Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC513391
Bamattre-Manoukian, ACTING P.J.
I. INTRODUCTION
This matter has been transferred to this court by the California Supreme Court with directions to vacate our decision “and to reconsider the cause in light of People v. Crandell (2007) 40 Cal.4th 1301.” In our previous opinion, we concluded that imposition of a restitution fine of $2,400 did not violate the terms of defendant’s plea bargain. (People v. Romeo (Dec. 8, 2006, H030153) [nonpub. opn.].)
No supplemental briefs have been filed in response to the transfer order. (Cal. Rules of Court, rule 8.200.) Having reconsidered the cause in light of Crandell, we again affirm the judgment.
II. FACTUAL AND PROCEDURAL BACKGROUND
On December 8, 2005, defendant was arrested after displaying symptoms of being under the influence of a stimulant and admitting to a police officer that he had used methamphetamine. The police officer determined that defendant was on probation for check fraud with a search and seizure clause and searched defendant and his vehicle. The officer recovered two USB hard drives, approximately 24 checks belonging to different people, and a mailbox key. The USB hard drives contained a number of different bank logos, blank format forms for California driver’s licenses and FBI identification cards, and input screens for printing checks. Further investigation included contacting some of the people identified on the recovered checks, who informed police that they had mailed the checks and did not know defendant.
After the preliminary hearing held January 20, 2006, the People filed an information charging defendant with four felony counts, including buying, receiving, concealing, or withholding stolen property (Pen. Code, § 496, subd. (a); count 1), possession of a blank or unfinished check (§ 475, subd. (b); count 2), and possession of a completed check (§ 475, subd. (c); counts 3, 6). The information also alleged two misdemeanor counts, possession of burglar tools (§ 466; count 4) and being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a); count 5), as well as three prior felony convictions.
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant subsequently brought a motion to suppress evidence under section 1538.5, which the trial court denied. The trial court also denied defendant’s renewed motion to suppress evidence and his section 995 motion to dismiss the information. Thereafter, defendant entered into a negotiated plea agreement and pleaded no contest to all counts on March 22, 2006 in exchange for a prison term of three years, eight months; resolution of pending probation violations; the People’s promise not to file any additional charges based on the preliminary hearing evidence; and a Harvey stipulation. Prior to accepting defendant’s plea, the trial court did not give a section 1192.5 admonition.
A Harvey stipulation permits the sentencing court to consider dismissed or uncharged counts in reaching its sentencing decision or disposition. (In re Josh W. (1997) 55 Cal.App.4th 1, 4, fn.2; In re Devin J. (1984) 155 Cal.App.3d 1096, 1098, fn.2; see generally People v. Harvey (1979) 25 Cal.3d 754.)
Section 1192.5 provides in relevant part, “If the court approves of the plea, it shall inform 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.”
At the sentencing hearing held April 12, 2006, the trial court sentenced defendant to a total term of three years, eight months in state prison in accordance with the terms of the plea agreement. The trial court also imposed a restitution fine of $2,400 (§ 1202.4) and a second $2,400 restitution fine, suspended (§ 1202.45).
On appeal to this court, defendant argued that the trial court violated the terms of his plea bargain by imposing a $2,400 restitution fine to which he had not specifically agreed. He sought a reduction of the restitution fine to the statutory minimum of $200, pursuant to People v. Walker (1991) 54 Cal.3d 1013.
In our previous opinion, we concluded that defendant’s argument lacked merit, for the following reasons: “[D]efendant’s failure to object to the imposition of the restitution fine, when he was advised prior to his plea that a restitution fine of $200 to $10,000 would [be] imposed and again when the $2,400 fine was imposed at sentencing, indicates that imposition of the restitution fine did not violate the terms of his plea bargain. In People v. McClellan (1993) 6 Cal.4th 367, 378, the California Supreme Court found that the defendant’s failure to object to the requirement of sex offender registration under section 290 at the sentencing hearing suggested that the defendant ‘did not consider the registration requirement significant in the context of his plea agreement.’ [¶] Similarly, this court has previously determined that a defendant’s failure to object to the imposition of a restitution fine at the time of sentencing indicates that imposition of the fine does not violate the terms of the plea bargain ([People v.] Dickerson [(2004)] 122 Cal.App.4th [1374,] 1385.) Additionally, failure to object ‘suggests an implicit agreement that the imposition and amount of any fines was left to the discretion of the sentencing court.’ ([People v.] Sorenson [(2005)] 125 Cal.App.4th [612,] 619.)” (People v. Romeo, supra, H030153.) On the basis of this reasoning, we affirmed the judgment.
After this court affirmed the judgment, defendant petitioned the California Supreme Court for review. The court deferred action pending consideration and disposition of a related issue in Crandell. On August 8, 2007, the California Supreme Court transferred the matter to this court with directions to vacate our previous decision and to reconsider the cause in light of Crandell, supra, 40 Cal.4th 1301.
III. DISCUSSION
In Crandell, supra, 40 Cal.4th 1301, our Supreme Court addressed an issue nearly identical to the issue raised in the present case. Defendant Crandell contended that imposition of a $2,600 restitution fine violated his plea bargain and he was entitled to have the fine reduced to the statutory minimum of $200 pursuant to Walker, supra, 54 Cal.3d 1013. (Crandall, supra, 40 Cal.4th. at p. 1308.) The court rejected Crandell’s argument on the ground that Walker was distinguishable.
Reviewing its decision in Walker, supra, 54 Cal.3d 1013, our Supreme Court in Crandell pointed out that the trial court in that case had committed two errors not present in Crandell’s trial court proceedings. First, the trial court in Walker erroneously advised the defendant that a restitution fine was “ ‘a possible consequence’ when it ‘should have advised defendant there was a $10,000 penalty fine and a mandatory restitution fine of between $100 and 10,000.’ [Citation.]” (Crandell, supra, 40 Cal.4th at pp. 1307-1308.) Second, “the trial court imposed a restitution fine of $5,000 that had not been mentioned in the parties’ plea bargain.” (Id. at p. 1308.) Thus, our Supreme Court concluded that that defendant in Walker could reasonably have understood “ ‘the negotiated plea agreement to signify that no substantial fine would be imposed.’ [Citation.]” (Crandell, supra, 40 Cal.4th at p. 1310.)
In Crandell, only “the second type of error, violation of the plea bargain,” was in question. (Crandell, supra, 40 Cal.4th at p. 1308.) The trial court had advised Crandell that that he would “ ‘have to pay a restitution fund fine of a minimum of $200, a maximum of $10,000.’ ” (Id. at p. 1305.) Additionally, the trial court had “ascertained that the prosecution had not made ‘any other promises’ beyond that defendant would be sentenced to 13 years in prison.” (Id. at p. 1309.) Our Supreme Court determined that in light of these facts, which were distinguishable from the facts in Walker, supra, 54 Cal.3d 1013, it was “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.” (Crandell, supra, 40 Cal.4th at p. 1310.)
In so ruling, the court in Crandell articulated two rules. First, “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) that they find mutually agreeable.” (Crandell, supra, 40 Cal.4th at p. 1309.) Second, “ ‘the core question in every case is . . . whether the restitution fine was actually negotiated and made a part of the plea bargain, or whether it was left to the discretion of the court.’ ” (Ibid.) Where the amount of the restitution fine was not expressly made a part of the plea bargain, 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.)
We have reconsidered the present case in light of the rulings in Crandell, supra, 40 Cal.4th 1301. Our review of the record indicates that the parties intended their plea bargain to leave the amount of the restitution fine to the trial court’s discretion, and therefore defendant is not entitled to relief.
As in Crandell, the trial court advised defendant that he would be subjected to a mandatory restitution fine, as stated in the following colloquy before the court accepted defendant’s no contest pleas on March 22, 2006:
“THE COURT: I would like to talk to you about some other consequences of your pleas here this morning. First of all, I will order restitution in this matter. I don’t know if there is any or how much there is, but you must know there is a consequence of your plea? Do you understand that?
“[DEFENDANT]: Yes, your Honor.
“THE COURT: You would be subject to a restitution fund fine anywhere from two hundred to ten thousand dollars. Do you understand that?
“[DEFENDANT]: Yes, your Honor.”
The trial court also ascertained on March 22, 2006, that the prosecution had not made any other promises to defendant other than the promises the court had already stated on the record:
“THE COURT: Have any promises been made to you other than what I promised on the record here this morning, any other promises made to you to cause you or induce you to change your pleas here this morning?
“[DEFENDANT]: No, your Honor.”
Thus, in the present case the trial court, prior to accepting defendant’s plea, advised defendant that he was subject to a mandatory restitution fine of a minimum amount of $200 to a maximum amount of $10,000, and also ascertained that no promises had been made in addition to the plea bargain as expressly stated on the record. As in Crandell, the trial court had thereby obtained “assurance that the parties intended their plea bargain to leave the amount of the restitution fine to the court’s discretion. [Citation.]” (Crandell, supra, 40 Cal.4th at p. 1310.) Moreover, on these facts, as in Crandell, “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.” (Ibid.)
For these reasons, we again conclude that defendant has not established that the trial court’s imposition on a $2,400 restitution fine at sentencing violated his plea agreement.
IV. DISPOSITION
The judgment is affirmed.
WE CONCUR: McAdams, J., Duffy, J.