P. v. Castro

Filed 3/22/06 P. v. Castro 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

Defendant Gracie Castro appeals from a judgment of conviction following her pleas of no contest to charges of violating Penal Code section 480^[1] (possession of counterfeiting apparatus) (count six), violating Health and Safety Code section 11377, subdivision (a) (possession of a controlled substance) (count four), violating section 470a (forgery of a driver's license) (count five), and violating Health & Safety Code section 11550, subdivision (a) (using or being under the influence of a controlled substance) (count eight) pursuant to a plea bargain.^[2] She was sentenced to a total prison term of two years and eight months.

On appeal, defendant challenges the sentencing court's order to pay $500 in "appointed counsel fees" and its order to pay a $1200 restitution fine. As modified, we affirm.

A. Procedural History

On November 10, 2004, a multi-count felony complaint was filed against defendant Castro and others. It charged defendant with a misdemeanor violation of Health and Safety Code section 11364 (possession of controlled substance paraphernalia) (count two) in addition to the felony counts charged in counts four, five, and six to which she ultimately pled no contest. The complaint also alleged a prior prison term enhancement (§ 667.5, subd. (b)).

On March 18, 2005, the prosecution orally added a misdemeanor charge of violating Health and Safety Code section 11550, subdivision (a) (using or being under the influence of a controlled substance) (count eight) against defendant Castro. She pled no contest to counts four, five, six, and eight pursuant to a negotiated disposition providing for a prison term of two years and eight months and dismissal of count two. She also admitted the prior prison term enhancement allegation. Before accepting those pleas and admission and imposing sentence, the court advised defendant that the court would "impose a fine to the Victims Restitution Fund of not less than two hundred nor more than ten thousand dollars, direct restitution for any losses and other fines and fees up to ten thousand." Defendant indicated she understood.

On April 18, 2005, consistent with the parties' plea agreement, the court sentenced defendant to the lower prison term of two years on count six (possession of counterfeiting apparatus) (§ 480, subd. (a)), a consecutive eight-month prison term on count five (forgery of a driver's license) (§§ 18, 470a, 1170.1, subd. (a)), a concurrent two-year prison term on count four (possession of controlled substance) (Health & Saf. Code, § 11377, subd. (a); § 18), and a 90-day county jail term on count eight (using or being under the influence of a controlled substance) (Health & Saf. Code, § 11550, subd. (a)) with 90 days credit for time served, for a total prison term of two years and eight months. The court struck the prior prison term enhancement in the interests of justice pursuant to section 1385 and dismissed count two. The court imposed "a restitution fund fine of twelve hundred dollars according to the formula" and imposed but suspended a "similar parole restitution fund fine . . . ."[3] After sentencing, the court stated: "I will order five hundred dollar appointed counsel fees based on the defendant's ability to work in the future."

B. Reimbursement Order

Defendant asserts that the trial court erred in ordering defendant to pay $500 in appointed counsel fees based upon defendant's ability to work in the future. The Attorney General acknowledges that "the scant record" does not support a finding of ability to pay and concedes that the fee order must be stricken.

Section 987.8, subdivision (b), provides in part that "the court may, after notice and a hearing, make a determination of the present ability of the defendant to pay all or a portion of the cost"[4] of legal assistance provided through "the public defender or private counsel appointed by the court." Section 987.8, subdivision (g)(2), defines "ability to pay" to mean "the overall capability of the defendant to reimburse the costs, or a portion of the costs, of the legal assistance provided." It lists factors relevant to this determination: "(A) The defendant's present financial position. [¶] (B) The defendant's reasonably discernible future financial position. In no event shall the court consider a period of more than six months from the date of the hearing for purposes of determining the defendant's reasonably discernible future financial position. Unless the court finds unusual circumstances, a defendant sentenced to state prison shall be determined not to have a reasonably discernible future financial ability to reimburse the costs of his or her defense. [¶] (C) The likelihood that the defendant shall be able to obtain employment within a six-month period from the date of the hearing. [¶] (D) Any other factor or factors which may bear upon the defendant's financial capability to reimburse the county for the costs of the legal assistance provided to the defendant." (§ 987.8, subd. (g), italics added.) A finding of present ability to pay must be supported by substantial evidence. (See People v. Viray (2005) 134 Cal.App.4th 1186, 1217-1218; People v. Phillips (1994) 25 Cal.App.4th 62, 71, 76.)

Here, there was insufficient evidence to support a finding of unusual circumstances or ability to pay. Accordingly, the order to pay $500 in "appointed counsel fees" must be stricken.

C. Restitution Fine

Defendant maintains that the $1,200 restitution fine imposed by the trial court violated due process because it was not a term of his plea bargain, citing People v. Walker (1991) 54 Cal.3d 1013. He argues that this court's decision in People v. Dickerson (2004) 122 Cal.App.4th 1374 was wrongly decided.

In Walker, supra, 54 Cal.3d 1013, the defendant signed a change of plea form and initialed his understanding of the agreement. (Id. at p. 1019.) The trial court advised defendant that the possible consequences of entering a guilty plea included a $10,000 fine of an unspecified nature but it did not advise defendant that "there was a possible $10,000 penalty fine and a mandatory restitution fine of between $100 and $10,000," as it should have done. (Id. at p. 1029; see § 672.) The court then, without objection, imposed a restitution fine of $5,000, although the plea agreement did not mention such a fine. (Id. at p. 1019.)

The Supreme Court began with the recognition that "[a]lthough the purpose of a restitution fine is not punitive, . . . its consequences to the defendant are severe enough that it qualifies as punishment" for purposes of protecting a defendant's due process right to implementation of a plea bargain. (Walker, supra, 54 Cal.3d at p. 1024.) It stated that "the restitution fine should generally be considered in plea negotiations." (Ibid.)

The Supreme Court determined the rules governing a claim that a plea agreement had been violated: "Absent compliance with the section 1192.5 procedure, the defendant's constitutional right to the benefit of his bargain is not waived by a mere failure to object at sentencing." (Walker, supra, 54 Cal.3d at p. 1025.)[5] It further concluded: "When, however, the section 1192.5 admonition is given, and it is generally required, the situation is quite different. The issue then becomes whether the defendant has relinquished his statutory right to withdraw the plea. . . . [W]hen the admonition is given, the failure affirmatively to request a change of plea does waive the right to do so. [Citation.]" (Ibid.)

Where there is no waiver, the issue of the appropriate remedy arises because "[a] violation of a plea bargain is not subject to harmless error analysis." (Walker, supra, 54 Cal.3d at p. 1026.) The court recognized that, where a court imposes a restitution fine in violation of the plea bargain, reducing the fine to the statutory minimum is an appropriate remedy because it "achieve[s] substantial compliance with the terms of the plea bargain . . . ." (Id. at p. 1028.) It concluded: "[I]f the breach of the plea bargain is brought to the attention of the court at the time of sentencing, the court should, in its discretion, either allow the defendant to withdraw the guilty plea or reduce the fine to the minimum of $100." (Ibid.) However, "if the breach of the plea bargain is first raised after sentencing, the proper remedy generally is to reduce the fine to the statutory minimum, and to leave the plea bargain intact." (Id. at p. 1029, fn. omitted.)

The court summarized: "Where the restitution fine significantly exceeds the terms of a negotiated plea, and the section 1192.5 admonition is not given, the error is not waived by acquiescence and may not be deemed harmless. Hence, the trial court must either reduce the fine to $100 [statutory minimum now $200 for felony] or allow the defendant to withdraw the plea. Finally, if the error is raised after sentencing, as here on appeal, the proper remedy is generally to reduce the fine to the statutory minimum." (Walker, supra, 54 Cal.3d at p. 1030.)

The Supreme Court applied those announced principles to facts before it and concluded that "the $5,000 restitution fine was a significant deviation from the negotiated terms of the plea bargain" (Walker, supra, 54 Cal.3d at p. 1029) and defendant was entitled to the remedy of reducing the restitution fine to the statutory minimum. (Id. at pp. 1029-1031.) In the present case, unlike the situation in Walker, the trial court explicitly informed the defendant of the potential restitution fine, specifically advising that defendant would be subject to a fine "to the Victims Restitution Fund of not less than two hundred nor more than ten thousand dollars" in addition to "direct restitution for any losses and other fines and fees up to ten thousand."

In a very recent case, the California Supreme Court has indicated that the subsequent conduct of the parties may be considered in ascertaining the mutual intention of the parties where the terms of a plea agreement are ambiguous or uncertain for the purpose of determining whether a particular appellate claim attacks the validity of the plea agreement and, therefore, requires a certificate of probable cause. (See People v. Shelton (2006) 37 Cal.4th 759.) It explained that the terms of a plea bargain are determined by the "objective manifestations of the parties' intent" in order to effectuate the mutual intention of the parties. (Id. at p. 767.)

"A negotiated plea agreement is a form of contract, and it is interpreted according to general contract principles. [Citations.] 'The fundamental goal of contractual interpretation is to give effect to the mutual intention of the parties. (Civ. Code, § 1636.) If contractual language is clear and explicit, it governs. (Civ. Code, § 1638.) On the other hand, "[i]f the terms of a promise are in any respect ambiguous or uncertain, it must be interpreted in the sense in which the promisor believed, at the time of making it, that the promisee understood it." (Id., § 1649; see AIU [Ins. Co. v. Superior Court (1990) 51 Cal.3d 807,] 822 . . . .)' (Bank of the West v. Superior Court (1992) 2 Cal.4th 1254, 1264-1265. . . .) 'The mutual intention to which the courts give effect is determined by objective manifestations of the parties' intent, including the words used in the agreement, as well as extrinsic evidence of such objective matters as the surrounding circumstances under which the parties negotiated or entered into the contract; the object, nature and subject matter of the contract; and the subsequent conduct of the parties. (Civ. Code, §§ 1635-1656; Code Civ. Proc., §§ 1859-1861, 1864; [citations].)' (Morey v. Vannucci (1998) 64 Cal.App.4th 904, 912 . . .; see also People v. Toscano, supra, at p. 345 . . . .)" (Shelton, supra, 37 Cal.4th at p. 767.)

In this case, before accepting defendant's pleas, the court advised her that a restitution fine up to $10,000 could be imposed as a consequence of her pleas and it did not suggest in any way that she would be paying less pursuant to the plea agreement. It may be reasonably inferred from the absence of any adverse response from defendant or counsel to the court's pre-plea advisement, which the defendant indicated she understood, that the parties contemplated that the plea agreement would not limit the court's statutory authority to impose a restitution fine. This case may be distinguished from Walker where the trial court never mentioned a restitution fine specifically.

In Dickerson, we concluded that "Walker does not prohibit criminal defendants from striking whatever bargains appear to be in their best interests, including leaving the imposition of fines to the discretion of the sentencing court." (People v. Dickerson, supra, 122 Cal.App.4th 1374, 1384.) We inferred from the totality of circumstances that defendant Dickerson had "not established that the sentencing court's imposition of restitution fines pursuant to the statutory formula violated his plea agreement." (Id. at p. 1386, fn. omitted.) The same holds true here. We infer from the record that the parties agreed that the trial court retained its full discretion to impose a restitution fine as statutorily provided.

The April 18, 2005 order to pay $500 in "appointed counsel fees" is stricken. As modified, the judgment is affirmed.

_____________________________

ELIA, J.

I CONCUR:

_____________________________

RUSHING, P. J.

MIHARA, J., concurring and dissenting.

I agree with my colleagues that the April 18, 2005 order to pay $500 in â€