Opinion
NOT TO BE PUBLISHED
Super. Ct. No. NCR78450
MURRAY, J.
Defendant Juana Esquivel Pena entered a negotiated plea of guilty to one count of possession of heroin for sale (Health & Saf. Code, § 11351), and also admitted that the amount possessed exceeded 10 kilograms (Health & Saf. Code, § 11370.4, subd. (a)(3)), in exchange for dismissal of the remaining charges and a stipulated prison term of 12 years. The trial court imposed a $2,400 restitution fine (Pen. Code, § 1202.4, subd. (b)) and assessed and suspended a $2,400 parole revocation restitution fine (Pen. Code, § 1202.45), neither of which were mentioned in the plea agreement.
Because defendant received conduct credits that were equal to her even number of days of actual custody pursuant to Penal Code section 4019, former subdivisions (b)(1) and (c)(1) (see Stats. 2009, 3d Ex. Sess. 2009-1010, ch. 28, § 50), we are unconcerned with amendments to Penal Code section 2933 enacted after her sentencing (see Stats. 2010, ch. 426, §§ 1, 5).
On appeal, defendant contends that imposition of the restitution fines violated her plea agreement, thereby entitling her to have the fines reduced to the statutory minimum of $200 pursuant to People v. Walker (1991) 54 Cal.3d 1013 (Walker). The Attorney General argues that this case is more analogous to People v. Crandell (2007) 40 Cal.4th 1301 (Crandell), and that defendant is therefore not entitled to relief. We agree with defendant. The restitution and parole revocation restitution fines shall be reduced to the statutory minimum.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant initialed and signed a form entitled “Acknowledgment of Rights and Defendant’s Waiver For Entry of Guilty Plea” (plea form). The plea form was read to her by a Spanish language interpreter when she initialed and signed the form. Paragraph 7(a) of the plea form, initialed by defendant to indicate that she understood and agreed with the paragraph, states: “I understand that the maximum sentence for the offense(s) to which I am pleading guilty is/are 12 years in the state prison and, further, a fine of up to $20, 000, plus any applicable penalty assessments.” The nature of the fine is not referenced on the form; nor is there a reference to the mandatory restitution fine anywhere on the plea form.
The italicized text indicating the term of imprisonment and amount of the fine were handwritten on the appropriate blanks on the plea form.
The court was presented with the executed plea form at the change of plea hearing. Defendant acknowledged that she had signed and initialed the plea form, and that she had understood her interpreter’s reading of the form. After obtaining a waiver of defendant’s constitutional rights, the following took place:
“THE COURT: Ms. Pena, the maximum penalty for the offense to which you would be pleading guilty with the special allegation includes the following: 12 years in State Prison; two fines totaling $20,000. [¶] Do you understand that? (Italics added.)
“DEFENDANT...: Yes.”
As noted ante, the plea form only referenced “a fine of up to $20,000.” It did not reference “two fines.”
Before confirming defendant’s understanding of the negotiated resolution, the following took place:
“THE COURT: Ms. Pena, other than what’s on the plea form or that we have talked about in court, has anyone offered or promised you anything, done anything to force you into entering this plea, or is there just any reason you are pleading guilty that I don’t know about?
“DEFENDANT...: No.”
In response to further questions by the court, defendant then stated that she did not need further time to speak with her attorney and that nothing was affecting her ability to think clearly or use good judgment.
Thereafter, the court for the first time asked defendant a specific question about the negotiated disposition.
“THE COURT: Counsel, I did ask [the codefendant], but I don’t think I asked Ms. Pena. I believe that that is a stipulated term of 12 years?
“[COUNSEL FOR DEFENDANT]: That’s correct, Your Honor.
“THE COURT: Ms. Pena, it is my understanding that the term of 12 years in prison is agreed to. That will be the term that will be imposed. [¶] Is that your understanding, also?
“DEFENDANT...: Yes.”
Immediately thereafter, defendant pled guilty to one count of possession of heroin for sale, and admitted that the amount she possessed exceeded 10 kilograms. The trial court did not admonish defendant, pursuant to Penal Code section 1192.5, that she had the right to withdraw her plea should the court subsequently withdraw its approval. The court did not ask the parties whether the negotiated disposition included the restitution fine; nor did the court advise defendant of the maximum restitution fine that could be imposed. The court concluded the hearing by saying:
“The matter is referred to the Probation Officer for abbreviated report. [¶]... [¶]... Meaning that the Court just needs to be advised of the credits that have been earned and a recommendation regarding fines and fees.”
The probation officer’s report was prepared after the plea was taken. It contained recommendations that the court impose a $2,400 restitution fine (Pen. Code, § 1202.4, subd. (b)), and assess and suspend a $2,400 parole revocation restitution fine (Pen. Code, § 1202.45), which the trial court did at defendant’s subsequent sentencing hearing. She did not object.
DISCUSSION
Defendant contends that the imposition of restitution and parole revocation fines above the statutory minimum violated the plea agreement. We agree.
“When a guilty plea is entered in exchange for specified benefits such as the dismissal of other counts or an agreed maximum punishment, both parties, including the state, must abide by the terms of the agreement. The punishment may not significantly exceed that which the parties agreed upon.” (Walker, supra, 54 Cal.3d at p. 1024.) Fines qualify as punishment for this purpose. (Ibid.) Moreover, a “violation of a plea bargain is not subject to harmless error analysis. A court may not impose punishment significantly greater than that bargained for by finding the defendant would have agreed to the greater punishment had it been made a part of the plea offer.” (Id. at p. 1026.)
In Walker, the defendant entered into a negotiated plea of guilty to one count of attempting to use a destructive device in exchange for dismissal of the remaining count and a stipulated prison term of five years. (Walker, supra, 54 Cal.3d at pp. 1018-1019.) The defendant signed a plea form, initialed his understanding of the agreement, and waived his constitutional rights. (Id. at p. 1019.) The trial court orally explained to 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 fine of up to $10,000, ’ followed by a period of parole.” (Ibid.) Immediately after taking the defendant’s guilty plea, the trial court sentenced him to the agreed-upon prison term but also imposed a restitution fine of $5,000, even though the plea agreement had not mentioned such a fine. Defendant did not object to the fine at sentencing, but on appeal he argued that the restitution fine should be stricken because it was not a part of the plea bargain. (Ibid.)
The California Supreme Court explained that there were two principles at work. The first was a defendant’s right to be advised of the direct consequences of the plea, a “‘judicially declared rule of criminal procedure, ’” which may be forfeited absent a timely objection and which requires a showing of prejudice by the defendant. (Walker, supra, 54 Cal.3d at pp. 1020, 1022-1023, citing Bunnell v. Superior Court (1975) 13 Cal.3d 592, 605 [the defendant shall be advised of the direct consequences of the plea, including the permissible range of punishment provided by statute].) The second was the principle that the parties must adhere to the terms of a plea bargain. (Id. at p. 1020.) Violation of the bargain raises a constitutional right to a remedy. (Id. at p. 1024.) This latter right cannot be forfeited by mere failure to object at sentencing, unless prior to the defendant making the plea, the trial court specifically informed the defendant pursuant to Penal Code section 1192.5 that: (1) its approval is not binding, (2) the court may withdraw its approval at the time of application for probation or pronouncement of judgment, and (3) in such case, the defendant is permitted to withdraw the plea. (Id. at pp. 1024-1025.) A violation of a plea bargain is not subject to a harmless error analysis; the appropriate remedy is to reduce the fine to the statutory minimum. (Id. at pp. 1026-1027.)
Applying these principles, merely advising defendant that a $10,000 fine was a possible consequence was inadequate. (Walker, supra, 54 Cal.3d at p. 1029.) “The court should have advised defendant there was a possible $10,000 penalty fine and a mandatory restitution fine of between $100 and $10,000.” (Ibid.) Because the $5,000 restitution fine was a significant deviation from the negotiated terms of the plea bargain, and because the defendant was not advised of his rights under Penal Code section 1192.5, the defendant did not forfeit his right to a remedy for violation of the plea bargain by failing to object at sentencing. (Id. at pp. 1029-1030.) Accordingly, the court reduced the restitution fine to the statutory minimum, which at the time was $100. (Id. at p. 1030.)
In Crandell, our Supreme Court clarified that “‘the core question’” in these cases is whether the restitution fine was actually negotiated and made a part of the plea agreement. If not, the defendant is entitled to have the fine reduced to the statutory minimum if the trial court imposes an amount in excess of the minimum. On the other hand, if the agreement leaves the amount of the restitution fine to the trial court’s discretion, the defendant is not entitled to relief. (Crandell, supra, 40 Cal.4th at p. 1309.) As in Walker, the defendant in Crandell entered into a plea agreement that did not mention a restitution fine. (Crandell, supra, 40 Cal.4th at p. 1305.) However, while advising the defendant of the consequences of his plea, the trial court warned that he would “‘have to pay a restitution fund fine of a minimum of $200, a maximum of $10,000.’” (Ibid.) Thereafter, the defendant pled no contest and the trial court accepted his plea. As in Walker, the trial court did not admonish defendant about his right to withdraw the plea pursuant to Penal Code section 1192.5. (Crandell, supra, 40 Cal.4th at pp. 1305-1306.) The probation report was prepared after defendant entered his plea. A restitution fine of $2,600 was recommended therein, and the trial court imposed the recommended amount at the defendant’s subsequent sentencing hearing. (Id. at p. 1306.)
Our Supreme Court distinguished the facts in Crandell from those in Walker. Whereas the defendant in Crandell was advised he would have to pay a restitution fine of a minimum of $200 to a maximum of $10,000 (Crandell, supra, 40 Cal.4th at p. 1309), the defendant in Walker was advised only that the “‘“maximum penalties provided by law”’ for his offense included ‘“a fine of up to $10,000.”’” (Crandell, supra, at p. 1310.) Because there was nothing in the record in Walker to suggest the parties intended to leave the amount of the restitution fine to the trial court’s discretion, “‘the defendant in [Walker] reasonably could have understood the negotiated plea agreement to signify that no substantial fine would be imposed’ [citation].” (Crandell, supra, at p. 1310.)
In Crandell, on the other hand, the trial court explicitly informed the defendant he would have to pay a restitution fine between a minimum of $200 and a maximum of $10,000. (Id. at p. 1305.) The trial court in Crandell also told the defendant it “‘could impose a general fund fine of up to $10,000’” (ibid.), thereby distinguishing the mandatory restitution fine from the potential penal fine. “In light of these circumstances, 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.” (Id. at p. 1310.)
In this case, we must also resolve the question of whether there is evidence in the record to suggest that the parties intended to leave the amount of the restitution fine to the trial court’s discretion. We find no such evidence in the record.
A person convicted of certain drug-related felonies and sentenced to state prison faces the possible imposition of three different kinds of fines. The first is a penal fine, which the trial court “may” impose in addition to the defendant’s term of imprisonment. (Health & Saf. Code, § 11372.) The second is a restitution fine, which the trial court “shall” impose “unless it finds compelling and extraordinary reasons for not doing so.” (Pen. Code, § 1202.4, subd. (b).) The third is a parole revocation restitution fine, which the court “shall” assess and suspend and that the defendant must pay upon a revocation of parole. (Pen. Code, § 1202.45.) The restitution fine “shall not be less than two hundred dollars ($200), and not more than ten thousand dollars ($10,000).” (Pen. Code, § 1202.4, subd. (b)(1); see also Walker, supra, 54 Cal.3d at p. 1019.) The parole revocation restitution fine shall be the same amount as the restitution fine. (Pen. Code, § 1202.45.)
The record does not reveal why the plea form presented to the trial court by defendant’s counsel indicated that the maximum fine was “$20,000.” No reference was made to an authorizing statute either on the form or during the change of plea hearing. Nor does the record provide insight into why the court told defendant the maximum penalty included “two fines totaling $20,000.” While the penal fine for a violation of Health and Safety Code section 11351 is $20,000 (Health & Saf. Code, § 11372, subd. (a)), because of the enhancement for possessing greater than 10 kilograms, the maximum fine to which defendant was actually exposed was $8,000,000 (Health & Saf. Code, § 11372, subd. (d)). While we acknowledge the trial court has the discretion to impose the general penal fine under Penal Code section 672 instead of the Health and Safety Code fine (see People v. Breazell (2002) 104 Cal.App.4th 298, 303, 304), the permissible range of punishment provided by the statutes to which defendant pled included the enhanced Health and Safety Code fine. We assume defendant’s counsel simply made an error by inserting the amount of $20,000 in the plea form presented to the trial court. In any event, the record is clear that neither the plea form, nor the court, advised defendant that the court was required to impose a restitution fine and assess and suspend a parole revocation restitution fine, the minimum for each would be $200 and the maximum $10,000.
Health and Safety Code section 11372 provides in pertinent part:
Penal Code section 672 provides in pertinent part:
Consequently, this case is more like Walker than Crandell. Here, defendant was informed only that the maximum penalty provided by law for her offense included a possible fine or fines that could be as high as $20,000. Unlike the defendant in Crandell, defendant here was not informed on the record that, in addition to a possible penal fine, she would also be required to pay a restitution fine of no less than $200 and no more than $10,000. Thus, like the defendant in Walker, and unlike the defendant in Crandell, defendant in this case reasonably could have understood the negotiated plea agreement to signify that no substantial restitution fine would be imposed. (See Crandell, supra, 40 Cal.4th at p. 1310.) This is particularly true since, in the context of confirming the negotiated resolution with defendant, the trial court only mentioned the prison sentence and did not mention any fine.
At the sentencing hearing, without informing defendant of her right to withdraw the plea, the trial court imposed a substantial restitution fine of $2,400, and assessed and suspended an identical parole revocation restitution fine of $2,400. Notwithstanding defendant’s failure to object at sentencing, she is entitled to the remedy in Walker. That remedy requires us to reduce the restitution fine and the parole revocation restitution fine to the statutory minimum of $200.
The Attorney General argues that because the trial court informed defendant that the maximum penalties provided by law for her offense included “two fines totaling $20,000, ” she could not reasonably have understood that no substantial restitution fine would be imposed. It could be that the trial court had in mind the maximum penal fine for other felony offenses of $10,000 (Pen. Code, § 672) and the maximum restitution fine of $10,000 (Pen. Code, § 1202.4, subd. (b)(1)) when it said defendant was exposed to “two fines totaling $20,000, ” but there is no way for us to know on this record. We need not speculate further on what the trial court meant. We look to what defendant was expressly told. Defendant was not informed that one of the “two fines” was a mandatory restitution fine rather than a permissible penal fine. The statement, “two fines totaling $20,000, ” cannot have indicated to defendant that she would be required to pay a restitution fine of no less than $200 and no more than $10,000. Simply advising defendant of the possibility of a $20,000 fine, whether designated as a single fine or broken into two, was inadequate to inform her that she was placing in the hands of the trial court the discretion to impose a substantial restitution fine. (See Walker, supra, 54 Cal.3d at p. 1029.)
The guidance offered to parties and trial courts in Walker and Crandell is informative. “We reiterate our guidance in Walker that “‘[c]ourts and the parties should take care to consider restitution fines during the plea negotiations. The court should always admonish the defendant of the statutory minimum [$200] and maximum $10,000 restitution fine as one of the consequences of any guilty plea, and should give the section 1192.5 admonition whenever required by that statute.’” (Crandell, supra, 40 Cal.4th at p. 1310.)
We are also in partial agreement with Justice Baxter’s observations in his concurring opinion in Crandell. “The parties have an obligation to address all subjects they deem significant to the bargain, specifically including the amount of a restitution fine. (See People v. Walker[, supra, ] 54 Cal.3d [at p.] 1024.) They have the further obligation to state their agreement fully on the record. They should not leave trial and appellate courts guessing about missing or unstated terms.” (Crandell, supra, 40 Cal.4th at p. 1311 (conc. opn. of Baxter, J.).) Here, neither the prosecutor, nor counsel for defendant indicated on the record that their negotiated resolution of the case included a restitution fine in excess of the mandatory minimum.
We also note for the parties that while Walker and Crandell both encourage the use of written plea forms, standardized forms do not have the utility envisioned by the California Supreme Court if there is no place on the form to specify “all significant elements of the plea.” (Crandell, supra, 40 Cal.4th at p. 1310; Walker, supra, 54 Cal.3d at p. 1030.) The form employed here included a section for the maximum penalties, but it did not include a section in which the parties could spell out the elements of their negotiated resolution.
See Judicial Council Forms, form CR-101, entitled “Plea Form, With Explanations and Waiver of Rights--Felony.” Section 2 of form CR-101 is entitled “Plea Agreement.” Boxes and blanks to set forth the stipulated state prison sentence are provided in paragraph 2(a). In paragraph 2(e), blanks are provided in which to set forth the victim restitution, restitution fines, and statutory fees and assessments. These blanks are preceded by the statement, “I understand that the court will order me to pay the following amounts....” (Italics added.) Paragraph 2(f) warns defendants the court “will” also impose a parole revocation restitution fine that the defendant will have to pay if parole is later revoked.
DISPOSITION
The judgment is modified by reducing both the $2,400 restitution fine and the $2,400 parole revocation restitution fine to the statutory minimum of $200. As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment in accordance with this disposition and deliver a certified copy to the Department of Corrections and Rehabilitation.
We concur: RAYE, P. J. BUTZ, J.
“(a) In addition to the term of imprisonment provided by law for persons convicted of violating Section 11350, 11351, 11351.5, 11352, 11353, 11355, 11359, 11360, or 11361, the trial court may impose a fine not exceeding twenty thousand dollars ($20,000) for each offense. In no event shall a fine be levied in lieu of or in substitution for the term of imprisonment provided by law for any of these offenses. [¶]... [¶]
“(d) Any person receiving an additional term pursuant to paragraph (3) of subdivision (a) of Section 11370.4 [enhancement for more than 10 kilograms], may, in addition, be fined by an amount not to exceed eight million dollars ($8,000,000) for each offense.”
“Upon a conviction for any crime punishable by imprisonment in any jail or prison, in relation to which no fine is herein prescribed, the court may impose a fine on the offender not exceeding... ten thousand dollars ($10,000) in cases of felonies, in addition to the imprisonment prescribed.”