Opinion
F073524
06-05-2018
THE PEOPLE, Plaintiff and Respondent, v. FELIPE ROMAN HOLGUIN, Defendant and Appellant.
Robert Navarro, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, and Catherine Chatman, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Madera Super. Ct. No. MCR052047)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Madera County. Dale J. Blea, Judge. Robert Navarro, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, and Catherine Chatman, Deputy Attorney General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Poochigian, J. and Franson, J.
-ooOoo-
INTRODUCTION
Appellant/defendant Felipe Roman Holquin was charged with the first degree murder of Demetrius Padilla, with a gang special circumstance and firearm enhancements, and faced a possible sentence of life in prison without possibility of parole. In the midst of defendant's jury trial, as the prosecution presented its case, defendant entered into an agreement to plead guilty to murder for a sentence of 25 years to life, and the People agreed to dismiss the special circumstance and special allegations. As part of the plea, defendant waived his appellate rights.
Prior to sentencing, defendant moved to withdraw his guilty plea claiming he was intoxicated at the plea hearing, and that he did not enter his plea freely and voluntarily. The court denied the motion and sentenced defendant to 25 years to life, including an order for defendant to pay victim restitution of $8,048.69 for the decedent's hospital and funeral expenses.
On appeal, defendant argues the court should have granted his motion to withdraw his guilty plea but relies on an entirely different reason - because he was not advised, at the time of his plea, that the court would impose a victim restitution order when he was sentenced. We affirm.
FACTS
The following facts are from the preliminary hearing, with additional facts in the footnotes from the partial trial transcript. The parties stipulated to both records as the factual basis for defendant's plea.
In 2013, Carmen Hernandez met Eddie Herrera, who owned a bar. Hernandez and her boyfriend, James Owens, helped Herrera run the bar. Herrera associated with "Northern" gang members.
Hernandez and Owens testified they also sold and delivered drugs for Herrera. Hernandez and Owens lived in a house that Herrera rented from his cousin. Herrera paid their rent and kept his drugs in that house.
Hernandez first met defendant in 2013 when she met Herrera. She heard defendant say Herrera was his cousin. Owens knew defendant as "Little Rome." Hernandez moves into Padilla's house
In April 2015, Herrera told Hernandez and Owens that they had to move out of his rental house immediately.
Demetrius "Game Over" Padilla (the murder victim in this case) was the godfather to Hernandez's child. Hernandez told Padilla that Herrera was throwing her out. Padilla offered Hernandez a place to stay. Padilla and Herrera had been involved in a prior altercation, and Padilla wanted to take one of Herrera's cars. Hernandez replied that she did not care.
Hernandez and Owens moved into Padilla's house. They initially lived in the basement, and then moved into a trailer that Hernandez parked in Padilla's backyard.
Hernandez testified that Padilla was previously a member of a Northern gang but no longer had any gang ties. Padilla's theft of defendant's drugs
At trial, the prosecution introduced evidence that Herrera and defendant were members of the same Norteño/Varrio West Side gang. Padilla was a former member and "dropout" from a Norteño gang that was from a different neighborhood.
After Hernandez moved out of Herrera's rental house, Padilla broke into that house and stole drugs that Herrera kept there. After the burglary, Padilla and Hernandez split up the methamphetamine and cocaine that Padilla had stolen from Herrera's house. The incident at the gas station
At trial, Hernandez testified she told Padilla about Herrera's drug stash after Herrera said she had to move out of his rental house. Hernandez testified that Padilla talked about stealing Herrera's drugs from the house, and Hernandez told him that she did not care.
On May 25, 2015, the Memorial Day holiday, Hernandez and Owens were still living in the trailer in Padilla's backyard. Around 5:00 p.m. Hernandez walked to the store with Owens and Padilla. After they finished at the store, they walked to a gas station and saw a car approaching them.
Hernandez testified that defendant jumped out of the car and walked up to Padilla and Owens. Owens also identified defendant as the person who approached them. Owens testified defendant looked a little bit upset. Defendant lifted up his shirt and said he did not have a weapon. Defendant asked them what was going on, and whether they had robbed his friend, Herrera. Defendant said he was going to go back and speak with Herrera. Defendant shook hands with Padilla and Owens, hugged them, and walked away. Hernandez, Owens, and Padilla returned to Padilla's house. The homicide
Around 10:40 p.m. on the same day, Hernandez and Padilla were in the backyard of Padilla's house. The backyard was surrounded by a wood fence with a wrought-iron gate for a car. There was a street light outside the gate and lighting from a building across the street that reflected into the backyard.
Hernandez testified they were talking about getting Padilla's car fixed. They heard someone whistle. Hernandez testified she looked toward the gate, and she saw someone standing there. The person was wearing a black shirt and red shorts.
At the preliminary hearing, Hernandez identified defendant as the person who was standing at the gate. Padilla walked toward the fence as if he was going to speak to defendant. Owens was in the trailer.
Hernandez testified she turned away from the fence and walked to the trailer to talk to Owens. She heard two gunshots. She turned around and saw Padilla lying on the ground. Hernandez testified she saw defendant "with his arm through the gate, shooting."
At trial, Hernandez again identified defendant as the man who whistled, stood at the gate, put his arm through the gate, and shot Padilla.
Owens heard the gunshots in the trailer. He went out and pulled Hernandez to the ground. There were about four more gunshots. When the gunshots ended, defendant was gone. Hernandez did not see how he left. Owens tried to help Padilla, but he was not responding. Hernandez called 911.
Padilla died as a result of gunshot wounds. Hernandez's prior statements
The trial evidence was that Padilla was fatally shot through the head.
At the preliminary hearing, Hernandez testified that she was positive defendant was the gunman. Hernandez admitted that when the police initially interviewed her shortly after the shooting, she made several statements. She said that she did not see the gunman, she just heard the shots, and she found Padilla on the ground.
Later in the investigation, Hernandez was interviewed a second time and again said she did not see the gunman. During her third interview, however, the police confronted her about Padilla's theft of Herrera's drugs and the incident near the store with defendant. Hernandez told the police that she was 80 percent certain defendant was the gunman; he was wearing the same clothes during the shooting that she saw him wearing during the incident at the store earlier in the day. Defendant's statements after the shooting
Hernandez testified at the preliminary hearing and at trial under a grant of immunity for her involvement in the burglary of Herrera's house, the theft of his drugs, and her prior drug activities for Herrera.
Late in the evening after the shooting, defendant arrived at a friend's house. Patricia Valencia and her boyfriend, Jose Ochoa, were already there. Defendant and Ochoa talked, and Ochoa started yelling at defendant that "he was dumb and what did he do it for." Valencia heard defendant tell Ochoa that he had shot someone, and he asked Ochoa to get rid of the casings.
Ochoa had prior convictions for receiving stolen property, assault with a gang enhancement, resisting arrest, and providing false information to law enforcement. At the time of the preliminary hearing and trial, Ochoa was testifying under a grant of immunity. He had several pending cases and agreed to provide information to the police to "work off" one of his felony charges. Ochoa was a former member and dropout from the Norteño/Varrio West Side gang. Ochoa testified that Padilla was a dropout and living in Varrio West Side territory, a neighborhood that he should not have been in.
An officer testified at trial that shell casings were not found at the scene of the homicide.
Ochoa testified that defendant was "under the influence of something." He was a "little amped up," and he might have been drunk. Ochoa was a dropout from the Norteño gang and not in good standing with them. Defendant told Ochoa that he had the chance to get back in, and encouraged Ochoa to participate with the gang again. Defendant handed .38-caliber shell casings to Ochoa. Ochoa asked defendant, "[W]hy did he shoot [Padilla]," and defendant "answered that he was done." Ochoa refused to take the casings. Defendant put them away and walked off.
Ochoa testified he spoke with defendant at a later time. Defendant was worried about being a person of interest in a case. Ochoa knew that Padilla had been killed. Defendant indicated he knew Padilla was dead and insinuated that he knew how he was killed. Defendant said Padilla had been lured into an alley and shot.
In a subsequent conversation, defendant told Ochoa that he regretted doing what he did; he should not have done it; and he felt bad about it. Defendant did not specifically say that he shot Padilla, but Ochoa believed that was what he was talking about.
At trial, the prosecution introduced evidence that Ochoa talked with defendant approximately two weeks after the shooting about how Padilla had been killed. Defendant told Ochoa about the incident with Padilla at the gas station, and said he "let that fool have it."
Gang evidence
Also at the preliminary hearing, Officer Hector Garibay of the Madera Police Department testified about his prior personal contacts with defendant and further testified that defendant was an active participant in the Norteño criminal gang and the Varrio West Side subset. Garibay testified that Padilla was a dropout from the Norteno gang.
In response to a hypothetical question, Officer Garibay testified that the murder of a dropout who stole drugs from a Norteño gang member would be a crime to benefit the gang, and send the message that the gang was violent and willing to protect their neighborhood.
For purposes of the preliminary hearing only, the parties stipulated that the Norteños and the Varrio West Side subset were criminal street gangs within the meaning of Penal Code section 186.22.
All further statutory citations are to the Penal Code unless otherwise indicated.
PROCEDURAL HISTORY
On July 28, 2015, a felony complaint was filed that charged defendant with count 1, first degree premeditated murder of Padilla (§ 187, subd. (a)), with the special circumstance that defendant intentionally killed the victim while defendant was an active participant in a criminal street gang (§ 664, subd. (a)), and that the murder was carried out to further the activities of the criminal street gang (§ 190.2, subd. (a)).
The complaint further alleged that defendant personally and intentionally discharged a firearm proximately causing great bodily injury and death (§ 12022.53, subd. (d)); personally and intentionally discharged a firearm (§ 12022.53, subd. (c)); and personally used a firearm (§ 12022.5, subd. (a)(1) and 12022.53, subd. (b)).
On October 2, 2015, the preliminary hearing was conducted and defendant was held to answer.
On October 16, 2015, the information was filed that charged defendant with count 1, first degree premeditated murder of Padilla, with the gang special circumstance and the same firearm allegations. Defendant faced a potential sentence of life in prison without possibility of parole. Defendant pleaded not guilty.
Start of jury trial
On February 11, 2016, defendant's trial began with motions in limine and jury selection. On February 16, 2016, the People began to introduce evidence in its case-in-chief.
On February 23, 2016, defendant's jury trial continued with the prosecution testimony of Carmen Hernandez. Just before the noon recess, the parties advised the court that there was a possible resolution for the case.
Defendant's Guilty Plea Declaration
Also on February 23, 2016, defendant signed a preprinted form entitled, "Declaration Regarding Guilty Plea," with relevant facts entered into the document. Defendant initialed each line. The form was also signed by the district attorney and defense counsel.
The declaration stated that defendant agreed to plead guilty to first degree murder (§ 187, subd. (a)), the prosecution would move to dismiss the special circumstance and the firearm allegations, and defendant would be sentenced to 25 years to life and waive his appellate rights.
The parties stipulated to the preliminary hearing transcript and the trial transcript, up to that point, as the factual basis for the plea.
According to the document, defendant declared that he was in possession of all his faculties and had not consumed any drugs, narcotics, or alcoholic beverages in the prior 24 hours to impair his judgment; he had not been induced to plead guilty by any promises or representations except for the dismissal of the special circumstance and special allegations; he did not need additional time to think about the plea; and he was entering his plea freely and voluntarily. Defendant further declared his attorney had explained the allegations in the information, and he understood the nature of the charges and possible defenses.
Defendant initialed the declaration that defense counsel had explained that if he pleaded guilty, he understood the maximum punishment was 25 years to life, a $10,000 fine, and lifetime parole. There was a preprinted space for restitution, but it was not filled in.
Defendant signed the bottom of the document that declared: "I have personally prepared and discussed with my attorney, or have read, discussed and had explained to me by my attorney, each of the above items, and I understand same." Defendant's counsel signed a similar declaration, verifying he had discussed and explained the contents of the document with defendant.
Plea hearing
Later, on February 23, 2016, the court reconvened the trial outside the jury's presence. The court stated that it had been given the form for defendant's declaration to plead guilty to first degree murder for a sentence of 25 years to life, the People would dismiss the special circumstance and special allegations, and defendant would waive his appellate rights. Defendant and the attorneys agreed with the provisions of the plea.
The court asked defendant if he had signed and initialed the form, and defendant said yes. The court asked if he understood the information in the form and had sufficient time to speak with his attorney; defendant said yes.
The court fully advised defendant of his constitutional rights. Defendant said he understood and waived his rights.
The court asked defendant if he had taken any alcohol, drugs, or other medication to interfere with his ability to understood the proceedings. Defendant said no.
The court accepted the parties' stipulation that the factual basis consisted of the preliminary hearing transcript and the partial trial transcript up to that point. The prosecutor further stated as the factual basis that defendant approached Padilla in his backyard and fatally shot him with a .38-caliber special revolver.
The court advised defendant that if he was found guilty, he would be sentenced to 25 years to life and could be fined up to $10,000.
The court did not advise defendant that, pursuant to section 1192.5, its approval of the plea was not binding, it could withdraw its approval at the sentencing hearing, and if it did, defendant could then withdraw his plea. (See, e.g., People v. Dickerson (2004) 122 Cal.App.4th 1374, 1382, fn. 13.)
Thereafter, defendant pleaded guilty to the murder of Padilla (§ 187, subd. (a)); it was committed willfully, deliberately, and with premeditation (§ 189); and that it was a serious and violent felony (§§ 1192.7, 667.5). The court found defendant entered his plea knowingly, intelligently, and voluntarily.
The court ordered the preparation of a probation report and set the sentencing hearing.
Defendant's motion to withdraw the plea
On March 10, 2016, defense counsel filed a motion for defendant to withdraw his guilty plea because defendant was allegedly under the influence of alcohol and possibly narcotics, and he was subject to anxiety that may have impaired his mental abilities when he entered the plea.
The motion was supported by defendant's declaration that on the day of the plea, he consumed eight cups of "pruno" and took "some pills" in jail; he had mental issues; he was under extreme pressure and anxiety; and all these factors affected his ability to enter his plea. Defendant further declared his family believed that he had made a bad decision, that they wanted him to get a lawyer and take back his plea, and that they knew he was innocent.
On March 16, 2016, the People filed opposition and argued the record showed defendant indicated numerous times that he understood the consequences of his waivers and guilty plea; he declared he had not used drugs or alcohol when he signed the plea form; he made a similar statement during the plea hearing; and defendant did not display any signs of being impaired.
The probation report
In the probation report, defendant told the probation officer that he intended to withdraw his guilty plea; his lawyer did not fight for him; and he got the "worst deal ever." Defendant said he did not make the right decision because of stress, anxiety, and depression. Defendant said he had never been diagnosed with any mental health conditions and he was not taking medication. He claimed that he heard voices and suffered from anxiety and depression. Defendant said he cut himself and tried to commit suicide approximately eight times.
The probation report also addressed victim restitution. It stated that a victim services representative had submitted documentation for victim restitution for Padilla's family, including specific amounts for Padilla's hospital and funeral expenses, for a total of $8,048.69. The victim compensation program had already paid for these expenses, and the report recommended the court order all restitution payable to the California Victim Assistance Center.
The probation report recommended a sentence of 25 years to life pursuant to the terms of the plea agreement, plus a restitution fine of $300, and a specific list of separate fines, fees, and assessments of over $41,000.
The probation report also recommended the court order victim restitution of $8,048.69 payable to the Victim Assistance Center on behalf of Padilla's family. The documents in support of the victim restitution claim were attached to the probation report.
The court's hearing on the motion to withdraw
On March 29, 2016, the court convened the sentencing hearing and first considered defendant's motion to withdraw his plea.
The court denied defendant's motion because he failed to show good cause. The court stated that based upon its observations of defendant during the plea hearing, he did not demonstrate any behavior to indicate he was intoxicated. The court suspected that most people facing these charges would be anxious and stressed, but there was no evidence that anything interfered with defendant's ability to understand the nature and circumstances of his plea.
Defendant addressed the court and stated he suffered from mental problems; he cut himself to deal with problems; he was depressed and felt he was living in a dream during the trial; he did not understand what was going on; he heard voices; all the prosecution's witnesses were drug addicts, making up stories, and lying; and it was wrong for him to go to prison for something he did not do.
The court again denied his motion to withdraw and found defendant entered his plea knowingly and intelligently, after having the opportunity to discuss the matter with his attorney.
Sentencing
The court turned to the sentencing hearing. The court heard statements from Padilla's family about their loss.
Defense counsel stated he had received the probation report and the attached hospital receipts. Defense counsel did not object to the probation report's recommendation for victim restitution. However, defense counsel argued that "in light of the restitution ... that has to be imposed in this case," the probation report's additional recommendation for over $41,000 in separate fines and fees should be stayed because of defendant's inability to pay and the severity of his life sentence. Defense counsel also noted an error in one of the assessed fees. The prosecutor agreed that one of the specified fees was incorrect.
The court sentenced defendant to 25 years to life for murder, plus a $300 restitution fine pursuant to section 1202.4, subdivision (b).
The court imposed a victim restitution order for $8,048.69 pursuant to section 1202.4, subdivision (f), payable to the Victim Assistance Center.
The court separately imposed fines, fees, and assessments for a total of $41,430.
The court advised defendant that while he had waived his right to appeal as part of his plea agreement, he had the right to appeal from the court's denial of his motion to withdraw his plea.
Notice of appeal/certificate of probable cause
On the same day, defendant filed a notice of appeal. He requested a certificate of probable cause based on ineffective assistance, and also submitted the same declaration that he filed with his motion to withdraw his plea - that he was intoxicated and anxious when he entered his plea.
DISCUSSION
On appeal, defendant contends the court should have granted his motion to withdraw his guilty plea, but makes an argument that was not raised before the superior court. Defendant asserts that his plea was invalid because the court failed to advise him that he was required to pay victim restitution as part of his sentence; his defense attorney was ineffective for failing to advise him about victim restitution or object to the order; and he should be allowed to withdraw his plea because of the failure to advise and because of the imposition of the victim restitution order.
A. Waiver of Appellate Rights
We first note that in entering his plea, defendant waived his appellate rights as a condition of his plea. At the sentencing hearing, however, the court advised defendant that he still retained the right to appeal from the court's denial of his motion to withdraw his plea.
As explained above, defendant's motion to withdraw his plea was based on his claim that he was allegedly under the influence and anxious when he entered the plea, and he made a mistake by doing so. In support of his request for a certificate of probable cause, defendant raised "ineffective assistance" but resubmitted the same declaration he filed his support of his motion to withdraw his plea. Defendant did not raise any issues regarding the victim restitution order in either his motion to withdraw or his request for a certificate of probable cause.
On appeal, defendant raises the argument that his defense attorney was ineffective for failing to move to withdraw his guilty plea based on the court's failure to advise him about the victim restitution order.
"A broad or general waiver of appeal rights ordinarily includes error occurring before but not after the waiver because the defendant could not knowingly and intelligently waive the right to appeal any unforeseen or unknown future error. [Citation.] Thus, a waiver of appeal rights does not apply to ' "possible future error" [that] is outside the defendant's contemplation and knowledge at the time the waiver is made.' [Citations.]" (People v. Mumm (2002) 98 Cal.App.4th 812, 815.) Defendant entered the plea before the probation report recommendation for victim restitution and the court's order.
In addition, a claim of ineffective assistance of counsel in connection with the making of the plea and waiver agreement "cannot be barred by the agreement that is the product of the alleged ineffectiveness." (People v. Orozco (2010) 180 Cal.App.4th 1279, 1285.) We thus turn to the merits of defendant's claim. B. Restitution and plea agreements
"As a rule, 'before taking a guilty plea the trial court must admonish the defendant of both the constitutional rights that are being waived and the direct consequences of the plea. [Citations.]' [Citation.]" (People v. Rowland (1997) 51 Cal.App.4th 1745, 1752-1753 (Rowland).) Victim restitution is a direct consequence of the plea. (Harris v. Superior Court (2017) 14 Cal.App.5th 142, 149-150; Rowland, supra, 51 Cal.App.4th at p. 1753.) The medical and funeral expenses incurred by the family of a deceased victim are proper subjects of a victim restitution order. (People v. Runyan (2012) 54 Cal.4th 849, 854; People v. Mays (2017) 15 Cal.App.5th 1232, 1236-1238.)
"[V]ictim restitution is mandated by both the Constitution and section 1202.4. [Citations.] The only discretion retained by the trial court in this regard is in fixing the amount of the award. Although section 1202.4 mandates a sum which will fully reimburse the victim(s), the court can for 'clear and compelling reasons' award a lesser amount. However, in such a case the court must state the reasons for issuing a lesser award. [Citations.]" (Rowland, supra, 51 Cal.App.4th at p. 1751; Harris v. Superior Court, supra, 14 Cal.App.5th at pp. 149-150.)
Defendant relies on People v. Walker (1991) 54 Cal.3d 1013 (Walker) in support of his claim that he should be allowed to withdraw his plea because of the court's failure to advise him about the victim restitution order. In Walker, the defendant pleaded guilty to one felony count in exchange for dismissal of another charge and a five-year prison term with credit for time served. (Id. at pp. 1018-1019.) The trial court advised the defendant that " 'the maximum penalties provided by law for this offense are either 3 years, 5 years, or 7 years in state prison and a [penal] fine of up to $10,000,' followed by a period of parole." (Id. at p. 1019.) "The probation report prepared before the plea, and supplied to the defense, recommended a $7,000 restitution fine; the record discloses no other mention of the possibility of such a fine prior to sentencing. Defendant did not object to the fine at sentencing." (Ibid.) At the sentencing hearing, the court imposed a prison term pursuant to the negotiated disposition and also imposed a $5,000 restitution fine. (Ibid.)
Walker agreed with defendant's argument that the restitution fine imposed at the sentencing hearing exceeded the terms of the plea bargain and "was a significant deviation from the negotiated terms of the plea bargain." (Walker, supra, 54 Cal.3d at p. 1029.) Walker held the plea agreement was violated by imposition of the restitution fine but declined to allow the defendant to withdraw his plea. Instead, the court reduced the restitution fine to the statutory minimum to achieve "substantial compliance with the terms of the plea bargain without violating the statutory requirement of a restitution fine." (Id. at p. 1028.)
Walker was disapproved of in People v. Villalobos (2012) 54 Cal.4th 177 (Villalobos), where the defendant pleaded no contest to attempted murder and second degree robbery, in exchange for a 17-year prison term and dismissal of other allegations. The court advised the defendant that he could be required to pay restitution as a result of his plea, but did not state the possible amount, or explain the restitution and parole revocation fines. At the sentencing hearing, the trial court imposed a $4,000 restitution fine and a $4,000 parole revocation fine, and also ordered that victim restitution would remain open pending any future expenses; the defendant did not object. On appeal, the defendant relied on Walker and argued that each $4,000 restitution fine violated his plea agreement because the court failed to advise him about these fines when he entered his plea. The defendant asserted that both fines should be reduced to the statutory minimum. (Villalobos, supra, at pp. 179-180.)
Villalobos held that the possible imposition of a restitution fine is a direct consequence of a plea agreement, and the court was required to advise the defendant about such a consequence. (Villalobos, supra, 54 Cal.4th at p. 181.) "However, we have held that because 'advisement as to the consequences of a plea is not constitutionally mandated,' 'the error is waived absent a timely objection.' [Citation.] In this case, defendant failed to object to the restitution fine at or before sentencing; thus, the advisement error does not entitle defendant to a remedy." (Id. at p. 182.)
Villalobos further held that "[a] defendant forfeits a claim that his punishment exceeds the terms of a plea bargain when the trial court gives a section 1192.5 admonition and the defendant does not withdraw his plea at sentencing. [Citations.] Here, the trial court did not give a section 1192.5 admonition, so defendant's failure to object at sentencing does not waive his claim on appeal. This claim - that imposition of the two $4,000 fines violated the terms of his plea bargain - is the basis of defendant's argument for relief." (Villalobos, supra, 54 Cal.4th at p. 182.)
"The third paragraph of section 1192.5 requires a court to advise a 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.' " (People v. Dickerson, supra, 122 Cal.App.4th at p. 1382, fn. 13.) --------
Villalobos rejected Walker's holding that the failure to advise the defendant about the restitution fine, and the actual imposition of the fine, violated the plea agreement or allowed a defendant to withdraw his plea. "[W]e believe [Walker] cannot be reconciled with subsequent cases where we have held that mere silence by the parties and trial court concerning a statutorily mandated punishment does not make exclusion of the punishment a negotiated term of a plea agreement. As we explain and now clarify below, when a restitution fine is not mentioned in the plea agreement or in the trial court's plea colloquy, '[t]he restitution fine shall be set at the discretion of the court ....' [Citation.] Walker left unclear the basis for the defendant's belief that his plea agreement excluded imposition of a substantial fine. To the extent Walker suggests that the parties' and trial court's silence provided such a basis, it is overruled." (Villalobos, supra, 54 Cal.4th at p. 183, italics added.)
Villalobos reviewed a series of cases decided after Walker, which held "that a plea agreement is not violated by imposition of a statutorily mandated term that was omitted from the agreement." (Villalobos, supra, 54 Cal.4th at p. 183, italics added.)
"[In two prior cases,] failure to make a statutorily mandated punishment an express term of a defendant's plea agreement did not render imposition of such punishment a violation of the plea agreement. With regard to statutorily mandated restitution fines, we have said that parties are free to negotiate the amount of those fines. [Citations.] However, where the parties have not mentioned the amount of the fine during the plea negotiation, and where the trial court has not threatened or promised any particular amount of fine during the plea colloquy, the amount of the fine is not part of the plea agreement, and the trial court is free to impose a fine within the statutory range. Absent an expressly negotiated term in the plea bargain concerning the fine, we see no basis to conclude that imposition of a fine within the statutory range constitutes more punishment than what the defendant bargained for." (Villalobos, supra, 54 Cal.4th at p. 184.)
Villalobos acknowledged that " 'restitution' and 'restitution fines' are distinct, nonoverlapping penalties and that advisement of one does not entail advisement of the other. [Citations.] Our cases have emphasized, and we reaffirm, that in advising defendants of the consequences of a guilty plea, trial courts should always warn of the imposition of a restitution fine, with specific mention of the statutory minimum and maximum amounts. [Citations.] [¶] However, a trial court's advisement error does not mean that imposition of a substantial fine violates a plea agreement. [A]dvisement error and violation of a plea bargain are two different things. [Citations.] Were we to hold that the trial court's failure to properly advise defendant foreclosed imposition of a substantial restitution fine, we would contradict the principle that 'the trial court's omission ... [does] not transform the court's error into a term of the parties' plea agreement.' [Citation.]" (Villalobos, supra, 54 Cal.4th at p. 185, italics in original.)
"In sum, failure to address the amount of a restitution fine in plea negotiations or during the plea colloquy does not transform imposition of such a fine into a violation of the plea agreement. Instead, where neither the parties nor the trial court has specified the fine amount in the context of a plea bargain, '[t]he restitution fine shall be set at the discretion of the court ....' [Citation.] Because no specific amount of fine was expressly negotiated or otherwise made a part of the plea agreement here, it cannot be said that the $4,000 restitution fine and $4,000 parole revocation fine imposed more punishment than defendant bargained for." (Villalobos, supra, 54 Cal.4th at pp. 185-186.)
B. Analysis
In this case, as in Villalobos, the court did not read the section 1192.5 admonishment to defendant or advise him about a potential restitution order at the plea hearing. However, defendant is not entitled to withdraw his plea, and defense counsel's failure to advise him or object was not prejudicial.
We first note that, contrary to defendant's appellate claim, defense counsel was not silent about the court's imposition of the victim restitution order. The probation report clearly stated that the victim's hospital and funeral expenses had already been paid by the victim's compensation fund. The report requested the court impose a victim restitution order of $8,048.69 and attached the documents in support of those expenses.
At the sentencing hearing, defense counsel acknowledged receipt of the probation report and the attached expense receipts. Defense counsel did not object to the probation report's recommendation, but he was aware of the potential victim restitution order. Indeed, counsel relied on the probation report's recommendation for victim restitution to argue that "in light of the restitution ... that has to be imposed in this case," the court should stay the additional recommendation for over $41,000 in separate fines, fees, and assessments because of defendant's inability to pay and the severity of his life sentence. Counsel may have declined to object to the victim restitution recommendation, since such an order would have been mandatory, and the court would not have been inclined to reject the recommendation. Instead, he requested the court exercise its discretion to reduce the recommendation for the larger amount of fines, fees, and assessments in light of the amount that was going to be ordered for victim restitution.
In any event, the court's failure to expressly advise defendant about the possibility of a victim restitution order when he entered his plea does not constitute a violation of the plea agreement or allow defendant to withdraw his plea. Since victim restitution is mandatory, the trial court's failure to address the amount of a possible victim restitution order during the plea colloquy does not transform imposition of victim restitution into a violation of the plea agreement. (Villalobos, supra, 54 Cal.4th at pp. 185-186.) Defendant's plea agreement was not violated "by imposition of a statutorily mandated term that was omitted from the agreement." (Id. at p. 183.)
DISPOSITION
The judgment is affirmed.