P. v. Vest

Filed 10/22/07 P. v. Vest CA6

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

This case returns to us following a grant of review and transfer by the California Supreme Court. The high court has directed us to vacate our prior opinion and to reconsider the cause in light of People v. Crandell (2007) 40 Cal.4th 1301 (Crandell). Having done so, we once again affirm the judgment.

BACKGROUND

As stated in our prior opinion, defendant David Allan Vest was sentenced to prison following a no contest plea to a charge of residential burglary. As part of defendants sentence, the trial court ordered him to pay a restitution fund fine of $1,800. On appeal to this court, defendant challenged the imposition of that fine, asserting that it was not part of his plea bargain. We rejected defendants challenge and affirmed the judgment. The California Supreme Court granted review, as the same issue was then pending before it in Crandell.

After issuing its decision in Crandell, the Supreme Court transferred this case back to this court, directing us to vacate our prior decision and to reconsider the cause in light of its recent decision. (People v. Vest, S149299, order filed August 10, 2007; see Cal. Rules of Court, rule 8.528(d).)

DISCUSSION

In Crandell, the California Supreme Court revisited its earlier decision in People v. Walker (1991) 54 Cal.3d 1013 (Walker). The Crandell court reaffirmed the point made in Walkerthat two related but distinct legal principles may apply when a restitution fine is erroneously imposed. (Crandell, supra, 40 Cal.4th at p. 1307, quoting Walker, at p. 1020.) The first principle concerns the necessary advisements whenever a defendant pleads guilty, whether or not the guilty plea is part of a plea bargain. (Walker, at p. 1020.) The second principle is that the parties must adhere to the terms of a plea bargain. (Ibid.)

In Crandell, only the second type of error was in question. (Crandell, supra, 40 Cal.4th at p. 1308.) Assessing that claim of error, the high court found no violation of the plea bargain. (Id. at p. 1309.) As the court noted, the trial court, before taking defendants plea, accurately advised him he would have to pay a restitution fund fine of a minimum of $200, a maximum of $10,000 and ascertained that the prosecution had not made any other promises beyond that defendant would be sentenced to 13 years in prison. (Ibid., fn. omitted.) These facts distinguish the case from Walker, the court concluded. (Id. at pp. 1309-1310.)

The same is true here. Before the trial court accepted defendants plea in this case, it sought and obtained his acknowledgement that a mandatory restitution fund fine of up to $10,000 would be imposed. (See Crandell, supra, 40 Cal.4th at pp. 1305, 1309.) Defendant does not contend that any promises were made to induce his plea, other than those concerning his prison sentence. (Cf., id. at p. 1312, conc. opn. of Baxter, J. [if a trial court has failed to ask specifically about other promises before imposing a substantial fine, that fact alone should not require an appellate court to invalidate the fine. I do not interpret the majority opinion to hold otherwise].)

As the high court observed in Crandell, the parties to a criminal prosecution are free, within such parameters as the Legislature may establish, to reach any agreement concerning the amount of restitution they find mutually agreeable. (Crandell, supra, 40 Cal.4th at p. 1309.) They can do so either by specifying the amount or by leaving it to the sentencing courts discretion. (Ibid.) In Crandell, the parties effectively agreed to leave the amount of the fine to the sentencing courts discretion. (Ibid.) In this case, the parties did the same thing. Thus, there was no violation of the plea bargain.

Under the controlling authority of Crandell, we reject defendants challenge to the $1,800 restitution fund fine imposed in connection with his conviction by plea for residential burglary.

DISPOSITION

Our prior opinion in this matter, filed December 5, 2006, is hereby vacated and superseded by this opinion. The judgment is affirmed.

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McAdams, J.

WE CONCUR:

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Bamattre-Manoukian, Acting P.J.

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Mihara, J.

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People v. Vest

H030128