Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court No. MF008561Aof Kern County. Kurt J. Lewin, Judge.
Retired judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Scott Concklin, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Dawson, Acting P.J., Hill, J. and Kane, J.
On January 20, 2009, pursuant to the terms of a negotiated plea agreement, appellant Darrel Frank Bateman entered a plea of nolo contendere to one count of violating Penal Code section 460, subdivision (a), first degree burglary (count 9). In return for the plea, a number of other offenses and enhancement allegations were dismissed. Those dismissed counts included second degree burglary (count 1); sale or transportation of marijuana (count 2); cultivation of marijuana (count 3); receiving stolen property (count 4); possession of a firearm by a felon (count 5); and possession of ammunition by a person previously convicted of a felony (count 7). Two prior prison term enhancement allegations were also dismissed.
All further statutory references are to the Penal Code unless otherwise stated.
Appellant was sentenced on February 10, 2009. The court imposed the middle term of four years in state prison. The following fees and fines were imposed: a $200 restitution fine (§ 1202.4, subd. (b)), a $200 restitution fine (§ 1202.45), a $10 fine (§ 1202.5), a $20 court security fee (§ 1465.8), and a $30 fee (Gov. Code, § 70373).
The facts of appellant’s offense are not relevant to the issues raised on appeal.
Following the grant of a certificate of probable cause, appellant contends that the imposition of the $10 fine pursuant to section 1202.5 was contrary to the plea agreement and that the $30 fee pursuant to Government Code section 70373 was imposed in error. Respondent disagrees and argues that two additional penalty assessments, a state assessment pursuant to section 1464 and a county assessment pursuant to Government Code section 76000 et seq. must also be imposed. We agree with respondent.
DISCUSSION
1. Was the section 1202.5 fine properly imposed?
Appellant argues that the $10 fine imposed pursuant to section 1202.5 be stricken because it was not part of the negotiated plea disposition. Appellant argues that this case is controlled by the decision in People v. Walker (1991) 54 Cal.3d 1013 (Walker). We agree that Walker controls, but believe it compels affirmance rather than reversal.
Section 1202.5, subdivision (a) provides: “In any case in which a defendant is convicted of any of the offenses enumerated in Section 211, 215, 459, 470, 484, 487, 488, or 594, the court shall order the defendant to pay a fine of ten dollars ($10) in addition to any other penalty or fine imposed. If the court determines that the defendant has the ability to pay all or part of the fine, the court shall set the amount to be reimbursed and order the defendant to pay that sum to the county in the manner in which the court believes reasonable and compatible with the defendant’s financial ability. In making a determination of whether a defendant has the ability to pay, the court shall take into account the amount of any other fine imposed upon the defendant and any amount the defendant has been ordered to pay in restitution.”
The California Supreme Court in Walker set forth a two-prong approach to analyzing claims of plea bargain violations. (Walker, supra, 54 Cal.3d at pp. 1019-1020.) First, the question is whether the court properly advised the defendant concerning the plea consequences. A defendant must be admonished of and waive his or her constitutional rights (Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122) and, additionally, must be advised of the direct consequences of the plea. (Bunnell v. Superior Court (1975) 13 Cal.3d 592, 605.) Second, the question is whether the parties have adhered to the terms of the negotiated plea bargain. (Walker, supra, at p. 1020.) When the state has induced a guilty plea pursuant to a plea bargain, it must keep its word and abide by the terms of the agreement. (Id. at p. 1024; People v. Knox (2004) 123 Cal.App.4th 1453, 1459.)
An admission based on an uninformed waiver of rights as a result of the court’s failure to fully advise a defendant concerning the consequences of an admission (in contrast to the failure to advise of a constitutional right) is set aside only if the error is prejudicial to the accused. (Walker, supra, 54 Cal.3d at pp. 1023-1024.) A showing of prejudice requires a demonstration that it is reasonably probable the defendant would not have entered the plea if the defendant had been told about the fine. (Id. at p. 1024.) We conclude appellant suffered no prejudice by the failure to advise him that a $10 mandatory fine would be imposed pursuant to section 1202.5.
In determining prejudice, “[t]he court should consider the defendant’s financial condition, the seriousness of the consequences of which the defendant was advised, the nature of the crimes charged, the punishment actually imposed, and the size of the restitution fine. [Citations.] The last of these factors is particularly important.” (Walker, supra, 54 Cal.3d at p. 1023.) As noted in People v. Davis (1988) 205 Cal.App.3d1305, 1311, “in the case of a minimal fine [of $100,] no showing of prejudice normally will be possible.”
The written plea agreement signed and initialed by appellant states,
“I understand that I will be required to pay two mandatory restitution fines of $200 under two separate Penal Code sections and that the restitution fines could be a maximum of [$]10,000 depending on my financial ability to pay. I will also be required to pay actual restitution to all victims.”
The form does not mention the section 1202.5 fine, nor did the court expressly advise appellant that the fine would be imposed. But the negotiated agreement here was extremely beneficial to appellant. A number of offenses and enhancements were dismissed as a result of the agreement. Appellant was advised and agreed to the possibility of two $10,000 fines and victim restitution. It is highly unlikely that he would not have entered his plea had he known that an additional $10 fine would be imposed pursuant to section 1202.5. If this were the end of our analysis, appellant would not be entitled to relief because there is no prejudice.
But there is a second question we must consider. The second prong of the analysis rests on whether the section 1202.5 fine is a significant part of the bargain agreed to by the parties. This prong is not subject to a harmless error analysis. (Walker, supra, 54 Cal.3d at p. 1026.) Walker explains the second-prong analysis as follows:
“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. [¶] ‘“[W]hen 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.”’ [Citation.]” (Id. at p. 1024.)
If at sentencing the punishment imposed significantly differs from the term of the plea agreement, a defendant’s silence does not waive a deviation from the terms of the plea agreement unless the defendant has been advised of his or her right to set aside the plea agreement. (§ 1192.5; Walker, supra, 54 Cal.3d at pp. 1024-1025.)
Here, the reporter’s transcript of the sentencing hearing states that the bailiff handed appellant his appeal rights, but there is no indication whether he was specifically advised of his right to set aside the plea agreement. In any event, we find that the state did comply with the terms of the plea bargain. As the court in Walker noted, not every deviation from the terms of the plea agreement requires that the agreement be set aside. The variance must be significant in the context of the plea bargain as a whole. A punishment that is insignificant relative to the whole may be imposed even though it was not part of the express plea agreement without violating a defendant’s right or the spirit of the agreement. (Walker, supra, 54 Cal.3d at p. 1024, citing Santobello v. New York (1971) 404 U.S. 257, 262.)
In Walker, the Supreme Court found that failure of the plea agreement to address a $5,000 restitution fine meant it was not part of the plea agreement. Noting in that instance that a fine of at least $100 was required without a finding of exceptional circumstances, the court stated that it could either send the matter back to allow the defendant the opportunity to withdraw the plea, something the court found to be contrary to the interests of justice, or the court could reduce the $5,000 fine imposed to the statutory minimum of $100. (Walker, supra, 54 Cal.3d at p. 1027.) It opted for the latter, and found that this minimal fine, as opposed to the $5,000 fine imposed by the trial court, did not constitute significant deviation from the negotiated plea agreement. (Ibid.) Here, too, the $10 fine does not constitute a significant deviation from the negotiated plea agreement.
We also cannot strike the $10 section 1202.5 fine because it is required by statute, unless a court finds the defendant cannot pay it, which the trial court here did not do. (§ 1202.5, subd. (a) [“the court shall order the defendant to pay a fine of ten dollars ($10)”; see People v. Clark (1992) 7 Cal.App.4th 1041, 1050 [drug program fee was imposed but record was silent as to defendant’s ability to pay; Court of Appeal presumed trial court found defendant had ability to pay].) As pointed out in People v. Crandell (2007) 40 Cal.4th 1301, 1309, “the parties to a criminal prosecution are free, within such parameters as the Legislature may establish, to reach any agreement concerning the amount of restitution (whether by specifying the amount or by leaving it to the sentencing court’s discretion) they find mutually agreeable.” Section 1202.5 does not reflect an intention by the Legislature to provide the parties to a criminal prosecution an opportunity for negotiation concerning the amount of the fine imposed. Section 1202.5 imposes a mandatory fine. There can be no violation of the plea agreement where the fine in question was never one subject to negotiation. (See In re Moser (1993) 6 Cal.4th 342, 357; People v. McClellan (1993) 6 Cal.4th 367, 379-380 [court found no violation of plea bargain occurred because additional burdens imposed on defendant were statutorily mandated].)
Because we find the $10 section 1202.5 fine was properly imposed, we agree with respondent that the trial court failed to impose the corresponding state ($10) and county ($7) penalty assessments. (§ 1464; Gov. Code, § 76000.) Section 1464, subdivision (a)(1) provides, in pertinent part:
“Subject to Chapter 12 (commencing with Section 76000) of Title 8 of the Government Code, and except as otherwise provided in this section, there shall be levied a state penalty in the amount of ten dollars ($10) for every ten dollars ($10), or part of ten dollars ($10), upon every fine, penalty, or forfeiture imposed and collected by the courts for all criminal offenses.…”
And Government Code section 76000 provides, in pertinent part:
“(a)(1) Except as otherwise provided elsewhere in this section, in each county there shall be levied an additional penalty in the amount of seven dollars ($7) for every ten dollars ($10), or part of ten dollars ($10), upon every fine, penalty, or forfeiture imposed and collected by the courts for all criminal offenses.… [¶] (2) This additional penalty shall be collected together with and in the same manner as the amounts established by Section 1464 of the Penal Code.”
These fees are mandatory, and their omission is subject to correction on appeal whenever it comes to a court’s attention because the failure to impose them constitutes an unauthorized sentence. (People v. Talibdeen (2002) 27 Cal.4th 1151, 1157; People v. Turner (2002) 96 Cal.App.4th 1409, 1413-1416.) Because we find that the $10 section 1202.5 fine did not violate appellant’s plea bargain, we also find that the mandatory corresponding state and county penalty assessments pursuant to section 1464 and Government Code section 76000 must be imposed. We will modify the judgment accordingly.
2. Was the Government Code section 70373 fine properly imposed?
The trial court ordered appellant to pay a $30 fine under Government Code section 70373. Appellant contends the court erred because a fine under that statute may only be imposed for violations of the Vehicle Code. We disagree.
Government Code section 70373, subdivision (a)(1) states, in part:
“To ensure and maintain adequate funding for court facilities, an assessment shall be imposed on every conviction for a criminal offense, including a traffic offense, except parking offenses as defined in subdivision (i) of Section 1463 of the Penal Code, involving a violation of a section of the Vehicle Code or any local ordinance adopted pursuant to the Vehicle Code. The assessment shall be imposed in the amount of thirty dollars ($30) for each misdemeanor or felony.…”
We interpret a statute by looking at the plain meaning of the words used, giving them their usual and ordinary meaning. (People v. Yartz (2005) 37 Cal.4th 529, 537-538.) “‘If there is no ambiguity in the statutory language, its plain meaning controls.…’” (Id. at p. 538.)
Here, Government Code section 70373, fairly read, states that a fine must be imposed on “every conviction for a criminal offense” except for certain violations of the Vehicle Code. It is not limited to violations of the Vehicle Code.
To the extent there is any doubt on this issue, the legislative history of Government Code section 70373 puts it to rest. The Legislature Counsel’s Digest of the bill that added the statutory language at issue states that the “bill would … impose an additional assessment upon every conviction for a criminal offense.” (Legis. Counsel’s Dig., Sen. Bill No. 1407 (2007-2008 Reg. Sess.) 2 Stats. 2008, ch. 311, p. 2101.) We conclude the court correctly imposed the $30 fine.
3. Section 4019 amendments
Pursuant to a standing order of this court issued on February 11, 2010, the issue of the applicability of the January 25, 2010, amendments to section 4019 (Stats. 2009-2010, 3d Ex. Sess., ch. 28, § 50) is deemed raised without further briefing by the parties. The amendments to section 4019 affect the calculation of custody credits. In our published opinion in People v. Rodriguez (2010) 182 Cal.App.4th 535, we held the January 25, 2010, amendments to section 4019 applied prospectively only to those persons who had not been sentenced at the time the amendments went into effect. (Rodriguez, at pp. 539-540, 544-545.) We also rejected the contention that prospective application of the amendments violated equal protection. (Id. at p. 546.) We thus reject any argument appellant is deemed to have made for additional custody credits.
DISPOSITION
The judgment is modified to provide for a $10 state and $7 county penalty assessment. (§ 1464; Gov. Code, § 76000.) As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and to forward a certified copy to the Department of Corrections and Rehabilitation.