P. v. Howard 7/11/06 CA6

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: H029743

Case Date: 09/13/2006

Preview:Filed 7/11/06 P. v. Howard CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent, v. TIMOTHY HOWARD, Defendant and Appellant.

H029743 (Santa Clara County Super. Ct. No. EE504589)

Defendant Timothy Howard agreed to plead guilty to second degree burglary and possession of a fictitious check and admit certain prior-conviction allegations in return for a total sentence of no more than 32 months. The bargain, as recited by the trial court at the change-of-plea hearing, did not mention the fines required by Penal Code sections 1202.4 (restitution-fund fine) and 1202.45 (parole-revocation fine).1 However, at the same time as the hearing, defendant signed and initialed an advisement of rights, waiver, and plea form that did mention the fines. At sentencing, the court imposed the agreedupon prison term and also imposed a restitution-fund fine of $800 and a suspended parole-revocation fine in the same amount. On appeal, defendant contends that the trial court violated the plea bargain by imposing the fines and asks that we reduce the fines to the statutory minimum ($200). We affirm the judgment.

1

Further unspecified statutory references are to the Penal Code.

BACKGROUND The following colloquy took place at the change-of-plea hearing. "THE COURT: All right. We will go ahead. And this form, you read, signed, and understood everything on the form? "THE DEFENDANT: Yes, sir. "THE COURT: Do you have any questions about it? "THE DEFENDANT: No, sir, Your Honor. "THE COURT: Are these your initials and signature throughout the form? "THE DEFENDANT: Yes, sir, Your Honor. "THE COURT: All right. I will order it filed and adopt the Court's findings and orders as set forth on page seven of seven." The trial court then went on to explain: "So, you could get less than 32 months or you could get 32 months. There are no promises. At least you know you are limited how much it could be by pleading early." Provision 42 of the form signed by defendant states: "I understand that there will be a mandatory restitution fund fine of not less than $200 nor more than $10,000, and if I am being sentenced to State prison that there will be an additional equal amount imposed but stayed." Defendant placed his initials next to provision 42. At the sentencing hearing, the trial court sentenced defendant to 32 months and ordered the following consistent with the probation officer's recommendation: "There's a restitution fine of $800 that is imposed under the formula permitted by Penal Code Section 1202.4[, subdivision] (b); and an additional restitution fine of an amount equal to that imposed under Penal Code Section 1202.4, but is suspended under Section 1202.45 of the Penal Code." Defendant made no objection to the order. DISCUSSION The statutory bases for the fines at issue are sections 1202.4 and 1202.45. Section 1202.4, subdivision (a)(3)(A) mandates judicial imposition of a restitution-fund fine 2

whenever a person is convicted of a crime. The trial court shall impose the fine "unless it finds compelling and extraordinary reasons for not doing so, and states those reasons on the record." (

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