Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Cruz County Super. Ct. No. F14255
ELIA, J.Gabriel Colin appeals from a judgment of conviction of assault with a deadly weapon following a negotiated plea of no contest (Pen. Code, § 245, subdivision (a)(1)) and admission of a prior residential burglary (§ 459) within the meaning of Three Strikes law (§ 667, subds. (b)-(i)). At sentencing, the court imposed a restitution fine of $1800 (§ 1202.4, subd. (b)) and a parole revocation fine of $1800 (§ 1202.45, subd. (b)).
All further statutory references are to the Penal Code.
Section 1202.4 states in part: "(b) In every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so, and states those reasons on the record. [¶] (1) The restitution fine shall be set at the discretion of the court and commensurate with the seriousness of the offense, but shall not be less than two hundred dollars ($200), and not more than ten thousand dollars ($10,000), if the person is convicted of a felony . . . ."
Section 1202.45 provides: "In every case where a person is convicted of a crime and whose sentence includes a period of parole, the court shall at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional parole revocation restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4. This additional parole revocation restitution fine . . . shall be suspended unless the person's parole is revoked. . . ."
Defendant Colin argues on appeal that the restitution fine and parole revocation fine violated "federal due process and state judicially declared rights" and the fines must be reduced to their statutory minimum pursuant to People v. Walker (1991) 54 Cal.3d 1013 (Walker). We modify the judgment and affirm.
A. Procedural History
A four-count information charged defendant with four felonies and one misdemeanor: infliction of corporeal injury in violation of section 273.5, subdivision (a) (count one), assault with a deadly weapon, by means likely to produce great bodily injury, in violation of section 245, subdivision (a) (count two), forcible false imprisonment in violation of section 236 (count three), criminal threats in violation of section 422 (count four), and obstructing and resisting an officer in violation of section 148, subdivision (a) (count five). The information also alleged a prior burglary conviction within the meaning of Three Strikes law (§ 667, subds. (b)-(i)) and a prior serious felony conviction based upon the same conviction (§ 667, subd. (a)(1)).
Defendant initially pleaded not guilty to all counts. Defense counsel at a subsequent hearing announced that the parties had reached a plea agreement and defendant was "pleading to Count 2" and the sentence would be nine years. Before accepting the defendant's plea, the court admonished defendant regarding certain consequences and advised him of certain rights but did not mention any fines. Defendant pleaded no contest to count two. He also admitted a 2003 residential burglary conviction, the basis of both special allegations. The court indicated that the case involved a "stipulated disposition" and stated that it was "anticipated everything else is going to be dismissed, and W8569 will be terminated unsuccessfully; and, likewise, W8804."
The court then asked whether there was "[a]nything further before I proceed with sentencing." The prosecutor replied that the only remaining issue was restitution. The prosecutor believed the victim's hospital bills had been "covered by the state in the victim's fund" but did not have any specific number. The court stated that "they need to be included in the abstract or they're not going to be paid" and "[s]o all I can do, then, is impose a $1800 restitution fund payment; parole revocation fee in the same amount, stayed." The court then imposed a total prison term of nine years consisting of a four-year term on count two, calculated by doubling the mitigated term of two years (§ 667, subds. (b)-(i)), plus a five-year enhancement term (§ 667, subd. (a)).
B. Restitution and Parole Revocation Fines
Defendant maintains that the record is "devoid of evidence [that] the parties intended the court to have discretion related to the imposition of [a] restitution fine" since the court never advised him that his plea would require imposition of a restitution fine and parole revocation fine and there was no probation report. He insists that this case is factually similar to Walker and, like Walker, he " ' "reasonably could have understood the negotiated plea agreement to signify that no substantial fine would be imposed." ' " He maintains that the restitution and parole revocation fines "constitute punishment more severe than the negotiated plea agreement" and, therefore, "must be reduced to their statutory minimums of $200 each" pursuant to Walker.
The People argue that "[t]he record suggests that the parties at least implicitly agreed that additional punishment in the form of statutory restitution fines would be left to the discretion of the trial court," citing People v. Crandell (2007) 40 Cal.4th 1301, which upheld the imposition of a restitution fine upon determining the plea bargain implicitly left the amount of the restitution fine to the court's discretion. They assert that "[t]he lack of defense objection corroborates . . . that the parties expected the trial court to exercise its discretion with respect to mandatory restitution fines." The People contend that defendant has "failed to show that his plea bargain contemplated either 'no fine or . . . a minimum fine within the statutory range.' (People v. Sorenson (2005) Cal.App.4th 612, 619.)" They also maintain that the error of failing to advise defendant of the mandated parole revocation fine was waived by defendant's failure to object below, citing People v. Dickerson (2004) 122 Cal.App.4th 1374.
"[T]he process of plea negotiation 'contemplates an agreement negotiated by the People and the defendant and approved by the court.' (§§ 1192.1, 1192.2, 1192.4, 1192.5; People v. West (1970) 3 Cal.3d 595, 604-608 . . . .)" (People v. Segura (2008) 44 Cal.4th 921, 929-930.) "A negotiated plea agreement is a form of contract, and it is interpreted according to general contract principles. [Citations.]" (People v. Shelton (2006) 37 Cal.4th 759, 767.)
" 'The fundamental goal of contractual interpretation is to give effect to the mutual intention of the parties. (Civ. Code, § 1636.) If contractual language is clear and explicit, it governs. (Civ. Code, § 1638.) On the other hand, "[i]f the terms of a promise are in any respect ambiguous or uncertain, it must be interpreted in the sense in which the promisor believed, at the time of making it, that the promisee understood it." (Id., § 1649; see AIU [Ins. Co. v. Superior Court (1990) 51 Cal.3d 807,] 822 . . . .)' (Bank of the West v. Superior Court (1992) 2 Cal.4th 1254, 1264-1265 . . . .) 'The mutual intention to which the courts give effect is determined by objective manifestations of the parties' intent, including the words used in the agreement, as well as extrinsic evidence of such objective matters as the surrounding circumstances under which the parties negotiated or entered into the contract; the object, nature and subject matter of the contract; and the subsequent conduct of the parties. (Civ. Code, §§ 1635-1656; Code Civ. Proc., §§ 1859-1861, 1864; [citations].)' [Citations.]" (People v. Shelton, supra, 37 Cal.4th at p. 767.)
"Acceptance of the agreement binds the court and the parties to the agreement. [Citations.]" (People v. Segura, supra, 44 Cal.4th at p. 930.) "If the court does not believe the agreed-upon disposition is fair, the court 'need not approve a bargain reached between the prosecution and the defendant, [but] it cannot change that bargain or agreement without the consent of both parties.' [Citations.]" (Id. at p. 931.)
In Walker, the California Supreme Court recognized that the implementation of a plea bargain must comply with the constitutional requirements of due process. (Walker, supra, 54 Cal.3d at p. 1024.) It reasoned that the consequences of a restitution fine are generally "severe enough that it qualifies as punishment" for the purposes of due process and, therefore, "the restitution fine should generally be considered in plea negotiations." (Ibid.) The court held: "Where the restitution fine significantly exceeds the terms of a negotiated plea, and the section 1192.5 admonition is not given, the error is not waived by acquiescence and may not be deemed harmless. Hence, the trial court must either reduce the fine to $100 or allow the defendant to withdraw the plea. Finally, if the error is raised after sentencing, as here on appeal, the proper remedy is generally to reduce the fine to the statutory minimum." (Id. at p. 1030.) Walker made clear 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.)
A Walker analysis is inapplicable, however, where the restitution fine does not significantly exceed the terms of a negotiated plea. Any significant deviation from the terms of a plea agreement is constitutionally impermissible but "[a] punishment or related condition that is insignificant relative to the whole, such as a standard condition of probation, may be imposed whether or not it was part of the express negotiations." (54 Cal.3d at p. 1024.) "[O]nly a punishment significantly greater than that bargained for violates the plea bargain." (Id. at p. 1027.)
In Walker, the court determined that "the $5,000 restitution fine was a significant deviation from the negotiated terms of the plea bargain." (Id. at p. 1029.) Walker established that the issue of whether a particular sentence improperly violates a plea bargain or whether a defendant waives any objection to punishment exceeding the terms of the bargain by failure to raise the point "depends upon whether the trial court followed the requirements of section 1192.5." (Id. at p. 1024.)
Section 1192.5 provides in part: "Where the 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 the plea to a punishment more severe than that specified in the plea and the court may not proceed as to the plea other than as specified in the plea. [¶] 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."
"Absent 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, however, the section 1192.5 admonition is given, and it is generally required, the situation is quite different. The issue then becomes whether the defendant has relinquished his statutory right to withdraw the plea." (Ibid.) "[W]hen the admonition is given, the failure affirmatively to request a change of plea does waive the right to do so. (See [People v. Johnson (1974) 10 Cal.3d 868,] 872, fn. 3, . . . [distinguishing prior cases which supported a finding of waiver on the basis of the absence of the admonition].)" (Ibid.) "[W]hen the admonition is given, and the defendant does not ask to withdraw the plea or otherwise object to the sentence, he has waived the right to complain of the sentence later." (Id. at p. 1026.)
As to the remedy for violation of a plea bargain, the Supreme Court in Walker held that "if the breach of the plea bargain is first raised after sentencing, the proper remedy generally is to reduce the fine to the statutory minimum, and to leave the plea bargain intact." (Id. at p. 1029.) The court noted that it was allowing a "nonbargained" restitution fine of $100 because a restitution fine was "statutorily mandated" and a $100 fine was "not significant in the context of the bargain as a whole." (Id. at p. 1027, fn. 3.) It concluded: "A person who pleads to a felony as part of a bargain generally does so to avoid prison, reduce the maximum term, or have other charges dismissed. In the context of felony pleas, a $100 fine is not, as a matter of law, 'significant.' [Citation.]" (Id. at p. 1027, fn. omitted.)
Since Walker, the California Supreme Court has adhered to its analytical framework. (See People v. Crandell, supra, 40 Cal.4th 1301; see also In re Moser (1993) 6 Cal.4th 342, 351; People v. McClellan (1993) 6 Cal.4th 367, 375.) In Crandell, the California Supreme Court upheld a $2,600 restitution fine because it rejected the defendant's argument that the fine violated his plea bargain and, therefore, Walker did not entitle him to a reduction of the fine to the statutory minimum of $200. (People v. Crandell, supra, 40 Cal.4th at p. 1304.) The court in Crandell reiterated that "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." (Id. at p. 1309.) The "core question" 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.' " (Ibid.) While recognizing that a defendant is entitled to a remedy "[w]hen a restitution fine above the statutory minimum is imposed contrary to the actual terms of a plea bargain," it concluded that the record in that case "demonstrate[d] that the parties intended to leave the amount of defendant's restitution fine to the discretion of the court . . . ." (Ibid.)
The California Supreme Court found facts in Crandell, supra, 40 Cal.4th 1301 distinguishable from those in Walker. (Id. at pp. 1309-1310.) In Crandell, "the record reveal[ed] that the trial court, before taking defendant's plea, accurately advised him he would 'have to pay a restitution fund fine of a minimum of $200, a maximum of $10,000' and ascertained that the prosecution had not made 'any other promises' beyond that defendant would be sentenced to 13 years in prison" (id. at p. 1309, fn. omitted) and it "flatly informed" the defendant, " 'You will be ordered to pay restitution to the victims in this case.' " (Id. at p. 1310.) In contrast, the trial court in Walker "advised the defendant only that the 'maximum penalties provided by law' for his offense included 'a fine of up to $10,000' and obtained no assurance that the parties intended their plea bargain to leave the amount of the restitution fine to the court's discretion." (Ibid.; see § 672 [maximum penal fine of $10,000 for felonies where no fine prescribed].) The Supreme Court determined that Crandell, unlike defendant Walker, "could not reasonably have understood his negotiated disposition to signify that no substantial restitution fine would be imposed." (Ibid.)
"[The court] reiterate[d] [its] guidance in Walker that '[c]ourts and the parties should take care to consider restitution fines during the plea negotiations. The court should always admonish the defendant of the statutory minimum [$200] and maximum $10,000 restitution fine as one of the consequences of any guilty plea, and should give the section 1192.5 admonition whenever required by that statute.' (Walker, supra, 54 Cal.3d at p. 1030 . . . .)" (Ibid.)
The present case is dissimilar to Crandell. In this case, the trial court did not advise the defendant of the restitution fine before accepting his negotiated plea and did not ascertain whether the amount of the restitution fine was being left to the court's discretion. To the contrary, there was no mention of any fine before accepting defendant's plea. In his concurring opinion in Crandell, Justice Baxter stated: "If the record does not disclose any agreement, one way or the other, on a particular subject, there is no reason to assume a term favorable to the defendant. Thus, when (1) the parties, in stating their bargain for the record, have mentioned no agreement to limit the restitution fine, (2) the court warns that it will impose such a fine, and that the amount may be anywhere in the statutory range, (3) the defendant says he understands, and (4) neither the defendant nor counsel protests that such a fine would violate the bargain, it is most sensible to assume the parties made no agreement with respect to the fine, leaving it to the law and the court's discretion upon proper advisement." (Id. at p. 1311, concurring opn. Baxter, J.) Both a judicial admonishment regarding the potential fines and acknowledgement from the defendant are lacking here.
The appellate cases, both from the Sixth District Court of Appeal, cited by the People are not particularly helpful. In Dickerson, the "defendant acknowledged before entering his pleas that the court 'must impose a restitution fine of between $200 and $10,000.' " (People v. Dickerson, supra, 122 Cal.App.4th at p. 1385.) In addition, "[t]he probation report also notified defendant that he was facing restitution fines of $6,800 under the formula recommended in section 1202.4." (Ibid.) "At sentencing neither defendant nor his attorney objected to this recommendation or to the court's imposition of these fines" even though one would expect the defendant or his attorney to object "[i]f these substantial restitution fines violated defendant's plea bargain . . . ." (Ibid.)
We observed in Dickerson that "Walker does not prohibit criminal defendants from striking whatever bargains appear to be in their best interests, including leaving the imposition of fines to the discretion of the sentencing court." (Id. at p. 1384.) We concluded that "the parties at least implicitly agreed that additional punishment in the form of statutory fines and fees would be left to the discretion of the sentencing court." (Id. at p. 1386.) We applied similar reasoning in People v. Knox (2004) 123 Cal.App.4th 1453, a case not cited by the parties. (Id. at pp. 1460-1463 [imposition and amount of restitution fines implicitly left to sentencing court's discretion where "full and accurate advisement" concerning restitution fine given by court and acknowledged by defendant prior to plea].)
In People v. Sorenson (2005) 125 Cal.App.4th 612, this court again applied the reasoning of Dickerson. In Sorenson, the trial court, immediately prior to accepting the defendant's no contest pleas and admissions of enhancement allegations pursuant to a plea agreement, advised defendant that he could be subject to "as much as 5,000 dollars" in fines and fees and would be required to contribute between $200 to $10,000 to the State Restitution Fund. (Id. at p. 616.) The defendant then failed to object when the court proceeded in the same hearing to impose a $1,000 state restitution fine (§ 1202.4) and a $500 DUI fine (Veh. Code, § 23550) "with the appropriate penalty assessment," which the minute order reflected totaled $1,125. (Id. at pp. 616-618.) This court rejected the defendant's claim on appeal that his plea agreement contained an implied promise of no substantial fines since defendant did not point to any evidence of an "express or implicit agreement on the imposition or amount of any fine or penalty assessment other than that these penalties were left to the sentencing court's discretion." (Id. at pp. 619-620.) We implicitly found the fact that the trial court had not given a section 1192.5 admonition (id. at p. 616) inconsequential because the fines imposed did not exceed the plea bargain. "We adhere[d] to our reasoning in Dickerson and conclude[d] that imposition of the fines, both the restitution and DUI fines, and the penalty assessment did not amount to a violation of defendant's plea bargain." (Id. at p. 620, fn. omitted.)
In contrast to Dickerson and Sorenson, defendant in this case was not advised that he would be subject to any fine as a consequence of pleading no contest. The only objective circumstances from which one might surmise that the parties implicitly intended the matters of restitution and parole revocation fines to be freely resolved by the trial court was the lack of defense objection to imposition of the fines. The circumstances of the present case are remarkably similar to those in Walker.
In Walker, as in this case, the trial court did not give the section 1192.5 admonition before the defendant pleaded pursuant to a plea agreement that did not mention a restitution fine, the court immediately sentenced defendant and imposed a restitution fine greater than the statutory minimum even though "the plea agreement did not mention such a fine," and the defense failed to object to imposition of the fine. (People v. Walker, supra, 54 Cal.3d at pp. 1018-1019, 1029-1030.) The defense's failure to object was not viewed as objective evidence of an implicit agreement to leave imposition of a restitution fine to the court's discretion even though defendant presumably knew he could be subject to a substantial restitution fine since "[t]he probation report prepared before the plea, and supplied to the defense, recommended a $7,000 restitution fine . . . ." (Id. at p. 1019.) In this case, the appellate record does not contain a probation report, no less one reflecting potential fines. Neither the plea agreement stated on the record nor the court mentioned any fine before defendant pleaded. No section 1192.5 admonition was given. Under these circumstances, when defendant entered his plea, he could have reasonably understood that no substantial fine would be imposed.
The Supreme Court cautioned in Walker that, where a trial court has not given a section 1192.5 admonition, the reviewing court cannot assume defendant knew he had a right to withdraw his plea if not given the benefit of his plea bargain (id. at p. 1026) and cannot deem defendant "to have waived his rights by silent acquiescence" (id. at p. 1030). Walker precludes us from inferring that the parties intended to leave the matter of restitution and parole revocation fines to the discretion of the court from the mere failure to mention the fines in the plea bargain and to object to their imposition where there is no judicial advisement regarding the potential fines, no section 1192.5 admonition, and no other objective manifestation of such intent. A contrary conclusion would in effect render Walker's holding a nullity because imposition of significant restitution fines would never be deemed to exceed the "implicit" terms of a plea bargain.
The judgment is modified to reduce both the restitution fine (§ 1202.4, subd. (b)) and the parole revocation fine (§ 1202.45) to $200. As modified, the judgment is affirmed.
WE CONCUR: RUSHING, P. J. PREMO, J.