P. v. Romero 3/8/06 CA6

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State: California

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

Docket No: H028708

Case Date: 06/14/2006

Preview:Filed 3/8/06 P. v. Romero 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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. MARIO RAMIREZ ROMERO, Defendant and Appellant.

H028708 (Santa Cruz County Super.Ct.No. F10294)

The sole issue in this case is whether the post-plea restitution fund fine of $4,700 that the trial court imposed under Penal Code section 1202.41 violated the terms of defendant's plea bargain under People v. Walker (1991) 54 Cal.3d 1013 (Walker). As it appears that defendant's plea bargain did not include any provision concerning the mandatory restitution fund fine, and that the amount of the fine was left to the discretion of the trial court, defendant has not demonstrated that the fine exceeded his bargain. We accordingly affirm the judgment. Based on the parties' agreement and the supporting record that the abstract of judgment mistakenly states the amount of the restitution fund fine to be $4,800, $100 in excess of what was intended, we also modify the abstract to correct this error.

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All further unspecified statutory references are to the Penal Code.

STATEMENT OF THE CASE A detailed recitation of the facts leading to the criminal charges in this case is not necessary to the resolution of the single issue on appeal. The district attorney filed a complaint in September 2004 charging defendant with seven counts of committing lewd acts upon a child in violation of section 288, subdivision (a), (counts 1-4, 6, 8, & 9), and three counts of committing forcible lewd acts upon a child in violation of section 288, subdivision (b)(1), (counts 5, 7, & 10). The complaint also alleged that defendant had used force, violence, duress, and menace within the meaning of section 1203.066, subdivision (a)(1), in connection with counts 5, 7, and 10, and that he had had substantial sexual contact with the victim within the meaning of section 1203.066, subdivision (a)(8), in connection with counts 5 through10. Defendant initially pleaded not guilty and denied the special allegations. Later, the district attorney and defense counsel announced in open court that they had agreed upon a disposition of the case. Defendant would enter a plea of no contest to counts 6, 7, and 10 and be sentenced to a prison term of 24 years. The remaining counts would be dismissed. Defendant would receive 15 percent "worktime credits" under section 2933.1, requiring him to serve at least 85 percent of his sentence, and would waive his right to appeal. Defendant confirmed that he had had sufficient time to discuss the plea agreement with counsel. He was advised of his constitutional rights and waived them, and he also confirmed that he had understood that he would be sentenced by the court to 24 years in prison. He was further advised of certain direct consequences of his plea, including that the conviction could later be used against him if he were to be charged with another offense in the future, that he could be deported if he were not a citizen, that he would have to register as a sex offender, and that he "would have to pay restitution for any financial loss caused to the victim; for instance if the victim needed counseling, that sort

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of thing, [he] would have to pay for that."2 Defendant was not advised that a mandatory restitution fund fine of between $200 and $10,000 would be imposed under section 1202.4, subdivision (b). Nor was he advised of his right to withdraw his plea under section 1192.53 if the court withdrew its approval of the plea bargain at sentencing. Before entering his plea, defendant confirmed that he had not been promised anything other than what had already been discussed in exchange for it and that he had not been threatened in any way as an inducement. Defendant finally stated that he was admitting the charges because he had in fact committed those particular offenses. Defendant then pleaded no contest to counts 6, 7, and 10 and the court found a factual basis for the plea. A probation report was later prepared per the court's order. It recommended that defendant be sentenced to 24 years in prison and that he not be required to pay restitution to the victim under section 1202.4, subdivision (f), since none had been requested. But

This latter advisement appears to have been a reference to section 1202.4, subdivision (f), which provides for payment of direct restitution to a victim who has suffered economic loss. This statute reads, in relevant part: "Where the plea is accepted by the prosecuting attorney in open court and is approved by the court, the defendant, except as otherwise provided in this section, cannot be sentenced on the plea to a punishment more severe than that specified in the plea and the court may not proceed as to the plea other than as specified in the plea." Paragraph three of section 1192.5 further requires that the court advise 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." The consequence of the trial court's failure to have given the advisement is that, even in absence of an objection raised at sentencing below, defendant has not waived or forfeited his claim on appeal that his sentence does not adhere to the plea bargain, or that he has been deprived of the benefit of his bargain. (Walker, supra, 54 Cal.3d at pp. 1024-1026, 1029; People v. Johnson (1974) 10 Cal.3d 868, 872.) It is not, as defendant contends, automatic reduction of the restitution fund fine to the statutory minimum of $200. 3
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the report did recommend that a restitution fund fine under section 1202.4, subdivision (b), be imposed in the amount of $4,800. At sentencing, neither defendant nor his counsel objected to the report's recommendation concerning imposition of the restitution fund fine as exceeding the plea bargain, despite counsel's corrections to two other aspects of the report. In this regard, counsel specifically stated, "I have read and [understood] the probation officer's report and have no other corrections." The court then imposed the total stipulated prison term of 24 years, which was based on the upper term of eight years for each of the three charges, to run consecutively. Defendant was again advised that he would be required to register as a sex offender under section 290 for the rest of his life. The court finally imposed a restitution fund fine of $4,700 under section 1202.4, subdivision (b), and a $200 parole revocation fine under section 1202.45, to be suspended.4 In so doing, the court confirmed that there was no other issue relating to restitution, presumably to the victim under section 1202.4, subdivision (f). Neither defendant nor his counsel objected to the imposition of the restitution fund fine. An abstract of judgment was later filed. It referenced the clerk's minute order for specification of "restitution fine and fees." The minute order had incorrectly stated that defendant had been "ordered to pay $4,800.00 Restitution Fine per 1202.4 PC" when the actual fine imposed was $4,700. Despite his plea agreement, defendant, acting in pro per, filed a notice of appeal along with an application for a certificate of probable cause in which he asserted that incompetence of counsel had resulted in his waiver of constitutional rights and no contest plea. He also contended that he would have received a lesser sentence if his rights had been protected and that he had "paid his attorney $15,000.00 to defend his rights and, in

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Defendant does not challenge on appeal the imposition of the parole revocation 4

fine.

exchange, counsel had him plead guilty with an exposure of 24 years at 85 [percent], all of which the court imposed." Defendant did not mention the restitution fine in the application, which the court later denied. Defendant then filed an amended notice of appeal based on sentencing error. DISCUSSION Relying on Walker, supra, 54 Cal.3d 1013, defendant contends that the trial court erred in imposing the $4,700 restitution fund fine under section 1202.4, subdivision (b), in that this violated the terms of his plea bargain since no fine was specified as part of that bargain.5 Defendant further asserts that this error requires reduction of the fine to the $200 statutory minimum. We reject these contentions. In People v. Dickerson (2004) 122 Cal.App.4th 1374 (Dickerson), we considered the principles established in Walker, as refined by the high court in In re Moser (1993) 6 Cal.4th 342, and People v. McClellan (1993) 6 Cal.4th 367. In Walker, the defendant had negotiated a plea bargain in which one of two felony charges was to be dismissed and defendant was to plead guilty to the other charge and receive a five-year sentence and no punitive fine. The trial court advised him that the maximum sentence he could receive was a seven-year prison term and a fine of up to $10,000. He was not advised of an additional mandatory restitution fine of at least $100 but no more than $10,000. Nor was

We recognize that the California Supreme Court has granted review in People v. Crandell (May 20, 2005, H027641) [nonpub. opn.] review granted August 24, 2005, S134883. As described on the court's docket, the issue presented in that case is "Does the imposition of a restitution fine under Penal Code section 1202.4, subdivision (b), violate a defendant's plea agreement if the fine was not an express term of the agreement?" (See the court's website at http://appellatecases.courtinfo.ca.gov/search/ mainCaseScreen.cfm?dist=0&doc_id=376320...) The identical issue is presented in another case in which the court recently granted review and is holding for the lead case, People v. Crandell, supra. That case is People v. Wurtz (Nov. 22, 2005, H028217) [nonpub. opn.] review granted. February 22, 2006, S139968. The Supreme Court's disposition of this issue in People v. Crandell, supra, would in all likelihood affect the analysis in the instant appeal in which resolution of the same issue is dispositive. 5

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he advised of his right to withdraw his plea under section 1192.5. Although the probation report recommended a $7,000 restitution fine, the court imposed a fine of $5,000. The defendant did not object to the imposition of the fine at sentencing. The Supreme Court in Walker found that two distinct errors had occurred. First, as here, it was error for the trial court to have failed to give defendant a pre-plea advisement concerning his obligation to pay a restitution fine, part of the direct consequences of his plea. But, as the court held in Walker, this error is waived on appeal if the defendant failed to raise it in the court below at or before sentencing. (Walker, supra, 54 Cal.3d at pp. 1020, 1022-1023.) Accordingly, to the extent defendant claims error in this case for the trial court's failure to have advised him of the direct consequences of his plea, the error has been waived by defendant's failure to have timely raised the issue in the trial court. (Ibid.; see also People v. DeFilippis (1992) 9 Cal.App.4th 1876, 1879.) Even if this error were not waived, defendant has shown no prejudice here. The second error in Walker was the trial court's imposition of a significantly greater sentence than the one the defendant had bargained for--a $5,000 restitution fine. "If a plea bargain is violated through imposition of a punishment exceeding the terms of the bargain, the error is waived by the failure to object at sentencing if the court had advised the defendant of the right to withdraw the plea upon court withdrawal of plea approval (see Pen. Code,

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