IN RE: JAMIE L. and Jennifer L. (1989)

Thirteen-year-old Jamie L. and her twelve-year-old sister Jennifer appeal juvenile court dispositions declaring them wards of the court (Welf. & Inst.Code, § 602), removing them from their parents' house and placing them in a 24–hour school.   They do not contend the evidence fails to support the order.   They only claim their right to have disposition made by Referee Burns to whom they admitted stealing their parents' vehicle (Veh. Code, § 10851) was denied when a different judicial officer conducted that proceeding.

Faced with a record which shows the minors were not told by the court they were entitled by the mandate of People v. Arbuckle (1978) 22 Cal.3d 749, 756–757, 150 Cal.Rptr. 778, 587 P.2d 220, to have their dispositions resolved by the same judicial officer who received their admissions and the lack of either an express waiver of this right or articulated objection to being “sentenced” by a different officer, we consider the apparently conflicting holdings on similar facts in People v. Rosaia (1984) 157 Cal.App.3d 832, 840, 203 Cal.Rptr. 856, and People v. Serrato (1988) 201 Cal.App.3d 761, 764, 247 Cal.Rptr. 322.   Although we recognize the practical reasoning expressed in both decisions, we base our affirmances on considerations stated in In re Thomas S. (1981) 124 Cal.App.3d 934, 937, 177 Cal.Rptr. 742.

I

During the spring of 1988, Jamie and Jennifer repeatedly ran away from their parents' and foster parents' homes, taking their foster parents' van without permission on one occasion and their mother's car on another.   They admitted committing auto theft before Referee Burns, after he emphasized he would probably place the girls on probation in their own home even should the probation report recommend confinement.   However, Judge Kapiloff, not Referee Burns, presided at the dispositional hearing without objection.   Jamie and Jennifer do not contend the disposition was inappropriate, but claim they were denied the right to have the case disposed of by the same judge who accepted the admission.   Neither does either affirmatively state she did not know of her Arbuckle rights when failing to object to Judge Kapiloff, contending only we cannot infer a knowing waiver from her silence.

In People v. Arbuckle, supra, 22 Cal.3d at pages 756–757, 150 Cal.Rptr. 778, 587 P.2d 220, the Supreme Court declared “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.”   Arbuckle is applicable to juvenile proceedings.  (In re Mark L. (1983) 34 Cal.3d 171, 177, 193 Cal.Rptr. 165, 666 P.2d 22;  In re Thomas S., supra, 124 Cal.App.3d at p. 937, 177 Cal.Rptr. 742.)

Normally, a minor waives his or her Arbuckle right by failing to contemporaneously object to the judge handling disposition.  (In re James H. (1985) 165 Cal.App.3d 911, 918, 212 Cal.Rptr. 61.)   However, People v. Rosaia, supra, 157 Cal.App.3d at page 840, 203 Cal.Rptr. 856, expressed an exception to this rule:  “fairness dictates that before accepting silence or acquiescence in sentencing by a different judge as a waiver, the court must satisfy itself from the record that defendant knew he had the right to be sentenced by the same judge who took his plea.”

The exception expressed in Rosaia applies only when defendant may reasonably expect the judge accepting the plea will determine the sentence.   (See In re James H., supra, 165 Cal.App.3d at pp. 919–920, 165 Cal.Rptr. 911, 212 Cal.Rptr. 61.)   Although the People contend otherwise, the referee's statements before receiving the admissions establish that such an expectation was reasonable in this case.   Moreover, the tenor of the referee's remarks concerning possible disposition were more than ordinarily encouraging.   In face of the parents' opposition to prosecute the charged offenses (of which they were the victims), the referee stated:

“THE COURT:  What do you think I'm going to do up here?

“․

“THE COURT:  These girls are here on their first offense.   I have not yet sent any kid for grand theft auto to a locked facility on the first offense even when they have come in here and called me names.

“I am not suggesting, girls, that you should tempt me, but normally what we seek to do is to rehabilitate kids, and we proceed on that theory 100 percent.   Generally—I mean I can tell you flat out what the recommendation of the probation department will be.   That will be to send these kids home on probation with terms and conditions of probation.

“As to Jamie, we're talking about restitution for the car damage and so on from the two accidents and any damage to the car that she stole.

“The terms and conditions of probation will probably involve some kind of therapy and counseling.

“If there is drug abuse involved in their background or alcohol abuse, we'll address that problem as well, and the probation department will supervise it.

“That's essentially the bottom line, and I am not giving away any trade secrets.   That's the help you want.   You got it.   But if you're worried about me locking these girls away for awhile, six or eight months or a year—first of all, I don't even think the D.A. is going to recommend that, even though they're hard-nosed.

“See, I'm an old patsy, but the probation is not going to recommend that.   I've been doing this since 1975.   I probably wouldn't follow the recommendation to lock them up anyway.   Kids this age belong at home.   They also need to know where the fences are, and they also need to know what happens when you screw up.   And you've been in custody since the 19th;  right?

“MINOR JAMIE [L.]:  (Nods head.)

“MINOR JENNIFER [L.]:  (Nods head.)

“THE COURT:  Today is now the 31st.   You've had your case at juvenile hall.   Do you like it?

“MINOR JAMIE [L.]:  (Shakes head.)

“MINOR JENNIFER [L.]:  (Shakes head.)

“THE COURT:  Do you want to do it again?

“MINOR JAMIE [L.]:  No.

“MINOR JENNIFER [L.]:  (Shakes head.)

“THE COURT OFFICER:  Your Honor, I happen to have some knowledge of the case.   I don't want you to give the parents false impressions or false hopes or false information.   I know that the probation officer in this case has asked for psychological evaluations on the girls and is contemplating a possible out-of-home placement.   Whether or not that will be the recommendation, I have absolutely no knowledge, but I know that it is a thought.

“THE COURT:  I don't think I misled them.   I said that I don't anticipate they'll make a recommendation like that, but even if they did, I can't, at this moment, on what I know, conceive of my following the recommendation.   There's a very great distinction that we make between recommendations and orders.   Okay?  That's why they buy me this thing.   (Pointing to court's robe.)   Okay?  I make the orders.   I don't make recommendations.

“All right.   With that, Miss Hillenbrand?

“MS. HILLENBRAND:  With that, on behalf of the minor Jamie, she'll be admitting to count two, your Honor, as charged.

“THE COURT:  Okay.

“MS. HILLENBRAND:  That will include Harvey waivers.

“THE COURT:  With a Harvey waiver?

“MS. WINDSOR:  Yes, your Honor.

“THE COURT:  And, Jennifer, you want to admit to count one that's the taking of Bennie [L.]'s car—right?—without permission?

“MINOR JENNIFER [L.]:  (Nods head.)”

Thereafter, the referee made it clear he was not engaging in any plea bargaining and was making no promises as to sentence.   However, when the minors later indicated some confusion the court stated he was merely reciting a litany of maximum dispositions which could occur but “[w]hat I said to your parents in open court is more than likely what will happen.”

The referee repeatedly implied he was the person who would be making the disposition.   When the father stated he didn't want the court to prosecute because all he wanted was to get the children into counseling and have the court order that, the court stated, “I'm probably going to do exactly what you suggested.”  (Emphasis added.)   Again, he stated “if you're worried about me locking these girls away for awhile, ․ I probably wouldn't follow the recommendation to lock them up anyway․  I can't ․ conceive of my following the recommendation ․ I make the orders․  I'm going to treat you like individuals.”  (Emphasis added.)   Later, in discussing possible restitution in terms of a Harvey waiver, he explained “the D.A. wants to tell me about those other cases, so if there is a loss to any of those people in the dismissed charges, we can order that you take care of that.”   In taking Jamie's admission she understood the meaning of a Harvey waiver stating “[d]o you agree that's what I can do?   I can look at all these other cases ․ I am not going to make up some figure.   Is that what you want me to do?”  (Emphasis added.)   Finally, when placing the children on home supervision pending dispositional hearing, the court stated they faced arrest if they violated any rules during the interim and then “you'll have to come back and see me.”   (Emphasis added.)

The above reasonably suggests the children were to be “sentenced” by Referee Burns and only were persuaded to admit the charges after being assured there was a substantial likelihood he would make a home disposition even should the probation department recommended otherwise.

II

Under the holding of People v. Rosaia, supra, the failure to advise the minors on the record, or to take their express waivers, would require a reversal.   That decision was supported in part by the statement in In re Thomas S., supra, that mere silence when faced with sentencing by a judge other than the one to whom a plea bargain was submitted is not tantamount to waiver absent a showing the defendant was aware of the Arbuckle right.

However, in People v. Serrato, supra, 201 Cal.App.3d at page 764, 247 Cal.Rptr. 322, the court refused to follow Rosaia's rule, finding its “approach contradicts the logical underpinning of Arbuckle.”   The court concluded:

“In Arbuckle, the court stated, ‘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.’  (22 Cal.3d at p. 757, 150 Cal.Rptr. 778, 587 P.2d 220.)   Thus, when a defendant enters a bargain, ‘in expectation of and reliance upon sentence being imposed by the same judge’ (id. at p. 756, 150 Cal.Rptr. 778, 587 P.2d 220), the defendant must be aware he is entitled to this part of the bargain as a matter of right once he enters his plea of guilty.   Knowledge by the defendant of his Arbuckle right as a part of the plea bargain is implicit in the reasoning of Arbuckle.   Thus, we conclude, when faced with a different sentencing judge, a defendant must object at that time or waive his Arbuckle rights.

“To the extent Rosaia concludes differently, we reject its reasoning and will not follow it.   Although defendant had the right to be sentenced by the same judge who took his plea, we hold he waived this right by failing to make an objection at trial.  (People v. Serrato, supra, 201 Cal.App.3d at pp. 764–765, 247 Cal.Rptr. 322, fn. omitted.)

Although the issue seems irreconcilably polarized by the holdings of Rosaia and Serrato, we believe neither is dispositive in resolving this case.

III

The Supreme Court adopted the rule in People v. Arbuckle, supra, because it recognized the significant range of dispositions available to a sentencing judge and believed 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, supra, 22 Cal.3d at pp. 756–757, 150 Cal.Rptr. 778, 587 P.2d 220.)

In Serrato, the court held a failure to object by one being sentenced by a judge other than the one before whom the plea was entered always constitutes a waiver of Arbuckle rights.   It reasons the basis for the Arbuckle rule is that a defendant should be entitled to have sentence imposed by the same judge who accepted the bargain in the absence of affirmative evidence showing the defendant could not reasonably expect to be sentenced by the judge who accepted the plea.  (See In re James H., supra, 165 Cal.App.3d at pp. 919–920, 212 Cal.Rptr. 61.)

Serrato looks at the reasoning of Arbuckle and concludes that failure to treat silence at the time of sentencing as a waiver of the Arbuckle rights is logically inconsistent with the rationale underlying that decision.   Although pragmatically sound, we believe the premise to Serrato's conclusion is flawed so its rule cannot be universally applied.   There is no reason a defendant cannot expect, and indeed rely, upon encouraging words by the court that sentencing will be done by the benign-appearing judge who has demonstrated a propensity for favorable sentencing of this defendant.  (Arbuckle, supra, 22 Cal.3d at p. 757, 150 Cal.Rptr. 778, 587 P.2d 220.)   That one may reasonably expect and rely does not establish that one is aware of a legal right to enforce that expectation.   That should be especially true in our case where the juveniles are first offenders 12 and 13 years of age, and their admissions were elicited only after a lengthy discourse or possible disposition between themselves, their parents and the court.

We agree that one, who knows of an enforceable legal right to be sentenced by the same judicial officer who takes the plea, should be deemed to have waived objection when standing silent under circumstances clearly showing the expectation is not to be realized.   We believe, however, there is a significant qualitative difference between mere expectations, even reasonable ones, and knowing one has an enforceable legal right.   It is only in this latter instance that a valid waiver can be made.  (In re Thomas S., supra, 124 Cal.App.3d at p. 939, 177 Cal.Rptr. 742.)

IV

More than seven years ago, in In re Thomas S., this court stated its belief that a juvenile court advisement to minors of their Arbuckle rights was a minimally burdensome, administrative requirement which would insure that a minor's silence when facing a different referee at the time of disposition may be interpreted reliably as a knowing Arbuckle waiver.   However, we acknowledged our perception could be inaccurate and refused to institute such a judicial rule ourselves, preferring to leave it to the Judicial Council, the Supreme Court or to local presiding judges whose expertise and understanding of the need for uniformity of judicial rules better equips them for that task.

While we do not know what steps, if any, have been taken in other local courts, we are aware that many, if not most, sentencing and juvenile dispositional records we have reviewed since the filing of In re Thomas S. and People v. Rosaia, show advisements of Arbuckle rights and/or express waivers where different judges or referees are involved.¹  However, as exemplified by this case and numerous appellate opinions published subsequent to Thomas S. which wrestle with various aspects of “silent waivers,” the suggested practice has not been universally followed.

In spite of the concerns with process expressed in Thomas S., we held that because an Arbuckle right is one which may be inferred from the record and there were no facts to contradict such an inference, our proper cause was to affirm without prejudice to later habeas corpus proceedings should the lawyer's failure to exercise the client's Arbuckle interests raise the issue of competent representation.  (People v. Pope (1979) 23 Cal.3d 412, 152 Cal.Rptr. 732, 590 P.2d 859;  In re Thomas S., supra, 124 Cal.App.3d at p. 937, 177 Cal.Rptr. 742.)   We adhere to the belief that is the preferred resolution here, although the scholarly approach of the court in People v. Rosaia has considerable practical merit in general application.   In part, we base our choice on a perception that the Arbuckle right has been broadly emphasized in judicial literature for the past decade and has been a factor considered routinely in almost every sentencing-after-plea record reviewed by this court during that time.   In the present case, two experienced attorneys appointed by the juvenile court represented the minors.   We believe it unlikely each would be unaware of the client's Arbuckle rights.   Because the attorney has no obligation to express an Arbuckle waiver on the record but may waive it on behalf of the client, the lack of such recorded expression does not infer that a knowing waiver did not occur.   Nor does this record compel a finding that a decision to forego disposition by Referee Burns would be an unacceptable tactic in light of the substantial familial problems contraindicating an in-home placement grossly described in the final probation and psychological evaluations.   Moreover, there is no reason to suspect from the present record the lawyers here failed to evaluate the consequences of having disposition determined by Judge Kapiloff after receiving these reports.

Orders affirmed.

FOOTNOTES

1.   The San Diego County Superior Court has not avoided the problem.   The printed juvenile court clerk's minute orders filed for each minor at both the jurisdictional and dispositional hearings contain a box to be checked when an Arbuckle waiver is made.   None are checked, a fact consistent with the lack of any express statement of waiver in this record.

WORK, Acting Presiding Justice.

FROEHLICH and NARES, JJ., concur.