People v. Bueno

• Decision Date: 19 February 2019
• Docket Number: F074946
• Citation: 243 Cal.Rptr.3d 740,32 Cal.App.5th 342
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Vanessa BUENO, Defendant and Appellant.

32 Cal.App.5th 342

243 Cal.Rptr.3d 740

The PEOPLE, Plaintiff and Respondent,

v.Vanessa BUENO, Defendant and Appellant.

F074946

Court of Appeal, Fifth District, California.

Filed February 19, 2019

Jennifer Mouzis, Sacramento, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric Christoffersen, Louis M. Vasquez, Amanda D. Cary and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.

SNAUFFER, J.

INTRODUCTION

Appellant, Vanessa Bueno, was driving while intoxicated and lost control of her vehicle resulting in a single vehicle roll-over accident. Bueno’s eight-year-old son was ejected from the vehicle and died. Additionally, her teenage daughter was injured and required medical attention. Bueno pled no contest to gross vehicular manslaughter while intoxicated (count 1; Pen. Code, § 191.5, subd. (a)¹ ); driving under the influence causing injury (count 2; Veh. Code, § 23153, subd. (a) ); driving with a blood alcohol content of .08 or more causing injury (count 3; Veh. Code, § 23153, subd. (b) ); and two counts of felony child endangerment for endangering her son (count 4; § 273a, subd. (a)) and daughter (count 5; § 273a, subd. (a)). Bueno admitted great bodily injury allegations to counts 2 through 4 (§ 12022.7, subd. (a)); and multiple victim allegations and .15% or higher blood alcohol content allegations as to counts 2 and 3 ( Veh. Code, §§ 23558, 23578 ). Bueno was sentenced to a determinate prison term of 11 years, four months.

Bueno presents four claims on appeal. First, she contends that she never waived her right to be sentenced by the judge who took her plea and the matter should be remanded for resentencing. Second, if the matter is not remanded for resentencing, Bueno contends that counts two and three must be reversed and the respective enhancements stricken, rather than stayed, since they are lesser included offenses of count 1. Bueno also alleges that the great bodily injury enhancement applied to count 4 must be stricken because, despite being stayed under section 654, it increased the duration of her sentence by decreasing her credit earning capacity. Finally, Bueno claims that the trial court incorrectly calculated the fees and assessments relating to the convictions. We find that that Bueno did not waive her rights to have her sentence imposed by the judge that accepted her plea under People v. Arbuckle (1978) 22 Cal.3d 749, 756–757, 150 Cal.Rptr. 778, 587 P.2d 220 ( Arbuckle ), and therefore reverse and remand.

PROCEDURAL HISTORY

On July 1, 2016, a criminal complaint was filed against Bueno alleging the five criminal counts described above. On September 23, 2016, Bueno entered a no contest plea to the charges and filled out and signed a change of plea form memorializing the terms of the plea agreement. Bueno also admitted each enhancement in the criminal complaint. As noted on the change of plea form, Bueno entered into an open plea, and had no agreement with the prosecution regarding the length of her potential sentence. While Bueno initialed many of the provisions on the plea form, she marked certain other provisions with an "X".² Bueno placed an "X," rather than her initials, in the space provided next to term 31 on the form, which stated "(Arbuckle Waiver) I agree that any judge may impose sentence on me." No discussion of term 31 was raised during the oral pronouncement of her plea.

On December 7, 2016, Bueno was sentenced by a different judge than the one who took her plea. Bueno did not object to the fact that a different judge pronounced her sentence.

DISCUSSION

I. Arbuckle Waiver

A. Legal Standard

" ‘[A] negotiated plea agreement is a form of contract and is interpreted according to general contract principles.’ " ( K.R. v. Superior Court (2017) 3 Cal.5th 295, 304, 219 Cal.Rptr.3d 451, 396 P.3d 581 ( K.R. ); Doe v. Harris (2013) 57 Cal.4th 64, 69, 158 Cal.Rptr.3d 290, 302 P.3d 598.) "When enforcing such an agreement, courts will apply general contract principles ‘ "to give effect to the mutual intention of the parties." ’ " ( K.R. , supra , 3 Cal.5th at p. 304, 219 Cal.Rptr.3d 451, 396 P.3d 581.) In addition to the express terms of negotiated plea agreements, courts have recognized and incorporated certain implied terms to such agreements. ( Ibid. )

In 1978, the California Supreme Court "established a basic background rule applicable to plea negotiations in criminal cases, holding that ‘[a]s a general principle ... whenever a judge accepts a plea bargain and retains sentencing discretion under the agreement, an implied term of the bargain is that sentence will be imposed by that judge.’ " ( K.R., supra, 3 Cal.5th at p. 298, 219 Cal.Rptr.3d 451, 396 P.3d 581 ( K.R. ), citing Arbuckle , supra , 22 Cal.3d at pp. 756–757, 150 Cal.Rptr. 778, 587 P.2d 220.) "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 p. 757, 150 Cal.Rptr. 778, 587 P.2d 220.)

After Arbuckle , "parties to a plea agreement—i.e., the pleading defendant and the prosecuting attorney—remained free to chart a different course by making explicit on the record that the defendant did not care if the same judge pronounced sentence. To do so, the prosecutor need only secure, at the time the plea is accepted, what has come to be known as an ‘ Arbuckle waiver.’ " ( K.R. , supra , 3 Cal.5th at p. 306, 219 Cal.Rptr.3d 451, 396 P.3d 581.) However, in the ensuing years, several appellate courts declined to apply Arbuckle ’s same-judge rule as a categorical presumption, and instead began examining the trial record for evidence of the parties’ actual intent. ( K.R. , supra , 3 Cal.5th at p. 307, 219 Cal.Rptr.3d 451, 396 P.3d 581.)

However, the California Supreme Court has recently rejected the policy shift adopted by some appellate courts. ( K.R. , supra , 3 Cal.5th at pp. 308-309, 219 Cal.Rptr.3d 451, 396 P.3d 581.) In K.R. , the minor objected to a different judge than the one who took the plea presiding over the disposition, but the trial court denied the objection, finding the minor did not have a reasonable expectation that the judge who accepted the plea would impose the disposition. ( Id. at p. 303, 219 Cal.Rptr.3d 451, 396 P.3d 581.) In reversing, the California Supreme Court held that the "clear import of Arbuckle ’s holding is thus contrary to the notion that the implied term of the plea is somehow dependent on a defendant’s pointing to evidence in the record of his or her expectation regarding the identity of the sentencing judge." ( Id. at p. 309, 219 Cal.Rptr.3d 451, 396 P.3d 581.) Instead, the court "adhere[d] to the plain and original understanding of Arbuckle that in every plea in both adult and juvenile court, an implied term is that the judge who accepts the plea will be the judge who pronounces sentence. Should the People wish to allow a different judge to preside at sentencing [ ], they should seek to obtain a waiver from the pleading defendant." ( Id. at p. 312, 219 Cal.Rptr.3d 451, 396 P.3d 581.)

Further, in K.R. , the California Supreme Court rejected the People’s argument that a defendant should be able to protect his or her Arbuckle rights by " ‘specifically negotiat[ing for] an Arbuckle term and ensur[ing] it is placed on the record.’ " ( K.R. , supra , 3 Cal.5th at pp. 312-313, 219 Cal.Rptr.3d 451, 396 P.3d 581.) "To the extent the People seek to place the burden on a pleading defendant or juvenile to make his or her preferences explicit on pain of forfeiting the right to the same judge at sentencing, the People would turn Arbuckle on its head. Under the law as proposed by the People, the Arbuckle rule will have morphed from one in which courts should assume the same judge will be the sentencer unless the prosecution can show otherwise , to one in which courts will find the same judge will be the sentencer only if the defendant can show that the parties so intended . Were we to accept the People’s argument, instead of opting out with an Arbuckle waiver , pleading defendants (and juveniles) would have to affirmatively opt in by providing an Arbuckle invocation ." ( Ibid. , emphasis in original.) In adopting its holding, the California Supreme Court noted that to the extent certain appellate court decisions "are inconsistent with this opinion, they are disapproved."³ ( K.R. , supra , 3 Cal.5th at p. 313, fn.10, 219 Cal.Rptr.3d 451, 396 P.3d 581.)

B. Analysis

Bueno argues she was denied the ability to be sentenced by the judge who took her plea in violation of her rights under Arbuckle , supra , 22 Cal.3d at pages 756-757, 150 Cal.Rptr. 778, 587 P.2d 220. Respondent, although acknowledging that Bueno did not enter into an Arbuckle waiver when her plea was taken, nevertheless argues that she forfeited the claim by not objecting at the time of sentencing. Respondent contends that the Supreme Court in K.R. did not decide the issue of forfeiture in the Arbuckle waiver context because the defendant in K.R. affirmatively objected on Arbuckle grounds at trial.

In support, respondent relies primarily on cases specifically disapproved by the California Supreme Court in K.R. including Adams , supra , 224 Cal.App.3d 1540, 274 Cal.Rptr. 629, Serrato , supra , 201 Cal.App.3d 761, 247 Cal.Rptr. 322, Ruhl , supra , 168 Cal.App.3d 311, 214 Cal.Rptr. 93, and Horn , supra , 213 Cal.App.3d 701, 261 Cal.Rptr. 814. Respondent acknowledges that the California Supreme Court "overruled Horn , Adams , Serrato , and Ruhl to the extent they were inconsistent with the Supreme Court’s conclusion that the ability to enforce the same-judge guarantee was not dependent on a factual showing that she subjectively intended that the judge taking the plea would also pronounce sentence." How...