In re Toby V.

Filed 3/22/06 In re Toby V. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

THIRD APPELLATE DISTRICT

(Sacramento)

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Toby V., a minor, was charged with 16 criminal offenses, consisting primarily of various forcible sexual offenses against three children under the age of 14. Pursuant to a negotiated settlement, the minor admitted two counts of lewd acts with a child (Pen. Code, § 288, subd. (a)), and the remaining counts were dismissed. He was committed to the California Youth Authority (CYA) for a 10-year maximum period of confinement and a $200 restitution fine was imposed.

On appeal, the minor contends (1) that because the $200 restitution fine exceeded the terms of the plea bargain it must be reduced to $100; and (2) that the court's failure to determine the discretionary sentence mandated by Welfare and Institutions Code section 731, subdivision (b) requires remand for that purpose.

The People respond that, for several reasons, the minor has forfeited his challenge to the imposition of the $200 restitution fine, but even if there is no forfeiture, he is not entitled to relief. The People also claim that the juvenile court did comply with Welfare and Institutions Code section 731, subdivision (b), and thus no remand is required.

We conclude, for reasons to follow, that the minor is not entitled to a reduction of the $200 restitution fine, but that he is entitled to have his case remanded to the juvenile court for compliance with Welfare and Institutions Code section 731, subdivision (b).

DISCUSSION

I

The minor entered a negotiated plea whereby he admitted two counts of lewd acts with a child under 14 years of age (Pen. Code, § 288, subd. (a)), and the remaining 14 counts were dismissed. Prior to accepting the minor's admission, the court advised him of his constitutional rights, informed him that he could be committed to CYA until he was 25 years of age, and that he could be required to register as a sex offender. However, the court did not advise the minor that the court was required to impose a restitution fine ranging from $100 to $1,000.^[1] At the disposition hearing, the court committed the minor to CYA and, without objection, imposed a restitution fine of $200.

Relying on People v. Walker (1991) 54 Cal.3d 1013, the minor argues that the restitution fine must be reduced to $100 because the imposition of the fine exceeded the terms of the plea bargain. For purposes of appeal, we presume that the minor's appellate challenge to the amount of the restitution fine has been preserved. We conclude that the minor's reliance on Walker is misplaced in these circumstances and that he is not entitled to a reduction of the restitution fine.^[2]

In accepting a negotiated plea for the dismissal of additional charges, the court must advise the accused of the constitutional rights that he or she is waiving, of the direct consequences of the plea, which includes the minimum and maximum amount of any mandatory restitution fine, and of the requirements of Penal Code section 1192.5.^[3] (People v. Walker, supra, 54 Cal.3d at pp. 1022, 1024-1025.) â€