Filed 7/18/23

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

MAEREICHELLE VILLAMOR 

MARQUEZ,

Defendant and Appellant.

 D080411

 (Super. Ct. No. SCD289473)

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 
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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, 
3

§ 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 
10

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.