Opinion
H025274.
10-21-2003
THE PEOPLE, Plaintiff and Respondent, v. ISMAEL VALDEZ, Defendant and Appellant.
Pursuant to a negotiated agreement, defendant Ismael Valdez pleaded no contest to one count of attempted robbery (Pen. Code, §§ 664/211) and admitted great bodily injury and personal weapon use enhancements (§§ 12022.7, subd. (a), 12022, subd. (b)) in case No. SS010031, and pleaded no contest to aggravated assault (§ 245, subd. (a)(1)) in case No. SS012260. He was sentenced to a state prison term of seven years and the court imposed restitution fines in both cases pursuant to sections 1202.4, subdivision (b), and 1202.45. On appeal defendant argues that the imposition of restitution fines in both cases was unauthorized because a joint sentence was imposed. He also argues that the restitution fines must be reduced to the statutory minimum of $200 because they exceeded the punishment contemplated by the plea bargain and the trial court did not comply with the requirements of section 1192.5. We disagree with these contentions and affirm the judgment.
All further unspecified statutory references are to the Penal Code.
FACTS
Case Number SS010031
On February 5, 2001, after a bout of drinking, defendant and a friend drove to a market in Greenfield. They entered the store armed with machetes. Defendant struck a customer several times with the machete, fracturing his skull. He then struck the store owner on the shoulder with the machete, cutting his shoulder. He told the owner " `get the money . . . . " However, he and his accomplice then left the store without taking anything.
In connection with this incident, defendant was charged with attempted murder (§§ 644/187), two counts of attempted robbery (§§ 644/211) with use of a deadly weapon (§ 12022, subd. (b)) as to both counts and personal infliction of great bodily injury (§ 12022.7, subd. (a)) as to one count, and two counts of assault with a deadly weapon or force likely to cause great bodily injury (§ 245, subd. (a)(1)), with the same enhancement allegations. He was also charged with child endangerment (§ 273a, subd. (a)) and commercial burglary (§ 459).
Case Number SS012260
On September 28, 2001, defendant participated in a group attack on African-American inmates at the Monterey County jail, during which defendant struck another inmate in the torso and head with a crutch.
In connection with this incident, defendant was charged with one count of assault with a deadly weapon and force likely to produce great bodily injury. (§ 245, subd. (a)(1).)
Negotiated Plea and Sentencing
On May 9, 2002, defendant entered into a negotiated disposition for both cases. In case No. SS010031, defendant agreed to plead no contest to one count of attempted robbery and to admit great bodily injury and personal weapon use enhancements, with a promised dismissal of all other charges. In case No. SS012260, defendant agreed to plead no contest to the aggravated assault charge. Defendant agreed to a prison term of seven years, with a minimum of three years parole. The court advised defendant that as a consequence of his plea "there is a victim restitution that can be ordered by the Court; in addition, there is a State restitution fine that must be ordered by the Court, a minimum of $200 and a maximum of $10,000." Defendant stated that he understood. The court then accepted the pleas in each case, and the matter was set for sentencing.
On June 26, 2002, defendant was sentenced pursuant to the plea agreement to a prison term of seven years. In case No. SS010031, the court selected the upper term of three years for the attempted robbery, and imposed a three-year enhancement for the great bodily injury allegation and a one-year enhancement for the personal weapon use allegation. In case No. SS012260, the court imposed a concurrent three-year term as to the aggravated assault conviction. The court then ordered restitution fines in the following amounts. In case No. SS010031, the court ordered restitution in the amount of $1400 pursuant to section 1202.4, and suspended an additional $1400 unless parole were to be revoked, pursuant to section 1202.45. In case No. SS012260, the court ordered a restitution fine of $600 and suspended an additional parole violation fine of $600.
ISSUES
The Trial Court Properly Imposed a Restitution Fine in Each Case
Defendant argues that the trial court erred by imposing separate restitution fines under sections 1202.4, subdivision (b), and 1202.45 in each case, because he was jointly sentenced pursuant to a plea agreement combining both cases. The Attorney General claims defendant has waived this claim by failing to object at sentencing. However, an unauthorized sentence is not waived by a failure to object, and may be corrected at any time. (See, People v. Scott (1994) 9 Cal.4th 331, 354.) If this were one case for sentencing purposes, as defendant argues, then the imposition of two restitution fines would be unauthorized. (People v. Ferris (2000) 82 Cal.App.4th 1272, 1277-1278.) Therefore the issue is not waived.
Section 1202.4, subdivision (b), requires a court to impose a restitution fine in "every case where a person is convicted of a crime." The question here is whether defendant was convicted in one case or two cases. In arguing that this was only one case, defendant relies on People v. McNeely (1994) 28 Cal.App.4th 739 and People v. Ferris, supra, 82 Cal.App.4th 1272. In McNeely, the defendant pleaded guilty to numerous burglary offenses charged in two separate cases with separate case numbers. At sentencing for both cases, the trial court imposed an aggregate term that included all counts and ordered McNeely to pay $93,000 in restitution to the victims pursuant to the 1989 version of Government Code section 13967, subdivision (c). At the time, that statute provided that restitution had to be ordered in the amount of the loss, not to exceed $10,000. On appeal, the People conceded that the $93,000 violated Government Code section 13967, but argued that two restitution fines could be imposed under that section since McNeely had been sentenced on two cases at the sentencing hearing. The court of appeal rejected this argument, noting that Government Code section 13967 "did not give the court authority to order restitution up to $10,000 for each victim or on each count. Nor did it allow a restitution order exceeding $ 10,000 where, as here, a defendant is sentenced in one hearing on two or more cases." (People v. McNeely, supra, 28 Cal.App.4th at p. 743.) The court in McNeely found that Government Code section 13967 contained an ambiguity by not specifying whether the court could impose restitution in each case where defendant was sentenced on more than one case at a single hearing. However, any ambiguity in Government Code section 13967 does not bear on our case, which involves different statutes. McNeely is distinguishable in that sections 1202.4 and 1202.45 now provide specific authority for issuing a restitution order "in every case" in which the defendant has been convicted.
In People v. Ferris, supra, 82 Cal.App.4th 1272, the prosecutor moved to join for trial two separately filed cases charging Ferris with different offenses committed at different times. The trial court granted the motion but the informations were not formally consolidated and the cases retained separate case numbers in the jury verdicts. Separate probation reports were prepared as well. In a single sentencing hearing, the court sentenced Ferris on all charges and ordered him to pay two restitution fines, one for each case. On appeal the court reversed, concluding that the phrase "every case" in sections 1202.4, subdivision (b), and 1202.45, "includes a jointly tried case although it involves charges in separately filed informations." (Id. at p. 1277.) The court found in Ferris that the charges were "effectively joined" in one case although they technically retained separate case numbers. (Ibid.)
Unlike Ferris, the two cases before us were never joined or consolidated, but rather remained separate cases throughout the proceedings. Although convictions in both cases were included at the sentencing hearing, a trial court, as the McNeely court recognized, "can separately sentence a defendant on different cases at a single hearing." (People v. McNeely, supra, 28 Cal.App.4th at p. 743.) The fact that there was a common hearing for the entry of no contest pleas and sentencing does not mean that the two cases were "effectively joined." (People v. Ferris, supra, 82 Cal.App.4th at p. 1277.) Calendaring and hearing more than one case for a defendant at the same time does not result in " `de facto consolidation." (See, People v. Gonzalez (1990) 220 Cal.App.3d 134, 143.) "Obvious considerations of judicial efficiency call[] for that type of processing the multiple cases of a single defendant." (See, People v. Smith, supra, 7 Cal.App.4th at p. 1192.)
Here, defendant was convicted of crimes in two cases arising from incidents occurring seven months apart. The cases were charged separately under case numbers that differed significantly. The offenses committed in each case were unrelated and pertained to different victims in different locations. Defendant was sentenced separately on each case under its respective number. Throughout the proceedings in which it accepted defendants pleas of no contest and imposed sentence, the court distinguished between the two cases and referred to them by their separate numbers. Separate minute orders were consistently filed in each case. We conclude that these were two cases and that the trial court did not err in imposing separate restitution fines pursuant to sections 1202.4 and 1202.45 in each case.
Restitution Fines Did Not Exceed Punishment Contemplated by Plea Agreement
In People v. Walker (1991) 54 Cal.3d 1013 (hereafter Walker), the court stated that "[w]hen a guilty plea is entered in exchange for specified benefits such as the dismissal of other counts or an agreed maximum punishment, both parties, including the state, must abide by the terms of the agreement. The punishment may not significantly exceed that which the parties agreed upon." (Walker, supra, 54 Cal.3d at p. 1024.) A "restitution fine . . . qualifies as punishment for this purpose. Accordingly, the restitution fine should generally be considered in plea negotiations." (Ibid.) A "defendants constitutional right to the benefit of his bargain is not waived by a mere failure to object at sentencing" in the absence of advisements in compliance with Penal Code section 1192.5. (Id. at p. 1025.) Furthermore, a "violation of a plea bargain is not subject to harmless error analysis." (Id. at p. 1026.) However, "[r]educing the fine to [the statutory minimum] would . . . achieve substantial compliance with the terms of the plea bargain without violating the statutory requirement of a restitution fine." (Id. at p. 1028.)
Penal Code section 1192.5 provides in relevant part that "If the court approves of the plea, it shall inform 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 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. . . ."
Defendant contends that the restitution fines imposed by the court under sections 1202.4, subdivision (b), and 1202.45 must be reduced to the statutory minimum under the authority expressed in Walker because the fines were not part of the plea bargain and no advisements were given under Penal Code section 1192.5. Furthermore, defendant argues he was not specifically informed as to the parole revocation fines under section 1202.45 before agreeing to the negotiated plea.
Walker does not require the reduction of the fines in this case. In Walker, the defendant agreed to plead guilty in exchange for an agreed-upon prison sentence. "The court orally explained to defendant that `the maximum penalties provided by law for this offense are either 3 years, 5 years, or 7 years in state prison and a fine up to $10,000, followed by a period of parole." (Walker, supra, 54 Cal.3d at p. 1019.) The court did not specify whether the fine mentioned was a "penal fine" under sections 672 and 12303.3 or a restitution fine under Government Code section 13967. (Id. at p. 1019.) At sentencing the court imposed no penalty fine but did impose a restitution fine of $5,000. On appeal Walker claimed that the imposition of a restitution fine was a violation of the plea agreement because such a fine had not been mentioned in the agreement. The California Supreme Court agreed with Walkers claim. The court in Walker explained that the trial court "only advised the defendant that a $10,000 fine was a possible consequence of the guilty plea. This was inadequate. The court should have advised defendant there was a possible $ 10,000 penalty fine and a mandatory restitution fine of between $100 and $10,000." (Walker, supra, 54 Cal.3d at p. 1029.) Although the inadequate advisement alone would not have entitled Walker to a remedy in the absence of an objection and a showing of prejudice, the court in Walker found that the plea bargain was violated because the imposition of the $5,000 restitution fine was "a significant deviation from the negotiated terms of the plea bargain." (Id. at p. 1029.)
In the case before us, the trial court followed the suggestions made by the court in Walker to the letter by advising defendant prior to the entry of his plea that a victim restitution fine could be imposed and that a state restitution fine must be imposed:
"THE COURT: You understand that there is a victim restitution that can be ordered by the Court; in addition, there is a State restitution fine that must be ordered by the Court, a minimum of $200 and a maximum of $10,000; do you understand?
"THE DEFENDANT: Yes, sir."
The amount of the mandatory state restitution fine is discretionary but may be determined by reference to statutory provisions set forth in section 1202.4, subdivision (b)(2). Applying the statutory formula, the indicated restitution fine in this case would be the product of $200 multiplied by seven years in case No. SS010031 and $200 multiplied by three years in case No. SS012260. These are the amounts that were in fact imposed. Section 1202.45 provides that a parole revocation fine must be imposed in every case where the sentence includes a period of parole, and that "the court shall at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4." This additional fine is suspended unless parole is revoked. The courts advisement to defendant that it must order a "State restitution fine" is sufficiently broad to include the fine imposed under both sections 1202.4 and 1202.45, since these are identical amounts. Furthermore, the restitution fines were spelled out in detail in the probation report of June 10, 2002. Finally, any claim based solely on the adequacy of the advisement is subject to waiver, and reversal is not required in the absence of a showing of prejudice. (Walker, supra, 54 Cal.3d. at p. 1029.) Since defendant did not object to the adequacy of the advisement he received concerning the restitution fines, those claims are waived on appeal. (See People v. Nystrom (1992) 7 Cal.App.4th 1177, 1180-1181 [defendant who is notified of the maximum amount of mandatory and property restitution fines and who does not object at or before sentencing has no basis for complaint on appeal].)
Subdivision (b)(2) of section 1202.4 provides: "In setting a felony restitution fine, the court may determine the amount of the fine as the product of two hundred dollars ($200) multiplied by the number of years of imprisonment the defendant is ordered to serve, multiplied by the number of felony counts of which the defendant is convicted."
Defendant argues that the restitution fines were not expressly included as an element of the plea agreement but rather were discussed as part of the consequences of plea. However, just prior to accepting defendants pleas, the court summarized the elements of the negotiated agreement:
"THE COURT: Sir, understanding your constitutional rights, the maximum penalty, the negotiated disposition in this case, and the consequences . . . how do you plead . . . ?
"THE DEFENDANT: No contest, sir."
Defendant then entered his no contest pleas, which were accepted by the court.
This record reflects that the restitution fines were made a part of the plea agreement. Here defendant entered a plea of no contest after being advised and indicating his understanding that a state restitution fine would be imposed within a specified range of amounts. Defendant thus had notice of the existence and probable amount of the restitution fines as a part of the plea bargain. Unlike the defendant in Walker, defendant in this case was advised he would be required to pay restitution in an amount within certain specified parameters, and he stated he understood. Unlike Walker, there was no breach of the plea agreement here because the fines imposed were the exact type and amount of fines that were explained to defendant prior to the entry of his plea. Thus the fines did not exceed the punishment contemplated by the agreement.
DISPOSITION
The judgment is affirmed.
WE CONCUR: WUNDERLICH, J. MIHARA, J.