Even though defendant did not object at the sentencing hearing, she did not waive her right to have her sentence imposed by the judge that accepted her plea. Bueno pleaded guilty to multiple charges related to vehicular manslaughter while she was intoxicated. It was an open plea with no agreement from the prosecution regarding the length of her potential sentence. Bueno was sentenced to state prison by a different judge than the one who accepted her guilty plea. She did not waive her right to have her sentence imposed by the judge that accepted her plea, but she also did not object at the sentencing hearing. On appeal, Bueno presented multiple claims of sentencing errors, one of which was the court’s imposition of sentence without a waiver of her right to be sentenced by the judge who took her plea. Held: Reversed and remanded. 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 the same judge. (K.R. v. Superior Court (2017) 3 Cal.5th 295, 298, citing People v. Arbuckle (1978) 22 Cal.3d 749, 756-757.) The propensity in sentencing demonstrated by a particular judge is an inherently significant factor in the defendant’s decision to enter a guilty plea. Respondent argued that Bueno forfeited the claim by not objecting at the time of sentencing, relying primarily on cases specifically disapproved by the Supreme Court in K.R. v. Superior Court. The court rejected the forfeiture claim, concluding that “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.” The court reversed the judgment and remanded the case for resentencing by the same judge who accepted Bueno’s plea. If the same judge was unavailable, then Bueno must be given the option of proceeding before a different judge or withdrawing her plea.

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/archive/F074946.PDF