Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino CountySuper.Ct.No. FVI026259, J. David Mazurek, Judge. Affirmed with directions.
David K. Rankin, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, and Rhonda Cartwright-Ladendorf, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
King, J.
I. FACTS AND PROCEDURAL BACKGROUND
Defendant pled guilty to second degree robbery (Pen. Code, § 211) and admitted an enhancement allegation for the personal use of a firearm (§ 12022.5, subd. (a)). In return, the remainder of the information was dismissed and defendant received an aggregate five-year sentence, consisting of the mitigated term of two years for count 1 and the low term of three years for the enhancement. Additionally, the plea agreement provided that a restitution fine of $200 would be imposed. At sentencing, the court, without reference to the plea agreement, imposed restitution in the amount of $1,000. On appeal, defendant contends the court erred in imposing restitution in an amount greater than that agreed to in the plea bargain and requests that this court reduce the amount of restitution to $200. The People concede the issue. We agree and, therefore, direct the trial court to correct the minute order and abstract of judgment to reflect imposition of restitution fines pursuant to sections 1202.4, subdivision (b) and 1202.45 in the amounts of $200. In all other respects, the judgment is affirmed.
All further statutory references are to the Penal Code unless otherwise indicated.
II. DISCUSSION
“Although the purpose of a restitution fine is not punitive . . . its consequences to the defendant are severe enough that it qualifies as punishment . . . . Accordingly, the restitution fine should generally be considered in plea negotiations.” (People v. Walker (1991) 54 Cal.3d 1013, 1024.) “Specific enforcement [of a plea bargain] is appropriate when it will implement the reasonable expectations of the parties without binding the trial judge to a disposition that he or she considers unsuitable under all the circumstances.” (People v. Mancheno (1982) 32 Cal.3d 855, 861; see also People v. Kaanehe (1977) 19 Cal.3d 1, 14.) An appellate court may order specific enforcement of a plea agreement. (People v. Mancheno, supra, at p. 866; People v. Walker, supra, at p. 1031.) Where the plea bargain was breached inadvertently, specific enforcement of the agreement is particularly appropriate. (People v. Kaanehe, supra, at p. 14; People v. Newton (1974) 42 Cal.App.3d 292, 298.)
Here, the restitution fine was considered in defendant’s plea negotiations and agreement. That agreement provided that restitution would be in the exact amount of $200. Nonetheless, the trial court ordered restitution pursuant to sections 1202.4, subdivision (b) and 1202.45 in the amount of $1,000. However, the sentencing judge does not appear to have exercised his discretion in imposing the $1,000 restitution fines, nor does it appear that he disagreed with the amount of restitution provided in the plea agreement. Rather, it appears the trial court imposed the $1,000 fines without resort to the actual plea agreement, using the formula provided in section 1202.45, subdivision (b)(2) and the amount recommended in the probation officer’s report instead. A different judge from the one taking the plea presided over the sentencing hearing. Likewise, different counsel represented defendant at the sentencing hearing. Thus, the trial court appears inadvertently to have imposed the restitution fines in an amount different from that contained in the plea agreement. Therefore, we shall order the trial court to amend the sentencing minute order of April 9, 2007, and the abstract of judgment to reflect imposition of restitution fines pursuant to sections 1202.4, subdivision (b) and 1202.45 in the amounts of $200. (§ 1202.45 [parole revocation fine must be in the same amount as that imposed pursuant to § 1202.4, subd. (b)].)
III. DISPOSITION
The trial court is directed to amend the sentencing minute order of April 9, 2007, and the abstract of judgment to reflect imposition of restitution fines pursuant to sections 1202.4, subdivision (b) and 1202.45 in the amounts of $200. The trial court is directed to deliver a certified copy of the amended minute order and abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects the judgment is affirmed.
We concur: McKinster, Acting P.J., Gaut, J.