P. v. Simon

Filed 5/8/07 P. v. Simon CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, David J. Danielsen, Judge. Affirmed.

Joseph A. Simon entered a negotiated guilty plea to selling cocaine base (Health & Saf. Code,  11352, subd. (a)), and admitted a prior conviction of selling a controlled substance. (Pen. Code,  1203.07, subd. (a)(11).) The court sentenced him to the stipulated three-year lower term in prison for selling a controlled substance and ordered him to pay a $600 restitution fine. Simon contends the trial court erred in ordering him to pay the $600 restitution fine.

FACTS

On July 5, 2006, Simon handed an undercover officer cocaine base in exchange for $20.

DISCUSSION

Simon argues the trial court erred in imposing a $600 restitution fine when that was not part of the plea agreement. He is mistaken. The plea agreement specifically advised Simon that the court could impose a restitution fine up to $10,000. Simon signed the plea bargain form and initialed the advisement that the court could impose a restitution fine with a maximum of $10,000. The advisement and waiver may be accomplished by the use of a form. (In re Ibarra (1983) 34 Cal.3d 277, 285.) In any case, Simon did not object to the $600 restitution fine in the trial court. He cannot do so for the first time on appeal. (People v. Scott (1994) 9 Cal.4th 331, 356.)

DISPOSITION

The judgment is affirmed.

HALLER, Acting P. J.

WE CONCUR:

AARON, J.

IRION, J.

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