Opinion
Review Granted Nov. 15, 1990.
Previously published at 230 Cal.App.3d 1639
Harvey E. Goldfine, under appointment by the Court of Appeal, for defendant and appellant.
John K. Van de Kamp, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., Harley D. Mayfield, Sr. Asst. Atty. Gen., and Robert M. Foster, Supervising Deputy Atty. Gen., for plaintiff and respondent.
OPINION
HOLLENHORST, Acting Presiding Justice.
Defendant was convicted by plea of one count of attempted use of a destructive device (Pen.Code, § 12303.3). On appeal, he challenges that portion of his sentence which imposed a $5,000 restitution fine. We reverse the judgment and remand the matter with directions that defendant be given an opportunity to withdraw his plea.
Unless otherwise indicated, all statutory section-number citations refer to the Penal Code.
Inasmuch as defendant challenged only his sentence, and not the validity of the plea upon which the sentence was predicated, he did not file a section 1237.5 statement as a part of his notice of appeal. (See rule 31(d), California Rules of Court.) However, as is apparent in the discussion set forth in the main text of this opinion, our analysis of defendant's contention on appeal has necessitated a far broader legal inquiry than that which was originally intended by defendant. Indeed, our analysis in this case has resulted in our rejecting the validity of defendant's plea. Had this been the scope of defendant's original appeal, the filing of a section 1237.5 statement would have been a prerequisite to our reaching the merits of defendant's assertions. (People v. Robinson (1988) 205 Cal.App.3d 280, 282-283, 252 Cal.Rptr. 202.) Nevertheless, given the fact that the "expansion" of the matter before us is of our own doing, we deem it appropriate to have engaged in our analysis notwithstanding the lack of a section 1237.5 statement. (See People v. Delles (1968) 69 Cal.2d 906, 909-910, 73 Cal.Rptr. 389, 447 P.2d 629.)
FACTS
Defendant was arrested for having attached an explosive device to a car owned by his ex-wife. The device was designed and attached with an apparent intention that it be activated by the ex-wife's operation of the car.
By Information, defendant was charged with one count of attempted murder (§§ 664/187) and one count of attempted use of a destructive device (§§ 664/12303.3). The information also alleged that the attempted murder was a serious felony within the meaning of section 1192.7, subdivision (c)(1).
The Information was orally amended without objection at the time of the change-of-plea/sentencing hearing to set forth section 12303.3 alone (as opposed to sections 664 and 12303.3) as the basis for the charge of an attempt to use a destructive device. This amendment was made inasmuch as section 12303.3 itself encompasses both a use of a destructive device and an attempt to use a destructive device.
A "Pre-Plea Report" (PPR) was prepared by the Probation Department. The
Initially, defendant pled not guilty to the substantive charges and denied the special allegations.
Thereafter, a plea bargain was struck between defendant and the People. As reflected in the "change of plea/waiver of rights" form subsequently filed with the trial court by defendant, the bargain consisted of defendant's pleading guilty to the section 12303.3 charge in exchange for a dismissal of the remaining charges and the imposition of a middle term of five years of imprisonment on the section 12303.3 charge. There was no mention in the "change of plea/waiver of rights" form of a restitution fine being imposed. Further, defendant did not indicate in the "change of plea/waiver of rights" form (by initialling the appropriate box in that form) that he understood his conditional right under section 1192.5 to later withdraw his plea should the court determine to impose sentence other than in accordance with the terms of the plea bargain.
The trial court then conducted an examination into defendant's understanding both as to the terms of the plea bargain and as to the direct consequences of his change of plea. In particular, the following exchange took place:
"THE COURT: Mr. Walker, I have here a form entitled Declaration by Defendant, Change of Plea, Guilty. The form has boxes along the side of it; in various of those boxes appear the initials D.W.; are those your initials?
"THE DEFENDANT: Yes, sir.
"THE COURT: And then on the second page of the form there purports to be a signature of Dexter Walker; is that your signature?
"THE DEFENDANT: Yes.
"THE COURT: And did you initial the boxes and sign the form after going over the entire form with your attorney?
"THE DEFENDANT: Yes, I did.
"THE COURT: And did you understand everything on the form, including the enumeration of each of your constitutional rights?
"THE DEFENDANT: Yeah, yes, I did.
"THE COURT: And you understand that by entering a plea of guilty at this time you'd be giving up and waiving those rights?
"THE DEFENDANT: Yes.
"THE COURT: And is that in fact your desire, to give up and waive each of those constitutional rights at this time for the purpose of entering a plea of guilty?
"THE DEFENDANT: Yeah, it is.
"THE COURT: And my understanding of the agreement is that the district attorney has agreed to dismiss Count 1 [attempted murder] and that the district attorney has agreed to accept a plea to Count 2 [attempted use of explosive device]; and the district attorney and the Court have agreed to a sentence of 5 years in state prison, less any credits you have, of course; is that your understanding of the agreement?
"THE DEFENDANT: Yes, it is.
"THE COURT: Any other promises or representations been made to you?
"THE DEFENDANT: No, there haven't.
".............................
"THE COURT: Mr. Walker, have you had adequate time to discuss the case with your attorney, to discuss the nature of the charges against you, to discuss all of your rights with regard to this case with regard to your--with regard to this case? "THE DEFENDANT: Yes, I have.
"THE COURT: And you feel you understand the nature of the charges against you and all your rights?
"THE DEFENDANT: Yes, I do.
"THE COURT: Miss Carranza [defense counsel], do you agree you've had adequate time to discuss those issues with your client?
"MISS CARRANZA: Yes, I have.
"THE COURT: And did you go over the entire plea form with your client and satisfy yourself that he understands everything on the form?
"MISS CARRANZA: Yes, I did.
"THE COURT: All right. And, Mr. Walker, you understand that the maximum penalties provided by law for this offense are either 3 years, 5 years, or 7 years in state prison and a fine of up to $10,000; you understand that?
"THE DEFENDANT: Yes, I do.
".............................
"THE COURT: All right. The Court will find that the defendant understands the nature of the charges against him; that he understands all the possible consequences of a plea of guilty; that the defendant understands each of his constitutional rights; that the defendant knowingly, intelligently, freely and voluntarily waives each of his constitutional rights. [p] The Court will allow the defendant to withdraw his previously-entered plea of not guilty."
Defendant then pled guilty to the section 12303.3 charge. At this point in the proceedings, defense counsel expressly acknowledged the existence of the PPR in connection with establishing the factual basis of the plea. Defendant waived referral of the matter to the Probation Department and sought immediate sentencing. The trial court thereupon sentenced defendant to a middle term of five years in state prison and imposed a restitution fine of $5,000. Neither defendant nor defense counsel made any objection to the imposition of the fine.
On appeal, defendant now contends that the imposition of the restitution fine was improper. Defendant's contention is based on two separate, but confusingly intermingled, assertions: (1) The imposition of the fine was improper because it was not part of the negotiated plea bargain; and/or (2) The imposition of the fine was improper because he (defendant) was not fully and adequately advised by the trial court, prior to its taking his change of plea, of the direct consequences of a guilty plea and of his rights under section 1192.5. As we discuss below, we find that defendant's second assertion, regarding the adequacy of the advisements received by defendant, has merit.
That defendant's assertions should be "confusingly intermingled" is not surprising. The published case authority in this area of the law has itself analytically muddled the distinction between "failure of bargain" claims and "failure of advisement" claims.
DISCUSSION
This case requires that we once again return to that area of the law which involves the interrelationship between the imposition of statutory restitution fines (see Gov.Code, § 13967, subd. (a), and Pen.Code, § 1202.4, subd. (a)) and the taking of a guilty plea negotiated pursuant to a plea bargain (see Pen.Code, § 1192.5). This
In pertinent part, these statutes provide as follows:
Central to our analysis of the issues raised by this case is our conclusion that a trial court, in properly advising a defendant prior to taking a negotiated guilty plea, need be concerned with two different types of fines and two different types of advisement concerning those fines. Our discussion focuses first on the fines and then on the advisements.
I.
FINES
When a defendant pleads guilty to a felony in California, that plea subjects the defendant to the possible imposition of two distinct fines: (1) A penal fine, not to exceed $10,000, under the authority of section 672; and/or (2) a restitution fine, ranging from $100 to $10,000, under the authority of section 1202.4, subdivision (a)--which, in turn, is based on section 13967, subdivision (a), of the Government Code. For the purpose of our discussion here, the primary distinction to be noted between section 672 penal fines and section 1202.4 restitution fines is the fact that section 672 penal fines are subject to plea bargaining while section 1202.4 restitution fines are not. We draw this distinction primarily from the language and history of the statutes themselves.
Section 672 penal fines fall entirely within the discretionary authority of the trial court: "[T]he court may impose a fine on the offender...." Consequently, these fines fit neatly within the broad range of issues made subject to plea bargaining by section 1192.5: "[T]he plea may specify the punishment to the same extent as it may be specified by the jury on a plea of not guilty or fixed by the court on a plea of guilty, nolo contendere, or not guilty, and may specify the exercise by the court thereafter of other powers legally available to it."
On the other hand, a trial court is statutorily mandated to impose section 1202.4 restitution fines (with certain limited statutory exceptions). Section 1202.4, subdivision (a), states in pertinent part that: "[T]he court shall order the defendant to pay a restitution fine as provided in subdivision (a) of Section 13967 of the Government Code. Such restitution fine shall be in addition to any other penalty or fine imposed and shall be ordered regardless of the defendant's present ability to pay." (Emphasis added.) The legislative tone of section 13967 of the Government Code is, in pertinent part, even more mandatory: "Except as provided in Section 1202.4 of the
It is not surprising that the language of section 1202.4, subdivision (a), and section 13967, subdivision (a), of the Government Code is as strong as it is. These statutory provisions were enacted to implement the constitutional mandate adopted by the voters of California as a part of Proposition 8 and expressed in article I, section 28, subdivision (b), of the California Constitution. (See People v. Davis (1988) 205 Cal.App.3d 1305, 1309, 252 Cal.Rptr. 924.)
In our view, the "compelling and extraordinary reasons" language of section 1202.4, subdivision (a), and the "under no circumstances" language of section 13967, subdivision (a), of the Government Code preclude an interpretation of section 1192.5 that would include restitution fines among those issues subject to plea bargaining. Our conclusion in this regard is made more certain by our recognition of the common constitutional wellspring, noted above, from which these two statutory passages have come.
We are aware that our conclusion concerning the nonapplicability of plea bargaining to restitution fines may well be in conflict with the conclusions reached by our sister courts in People v. Oberreuter (1988) 204 Cal.App.3d 884, 251 Cal.Rptr. 522 and People v. Ross (1990) 217 Cal.App.3d 879, 265 Cal.Rptr. 921. However, we are convinced that the clear language of the statutes compels our conclusion.
With the above in mind, we turn to the case at hand. To the extent that defendant's argument on appeal is that a restitution fine cannot be imposed on him because such a fine was never made a part of the plea bargain (see section 1192.5), the argument must fail. There was no failure here to "stick to the bargain" precisely because a restitution fine, as we have just discussed, is never a part of the bargain. Rather, a restitution fine is in all cases imposed in addition to any bargained-for punishment.
What can be bargained for, of course, is an agreement by the prosecuting attorney to join with defense counsel in arguing for a specific amount of restitution or for a waiver of the restitution fine. This sort of a bargain does not involve any "approval" by the trial court and does not give rise to any rights or obligations under section 1192.5.
We turn now to a consideration of the proper advisements concerning fines to be given a defendant prior to taking a guilty plea.
II.
ADVISEMENTS
Insofar as the imposition of fines are concerned, a trial court must give two different types of advisement to a defendant prior to taking a guilty plea from that defendant: (1) A "consequences of the plea" advisement (a "Bunnell advisement," see post ); and (2) a "right to withdraw plea if bargain is not approved" advisement (a section 1192.5 advisement).
Because the imposition of either a section 672 penal fine or a section 1202.4 restitution fine constitutes a direct consequence of a guilty plea, a trial court is obligated to advise a defendant of the same prior to In this case, the trial court advised defendant that his guilty plea subjected him to the possible imposition of "a" $10,000 fine, but did not advise him of the possibility of a second $10,000 fine being imposed. This failure to advise defendant of the full range of direct consequences of his plea constituted error. However, this particular error does not require redress on our part. Inasmuch as the obligation to advise a defendant concerning the consequences of his or her guilty plea is a product of a judicially declared rule of criminal procedure, as opposed to being a constitutionally mandated obligation, error in this regard calls for reversal only if the defendant makes a showing that the error was prejudicial. (People v. Wright (1987) 43 Cal.3d 487, 495, 233 Cal.Rptr. 69, 729 P.2d 260.) Defendant has made no such showing in this case.
We do not know, of course, to which type of fine the trial court's advisement was addressed.
In this instance, "prejudice" is measured under the test enunciated in People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243: Whether it is reasonably probable that a result more favorable to the defendant would have been reached if the error had not occurred. (People v. Wright (1987) 43 Cal.3d 487, 494-495, 233 Cal.Rptr. 69, 729 P.2d 260.)
This brings us (finally, but in context) to the error committed in this case which does require redress on our part, the trial court's failure to adequately advise defendant under section 1192.5.
Section 1192.5 requires that a trial court advise a defendant, prior to taking a guilty plea negotiated pursuant to a plea bargain, that the trial court may choose to sentence the defendant other than in conformity with the plea bargain, but that the defendant will be permitted to withdraw the guilty plea in such a case. (See People v. Johnson (1974) 10 Cal.3d 868, 112 Cal. Rptr. 556, 519 P.2d 604.) In this case, we cannot conclude from the record before us that any such advisement was given defendant. The record is clear that the trial court did not directly and verbally advise defendant as to his rights under section 1192.5. Further, the "change of plea/waiver of rights" form executed by defendant did not show (by way of initials in the appropriate box) that defendant understood his rights under section 1192.5. Finally, the generalized statements given by defendant and his counsel as to defendant's understanding of his rights, in light of defendant's affirmative failure to initial the box on the "change of plea/waiver of rights" form relating to his section 1192.5 rights, do not reliably establish that defendant understood those rights. Given the ambiguity presented by defendant's, on the one hand, assuring the court that he understood "his rights" and, on the other hand, having failed to initial the form box relating to his section 1192.5 rights, the trial court was obligated to conduct a brief, further inquiry into the matter so as to assure itself that defendant truly understood his section 1192.5 rights. (In re Ibarra (1983) 34 Cal.3d 277, 286, 193 Cal.Rptr. 538, 666 P.2d 980.) This, the trial court failed to do.
It is clear from reviewing the form that defendant did not merely overlook that box in the form. The box has a line drawn through it, in contradistinction to its being initialled.
It is with an eye to this state of uncertainty that we review the advisements that the trial court did give defendant. First, the trial court outlined its understanding of the plea bargain, omitting any reference to a fine being imposed. Then, the trial court reviewed the general range of punishment to which defendant's guilty plea would subject him, specifically mentioning the possibility of a fine (up to $10,000) being imposed. Taking these two statements together, the clear implication is that one of the punishments being avoided by defendant by entering into the plea bargain was the imposition of a fine. Nothing the trial We reach our conclusion that defendant must be given an opportunity to withdraw his guilty plea notwithstanding two factors which might suggest a different result:
First, it is no answer to this defendant's dilemma to say that he has no right to challenge the imposition of a restitution fine outside of the parameters of his plea bargain because such a fine is not subject to plea bargaining. (See ante.) Even in those situations where a defendant is improperly advised as to the permissible elements of a plea bargain, that defendant must be given an opportunity to withdraw his or her guilty plea when the bargain as understood by the defendant is not kept. (People v. Preciado (1978) 78 Cal.App.3d 144, 149, 144 Cal.Rptr. 102.)
Second, it is no answer to this defendant's dilemma to say that he waived his right to challenge the imposition of a restitution fine by not objecting to the same at the time of his sentencing hearing. In this case, defendant had not been advised of his section 1192.5 right to withdraw his plea in response to a failure of the bargain. We will not infer an affirmative waiver of an important right from the mere presence of silence when the existence of that right has not been made known. (People v. Johnson, supra, 10 Cal.3d at p. 872, 112 Cal.Rptr. 556, 519 P.2d 604.) This factor highlights a clear distinction between this case and that which was before us in Melton (supra ). There was no showing in Melton that the defendant in that case was unaware of his section 1192.5 rights.
We do not wish our opinion in Melton to be understood as suggesting that an "across-the-board waiver analysis" is applicable to all restitution fine/plea bargain issues. As we have explained above, the primary inquiry in this area of the law must address the adequacy of the advisements received by a defendant; and, with regard to such advisements, mere silence will seldom (if ever) serve as a waiver of the rights encompassed thereby. Melton's focus on a "waiver analysis" is entirely appropriate, however, with respect to challenges to the actual implementation of restitution fines: Should a defendant wish to challenge (a) the amount of a restitution fine, (b) the manner in which a restitution fine is to be paid (e.g., whether such payment is to be stayed pending the successful completion of probation), or (c) a trial court's determination that no "compelling and extraordinary reasons" exist to excuse the payment of such a fine, then such a challenge must be raised for the first time in the trial court or it will be deemed waived for purposes of appellate review.
III.
CONCLUSION
We summarize. As a part of the legal ritual which must be performed prior to taking a guilty plea:
(1) A trial court must advise a defendant that such a plea subjects him or her to the possible imposition of a penal fine (of up to $10,000) and to the mandatory imposition of a restitution fine (ranging from $100 to $10,000);
(2) A trial court must advise the defendant that the restitution fine will be imposed outside of, and in addition to, the terms of any plea bargain that has been negotiated; and
(3) A trial court must assure itself that the defendant has been fully and effectively advised in accordance with section 1192.5.
Such advisement may be given, or course, by way of a plea/waiver form. If such a form is used, however, the trial court must assure itself that the form discloses some affirmative indicia of understanding by the defendant.
The fashioning of an appropriate remedy in this case also deserves some comment.
We address our final conclusionary comments to the practicing members of the criminal trial bar. The trial courts do not alone bear the burden of assuring that the criminal justice system is administered in accordance with the mandates of the law. All criminal trial counsel, whether for the prosecution or for the defense, bear a responsibility and an obligation to bring inadvertent procedural ommissions or oversights to the trial court's attention to the end that the criminal justice system be administered both fairly and efficiently.
DISPOSITION
The judgment is reversed. This matter is remanded to the court below for further proceedings consistent with this opinion. Upon remand, the trial court is directed to permit defendant to withdraw his plea should he choose to do so.
DABNEY and TIMLIN, JJ., concur.
(1) Government Code section 13967, subdivision (a): "Upon a person being convicted of ... one or more felony offenses, the court shall impose a separate and additional restitution fine of not less than one hundred dollars ($100) and not more than ten thousand dollars ($10,000).... Except as provided in Section 1202.4 of the Penal Code and subdivision (c) of this section, under no circumstances shall the court fail to impose the separate and additional restitution fine required by this section...."
(2) Penal Code section 1202.4, subdivision (a): "In any case in which a defendant is convicted of a felony, the court shall order the defendant to pay a restitution fine as provided in subdivision (a) of Section 13967 of the Government Code. Such restitution fine shall be in addition to any other penalty or fine imposed and shall be ordered regardless of the defendant's present ability to pay. However, if the court finds that there are compelling and extraordinary reasons, the court may waive the imposition of the fine. When such a waiver is granted, the court shall state on the record all reasons supporting the waiver."
(3) Penal Code section 1192.5: "Upon a plea of guilty or nolo contendere to an accusatory pleading charging a felony, ... the plea may specify the punishment to the same extent as it may be specified by the jury on a plea of not guilty or fixed by the court on a plea of guilty, nolo contendere, or not guilty, and may specify the exercise by the court thereafter of other powers legally available to it. [p] Where such plea is accepted by the prosecuting attorney in open court and is approved by the court, the defendant, except as otherwise provided in this section, cannot be sentenced on such plea to a punishment more severe than that specified in the plea and the court may not proceed as to such plea other than as specified in the plea. [p] If the court approves of the plea, it shall inform the defendant prior to the making of
Page 724
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 such case, the defendant shall be permitted to withdraw his plea if he desires to do so...."