Does a defendant's silence at sentencing constitute a waiver of his right to withdraw his plea?

[819 P.2d 868] Absent compliance with the section 1192.5 procedure, the defendant's constitutional right to the benefit of his bargain is not waived by a mere failure to object at sentencing. "Of course, there can be no waiver of a constitutional right absent 'an intentional relinquishment or abandonment of a known right or privilege.' [Citation.] No less should a court presume from mere silence that defendant is waiving implementation of the consideration that induced him to waive his constitutional rights." (People v. Mancheno, supra, 32 Cal.3d at p. 864, 187 Cal.Rptr. 441, 654 P.2d 211.)

When, however, the section 1192.5 admonition is given, and it is generally required, the situation is quite different. The issue then becomes whether the defendant has relinquished his statutory right to withdraw the plea. People v. Mancheno, supra, 32 Cal.3d 855, 187 Cal.Rptr. 441, 654 P.2d 211, does not state whether the admonition was given in that case, and thus it does not address the point.

We have held that absent a section 1192.5 admonition, a defendant's "failure affirmatively to request a change of plea should not be deemed a waiver of his right to do so. Since he was never advised of his rights under section 1192.5, he should not be held to have waived them." (People v. Johnson (1974) 10 Cal.3d 868, 872, 112 Cal.Rptr. 556, 519 P.2d 604, fn. omitted.) Implicit in this reasoning is that when the admonition is given, the failure affirmatively to request a change of plea does waive the right to do so. (See id. at p. 872, fn. 3, 112 Cal.Rptr. 556, 519 P.2d 604 [distinguishing prior cases which supported a finding of waiver on the basis of the absence of the admonition].) A line of cases in an analogous situation supports this conclusion.

In People v. Arbuckle (1978) 22 Cal.3d 749, 150 Cal.Rptr. 778, 587 P.2d 220, we held that when a judge accepts a plea bargain and retains sentencing discretion, it is generally an implied term of the bargain that sentence will be imposed by that judge. The question naturally arose whether a defendant waives this implied term by silence when a different judge imposes sentence. The exact answer to this question is currently unsettled, as the several appellate decisions conflict. (See fn. 2, post.) But as analogous to this case, the decisions all suggest a finding of waiver upon the giving of a section 1192.5 admonition.

In People v. Rosaia (1984) 157 Cal.App.3d 832, 840, 203 Cal.Rptr. 856, the court found that the Arbuckle right "may be waived by conduct," i.e., by [54 Cal.3d 1026] not seeking to withdraw the guilty plea or otherwise objecting at sentencing. It went on to hold that "fairness dictates that before accepting

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