P. v. Rubalcaba

Filed 9/5/07 P. v. Rubalcaba CA6

Opinion following remand by Supreme Court

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

In March 2006, after defendant Andres Rubalcaba pled no contest to two counts of unlawful sexual intercourse with a minor at least three years younger than he, misdemeanor inflicting corporal injury on a cohabitant, misdemeanor violating a protective order, and three counts of furnishing a minor at least four years younger than he with a controlled substance in exchange for a maximum of four years, eight months in state prison, as part of the sentence, the trial court imposed a $3,200 restitution fine. On January 12, 2007, we affirmed the judgment on appeal. Now, after deciding People v. Crandell (2007) 40 Cal.4th 1301 (Crandell), the California Supreme Court transferred Rubalcabas case to this court with directions to vacate the decision and to reconsider the cause in light of Crandell.

Defendants complaint on appeal was that the restitution fund fine was not an express term of the plea agreement in his case and its imposition violated his plea bargain.[1] This was also the issue in Crandell. Crandells $2,600 restitution fine had not been mentioned by the prosecutor when he recited the parties plea agreement (Crandell, supra, 40 Cal.4th at p. 1308), although the trial judge informed Crandell that he would have to pay a restitution fund fine of a minimum of $200, a maximum of $10,000, and received a negative answer from Crandell when he was asked if anyone made any other promises to you, Mr. Crandell, aside from the number of years Crandell would have to serve in state prison. (Id. at p. 1309, fn. 6.) Our situation was the same. After reciting that the plea agreement contemplated a sentence of four years, eight months, defendant answered no when asked if anyone made any other promises in regard to the plea.

As in Crandell, because the record demonstrates that the parties intended to leave the amount of defendants restitution fine to the discretion of the court, defendant is not entitled to relief. (Crandell, supra, 40 Cal.4th at p. 1309.) In our case as well as in Crandell, [t]hese facts distinguish the case from [People v.] Walker [(1991) 54 Cal.3d 1013, 1018-1019], where the court advised the defendant only that the maximum penalties provided by law for his offense included a fine of up to $10,000 and obtained no assurance that the parties intended their plea bargain to leave the amount of the restitution fine to the courts discretion. (Id. at pp. 1309-1310.)

DISPOSITION

The decision in this case filed on January 12, 2007, is ordered vacated. After reconsideration in light of Crandell, supra, 40 Cal.4th 1301, as ordered by the California Supreme Court, the judgment is affirmed.

Premo, J.

WE CONCUR:

Rushing, P.J.

Elia, J.

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[1] He also claims the court failed to advise defendant that he would have an opportunity to withdraw his plea if the court failed to follow the terms of the plea bargain.