Opinion
H031876.
1-29-2009
THE PEOPLE, Plaintiff and Respondent, v. ANASTACIO JAVIER ZUNIGA, Defendant and Appellant.
Not to be Published in Official Reports
STATEMENT OF THE CASE
Defendant Anastacio Javier Zuniga pleaded no contest to five counts of lewd conduct with a minor under the age of 14, and in exchange, the court dismissed two counts of aggravated sexual assault and imposed a specified sentence of 22 years in prison. (Pen. Code, §§ 288, subd. (b)(1), 269.) The court also ordered defendant to register as a sex offender and directed him to pay a $10,000 restitution fund fine and a matching parole revocation restitution fine, a $100 court security fee, and a $100 sex offender registration fine. (§§ 290, 1202.4, 1202.45, 1465.8, subd. (a)(1), 290.3.) On appeal from the judgment, defendant claims the court violated a term of his plea bargain by imposing the $10,000 restitution fund fine and matching parole revocation restitution fine.
All unspecified statutory references are to the Penal Code.
We agree, reverse the judgment, and remand the matter to permit defendant to withdraw his plea.
Defendant obtained a certificate of probable cause to challenge his plea. Although he did not raise the restitution fine issue, the failure to do so does not bar his claim on appeal. (People v. Hoffard (1995) 10 Cal.4th 1170, 1173-1174, 1176-1177 [rejecting claim that defendant may assert on appeal only those issues raised in request for certificate].)
THE OFFENSES
The probation report reveals that over a period of time, defendant, who was being paid to drive an eight-year-old boy to and from school, repeatedly molested the boy inside his vehicle. The victim said defendant fondled his rectum and buttocks, masturbated him, and orally copulated him. The victim tried to push defendants hands away but was unable to do so. On one occasion, defendant orally copulated him, and, when the victim tried to pull his pants up, defendant prevented him from doing so. The victim estimated that defendant touched him 39 times. Defendant initially denied the molestation, but he ultimately admitted touching the victim, claiming, however, that the victim asked to be touched and orally copulated.
BACKGROUND
Defendant was charged with two counts of aggravated sexual assault of a minor and five counts of forcible lewd conduct with a child under the age of 14. (§ 288, subd. (b)(1), 269.) He initially pleaded not guilty. Thereafter, he negotiated a plea bargain with the prosecutor. At the change of plea hearing, the court recited the terms, stating, "Mr. Zuniga, the agreement in your case is as follows: You will plead guilty or no contest to five felony counts of lewd or lascivious act on a child by force, violence, duress, menace and fear. And in exchange for those pleas, the agreement is that when you are sentenced, you will receive a 22-year sentence in the state prison, no more, no less. And counts 1 and 2 will be dismissed at the time of the sentencing; do you understand this agreement?" Defendant said he did.
After a recess, the court reiterated the terms of the bargain, both defendant and defense counsel said they understood the terms, and the prosecutor indicated agreement with the terms. The court then advised him of the various rights that he would waive by entering his plea, and defendant waived them. Concerning the consequences of the plea, the court listed parole, potential deportation, restrictions on possessing firearms, use of convictions as strikes in future prosecutions, restrictions on earning credit in prison, and potential suspension or revocation of defendants drivers license. The court further advised defendant, "When you are sentenced there will be a fine to the State Restitution Fund of a minimum of $200, to a maximum of $10,000, based on your ability to pay."
Thereafter, the court said, "The agreement in this case is that you are going to plead to five counts, the sentence will be 22 years state prison, the other two charges will be dismissed at the time of sentencing. Other than those terms, has any other promise been made to you or are there any other conditions to your plea?" Defendant indicated that there had been no other promises, and there were no other conditions. The court reiterated the terms, and defendant said he understood them and entered his plea. Counsel concurred, and the court accepted it.
The probation report recommended, among other things, the maximum restitution fund fine of $10,000 under section 1202.4. At sentencing, the court said it would impose the specified sentence and asked defense counsel for any comments. Counsel noted only that defendant claimed he was innocent. He did not offer any evidence on the issue of defendants ability to pay a restitution fine. The court then imposed the specified term of 22 years and ordered defendant to pay various fines and fees, including the recommended $10,000 restitution fund fee. It also imposed a matching parole revocation restitution fine, which it suspended.
DISCUSSION
Defendant claims that, in advising him that there would be a restitution fund fine "of a minimum of $200, to a maximum of $10,000, based on your ability to pay" (italics added), the court assured him that the amount of the fine would be limited to the amount he had the ability to pay. He argues that that assurance represented either an enforceable part of the plea bargain or a separate promise, and the court breached it by imposing a $10,000 fine that was not based on his ability to pay.
The Attorney General claims there was no violation of the plea bargain because it did not encompass any issues related to the imposition or calculation of the fine.
Generally, where, before accepting a plea, the trial court recites the terms of a bargain, the terms do not mention a restitution fine, and the court advises the defendant that one will be imposed as a consequence of the plea, reviewing courts have found that the plea bargain dealt only with the resolution of charges and left the imposition and calculation of fines to the discretion of the sentencing court. Accordingly, the subsequent imposition of a fine does not violate the terms of the plea bargain. (People v. Crandell (2007) 40 Cal.4th 1301, 1309-1310; People v. Dickerson (2004) 122 Cal.App.4th 1374, 1386; People v. Sorenson (2004) 125 Cal.App.4th 612, 618-620; People v. Knox (2004) 123 Cal.App.4th 1453, 1460-1461.)
Here, the trial court recited the terms of the bargain negotiated by the parties several times, and they included only defendants plea to five counts, the dismissal of two counts, and the imposition of a specified sentence. Because they did not mention restitution, we agree with the Attorney General that the negotiated terms did not limit the restitution fine to the amount defendant had the ability to pay. However, that does not foreclose defendants claim.
Section 1192.7, subdivision (b) defines "plea bargaining" in cases where, as here, the defendant is charged with a "serious felony" to mean "any bargaining, negotiation, or discussion between a criminal defendant, or his or her counsel, and a prosecuting attorney or judge, whereby the defendant agrees to plead guilty or nolo contendere, in exchange for any promises, commitment, concessions, assurances, or consideration by the prosecuting attorney or judge relating to the charge against the defendant or to the sentencing of the defendant." (Italics added.)
As noted, defendant was charged with lewd conduct with minor under 14 years old, aggravated sexual assault, lewd conduct—oral copulation—by force (§§ 288, 269, 288, subd. (b)(1)), all of which are "serious felonies" (§§ 1192.7, subds. (c)(5) [oral copulation by force], & (c)(6) [lewd act with minor under 14].)
We observe that section 1192.7, subdivision (a)(2) prohibits plea bargaining in such cases "unless there is insufficient evidence to prove the peoples case, or testimony of a material witness cannot be obtained, or a reduction or dismissal would not result in a substantial change in sentence." Neither party challenges the propriety of plea bargaining in this case, and the issue is not before us.
For example, in People v. Mancheno (1982) 32 Cal.3d 855 (Mancheno), the defendant negotiated a plea agreement with the prosecutor concerning four counts of robbery with arming enhancements. At the change of plea hearing, the court stated that the bargain entailed the defendants plea to two counts of robbery in exchange for concurrent terms. The court further noted that it had agreed to the defendants separate request for a diagnostic study by the Department of Corrections. Thereafter, the prosecutor reiterated that if, after the diagnostic study, the court intended to send him to prison, it would impose concurrent terms. At sentencing, the court imposed concurrent terms. The diagnostic study was not mentioned. However, on appeal, the defendant claimed the court violated the plea bargain by failing to order a study. (Id. at pp. 858-859.)
The California Supreme Court agreed that the court had not kept its promise. The court explained, "Plea bargaining is an accepted practice in American criminal procedure. [Citation.] The process is not only constitutionally permissible [citation], but has been characterized as an essential and desirable component of the administration of justice. [Citation.] Concomitant with recognition of the necessity and desirability of the process is the notion that the integrity of the process be maintained by insuring that the state keep its word when it offers inducements in exchange for a plea of guilty." (Mancheno, supra, 32 Cal.3d at pp. 859-860, fn. omitted, italics added.) Quoting Santobello v. New York (1971) 404 U.S. 257, 262, the court stated, "`This phase of the process of criminal justice, and the adjudicative element inherent in accepting a plea of guilty, must be attended by safeguards to insure the defendant what is reasonably due in the circumstances. Those circumstances will vary, but a constant factor is that when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled." (Mancheno, supra, 32 Cal.3d at p. 860; accord, People v. Crandell, supra, 40 Cal.4th at p. 1307; People v. Walker (1991) 54 Cal.3d 1013, 1024 (Walker).)
Restitution is a matter related to sentencing, and because restitution is a consequence of the plea, the court has a duty to advise the defendant about a mandatory restitution fund fine of between $200 and $10,000. (Walker, supra, 54 Cal.3d at p. 1022.) Here, the court gave that advisement but went further and said the amount of the fine would be based on defendants ability to pay. The additional advisement was simple and unqualified and constituted an assurance that the fine would be limited to the amount defendant had the ability to pay. Furthermore, that assurance was beneficial.
Section 1202.4 provides that, when a defendant is convicted of a felony, the court "shall" impose a fine between $200 and $10,000 that is "commensurate with the seriousness of the offense," "unless it finds compelling and extraordinary reasons for not doing so, and states those reasons on the record." (Id., subds. (a)(3)(A), (b), (b)(1), (c).) The statute expressly provides that the inability to pay is not a sufficient reason not to impose a fine. (§ 1202.4, subd. (c).) Rather, the inability to pay is relevant only in determining how much more than the statutory minimum the fine should be. However, in determining the amount of the fine, the court must consider all relevant factors, including the defendants ability to pay and also the seriousness of the offense and the injuries to the victim. (§ 1202.4, subd. (d).) The court may also consider any aggravating or mitigating sentencing factors. (People v. Gangemi (1993) 13 Cal.App.4th 1790, 1799.) Moreover, to simplify setting the fine, the statute provides an optional formula: "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." (§ 1202.4, subd. (b)(2).)
In sum, because the fine must be commensurate with the seriousness of the offense, a defendants inability to pay does not necessarily or automatically limit the amount of a fine. Indeed, in People v. DeFrance (2008) 167 Cal.App.4th 486, the court upheld a maximum $10,000 fine despite the defendants inability to pay it because his offenses were serious. (Id. at pp. 504-505.)
Here, the record would support the maximum fine based on both the seriousness of the offense and the statutory formula. Defendant planned and perpetrated a numerous different of lewd acts, sometimes with force, over a period of time against a young and vulnerable victim in violation of his position of trust and confidence. (See Cal. Rules of Ct., rule 4.421(a)(3), (8), (11).) Moreover, under the statutory formula, the fine would be $22,000—i.e., $200 times 22 years time five counts—which would have to be reduced to the maximum of $10,000.
Despite defendants potential exposure to the maximum fine, the court assured defendant that the fine would be based on his ability to pay. The probation report indicates that, in fact, defendant does not have the ability to pay a $10,000 fine. Defendant speaks only Spanish and is 60-years-old with a third-grade education. He has three children, with whom he had been living. When arrested, he had been unemployed for almost a year. He lacked funds for an attorney and was represented by the public defender. He has been incarcerated since his arrest, and he faces 22 years in prison. Moreover, defendant points out that the pay scale for prison inmates who have minimal skills and who are allowed to work is very low. (See Cal. Code Regs., tit. 15, § 3041.2 [8¢/hour for laborers; 11¢/hour for semi-skilled labor].) Assuming defendant was allowed to work 40 hours per week for every week of his 22-year prison term, he would earn $3,660.08 for simple labor and $5,033.60 for semi-skilled labor.
Ordinarily, the defendant bears the burden of demonstrating his or her inability to pay. (§ 1202.4, subd. (d).)
In short, from defendants perspective, the courts assurance represented an additional and beneficial inducement to waive his rights and enter the plea; and defendant did so after receiving that assurance.
The courts assurance distinguishes this case from Crandell, supra, 40 Cal.4th 1301, People v. Dickerson, supra, 122 Cal.App.4th 1374, People v. Sorenson, supra, 125 Cal.App.4th 612, and People v. Knox, supra, 123 Cal.App.4th 1453, which indicate that mere advisement about a fine does not become part of the plea bargain. Indeed, had the court here simply said that defendant faced a mandatory fine of between $200 and $10,000, these cases would refute defendants claim.
Under the circumstances, therefore, the courts assurance falls within the statutory definition of plea bargaining and became enforceable.
We acknowledge that trial courts are not supposed to engage in plea bargaining. In People v. Smith (1975) 53 Cal.App.3d 655, the court observed that "`[p]lea bargaining is a process by which the People, represented by the prosecutor, and a defendant negotiate an agreement for the disposition of criminal charges against the defendant. [Citations.] The approval of the trial judge is an essential element to the effectiveness of the plea bargain eventually worked out between the prosecutor and the defendant. [Citation.] `However, the court has no authority to substitute itself as the representative of the People in the negotiation process and under the guise of "plea bargaining" to "agree" to a disposition of the case over prosecutorial objection." (Id. at p. 658.) Indeed, the Supreme Court opined that judicial plea bargaining "would contravene express statutory provisions requiring the prosecutors consent to the proposed disposition, would detract from the judges ability to remain detached and neutral in evaluating the voluntariness of the plea and the fairness of the bargain to society as well as to the defendant, and would present a substantial danger of unintentional coercion of defendants who may be intimidated by the judges participation in the matter. [Citation.]" (People v. Orin (1975) 13 Cal.3d 937, 943, fns. omitted; accord, People v. Segura (2008) 44 Cal.4th 921, 930.)
Here, however, the court here did not substitute itself as a representative of the People, negotiate the disposition of charges, or otherwise add to the parties agreement over the prosecutors objection. The courts assurance concerned a matter that the parties had left to the court; and, when the court gave it, the prosecutor made no objection or comment. Moreover, although the courts assurance represents a beneficial inducement, it had no tendency to impair the courts ability to remain detached and neutral in evaluating the voluntariness of defendants plea and to judge the fairness of the terms negotiated by the parties. Nor did it pose any potential danger of intimidating or coercing defendant. In our view, the courts assurance no more constituted improper plea bargaining than did the courts separate and enforceable promise to order a diagnostic study in Mancheno.
Having established the courts assurance was enforceable, we next find that the court breached it. Although defendant presented no information at sentencing concerning his ability to pay, the probation report contained the relevant information and, therefore, it was before the court. In imposing the $10,000 fine, the court did not discuss defendants ability to pay or expressly find that defendant had the ability to pay a $10,000 fine. Moreover, even if we assume that the court implicitly made such a finding, the record does not support it. As noted, defendant is in his 60s, he has only a third-grade education, he had been unemployed before his arrest and incarcerated thereafter, and he faces a long prison term, where his potential earnings would fall far below $10,000.
We now must decide whether defendant is entitled to a remedy, and if so, what that remedy should be. In Mancheno, the court stated that due process applied to both accepting and implementing a plea bargain, and, therefore, a "violation of the bargain by an officer of the state raises a constitutional right to some remedy." (Mancheno, supra, 32 Cal.3d at p. 860; accord, People v. Crandell, supra, 40 Cal.4th at p. 1307.) However, not every deviation from the terms of a bargain is constitutionally impermissible. (Walker, supra, 54 Cal.3d at p. 1024.) To warrant a remedy, the variance must be "`significant in the context of the plea bargain as a whole to violate the defendants rights." (Ibid.; Santobello v. New York, supra, 404 U.S. at p. 262.) If the variance results in punishment that is significantly exceeds that contemplated in the plea bargain, a remedy is necessary. (People v. Brown (2007) 147 Cal.App.4th 1213, 1222; People v. Renfro (2004) 125 Cal.App.4th 223, 230; e.g., Walker, supra, 54 Cal.3d 1013 [$5000 restitution deemed significant punishment not contemplated by the plea bargain].)
Given the courts assurance, the parties could reasonably expect that the amount of the fine would be limited to the amount that defendant had the ability to pay, no more and no less. As noted, the record does not support a finding that defendant has the ability to pay a $10,000 fine. Thus, the fine resulted in additional punishment that significantly exceeded the amount defendant reasonably contemplated under the courts assurance. Accordingly, defendant is entitled to a remedy.
Defendant argues that he should be allowed to choose between specific performance and withdrawal of his plea. We disagree.
The remedy for violation of a plea agreement depends on the circumstances of each case. (Mancheno, supra, 32 Cal.3d at p. 860.) The goal of a remedy is "to redress the harm caused by the violation without prejudicing either party or curtailing the normal sentencing discretion of the trial judge." (Ibid.)
The usual remedies for breach of a plea bargain are "to allow defendant to withdraw the plea and go to trial on the original charges, or to specifically enforce the plea bargain." (Mancheno, supra, 32 Cal.3d at pp. 860-861; accord, Walker, supra, 54 Cal.3d at pp. 1026-1027.) However, in Walker, supra, 54 Cal.3d 1013, the court formulated a third remedy where the plea bargain precluded the imposition of a substantial restitution fund fine. (Id. at p. 1027.) The court held that when such a "breach of the plea bargain is first raised after sentencing, [as here on appeal,] the proper remedy generally is to reduce the fine to the statutory minimum [then $100], and to leave the plea bargain intact." (Id. at p. 1029.) In reaching that conclusion, the court stressed that "normally the defendant should not receive any more punishment than that bargained for." (Id. at p. 1027, fn. 3.) The court allowed the "the nonbargained $100 fine" to stand on appeal only because it was "statutorily mandated and . . . not significant in the context of the bargain as a whole." (Id. at pp. 1027-1028, fn. 3.)
We decline to adopt the Walker remedy because, unlike the bargain in Walker, the courts assurance here did not preclude a substantial fine. Moreover, the remedy goes far beyond the harm caused by the breach. As noted, the court reasonably could have found that defendant had the ability to pay a fine many times more than the statutory minimum of $200. Thus, reducing the fine to $200 would provide a windfall to defendant and frustrate the Peoples reasonable expectation that, as additional punishment, defendant would be required to pay as much as had the ability to pay and no less.
We also decline to remand the case to allow defendant to withdraw his plea. In People v. Kaanehe (1977) 19 Cal.3d 1, the court explained, "Specific enforcement of a plea bargain agreement is actually a broad term covering several different types of relief. The remedy differs depending upon the nature of the breach and which party is seeking specific enforcement. When the breach is a refusal by the prosecutor to comply with the agreement, specific enforcement would consist of an order directing the prosecutor to fulfill the bargain. When the breach is a refusal by the court to sentence in accord with the agreed upon recommendation, specific enforcement would entail an order directing the judge to resentence the defendant in accord with the agreement. The People as well as a defendant may seek such specific enforcements. The effect is to limit the remedy to an order directing fulfillment of the bargain. In such instances, the defendant is not allowed to withdraw his guilty plea." (Id. at p. 13; e.g., Mancheno, supra, 32 Cal.3d at p. 861 [quoting Kaanehe and specific performance of courts promise]; e.g., People v. Flores (1971) 6 Cal.3d 305, 309 [ordering specific performance].)
Here, defendant agreed to enter his plea in exchange for the dismissal of serious charges and a fixed term, and the record establishes that he would have done so even if the court had not, in addition, gratuitously assured him that the restitution fine would be based on his ability to pay. Indeed, defendant did not insist that restitution be a term of the bargain during his negotiations with the prosecution, and he did not separately request that the court limit the restitution fine to the amount he could pay or otherwise raise the issue at the time of the plea. Accordingly, defendants expectation at sentencing was that he would stand convicted of the lesser charges, receive specified prison sentence, and have to pay a restitution fine based on his ability to pay. The courts breach did not frustrate defendants expectations concerning the resolution of the charges and sentence or implicate the voluntariness of his plea; it frustrated only his expectation concerning the amount of the fine. Under the circumstances, therefore, a remand to permit defendant to withdraw his plea, like the Walker remedy, would go beyond what is necessary to cure the harm caused by the breach.
For this reason, we reject defendants argument that because a negotiated plea agreement is a form of contract that is interpreted according to general contract principles (People v. Shelton (2006) 37 Cal.4th 759, 767), we should follow the general rule that the injured party can elect one of two remedies: either compel enforcement of the promise, or to treat the contract as breached and seek damages stemming from the breach, if any. (Union Oil Co. of California v. Greka Energy Corp. (2008) 165 Cal.App.4th 129, 136.) We note, however, that under this rule, an injured party gets only what he or she is entitled to: specific performance or compensation for the harm caused by the breach. As explained above, allowing defendant to withdraw his plea would, in effect, overly compensate him for the harm caused by the breach.
Under the circumstances, we find that the appropriate remedy is specific performance, and we remand the matter for that purpose.
DISPOSITION
The judgment is reversed. The matter is remanded to the trial court for it to hold a hearing to redetermine the amount of the restitution fund fine and matching parole revocation restitution fine in accordance with its assurance that the amount would be based on defendants ability to pay.
WE CONCUR:
PREMO, J.
ELIA, J.