Filed 2/19/19




                            CERTIFIED FOR PUBLICATION


                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                  F074946
        Plaintiff and Respondent,
                                                        (Super. Ct. No. 16CR-04331)
                  v.
                                                                OPINION
VANESSA BUENO,

        Defendant and Appellant.



        APPEAL from a judgment of the Superior Court of Merced County. David W.
Moranda and Frank Dougherty, Judges.†
        Jennifer Mouzis, 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.
                                         -ooOoo-



        †
        Judge Moranda accepted appellant’s plea; Judge Dougherty, a retired Judge of
the Merced Superior Court assigned by the Chief Justice pursuant to article VI, § 6 of the
California Constitution, pronounced her sentence.
                                      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 (Arbuckle), and therefore reverse and remand.


       1   Unless otherwise stated, all further statutory references are to the Penal Code.


                                               2.
                              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
(K.R.); Doe v. Harris (2013) 57 Cal.4th 64, 69.) “When enforcing such an agreement,


      2   In light of the fact Bueno placed an “X” on provisions that were clearly not
applicable to her convictions along with specifically enumerated others, respondent
concedes that the “X”, as opposed to Bueno’s initials, indicated that she was not agreeing
to the terms of those provisions of the plea form. Respondent does not argue that the “X”
in the Arbuckle waiver box constituted a valid waiver of rights as to that provision.
Based on our independent review, it is clear that Bueno did not intend to agree to the
terms of the plea form which she did not initial.


                                            3.
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.) 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 (K.R.), citing Arbuckle, supra, 22 Cal.3d at
pp. 756–757.) “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.)
       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.) 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.)
       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.) 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.) In reversing, the California Supreme Court held that the

                                              4.
“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.)
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.)
       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.) “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.)


       3The California Supreme Court specifically disapproved of the following cases:
People v. McIntosh (2009) 177 Cal.App.4th 534, People v. Hsu (2008) 168 Cal.App.4th
397, People v. Adams (1990) 224 Cal.App.3d 1540 (Adams), People v. Horn (1989)
213 Cal.App.3d 701 (Horn), People v. Serrato (1988) 201 Cal.App.3d 761 (Serrato),

                                             5.
       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.
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,
Serrato, supra, 201 Cal.App.3d 761, Ruhl, supra, 168 Cal.App.3d 311, and Horn, supra,
213 Cal.App.3d 701. 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.” However, respondent contends that the Supreme
Court in K.R. did not have occasion to decide whether the forfeiture rule applied to
Arbuckle waivers. Instead, respondent suggests that we follow the reasoning of People v.
West (1980) 107 Cal.App.3d 987, 991-992 (West), and require defendants to
affirmatively object and invoke their right to the same judge at sentencing or otherwise
forfeit the claim. As posited in West, respondent argues that such forfeiture rule would
prevent any gamesmanship on behalf of defendants who may only raise an Arbuckle
claim if and when they find their sentencing unfavorable.4 West was decided in 1980,


People v. Ruhl (1985) 168 Cal.App.3d 311 (Ruhl), and In re James H. (1985)
165 Cal.App.3d 911 (James H.).
       4“[E]ven if a defendant could demand the same judge, he must do so; he does not
have the option of taking his chances before the different judge and, if the result is

                                            6.
and predates the appellate court cases listed as disapproved by the Supreme Court in K.R.
Further, West was cited by and relied upon in four of the cases listed as disapproved by
K.R. (See Adams, supra, 224 Cal.App.3d at p. 1544; Serrato, supra, 201 Cal.App.3d at
p. 764; Ruhl, supra, 168 Cal.App.3d at p. 318; James H., supra, 165 Cal.App.3d at
p. 918.)
       Respondent contends K.R. overruled the appellate opinions to the extent they
required a showing that the defendant expected to be sentenced by the same judge to be
entitled to Arbuckle rights. But, on the other hand, respondent contends K.R. did not
address nor overrule the same cases with respect to the applicability of the rule of
forfeiture of Arbuckle rights. We disagree that K.R. can be interpreted so narrowly. First,
K.R. did not specifically disapprove the listed cases based on a single proposition.
Instead, the Supreme Court placed no specific limitation on why the cases were
disapproved, and instead stated they were disapproved “[t]o the extent [they] are
inconsistent with this opinion.” (K.R., supra, 3 Cal.5th at p. 313, fn. 10.)
       Despite respondent’s assertions that K.R. did not address the issues of forfeiture or
waiver, the argument was raised by the People in K.R. The People argued defendants
should be required to “ ‘specifically negotiate an Arbuckle term and ensure it is placed on
the record.’ ” (K.R., supra, 3 Cal.5th at p. 312.) In response, the Supreme Court held
that “[t]o 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.” (Ibid., emphasis
added.) Such a requirement would shift the burden from the prosecution to the defendant
and would make Arbuckle applicable only if affirmatively invoked, rather than its being


unfavorable, then demand the original judge. Appellant did not move for reassignment to
Judge McGuire or object to Judge Broderick. He may, for all the record shows to the
contrary, have calculated that his chances would be better with Judge Broderick. He
made his election and is bound by it.” (West, supra, 107 Cal.App.3d at p. 992.)


                                             7.
an implied term of the plea unless waived. While K.R. does not specify when the right
would need to be invoked, i.e., if it would need to be invoked during the plea, at
sentencing, or both, that is a distinction without a difference. Based on the Supreme
Court’s interpretation of the Arbuckle waiver rule, the burden is never on the defendant to
ensure that his or her rights under Arbuckle are invoked; rather, it is the prosecution’s
burden to show that the rights under Arbuckle were knowingly and intelligently
abandoned.
       Further, the dissenting justices in K.R. understood the majority’s interpretation
would not allow for a defendant’s Arbuckle rights to be forfeited if not invoked. The
dissent acknowledged that the majority’s holding would create procedural challenges and
provide an opportunity for gamesmanship. “Now knowing that a failure to address the
issue of who will be the sentencing judge will still preserve a right to the same judge,
regardless of the parties’ actual expectations [], a defendant entering a negotiated plea
will have little incentive to bring to the court’s attention a failure to expressly address the
issue if it slips the prosecution’s attention.” (K.R., supra, 3 Cal.5th at p. 317 (dis. opn. of
Cantil-Sakauye, C.J.) Based on this statement, it was clear to the dissenting justices in
K.R. that Arbuckle rights could not be forfeited by a defendant failing to object.
Accordingly, the Court was clearly aware of the potential repercussions that would arise
from its decision.5

       5 The dissent noted the following concerns: “[A] defendant may thereby try to
delay his or her sentencing or retain a potential right to withdraw his or her plea. [¶] And
given that a same-judge term will hereafter always be implied in negotiated pleas,
without reference to the record, and that some defendants may strategically decline to
enter an Arbuckle waiver, the routine rotation of assignments for judges in multi-judge
courts, perhaps sitting in different locations, may be hampered. The use of visiting and
temporarily assigned judges, vital in many courts with judicial vacancies or case
overloads, will be more difficult. Other practical problems for the administration of our
system of plea bargaining may be posed. Although I accept that such difficulties must be
accommodated when a same-judge term is part of the parties’ actual plea bargain, the
burden on our courts under the majority’s opinion today is unjustified by any actual

                                              8.
       Additionally, we are not persuaded that the reasoning of K.R. with regard to
forfeiture is dictum that should be disregarded. We acknowledge that in K.R., the issue
of forfeiture of the juvenile’s Arbuckle rights did not arise because the minor did
affirmatively object based on Arbuckle, but the trial court held that he had no reasonable
expectation that the same judge who took his plea would impose his disposition.
However, the Supreme Court’s discussion of whether a defendant’s rights under Arbuckle
are an implied term of every plea agreement that must be waived rather than a right that
will forfeited if not affirmatively invoked is material to its holding. To hold that
Arbuckle rights are forfeited if not invoked by the defendant would necessarily
undermine the main holding of K.R., in which it reaffirmed that the rights under Arbuckle
are implied as part of every plea bargain, regardless of the defendant’s actions or
intentions.
       Even if the reasoning of K.R. is dictum, we find it persuasive. Courts are to be
guided by “ ‘dictum only to the extent it remains analytically persuasive.’ ” (People v.
Mendoza (2000) 23 Cal.4th 896, 915.) Further, the appellate court decisions that find that
Arbuckle rights are forfeited if the defendant does not raise an objection focus solely on
the hardships that such a rule would impose on the courts. They ignore the fact that a
forfeiture rule would act to relinquish a defendant’s rights under Arbuckle regardless of
whether it was a knowing and voluntary forfeiture on the part of the defendant. Based on
the Supreme Court’s recent reaffirmance of the implied right under Arbuckle to be
sentenced by the judge who took the plea, we choose not to follow the forfeiture doctrine
set forth in West (West, supra, 107 Cal.App.3d at pp. 991-992), or any other appellate
decision, regardless of whether the decisions were specifically disapproved by the
Supreme Court.


expectation of the defendant, prosecutor, or trial judge.” (K.R., supra, 3 Cal.5th at
pp. 317-318 (dis. opn. of Cantil-Sakauye, C.J.)


                                              9.
       The case should be remanded for resentencing by Judge Moranda, the judge who
accepted Bueno’s plea. As our Supreme Court recently reiterated, “we adhere 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 (or, in juvenile cases, disposition), they should seek to obtain a waiver.”
(K.R., supra, 3 Cal.5th at p. 312.) If Judge Moranda is not available for sentencing
purposes, then Bueno “must be given the option of proceeding before the different judge
available or of withdrawing [her] plea.” (Arbuckle, supra, 22 Cal.3d at p. 757, fn. 5.)
       C.     Appellant’s Remaining Claims
       Bueno’s remaining claims challenge terms of her sentence. As we are remanding
the matter for resentencing, we need not address whether the terms of this sentence are
valid. However, when imposing a new sentence, the trial court should be cognizant that
respondent concedes that counts 2 and 3 for violations of Vehicle Code Section 23153 are
lesser included offenses of vehicular manslaughter and should be stricken rather than
stayed. (See People v. Binkerd (2007) 155 Cal.App.4th 1143, 1149.) Additionally,
respondent concedes that the fees and assessments were not properly calculated.6




       6  Finally, we note that it is uncertain whether the great bodily injury enhancement
to the child endangerment charge should be stricken (Bueno’s third claim). To the extent
that the issue remains pertinent at resentencing, the parties should provide the trial court
the initial opportunity to address the issue.


                                            10.
                                    DISPOSITION
      The judgment is reversed. Bueno must be resentenced by Judge Moranda, the
judge who accepted her plea, or, if Judge Moranda is not available, then Bueno must be
given the option of proceeding before a different judge or withdrawing her plea. We
express no opinion as to how Judge Moranda should exercise his sentencing discretion.




                                                              _____________________
                                                                       SNAUFFER, J.
WE CONCUR:


 _____________________
POOCHIGIAN, Acting P.J.


 _____________________
FRANSON, J.




                                          11.
