Opinion
NOT TO BE PUBLISHED
San Benito County Super. Ct. No. CR0600089
Bamattre-Manoukian, ACTING P.J.
I. INTRODUCTION
This matter has been transferred to this court by 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.” In our previous opinion, we concluded that imposition of a restitution fine of $400 did not violate the terms of defendant’s plea bargain. (People v. Infante (Feb. 13, 2007, H030376) [nonpub. opn.].)
We also concluded in our previous opinion that the People’s failure to file an information did not deprive the trial court of jurisdiction. We do not address the jurisdictional issue in this opinion because the rulings in Crandell, supra, 40 Cal.4th 1301 do not involve a jurisdictional issue.
No supplemental briefs have been filed in response to the transfer order. (Cal. Rules of Court, rule 8.200.) Having reconsidered the cause in light of Crandell we will again affirm the judgment.
II. FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged by complaint with two felonies, resisting an executive officer by means of threats and violence (Pen. Code, § 69; count 1) and carrying a concealed dirk or dagger (§ 12020, subd. (a)(4); count 2). The complaint also included a special allegation that defendant had served three prior prison terms. At the conclusion of the preliminary hearing, defendant was held to answer on all charges set forth in the complaint.
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant entered into a plea agreement on April 10, 2006. Before accepting defendant’s plea, the trial court advised defendant that, among other things, he could be ordered to pay a restitution fine of a minimum of $200 to a maximum of $10,000. Thereafter, defendant pleaded no contest to all counts and one prison prior in exchange for an indicated aggregate sentence of two years, four months and dismissal of two prison priors.
At the sentencing hearing the trial court imposed an aggregate sentence of two years four months, which included imposition of the lower term of 16 months on count 1, resisting an executive officer by means of threats and violence (§ 69); a concurrent term of 16 months on count 2, carrying a concealed dirk or dagger (§ 12020, subd. (a)(4)); and a sentence of one year, to be served consecutively, on the special allegation of a prison prior. The trial court also imposed a restitution fund fine of $400 and another restitution fine in the same amount, suspended.
After the sentencing hearing, defendant filed a request for a certificate of probable cause, which the trial court granted on July 7, 2006. Thereafter, defendant filed a timely notice of appeal.
On appeal to this court, defendant argued that the trial court had violated the terms of his plea bargain by imposing a $400 restitution fine to which he had not specifically agreed. He sought a reduction of the restitution fine to the statutory minimum of $200, pursuant to People v. Walker (1991) 54 Cal.3d 1013.
“The minimum restitution fine, formerly stated in Government Code section 13967, subdivision (a), was $100 (Stats.1983, ch. 1092, § 135.2, p. 3998) until in 1992 it was increased to $200 (Stats.1992, ch. 682, § 4, p. 2922). (See now Pen.Code, § 1202.4, subd. (b)(1).)” (Crandell, supra, 40 Cal.4th at p. 1308, fn. 5.)
In our previous opinion, we concluded that defendant’s argument lacked merit, for the following reasons: “[D]efendant’s failure to object to the imposition of the restitution fine, when he was advised prior to his plea that a restitution fine of $200 to $10,000 would [be] imposed and again when the $400 fine was imposed at sentencing, indicates that imposition of the restitution fine did not violate the terms of his plea bargain. In People v. McClellan (1993) 6 Cal.4th 367, 378, the California Supreme Court found that the defendant’s failure to object to the requirement of sex offender registration under section 290 at the sentencing hearing suggested that the defendant ‘did not consider the registration requirement significant in the context of his plea agreement.’ [¶] Similarly, this court has previously determined that a defendant’s failure to object to the imposition of a restitution fine at the time of sentencing indicates that imposition of the fine does not violate the terms of the plea bargain ([People v.] Dickerson [(2004)] 122 Cal.App.4th [1374,] 1385.) Additionally, failure to object ‘suggests an implicit agreement that the imposition and amount of any fines was left to the discretion of the sentencing court.’ ([People v.] Sorenson [(2005)] 125 Cal.App.4th [612,] 619.)” (People v. Infante, supra, H030376.) On the basis of this reasoning, we affirmed the judgment.
After this court affirmed the judgment, defendant petitioned the California Supreme Court for review. The court deferred action pending consideration and disposition of a related issue in Crandell. On August 8, 2007, the California Supreme Court transferred the matter to this court with directions to vacate our previous decision and to reconsider the cause in light of Crandell, supra, 40 Cal.4th 1301.
III. DISCUSSION
In Crandell, supra, 40 Cal.4th 1301, our Supreme Court addressed an issue nearly identical to the issue raised in the present case. Defendant Crandell contended that imposition of a $2,600 restitution fine violated his plea bargain and he was entitled to have the fine reduced to the statutory minimum of $200 pursuant to Walker, supra, 54 Cal.3d 1013. (Crandell, 40 Cal.4th at p. 1308.) The court rejected Crandell’s argument on the ground that Walker was distinguishable.
Reviewing its decision in Walker, supra, 54 Cal.3d 1013, our Supreme Court in Crandell pointed out that the trial court in that case had committed two errors not present in Crandell’s trial court proceedings. First, the trial court in Walker erroneously advised the defendant that a restitution fine was “ ‘a possible consequence’ when it ‘should have advised defendant there was a $10,000 penalty fine and a mandatory restitution fine of between $100 and 10,000.’ [Citation.]” (Crandell, supra, 40 Cal.4th at pp. 1307-1308.) Second, “the trial court imposed a restitution fine of $5,000 that had not been mentioned in the parties’ plea bargain.” (Id. at p. 1308.) Thus, our Supreme Court concluded that that defendant in Walker could reasonably have understood “ ‘the negotiated plea agreement to signify that no substantial fine would be imposed.’ [Citation.]” (Crandell, supra, 40 Cal.4th at p. 1310.)
In Crandell, only “the second type of error, violation of the plea bargain,” was in question. (Crandell, supra, 40 Cal.4th at p. 1308.) The trial court had advised Crandell that that he would “ ‘have to pay a restitution fund fine of a minimum of $200, a maximum of $10,000.’ ” (Id. at p. 1305.) Additionally, the trial court had “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.) Our Supreme Court determined that in light of these facts, which were distinguishable from the facts in Walker, supra, 54 Cal.3d 1013, it was “clear that when defendant entered his plea, he 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.)
In so ruling, the court in Crandell articulated two rules. First, “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) that they find mutually agreeable.” (Crandell, supra, 40 Cal.4th at p. 1309.) Second, “ ‘the core question in every case is . . . whether the restitution fine was actually negotiated and made a part of the plea bargain, or whether it was left to the discretion of the court.’ ” (Ibid.) Where the amount of the restitution fine was not expressly made a part of the plea bargain, but “the record demonstrates that the parties intended to leave the amount of defendant’s restitution fine to the discretion of the court, [the] defendant is not entitled to relief” from a restitution fine in excess of the statutory minimum. (Ibid.)
We have reconsidered the present case in light of the rulings in Crandell, supra, 40 Cal.4th 1301. Our review of the record indicates that the parties intended their plea bargain to leave the amount of the restitution fine to the trial court’s discretion, and therefore defendant is not entitled to relief. As in Crandell, the trial court advised defendant that he was subject to a restitution fine of a minimum of $200 to a maximum of $10,000, as stated in the following colloquy before the court accepted defendant’s no contest pleas on April 10, 2006:
“THE COURT: . . . You could be ordered to pay . . . a restitution fine of a minimum of $200 to a maximum of $10,000, and various other fees. You also will be ordered to make restitution to any victim for any economic injury suffered by that victim in an amount to be ordered by the Court. Do you understand that?
“THE DEFENDANT: Yes.”
The trial court also ascertained on April 10, 2006, that the prosecution had not made any other promises to defendant other than the promises the court had already stated on the record:
“THE COURT: Now, other than what has been stated in open court here today, has anybody promised you anything to get you to enter your plea?
“THE DEFENDANT: No.”
Thus, in the present case the trial court, prior to accepting defendant’s plea, advised defendant that he was subject to a restitution fine of a minimum amount of $200 to a maximum amount of $10,000, and also ascertained that no promises had been made in addition to the plea bargain as expressly stated on the record. As in Crandell, the trial court had thereby obtained “assurance that the parties intended their plea bargain to leave the amount of the restitution fine to the court’s discretion. [Citation.]” (Crandell, supra, 40 Cal.4th at p. 1310) Moreover, on these facts, as in Crandell, “it is clear that when defendant entered his plea, he could not reasonably have understood his negotiated disposition to signify that no substantial restitution fine would be imposed.” (Ibid.)
For these reasons, we again conclude that defendant has not established that the trial court’s imposition of a $400 restitution fine at sentencing violated his plea agreement.
IV. DISPOSITION
The judgment is affirmed.
WE CONCUR: MIHARA, J., Duffy, J.