Do Arbuckle Rights Extend to a Restitution Hearing?

In Orange County, Maereichelle Villamor Marquez and two others fraudulently used the identities of 60 prisoners to obtain unemployment benefits from the Employment Development Department, of EDD.

The Orange County District Attorney’s Office charged Ms. Marquez with 21 felonies arising out of this fraudulent scheme and others out of her possession of controlled substances.  Ms. Marquez’s accomplices were also charged with various felonies.

On September 30, 2021, Marquez reached a plea bargain before Judge Daniel F. Link to: 1) making a false statement to obtain unemployment benefits (Unemployment Insurance Code § 2101(a); 2) possession of a controlled substance for sale (Health and Safety Code § 11351); and 3) unauthorized use of the personal identifying information of another (Penal Code § 530.5(a)).  Ms. Marquez also admitted allegations that while committing these offenses, she was out on bai in another case (Penal Code § 12022.1(b)) and that the fraudulent scheme resulted in losses to the EDD of more than $500,000 (Penal Code § 186.11(a)(1), (2)).

Ms. Marquez and the prosecution 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.  Ms. Marquez also agreed that restitution to the EDD would be joint and several with the other defendants.

On November 1, 2021, Judge Link sentenced Ms. Marquez to state prison for the low-term of sixteen months on the Unemployment Insurance Code § 2122 violation, 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 (Penal Code § 186.11(a)(2)) , plus a consecutive term of two years for the out-on bail enhancement (Penal Code § 12022.1(b)) for a total term of five years and four months.  He also imposed concurrent prison terms on the sales of a controlled substance (Health & Safety Code § 11351) charge and the unauthorized use of personal identifying information charge (Penal Code § 530.5).

At the restitution hearing five months later on March 15, 2022, Judge Polly H. Shamoon presided.  Ms. Marquez’s counsel objected to Judge Shamoon deciding the amount of restitution on grounds that Ms. Marquez had not entered into or signed an Arbuckle waiver (People v. Arbuckle (1978) 22 Cal. 3d 749) when she entered her plea. 

Judge Shamoon overruled the objection and based on evidence presented at the restitution hearing, ordered Ms. Marquez and her two codefendants to pay EDD $1,176,235 in restitution.

Ms. Marquez then appealed the victim restitution order to the California Court of Appeal for the Fourth Appellate District under People v. Ford (2015) 61 Cal.4th 282, 286.  In her appeal, she asked the Fourth Appellate District to vacate the restitution order issued by Judge Shamoon and remand the matter for a new hearing before Judge Link.

Her argument was that because restitution is part of sentencing, Arbuckle would require the same judge who accepted the plea to decide restitution because the fundamental principle the California Supreme Court advance in Arbuckle was to preserve a defendant’s “reasonable expectation that the same judge who approves a plea bargain will also get to exercise discretion in choosing among the multiple dispositions available at sentencing (e.g., granting probation or imposing a prison term).  Arbuckle, supra, at 757, fn. 5.  This is so, the Supreme Court recognized, “[b]ecause of the range of dispositions available to a sentencing judge, the propensity in sentencing demonstrated by a particular is an inherently significant factor in the defendant’s decision to enter a guilty plea.”  Id.

The Fourth Appellate District, however, distinguished between sentencing and the order deciding the amount of restitution.  The Fourth District explained that restitution is regarded as mandatory and that it “shall be” ordered in every case.

Moreover, other cases have considered this argument in the past and ruled that there is no Arbuckle right to have the same judge set restitution as the one who sentences after the plea.  In re Cristian S. (2017) 9 Cal. App. 5th 510 considered this in the juvenile court, but the statute applicable in juvenile court (Welfare & Institutions Code § 730.6(h)(1)) contains the identical wording as the adult court statute (Penal Code § 1202.4(f)).  In In re Cristian S., the court found no right to the same judge existed.

The Fourth District also pointed out that restitution is often ordered and set by the probation department, so no judge is even involved.