Opinion
H035568
10-24-2011
THE PEOPLE, Plaintiff and Respondent, v. JOE ANTONIO DIAZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Monterey County Super. Ct. No. SS061878)
Defendant Joe Antonio Diaz appeals from a judgment of conviction, contending that the trial court erred by imposing a restitution fine exceeding the terms of a plea agreement and the statutory maximum. Respondent concedes that the $15,000 fine exceeded the $10,000 limit under the governing statute. We will direct a modification to reduce the fine to the statutory maximum and affirm the judgment as modified.
BACKGROUND
After being charged with numerous offenses, defendant agreed to plead no contest to three counts of violating Penal Code section 288, subdivision (a). He signed a written plea form including a recital that he would be "required to pay various fines, fees and assessments, including . . . a state restitution fine of not less than two hundred ($200.00) dollars [sic]and not more than ten thousand ($10,000.00) dollars [sic]." In taking his plea, the court advised him of "the fact that you'll have to pay a State Restitution Fund fine of between 200 and $10,000 . . . ." At sentencing, however, the court imposed "a State Restitution Fund fine of $5,000 for each count. A total fine of $15,000." After the court pronounced sentence, defense counsel said, "[J]ust for the record, I want to lodge an objection to the fine of $15,000. I don't believe it's warranted under the circumstances. I'm just lodging it so I don't waive it." The court imposed the fine as pronounced. Defendant filed this timely appeal.
DISCUSSION
The governing statute requires the imposition of a restitution fine, to be deposited into the State Restitution Fund, "[i]n every case where a person is convicted of a crime." (Pen. Code, § 1202.4, subd. (b).) The amount of the fine "shall be . . . 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 . . . ." (Id., subd. (b)(1).) The statute has been construed to allow a maximum fine of $10,000 in any one criminal prosecution, " 'regardless of the number of victims or counts involved.' " People v. Blackburn (1999) 72 Cal.App.4th 1520, 1534, quoting People v. Ivans (1992) 2 Cal.App.4th 1654, 1667.)
Given this construction, the statute did not authorize the $15,000 fine imposed by the trial court. Respondent concedes the error, and the concession is well taken.
Defendant contends that we should remand the matter to the trial court "to redetermine the . . . fine." No apparent purpose would be served by such a procedure. The trial court's order manifested an unmistakable intention to impose a restitution fine of at least the statutory maximum. In addition to the amount imposed, the court rejected an assertion by counsel that a fine of $15,000 was not "warranted [by the] circumstances." There is no reason to suppose that the court might find a fine of less than the statutory maximum appropriate. We will therefore modify the judgment by reducing the fine to the statutory maximum. (See People v. Blackburn, supra, 72 Cal.App.4th at p. 1534.)
DISPOSITION
The judgment is modified by striking the restitution fine of $5,000 on each count and inserting in its place a single restitution fine of $10,000. As so modified, the judgment is affirmed.
RUSHING, P.J. WE CONCUR:
DUFFY, J.
Judge of the Santa Clara County Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.