Opinion
F054974
2-10-2009
THE PEOPLE, Plaintiff and Respondent, v. ANDREW SAN MIGUEL, Defendant and Appellant.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Brian Alvarez and Kathleen A. McKenna, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published in Official Reports
OPINION
THE COURT
Before Ardaiz, P.J., Vartabedian, J., and Kane, J.
All further statutory references are to the Penal Code, unless otherwise indicated.
Pursuant to a plea bargain, appellant Andrew San Miguel resolved two criminal cases brought against him by entering no contest pleas to various charges and admitting certain special allegations. At appellants plea hearing, the court asked appellant: "Do you understand that as a result of your plea that you may be required to pay restitution?" Appellant answered, "Yes." This was the only mention at the plea hearing of any monetary payments that might be required by appellant as a result of his pleas. The court then sentenced appellant to a total prison term of six years. It imposed Penal Code section 1202.41 restitution fines totaling $1,800, section 1465.8 court security fees totaling $100, section 1202.45 parole revocation fines (which the court suspended) totaling $1,800, and various other fines, fees, and penalty assessments totaling $1,020.
APPELLANTS CONTENTION
Appellant contends that the terms of his plea bargain were violated by imposition of the $1,800 in restitution fines pursuant to § 1202.4 and imposition of $210 of the other $1,020 in fines, fees and assessments. He contends that we should apply the legal principles explained in People v. Walker (1991) 54 Cal.3d 1013 (Walker) to reduce his § 1202.4 restitution fines to $400 and his $1,020 in other fines, fees, and assessments to a total of $810.
As we will explain, we find appellants contention to be without merit. We conclude that the terms of his plea bargain were not violated, and we will affirm the judgment without any reduction of appellants fines, fees, and penalty assessments.
FACTS
Appellant entered his no contest pleas in two different cases. In case No. VCF193142 (case No. 142), appellant entered a no contest plea to a charge of possession of a controlled substance while armed with a firearm (Health & Saf. Code, §11370.1, subd. (a); count 1). He also admitted allegations he committed this offense while released from custody on bail or on his own recognizance (§ 12022.1), he had two prior felony convictions (§ 1203, subd. (e)(4)), and he had served a prior separate prison term (§ 667.5, subd. (b)). He also entered a no contest plea to a charge of being under the influence of a controlled substance while in the immediate personal possession of a firearm (Health & Saf. Code, § 11550, subd. (e); count 2). A third count was dismissed.
In case No. VCF191557 (case No. 557), appellant entered no contest pleas to charges of being under the influence of a controlled substance while in the immediate personal possession of a firearm (Health & Saf. Code, § 11550, subd. (e); count 1), possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a); count 2), and resisting, obstructing or delaying a peace officer (§148, subd. (a)(1), a misdemeanor; count 6). Other charges were dismissed.
In case No. 142, the court sentenced appellant to three years on count 1, plus two years for the § 12022.1 enhancement and one year for the section 667.5, subdivision (b) enhancement, for a total of six years. Appellant was sentenced to a concurrent two-year term on count 2. The court imposed a section 1202.4, subdivision (b) restitution fine of $1,200, a section 1465.8 court security fee of $40, and imposed, and suspended a section 1202.45 parole revocation fine of $1,200. The court also imposed an additional $510 in other fines and fees as follows: a $50 criminal laboratory analysis fee (Health & Saf. Code, § 11372.5), a $100 drug program fee (Health & Saf. Code, § 11372.7), a $150 state penalty assessment (§1464, subd. (a)), a $67.50 criminal justice facilities construction fund penalty assessment (Gov. Code, § 76101), a $15 courthouse construction fund penalty assessment (Gov. Code, § 76100) a $15 Dinuba courthouse construction fund penalty assessment (Gov. Code, § 76100), a $7.50 Maddy emergency medical services fund penalty assessment (Gov. Code, § 76104), a $45 state court construction penalty assessment (Gov. Code, § 70372), a $30 criminal fine surcharge (§ 1465.7), and a $30 DNA identification fund penalty assessment (Gov. Code, § 76104.6).
The abstract of judgment states that a second section 667.5, subdivision (b) enhancement was imposed and stayed. Respondent correctly points out that appellant admitted only one section 667.5, subdivision (b) enhancement allegation, and asks that we correct the error. We grant the request and will direct the superior court to amend the abstract of judgment so as to delete the second (stayed) section 667.5, subdivision (b) enhancement from the abstract. (See People v. Smith (2001) 24 Cal.4th 849, 854.)
The probation report recommended that appellant "be ordered to pay the amount of $510," and then gave the breakdown of this amount as just described in the text. At appellants sentencing hearing, the court told appellants counsel: "I am going to be imposing the $510.00, Mr. Hamilton. Does your client waive the reading of how those funds are to be dispersed?" Appellants counsel replied "Yes, thats fine, judge." The probation report also recommended in appellants other case (No. 557) that he again "be ordered to pay the amount of $510" with this same breakdown of the $510. When the court sentenced appellant in case No. 557, the court similarly stated and inquired: "The defendants ordered to pay the amount of $510.00. And counsel waives the reading of how those funds are going to be dispersed, correct, counsel?" Appellants counsel replied, "Yes." As we shall explain later in the text of this opinion, the Government Code sections 76100, 76101 and 76104 penalty assessments (totaling $105 in each case) about which appellant now complains were actually assessed pursuant to Government Code §76000, and the Government Code §76000 penalty assessment is mandatory, not permissive.
In case No. 557, the court sentenced appellant to two years on count 1, two years concurrent on count 2, and 90 days concurrent on count 6, with the term in case No. 557 to be served concurrent with the term in case No. 142 so that appellants total prison term on both cases would be six years. In case No. 557, the court also imposed a § 1202.4, subdivision (b) restitution fine of $600, a section 1465.8 court security fee of $60, and imposed and suspended a section 1202.45 parole revocation fine of $600. The court also imposed an additional $510 in other fines, fees, and assessments. These were identical to the same $510 in additional fines, fees, and assessments imposed in case No. 142 and described in the previous paragraph.
At his sentencing hearing, appellant did not object to the imposition of any fines, fees or assessments. He made no contention that he had not been advised of the consequences of his pleas, and made no contention that any fine, fee or assessment violated the terms of his plea bargain.
ANALYSIS
In Walker, supra, 54 Cal.3d at p. 1020, the court explained "two related but distinct legal principles" pertaining to guilty pleas.
"The first principle concerns the necessary advisements whenever a defendant pleads guilty, whether or not the guilty plea is part of a plea bargain. The defendant must be admonished of and waive his constitutional rights. ( Boykin v. Alabama (1969) 395 U.S. 238 [23 L.Ed.2d 274, 89 S.Ct. 1709]; In re Tahl (1969) 1 Cal.3d 122 [81 Cal.Rptr. 577, 460 P.2d 449].) In addition, and pertinent to this case, the defendant must be advised of the direct consequences of the plea. (Bunnell v. Superior Court (1975) 13 Cal.3d 592, 605 [119 Cal.Rptr. 302, 531 P.2d 1086].)
"The second principle is that the parties must adhere to the terms of a plea bargain. (People v. Mancheno (1982) 32 Cal.3d 855, 860 [187 Cal.Rptr. 441, 654 P.2d 211].)
"In any given case, there may be a violation of the advisement requirement, of the plea bargain, or of both. Although these possible violations are related, they must be analyzed separately, for the nature of the rights involved and the consequences of a violation differ substantially." ( Walker, supra, 54 Cal.3d at p. 1020.)
As for the first of these two principles, the Walker court pointed out that "when the only error is a failure to advise of the consequences of the plea, the error is waived if not raised at or before sentencing." (Walker, supra, 54 Cal.3d at p. 1023.) The case presently before us, however, involves the second principle. With regard to adhering to the terms of a plea bargain, the Walker court stated:
"`"[W]hen a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled." (Santobello v. New York [(1971)] 404 U.S. [257,] 262 [30 L.Ed.2d 427, 433, 92 S.Ct. 495].) [¶] The Supreme Court has thus recognized that due process applies not only to the procedure of accepting the plea (see Boykin v. Alabama (1969) 395 U.S. 238 [23 L.Ed.2d 274, 89 S.Ct. 1709]), but that the requirements of due process attach also to implementation of the bargain itself. It necessarily follows that violation of the bargain by an officer of the state raises a constitutional right to some remedy." (People v. Mancheno, supra, 32 Cal.3d 855, 860; see also People v. Glennon, supra, 225 Cal.App.3d at p. 104.) Although the purpose of a restitution fine is not punitive, we believe its consequences to the defendant are severe enough that it qualifies as punishment for this purpose. Accordingly, the restitution fine should generally be considered in plea negotiations.
"This does not mean that any deviation from the terms of the agreement is constitutionally impermissible. As Santobello v. New York (1971) 404 U.S. 257, 262 [30 L.Ed.2d 427, 433, 92 S.Ct. 495], suggests, the variance must be `significant in the context of the plea bargain as a whole to violate the defendants rights. 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.
"Whether or not a defendant waives an objection to punishment exceeding the terms of the bargain by the failure to raise the point in some fashion at sentencing depends upon whether the trial court followed the requirements of section 1192.5. That section provides in pertinent part that when a plea bargain is accepted by the parties and approved by the court, the defendant generally `cannot be sentenced on such plea to a punishment more severe than that specified in the plea and the court may not proceed as to such plea other than as specified in the plea. The court `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 such case, the defendant shall be permitted to withdraw his plea if he desires to do so. (§ 1192.5.)
"Absent compliance with the section 1192.5 procedure, the defendants constitutional right to the benefit of his bargain is not waived by a mere failure to object at sentencing. `Of course, there can be no waiver of a constitutional right absent "an intentional relinquishment or abandonment of a known right or privilege." [Citation.] No less should a court presume from mere silence that defendant is waiving implementation of the consideration that induced him to waive his constitutional rights." (People v. Mancheno, supra, 32 Cal.3d at p. 864.)
"When, however, the section 1192.5 admonition is given, and it is generally required, the situation is quite different. The issue then becomes whether the defendant has relinquished his statutory right to withdraw the plea. People v. Mancheno, supra, 32 Cal.3d 855, does not state whether the admonition was given in that case, and thus it does not address the point.
"We have held that absent a section 1192.5 admonition, a defendants `failure affirmatively to request a change of plea should not be deemed a waiver of his right to do so. Since he was never advised of his rights under section 1192.5, he should not be held to have waived them. (People v. Johnson (1974) 10 Cal.3d 868, 872 [112 Cal.Rptr. 556, 519 P.2d 604], fn. omitted.) Implicit in this reasoning is that when the admonition is given, the failure affirmatively to request a change of plea does waive the right to do so." (Walker, supra, 54 Cal.3d at pp. 1024-1025.)
In Walker, the defendant pleaded guilty pursuant to a plea bargain. He was not given the section 1192.5 admonition. He was told at his plea hearing that he would be sentenced to state prison for five years and that "the maximum penalties provided by law for this offense are either 3 years, 5 years, or 7 years in state prison and a fine of up to $10,000." (Walker, supra, 54 Cal.3d at p. 1019.) He was not told, however, that he would in fact be fined, or even that he might be fined. He was merely told what "the maximum penalties provided by law for this offense" were. According to the Walker opinion, a probation report prepared before the plea recommended a $7,000 restitution fine, but "the record discloses no other mention of the possibility of such a fine prior to sentencing." (Ibid.) The defendant in Walker was sentenced immediately after his guilty plea. The court imposed a five-year prison sentence and a $5,000 restitution fine. The Walker court concluded that "the $5,000 restitution fine was a significant deviation from the negotiated terms of the plea bargain." (Id. at p. 1029.) The court held:
"Where the restitution fine significantly exceeds the terms of a negotiated plea, and the section 1192.5 admonition is not given, the error is not waived by acquiescence and may not be deemed harmless. Hence, the trial court must either reduce the fine to $100 or allow the defendant to withdraw the plea. Finally, if the error is raised after sentencing, as here on appeal, the proper remedy is generally to reduce the fine to the statutory minimum." ( Walker, supra, 54 Cal.3d at p. 1030.)
We now apply the principles of Walker to the case before us.
A. The $1,800 in § 1202.4 Restitution Fines.
Appellant argues that in this case, as in Walker, the $1,800 in restitution fines was not part of the plea bargain and that therefore his § 1202.4 restitution fines must be reduced to the statutory minimum of $200 for each case (case No. 142 and case No. 557), for a total of $400 in section 1202.4 restitution fines. We disagree. In Walker, the defendant was told that "the maximum penalties provided by law for this offense" included a "fine of up to $10,000." (Walker, supra, 54 Cal.3d at p. 1019.) The maximum penalties provided by law for his offense also included "7 years in state prison" (ibid.), as he was also told, but his plea agreement was for "the midterm of five years with credit for time served." (Ibid.) In the case presently before us, appellant was not told that the maximum penalties provided by law included a restitution fine of any particular amount. Rather, he was flatly advised by the court, before entering his pleas: "Do you understand that as a result of your plea that you may be required to pay restitution?" He answered, "Yes." This exchange made it clear to appellant that a restitution fine might result from his plea.
The minimum section 1202.4 restitution fine resulting from a felony offense is now $200, not $100 as it was in Walker. (See § 1202.4, subd. (b)(1).)
The fact that the dollar amounts of the restitution fines ultimately imposed ($1,200 in case No. 142 and $600 in case No. 557) were not expressly mentioned at appellants plea hearing do not demonstrate that the possible imposition of restitution fines were not contemplated by the parties plea bargain. In People v. Crandell (2007) 40 Cal.4th 1301 (Crandell), the defendant entered into a negotiated no contest plea without having been given the section 1192.5 admonition. He was advised that he would receive a 13-year prison term and that he would "`have to pay a restitution fund fine of a minimum of $200, a maximum of $10,000" (Crandell, supra, 40 Cal.4th at p. 1305), but was not told what the exact amount of that fine would be. He was sentenced to 13 years, and the court imposed a $2,600 restitution fine. He then appealed and argued that the trial court violated the plea agreement by imposing the $ 2,600 restitution fine. The California Supreme Court rejected the argument that the terms of a plea bargain are violated if the statement or recitation of that bargain does not include the exact amount of the restitution fine to be imposed. "`[T]he core question in every case is ... whether the restitution fine was actually negotiated and made a part of the plea agreement, or whether it was left to the discretion of the court." (Crandell, supra, 40 Cal.4th at p. 1309.) "When a restitution fine above the statutory minimum is imposed contrary to the actual terms of a plea bargain, the defendant is entitled to a remedy. In this case, however, because the record demonstrates that the parties intended to leave the amount of defendants restitution fine to the discretion of the court, defendant is not entitled to relief." (Ibid.) Here, just as in Crandell, the restitution fine imposed was not "contrary to the actual terms of the plea bargain." (Ibid.) Appellant was expressly told that "as a result of your plea ... you may be required to pay restitution." No specific amount was mentioned. The record thus discloses that the amount of any such restitution would be left to the discretion of the court. In Crandell, the court further stated: "[I]t 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." (Id. at p. 1310.) So it is as well for appellant in this case. The court thus did not err in imposing the $1,800 in section 1202.4 restitution fines.
B. The Government Code § 76000 et seq. Penalties.
Appellants contention that his $105 in Government Code section 76000 et seq. penalties were permissive and not mandatory, and therefore should be stricken pursuant to Walker, is without merit for at least two reasons.
First, claims that are "asserted perfunctorily and without argument in support" need not be considered. (People v. Mayfield (1993) 5 Cal.4th 142, 196; in accord, see also People v. Rodrigues (1995) 8 Cal.4th 1060, 1116, fn. 20; People v. Williams (1997) 16 Cal.4th 153, 206. Appellants entire argument on this point is: "The following fines that were imposed as part of the $510 fine appear to be permissive: the $67.50 fine pursuant to Government Code section 76101; the two $15 fines pursuant to Government Code section 76100; and the $7.50 fine pursuant to Government Code section 76104. These fines, totaling $105, should be stricken ... for each case." No statutory language or case law stating that these fines should be deemed permissive is brought to our attention. We therefore need not consider the point.
Second, even if we were to consider the point on its merits, we see no authority which would permit us to view the $105 in fines to be permissive rather than mandatory. Government Code section 76000, subd. (a), found at title 8, Chapter 12, Article 1 of the Government Code, states in pertinent part: "... in each county there shall be levied an additional penalty in the amount of seven dollars ($7) for every ten dollars ($10), or part of ten dollars ($10), upon every fine, penalty, or forfeiture imposed and collected by the courts for all criminal offenses ...." (Gov. Code, §76000, subd. (a)(1).) "This additional penalty shall be collected together with and in the same manner as the amounts established by section 1464 of the Penal Code. These moneys shall be taken from fines and forfeitures deposited with the county treasurer prior to any division pursuant to Section 1463 of the Penal Code. The county treasurer shall deposit those amounts specified by the board of supervisors by resolution in one or more of the funds established pursuant to this chapter." (Gov. Code §76000, subd. (a)(2).) Article 2 of Chapter 12 (Gov. Code §76100 et seq.), entitled "Allocation of Penalties," contains provisions authorizing a county board of supervisors to establish the various funds into which the county treasurer, at the direction of the board of supervisors, shall deposit the penalty monies collected pursuant to Government Code section 76000. These include a "Courthouse Construction Fund" (Gov. Code, § 76100, subd. (a)), a "Criminal Justice Facilities Construction Fund" (Gov. Code, § 76101, subd. (a)), and an "Emergency Medical Services Fund" (Gov. Code, § 76104).
For our purposes, however, the important point is that appellant points to no authority giving the court discretion to exempt any convicted defendant from the Government Code section 76000 penalty assessment. "[T]here shall be levied an additional penalty in the amount of seven dollars ($7) for every ten dollars ($ 10), or part of ten dollars ($10), upon every fine, penalty, or forfeiture imposed ...." (Gov. Code, § 76000, subd. (a)(1).) (Italics added.) "[A] judge may only waive the state and county penalties if the defendant is in the midst of serving a sentence imposed because he failed to pay a fine. Absent this condition precedent, imposition of these penalty fines is mandatory. (See Pen. Code, § 1464, subd. (a); Gov. Code, § 76000, subd. (a).)" (People v. Talibdeen (2002) 27 Cal.4th 1151, 1155; in accord, see also People v. Walz (2008) 160 Cal.App.4th 1364, 1372, pointing out that Gov. Code, § 76000, subd. (a)(1) provides for a "mandatory penalty assessment.") The fact that the Government Code section 76000 penalty assessment was described in the probation report by the statutory funds among which the proceeds of the penalty assessment were to be distributed (Gov. Code, §§ 76100, 76101 and 76104) rather than as a Government Code section 76000 penalty assessment is of no moment. The penalty assessment was mandatory (People v. Talibdeen, supra, 27 Cal.4th at p. 1155), and was not permissive.
DISPOSITION
The trial court is directed to amend the abstract of judgment so as to delete the second (stayed) section 667.5, subdivision (b) enhancement from the abstract. In all other respects, the judgment is affirmed.