Opinion
F061320
02-17-2012
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH MATTHEW ORTA, Defendant and Appellant.
James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and William K. Kim, Deputy Attorneys 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. VCF222026)
OPINION
THE COURT
Before Cornell, Acting P.J., Dawson, J. and Poochigian, J.
APPEAL from a judgment of the Superior Court of Tulare County. Joseph A. Kalashian, Judge.
James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
Pursuant to a negotiated plea, appellant, Joseph Matthew Orta, admitted four prior prison term enhancements (Pen. Code, § 667.5, subd. (b)) and pled no contest to possession of heroin (count 1/Health & Saf. Code, § 11350, subd. (a)), vehicle theft (count 2/Veh. Code, § 10851, subd. (a)), possession of an injection device (count 4/Health & Saf. Code, § 11364, subd. (a)), and resisting arrest (count 5/§ 148, subd. (a)(1)).
All further statutory references are to the Penal Code, unless otherwise indicated.
On appeal, Orta contends: 1) the court violated the terms of his plea bargain when it imposed a $2,500 restitution fine and a corresponding parole revocation fine; 2) the court violated the terms of his plea bargain when it imposed an aggregate $600 in laboratory and drug program fees and miscellaneous assessments; and 3) the court exceeded its authority when it issued a protective order against Orta. We will find merit to Orta's first and third contentions. Additionally, our review of the record disclosed that the court erred by its failure to impose sentence on counts 2, 4, and 5, and by its failure to memorialize Orta's conviction for possession of heroin in his abstract of judgment. Therefore, we will reduce Orta's restitution and parole revocation fines to the statutory minimum of $200 each, strike the no-contact order, and remand the matter to the trial court for further proceeding on the errors that our review disclosed. In all other respects, we affirm.
FACTS
On May 24, 2009, at approximately 9:30 p.m., a Visalia police officer spotted a stolen car driven by Orta and began pursuing it. Orta eventually abandoned the car and was soon spotted running along a railroad track. Orta initially disobeyed orders to stop, but gave up after a short chase and was handcuffed. Next to Orta the officer found a stereo faceplate case that contained six syringes and a stainless steel spoon with a tar-like residue on it. During a search of the stolen car, the officer found two additional syringes including one that contained a brown liquid substance that appeared to be heroin.
On September 15, 2009, the district attorney filed an information charging Orta with transportation of heroin (count 1/Health & Saf. Code, § 11350, subd. (a)), vehicle theft (count 2), receiving a stolen vehicle (count 3/§ 496d, subd. (a)), possession of an injection device (count 4), and resisting arrest (count 5). The information also alleged two prior conviction enhancements in count 1 (Health & Saf. Code, § 11370.2, subd. (a)) and four prior prison term enhancements.
On November 25, 2009, Orta entered into a negotiated plea which provided that count 1 would be amended to simple possession and he would then plead no contest to counts 1, 2, 4, and 5, and admit the four prior prison term enhancements. In exchange for his plea, count 3 and the remaining enhancements would be dismissed. Additionally, Orta would be released with a Cruz waiver on November 16, 2009, to attend his father's funeral, and he was required to remand himself into custody no later than November 28, 2009. If Orta remanded himself on the designated date and did not commit any new offenses, the court would sentence Orta to a maximum term of four years. However, if he violated the terms of the Cruz waiver, he would be sentenced to a term of seven years eight months.
People v. Cruz (1988) 44 Cal.3d 1247.
After taking Orta's plea, the court ordered that he be released the following day. At no time during the change of plea proceedings did the court mention a restitution fine, a parole revocation fine, or any other fine or assessment. The court also did not advise Orta of his right to withdraw his plea under section 1192.5 if the court withdrew its approval of the plea agreement at sentencing and it did not ask him whether anyone else had made any other promises to him.
Section 1192.5 provides, in relevant part: "Where the plea is accepted by the prosecuting attorney in open court and is approved by the court, the defendant, except as otherwise provided in this section, cannot be sentenced on the plea to a punishment more severe than that specified in the plea and the court may not proceed as to the plea other than as specified in the plea." The third paragraph of the statute further requires that the court advise 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 that case, the defendant shall be permitted to withdraw his or her plea if he or she desires to do so."
On November 28, 2009, Orta failed to remand himself back into custody.
On June 7, 2010, Orta was taken back into custody.
On July 13, 2010, Orta filed a motion to withdraw his plea.
On August 6, 2010, the court denied Orta's motion.
On September 10, 2010, Orta pled no contest, in case No. VCF235936, to failing to appear while released on his own recognizance (§ 1320, subd. (b)).
On October 8, 2010, the court sentenced Orta to an aggregate term of seven years: the aggravated term of three years on count 2, four one-year prior prison term enhancements, and a concurrent 16-month term on his conviction for failure to appear in case No. VCF235936. The court also ordered Orta to pay a restitution fine of $2,500, a parole revocation fine of $2,500, and an aggregate amount of $600 for a laboratory fee, a drug program fee and miscellaneous fees and assessments. Additionally, the court ordered Orta not to have any contact with the victim.
The $600 consisted of a $50 laboratory fee pursuant to Health and Safety Code section 11372.5, a $100 drug program fee pursuant to Health and Safety Code section 11372.7, a $150 Penalty Assessment pursuant to Penal Code section 1464, subdivision (a), a $67.50 Criminal Justice Facilities Construction Fund Penalty Assessment pursuant to Government Code section 76101, a $15 Courthouse Construction Fund Penalty Assessment pursuant to Government Code section 76100, a $15 Dinuba Courthouse Construction Fund Penalty Assessment pursuant to Government Code section 76100, a $7.50 Maddy Emergency Medical Services Fund Penalty Assessment pursuant to Government Code section 76104, a $30 Maddy Emergency Medical Services Fund Penalty Assessment pursuant to Government Code section 76000.5, a $75 State Court Construction Penalty Assessment pursuant to Government Code section 70372, a $30 Criminal Fine Surcharge pursuant to section 1465.7, a $15 DNA Identification Fund Penalty Assessment pursuant to Government Code section 76104.6, and a $45 DNA Additional Penalty Assessment pursuant to Government Code section 76104.7.
DISCUSSION
The Restitution and Parole Revocation Fines
Orta relies primarily on People v. Walker (1991) 54 Cal.3d 1013 (Walker), to argue that the court violated his plea agreement by imposing a $2,500 restitution fine and a $2,500 parole revocation fine and that this requires that each of these fines be reduced to the statutory minimum of $200. We agree.
In Walker, the defendant had negotiated a plea agreement in which one of two felony charges was to be dismissed and the defendant was to plead guilty to the other charge and receive a five-year sentence and no penalty fine. He was not advised of an additional mandatory restitution fine of at least $100 but no more than $10,000. Nor was he advised of his right to withdraw his plea under section 1192.5. Although the probation report recommended a $7,000 restitution fine, the court imposed a fine of $5,000. The defendant did not object to the imposition of the fine at sentencing.
The court held (1) the imposition of the $5,000 restitution fine "was a significant deviation from the negotiated terms of the plea bargain" and therefore violated the plea bargain; (2) because the section 1192.5 advisement was not given, the error was not waived by the defendant's failure to object; and (3) the error was not subject to harmless error analysis. (Walker, supra, 54 Cal.3d at pp. 1029-1030.) The court reduced the fine to the statutory minimum, an amount that was not a significant deviation from the plea agreement. (Id. at p. 1030.)
In the instant case, as in Walker, appellant was not advised of the mandatory restitution fine; the imposition of a multi-thousand-dollar fine was a significant deviation from the plea agreement; and appellant did not receive the section 1192.5 advisement. Accordingly, the imposition of the fines violated Orta's plea agreement; Orta's failure to raise the issue below does not preclude him from challenging the fines on appeal; and the fines must be reduced to the section 1202.4, subdivision (b)(1) statutory minimum of $200.
Respondent argues that Walker is inapposite and that the instant case is controlled by People v. Crandell (2007) 40 Cal.4th 1301 (Crandell). In Crandell, our Supreme Court found that the imposition of a mandatory restitution fine and parole revocation fine, each in the amount of $2,600, did not violate the plea agreement. The court stated, "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) they find mutually agreeable." (Id. at p. 1309.) Where the amount of the restitution fine was not expressly made part of the plea agreement, 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.)
The majority in Crandell held, based on the following factors, that the record showed the parties agreed that the trial court could set the amount of the restitution fine within the statutory range: "the trial court, before taking defendant's plea, accurately advised him he would 'have to pay a restitution fund fine of a minimum of $200, a maximum of $10,000' and ascertained that the prosecution had not made 'any other promises' beyond that defendant would be sentenced to 13 years in prison." (Crandell, supra, 40 Cal.4th at p. 1309, fn. omitted.) "These facts distinguish the case from Walker," the court concluded. (Id. at pp. 1309-1310.)
Justice Baxter's concurring opinion, joined by Justices Chin and Corrigan, downplayed the significance of the court ascertaining that no "other promises" had been made to appellant: "[W]hen (1) the parties, in stating their bargain for the record, have mentioned no agreement to limit the restitution fine, (2) the court warns that it will impose such a fine, and that the amount may be anywhere in the statutory range, (3) the defendant says he understands, and (4) neither the defendant nor counsel protests that such a fine would violate the bargain, it is most sensible to assume the parties made no agreement with respect to the fine, leaving it to the law and the court's discretion upon proper advisement. [¶] Accordingly, if a trial court has failed, for whatever reason, to ask specifically about 'other promises' before imposing a substantial fine, that fact alone should not require an appellate court to invalidate the fine. I do not interpret the majority opinion to hold otherwise." (Crandell, supra, 40 Cal.4th at pp. 1311-1312 (conc. opn. of Baxter, J.).)
Respondent cites defense counsel's objection to the $6,400 restitution fine recommended by the probation report and ensuing acquiescence to the $2,500 restitution fine the court actually imposed to argue that this shows that the parties intended to leave the amount of restitution fine to the court's discretion. We disagree. The fact that defense counsel objected at all indicates that the parties did not intend to leave the amount of the restitution fine to the court, otherwise there would not have been any reason for defense counsel to object. Further, it is equally telling that after defense counsel objected to the $6,400 amount, the prosecutor did not mention anything regarding the parties' intention to leave the amount of restitution fine to the court's discretion. As noted earlier, here, as in Walker, the court did not advise Orta that he would be subject to a restitution fine at all. Nor did the court ask him if he had been promised anything else in exchange for his plea. Thus, in accord with Walker, we conclude the court violated Orta's plea bargain when it imposed restitution and parole revocation fines of $2,500 each, and we will reduce each fine to the statutory minimum of $200.
The $600 Lab Fee, Drug Program Fee and Miscellaneous Assessments
Orta contends that the laboratory fee, drug program fee, and miscellaneous assessments totaling $600 he was ordered to pay must be stricken because they exceeded the express terms of his plea bargain. Orta is wrong.
The individual components of this aggregate amount consisted of a $50 laboratory fee (Health & Saf. Code, § 11372.5), a $100 drug program fee (Health & Saf. Code, § 11372.7), a state penalty assessment of $150 (§ 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 penalty assessment (Gov. Code, § 76100), a total of $37.50 in emergency medical services fund penalty assessments (Gov. Code, §§ 76104 & 7600.5), a $75 state court construction penalty assessment (Gov. Code, § 70372), a $30 criminal fine surcharge (§ 1465.7), a $15 DNA identification fund penalty assessment (Gov. Code, § 76104.6), and a $45 DNA additional penalty assessment (Gov. Code, § 76104.7).
--------
Here, each of the components of the aggregate $600 amount at issue were statutorily mandated and/or were individually de minimis. (See Health & Saf. Code, §§ 11372.5, subd. (a), 11372.7, subd. (a); Pen. Code, §§ 1464, subd. (a), 1465.7, subd. (a); and Gov. Code, §§ 70373, subd. (a)(1), 76100, subd. (a), 76104, 76000.5, subd. (a)(1), 70372, subd. (a)(1), 70372.7, subd. (a); also cf. Walker, supra, 54 Cal.3d at p. 1027 ["In the context of felony pleas, a $100 fine is not, as a matter of law, 'significant'[]"].)
In In re Moser (1993) 6 Cal.4th 342 (Moser) and People v. McClellan (1993) 6 Cal.4th 367 (McClellan) an additional burden was imposed on the defendant that was not negotiated. The Supreme Court, however, found no violation of the defendant's plea bargain because each additional burden was statutorily mandated. (Moser, at p. 357 [length of parole term]; McClellan, at pp. 379-380 [sex offender registration requirement].) As explained by the court in Moser: "Unlike the amount of the restitution fine at issue in Walker, the length of a parole term is not a permissible subject of plea negotiations. The lifetime term of parole challenged in the present case is a statutorily mandated element of punishment imposed upon every defendant convicted of second degree murder. (§ 3000.1, subd. (a).) Neither the prosecution nor the sentencing court has the authority to alter the applicable term of parole established by the Legislature." (Moser, at p. 357.)
"In McClellan, the court noted that '[t]he statutory requirement of sex offender registration was not mentioned by the parties or by the court' when the trial court recited the plea agreement. [Citation.] Further, the defendant did not argue that registration was a subject of the plea negotiations. [Citation.] Registration is mandatory and 'not a permissible subject of plea agreement negotiation.' [Citation.] 'Because the registration requirement is statutorily mandated for every person [who like the defendant was] convicted of assault with intent to commit rape, that requirement was an inherent incident of defendant's decision to plead guilty to that offense and was not added "after" the plea agreement was reached.' [Citation.] It is not a violation of a plea agreement if 'a statutorily mandated consequence of a guilty plea is not embodied specifically within the terms of a plea agreement.' [Citation.]" (People v. Dickerson (2004) 122 Cal.App.4th 1374, 1383.) Further, "the circumstance that a statutorily mandated consequence of a guilty plea is not embodied specifically within the terms of a plea agreement, does not signify that imposition of such a consequence constitutes a violation of the agreement. (McClellan, supra, 6 Cal.4th at p. 381.)
Unlike the amount of a restitution fine, the laboratory fee, drug program fees and the other assessments in question are not subject to bargaining because they are statutorily mandatory, and/or are, individually, de minimis. Therefore, we conclude that the imposition of the complained of fees and assessments in a cumulative amount of $600 did not violate Orta's plea.
The Protective Order
Orta contends that the court's criminal protective order was unauthorized and should be stricken. Respondent concedes and we agree.
The trial court may issue criminal protective orders pursuant to section 136.2 and domestic violence protective orders pursuant to section 1203.097, including protective orders as a condition of probation. However, the latter two situations are inapplicable here and section 136.2 does not authorize the issuance of a protective order against a defendant who has been sentenced to prison. (People v. Ponce (2009) 173 Cal.App.4th 378, 382-383.) Nor does the court's inherent authority to issue appropriate protective orders to protect trial participants authorize it to issue a protective order against a defendant who has been sentenced to prison. (Id. at p. 384.) Accordingly, we agree with the parties that the court's no-contact order here was unauthorized because the court sentenced Orta to prison.
The Failure to Impose Sentence on Counts 1, 4, and 5
Our review of the record disclosed the following errors: 1) in sentencing Orta, the court did not pronounce sentence on counts 1, 4 and 5, and the court did not memorialize Orta's possession of heroin offense in his abstract of judgment. "The failure to pronounce sentence on a count is an unauthorized sentence and subject to correction on remand. [Citations.]" (People v. Price (1986) 184 Cal.App.3d 1405, 1411, fn. 6.) Further, "[a] court has inherent power to correct clerical errors to make court records reflect the true facts." (People v. Jack (1989) 213 Cal.App.3d 913, 915.) Accordingly, we will remand the matter to the trial court so that it may impose sentence on all counts and memorialize Orta's possession of heroin conviction in his abstract of judgment.
DISPOSITION
The judgment is modified to strike the order prohibiting Orta from contacting the victims and to reduce Orta's restitution and parole revocation fines to $200 each. The matter is remanded to the trial court so that it may impose sentence on counts 1, 4, and 5. The trial court is also directed to file an amended abstract of judgment that is consistent with this opinion and memorializes Orta's conviction for possession of heroin and to forward a certified copy to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.