Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 07F1077
NICHOLSON, J.
Defendant Chester Romaine Mosley entered a negotiated plea of guilty to one count of incest and admitted two prior strike convictions in exchange for dismissal of the remaining counts and a stipulated prison term of 25 years to life. The trial court imposed a $10,000 restitution fine and a $10,000 parole revocation fine, neither of which were mentioned at entry of the plea agreement.
On appeal, defendant contends that imposition of these fines violated his plea agreement, thereby entitling him to have the fines reduced to the statutory minimum of $200 pursuant to People v. Walker (1991) 54 Cal.3d 1013 (Walker). For the reasons stated in the California Supreme Court’s recent decision in People v. Crandell (2007) 40 Cal.4th 1301 (Crandell), we reject the contention and affirm the judgment.
BACKGROUND
The section of the written plea agreement entitled, “PUNISHMENT,” initialed by defendant states: “I understand the . . . maximum fine is $10,000 plus a penalty assessment of 170% . . .; a restitution fine of not less than $200 nor more than $10,000 will be imposed . . . .”
At sentencing, defendant responded in the affirmative when asked if he had signed and initialed the plea form, whether he had enough time to discuss it with his attorney, and whether his plea was made freely and voluntarily. However, neither the prosecutor nor the trial court mentioned fees or fines in their recitation of the plea agreement.
When the trial court pronounced sentence, it also ordered defendant to pay a $10,000 restitution fund fine (restitution fine) (Pen. Code, § 1204.4) and another $10,000 restitution fund fine, suspended unless parole is revoked (parole revocation fine) (§ 1204.45). Defendant did not object.
Further undesignated statutory references are to the Penal Code.
DISCUSSION
Defendant challenges the imposition of the restitution fine and the parole revocation fine, arguing that their imposition violated the plea agreement because he was never advised of such fines or of his rights pursuant to section 1192.5 [informing defendant of the right to withdraw a disapproved plea]. Thus, he urges us to reduce the two fines to the statutory minimum. (See Walker, supra, 54 Cal.3d 1013.)
In Walker, a restitution fine was imposed on a defendant who pled guilty in accordance with a plea agreement that made no mention of restitution. The probation report recommended a $7,000 restitution fine, but “the record disclose[d] no other mention of the possibility of such a fine prior to sentencing.” (Walker, supra, 54 Cal.3d at p. 1019.) Noting the “consequences to the defendant [of a restitution fine] are severe enough that it qualifies as punishment for this purpose,” (id. at p. 1024) the Supreme Court held that, “[a]bsent compliance with the section 1192.5 procedure, the defendant’s constitutional right to the benefit of his bargain is not waived by a mere failure to object at sentencing” (id. at p. 1025) when a restitution fine not bargained for is imposed.
The trial court in Walker erred in advising the defendant only that a $10,000 fine was “a possible consequence” when it “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, italics omitted.) It also erred in imposing a restitution fine of $5,000 that had not been mentioned in the parties’ plea agreement. (Id. at p. 1019.) Thus, imposition of the restitution fine constituted “a significant deviation from the negotiated terms of the plea bargain” for which the proper remedy, when the issue is first raised after sentencing, “is to reduce the fine to the statutory minimum [then $100], and to leave the plea bargain intact.” (Id. at p. 1029, fn. omitted.)
While defendant relies on Walker to support his claim, he ignores the impact of the recent Supreme Court decision in which the court clarified that “‘the core question in every [such] case is . . . whether the restitution fine was actually negotiated and made a part of the plea agreement, or whether it was left to the discretion of the court.’ When a restitution fine above the statutory minimum is imposed contrary to the actual terms of a plea bargain, the defendant is entitled to a remedy.” (Crandell, supra, 40 Cal.4th at p. 1309.)
In Crandell, the defendant was informed at sentencing that “he would ‘have to pay a restitution fund fine of a minimum of $200, a maximum of $10,000.’” (Crandell, supra, 40 Cal.4th at p. 1305.) This recitation in the record reflected that the parties “intended to leave the amount of defendant’s restitution fine to the discretion of the court, [and] defendant is not entitled to relief.” (Id. at 1309.) Thus, the court reasoned, “while ‘the defendant in [Walker] reasonably could have understood the negotiated plea agreement to signify that no substantial fine would be imposed’ [citation], defendant in this case was flatly informed: ‘You will be ordered to pay restitution to the victims in this case.’ In light of these circumstances, it is clear that when defendant entered his plea, he could not reasonably have understood his negotiated disposition to signify that no substantial restitution fine would be imposed.” (Crandell, supra, 40 Cal.4th at p. 1310, original italics.)
Here, as in Crandell, defendant initialed the written plea form that stated: “I understand the . . . maximum fine is $10,000 plus a penalty assessment of 170% . . .; a restitution fine of not less than $200 nor more than $10,000 will be imposed . . . .” He could not have reasonably understood that no restitution fine under section 1202.4 would be imposed. Thereafter, a parole revocation fine in the same amount was required by statute. (§ 1202.45.) Accordingly, we find no error.
Defendant also contends the trial court erred in ordering there be no visitation between defendant and his daughter K. pursuant to section 1202.05 because K. was nearly 20 years old at the time of the judgment, and section 1202.05, subdivision (a) is limited to children under the age of 18. The People correctly concede this issue. We direct the trial court to amend the abstract of judgment accordingly.
“Whenever a person is sentenced to the state prison on or after January 1, 1993, for violating Section . . . 285, . . . and the victim of [that] offense is a child under the age of 18 years, the court shall prohibit all visitation between the defendant and the child victim.” (§ 1202.05, subd. (a).)
DISPOSITION
The trial court is directed to amend the abstract of judgment, striking the portion prohibiting visitation between defendant and his daughter K. (date of birth Sept. 11, 1987). As amended, the judgment is affirmed. The trial court is directed to send a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
We concur: SIMS, Acting P. J., ROBIE, J.