Opinion
C057471
7-1-2008
THE PEOPLE, Plaintiff and Respondent, v. THOMAS JOSEPH CADOTTE, Defendant and Appellant.
Not to be Published
Defendant Thomas Joseph Cadotte pled guilty to one count of transportation of a controlled substance (Health & Saf. Code, § 11379, subd. (a)) and admitted a prior conviction within the meaning of Penal Code section 1170.12, subdivisions (a) through (d) and a prior controlled substance conviction within the meaning of Health and Safety Code section 11370.2, subdivision (c) in exchange for dismissal of the remaining counts and allegations with a Harvey waiver and a maximum sentence of 11 years in state prison. The court denied probation, sentenced defendant to nine years in state prison, awarded custody credits, and ordered that defendant pay fees and fines, including a $600 restitution fine (Pen. Code, § 1202.4, subd. (b)) and a $600 parole revocation fine, stayed pending successful completion of parole (Pen. Code, § 1202.45).
People v. Harvey (1979) 25 Cal.3d 754 (Harvey).
On appeal, defendant contends: (1) the $600 restitution fine violated the plea agreement, and (2) the abstract of judgment must be amended to specifically identify each of the fees and fines imposed. We shall affirm the judgment and shall direct the trial court to amend the abstract of judgment to specify the fees and fines imposed.
FACTUAL AND PROCEDURAL BACKGROUND
The facts of the underlying offense are not at issue in this appeal and, given defendants plea and stipulation to a factual basis, are briefly summarized from the probation report.
Narcotics agents obtained a search warrant for defendants house and began surveillance. When defendant left his home, agents conducted a traffic stop and found 9.6 grams total gross weight of methamphetamine. Agents transported defendant back to his home, where they found defendants mother, his son, an infant, and the childs mother. One individual fled from the home when agents arrived. A search of defendants bedroom revealed a set of scales concealed between the mattress and box springs, and a stun gun in a dresser drawer. Agents found empty baggies under a couch cushion and packaging materials and a pipe containing methamphetamine residue elsewhere in the house.
Defendant was charged by information with felony transportation of a controlled substance in violation of Health and Safety Code section 11379, subdivision (a) (count I); felony possession for sale of a controlled substance in violation of Health and Safety Code section 11378 (count II); and misdemeanor possession of a stun gun by a felon in violation of Penal Code section 12651 (count III). As to counts I and II, the information alleged that defendant suffered a prior serious or violent felony constituting a strike under Californias "three strikes" law (Pen. Code, § 1170.12, subds. (a) through (d)), several prior convictions involving a controlled substance (Health & Saf. Code, § 11370.2, subd. (c)), and a prior felony (Pen. Code, § 667.5, subd. (b)), and that defendant committed the current offense while released on bail or his own recognizance in another case (Pen. Code, § 12022.1).
Defendant pled guilty to count I and admitted the prior strike allegation and one prior controlled substance conviction allegation in exchange for dismissal of all remaining charges and allegations pursuant to a Harvey waiver, dismissal of other pending charges against him with a Harvey waiver, and a maximum prison sentence of 11 years.
Prior to sentencing, defendant filed a Romero motion requesting that the court strike his prior strike conviction pursuant to Penal Code section 1385. The court denied the motion.
Romero v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
At sentencing, the court confirmed receipt by all counsel of the probation report. After considering the report and argument from the parties, the court denied probation and sentenced defendant to the middle term of three years, doubled for the prior strike, plus an additional three years for the prior drug conviction, for a total sentence of nine years in state prison. The court incorporated the financial terms set out in the probation report, ordering defendant to pay fees and fines as specified, including a $600 restitution fine (Pen. Code, § 1202.4, subd. (b)) and a $600 parole revocation fine (Pen. Code, § 1202.45), stayed pending successful completion of parole.
Defendant filed a timely notice of appeal.
DISCUSSION
I
Defendant contends the $600 restitution fine violates the terms of his negotiated plea and, because he was not advised of his right to withdraw his plea pursuant to Penal Code section 1192.5, must be reduced to the "statutory minimum of $200." For the following reasons, we do not agree that the fine violates defendants negotiated plea.
As a preliminary matter, where a restitution fine was recommended in the probation report, failure to object at sentencing waives a defendants contention on appeal that the trial court failed to advise the defendant a restitution fine was a direct consequence of a guilty plea. (People v. Walker (1991) 54 Cal.3d 1013, 1023 (Walker), citing People v. Melton (1990) 218 Cal.App.3d 1406, 1408-1409 (Melton).) Here, the probation report recommended a restitution fine in the amount of $600. Defendants counsel confirmed receipt of that report and, although given ample opportunity, failed to object to any of the fines imposed by the trial court and indeed waived formal reading of the financial requirements attached to the report.
"`The purpose of the general doctrine of waiver is to encourage a defendant to bring errors to the attention of the trial court, so that they may be corrected or avoided and a fair trial had." (Walker, supra, 54 Cal.3d at p. 1023, quoting Melton, supra, 218 Cal.App.3d at p. 1409.) In Melton and in Walker, the imposition of a restitution fine was recommended in the probation report. The Melton court held that the defendants failure to object to the fine at the sentencing hearing waived the failure to advise of the possibility of the fine, and the Walker court agreed. "`In this case, the record reflects that defense counsel was familiar with the probation report. Had the recommendation that defendants be ordered to pay a restitution fine come as a genuine surprise, it would have been a simple matter to bring the issue to the attention of the trial court. ([Melton, supra, 218 Cal.App.3d] at p. 1409.)" (Walker, supra, 54 Cal.3d at p. 1023.) The same is true here, and defendants failure to raise the issue at sentencing waived any claim of failure to advise of the possibility of imposition of the restitution fine.
In any event, defendant argues that failure to include the restitution fine as part of his negotiated plea was a violation of the plea agreement and, in the absence of a Penal Code section 1192.5 advisement regarding his right to withdraw his plea, he is entitled to have the fine reduced to the statutory minimum. (Walker, supra, 54 Cal.3d at pp. 1023-1024.) While it is the general rule that the court cannot sentence a defendant to a greater punishment than that specified in the plea agreement, it "does not mean that any deviation from the terms of the agreement is constitutionally impermissible." (Walker, at p. 1024.) "[T]he variance must be `significant in the context of the plea bargain as a whole to violate the defendants rights." (Ibid.)
In Walker, the defendant pled guilty to one count of violating Penal Code section 12303.3 in return for dismissal of the remaining charge and a maximum sentence of five years on a charge carrying a potential seven-year term. The trial court imposed a restitution fine of $5,000 that had not been mentioned in the parties plea negotiations. (Walker, supra, 54 Cal.3d at pp. 1018-1019.) This states highest court held that imposition of the $5,000 restitution fine constituted "a significant deviation from the negotiated terms of the plea bargain," and in the absence of the Penal Code section 1192.5 admonition (relating to the defendants right to withdraw the plea), the defendant could not "be deemed to have waived his rights by silent acquiescence" or by express waiver and was therefore "entitled to a remedy." (Walker, at pp. 1029-1030.)
While the trial court here failed to admonish defendant pursuant to Penal Code section 1192.5, we conclude that the $600 restitution fine does not constitute a "significant deviation" from his negotiated plea agreement such that he would be entitled to any remedy. The amount itself is minimal, and while we do not agree that it constitutes the "statutory minimum fine" pursuant to Penal Code section 1202.4, subdivision (b)(2) as the People suggest, the $600 fine only slightly exceeds the $200 minimum prescribed by that statute. The record reflects defendant affirmatively acknowledged he understood the implications of his plea, including the possibility of a fine as great as $10,000. The $600 restitution fine does not amount to significantly greater punishment than that negotiated for by defendant.
Finally, the restitution fine was statutorily mandated. (Pen. Code, § 1202.4.) Unless the plea agreement specifically addressed the issue of no mandatory fees, fines, or assessments, the trial court had no discretion to omit those mandatory penalties from its sentence. We do not find the restitution fine to be a significant variance in defendants plea agreement.
We note, however, that efforts to expedite the plea and sentencing process are often thwarted by plea forms lacking in detail and specificity, as was the one used here. Where it is commonplace for the court to refer to and incorporate all or portions of the plea form when taking a defendants plea, it is incumbent upon the court to ensure that form includes all information relevant to the plea, such as the fact that the defendant will be subject to mandatory fees, fines, and penalties and the relative minimum and maximum amounts thereof. Here, the entry of plea form should have advised defendant there was a mandatory restitution fine between $200 and $10,000. Amendment of the plea form in that regard would no doubt minimize appeals of this nature and save valuable judicial resources.
II
Defendant contends the abstract of judgment must be amended because the trial court failed to separately list the statutory bases for each of the fines, fees, and assessments imposed. (People v. High (2004) 119 Cal.App.4th 1192, 1200.) The People argue the court properly incorporated the financial terms attached to the probation order after defendant waived reading of those requirements into the record. We agree that the financial terms attached to the probation report adequately listed each of the fees, fines, and penalties assessed and the statutory bases therefor, and that defendant expressly waived any argument that the court failed to read each of those terms into the record.
The People also correctly concede that, with the exception of the restitution and parole revocation fines (Pen. Code, §§ 1202.4, 1202.45), the abstract of judgment fails to recite the specific fines, fees, and penalties and their statutory bases, instead reciting them collectively as a $170 criminal laboratory fee pursuant to Health and Safety Code section 11372.5, subdivision (a) and a $340 drug program fee pursuant to Health and Safety Code section 11372.7, subdivision (a). We will direct the trial court to amend the abstract of judgment to reflect each fee, fine, and penalty imposed and the statutory bases therefor, as set forth in the financial terms attached to the probation report.
The People argue that the trial court neglected to impose a 10 percent penalty to implement the DNA Fingerprint, Unsolved Crime and Innocence Protection Act (Gov. Code, § 76104.6) in amounts on the criminal laboratory fee and the $100 drug program fee. We agree and will modify the judgment accordingly and direct the trial court to amend the abstract of judgment in that regard.
DISPOSITION
The judgment is modified to impose a 10 percent penalty pursuant to Government Code section 76104.6, subdivision (a)(1) in the amount of $5 on the $50 criminal laboratory fee and $10 on the $100 drug program fee. The trial court is directed to amend the abstract of judgment to separately state all fines, fees, and penalties imposed and the statutory basis for each, and to send a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. The judgment is affirmed in all other respects.
We concur:
NICHOLSON, Acting P.J.
ROBIE, J.