PEOPLE v. VILLALOBOS

Appellant's Petition for Review

Cal.September 29, 2009

IN THE SUPREME COURTOF THE STATE OF CALIFORNIA PEOPLEOF THE STATE OF CALIFORNIA, Plaintiff and Respondent, Court ofAppeal No. F056729 VS. Tulare County RAMIRO VILLALOBOS, Trial Court No. | VCF189886A Defendant and Petitioner. PETITION FOR REVIEW Following Affirmance of Imposition of Restitution Fine by the Fifth District of the Court ofAppeal ~ 9 7eee State of California Grace Lidia Suarez Attorney at Law SBN 67736 508 Liberty Street San Francisco CA 94114 888-825-8748 (voice and fax) gracels@electric-law.com Attorney for Appellant/Petitioner Appointed Underthe Central California Appellate Program Independent Case System TABLE OF CONTENTS TABLE OF AUTHORITIES........eeeecceccceecccceeeesnnceenececesneceseeessneeeesaeeeeesaees ii PETITION FOR REVIEW .......ccecccecsceeseeceneceeeeeesenesenseseesssesseessaeecnseessseenas 1 STATEMENTOF ISSUES...0... 0. ceceeeecesccecerereeeeeesccesesseteessseeseasenas 1 NECESSITY FOR REVIEW .000....ecceeccccesseceeccceeseecesneeesseeeesseeeessneesens 1 BRIEF IN SUPPORTOF PETITION......... ccc eecsceeeeeesceessseessseenees2 STATEMENTOF THE CASE... ccceccccceestecsseeceneceseeseeeseeesseeeeseenes2 ARGUMENTIN SUPPORT OF REVIEW.00....ccccccecsceeseeestsescseeeeees3 CONCLUSION...ecccecceceeeseeeenneeesseeneceseeesaesssessaeseaeeseaeensessseeesseceseceseenaees 5 WORD COUNTCERTIFICATE.........ccccccceccessccessneecesseeeeseeesseeeesseesaueeeesaeens6 EXHIBITA - Decision of the Court ofAppeal ..........cccccccscscesseeesnseeeeeseees7 PROOF OF SERVICE00... cceeceesseeseeesseceaeceneeeneesaneesaeeecsecaceasessaeeessseesnsesae 8 TABLE OF AUTHORITIES Cases People v. Crandell (2007) 40 Cal.4th 1301 voceeecceesseccccecceeeeeceess3-4 People v. Sorenson (2005) 125 CalApp.4th 612.........ccccccccccsceseeeeeeseeees4 People v. Villalobos (2009) CalApp.4thcescceerseeeees 3 People v. Walker (1991) 54 Cal.3d 1013 oo.cccceeseccsscessecssseeeseseaes 1,3 Statutes Penal Code section 186.22, subdivision (b)...........c:ccccsscscsesssssssssessesseeserenaes2 Penal Code section 211 oo......c.cccceecccccsescccccecssecccsesscscnsssssecscccesecsecccscuesessseseeces2 Penal Code section 664/187 ..............ccccccccesesscceesecsessesssescrceccssecseccevecsseusssecesee2 Penal Code section 1202.40... ccccccccccceececccececessecssecsssessrsessecsessecsseesecesess2 Penal Code section 1202.45 ooo... ccee ee cccccececcccceecssssecessrerstsscssessrssececsccrecuceces2 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA, No. Plaintiff and Respondent, No. F056729 Vs. Tulare County Trial Court No. RAMIRO VILLALOBOS, VCF189886A Defendant and Appellant. PETITION FOR REVIEW Petitioner respectfully requests that this Court grant review of the Court ofAppeal's affirmance ofthetrial court's imposition ofa restitution fine in the amountof $4,000. STATEMENTOF ISSUES This petition raises the question whethera restitution fine may be imposed when the amountofthe fine had not been agreedto or even mentioned during the acceptance of the negotiated plea. NECESSITY FOR REVIEW This Court should grant reviewto settle an important question of law: namely, whether People v. Walker (1991) 54 Cal.3d 1013 may properly be distinguished in the manner in which the Court ofAppealdidin this case so as to allow a court to imposea restitution fine in an amount not mentioned or agreed upon during the plea negotiations. BRIEF IN SUPPORT OF PETITION STATEMENT OF THE CASE Appellant entered a no-contest plea to violating Penal Code section 664/187 (attempted murder) and to violating Penal Code section 211. (CT 1:214-215.) He also admitted the Penal Code section 186.22, subdivision (b)(1)(C) allegation attached to Count 1. (CT 1:215; 217.) Appellant agreed to a stipulated sentence of 17 years. (CT 1:194-195.) Appellant was sentenced in accordance with the terms ofthe plea. However, appellant was also ordered to pay a restitution fine pursuant to Penal Code section 1202.4 in the amountof $4,000, and a similar parole revocation find under Penal Codesection 1202.45, thelatter stayed. (RT 1:7.) The fines had not been mentioned during the plea colloquy. The court simply advised appellant if he "under[stood] that as a result of the your plea, you may be required to pay restitution." The court also asked appellant, "Other than what I have told you regarding the consequencesofyourplea, has anyone threatened you or promised you anything today toenter into this plea." Appellant replied "No." No further advisements were given. (Exhibit A, decision of the Court ofAppeal, p. 3.) ARGUMENTIN SUPPORT OF REVIEW In its decision (People v. Villalobos (2009) __Cal.App.4th __,) the Court ofAppeal stated that it was publishing it to "illustrate the application of Walker in light of our Supreme Court's most recent discussion of the issue in People v. Crandell (2007) 40 Cal.4th 1301." (Villalobos, supra, slip opn. at p. 2; citing to People v. Walker, supra, 54 Cal.3d 1013.) The court concludedthat "the important question is whether the parties actually negotiated and settled upon the issueor left it to the discretion of the court,” citing to Crandell, supra, 40 Cal.4th at p. 1309. The court concluded that the agreement Villalobos entered into left the fines to the discretion of the court. (Villalobos, supra, slip opn. at pp. 7-8.) The court distinguished Walker: Though the plea agreement in Walker also made no mention ofrestitution fines, the court here provided additional advisements to Villalobos. Further, Villalobos was asked whether anyone had made any other promises concerninghis plea. In Walker, there was no such advisement. While Walker reasonably could have understood the plea agreementto indicate that no fine would be imposed, Villalobos was expressly told that he may haveto payrestitution. He has pointed to nothing in the record that would support a reasonable belief on his part that restitution fines were barred by the plea agreementrather than left within the trial court's discretion. (Villalobos, supra, slip opn.at p. 9.) The appellate court acknowledged that the trial court referred to restitution, that restitution fines were different, and governed by different standards. However, the court of appeal concluded that courts are not required to give a "detailed lecture on criminal procedureasit pertains to all the various dispositional devices available," (quoting People v. Sorenson (2005) 125 Cal.App.4th 612, 621). (Villalobos, supra, slip opn.at p. 8, internal quotations omitted.) The appellate court repeated this Court's admonition in Walker about the importance of giving a full advisement on the applicable restitution fines.! The distinction drawn between Walker and Crandellis not only incorrect, it is confusing. This Court should grant review to draw a clear line and to require, not just suggest, that trial courts makerestitution fines a part ofnegotiated dispositions, and if they are not mentionedin the colloquy, they may not be imposed above the minimum.The distinction the court of appeal drew in this case will create confusion and spawn yet more litigation. A negotiated disposition is a contract. In a contract, a party is not allowed to add conditions not discussed or agreed to. The same should hold for plea bargains. 1 Advice which obviously the trial court in this case ignored. 4 CONCLUSION For the above-stated reasons, petitioner respectfully requests that this Court grant review. DATED: Respectfully submitted GRACE LIDIA SUAREZ Attorney at Law Counsel for Appellant/Petitioner WORD COUNT CERTIFICATE I certify that this document was formatted using Times New Roman 13-point type and contains 1,278 words, as computed by Apple Pages. Grace Lidia Suarez. EXHIBITA- Decision of the Court ofAppeal __ COURT OF APFIFTH APPELLAT: efpicT AUG 2 & 7309 CERTIFED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT THE PEOPLE, F056729 Plaintiff and Respondent, (Super. Ct. No. VCF189886a) Vv. RAMIRO VILLALOBOS, OPINION Defendant and Appellant. APPEALfrom a judgment ofthe Superior Court of Tulare County. Kathryn T. Montejano, Judge. Grace Lidia Suarez, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown,Jr., Attomey General, MichaelP. Farrell, Assistant Attomey General, Charles A. French and Galen N. Farris, Deputy Attorneys General, for Plaintiff and Respondent. -0oQ0o00- In return for a reduced sentence, defendant Ramiro Villalobospled no contest to charges of attempted premeditated murder and seconddegree robbery. At sentencing, the court imposed a $4,000restitution fine and a $4,000parole revocation fine. On appeal, Villalobos argues the fines violated his plea agreement. Our Supreme Courtfirst examinedthe issue of fines added at sentencing to a plea-bargained sentence in People vy. Walker (1991) 54 Cal.3d 1013 (Walker). We publish to illustrate the application of Walkerin light of our Supreme Court’s most recent discussion ofthe issue in People v. Crandell (2007) 40 Cal.4th 1301 (Crandell). So far as the record discloses, fines were not a subject ofthe parties’ bargaining in this case, and the plea agreementleft the issue of fines to the court’s discretion. We affirm thefines. Villalobos also appeals the concurrent gang enhancementsentence addedto his sentence for second degree robbery. Because Villalobos never admitted the truth ofthe enhancementallegation forthat count, we reverse this part of the sentence. PROCEDURAL AND FACTUAL HISTORIES Villalobos was charged in a three-countinformation alleging attempted premeditated murder, assault with a deadly weapon, and second degree robbery. All three counts included enhancements. ! The chargesarose out ofa brutal incident involving rival street gangs. The victim was a 16-year-old admitted gang member who was cornered and attacked by four orfive opposing gang members. The victim was stabbed 17 times, one wound causing a collapsed lung. The attackers also stole the victim’s shoes. Villalobos admitted taking part and stabbing the victim five or six times but claimed self defense. Pursuantto a plea agreement, Villalobos pled no contest to attempted murder and second degree robbery. He also pled no contest to the street-gang enhancementon the attempted murder charge. All other allegations were dismissed. Villalobos would serve 1The enhancements alleged he had personally inflicted great bodily injury (Pen. Code, § 12022.7, subd. (a)), used a deadly and dangerous weapon(Pen. Code, § 12022, subd. (b)(1)), and committed each offense for the benefit of a criminalstreet gang (Pen. Code, §§ 186.22, subd. (b)(1)(C), 186.30, subd. (a)). 17 years in state prison. Asfar as the record reveals, Villalobos did not sign a written change-of-plea form. Atthe plea hearing, the People informed the court of the agreement. The People then added,“there are obviously the advisements. This is going to be a plea regarding gangregistration andrestitution, [a] strike and the deportation consequences pursuantto 186.30.” The court responded, “Those will definitely be all incorporated.” The court asked Villalobos whether he understood the maximumprisonsentenceto be 15 years to life. Villalobos said he understood. The court then asked whetherhe agreed to a term of 17 years. Villalobos said he understood. The court advised Villalobos of other consequencesofhis plea, including possible immigration consequencesand the possibility that the plea would establish a parole or probation violation. Villalobos said he understood each advisement. The court asked if he “under[stood] that as a result of your plea, you may be required to payrestitution.” Villalobos responded, “Yes, ma’am.” The court asked Villalobos, “Other than whatI have told you regarding the consequences of your plea, has anyonethreatened you or promised you anything todayto enterinto this plea.” Villalobos responded, “No.” Villalobos waived his constitutional rights. He was given no further advisements. For count one (attempted murder), Villalobos was sentenced to serve the middle term ofseven years, plus.a consecutive term of !0 years for the street-gang enhancement, for a total of 17 years. For count three (robbery), he was sentenced to serve the middle term of three years, and 10 years for the gang enhancement, for a total of 13 years to run concurrently with count one. Following the recommendation of the probation department, the court ordered Villalobos to pay a $4,000 restitution fine pursuant to Penal Code?section 1202.4 and a $4,000 parole revocation fine pursuantto section 1202.45; 2All subsequentstatutory references are to the Penal Code. the latter wassuspended. The court ordered the victim restitution to remain open pending any future medical or counseling expenses. Villalobos did not make any objections. DISCUSSION Villalobos contends that the concurrent 10-year gang enhancementon countthree should bestricken. The People concedethis issue and we accept the concession. A sentence enhancementis “‘an additional term of imprisonment added tothe base term” and, as such, must be admitted in open court or found true by trieroffact before a defendant can be sentenced. (Robert L. v. Superior Court (2003) 30 Cal.4th 894, 898, quoting Cal. Rules of Court, rule 4.405, subd. (c); § 1170.1, subd. (e).) Villalobos never admitted the gang-enhancementallegation of count three anda trier of fact never found the allegation true. Villalobos also argues that the $4,000 restitution fine and the $4,000 parole revocation fine violated the plea agreement. Pursuant to People v. Walker, supra, 54 Cal.3d 1013, he asksus to reduceboth fines to the statutory minimum of$200. Section 1202.4 requires a convicted criminal to pay both a restitution fine (subd.(a)(3)(A)) andrestitution to the victim (subd. (a)(3)(B)). With a felony conviction, the “restitution fine shall be set at the discretion of the court” and shallbe at least $200 and not more than $10,000. (§ 1204.4, subd. (b)(1).) Section 1202.45 requires a parole revocationfine “in every case where a personis convicted of crime and whosesentence includesa period ofparole.” This fine must be in the same amountastherestitution fine. (/bid.) In Walker, supra, 54 Cal.3d 1013, the trial court imposed a restitution fine after a defendantpled guilty pursuant to a plea agreementthat did not mentionrestitution. (/d. at p. 1019.) Thetrial court advised Walkerthat he faced up.to seven years in prison and a fine of up to $10,000. A “probation report prepared before the plea, and supplied to the defense, recommendeda $7,000 restitution fine ....” (/bid.) There was no other mention of the fine prior to sentencing. Walker was sentencedto five years in prison and ordered to pay a $5,000 restitution fine. At sentencing, Walker did not objectto the fine. (/bid.) Walker explained that “two related but distinct legal principles” are implicated whena defendantenters into a plea agreement and then challenges a fine imposed by the sentencing court. (Walker, supra, 54 Cal.3d at p. 1020.) First, there is a “judicially declared rule of criminal procedure’”that, before a plea, a defendant must be advised “of the direct consequencesofthe plea.” (Jd. at pp. 1020, 1022.) This advisementis separate from and in addition to the advisementofconstitutional rights. (Jd. at p. 1022.) Walker held that a “possible $10,000 restitution fine constitutes such a direct consequence.” (/bid.) The trial court should have advised Walker of the minimum and maximum amounts of fines that would be imposed.? (/bid.) However, he waived the issue on appeal by failing to object to the fine before sentencing. (/d. at p. 1023.) The second principle requires“that the parties must adhere to the terms ofa plea bargain.” (Walker, supra, 54 Cal.3d at p. 1020.) “The punishment maynotsignificantly exceed that which the parties agreed upon.” (/d. at p. 1024; § 1192.5.) The court held that a restitution fine “qualifies as punishmentfor this purpose.” (Walker, supra, at p. 1024.) An argumentthata fine violated a plea agreementis forfeited whenthetrial court gives a section 1192.5 admonition and the defendant does not withdraw his plea or object at sentencing. (Walker, supra, 54 Cal.3d at p. 1026.) This is an admonition, given by the court before the changeofpleais accepted, that the court’s acceptanceofthe plea agreementis not binding, that the court may withdraw its approval of the agreement before sentencing, and that if it does, the defendant may withdraw the plea. Walker did “Thetrial court only advised the defendantthat a $10,000 fine was a possible consequenceofthe guilty plea. This was inadequate. The court should have advised defendantthere was a possible $10,000 penalty fine and a mandatoryrestitution fine of between $100 and $10,000.” (Walker, supra, 54 Cal.3d at p. 1029.) not receive a section 1192.5 advisement, so his failure to object did not waive his claim that the fine violated the agreement. Walker held that the fine violated the agreement. (Walker, supra, 54 Cal.3d at pp. 1029-1130) As the Supreme Court later explained in Jn re Moser (1993) 6 Cal.4th 342, 356, “the defendant in [Walker] reasonably could have understood the negotiated plea agreementto signify that no substantial fine would be imposed.” The Supreme Court again addressedthe imposition ofrestitution fines in a plea- bargain case inCrandell, supra, 40 Cal-4th 1301. In Crandell, the defendant and the People entered into a plea agreement only encompassing possible prison sentencing. (/d. at p. 1305.) The agreement made no mentionofrestitution or restitution fines. At the plea hearing, the court advised the defendantof the various consequencesofhis plea, including possiblestate prison time. The court also “warned defendant he would ‘have to pay a restitution fundfine of a minimum of$200, a maximum of $10,000.” (/bid.) The trial court further notified the defendant that it could impose a general fundfine of up to $10,000. Crandell stated he understood. After making further advisements, the court asked Crandell whether “‘anyone made any promises to you other than whatI promised you here today in open court?’” Crandell answered “‘No, ma’am,’” andhe acknowledged he wasentering a plea “freely and voluntarily.” (/bid.) Thetrial court did not provide a section 1192.5 advisement. (/d. at p. 1306.) Crandell was sentenced to prison in accordancewith the plea agreement. (Crandell, supra, 40 Cal.4th at p. 1306.) The court ordered him to pay a $2,600 restitution fine and a $2,600 parole revocation fine. He did not object to the fines. (/bid.) In Crandell, the only issue was whetherthe restitution fines violated the plea agreement. (Crandell, supra, 40 Cal.4th at p. 1308.) Expounding upon Walker, the court found “‘that the core question in every case is ... whether the restitution fine was actually negotiated and made part ofthe plea agreement, or whetherit wasleft to the discretion of the court.”” (/d. at p. 1309.) If it was negotiated, imposing a fine contrary to the terms violates the agreement, and defendantis entitled to a remedy. (/bid.) As Walker expressed, the remedyis to reducethe fine to the statutory minimum. (Crandell, supra, at p. 1308.) Crandell found no violation of the plea agreement. (Crandell, supra, 40 Cal.4th at p. 1309.) The record demonstrated that the parties intended to leave the issue ofthe fine to the discretion of the court. Thetrial court advised Crandell he wouldhave to pay a restitution fund fine of a minimum of $200 and a maximum of $10,000. (/bid.) The court also asked if the People had made “‘any other promises’” beyondthe prison term sentence. (/bid.) The court distinguished Walker, where “the court advised the defendant only that the “maximum penalties provided by law””’for his offense included ‘“‘a fine of up to $10,000’”and obtained noassurance thatthe parties intended their plea bargain to leave the amountofthe restitution fine to the court’s discretion.” (Crandell, supra, at p. 1310, quoting Walker, supra, 54 Cal.3d at pp. 1018-1019.) While Walker could reasonably have understoodthat no substantial fine would be imposed, Crandell could not because he wastold that he would pay restitution. (Crandell, supra, at p. 1310.) With Walker and Crandell in mind, we tum to Villalobos’s contentions. He argues that the court’s advisement as to the consequencesofhis plea was insufficient. Thatis, the court should have admonished Villalobos ofthe statutory minimum $200 and maximum $10,000 restitution fine as one of the consequencesof his plea. We agree (see Walker, supra, 54 Cal.3d at pp. 1020-1022), but the omission does notentitle him to a remedy, as he concedes. The claim oferror was forfeited when Villalobos failed to object before sentencing. Villalobos also contendsthat the imposition of the two $4,000 fines violated the plea agreement. As a remedy, he asks for a reduction ofboth to the statutory minimum of $200. His self-described “bottom line” argumentis that, because the fines were not mentionedin the plea bargain, their imposition violated the agreement. Wedisagree. The important question is whether the parties actually negotiated and settled upon the 7. issueorleft it to the discretion of the court. (Crandell, supra, 40 Cal.4th at p. 1309.) As we explain, the fines were left to the discretion ofthe court. Asa preliminary matter, it is worth pointing outthat, if the trial court had given Villalobos a section 1192.5 advisement, the issue he nowraises on appeal would have been waived by his failure to object. (Walker, supra, 54 Cal.3d at p. 1026.) Because there was no advisement, the issue can beraisedfor thefirst time on appeal, (7d. at p. 1025.) Neitherfine violated the bargain. Nothing in the recordindicates that the parties bargained or agreed on any terms regarding fines. To the contrary, the record supports the conclusion that there was no such bargaining or agreement. Askedto state the terms of the plea, the People only mentioned the prison sentence. Neither party spoke upto clarify any portion of the agreement. Neither party claimedthe People had omitted provisions of the bargain. Villalobos did not claim that the fines recommendedin the probation report conflicted with the terms of the agreement. Furthermore, the court expressly asked Villalobos, “Other than what | have told you regarding the consequences of your plea, has anyone threatened you or promised you anything today to enterinto this plea.” Villalobos responded, “No.” In addition, the court asked Villalobosif he “under[stood] that as a result of your plea, you may be requiredto payrestitution.” Villalobos responded, “Yes, ma’am.” Villalobos asserts that, because the court referred to restitution rather than restitution fines, our analysis should change. We disagree. Heis correct that restitution to the victim andrestitution fines are different and their imposition is governed by different standards (§ 1202.4, subds. (a)(3)(B), (a)(3)(A), (b), (c)), but courts are not required to give a “‘detailed lecture on criminal procedure asit pertains to all the various dispositional devices available.’” (People v. Sorenson (2005) 125 Cal.App.4th 612, 621.) This case is distinguishable from Wa/ker. Though the plea agreement in Walker also made no mentionofrestitution fines, the court here provided additional advisements to Villalobos. Further, Villalobos was asked whether anyone had madeanyother promises concerning his plea. In Walker, there was no such advisement. While Walker reasonably could have understood the plea agreementto indicate that no fine would be imposed, Villalobos was expressly told that he may haveto payrestitution. He has pointed to nothingin the record that would support a reasonablebelief on his part that restitution fines were barred by the plea agreementrather than left within thetrial court’s discretion. Although there is no reversible error in this case on the issue of fines, the Supreme Court’s guidanceonthis recurring problem bears repeating: “Courts and the parties should take care to considerrestitution fines during the plea negotiations. The court should always admonish the defendantof the statutory minimum [$200] and maximum $10,000 restitution fine as one of the consequences of any guilty plea, and should give the section 1192.5 admonition wheneverrequired bythatstatute.” (Walker, supra, 54 Cal.3d at p. 1030.) The Supreme Court also “encourage[d] trial courts either to require that defendants sign a written change ofplea form specifyingall significant elements of the plea or, when orally taking pleas, follow an informal‘script’ that calls upon the parties to disclose all such for the record.” (Crandell, supra, 40 Cal.4th at p. 1310.) Following this advicewill avoid the needless creation of appealable issues in this area. DISPOSITION The concurrent 10-year sentence for the enhancement on countthree is reversed. The trial court is directed to prepare an amended abstract ofjudgment and forward it to the appropmiate authorities. The judgmentis affirmedin all other respects. Wiseman,Acting P.J. WE CONCUR: CTacercnn: Dawson, J. thi Hill, J. 10. PROOF OF SERVICE I, Grace L. Suarez, say that I am over 18 years of age and not a party to the above action. My business address is 508 Liberty Street, San Francisco, California 94114. On , , | served the attached on the following by placing true copies in a sealed envelope with postage fully paid, in the United States Mail at San Francisco, California, addressed as follows: Ramiro Villalobos Attorney General's Office PO Box 944255 Sacramento CA 94244-2550 Central California Appellate Program Tulare County Superior Court 2407 J. Street, Ste. 301 221 S. Mooney Blvd. Sacramento CA 95816-4736 Visalia CA 93291 Court ofAppeal of the State of California Tulare County District Attorney Fifth Appellate District 121 S. Mooney Blvd. Rm 224 2424 Ventura St Visalia CA 93291 Fresno CA 93721-3004 I declare under penalty of perjury that the foregoing is true and correct. Executed on ; at San Francisco, California. Grace Lidia Suarez,