Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. Miriam I. Morton, No. FBA800241, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Scott Pactor, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton, A. Natasha Cortina, and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI, J.
Pursuant to a plea agreement, defendant Kennith Blaine Harrelson pled guilty to one count of residential burglary (Pen. Code, § 459); in return, the remaining allegations were dismissed, and defendant was sentenced to six years in state prison. On appeal, defendant contends the sentencing court violated the terms of his plea agreement by imposing $660 as the victim restitution fine rather than $220 as agreed upon. We reject this contention and affirm the judgment.
I
The factual background is taken from the stipulation of the parties entered at the time of defendant’s plea.
On April 5, 2008, defendant and his brother committed a first degree residential burglary when they entered the home of Thomas Grisham with the intent to commit larceny and did commit larceny.
II
DISCUSSION
On April 15, 2008, defendant and the prosecution reached a plea agreement. The trial court thereafter went over the plea form with defendant. In pertinent part, the form indicated the following agreement: “Impose the aggravated sentence of 6 yrs. State Prison. Credits... forthwith and concurrent w/ any other sentence. Dismiss remaining counts & S/A. $200 VRF. Negative Motor Vehicle. Actual Restitution.” (Italics added.)
The plea form also had an initialed section pertaining to restitution fine as follows: “I understand that in addition to any other punishment, I shall be required to pay a mandatory restitution fine of not less than $200 nor greater than $10,000....”
After noting that defendant had signed and initialed a three-page plea form, the trial court and defendant engaged in the following colloquy:
“THE COURT: Did you initial and sign these documents only after reviewing them and reading them fully?
“THE DEFENDANT: Yes, your Honor.
“THE COURT: And making sure you understood everything that was on the documents?
“THE DEFENDANT: Yes, your Honor.
“THE COURT: Did you have enough time to talk to your attorney about everything on this document?
“THE DEFENDANT: Yes, your Honor.
“THE COURT: You need more time to speak to your attorney about it?
“THE DEFENDANT: No, your Honor.”
The court then inquired if defendant understood his constitutional rights and “other rights described on the form....” Defendant responded in the affirmative. The court went over each of defendant’s constitutional rights and confirmed defendant’s waiver of those rights. It also summarized the plea agreement as follows, in pertinent part, “My understanding... of your plea agreement is that you are going to serve the aggravated sentence for Count 1, first degree burglary, which is six years in state prison.... [T]hat... you have a $200 victim restitution fine, plus a ten percent collection fee for a total of $220... and you’ll actual restitution in an amount to be determined.” Defendant indicated that he understood the plea agreement.
Pursuant to the plea agreement, the trial court then proceeded immediately to sentencing. Regarding the victim restitution fine the following colloquy occurred:
“THE COURT: Court orders the victim restitution fine in the amount of $220. Counsel, how did you come up with the $200 fee for [defendant]?
“[DEFENSE COUNSEL]: My understanding is it’s $200 VRF fine, and it’s normally imposed collected through
“THE COURT: $200 is for two years or less commitment. This is for a six-year commitment.
“[DEFENSE COUNSEL]: I’m just saying that’s what we agreed to. Nobody said anything earlier. That was just we indicated on the form, and it was agreed to.
“THE COURT: Victim restitution fines are mandatory. The standard is $220 pursuant to Penal Code section 1202.4. And at least in this county, the standard countywide is to add an additional $100 per year. This is a six-year term. That would make this $600 standard victim restitution fine.
“[DEFENSE COUNSEL]: Let me inquire on the record, if I could. [¶] Do you understand what the judge is saying, [defendant]?
“[DEFENDANT]: Yeah. [¶]... [¶]
“[DEFENSE COUNSEL]: $660. [¶] Do you agree to the imposition of that fine as opposed to what we wrote on the form?
“[DEFENDANT]: Yes. I guess we don’t have a choice.
“[DEFENSE COUNSEL]: Do you agree with that?
“[DEFENDANT]: Yes.
“[DEFENSE COUNSEL]: Join.”
The trial court then struck out the portion of the plea agreement on the plea form that indicated “200 VRF” and imposed a restitution fine in the amount of $660.
Relying on People v. Walker (1991) 54 Cal.3d 1013, defendant contends the increase in his victim restitution fine violated the terms of his plea bargain, and it should therefore be stricken and reduced to the originally agreed upon fine of $220.
The Walker case addressed the issue of whether the plea agreement has been violated when a restitution fine is imposed. “When 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.” (People v. Walker, supra, 54 Cal.3d at p. 1024.) Where, as here, a defendant has not received the admonition pursuant to Penal Code section 1192.5, a defendant’s failure to affirmatively request a change of plea should not be deemed a waiver of his or her right to do so. When the defendant is not advised of his rights pursuant to Penal Code section 1192.5, he cannot be held to have waived them. “A violation of a plea bargain is not subject to harmless error analysis.” (Id. at p. 1026.)
Penal Code section 1192.5 provides in pertinent part: “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 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.”
In People v. Dickerson (2004) 122 Cal.App.4th 1374, the appellate court concluded that given all of the relevant circumstances surrounding the guilty plea in that case, it did not reasonably appear that the parties had included imposition of fines in their plea negotiations; and consequently, the setting of the fines had been left to the court’s discretion. (Id. at p. 1377.) The fact that the court did not mention the restitution fine when reciting the plea bargain suggested that, unlike in Walker, no agreement had been reached on the imposition or amount of any restitution fines. (Dickerson, at p. 1385.) Additional facts in Dickerson further confirmed that “nobody in the trial court seemed to think that the imposition of restitution fines totaling $6,800 violated the terms of the bargain.” (Ibid.)
The question whether a restitution fine exceeded the scope of a plea bargain comes down to this core inquiry: Was the imposition or amount of the restitution fine actually negotiated and made a part of the plea agreement, or was the imposition and range of the fine within the defendant’s contemplation and knowledge when he entered his plea with the specific amount left to the discretion of the court? (People v. Knox (2004) 123 Cal.App.4th 1453, 1460.)
In the instant matter, there is no dispute that the $220 victim restitution fine was a term of defendant’s plea bargain. However, this case is distinguishable from Walker. Here, unlike in Walker, defendant expressly agreed to the increase of the victim restitution fine at the time of sentencing. This increase was made after the trial court informed the parties that the countywide practice, which was not disputed by defense counsel, was to impose, for sentences greater than two years, a $100 fine per year of incarceration. Moreover, the agreement tends to support the conclusion that the increase in the victim restitution fine of $440 was not considered significant in the context of the bargain as a whole. Defendant faced a possible sentence of 17 years with one count of burglary, one count of receiving stolen property, one count of drug possession, and the gang and prior prison term enhancements. In addition, the amount of $660 was less than what defendant was advised in the plea form that he could possibly face.
As noted above, in Walker, the defendant signed a written plea agreement that did not mention or include a restitution fine. At sentencing, the trial court imposed a $5,000 restitution fine that was not part of the negotiated disposition. The Supreme Court found that the $5,000 restitution fine was “a significant deviation from the negotiated terms of the plea bargain” and reduced the fine to the minimum. (People v. Walker, supra, 54 Cal.3d at pp. 1029-1030; se also In re Moser (1993) 6 Cal.4th 342, 356.)
Here, no judicial advisement concerning the restitution fine was omitted, as in Walker, nor was the advisement in error, as in Moser. “Rather, this is a case where a full and accurate advisement was both given by the court and acknowledged by the defendant.... Because defendant understood that he would be subject to the [increased] restitution fund fine, the sentencing court did not violate the plea bargain in [increasing] it.” (People v. Knox, supra, 123 Cal.App.4th at p. 1463.)
III
DISPOSITION
The judgment is affirmed.
We concur: Ramirez, P. J., McKinster, J.