P. v. Gonzales

Filed 10/2/06 P. v. Gonzales 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

(Placer)

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Defendant Michael Eric Gonzales appeals from judgments in two criminal cases: case Nos. 62037514 and 62046735. We granted defendant’s motion to consolidate his two appeals.

In case No. 62037514, defendant pled no contest to two counts of second degree commercial burglary (Pen. Code, § 459),^[1] grand theft of personal property (§ 487, subd. (a)), petty theft with a prior (§ 666), and admitted a prior serious felony conviction within the meaning of the three strikes law (§§ 667, 1170.12) in exchange for “a lid of five years, four months in prison and a floor of four years in prison.”

In case No. 62046735, defendant pled guilty to failing to appear for his sentencing in case No. 62037514 (§ 1320.5) and admitted six prior strike convictions in exchange for a stipulated sentence of 25 years to life in prison and dismissal of 36 remaining counts, with a Harvey waiver^[2] for restitution purposes. Both cases were consolidated for sentencing, and defendant was sentenced in accordance with his plea agreements to 25 years to life in case No. 62046735 and to a consecutive term of five years and four months in case No. 62037514, with credit for 517 days (345 actual days and 172 good conduct). Defendant’s sentence in case No. 62037514 consists of four years (the middle term) on the first burglary count and a consecutive 16 months (one-third the middle term) on the other burglary count; sentences on the theft counts were stayed. (§ 654.) The trial court ordered defendant to pay a $5,000 restitution fine (§ 1202.4), a $5,000 parole revocation fine (§ 1202.45) and direct victim restitution in the amount of $7,140 in connection with the offenses that were dismissed with a Harvey waiver in case No. 62046735.

Defendant contends the trial court’s imposition of a $5,000 restitution fine violated his plea agreements, or alternatively, was improper given his inability to pay. We shall affirm the judgment.

PROCEDURAL HISTORY

Because defendant only raises sentencing issues, we need not discuss the facts underlying his convictions.

Prior to entering each of his pleas, defendant executed and initialed a form document entitled “Advisement and Waiver of Rights (Felony).” By doing so, he expressly acknowledged he had “read the front and back of this form” and that his attorney had explained to him “the possible consequences of” his plea, “including the consequences explained on the second page of this form.” The second page of the form states: “You are subject to a restitution fine of no less than $200.00 and up to $10,000.00.” Defendant initialed the following statement, which appears on the first page of the form: “I understand that the judge’s acceptance of this plea is not binding; that before sentencing the judge can withdraw approval and that I will be allowed to withdraw my plea.” At each of the change of plea hearings, defendant affirmed that he had reviewed both sides of the form with his attorney and that he understood the rights he was giving up and the consequences of his pleas.

At the sentencing hearing, defense counsel objected “to the $5,000 [restitution fine] as to the inability to pay.” The trial court overruled the objection, finding defendant “certainly does have the ability to work and earn money while incarcerated.”

Defendant was denied certificates of probable cause in both cases.

DISCUSSION

I. Plea Agreement

Defendant contends “[t]he trial court violated [his] plea agreement[s] by imposing a $5,000 restitution fine,” and thus, the fine must be reduced to the statutory minimum of $200.

The People respond that the contention is barred on appeal because defendant did not obtain a certificate of probable cause in either case. (§ 1237.5; Cal. Rules of Court, rule 30(b).) We disagree. Defendant does not challenge the validity of his pleas, but rather, contends the “restitution fine was not a part of [his] plea agreement[s].” Accordingly, he was not required to obtain a certificate of probable cause in order to raise this claim on appeal. (People v. Lloyd (1998) 17 Cal.4th 658, 665 [appeal does not, in substance, challenge the validity of the plea if the sentence was not part of the plea bargain].)

However, as we shall discuss, defendant forfeited his right to raise the issue on appeal by failing to seek to withdraw his pleas in the trial court or otherwise object to the imposition of the restitution fine as violating his plea agreements.

At the sentencing hearing, defendant objected to imposition of a $5,000 restitution fine on the ground he lacked the ability to pay it. He did not object on the ground the restitution fine violated either of his plea agreements. Where the trial court follows the requirements of section 1192.5,^[3] a defendant forfeits “an objection to punishment exceeding the terms of the bargain by the failure to raise the point in some fashion at sentencing.” (People v. Walker (1991) 54 Cal.3d 1013, 1024-1025.)

Consistent with section 1192.5, prior to entering each of his pleas, defendant was advised that the court’s acceptance of his plea was not binding, that before sentencing the court could withdraw its approval, and that if the court did so, he would be permitted to withdraw his plea. Having been so advised and having failed to ask to withdraw his pleas or otherwise object to the sentence as violating either of his plea agreements, defendant forfeited his right to argue on appeal that the restitution fine violated his plea agreements. (People v. Walker, supra, 54 Cal.3d at p. 1026.)

II. Ability to Pay

Alternatively, defendant claims the trial court erred in imposing a $5,000 restitution fine because he is unable to pay it. We are not persuaded.

A defendant ordered to pay a restitution fine has the burden of proving he lacks the ability to pay it. (§ 1202.4, subd. (d); People v. Romero (1996) 43 Cal.App.4th 440, 449.)

A trial court may presume ability to pay in the absence of evidence to the contrary. (Ibid.) Here, defendant failed to adduce any evidence to support his assertion that he was unable to pay a $5,000 restitution fine. Accordingly, the trial court was entitled to presume he had the ability to pay a $5,000 restitution fine, and therefore, did not abuse its discretion in imposing such a fine.

DISPOSITION

The judgment is affirmed.

CANTIL-SAKAUYE , J.

We concur:

DAVIS , Acting P.J.

HULL , J.

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^[1] Hereafter, undesignated statutory references are to the Penal Code.

^[2] People v. Harvey (1979) 25 Cal.3d 754.

^[3] Section 1192.5 provides in pertinent 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. If the court approves of the 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. . . .“ (Italics added.)