Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Lake County Super. Ct. No. CR908603. Reardon, J.
This matter comes to U.S. on remand from the California Supreme Court, with directions to “ vacate [our] decision and to reconsider the cause in light of People v. Crandell (2007) 40 Cal.4th 1301 [Crandell] . . . .” In our earlier opinion, we concluded that imposition of a $525 drug program fee plus penalty assessment pursuant to Health and Safety Code section 11372.7 did not violate the terms of the negotiated disposition and accordingly affirmed the judgment. (People v. Floyd (Jan. 10, 2007, A114159) [nonpub. opn.].) No supplemental briefs have been filed.
Unless otherwise noted, all statutory references are to the Health and Safety Code.
Having reconsidered the cause in light of Crandell, we again affirm the judgment.
I. BACKGROUND
Pursuant to a negotiated disposition, appellant Eric Jason Floyd pleaded guilty to possession of oxycodone for sale (§ 11351) in return for dismissal of a charge of possession of oxycodone and allegations that he suffered two prior prison terms. In the process of taking his plea, the court advised appellant that in addition to the restitution fine “ you also may be ordered to make a fine payment in the sum of not to exceed ten thousand dollars, plus penalty assessments; you understand that?” Appellant acknowledge that he understood the consequence. (People v. Floyd, supra, A114159.)
Among other items the probation report recommended a $175 laboratory analysis fee plus penalty assessment and a $525 drug program fee plus penalty assessment, and the court imposed the same without objection. (People v. Floyd, supra, A114159.)
On appeal to this court, appellant attacked imposition of the drug program fine and penalty assessment pursuant to section 11372.7, arguing that these items were not part of the plea bargain and therefore the court had no authority to impose them. We concluded this argument lacked merit, explaining as follows: “ The parties negotiating a plea agreement are free to craft any lawful bargain they choose. [Citation.] Walker does not preclude criminal defendants from reaching whatever deal seems to be in their best interests, including a deal that leaves imposition of fines to the discretion of the sentencing court. [Citation.] Here the record of the negotiated disposition is silent as to a drug program fine and penalty assessments. Certainly such silence does not constitute evidence of an agreement that no fine, or a minimum fine within a statutory range, would be imposed. Rather, we conclude it suggests an implicit agreement that the imposition and amount of any fines would be left to the discretion of the sentencing court. [Citation.] [¶ ] Several factors support our conclusion that the matter of fines was left to the court’s discretion. First, the main focus of the plea agreement was the amount of prison time. [Citation.] Second, the court advised, and appellant acknowledged, that he could be fined up to $10,000 plus penalty assessments. [Citations.] Further, the probation report notified appellant that the probation officer was recommending specific fines and penalties, and appellant did not object at sentencing to these recommendations or the court’s imposition of such fines. [Citation.]” (People v. Floyd, supra, A114159.)
Referring to People v. Walker (1991) 54 Cal.3d 1013, wherein the court held that imposition of a $5,000 restitution fine violated the terms of the defendant’s plea agreement and reversed with directions to modify the judgment by reducing the fine to the $100 statutory minimum. (Id. at pp. 1029-1031.) As later explained in In re Moser (1993) 6 Cal.4th 342, 356, in Walker the court “ implicitly found that the defendant in that case reasonably could have understood the negotiated plea agreement to signify that no substantial fine would be imposed.”
Following affirmance of the judgment, appellant petitioned the Supreme Court for review. The court deferred action pending consideration and disposition of a related issue in Crandell, and thereafter transferred the matter back to U.S. as stated above.
II. DISCUSSION
In Crandell, the prosecutor did not mention a restitution fine when he recited the plea agreement. However, in advising the defendant of the consequences of the plea, the trial court informed him that he would have to pay a restitution fund fine of a minimum of $200, maximum $10,000. The defendant acknowledged this reality, and indicated no other promises had been made. He did not receive an admonition on the right to withdraw the plea pursuant to Penal Code section 1202.4. The court imposed a $2,600 restitution fine. Our Supreme Court held that the imposition of the restitution fine did not breach the plea agreement because the trial court accurately advised the defendant that he would be required to pay restitution. Thus, in entering his plea the defendant “ could not reasonably have understood his negotiated disposition to signify that no substantial restitution fine would be imposed.” (Crandell, supra, 40 Cal.4th at p. 1310.)
Crandell supports our earlier analysis and conclusion. Here, in addition to advising appellant that he would have to pay restitution within a statutory range, the court told appellant he also might be ordered to pay a fine not to exceed $10,000, plus penalty assessments. We are not concerned that, unlike the advisement in question here, the defendant in Crandell was “ flatly informed” that “ You will be ordered to pay restitution . . . .” (Crandell, supra, 40 Cal.4th at p. 1310.) In contrast, although the court advised appellant that he would have to pay restitution of no less than $200, no more than $10,000, with an identical amount imposed but stayed unless parole were revoked, the court further advised that appellant may be ordered to pay other fines up to $10,000, plus penalties. It is apparent that appellant knew, prior to entering his plea, that he was facing substantial fines. The total amount actually imposed was $2,100 (including $600 in restitution suspended if parole were not revoked), well below even the maximum amount that could be imposed as a restitution fine. On these specific facts, we do not think appellant reasonably could have understood his negotiated disposition to suggest that fines up to $2,100 would not be imposed.
People v. Sorenson (2005) 125 Cal.App.4th 612 also bolsters our analysis and conclusion. There, the trial court admonished the defendant that he could be ordered to pay fines totaling as much as $5,000 and restitution ranging from $200 to $10,000. (Id. at p. 616.) With respect to the fines, the court explained that although “ the trial court did not comprehensively advise defendant that it was likely to impose” a myriad of separate fines and penalty assessments [which it did], “ the law requires only that a defendant be advised generally of the ‘ “ permissible range of punishment provided by statute” ’ [citations] . . . .” (Id. at p. 621.) So, too, in this case appellant was generally advised about fines, and at sentencing specific fines were imposed.
III. DISPOSITION
The judgment is affirmed.
We concur: Ruvolo, P.J., Sepulveda, J.