P. v. Thoreson

Filed 10/25/07 P. v. Thoreson 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 plea bargain, defendant Martin Adrian Thoreson was convicted of offenses involving possession of depictions of juvenile sexual conduct. He contends that a $400 restitution fine violated the terms of the plea bargain, and that he is entitled to two more days conduct credit than the trial court allowed. Respondent concedes the second contention. When the matter was first before us we rejected the challenge to the restitution fine while recognizing that a related issue was before the California Supreme Court. That court granted review in this matter and has now transferred it to us for reconsideration in light of the relevant case, People v. Crandell (2007) 40 Cal.4th 1301 (Crandell). We have concluded that our previous disposition was entirely consistent with Crandell, and will therefore again affirm the judgment as modified to correct the conceded error with respect to sentence credits

Background

On January 3, 2003, defendant was charged with two counts of developing and duplicating matter depicting sexual conduct of a person under 18 (Pen. Code, 311.3) and one count of possessing or controlling matter depicting sexual conduct of a person under 18 (Pen. Code, 311.11). He pleaded guilty to all counts and was placed on probation for five years. On June 17, 2005, defendant was charged with one count of possessing or controlling matter depicting sexual conduct of a person under 18. (Pen. Code, 311.11.) This charge arose from the discovery, during a probation search of defendants residence, of 50 DVDs containing depictions of juveniles engaged in sexual activity.

On October 20, 2005, defendant entered into a plea bargain under which he would plead no contest and receive a sentence of three years based upon a violation of probation in the earlier case, and two years in the later case, to be served concurrently. Prior to accepting his change of plea, the court advised him that among its consequences, he would be ordered to pay a mandatory ten dollar fine, actual restitution to the victims. A restitution fund fine of not less than [$]200, no more than $10,000, with an equal amount imposed by [sic] suspended. A general fund fine not to exceed $10,000. If you are given probation a $207.55 booking fee to the agency that booked you but before you have to pay any of those I would refer you to the Department of Revenue and they would determine your ability to pay. Defendant affirmed that he understood these statements. Defendant also answered negatively the courts question whether anyone had made any promises to him other than those stated on the record.

On December 13, 2005, the court sentenced defendant to three years in prison. In addition to other assessments, the court imposed a [f]our hundred dollar restitution fund fine and an equal amount imposed by [sic] suspended. As pertinent here, the court allowed 343 days credit for time actually served and 168 days conduct credit under Penal Code section 4019.

Defendant filed this timely appeal.

Discussion

I. Restitution Fund Fine

Defendant charges as error the trial courts imposition of a $400 restitution fund fine. He argues that because his plea agreement did not provide for the imposition of any such fine, the court could not impose one in an amount greater than the statutory minimum, which is $200. (Pen. Code, 1202.4, subd. (b)(1).) He acknowledges that the court told him such a fine might be imposed in an amount up to $10,000, but he argues that such an admonition establishes only that he was adequately apprised of the potential legal consequences of his plea, not that such a fine was contemplated by his plea bargain.

This court has rejected substantially identical contentions in three published decisions. (People v. Dickerson (2004) 122 Cal.App.4th 1374, 1386; People v. Sorenson (2004) 125 Cal.App.4th 612, 618-620; People v. Knox (2004) 123 Cal.App.4th 1453, 1460-1461.) In Crandell, supra, 40 Cal.4th 1301, the Supreme Court did likewise. The defendant there objected to a restitution fine of $ 2,600 that had not been mentioned by the prosecutor when he recited the parties plea agreement. (Id. at p. 1304.) Although the prosecutor had omitted any reference to the fine from his recital of the terms of the plea bargain, the court itself had advised the defendant that the consequences of his plea included a restitution fund fine of from $200 to $10,000. (Id. at p. 1305.) The defendant had acknowledged that no promises were made to him other than those recited on the record. (Ibid.) The fine ultimately imposed had been presaged by a recommendation in the probation officers presentence report. (Id. at p. 1306.) Although the defendant later moved to withdraw his plea, he at no time objected that the probation fine violated the plea agreement. (Ibid.)

As the court observed in Crandell, quoting the Court of Appeal in that case,  the core question in every case 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.  (Crandell, supra, 40 Cal.4th at p. 1309.) There the record showed that the fine was left to the discretion of the court, because the court accurately advised [the defendant that] 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.) This distinguished the case from People v. Walker (1991) 54 Cal.3d 1013, 1018-1019, where the defendant had only been told that the maximum penalties provided by law for his offense included a fine of up to $10,000,  the court had obtained no assurance that the parties intended their plea bargain to leave the amount of the restitution fine to the court's discretion. (Crandell, supra, 40 Cal.4th at p. 1310.)

Here as in Crandell, the record clearly implies that the court retained discretion under the plea bargain to fix the amount of restitution. The court said that defendant would have to complete a sentencing assessment of assets, and would be ordered to pay, inter alia, a restitution fund fine of not less than [$]200, not more than $10,000, with an equal amount imposed b[ut] suspended. After alluding to this and several other exactions, the court said, [B]efore you have to pay any of those I would refer you to the Department of Revenue and they would determine your ability to pay. Defendant acknowledged that he understood this. He also affirmed that no promises had been made to him not expressly recited on the record. In addition, the probation report specified the amount ultimately adopted by the court, and defendant voiced no objection to the fine at any time prior to appeal.

The record provides no basis to conclude, and affirmatively rebuts any suggestion, that the plea bargain included a term limiting the courts discretion to fix the amount of the restitution fund fine. Accordingly, no error appears in the courts exercise of that discretion.

II. Custody Credits

Defendant also contends that the court understated his conduct credits (Pen. Code, 4019) by two days. The court allowed 343 days for days actually served. The statutory formula provides for the calculation of conduct credits by dividing this number by four, which yields 85.75; rounding down to the nearest whole number (85); and multiplying the result by two, which yields 170. (Pen. Code, 4019.) The trial court allowed only 168 days. Respondent concedes the error.

Disposition

The trial court is directed to amend the abstract of judgment to allow 170 days conduct credit under Penal Code section 4019. The judgment is otherwise affirmed.

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RUSHING, P.J.

WE CONCUR:

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PREMO, J.

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ELIA, J.

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People v. Thoreson

H029705