Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 07F8873
BUTZ, J.Defendant Brian Douglas Reed entered a negotiated plea of guilty to identity theft (Pen. Code, § 530.5, subd. (a)--count 1) and possession of a completed check with intent to defraud (§ 475, subd. (a)--count 3) in exchange for the dismissal of the remaining counts and a stipulated state prison sentence of three years.
Undesignated statutory references are to the Penal Code.
The court imposed the upper term of three years for count 1 and a concurrent upper term of three years for count 3.
Defendant appeals. His request for a certificate of probable cause was denied. (§ 1237.5.)
Defendant contends the trial court imposed punishment greater than that agreed upon in that the court imposed fees and fines. He argues he is entitled to withdraw his plea. He claims the issue is not forfeited by his failure to object in that the trial court did not orally admonish him pursuant to section 1192.5. In the alternative, he claims counsel rendered ineffective assistance by failing to object to the fees and fines. In his reply brief, responding to the Attorney General’s argument that the appeal should be dismissed because defendant is challenging the validity of the plea and he failed to obtain a certificate of probable cause, defendant denies that he is attacking the validity of the plea since he never agreed to the fees and fines. The Attorney General argues in the alternative that defendant’s complaints are “wholly without merit” because the fines are mandatory.
DISCUSSION
We conclude that to the extent defendant attacks the validity of the plea, his lack of a certificate of probable cause bars his claim. (People v. Panizzon (1996) 13 Cal.4th 68, 76, 79 (Panizzon).) To the extent defendant challenges only the punishment as exceeding that agreed upon, his claim is forfeited by his failure to object to the fees and fines at sentencing. (People v. Walker (1991) 54 Cal.3d 1013, 1024-1026.) We reach the merits, however, because defendant raises ineffective assistance of counsel for failing to object to the fees and fines at sentencing.
In entering his negotiated plea, defendant was advised in the written plea form that a restitution fine in an amount not less than $200 and no more than $10,000 would be imposed. Under the heading “PUNISHMENT,” the written plea form states, in relevant part, as follows: “I understand the maximum imprisonment is [three] yrs in state prison and/or __________ [in] county jail; maximum fine is [$]10,000 plus a penalty assessment of 170%; if probation is granted, the maximum period of probation is __________; if state prison is imposed, the maximum period of parole is [four years]; a restitution fine of not less than $200 nor more than $10,000 will be imposed and I will be required to pay restitution up to the full amount necessary to compensate any victims for economic losses.” (Handwritten portion in italics.)
Defendant was also advised in the written plea form that in the event the sentencing court withdrew its approval of the negotiated plea bargain defendant would be allowed an opportunity to withdraw his plea. The admonishment states: “At the time of sentencing, the sentencing judge may withdraw approval of this plea. If the judge does so, I will be permitted to withdraw my plea.”
At the entry of plea hearing, defendant confirmed that he understood and had initialed and signed the plea form and that no other promises had been made. Defendant entered his plea and was immediately sentenced. Defense counsel waived referral to probation. Defense counsel did not object to the fees and fines imposed. The court imposed a $400 restitution fine (§ 1202.4, subd. (b)) plus a 10 percent administrative fee (§ 1202.4, subd. (l)), a $400 parole revocation restitution fine (parole fine) (former § 1202.45), and two $20 court security fees (§ 1465.8).
Defendant argues that he never agreed to any punishment other than three years in state prison. Defendant misinterprets the plea agreement. The plea agreement only specified the prison term and no promises were made with respect to the specific amount of fees and fines. “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 defendant’s restitution fine to the discretion of the court, defendant is not entitled to relief.” (People v. Crandell (2007) 40 Cal.4th 1301, 1309 (Crandell), italics added.)
Here, the written plea form reflects that the amount of the restitution fine was not a subject of negotiation. As such, the parties agreed “to leave the amount of defendant’s restitution fine to the discretion of the court.” (Crandell, supra, 40 Cal.4th at p. 1309.) The trial court did not violate the terms of the plea agreement by imposing a restitution fine and the corresponding parole fine or the court security fees.
Defendant was advised in accordance with section 1192.5, in writing in the plea agreement, and the court properly relied upon the written admonishment since it had determined defendant had read, understood and signed the plea form after conferring with his attorney, which his attorney also confirmed. (Panizzon, supra, 13 Cal.4th at pp. 83-84.) There was no objection at sentencing to the fees and fines imposed. Defendant claims counsel should have objected. We disagree.
The plea form reflects that defendant conferred with counsel: “I have discussed the negotiated plea with my attorney and my attorney has answered all my questions. I have no other questions I wish to ask my attorney before entering this plea. We have discussed possible defenses and motions and I am convinced it is in my best interest to enter this plea. [¶] Other than what is written in the ‘Plea Agreement’ part of this form, no other promises have been made to me, by anyone, to convince me to enter this plea.”
To establish ineffective assistance of counsel, defendant must demonstrate that counsel’s performance was deficient and that defendant suffered prejudice as a result. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 691-692 [80 L.Ed.2d 674, 693, 696]; People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) Counsel is not required to make futile objections. (People v. Majors (1998) 18 Cal.4th 385, 403; People v. Terrell (1999) 69 Cal.App.4th 1246, 1252-1253.)
Defendant has failed to demonstrate that counsel’s performance was deficient. The restitution fine is mandatory. The minimum amount is $200. Here, the court imposed $400, only $200 more than the minimum amount. Defendant was sentenced to state prison for an aggregate term of three years for two convictions. The amount imposed was well below the amount suggested ($1,200) by the formula in section 1202.4, subdivision (b)(2). Any objection would have been futile. The parole fine must be in the same amount as the restitution fine and is suspended subject to defendant’s completion of parole. (Former § 1202.45.) The court imposed a suspended $400 parole fine, the same amount as the restitution fine. Any objection would have been futile. The court security fee is mandatory as well, $20 per conviction. (§ 1465.8.) The court imposed $40, that is, $20 per conviction. Again, any objection would have been futile.
Section 1202.4, subdivision (b)(2) provides: “In setting a felony restitution fine, the court may determine the amount of the fine as the product of two hundred dollars ($200) multiplied by the number of years of imprisonment the defendant is ordered to serve, multiplied by the number of felony counts of which the defendant is convicted.”
DISPOSITION
The judgment is affirmed.
We concur: BLEASE, Acting P. J., HULL, J.
Defendant’s attorney signed the following statement: “I am the attorney of record and I have explained each of the above rights to the defendant. I consent to this entry of plea and concur in the defendant’s decision to waive the above rights and enter the plea.”