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Name: In re Christian S.
Case #: H043104
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 03/09/2017

Arbuckle right does not extend to contested victim restitution hearing in juvenile proceedings. Minor admitted one count of conduct that if committed by an adult would be considered lewd and lascivious conduct on a child under age 14. The judge who handled the disposition hearing was away at judicial training on the day of the contested restitution hearing, which occurred six months after the disposition hearing. A different judge ordered minor to pay over $12,000 in victim restitution. Minor appealed, arguing that the court erred in denying his request to have the restitution hearing continued so that the judge who presided over the disposition hearing could also preside over the contested restitution hearing. Held: Affirmed. Under People v. Arbuckle (1978) 22 Cal.3d 749, if the original sentencing judge is not available for sentencing purposes after a plea bargain, the defendant must be given the option of sentencing before a different judge or withdrawing his plea. Although Arbuckle applies to dispositions by judges in juvenile proceedings, it does not apply to all juvenile proceedings. Drawing an analogy to probation revocation hearings, to which the Arbuckle right does not apply, the court concluded that the Arbuckle right does not apply to a contested victim restitution hearing. Given the lengthy delay that may occur between the disposition hearing and restitution hearing, it is not reasonable to expect that the original judge would also conduct the restitution hearing.

Even if Arbuckle applied to victim restitution hearings in juvenile court, any error was harmless. Under Welfare and Institution Code section 730.6, subdivision (h)(1), a juvenile court shall order full restitution unless it finds compelling and extraordinary reasons for not doing so, and states them on the record. While minor argued that the original judge was in a better position to review “compelling and extraordinary reasons” not to order full restitution in this case, minor failed to explain what these compelling and extraordinary reasons were and did not argue at the restitution hearing that compelling and extraordinary reasons existed. As a result, the claim was forfeited on appeal. Because the minor did not meet his burden of presenting evidence demonstrating that any of the restitution amounts claimed by the victims were excessive, and because the record reflects that minor received a fair hearing, any error under Arbuckle was harmless.

The full opinion is available on the court’s website here: