target="F062429_files/props0002.xml">
re R.A.
Filed
6/29/12 In re R.A. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits
courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA
FIFTH APPELLATE DISTRICT
In re R.A., a
Person Coming Under the Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
R.A.,
Defendant and Appellant.
F062429
(Super. Ct. No. 11CEJ600040)
APPEAL
from an order of the Superior Court of
County. David C. Kalemkarian, Judge,
and Martin Suits, Temporary Judge (pursuant to Cal. Const., art. VI, § 21).
Eric
Cioffi, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri
and Sean M. McCoy, Deputy Attorney Generals, for Plaintiff and Respondent.
-ooOoo-
At his juvenile court jurisdiction hearing, R.A. admitted,
pursuant to a negotiated settlement, a felony and a misdemeanor in exchange for
the dismissal of another felony.
hearing, a different judge found him to be a ward of the juvenile court and
ordered out-of-home placement for one year before probationary at-home
placement with his mother. His request
for a new disposition hearing before
the judge who accepted his admission was denied. On appeal, he argues he is entitled to a
remand for the hearing he was denied below.
We agree.
BACKGROUND
On January 18, 2011, a juvenile
wardship petition alleged that R.A. committed three felonies on December
16, 2010 – a battery with serious injury (count 1; Pen. Code, § 243, subd.
(d)),
title="">[2] a criminal threat (count 2;
§ 422), and a witness dissuasion by force or threat (count 3; § 136.1, subd.
(c)(1)). On January 19, 2011, the
juvenile court ordered him detained on the petition.
On January 27, 2011, pursuant to a negotiated disposition, R.A. admitted count 1 as a felony and count 2 as a misdemeanor in
exchange for the dismissal of count 3.
On March 1, 2011, the juvenile court entered a disposition order
declaring him to be a ward of the juvenile court and committing him to the New
Horizons program for 365 days. On April
27, 2011, the court denied his request for a new disposition hearing.
DISCUSSION
The parties agree that the “general principle†of law applicable
here is that “whenever a judge accepts a plea bargain and retains sentencing
discretion under the agreement, an implied term of the bargain is that sentence
will be imposed by that judge. Because
of the range of dispositions available to a sentencing judge, the propensity in
sentencing demonstrated by a particular judge is an inherently significant
factor in the defendant’s decision to enter a guilty plea.†(People v. Arbuckle (1978) 22 Cal.3d 749,
756-757 (Arbuckle).) Later cases expressly recognize that the
general principle of law in Arbuckle applies
to juvenile cases. (See, e.g.,
(Mark L.).)
At the jurisdiction hearing,
the judge who accepted R.A.’s admission used a personal pronoun to emphasize to
the mother, “I need mom to contact
the Probation Department within two days so you can participate in the
disposition report.†(Italics
added.) The court calendared the
disposition hearing “for February 10th, at 8 o’clock in this department.†(Italics
added.) At the conclusion of the
jurisdiction hearing, the court used a personal pronoun to advise R.A., “
sir.†(Italics added.)
Two weeks later, after acknowledging having “received, read and
considered Probation’s report and recommendation,†the judge who accepted
R.A.’s admission granted R.A.’s attorney’s request for a continuance to get
“some character references†together. After both attorneys and both of R.A.’s parents
agreed to a specific date, the court stated, “We’ll set the matter over to March 1st. That would be at 8 o’clock
The sole disagreement between the parties is whether, on that
record, “an implied term of the bargain†was that the judge who accepted R.A.’s
admission was to preside over his disposition hearing. (Arbuckle,
supra, 22 Cal.3d at pp. 756-757.)
R.A. argues that that record shows that the judge who accepted his
admission “created a reasonable expectation that he would preside†over the
disposition hearing and, in addition, that R.A. “reasonably expected the judge
that personally reviewed the probation report to preside over the disposition
hearing.†The Attorney General argues
that R.A.’s failure to object at the disposition hearing suggests there is
“nothing in the record which would support the existence of any reasonable
expectation by [him] that his disposition hearing was to be held before [the
judge who accepted his admission].â€
In our view, the Attorney General’s argument depends too little on
two colloquies in the record – the first one when the judge accepted R.A.’s
admission and the second one when the same judge acknowledged having “received,
read and considered†the probation report before granting the continuance – and
too much on R.A.’s failure to object at the disposition hearing. In People
v. Horn (1989) 213 Cal.App.3d 701 (Horn),
we held that “the
failure to object does not waive a defendant’s right to enforce the implied [
p. 709.) Here, as in
insufficient to constitute a waiver of the right to enforce the implied [
In Arbuckle, our Supreme
Court expressly relied on “the judge’s repeated use of the personal pronoun when referring to sentencing
in the proceeding in which the plea bargain was accepted†to conclude that the plea bargain “was entered in expectation of and in reliance upon
sentence being imposed by the same judge.â€
(Arbuckle, supra, 22 Cal.3d at
p. 756.) Although “this factor was
initially discounted by a number of appellate courts,†our Supreme Court “later
reaffirmed its importance and discussed other similar factors.†(Horn,
supra, 213 Cal.App.3d at p. 706, citing Mark L., supra, 34 Cal.3d
at p. 177.) The record here is analogous
to those in Arbuckle and
admission.
title="">[3]
DISPOSITION
The judgment (disposition order) is reversed.
_____________________
Gomes,
Acting P.J.
WE CONCUR:
_____________________
Detjen, J.
_____________________
Franson, J.
Judge Kalemkarian accepted R.A.’s admission; at the disposition hearing, Judge
Suits entered the order at issue here.
challenge to the substantive offenses, we omit mention of the facts.
