P. v. Giron

Filed 3/7/07 P. v. Giron CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Amador)

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Defendant Enrique Giron pled guilty to possession of heroin in prison, and the trial court imposed a stipulated sentence of four years in prison.

On appeal, defendant contends the trial courts imposition of an $800 restitution fine and an $800 parole revocation fine violated the plea agreement. We reject the contention and affirm.

BACKGROUND

Defendant was charged with possessing heroin in prison. As part of a plea agreement, he executed and initialed a local form entitled, Felony Waiver & Plea Form For Offences After 10/01/03. On page one of the 11-page plea form was the Proposed Disposition, which stated defendant would plead guilty to possession of heroin by an inmate in state prison and would receive a four-year sentence which would run concurrently with his current state prison sentence, and a strike allegation would be dismissed. On the third page of the form, defendant initialed the following statement under the heading, No Other Promises - Conditional Plea: I understand that the matter of probation and sentence is to be determined solely by the Court. If the Court does not agree with any of the promises or representations stated above, I understand I will be allowed to withdraw my guilty plea and proceed to trial. On page five, under the major heading, Consequences of Guilty Plea, No Contest, Fine, and Confinement, and the minor heading, Restitution Fine For All Felonies Whether Probation Granted or Not, defendant initialed a statement that the sentencing judge will impose a Restitution Fine of not less than $200 nor more than $10,000 (P.C. 1202.4). On page nine, defendants signature appeared not far below a line that read, I understand the previously set forth charges, rights, and consequences, and freely and voluntarily plead guilty to 4573.6 - poss heroin in prison.

After ascertaining that defendant had read and understood the plea form, the trial court accepted his guilty plea and sentenced him, imposing (in addition to the four-year term) an $800 restitution fine and imposed but stayed an $800 parole revocation fine. Defendant did not object to the imposition of the fines and did not ask to withdraw his plea.

DISCUSSION

Defendant contends the trial court violated the plea agreement by imposing restitution and parole revocation fines, and he asks for these fines to be reduced to their statutory minimum.

Relying on People v. Walker (1991) 54 Cal.3d 1013, the People contend defendant forfeited his right to argue on appeal that the restitution fine violated his plea agreement[] because he was given the admonition required by Penal Code section 1192.5 and thereafter failed to ask to withdraw his guilty plea or otherwise object to the sentence as violating the plea agreement.

Penal Code section 1192.5 provides in part that when a court approves a guilty or no contest plea, it shall inform 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.

Whether or not a defendant waives an objection to punishment exceeding the terms of the bargain by the failure to raise the point in some fashion at sentencing depends upon whether the trial court followed the requirements of [Penal Code] section 1192.5. (People v. Walker, supra, 54 Cal.3d at p. 1024.) Absent a [Penal Code] section 1192.5 admonition, we cannot assume defendant knew he had a right to withdraw his plea. But when the admonition is given, and the defendant does not ask to withdraw the plea or otherwise object to the sentence, he has waived the right to complain of the sentence later. (People v. Walker, supra, 54 Cal.3d at p. 1026.)

The People contend the advisement on page three of the plea form quoted above tracked the three statutory factors required by [Penal Code] section 1192.5 and therefore defendant forfeited his challenge to the fees by not objecting in the trial court. As defendant points out, however, the advisement on which the People rely informed him he would be allowed to withdraw his plea [i]f the Court does not agree with any of the promises or representations stated above . . . . (Italics added.) Since the restitution fine is mentioned after this advisement, defendant contends no admonition pursuant to Penal Code section 1192.5 was given regarding the imposition of the fines.

We agree the Penal Code section 1192.5 advisement was inadequate to find a forfeiture here. The purpose of a Penal Code section 1192.5 advisement is to inform the defendant he will have the right to withdraw his plea if the court, at sentencing, decides to depart from the terms of the plea agreement. Here, however, the local form used for the plea agreement informed defendant, on page three of an 11-page document, that he would have the right to withdraw his plea only if the court did not agree with any of the promises or representations stated above. (Italics added.) It would not necessarily have been clear to defendant that he could withdraw his plea based on the imposition of a restitution fine, when that subject was not even mentioned until page five of the form. On these facts, we cannot assume defendant knew he had a right to withdraw his plea if the court violated the terms of the plea agreement by imposing a fine.

Turning to the merits of defendants argument that the imposition of the fine violated the terms of his plea agreement, we find none.

Defendant contends the imposition of a restitution fine violated his plea agreement because here, like in Walker, the plea agreement did not mention such a fine. (People v. Walker, supra, 54 Cal.3d at p. 1019.) Defendants argument is based on the premise that the plea agreement encompassed only the consequences set forth in the Proposed Disposition section of the plea form -- specifically, a four-year concurrent term and dismissal of the strike allegation. In defendants view, because no fine was mentioned there, the plea agreement did not include imposition of a fine.

We do not read the plea form so narrowly. In addition to the consequences identified in the Proposed Disposition section, elsewhere in provisions defendant initialed, the form identified other mandatory consequences of the plea, including imposition of a restitution fine, imposition of a criminal justice administration fee, a narcotics offender registration requirement, and suspension of defendants drivers license. At the end of the form, after the listing of all of these consequences, defendant acknowledged he was pleading guilty based on his understanding of the previously set forth charges, rights, and consequences. (Italics added.)

In analyzing whether imposition of a fine was part of a plea agreement, the critical consideration is whether the challenged fine was within the defendant's contemplation and knowledge when he entered his plea. (People v. Knox (2004) 123 Cal.App.4th 1453, 1460.) Taking the plea form as a whole, defendant cannot reasonably argue that it was outside of his contemplation and knowledge that the court would impose a restitution fine on him, when the form plainly stated the court would do so. Accordingly, defendants challenge to the fines here is without merit.

DISPOSITION

The judgment is affirmed.

ROBIE , J.

We concur:

DAVIS, Acting P.J.

HULL, J.

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