Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Cruz County Super.Ct.No. F10294
McAdams, J.
As presented in briefing, the sole issue in this case is whether the post-plea restitution fund fine of $4,700 that the trial court imposed under Penal Code section 1202.4 violated the terms of defendant’s plea bargain under People v. Walker (1991) 54 Cal.3d 1013 (Walker). We filed our original opinion affirming the trial court’s judgment. (People v. Romero (March 8, 2006, H028708) [nonpub. opn.].) That opinion concluded that because defendant’s plea bargain did not include any provision concerning the mandatory restitution fund fine, and because it appeared that the amount of the fine was left to the discretion of the trial court, defendant had not demonstrated that the fine exceeded his bargain. But based on the parties’ agreement and the supporting record that the abstract of judgment mistakenly stated the amount of the restitution fund fine to be $4,800, $100 in excess of what was intended, we also modified the abstract to correct this error.
All further unspecified statutory references are to the Penal Code.
The California Supreme Court then granted defendant’s petition for review pending its consideration of People v. Crandell, S134883, which the court decided on April 30, 2007. (People v. Crandell (2007) 40 Cal.4th 1301 (Crandell).) On August 8, 2007, the Supreme Court by order transferred the case to this court with directions to vacate our prior decision and to reconsider the cause in light of Crandell. We do so now and again affirm the judgment and modify the abstract of judgment to correctly state the $4,700 amount of the restitution fund fine.
No supplemental briefs were filed in response to the transfer order.
STATEMENT OF THE CASE
A detailed recitation of the facts leading to the criminal charges in this case is not necessary to the resolution of the single issue on appeal. The district attorney filed a complaint in September 2004 charging defendant with seven counts of committing lewd acts upon a child in violation of section 288, subdivision (a), (counts 1-4, 6, 8, & 9), and three counts of committing forcible lewd acts upon a child in violation of section 288, subdivision (b)(1), (counts 5, 7, & 10). The complaint also alleged that defendant had used force, violence, duress, and menace within the meaning of section 1203.066, subdivision (a)(1), in connection with counts 5, 7, and 10, and that he had had substantial sexual contact with the victim within the meaning of section 1203.066, subdivision (a)(8), in connection with counts 5 through10.
Defendant initially pleaded not guilty and denied the special allegations. Later, the district attorney and defense counsel announced in open court that they had agreed upon a disposition of the case. Defendant would enter a plea of no contest to counts 6, 7, and 10 and be sentenced to a prison term of 24 years. The remaining counts would be dismissed. Defendant would receive 15 percent “worktime credits” under section 2933.1, requiring him to serve at least 85 percent of his sentence, and would waive his right to appeal.
Defendant confirmed that he had had sufficient time to discuss the plea agreement with counsel. He was advised of his constitutional rights and waived them, and he also confirmed that he had understood that he would be sentenced by the court to 24 years in prison. He was further advised of certain direct consequences of his plea, including that the conviction could later be used against him if he were to be charged with another offense in the future, that he could be deported if he were not a citizen, that he would have to register as a sex offender, and that he “would have to pay restitution for any financial loss caused to the victim; for instance if the victim needed counseling, that sort of thing, [he] would have to pay for that.” Defendant was not advised that a mandatory restitution fund fine of between $200 and $10,000 would be imposed under section 1202.4, subdivision (b). Nor was he advised of his right to withdraw his plea under section 1192.5 if the court withdrew its approval of the plea bargain at sentencing.
This latter advisement appears to have been a reference to section 1202.4, subdivision (f), which provides for payment of direct restitution to a victim who has suffered economic loss.
This statute reads, in relevant part: “Where the plea is accepted by the prosecuting attorney in open court and is approved by the court, the defendant, except as otherwise provided in this section, cannot be sentenced on the plea to a punishment more severe than that specified in the plea and the court may not proceed as to the plea other than as specified in the plea.” Paragraph three of section 1192.5 further requires that the court advise the defendant “prior to the making of the plea that (1) its approval is not binding, (2) it may, at the time set for the hearing on the application for probation or pronouncement of judgment, withdraw its approval in the light of further consideration of the matter, and (3) in that case, the defendant shall be permitted to withdraw his or her plea if he or she desires to do so.” The consequence of the trial court’s failure to have given the advisement is that, even in absence of an objection raised at sentencing below, defendant has not waived or forfeited his claim on appeal that his sentence does not adhere to the plea bargain, or that he has been deprived of the benefit of his bargain. (Walker, supra, 54 Cal.3d at pp. 1024-1026, 1029; People v. Johnson (1974) 10 Cal.3d 868, 872.) It is not, as defendant contends, automatic reduction of the restitution fund fine to the statutory minimum of $200.
Before entering his plea, defendant confirmed that he had not been promised anything other than what had already been discussed in exchange for it and that he had not been threatened in any way as an inducement. Defendant finally stated that he was admitting the charges because he had in fact committed those particular offenses. Defendant then pleaded no contest to counts 6, 7, and 10 and the court found a factual basis for the plea.
A probation report was later prepared per the court’s order. It recommended that defendant be sentenced to 24 years in prison and that he not be required to pay restitution to the victim under section 1202.4, subdivision (f), since none had been requested. But the report did recommend that a restitution fund fine under section 1202.4, subdivision (b), be imposed in the amount of $4,800. At sentencing, neither defendant nor his counsel objected to the report’s recommendation concerning imposition of the restitution fund fine as exceeding the plea bargain, despite counsel’s corrections to two other aspects of the report. In this regard, counsel specifically stated, “I have read and [understood] the probation officer’s report and have no other corrections.”
The court then imposed the total stipulated prison term of 24 years, which was based on the upper term of eight years for each of the three charges, to run consecutively. Defendant was again advised that he would be required to register as a sex offender under section 290 for the rest of his life. The court finally imposed a restitution fund fine of $4,700 under section 1202.4, subdivision (b), and a $200 parole revocation fine under section 1202.45, to be suspended. In so doing, the court confirmed that there was no other issue relating to restitution, presumably to the victim under section 1202.4, subdivision (f). Neither defendant nor his counsel objected to the imposition of the restitution fund fine.
Defendant does not challenge on appeal the imposition of the parole revocation fine.
An abstract of judgment was later filed. It referenced the clerk’s minute order for specification of “restitution fine and fees.” The minute order had incorrectly stated that defendant had been “ordered to pay $4,800.00 Restitution Fine per 1202.4 PC” when the actual fine imposed was $4,700.
Despite his plea agreement, defendant, acting in pro per, filed a notice of appeal along with an application for a certificate of probable cause in which he asserted that incompetence of counsel had resulted in his waiver of constitutional rights and no contest plea. He also contended that he would have received a lesser sentence if his rights had been protected and that he had “paid his attorney $15,000.00 to defend his rights and, in exchange, counsel had him plead guilty with an exposure of 24 years at 85 [percent], all of which the court imposed.” Defendant did not mention the restitution fine in the application, which the court later denied. Defendant then filed an amended notice of appeal based on sentencing error.
DISCUSSION
Relying on Walker, supra, 54 Cal.3d 1013, defendant contends that the trial court erred in imposing the $4,700 restitution fund fine under section 1202.4, subdivision (b), in that this violated the terms of his plea bargain because no fine was specified as part of that bargain. Defendant further asserts that this error requires reduction of the fine to the $200 statutory minimum. Upon reconsideration in light of Crandell, we again reject these contentions.
In Walker, the defendant had negotiated a plea bargain in which one of two felony charges was to be dismissed and defendant was to plead guilty to the other charge and receive a five-year sentence and no punitive fine. The trial court advised him that the maximum sentence he could receive was a seven-year prison term and a fine of up to $10,000. 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 under 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 Supreme Court in Walker found that two distinct errors had occurred. First, as here, it was error for the trial court to have failed to give defendant a pre-plea advisement concerning his obligation to pay a restitution fine, part of the direct consequences of his plea. But, as the court held in Walker, this error is waived on appeal if the defendant failed to raise it in the court below at or before sentencing. (Walker, supra, 54 Cal.3d at pp. 1020, 1022-1023; Crandell, supra, 40 Cal.4th at pp. 1307-1308.) Accordingly, to the extent defendant claims error in this case for the trial court’s failure to have advised him of the direct consequences of his plea, the error has been waived by defendant’s failure to have timely raised the issue in the trial court. (Ibid.; see also People v. DeFilippis (1992) 9 Cal.App.4th 1876, 1879.) Even if this error were not waived, defendant has shown no prejudice here.
The second error in Walker was the trial court’s imposition of a significantly greater sentence than the one the defendant had bargained for—a $5,000 restitution fine. “If a plea bargain is violated through imposition of a punishment exceeding the terms of the bargain, the error is waived by the failure to object at sentencing if the court had advised the defendant of the right to withdraw the plea upon court withdrawal of plea approval (see Pen. Code, § 1192.5), but is not waived by failure to object and is not subject to harmless error analysis if that advisement was not given. (Walker, supra, 54 Cal.3d at pp. 1024-1026.) If a restitution fine exceeding the statutory . . . minimum is imposed in violation of a plea bargain, and the error was not waived, the appropriate remedy on appeal is reduction of the fine to [the statutory minimum].” (People v. DeFilippis, supra, 9 Cal.App.4th at p. 1879.) Here, defendant was not given the advisement under section 1192.5 and his claim of error that the fine exceeded his plea bargain is thus not waived. But in order to benefit from a reduction of the fine to the statutory minimum, he still must demonstrate that the imposition of the $4,700 restitution fine in this case violated the terms of his plea bargain—by showing, as in Walker, that he reasonably could have understood the negotiated plea agreement to signify that no substantial fine would be imposed. (Crandell, supra, 40 Cal.4th at p. 1310.)
The Supreme Court in Walker considered the imposition of a restitution fine a form of punishment and found that it “should generally be considered in plea negotiations.” (Walker, supra, 54 Cal.3d at p. 1024.) Because the $5,000 restitution fine in that case was a significant deviation from the negotiated terms of the plea (i.e., an agreed-upon sentence of five years with no substantial punitive fine), the court reduced the fine to the statutorily mandated minimum of $100, an amount that was not a significant deviation from the bargain.
In upholding the restitution fine in Crandell, the Supreme Court affirmed the principles announced in Walker and distinguished that case as one in which “ ‘the defendant . . . reasonably could have understood the negotiated plea agreement to signify that no substantial fine would be imposed.’ ” (Crandell, supra, 40 Cal.4th at p. 1310.) In so doing, the court in Crandell echoed that “the parties to a criminal prosecution are free, within such parameters as the Legislature may establish, to reach any agreement concerning the amount of restitution (whether by specifying the amount or by leaving it to the sentencing court’s discretion.” (Id. at p. 1309.) The Crandell court further affirmed that “ ‘the core question in every case is . . . whether the restitution fine was actually negotiated and made a part of the plea agreement, or whether it was left to the discretion of the court.’ ” (Ibid.) Where the amount of the restitution fine was not expressly made a part of the plea bargain, 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. (Ibid.)
Crandell thus confirms, as we also observed in People v. Dickerson (2004) 122 Cal.App.4th 1374 (Dickerson), and People v. Sorenson (2005) 125 Cal.App.4th 612 (Sorenson), that Walker cannot be read as establishing a categorical rule that whenever a trial court imposes a restitution fine that was not mentioned in the recitation of the plea bargain, the trial court must have violated the plea agreement. And the fact that the parties and the court omitted any mention of restitution fines as part of the plea agreement cannot on the face of it be construed to imply that there was an agreement that the sentence would consist of no fines, or the minimum statutory fines. Rather, where the fine is omitted from the recitation of the fee agreement, we look to the record in the particular case to determine whether it demonstrates that the fine was actually negotiated and made a part of the plea bargain or whether the parties instead intended to leave the amount of the fine to the discretion of the court. (Crandell, supra, 40 Cal.4th at p. 1309.)
In upholding the restitution fine in Crandell, the Supreme Court distinguished the facts of Walker—and therefore the result—by emphasizing that in Walker, the defendant “ ‘reasonably could have understood the negotiated plea agreement to signify that no substantial fine would be imposed.’ [Citation.]” (Crandell, supra, 40 Cal.4th at p. 1310.) The factors the court cited to support the defendant’s reasonable understanding in Walker were that the defendant there had not been advised before his plea that he would be subject to a restitution fund fine of between the statutory minimum and maximum amounts and the trial court also did not obtain any assurances that the parties had intended their plea bargain to leave the amount of restitution to the trial court’s discretion. (Ibid.; Walker, supra, 54 Cal.3d at pp. 1018-1019.) In Crandell by contrast, the defendant was advised that he would receive a fine and the trial court obtained his assurances that no promises other than the express terms of the negotiated disposition had been made. (Crandell, supra, at pp. 1309-1310.)
In the instant case, as in Walker, defendant was not advised that a restitution fine of between $200 and $10,000 would be imposed. But he did confirm, as in Crandell, that no promises other than the discussed terms of the negotiated disposition had been made to induce his plea. And the record also confirms here that defendant made no objection to the recommendation in the probation report that a restitution fund fine be imposed even though his counsel corrected other aspects of the probation report. There was likewise no objection when the court actually imposed the $4,700 restitution fine. We also observe that defendant was advised of the possibility of direct victim restitution, a fine that ultimately was not imposed, such that he was aware of the possibility that he would be required to make some form of restitution outside of the terms of the plea bargain. We further note that even though defendant was not required to obtain a certificate of probable cause in order to appeal a sentencing error (§§ 1237, 1237.5), in his application for a certificate, he objected to other aspects of his sentence, but he did not mention the restitution fund fine as part of his grievance.
We mention the lack of objection in this context not to show waiver but to demonstrate that nobody in the trial court seemed to think that the imposition of a $4,700 restitution fine violated the terms of the plea bargain.
Thus, even though defendant had not been advised pre-plea that a restitution fund fine would be imposed, these other circumstances nonetheless indicate that “the parties to the plea bargain were concerned with reaching an agreement specifying [the] term[s] of imprisonment.” (Dickerson, supra, 122 Cal.App.4th at p. 1386.) They were not required to negotiate—whether to resolution or impasse—regarding the imposition or amount of restitution fines. It appears from the record that “at least implicitly [the parties] agreed that additional punishment in the form of statutory fines and fees would be left to the discretion of the sentencing court.” (Ibid.) Defendant has thus failed to show that his plea bargain contemplated either “no fine or . . . a minimum fine within a statutory range.” (Sorenson, supra, 125 Cal.App.4th at p. 619.) We accordingly conclude that defendant has not established that the trial court’s imposition of the $4,700 restitution fund fine violated his plea agreement and he is not entitled to relief.
In reconsidering this cause in light of Crandell, which did not disapprove of Dickerson or Sorenson, we do not read Crandell as specifically requiring a pre-plea advisement concerning the restitution fund fine and the defendant’s express assurance that no other promises were made to induce the plea in order to conclude that that the amount of the fine had been left to the court’s discretion. Instead, Crandell’s test requires us to determine from the record in the particular case whether the restitution fine was actually negotiated and made a part of the plea bargain or instead whether it was left to the discretion of the court. (Crandell, supra, 40 Cal.4th at p. 1309.) While the presence of each of these factors obviously bears on that determination, they do not appear to be essential under Crandell to reach the conclusion in a particular case that the amount of the restitution fund fine was left to the trial court’s discretion.
Here, while there was no pre-plea advisement concerning the fine, there are nevertheless other factors present in the record—including defendant’s assurance that no promises other than the stated terms of disposition had been made to him—that evidence that the parties had left the amount of the restitution fine to the court’s discretion. On this record, therefore, we conclude that when defendant entered his plea, he could not reasonably have understood his negotiated disposition to signify that no substantial restitution fine would be imposed. (Crandell, supra, 40 Cal.4th at p. 1310.)
DISPOSITION
The judgment and sentence are again affirmed. The abstract of judgment is also modified to reflect that the restitution fund fine imposed under section 1202.4 is $4,700 instead of $4,800.
Duffy, J.
I CONCUR: Bamattre-Manoukian, Acting P.J.
DISSENTING OPINION
McADAMS, J.,
I respectfully dissent.
As I stated in my dissent in the original opinion, and as the majority opinion concedes, in these proceedings “[d]efendant was not advised that a mandatory restitution fund fine of between $200 and $10,000 would be imposed under [Penal Code] section 1202.4, subdivision (b).” (Maj. opn. at p. 3.) There was no description of the potential restitution fund fine during the recitation of the specific counts to be admitted, the agreed-upon prison term and limitations on “credits” and the counts to be dismissed. Furthermore, at no time during the advisement of constitutional rights, the advisement of the consequences of his plea, or the entry and acceptance of his plea, was defendant advised of the fine.
In People v. Crandell (2007)40 Cal.4th 1301, 1310 (Crandell), the California Supreme Court noted that “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.” (Id. at p. 1309.) Based on this, the Court found that “when defendant entered his plea, he could not reasonably have understood his negotiated disposition to signify that no substantial restitution fine would be imposed.” (Id. at p. 1310.)
Furthermore, in its conclusion, the Supreme Court stressed, based on “our guidance in [People v.] Walker [(1991) 54 Cal.3d 1013],” the importance of admonishing defendants of the statutory restitution fine scheme. (Crandell, supra, 40 Cal.4th at p. 1310.)
On this silent record, I cannot agree with the majority when it concludes that because defendant confirmed that no other promises had been made to him, made no objection at sentencing or in his application for a certificate of probable cause, and was informed of the possibility of direct victim restitution, defendant agreed that restitution fund fine would be left to the discretion of the sentencing court.
Such a complete omission of the judicial advisement concerning the restitution fund fine prior to the entry of the plea compels reduction of the fine to the statutory minimum of $200. (People v. Walker, supra, 54 Cal.3d 1013.)