Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Ct. No. NA075823 Gary J. Ferrari, Judge.
Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Keith H. Borjon and A. Scott Hayward, Deputy Attorneys General, for Plaintiff and Respondent.
ZELON, J.
Marques Nathaniel Bradford was sentenced to state prison following his no contest plea. As part of his sentence, the court ordered him to pay fines, including a restitution fine of $1,200. Bradford challenges the imposition of the fine on appeal, contending he was advised at the plea hearing the restitution fine would be $200. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In September 2007, following his arrest by the Long Beach police officers, Bradford was charged by information with two counts of selling cocaine base (Health & Saf. Code, § 11352, subd. (a)). As sentencing enhancements, the information also alleged he had suffered one prior serious or violent felony conviction under the “Three Strikes” law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and had served two separate prison terms for a felony (§ 667.5, subd. (b)).
Statutory references are to the Penal Code unless otherwise indicated.
1. Plea Hearing
In December 2007, Bradford was assisted at the plea hearing by counsel. He entered a plea of no contest to both counts of selling cocaine base and admitted all the enhancement allegations. Bradford acknowledged his potential maximum sentence was 15 years four months, but that he would “be pleading open to the court over the People’s objection. The court will be imposing six years [in] state prison.” Bradford was advised of and waived his constitutional rights and was advised of, and acknowledged he understood, the consequences of his plea. On the subject of financial consequences, the prosecutor warned Bradford “the court is going to impose [a] restitution fine of between $200 and $10,000,” and asked Bradford whether he understood this consequence. Bradford responded, “Between how much?” The prosecutor repeated, “Between $200 and $10,000.” The trial court interjected, “It’s $200.” Bradford answered that he understood this consequence. After additional advisements, the prosecutor asked Bradford, “other than what I’ve stated here in open court, has anyone promised you anything to get you to plead no contest and admit the allegations?” Bradford answered, “No.” He also acknowledged he was pleading freely and voluntarily.
Bradford thereafter entered a plea of no contest to both counts of selling cocaine base as alleged in the information, and he admitted the truth of the enhancement allegations. The trial court accepted Bradford’s plea and admissions, made an express finding the waivers and plea were voluntary and intelligent. The court further found Bradford understood the consequences of his plea. The court found the necessary factual basis; and defense counsel joined in the waivers, plea and admissions and stipulated to a factual basis.
2. Sentencing Hearing
The sentencing hearing occurred immediately after the plea hearing. Before imposing sentence, the trial court dismissed all sentencing enhancements under Penal Code section 1385, with the exception of one prior prison term enhancement. The court then sentenced Bradford to an aggregate state prison term of six years: The upper term of five years on one count of selling cocaine base plus the one-year prior prison term enhancement, and a concurrent term of three years on the remaining count of selling cocaine base. Without defense comment or objection, the court ordered Bradford to “pay a mandatory $200 restitution fine per year.” The minute order of the sentencing hearing and the abstract of judgment reflect a $1,200 restitution fine. This appeal followed.
The trial court did not orally impose a parole revocation fine (§ 1202.45), although the minute order and abstract of judgment each reflect a $1,200 parole revocation fine was imposed and stayed. Bradford does not directly contest the imposition of this accompanying fine, but requests that it also be reduced to $200.
In his notice of appeal, Bradford requested that he be resentenced to a lower term, suggesting that he had felt pressured to enter his plea to avoid a jury trial. Bradford did not obtain a certificate of probable cause.
DISCUSSION
Whenever a defendant is convicted of a crime, Penal Code section 1202.4 requires the trial court to impose both a restitution fine (§ 1202.4, subd. (a)(3)(A)) and restitution to the crime victim(s) (§ 1202.4, subd. (a)(3)(B)). The trial court shall impose the restitution fine “unless it finds compelling and extraordinary reasons for not doing so, and states those reasons on the record.” (§ 1202.4, subds. (b) & (c).) In the absence of extraordinary reasons, a minimum fine of $200 is mandatory with a felony conviction. (§ 1202.4, subds. (b)(1), (c) & (d); People v. Hanson (2000) 23 Cal.4th 355, 362.) The amount of the restitution fine imposed is at the trial court’s discretion. (§ 1202.4, subd. (b)(1); People v. Smith (2001) 24 Cal.4th 849, 853.) “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.” (§ 1202.4, subd. (b)(2).) In the present case, as the trial court stated at sentencing, it was imposing a restitution fine in the amount of $200 multiplied by the six-years of Bradford’s state prison term or $1,200.
Bradford does not challenge his no contest plea on appeal. Instead, relying on People v. Walker (1991) 54 Cal.3d 1013 (Walker), Bradford contends the trial court violated his “plea bargain” by imposing a $1,200 restitution fine pursuant to section 1202.4, after expressly advising Bradford the restitution fine would only be $200. Bradford contends because the $1,200 restitution fine exceeded the agreed-upon amount, and the trial court failed to advise him of his right to withdraw his plea under section 1192.5 [relating to his right to withdraw his plea], he has not forfeited this issue on appeal. Bradford therefore urges this court to reduce the restitution fine (and the accompanying parole revocation fine) to the agreed-upon amount of $200.
In Walker, the defendant negotiated a plea bargain 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 punitive fine. (Walker, supra, 54 Cal.3d at pp. 1018-1019.) The trial court advised the defendant that the maximum sentence he could receive was a seven-year prison term and a penalty fine of up to $10,000. The defendant was not advised of an additional mandatory restitution fine, 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. (Id. at p. 1019.)
The Supreme Court found the trial court’s failure to advise the defendant of the mandatory restitution fine, alone, would not entitle him to a remedy. First, the defendant had forfeited the error by failing to object when the restitution fine was imposed. Second, he could not show prejudice because the $5,000 fine imposed was less than that suggested by the probation officer. (Walker, supra, 54 Cal.3d at p. 1029.) However, the additional circumstance that the defendant had entered into a plea bargain, the terms of which did not include the $5,000 restitution fine, and the trial court had failed to give the requisite section 1192.5 admonition, led the Walker court to find that defendant had not forfeited his rights by failing to interpose an objection. (Id. at pp. 1029-1030.)
That additional circumstance does not exist here. Bradford entered an open no contest plea to the court with an indicated sentence rather than negotiate a plea agreement with the prosecutor. (Liang v. Superior Court (2003) 100 Cal.App.4th 1047, 1056-1957 [An open plea is one in which the defendant is not made any promises.]; see People v. Orin (1975) 13 Cal.3d 937, 942, People v. Allan (1996) 49 Cal.App.4th 1507, 1516 [plea bargain and indicated sentence are distinctly different ways of resolving a criminal case without a trial.].) Although Walker noted while the trial court should advise the defendant of a restitution fine as a direct consequence of a guilty plea, an advisement concerning the consequences of a plea is not constitutionally mandated. (Walker, supra, 54 Cal.3d at p. 1022, accord, People v. Crandell (2007) 40 Cal.4th 1301, 1307.) As a result the challenge to the trial court’s failure to properly advise of the restitution fine is forfeited absent a timely objection, and requires the plea to be set aside only if the error is prejudicial. (Walker, at p. 1023; Crandell, at p. 1308.)
Such is the case here. Bradford has forfeited his challenge to the restitution fine by failing to interpose an objection in the trial court. At the plea hearing, when Bradford asked the prosecutor to clarify the potential range of the restitution fine, the court intervened, stating the fine would be $200. At the ensuing sentencing hearing, Bradford neither questioned nor objected to the court’s imposition of a “mandatory $200 restitution fine per year.” It would have been a simple matter for him to raise the issue before the trial court. (Walker, supra, 54 Cal.3d at p. 1023.) In any event, Bradford has failed to show he was prejudiced by the imposition of the $1,200 restitution fine. Bradford has not asserted he would not have entered a plea had he been advised of the $1,200 fine. Nor did he move to withdraw his plea when the trial court imposed the fine, and he has not contested his plea on appeal. (See People v. Glennon (1990) 225 Cal.App.3d 101, 105.)
DISPOSITION
The judgment is affirmed.
We concur: PERLUSS, P. J., JACKSON, J.