P. v. Madrigal

Filed 6/25/07 P. v. Madrigal 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Mono)

----

Defendant Rigoberto Benitez Madrigal entered a negotiated plea of guilty to two counts of first degree burglary in exchange for dismissal of the remaining counts and a stipulated prison term of five years and four months. The trial court imposed two $1,000 restitution fines that had not been mentioned by the prosecutor when he recited the parties plea agreement.

On appeal, defendant contends that imposition of the fine violated his plea agreement, thereby entitling him to have the fine reduced to the statutory minimum of $200 pursuant to People v. Walker (1991) 54 Cal.3d 1013. For the reasons stated in the California Supreme Courts recent decision in People v. Crandell (2007) 40 Cal.4th 1301, we reject the contention and shall affirm the judgment.

BACKGROUND

Paragraph 2 C of the written plea agreement, read to defendant by a Spanish language interpreter and initialed by defendant to indicate he understand[s] and agree[s] with what is stated in the paragraph, states: I understand that the Court will order me to pay between $200 and $10,000 to the Victim Restitution Fund, and if appropriate, pay actual restitution to any victim. The Court will also order me to pay statutory fees and other assessments.

At sentencing, defendant responded in the affirmative when asked if he had signed and initialed the plea form, whether he had enough time to discuss it with his attorney and the interpreter, and whether his plea was made freely and voluntarily. However, neither the prosecutor nor the trial court mentioned fees or fines in their recitation of the plea agreement.

When the trial court pronounced sentence, it also ordered defendant to pay a $1,000 restitution fund fine (restitution fine) (Pen. Code,  1204.4) and another $1,000 restitution fund fine, suspended unless parole is revoked (parole revocation fine) (Pen. Code,  1204.45; further section references are to the Penal Code). Defendant did not object.

DISCUSSION

In his opening brief, defendant challenged the imposition of the restitution fine and the parole revocation fine, arguing that their imposition violated the plea agreement because he was never advised of such fines or of his rights pursuant to section 1192.5 [informing defendant of the right to withdraw a disapproved plea]. Thus, he urges us to reduce the two fines to the statutory minimum. (See People v. Walker, supra, 54 Cal.3d 1013 (hereafter Walker).

In Walker, a restitution fine was imposed on a defendant who pled guilty in accordance with a plea agreement that made no mention of restitution. The probation report recommended a $7,000 restitution fine, but the record disclose[d] no other mention of the possibility of such a fine prior to sentencing (Walker, supra, 54 Cal.3d at p. 1019). Noting the consequences to the defendant [of a restitution fine] are severe enough that it qualifies as punishment for this purpose (id. at p. 1024), the Supreme Court held that, [a]bsent compliance with the section 1192.5 procedure, the defendants constitutional right to the benefit of his bargain is not waived by a mere failure to object at sentencing (id. at p. 1025) when a restitution fine not bargained for is imposed.

The trial court in Walker erred in advising the defendant only that a $10,000 fine was a possible consequence when it should have advised defendant there was a possible $10,000 penalty fine and a mandatory restitution fine of between $100 and 10,000. (Walker, supra, 54 Cal.3d at p. 1029, italics omitted.) It also erred in imposing a restitution fine of $5,000 that had not been mentioned in the parties plea agreement. (Id. at p. 1019.) Thus, imposition of the restitution fine constituted a significant deviation from the negotiated terms of the plea bargain for which the proper remedy, when the issue is first raised after sentencing, is to reduce the fine to the statutory minimum [then $100], and to leave the plea bargain intact. (Id. at p. 1029.)

Our independent research revealed a recent Supreme Court decision in which the court clarified that the core question in every [such] case is . . . whether the restitution fine was actually negotiated and made a part of the plea agreement, or whether it was left to the discretion of the court. When a restitution fine above the statutory minimum is imposed contrary to the actual terms of a plea bargain, the defendant is entitled to a remedy. (People v. Crandell, supra, 40 Cal.4th at p. 1309 (hereafter Crandell).)

In Crandell, the defendant was informed at sentencing that he would have to pay a restitution fund fine of a minimum of $200, a maximum of $10,000. (Crandell, 40 Cal.4th at p. 1305.) This recitation in the record reflected that the parties intended to leave the amount of defendants restitution fine to the discretion of the court, [and] defendant is not entitled to relief. (Id. at 1309.) Thus, the court reasoned, while the defendant in [Walker] reasonably could have understood the negotiated plea agreement to signify that no substantial fine would be imposed [citation], defendant in this case was flatly informed: You will be ordered to pay restitution to the victims in this case. In light of these circumstances, it is clear that when defendant entered his plea, he could not reasonably have understood his negotiated disposition to signify that no substantial restitution fine would be imposed. (Crandell, 40 Cal.4th at p. 1310.)

Here, like in Crandell, defendant initialed the written plea form that stated: I understand that the Court will order me to pay between $200 and $10,000 to the Victim Restitution Fund, and if appropriate, pay actual restitution to any victim. The Court will also order me to pay statutory fees and other assessments. He could not have reasonably understood to the contrary that no restitution fine under section 1202.4 would be imposed. Thereafter, a parole revocation fine in the same amount was required by statute. ( 1202.45.)

By letter brief received after we had analyzed the issue raised in his opening brief, defendant acknowledges that Crandell defeats his only contention. Therefore, he asks us to strike his opening brief and allow him to file a brief in accordance with People v. Wende (1979) 25 Cal.3d 436. We deny this request.

DISPOSITION

The judgment is affirmed.

SCOTLAND, P.J.

We concur:

MORRISON , J.

CANTIL-SAKAUYE , J.

Publication Courtesy of California attorney referral.

Analysis and review provided by Vista Property line attorney.