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Super. Ct. No. C158433)
Defendant Jessie Taylor pleaded no contest to attempted second degree robbery (Pen. Code, §§ 211, 212.5, 664), as a lesser included offense of second degree robbery, and he admitted he had served a prior prison term. At sentencing, the trial court imposed an aggregate sentence of four years in state prison, and a hearing was scheduled to determine the amount of restitution to be paid to the robbery victim. After a hearing, the trial court ordered Taylor to pay $3,700 in restitution to the robbery victim. Taylor appeals only from the victim restitution order. We affirm.
All further unspecified statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
The facts are taken from the preliminary hearing transcript and the probation report. On June 16, 2006, in an Oakland check cashing store, Russ Daniels was at a cashier's window to make a $3,700 payment through Western Union. At the same time, Taylor was present at another cashier's window. Daniels gave his cash, a transaction slip, and his identification to the cashier under a bulletproof glass slot. The cashier kept the transaction slip and identification, but the cash was "pushed back under the glass" to Daniels. Daniels covered the cash with his hands. Taylor then punched Daniels in his eye, causing Daniels to black out and fall to the ground. Taylor grabbed Daniels's cash and ran out the door. Taylor left behind his identification, and was ultimately arrested for robbing Daniels. After a preliminary hearing on May 6 and 7, 2008, the District Attorney filed an information charging Taylor with robbery in the second degree, and alleging Taylor had served two prior prison terms. Taylor initially pleaded not guilty.
At a change of plea hearing on July 29, 2009, the prosecutor described the "complete disposition terms and sentence" as follows: "The defendant is going to be pleading to a lesser included of Count 1 in the Information attempted 211 in violation of the California Penal Code. [¶] He is going to receive the aggravated term in that plea for a total of three years for that. And then he is going to be admitting his second prior in the Information, which is . . . attempted [section] 487[, subd.] (c), which is a prison prior. He will receive another year for that for a total of four years' State Prison. [¶] We will strike the first prior conviction in lieu of his plea in this case, and in addition to that, the defendant will have to submit a DNA sample pursuant to [section] 296 of the Penal Code and pay a restitution fund fine." The trial court added: "He also will have a parole violation revocation fine in the same amount as the restitution fund fine [im]posed, but stayed on the condition you don't violate your parole. If you don't violate parole, you will never have to pay that fine. Further, there will be a court security fee that will be imposed. Typically it is about $30 for each one count. . . ." After confirming that Taylor agreed to the disposition as articulated on the record, the trial court informed Taylor that if the trial court did not agree with the terms of the plea at the time of sentencing, Taylor would be allowed to withdraw his plea. In pertinent part, the trial court also advised Taylor of the following direct consequences of his plea: "One is the law requires anybody convicted of a felony must pay certain fines. By law you have to pay a restitution fund fine. It is a fine that is imposed for anyone convicted of a crime in our state and it goes into a fund for victims of crime here in the State of California. The amount of the fine can be anywhere between $200 and $10,000. The exact amount will be set by the sentencing judge in his or her discretion at the time of the sentencing. . . . It will be your obligation to pay that fine." The trial court continued: "[T]he law requires that we impose, because you are going to be placed on parole, anticipated at some point in the future, that I impose a parole violation revocation fine in the same amount as the restitution fund fine. That fine will be stayed, however, on the condition that you do not violate parole. If you don't violate parole, you never have to pay that fine. If you violate parole, then the stay is lifted and you have to pay that fine. [¶] . . . [¶] The only other fine that might be applicable in this case, aside from a probation investigation fee, is a court security fee. The law requires that we impose a court security fee for anyone who is convicted of a crime. And that fee is $30, usually, for every count. You have one count, so it [is] likely that it only would be $30. In any event, there will be a court security fee imposed, and it will be your obligation to pay it." Taylor indicated he understood and agreed to the court's advisements regarding the consequences of his plea. Additionally, Taylor admitted that no one had made any promises to him "except what we have said here in court and on the record today."
Before sentencing, the probation department submitted a report stating that the terms of the plea agreement were that Taylor was to receive a sentence of four years in state prison, submit DNA samples, and pay a restitution fund fine. The report noted the robbery victim had incurred a loss of $3,700, which was taken by Taylor. The probation officer recommended, in pertinent part, imposition of a restitution fine in the sum of $800 (§ 1202.4, subd. (b)(1)), a suspended parole revocation fine in the sum of $800 (§ 1202.45), and that "restitution [should] be reserved and to be determined."
At the sentencing hearing, the trial court initially denied Taylor's motion to withdraw his plea based on his claim that both his defense counsel and the trial court had coerced and pressured him to enter a plea and forego his right to a jury trial. In response to the trial court's further inquiries, defense counsel indicated he had received and reviewed the probation officer's report, and he had no comments, recommendations, or additional evidence relating to sentencing to offer at that time. The trial court imposed the agreed term of imprisonment, and directed the payment of various fines, including an $800 restitution fund fine, and an $800 suspended parole violation restitution fund fine. As to the matter of victim restitution, the trial court stated: "Restitution in this case is requested by the complaining witness in the sum of $3,700. You have two choices, Mr. Taylor. You can either agree to pay that amount or [the court] can set a hearing at which time you could present evidence as well, but the Court listens to evidence to determine what amount of money, if any, should be paid." Taylor indicated he wanted a hearing on the matter of victim restitution.
On July 23, 2010, the trial court held a hearing on the amount of victim restitution. The trial court noted the prosecution was requesting an award of $3,700 based on the victim's testimony at the preliminary hearing. The trial court asked the prosecutor to respond to "the argument" that Taylor pleaded guilty to an attempted robbery and therefore "how can there be a loss." The prosecutor replied that regardless of the plea, the elements of "mental state," and "intent to deprive permanently," were the same for both the dismissed robbery offense and the admitted attempted robbery offense, and the victim had been deprived of his property as a consequence of Taylor's criminal conduct. In opposition, defense counsel argued that Taylor had "pled to an attempted robbery. According to the sentencing transcript and the change of plea transcript, there was no Harvey waiver as to dismiss[ed] counts or pled to conduct. [¶] . . . He's been sent to state prison. [¶] . . . [He] was never told he had to pay restitution at the change of plea." The trial court ordered Taylor to pay $3,700 to the robbery victim based on the evidence before the trial court, and the trial court reserved the right to order further restitution. Taylor timely appealed the victim restitution order.
In People v. Harvey (1979) 25 Cal.3d 754, our Supreme Court held that in the absence of an agreement to the contrary, a plea agreement including the dismissal of a count contains "the understanding (in the absence of any contrary agreement) that defendant will suffer no adverse consequences by reason of the facts underlying, and solely pertaining to, the dismissed count." (Id. at p. 758.) However, in this case there was no need for a Harvey waiver because the dismissed count (second degree robbery) was "transactionally related" to the attempted second degree robbery offense to which Taylor pleaded no contest. (Id. at p. 758; see People v. Gaskill (1980) 110 Cal.App.3d 1, 3-5 [no Harvey error where defendant pleaded guilty to possession of illegal gun in exchange for dismissal of assault with a deadly weapon charge and court imposed upper term based in part on dismissed assault charge].)
"A trial court's obligation to order payment of restitution to victims of crime derives from article I, section 28, subdivision (b), of the California Constitution which states: 'Restitution shall be ordered from the convicted persons in every case, regardless of the sentence or disposition imposed, in which a crime victim suffers a loss, unless compelling and extraordinary reasons exist to the contrary.' Section 1202.4, implements this directive in a nonprobationary case. It states the legislative intent 'that a victim of crime who incurs any economic loss as a result of the commission of a crime shall receive restitution directly from any defendant convicted of that crime.' (§ 1202.4, subd. (a)(1).)" (People v. Moloy (2000) 84 Cal.App.4th 257, 259-260, fn. omitted.)
Taylor argues a victim restitution order was foreclosed because he was convicted of attempted robbery—not robbery—and therefore it cannot be said the robbery victim's loss of $3,700 was a direct consequence of Taylor's conviction for attempted robbery. We disagree. There can be no question that the robbery victim in this case was the object of the criminal offense of attempted second degree robbery to which Taylor pleaded no contest. (See People v. Crow (1993) 6 Cal.4th 952, 957 ["[a] 'victim' is a 'person who is the object of a crime . . . .' (Black's Law Dict. (5th ed. 1979) p. 1405, col. 2.)"].) If not for Taylor's admitted attempt to rob the victim, the victim would not have lost $3,700. Consequently, the criminal conduct for which Taylor was convicted did cause the loss for which compensation was sought by the robbery victim. (Cf. People v. Woods (2008) 161 Cal.App.4th 1045, 1052-1053 [defendant convicted of being accessory after the fact held not liable for restitution because loss was sustained before defendant's participation in criminal conduct].) Victim restitution was properly awarded here because "some action" of Taylor's "giving rise to the dismissed count" of second degree robbery "was also involved in the admitted" offense of attempted second degree robbery. (People v. Beagle (2004) 125 Cal.App.4th 415, 421.) The cases cited by Taylor are factually distinguishable and do not support his argument that the trial court was not authorized to award victim restitution to the robbery victim in this case.
We also see no reason to grant any relief based on Taylor's arguments that the trial court failed to advise of the required victim restitution at the time of the change of plea hearing, and that the trial court "inadvertently" breached the plea agreement by awarding victim restitution. Taylor's arguments require us to consider "two related but distinct legal principles. [Citation.] [¶] The first principle concerns the necessary advisements whenever a defendant pleads guilty, whether or not the guilty plea is part of a plea bargain. The defendant must be admonished of and waive his constitutional rights. [Citations.] In addition, and pertinent to this case, the defendant must be advised of the direct consequences of the plea. [Citation.] [¶] The second principle is that the parties must adhere to the terms of a plea bargain. [Citation.] [¶] In any given case, there may be a violation of the advisement requirement, or the plea bargain, or of both. Although these possible violations are related, they must be analyzed separately, for the nature of the rights involved and the consequences of a violation differ substantially. Indeed, much of the confusion engendered by the appellate decisions on this issue results from a blurring of the distinction between these principles." (People v. Walker (1991) 54 Cal.3d 1013, 1019-1020 (Walker).) Accordingly, we first address whether the trial court's failure to advise of victim restitution constitutes a violation of the obligation to advise Taylor of the direct consequences of his no contest plea, and if so, whether such a violation entitles him to relief. Thereafter, we will consider the separate question of whether the victim restitution order constituted a violation of the plea agreement for which Taylor is entitled to relief.
We agree with Taylor that the trial court should have advised him that his no contest plea to attempted second degree robbery would require him to pay restitution to the robbery victim as well as a restitution fund fine. (See People v. Valdez (1994) 24 Cal.App.4th 1194, 1201-1202, 1203 (Valdez);see also Walker, supra, 51 Cal.3d at p. 1022.) However, Taylor has failed to demonstrate prejudice from the omitted advisement. Taylor asserts that "[i]n light of [his] motion to withdraw his plea before any indication of victim restitution," it is reasonably probable he would not have entered a no contest plea if properly advised on the issue of victim restitution. We disagree. After Taylor unsuccessfully attempted to withdraw his plea on other grounds, he made no attempt to renew his motion to withdraw his plea after the trial court announced it would impose an award of victim restitution. While Taylor mentioned at the hearing on the amount of victim restitution that he had not been advised of such restitution, he did not claim this omission affected his decision to plead no contest and he did not move to withdraw his plea on that ground. Thus, the record suggests defendant did not consider victim restitution significant in the context of his plea agreement. "[T]he prosecution never . . . had an opportunity to contest the assertion made by [Taylor] on appeal, and the trial court had no occasion to pass upon the veracity of [Taylor's] present claim" that he would not have entered a plea if he had been advised of the required obligation to pay victim restitution. (People v. McClellan (1993) 6 Cal.4th 367, 378 (McClellan).)We therefore see no reason to grant Taylor any relief based on the trial court's failure to advise him of the required obligation to pay victim restitution.
Taylor's argument that the victim restitution order breached the plea agreement is not properly before us. At the change of plea hearing, Taylor was advised of his right to withdraw his plea if the trial court imposed punishment in excess of the plea agreement. At sentencing when the trial court indicated it would order victim restitution, Taylor did not object that such restitution would violate the plea agreement. At the later hearing on the amount of victim restitution, Taylor complained he had not previously been told he would have to pay restitution. However, he did not contend victim restitution violated his plea agreement and he did not move to withdraw his plea on that ground at that time. Having advised Taylor of his right to withdraw his plea if the trial court did not impose the promised sentence, the trial court was not required to re-advise Taylor of his options or specifically afford him the opportunity to withdraw his plea at sentencing or the later hearing on the amount of victim restitution. (People v. Murray (1995) 32 Cal.App.4th 1539, 1546.) Consequently, we conclude Taylor forfeited his appellate claim that victim restitution violated the plea agreement. (See Walker, supra, 54 Cal.3d at p. 1026.)
Even if the issue was properly before us, we see no merit to Taylor's contention that victim restitution violated the plea agreement. Concededly, "when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled." (Santobello v. New York (1971) 404 U.S. 257, 262.) However, contrary to Taylor's contention, the trial court's statements at the change of plea hearing did not indicate that Taylor would not have to pay victim restitution. Taylor acknowledged that no promises had been made other than those promises "said here in court and on the record today." Those promises, which included the imposition of certain statutory fines, "did not circumscribe the mandatory duty of the trial court to order [Taylor] to pay victim restitution." (Valdez, supra, 24 Cal.App.4th at p. 1203.) The trial court's failure to mention victim restitution "did not transform the court's error into a term of the parties' plea agreement" precluding victim restitution. (McClellan, supra, 6 Cal.4th at p. 379.) Nothing in this record indicates that Taylor could have understood the trial court's statements as "an element of the parties' plea negotiations and resulting agreement so as to render imposition of [victim restitution] . . . a violation of the plea agreement." (In re Moser (1993) 6 Cal.4th 342, 356.)
In sum, we conclude the trial court should have advised Taylor that his no contest plea to attempted second degree robbery would require him to pay both victim restitution and a separate restitution fund fine. However, Taylor is not entitled to any relief because victim restitution was authorized, the record does not demonstrate he suffered any prejudice resulting from the omitted advisement of victim restitution, and victim restitution did not violate the plea agreement.
The judgment is affirmed.