Opinion
C042390.
10-27-2003
THE PEOPLE, Plaintiff and Respondent, v. MIGUEL SHAWN PENLEY, Defendant and Appellant.
Defendant Miguel Shawn Penley entered a negotiated plea of no contest to manufacturing methamphetamine (Health & Saf. Code, § 11379.6, subd. (a)), and he admitted an enhancement for a prior drug conviction (Health & Saf. Code, § 11370.2, subd. (b)). The trial court sentenced him to state prison for an aggregate term of eight years. The court also imposed a $ 1,000 restitution fine (Pen. Code, § 1202.4, subd. (b); further undesignated statutory references are to the Penal Code) and suspended an additional restitution fine in the same amount pending successful completion of parole (§ 1202.45).
The sole issue on appeal concerns the suspended restitution fine. Defendant complains that he was not advised when he entered his plea that such a fine would be imposed and the subsequent imposition of the fine was a violation of the plea agreement under People v. Walker (1991) 54 Cal.3d 1013 (Walker). We find no violation of the plea agreement and that any error stemming from the lack of an advisement was waived by defendants failure to object in the trial court. Accordingly, we affirm the judgment.
Background
When he entered the plea agreement in this case, defendant was advised that he would have to pay a restitution fine. At the plea canvass, the trial court asked him: "Do you understand the Court has to order you to pay a restitution fine? The minimum is $200. The maximum is $10,000." Defendant acknowledged that he understood.
The trial court was, however, also required to impose an additional restitution fine under section 1202.45 in the same amount as the restitution fine under section 1202.4, subdivision (b); the section 1202.45 fine is suspended unless defendants parole is revoked. The record of defendants plea does not indicate defendant was advised of the suspended restitution fine. Nor does it appear that defendant was advised under section 1192.5 that the courts approval of the plea was not binding and he could withdraw his plea if the court withdrew its approval.
The officer who prepared the probation report recommended a $500 restitution fine (1202.4, subd. (b)) and a $500 suspended restitution fine (1202,45). At sentencing, defendant did not object to the courts imposition of a $1,000 restitution fine and a suspended restitution fine in the same amount.
Discussion
Defendants argument on appeal focuses on the alleged violation of the plea agreement, but he emphasizes the trial courts failure to advise him of the suspended restitution fine. There are two analytically distinct but related issues: (1) whether defendant was advised of the direct consequences of the plea; and (2) whether the plea agreement was violated. (See Walker, supra, 54 Cal.3d at p. 1020.) We consider each issue in turn.
I. Consequences of the Plea
"[B]efore 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." (Walker, supra, 54 Cal.3d at p. 1022.) "A possible $10,000 restitution fine constitutes such a direct consequence." (Ibid.) A defendant should be advised of the minimum and maximum fine. (Ibid.) The mandatory parole consequences of an offense are also considered direct consequences of the plea. (In re Moser (1993) 6 Cal.4th 342, 351-352 (Moser).) Finally, at least for ex post facto purposes, the section 1202.45 restitution fine is a penalty that is attributed to the crime of which a defendant is convicted even though it is suspended unless parole is revoked. (People v. Callejas (2000) 85 Cal.App.4th 667, 678.)
Based on the foregoing authority, it could be argued that the suspended restitution fine is a direct consequence of a plea of which the defendant should be advised. But it is unnecessary to directly address this issue. "[W]hen 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.) Accordingly, defendants failure to object to imposition of the suspended restitution fine waives any error.
Moreover, the failure to advise a defendant of the direct consequences of a plea is generally considered harmless error unless there is a reasonable probability the defendant would not have entered the plea if he or she had been properly advised. (Walker , supra, 54 Cal.3d at p. 1023.) Here, defendant entered his plea with the understanding that he faced more serious consequences, including the possibility of a 10-year prison sentence. Further, the aggregate amount of the restitution fine imposed and the suspended restitution fine was substantially less than the maximum restitution fine of $10,000, of which defendant was advised. Under the circumstances, there was no prejudicial error. (See id. at pp. 1023, 1029.)
II. Violation of the Plea Agreement
"[Defendants] claim as to the asserted breach of the plea agreement is distinct from the question whether the trial court properly fulfilled its duty to advise him regarding the direct consequences of his plea. As . . . explained in People v. Walker, supra, 54 Cal.3d 1013, in contrast to a violation of the trial courts advisement duty (which, as we have seen, entitles a defendant to relief only if the defendant can demonstrate prejudice), `[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 [additional] punishment had it been made a part of the plea offer. "Because a court can only speculate why a defendant would negotiate for a particular term of a bargain, implementation should not be contingent on others assessment of the value of the term to defendant. . . ." [Citations.]" (Moser, supra, 6 Cal.4th at pp. 353-354.) Our analysis of whether the trial court violated the plea agreement here begins with our state Supreme Courts holdings in Walker, supra, 54 Cal.3d 1013, on which defendant relies.
In Walker, supra, 54 Cal.3d at pages 1018-1019, 1029, defendant who entered a negotiated plea was advised of a possible fine of up to $10,000, but there was no specific mention of a restitution fine. The trial court subsequently imposed a $5,000 restitution fine without objection by the defendant. (Id. at p. 1019.) Our state Supreme Court held that the consequences of the restitution fine were "severe enough that it qualifies as punishment" for purposes of the requirement that the punishment imposed as part of a plea agreement "may not significantly exceed that which the parties agreed upon." (Id. at p. 1024.) In the absence of a section 1192.5 admonition, the court concluded that the defendants right to the benefit of the plea bargain was not waived by his failure to object. (Id. at pp. 1029-1030.) The court held that where the issue was raised on appeal, the fine should be reduced 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.)
Because the section 1202.45 fine at issue here was not mentioned as part of the plea agreement, defendant claims it amounts to a punishment in violation of the plea agreement by parity of reasoning with Walker. But defendants argument is flawed in light of Moser and related authority.
In Moser, supra, 6 Cal.4th at page 347, the trial court erroneously informed a defendant who entered a plea in a second degree murder case that he would be subject to a three-year parole period that could be extended to four years. In fact, the defendant was subject to a maximum lifetime parole period. (Ibid.) The case ultimately reached our state Supreme Court following proceedings stemming from a petition for writ of habeas corpus in which defendant raised the error. (Id. at pp. 348-350.) One of defendants arguments in the Supreme Court was that the trial courts erroneous advice concerning the parole consequences constituted a breach of the plea agreement under Walker. (Id . at p. 356.)
The Supreme Court explained that the defendants argument relied on "an erroneous, overbroad reading of Walker." (Moser , supra, 6 Cal.4th at p. 356.) The court observed that Walker was premised on an implicit finding "that the defendant in that case reasonably could have understood the negotiated plea agreement to signify that no substantial fine would be imposed." (Id. at p. 356.) The court also noted that it had reasoned that the restitution fine should generally be considered in the plea negotiations because the amount could vary considerably depending on the facts of the case. (Id. at pp. 356-357.) The court explained, "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. [Citation.] Neither the prosecution nor the sentencing court has the authority to alter the applicable term of parole established by the Legislature." (Id . at p. 357.) The Supreme Court concluded that if "the subject of parole was not encompassed by the parties plea negotiations, imposition of the statutorily mandated term of parole would not constitute a violation of the parties plea agreement." (Ibid; cf. People v. McClellan (1993) 6 Cal.4th 367, 381 ["[T]he 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"].)
Likewise, in the instant case the trial court had no discretion with respect to the suspended restitution fine under section 1202.45, which must be set in an amount equal to the section 1202.4, subdivision (b) restitution fine. Defendant was advised that a restitution fine would be imposed in this case, and the failure to set the equivalent mandatory fine under section 1202.45 would have resulted in an unauthorized sentence. (See People v. Hong (1998) 64 Cal.App.4th 1071, 1084.) Accordingly, the suspended restitution fine was "not a permissible subject of plea negotiations." (Moser, supra, 6 Cal.4th at p. 357; cf. People v. McClellan, supra, 6 Cal.4th at pp. 380-381 [sex offender registration not part of plea agreement].) And there is no indication it was the subject of negotiations in the instant case. Under the circumstances, defendant has not shown any violation of the plea agreement.
Disposition
The judgment is affirmed.
We concur: BLEASE, Acting P.J., and NICHOLSON, J.