People v. Marquez

93 Cal.App.5th 704

311 Cal.Rptr.3d 260

The PEOPLE, Plaintiff and Respondent,

v.Maereichelle Villamor MARQUEZ, Defendant and Appellant.

D080411

Court of Appeal, Fourth District, Division 1, California.

Filed July 18, 2023

Justin Behravesh, Kings Beach, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Christine Levingston Bergman, A. Natasha Cortina, Collette C. Cavalier and Joy Utomi, Deputy Attorneys General, for Plaintiff and Respondent.

IRION, J.

MaeReichelle Villamor Marquez appeals the order directing her to pay restitution to the victim of her crimes. She claims the trial court breached the implied agreement under People v. Arbuckle (1978) 22 Cal.3d 749, 150 Cal.Rptr. 778, 587 P.2d 220 ( Arbuckle ) that the same judge who accepted her guilty plea and sentenced her to prison would also determine the amount of victim restitution to be awarded. We affirm.

BACKGROUND

Marquez and two others fraudulently used the identities of 60 prisoners to obtain unemployment benefits from the Employment Development Department (the Department). The People charged Marquez with 21 felonies, some arising out of her participation in the fraudulent scheme and others out of her possession of controlled substances. The People charged the two others with felonies arising out of their participation in the fraudulent scheme.

On September 30, 2021, Marquez pleaded guilty before the Honorable Daniel F. Link to making a false statement to obtain unemployment benefits (count 1; Unemp. Ins. Code, § 2101, subd. (a) ), possession for sale of a controlled substance (count 8; Health & Saf. Code, § 11351 ), and unauthorized use of the personal identifying information of another (count 15; Pen. Code, § 530.5, subd. (a) ). She admitted allegations attached to count 1 that she was out on bail in another case when she committed the offense ( Pen. Code, § 12022.1, subd. (b) ) and that the fraudulent scheme resulted in losses to the victim of more than $500,000 (id. , § 186.11, subd. (a)(1), (2)). Marquez and the People agreed to an indicated prison sentence range of four to seven years, and Judge Link granted the People's motion to dismiss all other charges. Marquez agreed "[r]estitution to [the Department] [would] be joint and several with co-defendants."

On November 1, 2021, Judge Link sentenced Marquez to prison for the lower term of 16 months on count 1 ( Unemp. Ins. Code, § 2122 ; Pen. Code, § 18, subd. (a) ), plus a consecutive lower term of two years for the enhancement for participation in a fraudulent scheme causing the victim to lose more than $500,000 ( Pen. Code, § 186.11, subd. (a)(2) ), plus a consecutive term of two years for the out-on-bail enhancement ( id. , § 12022.1, subd. (b) ), for a total term of five years four months. He imposed concurrent prison terms on counts 8 and 15. Judge Link imposed a minimum restitution fine of $300 and a corresponding parole revocation restitution fine. (Id. , §§ 1202.4, subd. (b)(1), 1202.45, subd. (a).) He set a hearing on victim restitution for January 13, 2022, and later continued it to March 15, 2022.

Marquez's codefendants also entered guilty pleas and were sentenced. The codefendants agreed the obligation to pay victim restitution would be joint and several.

On March 15, 2022, counsel for Marquez and counsel for her codefendants appeared for the restitution hearing before the Honorable Polly H. Shamoon. Marquez's counsel objected to Judge Shamoon deciding the amount of restitution on the ground Marquez had not signed an Arbuckle waiver when she pleaded guilty. Judge Shamoon overruled the objection and, based on an accounting of the unemployment benefits paid by the Department, ordered Marquez and her codefendants to pay the Department $1,176,235 in restitution.

Marquez appealed the victim restitution order. (See Pen. Code, § 1237, subd. (b) [postjudgment order affecting defendant's substantial rights is appealable]; People v. Ford (2015) 61 Cal.4th 282, 286, 187 Cal.Rptr.3d 919, 349 P.3d 98 ["The court's order of restitution was appealable, as it was made after judgment and affected defendant's substantial rights."].)

DISCUSSION

Marquez asks us to reverse the victim restitution order issued by Judge Shamoon and to remand the matter for a new hearing before Judge Link. Relying on Arbuckle, supra , 22 Cal.3d 749, 150 Cal.Rptr. 778, 587 P.2d 220, she contends that because awarding victim restitution is part of sentencing, Judge Shamoon's imposition of that order constituted a breach of the term implied in the bargain that Judge Link, who approved the bargain, would also sentence her. Marquez further contends she need not demonstrate prejudice to obtain a reversal, but even if she must, Judge Link's greater involvement in the case makes it reasonably probable he would have ordered a lower amount of restitution. As we shall explain, because Arbuckle does not require the same judge who approves a plea bargain also determine the amount of victim restitution, we reject Marquez's contention the bargain was breached when Judge Shamoon set the restitution amount. We therefore need not, and do not, address her contention regarding prejudice.

We begin by summarizing Arbuckle, supra , 22 Cal.3d 749, 150 Cal.Rptr. 778, 587 P.2d 220. In that case, the defendant pleaded guilty to one charge in exchange for the People's dismissal of another two, and the parties agreed the sentencing judge would follow the recommendation of the Department of Corrections on the sentence to be imposed. ( Id. at p. 752, 150 Cal.Rptr. 778, 587 P.2d 220.) Over the defendant's objection, a judge different from the one who accepted the plea bargain sentenced the defendant to prison. ( Id. at p. 753, 150 Cal.Rptr. 778, 587 P.2d 220.) On appeal, our Supreme Court stated "the plea bargain herein was entered in expectation of and in reliance upon sentence being imposed by the same judge." ( Id. at p. 756, 150 Cal.Rptr. 778, 587 P.2d 220.) The court then held: "As a general principle, moreover, 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. [Citations.] [¶] Because the defendant has been denied that aspect of his plea bargain, the sentence imposed by another judge cannot be allowed to stand." ( Id. at pp. 756-757, 150 Cal.Rptr. 778, 587 P.2d 220 (lead opn. of Mosk, J., joined by Tobriner & Manuel, JJ.), italics added; see id. at pp. 757-758, 150 Cal.Rptr. 778, 587 P.2d 220 (conc. opn. of Newman, J., joined by Bird, C.J.) [agreeing with "the holding that defendant was denied part of his plea bargain"]; see also K.R. v. Superior Court (2017) 3 Cal.5th 295, 312, 219 Cal.Rptr.3d 451, 396 P.3d 581 ( K.R. ) [approving holding of Arbuckle lead opn.].)

The italicized portions of the quotation from Arbuckle, supra , 22 Cal.3d 749, 150 Cal.Rptr. 778, 587 P.2d 220, in the preceding paragraph show the Supreme Court was there concerned with preserving a defendant's "reasonable expectation" that the same judge who approves a plea bargain will also get to exercise discretion in choosing from the multiple dispositions available at sentencing (e.g., granting probation or imposing a prison term). ( Id. at p. 757, fn. 5, 150 Cal.Rptr. 778, 587 P.2d 220 ; see K.R., supra , 3 Cal.5th at p. 306, fns. 3 & 4, 219 Cal.Rptr.3d 451, 396 P.3d 581 [citing with approval secondary sources stating Arbuckle applies when judge who accepts plea bargain retains sentencing discretion]; People v. Watson (1982) 129 Cal.App.3d 5, 7, 180 Cal.Rptr. 759 ( Watson ) [under Arbuckle , "when a judge accepts a plea bargain involving sentencing discretion, an implied term is that he will be the judge to impose sentence"].) That expectation was met when Judge Link exercised his discretion at the November 1, 2021 sentencing hearing to impose lower prison terms for the offense and one of the attached enhancements on count 1, concurrent rather than consecutive terms on the other counts, and minimum fines. "Once that sentence was imposed, Arbuckle no longer applied." ( People v. Beaudrie (1983) 147 Cal.App.3d 686, 694, 195 Cal.Rptr. 289 [ Arbuckle applied to original sentencing at which defendant was granted probation, not to later sentencing after probation was revoked].)

In awarding victim restitution, by contrast, a judge has no similar discretion to select from a "range of dispositions available." ( Arbuckle, supra , 22 Cal.3d at p. 757, 150 Cal.Rptr. 778, 587 P.2d 220.) "Restitution shall be ordered from the convicted wrongdoer in every case, regardless of the sentence or disposition imposed, in which a crime victim suffers a loss." ( Cal. Const., art. I, § 28, subd. (b)(13)(B), italics added.) The statute implementing the constitutional mandate provides: "[I]n every case in which a victim has suffered economic loss as a result of the defendant's conduct, the court shall require that the defendant make restitution to the victim or victims in an amount established by court order .... The court shall order full restitution." ( Pen. Code, § 1202.4, subd. (f), italics added.) Other portions of the statute implicitly authorize the amount of restitution to be decided by a judge other than the one who accepted the plea bargain and imposed sentence. (See ibid. ["If the amount of loss cannot be ascertained at the time of sentencing , the restitution order shall include a provision that the amount shall be determined at the direction of the court." (Italics added.)]; id. , subd. (f)(1) ["The defendant has the right to a hearing before a judge to dispute the determination of the amount of restitution." (Italics...