P. v. Duong

Filed 10/9/07 P. v. Duong CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Pursuant to a negotiated disposition, appellant pleaded no contest to felony possession for sale of cocaine base and misdemeanor being under the influence of a controlled substance. (Health & Saf. Code,  11351.5, 11550, subd. (a).) Appellant also admitted other allegations relating to prior convictions, including that he had one prior strike conviction. This plea was made with the understanding that appellant would make a motion to dismiss the prior strike conviction under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 and that the maximum sentence that could be imposed would be 12 years in state prison. Appellant was advised, "At sentencing the Court will impose a fine to the state restitution fund of a minimum of $200 to a maximum of $10,000 based on your ability to pay." Appellant acknowledged at the time of the plea that there was "no promise that is made regarding [his] sentence, other than it [would] not exceed 12 years in state prison."

The trial court denied appellant's motion to dismiss his prior strike conviction and sentenced him to nine years in state prison. The trial court also imposed, without objection, restitution and parole revocation fines of $1,800 that had not been mentioned by the court when it initially summarized the parties' plea agreement.

Appellant filed an opening brief pursuant to People v. Wende (1979) 25 Cal.3d 436 which raised no specific issues and asked this court to conduct a review of the entire record to determine whether the record revealed any issues. This court asked counsel to address the issue of the restitution fine imposed by the trial court. On April 17, 2007, appellant did so, citing People v. Walker (1991) 54 Cal.3d 1013, 1029, and contending that the imposition of the fines violated his plea bargain and that as a result he was entitled to have the fines reduced to the statutory minimum of $200. On April 30, 2007, the California Supreme Court decided People v. Crandell (2007) 40 Cal.4th 1301. In Crandell, supra, the court held that the imposition of a more-than-minimum restitution fund fine does not violate a plea agreement, even if the amount of the restitution fund fine was not mentioned as part of the plea agreement, so long as the defendant acknowledged that there had been no other promises to him other than the agreed prison term and he was informed that a restitution fund fine of between $200 and $10,000 would be imposed. (Id. at pp. 1309-1310.) Here, as in Crandell, defendant acknowledged that there had been no other promises to him other than the agreed maximum prison term and the motion to dismiss his prior strike conviction and he was informed that a restitution fund fine of between $200 and $10,000 would be imposed. Hence, under Crandell, we conclude that his plea agreement was not violated by the imposition of the restitution fund fine or parole revocation fine. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

The judgment is affirmed.

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ELIA, J.

WE CONCUR:

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RUSHING, P. J.

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PREMO, J.

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