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

Real Party in Interest, The People, Answer Brief on the Merits

Cal.May 11, 2016

Su the Supreme Court of the State of California K.R., Petitioner, Vy Case No. 8231709 SUPREME COURT THE SUPERIOR COURT OF pa fe Phy SACRAMENTO COUNTY, eeed Respondent, MAY 11 2016 PEOPLE OF THE STATE OF Frank A. MoGuirs Glerk CALIFORNIA, Real Party in Interest. Deputy Appellate District Third, Case No. C079548 Sacramento County Superior Court, Case No. JV134953 The Honorable James Arguelles, Judge PEOPLE’S ANSWERING BRIEF ON THE MERITS KAMALAD. HARRIS Attorney General of California GERALD A. ENGLER Chief Assistant Attorney General MICHAEL P, FARRELL Senior Assistant Attorney General RACHELLE A. NEWCOMB Deputy Attorney General MICHAEL A. CANZONERI Supervising Deputy Attorney General ERIC L. CHRISTOFFERSEN Supervising Deputy Attorney General State Bar No. 186094 1300 I Street, Suite 125 P.O. Box 944255 Sacramento, CA 94244-2550 Telephone: (916) 322-0792 Fax: (916) 324-2960 Email: Eric.Christoffersen@doj.ca.gov Attorneysfor Real Party in Interest TABLE OF CONTENTS Page Question Presented... cccsssssssseenseeeseeseeeseseeesseterensteneteeneeseeseneseetenateeneees 1 TntrOductiOn.....ccccceccccessessscsssecsssesseceesseeseceeeeessacssssssssessscaesseeeeseessseessesaeeses 1 Statement of the Case...........cccccscsscsscssesssecssesssssssseessessessensecssseeesenssseseeeaees 2 Summary OfArgument... eccsseesesseseeeeeesessneeseteeetecenetseneeeseseneneeneees 6 ATQUMENL 00... eee ecsetessesesseesesesseneseccseneaeerseseneeenessasesssssssssuensenecerensennenaneneess 8 I. The Court of Appeal correctly determined that sentencing bythe plea judge was not an implied term of petitioner’s plea agreement .............ccceceeeeereneeteteeeteeetees 8 A. Arbuckle requires an individualized determination of whether the plea was given in expectation of and in reliance upon sentence being imposed by the samejudge... 8 1. Contract principles in plea bargaining............. 9 2 People v. Arbuckle ...cccccceccssseesseseseessssesensens 9 3. Post-Arbuckle legal developments................ 11 4 Even assuming courts may categorically imply an Arbuckle term when sentencing discretion is retained, petitioner’s plea falls outside of that “general principle”......... 13 B. Therecord of petitioner’s plea does not support a finding that sentencing by Judge Sapunor was an implied term of petitioner’s plea agreement........ 14 ll. | Anexpress Arbuckle term should be includedin the record of a plea to ensure its enforceability and avoid a presumptionthat such a term is not part ofthe plea AQTEEMENL 0... sessesesssseseeecsenenetencnstensrsteescesssatesssseeesesesenenens 18 A. Language in Arbuckle suggesting that an Arbuckle term may be categorically implied in all plea agreements should be disapproved.............. 19 TABLE OF CONTENTS (continued) Page B. Absent an express Arbuckle term in the plea agreement, courts should presumethat sentencing by the same judge whotookthe plea wasnot a material term ofthe plea...ee 21 CONCIUSION ..........ccccccccceceessesecscccccccccsscecssssccecsssuscvscscececcusescececccuaecsesseseeeeeees 23 il TABLE OF AUTHORITIES Page CASES Ben-Zvi v. EdmarCo. (1995) 40 Cal.App.4th 468 oo.ccesscessssenssssecscserereseceesseseeeseerenes22 In re James H. (1985) 165 Cal.App.3d 911ecseesscsceeeesststesseeeseeeeseeeteneeeneeeeetees 12 In re Mark L. (1983) 34 Cal.3d 171eeeeessesetsseescestsesssesssesensseessesseneeeeseeteeaeeeee 11, 12 In re Ray O. (1979) 97 Cal.App.3d 136... cccccsssecsesseseseseessssenestesenesseneseees 11,17 In re ThomasS. (1981) 124 Cal.App.3d 934 oo. icccccceesesessesesesesessesseesesseesstsnseseseersess 11 Levi Strauss & Co. v. Aetna Casualty & Surety Co. (1986) 184 Cal.App.3d 1479... ccceccsseesessesesssesesessesssesesssessssssessessessess22 Lippmanv. Sears, Roebuck & Co. (1955) 44 Cal.2d 136.cssssssscssssecssessstesesesssessecsssssseesetsnssesseseeseees22 People v. Adams (1990) 224 Cal.App.3d 1540 uo... cecsesseseseseecssecersesnssessssseseseeseness 16 People v. Arbuckle (1978) 22 Cal.3d 749...sseceneeseeacsaceateneeaeeasseeseeseecseesseeensaeess passim People v. DeJesus (1980) 110 Cal.App.3d 413 occesesseeessssseecssenssersssesesesesssseessessens 11 People v. Horn (1989) 213 CalApp.3d 701 oc.sssesessseeseeeseeetsssseetesseneenensees 6, 12, 17 People v. Martinez (2005) 127 Cal.App.4th 1156.00...ccc ceeecessseseeseeeeseeeseseneeeeesseseeeeceseees22 People v. McIntosh (2009) 177 Cal.App.4th 534 oo.ceseeseesseesssensesseetesesnenenes 6, 14, 21 iti TABLE OF AUTHORITIES (continued) Page People v. Pedregon (1981) 115 CalApp.3d 723 ....cscsscssesessesesesesesessessteeesseseeeeeesesaseeeasiees 11 People v. Preciado (1978) 78 Cal.App.3d 144... scsesesessesenesseneeeseneenereneeneeetereetenenens22 People v. Ruhl (1985) 168 Cal.App.3d 311... ceeessseesessesesecesesenensseeecenseseneeeteranensneaes 12 People v. Serrato (1988) 201 Cal.App.3d 761 ......cccccsssesesssseseseseesescseeseenenseetenenaes 12, 16 People v. Shelton (2006) 37 Cal.4th 759.0... cccsssesesesseseeeeeseeeenetaseeceneteeeeens 9, 13, 21 People v. Walker (1991) 54 Cal.3d 1013... csesesssseseeeesenssesesesenenseseeesensaeeseeesasaeeneeatens9 People v. West (1980) 107 Cal.App.3d 987 ......csssescessessesesseesessssssesssnsaseeetseeeeteneneatans 17 Santobello v. New York (1971) 404 U.S. 257 .eesssscccessetesenessseesseeessnseetenenensneseesereneneneceneaeattsees9 STATUTES Civil Code § 1647 oo eecccsceceeteseseseseesesssssssssesensssaesssesessessenssesececseaesentaeeeensnessesseneneatensaaes9 § 1649 oo eceeccecccseesesesesesssesssessssesssesessereseesesenesesesaeseeresieceterensentanssnareasaesenss9 Penal Code § 1203.03 ....ccececsececesssssssscscsssssesesssseescseseeneseensnssseesscacaceneestenssessetsensacasentes 10 OTHER AUTHORITIES 2 Erwinet al., Cal. Criminal Defense Practice (2015), Arraignment & Pleas, § 42.44[1]....ccccseseeseseereeeseeteeenenereneesenseaensnens 19 Cal. Criminal Law: Procedure and Practice (Cont.Ed.Bar 2015) Pronouncing Judgment, § 13.11 .vsccscesseeterereeeenestestessesenesceeens 19 iv TABLE OF AUTHORITIES (continued) Page Levenson, Cal. Criminal Procedure (The Rutter Group 2015), Plea Bargaining, § 14:18 wccecccsscseseeseeeretseeeecsessensseeeeeeeseeees 19 QUESTION PRESENTED Waspetitionerentitled to a disposition hearing before the same judge who accepted his admissionsto a criminal offense and probation violations even though he did not makean affirmative showing of individualized facts in the record establishing that this was an implied term ofthe plea agreement? (See People v. Arbuckle (1978) 22 Cal.3d 749.) INTRODUCTION This case presents an example of the mischief that can arise when a simple application oflaw to fact is misinterpreted as creating an affirmative right. In People v. Arbuckle (1978) 22 Cal.3d 749, 756-757 (Arbuckle), this Court applied established contract principles to conclude that an implied term of the defendant’s plea agreement wasthat the judge who accepted the plea wouldalso preside at sentencing. Though it was based on contract principles, the Arbuckle decision gaverise to the misguidednotion of an affirmative “Arbuckle right” and the necessity for an “Arbuckle waiver” wheneverajudge other than the plea judge presides at sentencing.’ This notion of an affirmative “Arbuckle right”likely led petitioner in this case to mistakenly believe he had a right where none existed. Consequently, petitioner’s insistence on the existence of a phantom “Arbuckle right” has caused substantial and unnecessary litigation. Both courts below have hadto carefully review the record to determine whether ' Because the term “Arbuckle right”is inaccurate and misleading,the Peoplewill instead use the phrase “implied Arbuckle term” when referring to a term of a plea agreementthat requires sentencing by the same judge whotook the plea. This phrase more accurately describes whatthis Court found to implicitly exist in Arbuckle—an enforceable term of the plea agreement mandating sentencing by theplea judge. an implied Arbuckle term wasactually part of petitioner’s plea” agreement. Unfortunately for petitioner, the record does not support his claim that he entered the agreement with the expectation of and reliance on sentencing by the juvenile judge who was going to accept his plea. The Court of Appeal correctly rejected this claim. Moreover, this case highlights the persistent misinterpretation of Arbuckle made by manylitigants and presents an excellent vehicle for this Court to clarify Arbuckle and to ensure greater accuracy and consistency in the enforcementofplea agreements. STATEMENT OF THE CASE Because the numerousjuvenile court proceedings leading to petitioner’s admission of two probation violations and the subsequent disposition hearing are not relevant to the issues before this Court, they are omitted here. A recitation of those preliminary proceedings may be found in the opinionofthe court below. (Slip. Opn.at pp. 5-6.)° In its decision below, the Court of Appeal fully detailed the proceedingsin the juvenile court that are directly relevant to the issue here: On May28, the parties appeared before Judge Sapunorin Department 97for the settlement conference hearing. The * The People recognizethat, as a juvenile, petitioner made admissionsrather than entered a plea. Furthermore, rather than being sentenced,petitioner will be given a disposition. However Arbuckle originated in the context of a plea agreementandapplies equally to adult and juvenile criminal proceedings. Therefore, to avoid unnecessarily complicating matters, and to highlight the general application of these principles, the People will use the applicable adult terms (plea and sentencing) when referring to the proceedings here and in criminalcases in general. 3 The decision of the court below wasoriginally published at 243 Cal.App.4th 495. Because that decision was depublished upon the grant of review, the People will cite to the original slip opinion ofthe court. minor’s attorney told the court the minor was prepared to admit the allegation in the first petition that he remained awayfrom his homeovernight without parental permission andthe allegation in the secondpetition that he brandisheda replica firearm “with an understandingthat the disposition would be 54 daysin custody in juvenile hall. He has 47 days as of today. [{] The intention is in one week from today to recalendar this for proof that [the minor’s grandmother] has purchased the planeticketto Nevadaas the minor’s motheris currently a resident ofthestate of Nevada, and this case would be transferred out for [supervision] to Nevada.” The following colloquy then occurred: “THE COURT: We’re goingto orderthe 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 waiver of his right to a hearingon the alleged violations, his rights to remain silent and against self-incrimination, his right to confront and cross-examine the witnesses against him, and his right to testify. The minor then admitted the two violations of probation, the court granted the prosecutor’s motion to dismiss the remaining allegations, and the court revoked andreinstatedall 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 know wejust took the admission. Myonly 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 haveto unravelall that we’re doingright now -- not the admission necessarily, just the disposition.” The following colloquy then tookplace: “THE COURT: Maybe weoughtto put this out for a week to makesure that the disposition goes as planned. a ‘“‘THE PRESENTER: That wasjust my thoughtthatit all worked cleanly together. If for some reasonit fell apart, we'll have to undo everything we’re doing. “{THE MINOR’S ATTORNEY]: I am fine with putting whatever we need necessary. My only request is that if we put the case over for one week, the time slots 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?” “THE PRESENTER: Ifwe 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. Wecan continue putting dispo over for 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. Theintentionis for him to be deemedtimeservedatthat 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 consideredat the time of disposition. The minute order further showed that the disposition hearing wasset for June 4. On June 4, the parties appeared again in Department 97; ~ this time, Judge Arguelles was presiding. 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 proposal andstated that his intention was “probably to send him to DJJ [Department of Juvenile Justice] but I’d be willing to hear argumentfor 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. At the hearing on June 8, the minor’s attorney objected to Judge Arguelles presiding over the disposition because “we havenotaffirmatively asserted an Arbuckle waiver in this case.” She requested that the matter be set for hearing in front of Judge Sapunor, whoshe believed wassitting in Sacramentofor the next two weeks. Judge Arguelles reiterated his disagreement with the proposed disposition of sending the minorto live with his mother in Las Vegas,set a schedule forthe parties to brief the application ofArbuckle, and continued the matter to July 2. On June 25, the minor commencedthe present proceedingin this court byfiling a petition for a writ of mandate, essentially requesting that we order Judge Arguelles to either: (1) imposethe disposition the parties had agreed upon in front of Judge Sapunoror(2) set the case for a disposition hearingin 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 whotookhis admission/plea would be the same judge who imposedthe disposition.”[FN] 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 minortheright to do so or proceeding with disposition if the minorelected not to do so. [FOOTNOTE] While the superior court’s order of July 6, 2015, was notpart 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).) (Slip Opn.at pp. 6-9.) After issuing an order to show cause, the Court ofAppeal, Third Appellate District, denied the petition for writ of mandate in a published opinion. (Slip opn.at p. 23.) SUMMARY OF ARGUMENT_ The Court of Appeal properly applied Arbuckle in rejecting petitioner’s claim that sentencing by Judge Sapunorwasan implied term of petitioner’s plea agreement. The court initially concluded that Arbuckle does not require that an implied term be found in every plea bargaining case but requires an individualized, case-by-case determination of the term’s existence. The court then determined, based on a thorough evaluation of the record in juvenile court, that an Arbuckle term wasnotpart of petitioner’s plea agreement, either implied or express. The Court of Appeal did noterr. Arbuckle was grounded in contract principles inherentin plea bargaining and wasnotbasedonstatutory or constitutional rights. (People v. McIntosh (2009) 177 Cal.App.4th 534, 541.) Accordingly, Arbuckle and its progeny require an individualized determination of an implied Arbuckle term based onthe record ofthe plea in individual cases. (People v. Horn (1989) 213 Cal.App.3d 701, 707-708.) The Court of Appeal below therefore properly concludedthat the existence of an implied|Arbuckle term in petitioner’s case had to be determined from therecordofpetitioner’s plea, rather than simply impliedcategorically in his case. (Slip opn.atp. 17.) In deciding whether an implied Arbuckle term existed here, the court below correctly determinedthat the record did not support petitioner’s claim. Nothingin the record supported a conclusion that sentencing by Judge Sapunorwasa term of the agreement between the People and petitioner. To the contrary, Judge Sapunor’s statusas a visiting judge contradicted petitioner’s claim that sentencing by Judge Sapunor was a material term of the agreement. This is further confirmed because sentencing was scheduled for a specific day and time to accommodate petitioner’s travel plans, and Judge Arguelles, the regularly assigned juvenile judge, was scheduled to preside on that day. Furthermore, Judge Sapunor madenoindication that he was going to be available or assigned to Sacramento County Juvenile Court on the specific day set for sentencing. Onthis record, petitioner cannot establish that an implied Arbuckle term existed. In addition, the circumstancesof this case highlight the need for furtherclarification and development ofArbuckle, which can only be made by this Court. This Court shouldfirst expressly disapprove dicta from Arbuckle announcing a “generalprinciple” that suggests Arbuckle terms must be impliedin all plea bargains. In addition, this Court should establish a presumption that an Arbuckle term is notpart of a plea agreement whensucha term is not expressly incorporated in the agreement. Theseclarifications to the Arbuckle jurisprudence will encourageparties to expressly include Arbuckle terms in plea agreements, whichin turn will lead to greater accuracy and consistency in the enforcementof those agreements. ARGUMENT I. THE COURT OF APPEAL CORRECTLY DETERMINED THAT SENTENCING BY THE PLEA JUDGE WAS NOTAN IMPLIED TERM OF PETITIONER’S PLEA AGREEMENT In rejecting petitioner’s Arbuckle claim, the Court of Appeal below evaluated the specific record of this case to determineif an Arbuckle term waspart of the plea agreement. After reviewing the record, the court held that petitioner “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.” (Slip opn.at p. 23.) The Court of Appeal properly applied Arbuckle. A. Arbuckle Requires an Individualized Determination of Whetherthe Plea was Given in Expectation of and in Reliance Upon Sentence Being Imposed by the Same Judge Relying on broad language from Arbuckle, petitionerfirst suggests that the Court of Appeal erred by using an individualized approach in his case. (Petitioner’s Opening Brief on the Merits (OB)at p. 17 [asserting that Arbuckle’s “general proposition that an implied condition of a plea bargain is that the judge that took the plea would be the sentencing judge”isstill valid].) Petitioner overstates the reach ofArbuckle andignores almost 40 years ofjurisprudenceinterpreting that decision. As the court below correctly found, “[I]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 accepted a negotiated plea arises not as a matter of general principle, but only when the specific facts of a given case show that the plea wasgiven ‘in expectation of andin reliance upon sentence being imposed by the same judge.’” (Slip opn.at p. 16.) 1. Contract principles in plea bargaining It is settled that “when a plearests in any significant degree on a promise or agreementofthe prosecutor, so that it can be said to bepart of the inducementor consideration, such promise mustbe fulfilled.” (Santobello v. New York (1971) 404 U.S. 257, 262.) “Whena guilty plea is entered in exchangefor specified benefits such as the dismissal of other counts or an agreed maximum punishment,both parties, includingthestate, must abide by the terms of the agreement.” (People v. Walker (1991) 54 Cal.3d 1013, 1024.) Furthermore, a plea agreementis interpreted according to contract principles. (People v. Shelton (2006) 37 Cal.4th 759, 767.) “The fundamental goal of contractual interpretation is to give effect to the mutual intention of the parties. (Civ. Code, § 1636.) If contractual languageis clear and explicit, it governs. (Civ. Code, § 1638.) On the other hand,‘[i]f the terms of a promise are in any respect ambiguousor uncertain, it must be interpreted in the sense in which the promisorbelieved, at the time of makingit, that the promisee understood it.’ [Citations.]” (Ibid.) To resolve ambiguity in the terms of a plea agreement, a court should “consider the circumstances under whichthis term ofthe plea agreement was made, and the matter to which it relates (Civ. Code, § 1647) to determine the sense in which the prosecutor and the trial court (the promisors) believed,at the time of makingit, that defendant(the promisee) understoodit (id., § 1649).” (dd. at pp. 767-768.) 2. People v. Arbuckle In Arbuckle, this Court applied contract principles to hold that an implied term of the defendant’s plea agreementwasthat his sentence would be imposed by the same judge who acceptedhisplea. | (Arbuckle, supra, 22 Cal.3d at p. 756.) In that case, the defendant entered a guilty plea to one count ofassault with a deadly weapon in exchangefor dismissal of two other counts and a promise “that defendant wouldbereferred to the Department ofCorrections for preparation of a report under the provisions of section 1203.03 of the Penal Code, and that the judge would ‘follow the recommendation’ madein suchreport in sentencing defendant.” (Jd.at p. 752.) After the report from the Department of Correction wasreceived, the judge whooriginally took the plea was transferred, and the defendant was brought before another judge for sentencing. (Jd. at p. 753.) He objected to sentencing by the new judge and insisted he wasentitled to sentencing by the original judge. (/bid.) Over the defendant’s objections, but consistent with the Departmentof Corrections’ report, the new judge sentenced defendantto state prison. (/bid.) On appeal, this Court held “that the plea bargain herein wasentered in expectation ofand in reliance upon sentence being imposed by the same judge.” (Arbuckle, supra, 22 Cal.3d at p. 756.) That finding was supported by the trial court’s repeated use of the pronoun “I” when accepting theplea. (id. at p. 756 & fn. 4 [“I have agreed, as has your attorney, Mr. Kenner, that before I could send youto the State Prison, I would haveto get that 90-day diagnostic study and I would follow the recommendation.”].) In addition to finding that the record supported the existence of an implied term, this Court also indicated, “As a general principle, moreover, wheneverajudge accepts a plea bargain and retains sentencing discretion under the agreement, an implied term of the bargainis that sentence will be imposedby that judge.” (Arbuckle, supra, 22 Cal.3d at pp. 756-757.) Finally, this Court concluded that the defendant wasentitled to specific performanceofthe implied term (sentencing by the judge who took plea), and, if not possible, the defendant was permitted to withdrawhis plea. (Id. at p. 757.) 10 3. Post-Arbuckle legal developments Following Arbuckle, California courts initially adopted the “general principle” languagefrom the decision and categorically implied Arbuckle termsin all plea bargain cases. (See, e.g., In 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”]; 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”]; People v. Pedregon (1981) 115 Cal.App.3d 723, 725 [“we have noted the Arbuckle court’s finding of an implicit term in every plea bargain that the sentence will be imposed by the judge whoaccepts the plea”].) Thosecourts also rejected an individualized, record-based approach, especially involving an analysis ofthe trial court’s use of personal pronouns. (See, e.g., In re ThomasS. (1981) 124 Cal.App.3d 934, 939 [“The court's phraseology, specifically its failure to use the personal pronoun in accepting a plea,is immaterial”].) In 1983, however, this Court confirmed the importance ofan individualized determination of an implied Arbuckle term. (In re Mark L. (1983) 34 Cal.3d 171, 177.) “We emphasize that here, as in Arbuckle, the record indicates an actual assumption by the court andparties that the officer taking the plea would havefinal and exclusive dispositional authority.” (Ibid., italics added.) “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].’” (bid., quoting Arbuckle, supra, 22 Cal.3d at p. 756.) Thus, in Mark L., this Court did notrely on a categorical “general principle” to find an implied Arbuckle 11 term in the juvenile’s plea agreement but instead focused onthe specific record of the plea to imply the existence of such a term. Following this Court’s decision in Mark L., California courts began focusing on the specific record of the plea to determine the existence of an implied Arbuckle term. (See, e.g., In re James H. (1985) 165 Cal.App.3d 911, 919; People v. Ruhl (1985) 168 Cal.App.3d 311, 315; People v. Serrato (1988) 201 Cal.App.3d 761, 764.) These courts turned away from a categorical presumption that sentencing by the plea judge was always an implied term of a plea agreement. It is not always an implied term of a plea bargain that the judge whoaccepts the plea will impose the sentence, rather, the record must affirmatively demonstrate some basis upon which a defendant may reasonably expectthat the judge who accepts the plea will retain sentencing discretion. [Citation.] (People v. Ruhl, supra, 168 Cal.App.3d at p. 315.) Following this shift, appellate courts that hadinitially adopted a categorical approach embraced the individualized determination of implied Arbuckle terms. (See People v. Horn, supra, 213 Cal.App.3d at p. 708 (Accordingly, this court disapprovesits previous opinions in Davis [(1988)] 205 Cal.App.3d 1305, Rosaia [(1984)] 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 ofan affirmative showing on the record supporting a reasonable expectation that the judge who acceptedthe plea will also impose sentence.”].) As the court below noted, the 1989 decision in People v. Horn was the final nail in the coffin for . . . the idea that every defendant whoenters a negotiated plea has an Arbuckle rightto be sentenced by the same judge who acceptedthe plea, as no published case since Horn has deviated from the individualized approach under whichthe court examines the record to 12 determine what the defendant reasonably could have expected at the time the plea was entered (Slip opn.at p 15.) Accordingly, petitioner’s suggestion that the “general principle” mentioned in Arbuckle still survives today has nobasis in the case law. To the contrary, decisions by this Court and numerous Courts of Appeal have emphasizedthe importanceofan individualized approach when applying Arbuckle. Since Arbuckle was founded on contractprinciples, the actual intentions and expectationsofthe parties to the agreement should govern, rather than a categorical imposition of a term that maynot have been contemplated by the parties. (See People v. Shelton, supra, 37 Cal.4th atp. 767 [“The fundamental goal of contractual interpretation is to give effect to the mutual intentionoftheparties . . .”].) 4. Even assuming courts may categorically imply an Arbuckle term when sentencing discretionis retained, petitioner’s plea falls outside of that “general principle” As discussed above, the language in Arbuckle purportingto establish a categorical “general principle” has been abandoned by California courts in favor ofan individualized approach. However, even assumingthat principle retains some merit, petitioner’s case falls outside of its reach. “As a generalprinciple[ ], whenever a judge accepts a plea bargain and retains sentencing discretion under the agreement, an implied term of the bargainis that sentence will be imposedby that judge.” (Arbuckle, supra, 22 Cal.3d at pp. 756-757,italics added.) Here, under the terms of petitioner’s plea agreement, the juvenile court retained no meaningful discretion at sentencing. Specifically, the parties agreed that, in exchange for his plea, petitioner would be sentencedto 54 days in custody and his case would be transferred to Nevada. (Petition for Writ of Mandate (PWM), Exh. 11 at p. 2.) Thus,the court did notretain “discretion under 13 the agreement” to impose a sentence other than exactly what the parties had explicitly agreed.’ Under the plea agreemententeredinto by petitioner, Judge Sapunor(or any other judge) had no choice butto follow the proposed sentenceorreject it entirely. Because the plea agreement provided nodiscretion at sentencing, petitioner had no reasonto insist upon Judge Sapunor’s presence at sentencing. aiSee People v. McIntosh, supra, 177 Cal.App.4th at p. 545 [Arbuckle “Ss” not implied when judge was left with “very limited discretion” at sentencing].) Since the termsofpetitioner’s plea agreementleft the juvenile court no discretion at sentencing, there is no basis to imply that sentencing by Judge Sapunor was automatically a term of the agreement. Thus, the “general principle” discussed in Arbuckle did not apply here, and the Court of Appeal below properly undertook an individualized analysis of petitioner’s Arbuckle claim. B. The Recordof Petitioner’s Plea Does Not Support a Finding That Sentencing by Judge Sapunor Was an Implied Term of Petitioner’s Plea Agreement Petitioner also asserts that the court below erred because “in petitioner’s case, the record affirmatively demonstrate[d] a basis on which petitioner reasonably could expect the judge who accepted his admission wouldalso be the dispositional judge.” (OBat p. 18.) Petitioner’s argument displays a fundamental misunderstanding ofArbuckle. The key “ The People disagree with the court below that the generalprinciple could apply here because the court retained the discretion to reject the proposed disposition altogether. (Slip opn. at pp. 17-18.) In Arbuckle,this Court, after noting that an implied term may exist when a judgeretains sentencing discretion specifically noted that the sentencing judge may have a “range of dispositions available.” (22 Cal.3d at p. 757.) Thus, the “sentencing discretion” reference by this Court is best understood as discretion to impose a range of sentencesrather than to reject a stipulated term. (See People v. McIntosh, supra, 177 Cal.App.4th at p. 545.) 14 issue is not whetherpetitioner may have expected Judge Sapunorto be the sentencing judge but whether he made his plea in reliance on that expectation. Here, the Court of Appeal carefully evaluated the record below and concludedthat it did not support a finding that petitioner’s plea was given in expectation of andreliance on sentencing by the judge who accepted his plea. (Slip opn. at pp. 18-21.) The court’s conclusionis well supported bythe record below. Therecitation of the plea agreementby petitioner’s counsel contains no mention or even suggestion that sentencing by Judge Sapunorwasa material, motivating term of the agreement. Instead, petitioner’s counsel focused on the agreed-uponsentence that would permit petitioner to complete his custody in a weekandhave his case transferred to Nevadato live with his mother. (PWM,Exh. 11 at pp. 1-2.) It appears that Judge Sapunorhadvery little, if anything, to do with the plea agreement. When petitioner’s case wascalled, his counsel immediately indicated that the parties had reached an agreement. (PWM,Exh. 11 at p. 1.) There is no indication in the record that, when the parties reached this agreement, they were even awarethat Judge Sapunor,a visiting judge, was goingto be taking the plea. The complete lack of involvement by Judge Sapunorin the plea negotiations suggests that his availability for sentencing was not a term of the agreement. Furthermore, Judge Sapunorwasa visiting judge with noset schedule. Therefore, there was no guarantee that he was going to be available on the specific date scheduled for sentencing—June4, 2015. That specific date wascritical because the parties agreed that would be the day petitioner would be released to the custody of his grandmotherfor transportation to Nevada. (PWM,Exh. 11 at p. 2.) Judge Sapunordid not suggest that he would be personally present for the scheduled sentencing. Indeed, Judge Sapunorspecifically asked the parties what they wanted with 15 2 . Ss Be no indication as to his schedule. (PWM,Exh. 11 at p. 5 [“You want to have disposition one week from today . . . ?”’].) Moreover, as of the date of the plea, Judge Sapunor already knew he had beenassignedto a different county on June 4. (Argueliles Orderat p. 7) Significantly, disposition was scheduled for June 4, 2015 in Department 97, a date when Judge Arguelles, the regularly assigned judge in that department, was scheduledto be presiding. (Arguelles Orderatp. 7.) Had the plea agreement been contingent upon sentencing by Judge Sapunor,it is unlikely the parties would have scheduled the sentencing in a departmentpresided overby a different judge. - Also, nothing that Judge Sapunorsaid in the plea hearing suggested that he would be the judge at sentencing. The only personal pronoun used by Judge Sapunor was “we.” (PWM,Exh. 11 at pp. 2&4.) However, Judge Sapunor’s use of that term involved discussing actionsthat the parties and the court should do on the day of the plea hearing, May 28, 2015. (PWM, Exh. 11 at p. 2. [“We’re going to orderthe transfer today and then calendar it for a week to make sure that’s been accomplished?”]; andat p. 4 [“Maybe we oughtto put this out for a week to makesure that the disposition goes as planned.”].) Judge Sapunor’s use of the term “we” whenreferring to actions on the date of the plea hearing in no way suggested that that judge wasgoing to be present for sentencing. In addition, Judge Sapunorneverused the personal pronoun “I” when discussing the anticipated sentence. (Cf. People v. Adams (1990) 224 Cal.App.3d 1540, 1543 [plea judge’s use of “I” when discussing sentencing supported finding of implied Arbuckle term]; People v. Serrato, supra, 201 > The July 6, 2015 order by Judge Arguelles wasnotpart of the record presentedbypetitioner. However, the Court of Appeal took judicial notice of the order and madeit part of the record in this case. (Slip opn. at p. 9, fn. 3.) 16 Cal.App.3d 761, 764 [same].) Petitioner argues that Judge Sapunor’s lack of the use of the personal pronoun “T”is not significant. (OB at p. 17, citing In re Ray O., supra, 97 Cal.App.3d at p. 139.) Petitioner’s reliance on Ray O., in support of his argument, however, is misplacedas that decision was expressly disapproved in People v. Horn, supra, 213 Cal.App.3d at page 708. Finally, whenpetitioner first appeared before Judge Arguelles on June 4, 2015 for disposition, he did not immediately object to sentencing by that judge.° (PWM,Exh.12 at pp. 1-2.) Rather, petitioner did not raise an Arbuckle claim nor request Judge Sapunoruntil June 8, 2015, after Judge Arguelles had indicated that he was going to reject the agreed-upon sentence. (PWM,Exh. 1 at p. 5.) Petitioner’s failure to immediately object to Judge Arguelles demonstrates that sentencing by Judge Sapunorwas not a material term of the plea agreement. (People v. Horn, supra, 213 Cal.App.3dat p. 709 [A defendant’s failure to object when faced with a different sentencing judge suggests he did notenter his plea in reliance on or with the understanding that the judge accepting his plea wouldalso impose sentence”].) Indeed,petitioner’s objection only after Judge Arguelles rejected the plea agreement demonstrated that whatpetitioner wasreally concerned about wasthe specific sentence that had been negotiated and not a specific judge to imposethat sentence. (See Peoplev. West(1980) 107 Cal.App.3d 987, 992 [Defendant “does not have the option of taking his chancesbefore thedifferent judge and,if the result is unfavorable, then demandthe original judge”].) ° The People recognize that petitioner’s regular attorney wasnot present on June4, 2015, which mayexplain the lack of an immediate objection. However, petitioner himself was present and could have informed substitute counsel that sentencing by Judge Sapunor wasa material term of the plea agreement. 17 Here,petitioner has improperly conflated his reasonable expectation of receiving the agreed-upon sentence with an expectation to have that sentence imposed by Judge Sapunor. For example, petitioner argues,“It is clear in this case that the parties assumed that disposition would be carried out as anticipated by Judge Sapunorin that it was the only possible disposition contemplated by the court.” (OBat p. 18). Petitioner further argues that “Judge Sapunorcertainly anticipated the plea/admission agreement and disposition would be carried out as agreed.” (OBat p. 19.) Whatpetitioner, the People, or even Judge Sapunor reasonably expected to be the ultimate sentence in this case is not relevant to the Arbuckle issue here. As the court below succinctly observed, “A defendant’s expectation that he will receive an agreed-upon sentence is not the same expectation with which Arbuckle is concerned: the expectation of being sentenced by the same judge whoaccepted the negotiated plea.” (Slip opn. at p. 18.) The record here simply does not support the conclusion that petitioner entered his plea in reliance on sentencing by Judge Sapunor. In short, the Court of Appeal correctly concluded that the record below does not support petitioner’s assertion that an implied term of the plea agreement wasthat Judge Sapunor would preside at sentencing. There is no evidencethat petitioner entered his plea with the “expectation of and reliance on” sentencing by Judge Sapunor. (Arbuckle, supra, 22 Cal.3d at p. 756.) Rather, petitioner entered his plea to obtain the specific sentence to which he and the People had agreed. | II. AN EXPRESS ARBUCKLE TERM SHOULD BE INCLUDEDIN THE RECORD OF A PLEA TO ENSURE ITS ENFORCEABILITY AND AVOID A PRESUMPTION THAT SUCH A TERM IS NOT PART OF THE PLEA AGREEMENT This case highlights the uncertainty that occurs when courts are forced to try to determine when implied terms to a plea agreementexist. Recognizing the continued confusion regarding the scope of the Arbuckle 18 “right,” the court below suggested that “the best wayof fostering certainty and settled expectationsin light of these concerns would be to encourage the use of an Arbuckle request.” (Slip opn. at p. 22.) The People agree with the court below and request this Court to: (1) expressly disapprove the “generalprinciple” language in Arbuckle; and (2) establish a presumption that an Arbuckle term is not part of the plea agreement when sucha term is not expressly included. These changes will “foster certainty andsettled expectations” in the plea bargaining context and will prevent unnecessary appellate litigation. (Slip opn.at p. 22.) A. Language in Arbuckle Suggesting That an Arbuckle Term MayBe Categorically Implied in All Plea Agreements Should Be Disapproved To alleviate continued confusion regarding implied Arbuckle terms, this Court should disavow the dicta in Arbuckle purporting to create an implied term in virtually all plea bargains. This Court should finally put to rest the notion that, as a general principle, Arbuckle terms should be implied in every case when a judge retains sentencing discretion following a plea. As discussed above, California courts have generally rejected such a categorical approachin favorof an individualized determination of an implied Arbuckle term. As the court below noted, however, the expansive interpretation of the “general principle” language stubbornly persists in manylegaltreatises, “which often leave the distinct impression that the general rule from Arbuckleis still very much alive.” (Slip opn.at p. 15, citing 2 Erwin et al., Cal. Criminal Defense Practice (2015) Arraignment & Pleas, § 42.44[1], pp. 42-154.8(5) to 42-154.9; Cal. Criminal Law: Procedure and Practice (Cont.Ed.Bar 2015) Pronouncing Judgment, § 35.11, p. 1028; Levenson, Cal. Criminal Procedure (The Rutter Group 2015) Plea Bargaining, § 14:18, p. 14-20(rel. 12/2015). 19 The persistence ofthis broad interpretation of the “general principle” language from Arbuckle underminescertainty in plea bargaining andfosters the continued misperception that Arbuckle established an inherent “right” for defendants. This misperception doesnot benefit defendants, the People, or the courts. For example, relying on the “generalprinciple” language from Arbuckle, a defendant may mistakenly assume that he or she automatically has an implied Arbuckle term when entering a guilty or no contest plea.’ Becauseofthis mistaken assumption, a defendant may not seek to include an express Arbuckle term in the plea agreement, even if sentencing by the plea judge is a material motivating factor of the defendant’splea. Accordingly, the defendant’s ability to enforce that term may depend on the extent that the record of the plea supports the existence of the implied term. If the record is insufficient to show an implied term, the defendantwill not be able to enforce that term. Not only willdefendants benefit from this change, but the People and the courts will as well. The People will have greater certainty that a negotiated plea agreement will remain if the judge whotookthe plea is not available. In addition, courts will avoid the unnecessary litigation that will continue to arise over defendants’ mistaken reliance on the continued viability ofArbuckle’s “general principle” language. Accordingly, repudiation ofthe “general principle” language from Arbuckle will provide greatercertainty to all parties involved in plea bargaining. No longer will defendants mistakenly believe that Arbuckle 7 That assumption seemsto have occurredhere. When arguing this matter before Judge Arguelles,petitioner’s counsel asserted that, under Arbuckle, petitioner had “a right to be in disposition in front ofthe trial court that took the admission” andthat petitioner did not “enter an expressed Arbuckle waiver ....” (PWM, Exh.1 at pp. 5, 7.) 20 announcedaninherentright to a specific judge at sentencingin all plea bargains. B. Absent an Express Arbuckle Term in the Plea Agreement, Courts Should Presume That Sentencing by the Same Judge Who Tookthe Plea Was Not a Material Term of The Plea This Court should establish a presumption that an Arbuckle term is not part of a plea agreement when sucha term is not expressedin the agreement. Such a presumption would encouragethe inclusion of express Arbuckle terms, foster accuracy in the enforcement of plea agreements, avoid unnecessary litigation, discourage judge-shopping, and be consistent with long-established contract principles. First, such a presumption would encourage defendantsto specifically negotiate an Arbuckle term and ensureit is placed on the record,if such a term is truly a motivating factorin the plea. (See People v. McIntosh, supra, 177 Cal.App.4th at p. 545,fn.8 [“If the identity of the sentencing judgeis truly a material elementin a defendant’s decision to entera plea,it would be reasonable to expressly articulate this fact on the record at the timethe plea is entered.”].) A defendant who knowsthat an Arbuckle term mustbe expressly included in a plea agreementto ensure its enforceability will have a strong incentive to ensure that term is included. Second,establishing this presumption will also foster greater accuracy in the enforcement ofplea agreements. “The fundamentalgoal of contractualinterpretation is to give effect to the mutual intention of the parties.” (People v. Shelton, supra, 37 Cal.4th at p. 767.) By encouraging parties to include an Arbuckle term in the expressed termsofa plea agreement, the presumption would ensure that an Arbuckle term is enforced only whenit was an actual term of the agreement. The current practice of generally permitting courts to imply the existence of an Arbuckle term creates the potential that Arbuckle termswill be inaccurately enforced. 21 Third, the presumption wouldalsolimit the need for courts to undertake post-hoc evaluationof the record of a plea to determine if an implied Arbuckle term exists.As this case demonstrates, determining whether an implied Arbuckle term exists requires courts to analyze sometimes ambiguousrecordstotry to infer the intent of the parties to the agreement. Courts would notbe forced to divine the parties’ intentions based on how manytimesajudge used the pronoun “I” whentakinga plea. A presumption would reducethe need for such difficult and speculative fact finding by the courts. Fourth, the presumption would reinforce the principle that “multi- judge superior courts act as one superior court” and “the departments ordinarily operate under the presumption that they are jurisdictionally equivalent and fungible.” (People v. Martinez (2005) 127 Cal.App.4th 1156, 1159.) This would emphasize thatall judges in a given superior court are equally qualified and acceptableto preside at sentencing. Courts should not simply assumethat a particular judge is more acceptable to the parties at sentencing, absent an expressed indication of such a preference in the plea agreement. (See People v. Preciado (1978) 78 Cal.App.3d 144, 149 [‘‘judge-shopping[]’ [is] an evil that should be prevented.”].) Fifth, adoption of the presumption would be consistent with the general contract principles upon which Arbuckle was based. Courts may not “create for the parties a contract which they did not make, and... cannotinsert in the contract language which oneofthe parties now wishes were there.” (Levi Strauss & Co. v. Aetna Casualty & Surety Co. (1986) 184 Cal.App.3d 1479, 1486.) Accordingly, “[a] contract term will be implied only where the term is ‘indispensable to effectuate the expressed intention ofthe parties.” (Ben-Zvi v. Edmar Co. (1995) 40 Cal.-App.4th 468, 473 quoting Lippman v. Sears, Roebuck & Co. (1955) 44 Cal.2d 136, 22 / 145.) The suggested presumption would therefore be consistent with the generalrestriction in contract law against implying terms to an agreement. In sum, adopting a presumption against an implied Arbuckle term will provide manybenefits to the parties and to the courts going forward. Greater accuracy in enforcementofplea agreements andease oflitigation will result ifArbuckle terms are made explicitly in the record rather than implied from ambiguouspleatranscripts. CONCLUSION For the foregoing reasons, respondent respectfully requests that the decision of the court below beaffirmed. In addition, respondent requests that this Court modify the Arbuckle rule to encourage the use of express plea termsrather than implied terms. Dated: May 10, 2016 Respectfully submitted, KAMALAD.HARRIS Attorney General of California GERALD A. ENGLER Chief Assistant Attorney General MICHAELP. FARRELL Senior Assistant Attorney General RACHELLE A. NEWCOMB Deputy Attorney General MICHAEL A. CANZONERI Supervising Deputy Attorney General CLE ERIC L. CHRISTOFFERSEN Supervising Deputy Attorney General Attorneysfor Real Party in Interest SA2015301397 32461211.doc 23 e e oy CERTIFICATE OF COMPLIANCE I certify that the attached PEOPLE’S ANSWERING BRIEF ON THE MERITSuses a 13-point Times New Romanfont and contains 6,575 words. Dated: May 10, 2016 KAMALAD. HARRIS Attorney General of California SLC ERIC L. CHRISTOFFERSEN Supervising Deputy Attorney General Attorneysfor Real Party in Interest DECLARATION OF SERVICE BY U.S. MAIL Case Name: K.R. v. Superior Court (Sacramento County) No.: C079548 / S231709 J declare: I am employedin the Office of the Attorney General, whichis the office of a memberofthe California State Bar, at which member's direction this service is made. I am 18 years of age or older and nota party to this matter. I am familiar with the business practice at the Office of the Attorney Generalfor collection and processing of correspondencefor mailing with the United States Postal Service. In accordance with that practice, correspondenceplaced in the internal mail collection system at the Office of the Attorney Generalis deposited with the United States Postal Service with postage thereon fully prepaid that same day in the ordinary course of business. On May 10, 2016, I served the attached PEOPLE’S ANSWERINGBRIEF ON THE MERITSbyplacing a true copy thereof enclosed in a sealed envelopein the internal mail collection system at the Office of the Attorney Generalat 1300 I Street, Suite 125, P.O. Box 944255, Sacramento, CA 94244-2550, addressed as follows: The Honorable Anne Marie Schubert Arthur L. Bowie District Attorney Supervising Assistant Public Defender Sacramento County District Attorney's Sacramento County Public Defender's Office Office 901 G Street 9605 Kiefer Boulevard, Room 302 Sacramento, CA 95812 Sacramento, CA 95827 Court of Appeal Clerk of the Court Third Appellate District Sacramento County Superior Court 900 N Street, Room 400 720 Ninth Street Sacramento, CA 95814 Sacramento, CA 95814 I declare under penalty of perjury underthe lawsofthe State of California the foregoing is true and correct and that this declaration was executed on May10, 2016,at Sacramento, California. Signature $A2015301397 32474609.doc