People v. Marquez ( 2023 )

Filed 7/18/23
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D080411
Plaintiff and Respondent,
v. (Super. Ct. No. SCD289473)
MAEREICHELLE VILLAMOR
MARQUEZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Polly H. Shamoon, Judge. Affirmed.
Justin Behravesh, 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.
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(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,
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§ 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 [“The court’s order of
restitution was appealable, as it was made after judgment and affected
defendant’s substantial rights.”].)
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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, 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. 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.) 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.) 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.) 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
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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
(lead opn. of Mosk, J., joined by Tobriner & Manuel, JJ.), italics added; see id.
at pp. 757-758 (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 (K.R.) [approving holding of
Arbuckle lead opn.].)
The italicized portions of the quotation from Arbuckle, supra, 22 Cal.3d
749, 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; see K.R., supra,3 Cal.5th at p. 306, fns. 3 & 4 [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 (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 [Arbuckle applied to original sentencing at
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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.) “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 added.)]; id., subd. (f)(3) [“To the extent possible, the
restitution order shall be prepared by the sentencing court.” (Italics
added.)].) Although a victim restitution award is ultimately included in a
defendant’s sentence, determination of the amount of restitution is outside
the scope of discretionary sentencing choices which are “an inherently
significant factor in the defendant’s decision to enter a guilty plea.”
(Arbuckle, at p. 757.) A defendant who pleads guilty therefore has no
reasonable expectation the same judge who accepted the plea will also decide
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the amount of restitution to be awarded to the victim, and no such condition
is implied as a term of the bargain. (See id. at p. 757, fn. 5; K.R., supra,3 Cal.5th at p. 304 [courts apply general contract principles when
interpreting or enforcing plea bargains]; Nein v. HostPro, Inc. (2009)
174 Cal.App.4th 833, 852 [term may be implied only when necessary to
protect contracting parties’ intentions and reasonable expectations]; Ben-Zvi
v. Edmar Co. (1995) 40 Cal.App.4th 468, 473 [same].)
We find support for our conclusion in In re Cristian S. (2017)
9 Cal.App.5th 510 (Cristian S.), which rejected a minor’s claim that because
victim restitution is part of disposition, the determination of the amount of
restitution by a judge other than the one who handled the plea and
disposition hearings violated Arbuckle. The Court of Appeal noted a statute
requires payment of restitution for a victim’s losses (Welf. & Inst. Code,
§ 730.6, subds. (a)(2)(B), (h)(1)); provides for determination of the amount of
restitution at any time during the commitment or probation period, if the
amount cannot be determined at the time of disposition (id., subd. (h)(1));
authorizes the court to direct the probation officer to determine the amount,
which the minor may challenge in court (id., subd. (h)(1), (2)); and makes any
portion of the restitution order unpaid during the period of commitment or
probation enforceable as a civil judgment afterwards (id., subds. (l), (r); Pen.
Code, § 1214, subd. (b)). (Cristian S., at p. 524.) The Court of Appeal found
these features of the statutory scheme and the six-month delay between the
disposition hearing and the victim restitution hearing in that case made any
expectation by the minor that the same judge would decide both matters
“unreasonable,” and “conclude[d] that the right afforded by Arbuckle does not
apply to contested victim restitution hearings in juvenile court.” (Ibid.)
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Like the statutory scheme at issue in Cristian S., supra, 9 Cal.App.5th
510, the scheme at issue here makes an award of victim restitution
mandatory; permits determination of the amount of restitution after
imposition of sentence, if the amount cannot be determined earlier; allows a
court in some cases to delegate determination of the amount to a probation
officer; gives the defendant a right to a hearing before a judge to contest the
amount; and provides for enforcement of the restitution order as a civil
judgment. (Pen. Code, §§ 1202.4, subds. (f), (i), 1202.46, 1214, subd. (b);
People v. Zuniga (2022) 79 Cal.App.5th 870, 875 (Zuniga).) Also, similar to
the delay between the disposition and contested restitution hearings that
occurred in Cristian S., in this case there was a four-and-a-half month delay
between the sentencing hearing and the victim restitution hearing. Under
Cristian S., then, any expectation by Marquez that Judge Link would preside
at both hearings was unreasonable, and she had no implied contractual right
under Arbuckle to have him determine the amount of restitution.
Marquez attempts to distinguish Cristian S., supra, 9 Cal.App.5th 510,
by pointing out a difference between the language of the victim restitution
statute that applies to minors and the language of the statute that applies to
adults. The statute applicable to minors states: “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 at
any time during the term of the commitment or probation.” (Welf. & Inst.
Code, § 730.6, subd. (h)(1), italics added.) The statute applicable to adults
contains the same sentence except for the italicized words. (Pen. Code,
§ 1202.4, subd. (f).) Marquez asserts this is “a crucial distinction” that should
limit Cristian S. to juvenile court cases, but she does not explain why. We
reject the assertion.
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The Cristian S. court quoted the statutory provision we quoted in the
preceding paragraph, but the italicized words were not “crucial” to its
analysis or conclusion. Rather, the court cited several statutory provisions
that made clear the amount of restitution might not be determined until
months or years after a plea bargain and disposition and might be
determined by a probation officer, and from them concluded a hearing to
determine the amount of restitution is unlike the initial sentencing hearing
at issue in Arbuckle and need not be held by the same judge who approved
the plea bargain. (Cristian S., supra, 9 Cal.App.5th at pp. 523-524.) As
discussed above, the statutes governing victim restitution in criminal
proceedings against adults also make clear determination of the restitution
amount might not occur until well after plea bargain and sentencing and in
some cases might be made by a probation officer. In particular, one provision
states: “[W]hen the economic losses of a victim cannot be ascertained at the
time of sentencing . . . , the court shall retain jurisdiction over a person
subject to a restitution order for purposes of imposing or modifying
restitution until such time as the losses may be determined.” (Pen. Code,
§ 1202.46.) It is thus possible the restitution amount could be determined
months or years after a plea bargain and sentencing, or even after the
defendant served the sentence or completed probation. (See, e.g., Zuniga,
supra, 79 Cal.App.5th 870 [affirming victim restitution order made more
than three years after defendant pleaded guilty and nearly one year after
probation terminated].) Such “passage of time ‘creates a lower expectation
that—unlike at the time of the plea bargain—the original sentencing judge
will still be available, let alone hearing criminal matters[.]’ ” (Cristian S., at
pp. 523-524; see Watson, supra, 129 Cal.App.3d at p. 8 [rejecting as “absurd”
defendant’s claim Arbuckle required same judge who accepted guilty plea and
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granted probation also impose sentence upon revocation of probation nearly
three years later].) Hence, the same factors that made Arbuckle inapplicable
to the minor’s victim restitution hearing in Cristian S. make it inapplicable to
Marquez’s hearing.
DISPOSITION
The victim restitution order is affirmed.
IRION, J.
WE CONCUR:
McCONNELL, P. J.
O’ROURKE, J.
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