Opinion
H024458.
7-25-2003
THE PEOPLE, Plaintiff and Respondent, v. JESSE DE LA CRUZ, Defendant and Defendant.
Pursuant to a plea bargain in case No. SS011640, defendant Jesse De La Cruz pleaded no contest to one count of carjacking (Pen. Code, § 215, subd. (a)). Defendant was on probation in case No. SM990941 when he committed the crimes he was convicted of in case No. SS011640. In the earlier case, defendant pleaded no contest to seven counts of receiving stolen property and one count of auto burglary. Consistent with the plea bargain in case No. SS011640, defendant was sentenced to nine years in prison, all other charges were dismissed, and defendants nine-year sentence in case No. SS011640 was imposed concurrently with his two-year sentence for violation of probation
All further unspecified section references are to the Penal Code.
in case No. SM990941. The trial court also imposed a restitution fine of $ 1,800 (§ 1202.4) and an additional $ 1,800 suspended parole revocation fine (§ 1202.45).
Defendant contends that these fines were in excess of the terms of his plea bargain. He requests that this court reduce each fine to the statutory minimum of $ 200. Following the courts reasoning in People v. Walker (1991) 54 Cal.3d 1013, 819 P.2d 861 we agree and find that the fines of $ 1,800 were not contemplated in the plea bargain and reduce the fines to the statutory minimum of $ 200 each. (§§ 1202.4, 1202.45.)
I. BACKGROUND
For the purposes of this appeal, we need not recite the facts underlying the charged offenses.
Defendant was charged in an amended complaint in case No. SM990941 on April 7, 1999 with eight counts of receiving stolen property (§ 496, subd. (a)) and eight counts of auto burglary (& sect; 459). He pleaded no contest to seven counts of receiving stolen property and one count of auto burglary.
On May 26, 1999, defendant was sentenced to 180 days in jail and three years probation, one condition being that he obey all laws. At sentencing, the court, in accord with the plea agreement, reduced four counts of receiving stolen property to misdemeanors and dismissed one count of receiving stolen property and seven counts of auto burglary.
Defendants probation was revoked and reinstated on three separate occasions with the additional condition that he complete a residential drug treatment program. On July 20, 2001, defendants probation was revoked for a fourth time after being held to answer in case No. SS11640. Defendant was charged in case No. SS11640 by information on July 24, 2001 with two counts of carjacking (§ 215, subd. (a)), two counts of second-degree robbery (§ 211), one count of auto theft (Veh. Code, § 10851, subd. (a)), a misdemeanor count of resisting arrest (& sect; 148, subd. (a)(1)), and a misdemeanor count of driving under the influence (Veh. Code, § 23152, subd. (a)).
On August 23, 2001, defendant was found to be in violation of probation due to his commission of the offenses in case No. SS011640 and his probation was terminated. A two-year prison sentence was imposed. He pleaded guilty to one count of carjacking in exchange for a prison sentence of no more than nine years and dismissal of all the other counts. The court stated "that the defendant will change his previously entered plea of not guilty and enter a new and different plea of guilty to one count of Penal Code Section 215(a) car jacking as a felony; admit a violation of probation in case number 990941, and case number 11924, which is a new case, would be dismissed with an understanding that the defendant will have a maximum exposure of nine years, and counsel can argue that the Court should sentence the defendant to less; however, the factors of this case and the defendant of felony probation probably point to an aggravated sentence." Defense counsel agreed that this was a correct restatement of the plea bargain. The trial court made no mention of a restitution fine at this time; nor did the trial court read the admonitions required by section 1192.5.
Section 1192.5 provides, in pertinent part: "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."
In entering his guilty plea, defendant signed a form entitled "WAIVER OF RIGHTS PLEA OF GUILTY/NO CONTEST." On this form, defendant initialed next to a statement that said, "I understand that if I am granted felony probation ... [and] ... that if I violate any term or condition of my probation, I can be sent to state prison for the maximum term allowed by law as noted above, and that I will be ordered to pay a restitution fine of not less than $ 200 nor more than $ 10,000." This was the only mention of a restitution fine on the form and did not apply to defendant since he was not granted felony probation. The probation report recommended a fine of "$ 200.00 [times] number of years [times] felony counts." However, this report was dated September 27, 2001 - over one month after defendant plead guilty on August 23, 2001.
As stated above, on October 18, 2001 defendant was sentenced to nine years in prison. The trial court imposed an $ 1,800 restitution fine (§ 1202.4) as well as an additional $ 1,800 suspended parole revocation fine (§ 1202.45).
II. DISCUSSION
In People v. Walker, supra, 54 Cal.3d at p. 1013 (Walker), the defendant was charged with two counts. He pleaded guilty to one count pursuant to a plea bargain whereby he would receive the five-year middle term and the prosecution would dismiss the second count. The trial court did impose the five-year term, but in addition it imposed a $ 5,000 restitution fine under former Government Code section 13967, subdivision (a). The defendant did not object to the imposition of the fine, but claimed, on appeal, that its imposition violated the terms of the plea bargain.
The California Supreme Court noted that determining whether the trial court had properly imposed the restitution fine "requires consideration of two related but distinct legal principles": (1) the requirement that the defendant be advised of both the constitutional rights being waived and the direct consequences of the plea; and (2) the requirement that the parties adhere to the terms of the plea bargain. (Walker, supra, 54 Cal.3d at pp. 1019-1020.)
The court held that "when the only error is a failure to advise of the consequences of a plea, the error is waived if not raised at or before sentencing." (Walker, supra, 54 Cal.3d at p. 1023.) If there is an objection at sentencing, the court must examine "whether the error prejudiced the defendant, i.e. whether it is reasonably probable that the defendant would not have pleaded guilty if properly advised. [Citation.]" (Ibid.) If such prejudice is found, the court must either impose only the statutory minimum fine or give the defendant the choice of withdrawing his/her plea. (Id. at pp. 1023-1024.)
However, the court further held that "[a] violation of a plea bargain is not subject to harmless error analysis." (Walker, supra, 54 Cal.3d at p. 1026.) This occurs where the punishment "significantly exceeds that which the parties agreed upon." (Id. at p. 1024.) By contrast, "[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." (Ibid.) Restitution, though not intended as punitive, qualifies as punishment. (Ibid.)
In Walker, the court concluded that the imposition of the fine constituted a punishment that significantly exceeded that which the parties agreed upon and since the trial court had not given the admonitions found in section 1192.5, the defendant had not waived the claim. (Walker, supra, 54 Cal.3d at pp. 1029-1030.) The court found the proper remedy to be a reduction of the fine to the statutory minimum of $ 100. (Ibid.; see former Gov. Code, § 13967, subd. (a).)
Although the clerks minutes of the pre-trial conference indicate that the trial court provided the section 1192.5 admonitions, the reporters transcript does not contain section 1192.5 admonitions and the Attorney General "acknowledges that the trial court failed to admonish [defendant] as required by 1192.5." Therefore, defendants claim is not waived.
The only remaining issue then is whether the two restitution fines of $ 1,800 significantly exceed the punishment the parties agreed upon. In Walker, the court provided guidance on this issue: "We stress that normally the defendant should not receive any more punishment than that bargained for. We allow the nonbargained $ 100 fine in this case because it is statutorily mandated and is not significant in the context of the bargain as a whole." (Walker, supra, 54 Cal.3d at p. 1027, fn. 3.) The court in Walker also pointed out that the test for significance under Santobello v. New York (1971) 404 U.S. 257, 30 L. Ed. 2d 427, 92 S. Ct. 495 is stricter than the test for prejudice. (Walker, supra, 54 Cal.3d at p. 1027, fn. 3.) Something that did not create prejudice may well be deemed significant if imposed after a negotiated plea. (Id. at pp. 1027-1028, fn. 3.)
In People v. Clark (1992) 7 Cal.App.4th 1041 (Clark), the court concluded that the imposition of $ 1,100 in fines, fees, and assessments which was not included in the terms of the plea bargain was "significantly greater than the punishment bargained for." (Id. at p. 1050.)
Here, the nonbargained restitution fines amounted to $ 1,800 each. As to each fine, this is $ 1,600 more than the statutory minimum, and significantly greater than the punishment bargained for, as in Clark. Under the guidance of Walker, we will order the restitution fines reduced to their statutory minimums of $ 200.
III. DISPOSITION
The clerk of the superior court is directed to modify the abstract of judgment to reduce the restitution fines under sections 1202.4 and 1202.45 to $ 200 each. The corrected abstract of judgment shall be forwarded to the Department of Corrections. In all other respects the judgment is affirmed.
WE CONCUR: PREMO, ACTING P.J., ELIA, J.