofhis Arbuckle right during the jurisdictional hearing or at the commencementofthe dispositional hearing if another judge is presiding,” although the court declined to “establish[] a rule for all juvenile cases which would require the Arbuckle admonishment to be given with the express waiver from the minorto be reflected on the record.” (dn re ThomasS., at p. 940.) Five years after Arbuckle, the California Supreme Court spoke for a second time on the issue in Jn re Mark L. (1983) 34 Cal.3d 171. In applying Arbuckle in Mark L., the Supreme Court took the opposite course from that charted by the courts of appeal in Ray O. and its progeny. Specifically, the Supreme Court did not invoke the broad general rule from Arbuckle and instead looked to the record in the case before it to see whether the record “indicate[d] an actual assumption by the court and parties that the officer taking the plea would have final and exclusive dispositional authority.” (Mark L., at p. 177.) The Supreme Court foundthatit did because the commissioner “made repeated referencesto the dispositions ‘the Court’ could or might impose,” which, construedin the context of the commissioner’s “interchangeable use of the personal pronoun with the _ phrase ‘the Court’ implied that he and ‘the Court’ were one and the same.” (/d.at pp. 173, 177.) The Supreme Court also noted that the commissioner had given the minor 13 an Arbuckle admonishmentandthat “considerable effort was expendedto ensure thathe, rather than someother judge or referee, would act at the dispositional phase.” (/bid.) Notwithstanding the Supreme Court’s individualized analysis of the record in MarkL., rather than application of the general rule from Arbuckle, some courts of appeal continued to simply apply the generalrule in the wake ofMark L. (E.g., Peoplev. Rosaia, supra, 157 Cal.App.3dat p. 832.) In March of 1985, however, one court of appeal heeded and followed Mark L.’s individualized approachto the issue. (/n re James H. (1985) 165 Cal.App.3d 911.) In James H., the appellate court drew from both Arbuckle and Mark L. in determining thatit is not “always an implied term ofa plea bargain that the judge whoaccepts the admission or plea will imposethe sentence”; instead, the record must be examined to determine whetherit contains “the type of factors relied on in Arbuckle and In re Mark L. to support the assumptionthat the admission was entered in expectation of andreliance upon disposition being imposed by the same judge.” (James H., at pp. 919, 920.) Two months after James H., this court also applied the individualized approach from Mark L. in determining whether the defendant had a reasonable expectation that he would be sentenced by the same judge who accepted his negotiated plea. (People v. Ruhl - (1985) 168 Cal.App.3d 311, 315.) Other courts, however, continued to follow Ray O. and its progeny, relying on the general rule from Arbuckle and eschewing any individualized analysis. (E.g., People v. Poole (1985) 168 Cal.App.3d 516, 521.) Still other courts cited the general rule but nonetheless engagedin an individualized analysis. (E.g., People v. Santos (1985) 171 Cal.App.3d 67, 70-71.) In 1989, the Fifth Appellate District -- which was responsible for many ofthe decisions following the generalrule from Arbuckle rather than an individualized analysis (including Ray O., DeJesus, and Rosaia) -- broke ranks with its earlier line of cases and joined the line of appellate court authority represented by James H. and Ruhl. (People v. Horn (1989) 213 Cal.App.3d 701.) In Horn,the Fifth District specifically disapproved 14 its earlier decisions “to the extent they either hold or suggest the Arbuckle term is implied in all plea bargains” and instead concluded that Arbuckle applies only “to those cases wherethe record affirmatively supports a defendant’s reasonable expectation the judge accepting his plea will also impose sentence.” (/d. at pp. 707, 708.) Horn appears to have beenthe final nail in the coffin for Ray O. and its progeny and the idea that every defendant who enters a negotiated plea has an Arbuckle right to be sentenced by the same judge whoacceptedthe plea, as no published case since Horn has deviated from the individualized approach under which the court examines the record to determine what the defendant reasonably could have expectedat the time the plea was entered. Still, old rules die hard, and broad statements of the general rule have continued to appear in cases occasionally since Horn. (E.g., People v. Arata (2007) 151 Cal.App.4th 778, 787 [asserting that Arbuckle “held where a judge accepts aplea bargain and retains sentencing discretion, there is an implied term of the bargain that sentence will be imposed by that judge”].) Such broad statements have also continued to appear, with much greater frequency, in the treatises, which often leave the distinct impression that the general rule from Arbuckle is still very muchalive, despite the stake the Fifth District tried to drive into its heart more than a quarter of a century ago in Horn. (See, e.g., 2 Erwin et al., Cal. Criminal Defense Practice (2015) Arraignment & Pleas, § 42.44[1], pp. 42-154.8(5)-42-154.9 [“whenever a judge accepts a plea bargain and retains sentencing discretion, under the agreement, an implied term of the bargainis that sentence will be imposedbythat judge”’]; Cal. Criminal Law: Procedure and Practice (Cont.Ed.Bar 2015) Pronouncing Judgment, § 35.11, p. 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]; Levenson, Cal. Criminal Procedure (The Rutter Group 2014) Plea Bargaining, § 14:18, p. 14-20 [“Whenthe plea agreement provides that the judge who accepts the plea retains sentencing discretion, that judge must sentence the defendant”]; Cal. Judges 15 Benchguides: Criminal Proceedings (CJER 2013) Felony Arraignmentand Pleas, § 91.29, p. 91-26 [When a judge accepts a plea bargain and retains sentencing discretion under the agreement, an implied term ofthe bargain is that sentence will be imposed by that judge’’].) Notwithstanding these vestiges ofArbuckle’s “general principle,” it appears to us to have been settled law for more than 25 years that an Arbuckle right to be sentenced by the judge who accepteda negotiated plea arises not as a matter of generalprinciple, but only when the specific facts of a given case showthatthe plea was given “in expectation of and in reliance upon sentence being imposed by the same judge.” (People v. Arbuckle, supra, 22 Cal.3d at p. 756.) Thus, in James H., for example, the appellate court concluded the minor had no Arbuckle right because (1) “[i]n accepting the minor’s admission ..., the Los Angeles Superior Court judge neither used the personal pronoun in referring to the dispositional hearing, nor expended any effort to insure that he would act at the dispositional hearing; and (2) the “minor was forewarned a number oftimes that the SanBernardinocourt, not the Los Angeles court, would handle disposition of minor’s case.” (Jn re James H., supra, 165 Cal.App.3dat p. 920.) And in RuAl, this court concluded the defendant had no Arbuckle right because (1) “[t]he detailed, written plea agreement expressly:set forth all terms of the agreement” and “sentencing by Judge Keeley was not oneofthe agreed terms”; (2) “when Judge Keeley took defendant’s plea, he gaveno indication that he would be the sentencing judge’; and (3) “defendant Ruhl decided to plead guilty long before he ever got to superior court” and thus “the identity of the judge taking his plea clearly did not influence his decision.” (People v. RuAl, supra, 168 Cal.App.3d at pp. 315, 316.) Onthe other hand, in People v. Serrato (1988) 201 Cal.App.3d 761, this court held the defendant had an Arbuckle right “because of the judge’s use of the personal pronoun ‘Tl’ in accepting the plea.” (Id. at p. 764.) Similarly, in People v. Adams (1990) 224 Cal.App.3d 1540, the court concluded the defendant“did have an Arbuckle right” 16 because “[t]he judgeat the change ofplea hearing asked ‘Do you understandthat the maximum sentenceI could imposein this case is up to eight years in state prison and $20,000 fine?’ ” and “[t]he clerk later suggested a date for sentencingin ‘this department.’ ” (/d. at p. 1543.) In light of the foregoing case law, we believe the question for us to answerin this case is whether the record showsthat it was an express or implied term of the minor’s plea agreementthat Judge Sapunor wouldpreside over his disposition hearing on his admission of the two probation violations, such that it can be said that the minorentered into the plea agreement“in expectation of and in reliance upon”disposition being _ imposed by Judge Sapunor. (People v. Arbuckle, supra, 22 Cal.3d at p. 756.) Such circumstancesare not shown in the record. Before we address the minor’s arguments, we pauseto putto rest an idea the facts of this case may suggest. Because the plea agreement here was based ona specific disposition -- release from custody andtransfer of the case to Nevada so the minor could live with his mother in Las Vegas -- it might be argued that Arbuckle does not apply at all, because Arbuckle applies only when the court “retains sentencing discretion underthe [plea] agreement.” (People v. Arbuckle, supra, 22 Cal.3d at p. 756.) We have two responses to that argument. First, that language comes from the generalprinciple stated in Arbuckle, and as we have explained above, that general principle long ago ceased to be applied by the California Supreme Court (see Mark L.) or by the courts of appeal in preference to the individualized approach, which asks whetherthe record affirmatively supports the conclusion that the defendantentered into the negotiated plea in expectation and reliance upon sentence being imposed by the judge who accepted the plea. Second, the fact is that the court always retains sentencing discretion in the event of a negotiated . plea, becauseif the court decides at sentencing that it does not want to impose the agreed- e upon sentence, the court can withdraw its approval ofthe plea, in which case the : defendant must be permitted to withdraw the plea itself. This is true both in criminal i 17 cases (see Pen. Code, § 1192.5)® andin juvenile delinquency cases (see Jn re Ricardo C. (2013) 220 Cal.App.4th 688, 698-699). Accordingly, the fact that this case involved an agreed-upondisposition has no effect on the application ofArbuckle here. With that observation out of the way, we turn to the minor’s arguments. In asserting that he was entitled to have disposition imposed by Judge Sapunor, the minor argues that he “certainly was underthe belief that the dispositional orders ofhis negotiated plea would becarried outat his next appearancein that the court that took his plea/admission [Judge Sapunor] told the parties, when they realized somelogistical problems, ‘Maybe weoughtto put this out for a week to makesure that the disposition goes as planned.’ ” (Bold text omitted.) This argumentis unpersuasive for two reasons. First, to the extent the minoris arguing that he had an Arbuckle right because he had a reasonable expectation that he would receive the promised disposition, we disagree. A defendant’s expectation that he will receive an agreed-upon sentenceis not the same expectation with which Arbuckle is concerned: the expectation of being sentenced by the same judge who accepted the negotiated plea. Under Arbuckle, when a defendant is denied the benefit of a term ofhis plea agreementthat he will be sentenced by the judge who accepted his plea, the defendantis entitled to specific performanceofthat term -- that is, he is entitled to be sentenced by that judge -- unless specific performance is impossible. On the other hand, as we have 6 “Wherethe plea is accepted by the prosecuting attorney in open court andis approved bythe court, the defendant, except as otherwise providedin this section, cannot be sentenced on the plea to a punishment moresevere than that specified in the plea and the court may not proceedasto the plea other than as specified in the plea. [{] Ifthe court approvesofthe plea, it shall inform the defendantprior to the makingofthe plea that (1) its approval is not binding, (2) it may, at the time set for the hearing on the application for probation or pronouncementofjudgment, withdraw its approvalin the light of further consideration of the matter, and (3) in that case, the defendant shall be permitted to withdraw his or herplea if he or she desires to do so.” (Pen. Code, § 1192.5.) 18 seen, when a defendantis denied a promiseddisposition, the defendant is not entitled to specific performance of that promise; instead, he is only entitled to withdraw his plea. Thus, the two issues are simply not the same. What that meanshereis that even though the minor had a reasonable expectation that he would receive the agreed-upon disposition, that expectation did not entitle him to have Judge Sapunorpreside overhis disposition hearing. To establish that he is entitled to the same judge at sentencing, the minor has to show that it was agreed -- either expressly or implicitly -- that Judge Sapunor would sentence him. Second, to the extent the minor may be suggesting that Judge Sapunor’s use of the word “we”in the statement, “[m]aybe we oughtto put this out for a week to make sure that the disposition goes as planned,” implied that Judge Sapunor would preside over the disposition hearing because Judge Sapunor would be one of those who would “make sure that the disposition goes as planned,” that argumentis also unavailing. As we have explained, expectations that the disposition would go as plannedare different from expectations that the same judge would preside over the disposition. Here, the use of the word “we” evidences the former but not the latter. The plea agreement-- as succinctly summarized by the minor’s attorney at the very outset of the hearing on May28 -- included nothing that either explicitly or implicitly suggested that Judge Sapunor would preside over the disposition hearing on June 4. Examining the remaining arguments in the minor’spetition, we discern that they are all variations on the theme we have discussed already: namely, that the minor reasonably expected that he would receive the promised disposition. Thus, the minor argues as follows: 1) “Although Judge Sapunordid not use the personal pronoun ‘I’ when he took [the minor]’s admission, it was clear he intended that the negotiated plea and disposition be carried out”; 19 2) “It is clear in this case that the parties assumedthat disposition would be carried out as anticipated by Judge Sapunorin that it was the only possible disposition contemplated by the court at the time of the negotiated settlement and beginning of the dispositional hearing on May 28, 2015”; and 3) “Judge Sapunorcertainly anticipated the plea/admission agreement and disposition would be carried out as agreed.” As we have explained already, however, the fact that an agreed-upon disposition waspart of the plea agreement does not give rise to an Arbuckle right to be sentenced by the same judge who accepted the plea. For the minor to have had an Arbuckle right, there must be something in the record that affirmatively supports the conclusion that he entered into the plea agreement “in expectation of and in reliance upon”disposition being imposed by Judge Sapunor. (People v. Arbuckle, supra, 22 Cal.3d at p. 756.) Saying that the parties and Judge Sapunor expected the minorto receive the agreed-upon disposition is not the same as saying they expected Judge Sapunor to imposethat disposition, let alone the sameas saying that the minor entered into the plea agreement based on the understanding that Judge Sapunor would presideat the disposition hearing. Nothing in the minor’s traverse alters our conclusion that he has not shown any basis for finding he had an Arbuckle right to have disposition imposed by Judge Sapunor. In the traverse, he argues that he reasonably expected Judge Sapunorto conduct the disposition hearing because of “the uniqueness ofthe disposition itself.” Frankly, however, it does not matter that “this was going to be a transfer out to another jurisdiction after an agreement between two states, California and Nevada, based on an interstate compact,”(italics added)or that “[t]he details of the agreement had all been workedout, except [the minor]’s travel arrangements,”or that “the disposition would have been completed on May 28, 2015” “[b]Jut for the in-court probation officer’s request for [the minor]’s grandmotherto bring [the minor]’s travel documents to court to insure that the interstate compact not have to be reconstituted.” None of these factors bears on the 20 question of whether the minor entered into the plea agreement based on the reasonable belief that Judge Sapunor would preside over the disposition hearing. To the extent the minorrelies on variousstatements Judge Sapunor made beginning with his statement, “[m]aybe we oughtto putthis out for a week to make sure that the disposition goes as planned,” we have answered that argumentalready above. Those statements by Judge Sapunordo not reasonably tend to showthat the minor entered into the plea agreement based onthe belief that Judge Sapunor would impose the disposition. To the extent the minor argues that “Judge Sapunor’s participation in the settlement of the minor’s case in this instance wascertainly the most‘significant factor’ in [the minor’s] decision to admit to the violation of probation andtoresolve his case,” (bold text omitted) we have two responses. First, the truth of that assertion is not shown as a matter of record; rather, the minor asks us to speculate based on “the history Judge Arguelles had with [the minor]” that the presence of Judge Sapunorat the hearing on May 28 wasa significant motivating factor in the minor decidingto enter into a plea agreement. Second, even if we could say that Judge Sapunor’s presence at the settlement conference wasa significant factor in the minor deciding to enter a negotiated plea, that still is not the sameas saying that the minorentered into the plea agreement“in expectation of and in reliance upon”disposition being imposed by Judge Sapunor. (People v. Arbuckle, supra, 22 Cal.3d at p. 756.) There has to be something in the record to show that the minor entered into the plea agreementat least in part because he expected and relied on Judge Sapunor being the judge who would impose disposition. As we have explained, the minorhas not identified any such factor. To the extent the minor argues that our refusal to find an Arbuchle right here “will havea significant chilling effect on future plea negotiations in this jurisdiction, simply because counsel and minors will not know to what degree of certainty they can rely on the negotiated settlement[s]” approved by Judge Sapunorand “other regularly scheduled 21 visiting judges,” we have three responses. First, we are not aware ofany provision of law that would allow us to recognize the existence of an Arbuckle right just because refusing to do so could be deemedto have negative consequences in other cases. The Arbuckle right does not come andgoto suit various perceived policy objectives; it is a contractual right that arises, or does notarise, in a given case based onthe specific facts of that case, which will show, or not show,that the defendant entered into a plea agreementin expectation of and reliance upon sentence being imposed by the same judge who accepted the plea. That predicate factual basis for the right simply has not been shown to exist here. Second, to the extent the minor’s argumentrests on the lack of certainty as to whether an agreed-upon disposition will actually be imposed, such uncertaintyis inherent in the law that provides that a promised disposition is never specifically enforceable, and the court can always decide to impose a different disposition, provided the defendantis given the opportunity to withdraw hisor herpleaif the court exercises that option. (See — Pen. Code, § 1192.5; In re: Ricardo C., supra, 220 Cal.App.4th at pp. 698-699.) Whether wefind an Arbuckle right in this case cannot affect, in any manner, the inherent uncertainty in promised dispositions. Perhaps the best way of fostering certainty and settled expectationsin light of these concerns would be to encourage the use of an Arbuckle request. Thatis, a defendant considering entering into a plea agreement who decidesthat he or she wants to be sentenced by the same judge to whom the plea agreementis being presented for approval can requestthat the prosecution agreeto, and that the court approve, the inclusion of an Arbuckle right in the agreement. Making the Arbuckle issue explicit in the course of plea negotiations by expressly requesting an Arbuckle term in the plea agreementwill necessarily eliminate the uncertainty that comes with trying to discern from an often vague record whether the defendantentered into the plea agreementin 22 expectation of and reliance upon sentence being imposedby the judge who accepted the plea, such thatthe right to be sentenced by that judge is implicit in the agreement. In the meantime, the minor has failed to persuade us that he entered into the plea agreementhere in expectation of and reliance upon Judge Sapunor presiding over the disposition hearing. Thus, the right to have Judge Sapunor imposedisposition was neither an express nor an implicit term of his plea agreement. Accordingly, the minoris notentitled to the relief he seeks in this proceeding. DISPOSITION Thepetition for writ of mandate is denied, and the stay issued by this court on June 25, 2015, is vacated uponfinality of this opinion. Me? Robie, Acting P.J. Weconcur: Panie Mauro,J. ZN Murray,J. ( 23 BRIEF FORMAT CERTIFICATION PURSUANT TO CALIFORNIA RULES OF COURT, RULE8.504 Pursuant to California Rules of Court, rule 8.504, I certify that the foregoing brief contains 6,320 words, according to the word-count function of Microsoft Word, which was usedto preparethe brief. in fo f ee eee IL ™ ARTHUR L-BOWIE Supervising Assistant Public Defender State Bar No. 157861 - 26 - IN THE SUPREME COURTOF THE STATE OF CALIFORNIA DECLARATION OF SERVICE I, the undersigned, declare as follows: L Aube L, Bow!CG , am a Citizen of the United States, over the age of 18 years and not a party to the within action; my business address is 9605 Kiefer Blvd., Room 302, Sacramento, California 95827. On January 9, 2016, I served the attached MINOR/APPELLANT/PETITIONER’S PETITION FOR REVIEW AND REQUEST FOR IMMEDIATESTAY OF JUVENILE DELINQUENCY PROCEEDINGS by placing a true copy thereof in an envelope addressed to the persons named below at the addresses shown, and by sealing and depositing the envelope in the United States Mail at Sacramento, California, with postage thereon fully prepaid. Court of Appeal Jesse Witt, DAG Third Appellate District Office of the Attorney General 914 Capitol Mall, Fourth Floor P.O. Box 944255 Sacramento, CA 95814 Sacramento, CA 94244 District Attorney Hon. James P. Arguelles, Sacramento County Judge, Sacramento County 9805 Goethe Road Superior Court, Dept. 97 Sacramento, CA 95827 9605 Kiefer Blvd. Sacramento, CA 95827 Steven R. [a minor] 4 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this declaration was executed on January 9, 2016, at Sacramento, California. A d e e o e S O N A R -27-