Opinion
F062535 Super. Ct. No. VCF230654
02-22-2012
THE PEOPLE, Plaintiff and Respondent, v. WAYNE EARL BELYEU, Defendant and Appellant.
James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
THE COURT
Before Wiseman, Acting P.J., Cornell, J. and Dawson, J.
APPEAL from a judgment of the Superior Court of Tulare County. Gerald F. Sevier, Judge.
James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant, Wayne Earl Belyeu, pled no contest to nine felony counts of commercial burglary (counts 1-9/Pen. Code, § 459) and admitted six prior prison term enhancements (§ 667.5, subd. (b)) and allegations that he had a prior conviction within the meaning of the three strikes law (§ 667, subds. (b)-(i)).
All further statutory references are to the Penal Code, unless otherwise indicated.
On appeal, Belyeu contends the court violated the terms of his plea bargain when it imposed a restitution fine and a parole revocation fine of $6,000 each. We will find merit to this contention and reduce Belyeu's restitution fine and parole revocation fine to the mandatory minimum fine of $200 each that was in effect when he was sentenced on April 20, 2011. In all other respects, we affirm.
The mandatory minimum restitution fine provided for by section 1202.4, subdivision (b)(1) was increased from $200 to $240 effective January 1, 2012. (Stats. 2011, ch. 358 (A.B.898), § 1.) Additionally, section 1202.45 requires that in every case where a person is convicted of a crime and the sentence includes a period of parole, the court shall impose a parole revocation restitution fine in the same amount as the restitution fine imposed.
FACTS
From October through December 2009, Belyeu committed numerous burglaries at businesses in Tulare County by breaking the glass doors of the business, entering, and taking the cash registers.
On January 21, 2010, the district attorney filed an information charging Belyeu with the counts and allegations he pled to and one count of possession of drug paraphernalia (count 10/Health & Saf. Code, § 11364, subd. (a)).
On March 2, 2011, Belyeu entered into a plea bargain which provided that in exchange for his plea to counts 1 through 9 and the admission of the prior prison term enhancements and the prior strike conviction, the court would dismiss count 10 and the prior strike conviction, and sentence him to a maximum term of eight years. The court, however, did not mention anything about a restitution fine or a parole revocation fine during the change of plea proceedings. Nor did it advise Belyeu of his right to withdraw his plea in the event the court did not sentence him in accord with his negotiated plea.
Belyeu's probation report recommended that the court impose a $10,000 restitution fine and a $10,000 parole revocation fine. At Belyeu's sentencing hearing on April 20, 2011, defense counsel clarified certain information in the probation report, but did not mention anything about the recommended $10,000 restitution fine or the $10,000 parole revocation fine. The court then sentenced Belyeu to an aggregate eight-year term consisting of the middle term of two years on count 1, 6 one-year prior prison term enhancements and concurrent terms on the remaining counts. The court also dismissed count 10 and the allegation that Belyeu had a prior strike conviction. Neither Belyeu nor his defense counsel objected to the court imposing restitution and parole revocation fines in the amount of $6,000 each.
DISCUSSION
Belyeu relies on People v. Walker (1991) 54 Cal.3d 1013 (Walker) to argue that the court violated his plea agreement by imposing a $6,000 restitution fine and a $6,000 parole revocation fine and that this requires that each of these fines be reduced to the statutory minimum of $200. We agree.
In Walker, the defendant had negotiated a plea agreement in which one of two felony charges was to be dismissed and the defendant was to plead guilty to the other charge and receive a five-year sentence and no penalty fine. He was not advised of an additional mandatory restitution fine of at least $100, but no more than $10,000. Nor was he advised of his right to withdraw his plea pursuant to section 1192.5. Although the probation report recommended a $7,000 restitution fine, the court imposed a fine of $5,000. The defendant did not object to the imposition of the fine at sentencing.
The court held (1) the imposition of the $5,000 restitution fine "was a significant deviation from the negotiated terms of the plea bargain" and therefore violated the plea bargain; (2) because the section 1192.5 advisement was not given, the error was not waived by the defendant's failure to object; and (3) the error was not subject to harmless error analysis. (Walker, supra, 54 Cal.3d at pp. 1029-1030.) The court reduced the fine to the statutory minimum, an amount that was not a significant deviation from the plea agreement. (Id. at p. 1030.)
In People v. Crandell (2007) 40 Cal.4th 1301 (Crandell), the court clarified that where the amount of the restitution fine was not expressly made part of the plea agreement, but "the record demonstrates that the parties intended to leave the amount of defendant's restitution fine to the discretion of the court, [the] defendant is not entitled to relief" from a restitution fine in excess of the statutory minimum. (Crandell, supra, 40 Cal.4th at p. 1309.) In Crandell, the Supreme Court found that the imposition of a mandatory restitution fine and parole revocation fine, each in the amount of $2,600, did not violate the plea agreement. The majority in Crandell held, based on the following factors, that the record showed the parties agreed that the trial court could set the amount of the restitution fine within the statutory range: "the trial court, before taking defendant's plea, accurately advised him he would 'have to pay a restitution fund fine of a minimum of $200, a maximum of $10,000' and ascertained that the prosecution had not made 'any other promises' beyond that defendant would be sentenced to 13 years in prison." (Ibid., fn. omitted.) "These facts distinguish the case from Walker," the court concluded. (Id. at pp. 1309-1310.)
Justice Baxter's concurring opinion, joined by Justices Chin and Corrigan, downplayed the significance of the court ascertaining that no "other promises" had been made to appellant: "[W]hen (1) the parties, in stating their bargain for the record, have mentioned no agreement to limit the restitution fine, (2) the court warns that it will impose such a fine, and that the amount may be anywhere in the statutory range, (3) the defendant says he understands, and (4) neither the defendant nor counsel protests that such a fine would violate the bargain, it is most sensible to assume the parties made no agreement with respect to the fine, leaving it to the law and the court's discretion upon proper advisement. [¶] Accordingly, if a trial court has failed, for whatever reason, to ask specifically about 'other promises' before imposing a substantial fine, that fact alone should not require an appellate court to invalidate the fine. I do not interpret the majority opinion to hold otherwise." (Crandell, supra, 40 Cal.4th at pp. 1311-1312 (conc. opn. of Baxter, J.).)
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In the instant case, as in Walker, appellant was not advised of the mandatory restitution fine; the imposition of a multi-thousand dollar fine was a significant deviation from the plea agreement; and Belyeu did not receive the section 1192.5 advisement. Accordingly, the imposition of the fines violated the plea agreement; Belyeu's failure to raise the issue below does not preclude him from challenging the fines on appeal; and the fines must be reduced to the section 1202.4, subdivision (b)(1) statutory minimum of $200. (Cf. Crandell, supra, 40 Cal.4th at pp. 1309-1310.)
Respondent cites the failure of Belyeu and defense counsel to object to the $10,000 restitution fine recommended in the probation report or to the $6,000 restitution fine actually imposed to argue that this indicates that the parties intended to leave the amount of the restitution fine to the discretion of the court. However, neither Walker nor Crandell viewed the defense's failure to object as objective evidence of an implicit agreement to leave imposition of a restitution fine to the court's discretion, even though in each case the defendant presumably knew from the probation report that he would be subject to a substantial restitution fine (Walker, supra, 54 Cal.3d at p. 1019; Crandell, supra, 40 Cal.4th at p. 1310). Further, the Supreme Court cautioned in Walker that, where a trial court has not given a section 1192.5 admonition, the reviewing court cannot assume the defendant knew he had a right to withdraw his plea if not given the benefit of his plea bargain (Walker, supra, at p. 1026) and cannot deem the defendant "to have waived his rights by silent acquiescence" (Walker, supra, 54 Cal.3d at p. 1030). Walker precludes us from inferring that the parties intended to leave the matter of restitution and parole revocation fines to the discretion of the court from the mere failure to mention the fines in the plea bargain and to object to their imposition where there is no judicial advisement regarding the potential fines, no section 1192.5 admonition, and no other objective manifestation of such intent. A contrary conclusion would in effect render Walker's holding a nullity because imposition of significant restitution fines would never be deemed to exceed the "implicit" terms of a plea bargain. Thus, we conclude that the court violated the terms of Belyeu's plea bargain when it imposed a restitution fine and parole revocation fine in the amount of $6,000 each.
DISPOSITION
Belyeu's restitution and parole revocation fines of $6,000 each are reduced to the statutory minimum of $200 each that was in effect when he was sentenced. The trial court is directed to prepare an amended abstract of judgment consistent with this opinion and to forward a certified copy to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.