P. v. Meier

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Sacramento)

----

On three separate occasions, defendant Bradley Kevin Meier was stopped for violating the Vehicle Code. On each occasion, defendant was found to be possessing methamphetamine, and on one occasion he was under the influence of the drug.

Defendant pled guilty to displaying an altered license plate tag, being under the influence of methamphetamine, and three counts of possessing methamphetamine. He admitted that he committed two of the crimes while released on bail and that he had served a prior prison term. The trial court found that defendant had a prior serious felony conviction within the meaning of the three strikes law. Striking the prior prison term enhancement, the court sentenced defendant to nine years and four months in prison and imposed a restitution fine of $1,800 and another restitution fine of $1,800, which was stayed unless parole is revoked (parole revocation fine).

Defendant obtained a certificate of probable cause and appeals. He contends the parole revocation fine violated the plea agreement and his custody credits were miscalculated (the People concede the second point). We shall order an extra day of custody credit and otherwise affirm the judgment.

DISCUSSION

I

We reject defendants contention that imposition of the $1,800 parole revocation fine violated his plea agreement.

In taking the plea, the trial court advised defendant that as a consequence of the plea, he could be subject to fines up to $10,000 and a penalty assessment of 170 percent, with a restitution fine of between [$]200 and $10,000. The court did not mention the parole revocation fine when advising defendant of the consequences of the plea. However, the court told him that, at sentencing, he w[ould] be bound by [his] plea unless the court decides to reject the plea bargain. Defendant did not object when the court imposed the $1,800 parole revocation fine.

Penal Code section 1192.5 states in part that when a trial 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 section 1192.5. (People v. Walker (1991) 54 Cal.3d 1013, 1024 (hereafter Walker).) Absent a section 1192.5 admonition, we cannot assume the 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. (Id. at p. 1026.)

Although the trial court did not directly tell defendant that its approval of the agreement was not binding, it informed him that it could later reject the plea and that if it did so, defendant was no longer bound by the agreement. This was sufficient to comply with Penal Code section 1192.5. Thus, defendants failure to object to the parole revocation fine forfeits his claim on appeal.

In any event, the contention fails on the merits.

The California Supreme Court recently clarified the core question . . . 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 (2007)40 Cal.4th 1301, 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 p. 1309.) Therefore, 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, the trial court told defendant that his plea would expose him to fines of up to $10,000 and a penalty assessment of 170 percent, with a restitution fine of between [$]200 and $10,000. He could not have reasonably understood to the contrary that a Penal Code section 1202.4 restitution fine, and thus a statutorily mandated parole revocation fine (Pen. Code,  1202.45), would not be imposed. (See In re Moser (1993) 6 Cal.4th 342, 356-357 [imposition of a statutorily mandated term of parole did not violate the plea agreement]; cf. People v. McClellan (1993) 6 Cal.4th 367, 381 [that a statutorily mandated consequence of a plea is not embodied specifically within the terms of the plea agreement does not mean imposition of the term violates the agreement].)

II

Defendant contends, and the People correctly concede, that defendant is entitled to one more day of custody credit.

Defendant was placed in custody on July 28, 2006, for failing to appear on time for his sentencing hearing, and he was held in custody until his sentencing on July 31, 2006. The trial court awarded defendant 86 days custody credit for 83 [days] in the probation report plus the three days since you were here . . . .

Partial days are counted as full days for purposes of calculating credit. (People v. King (1992) 3 Cal.App.4th 882, 886.) There are four days between July 28 and July 31. Thus, we conclude, as do the parties, that defendant is entitled to an extra day for a total of 87 days of custody credit.

DISPOSITION

The judgment is modified to reflect that defendant is awarded 87 days of custody credit. As modified, the judgment is affirmed. The trial court is directed to amend the abstract of judgment

accordingly and to send a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.

SCOTLAND, P.J.

We concur:

NICHOLSON , J.

RAYE , J.

Publication Courtesy of California attorney referral.

Analysis and review provided by Vista Property line attorney.