P. v. Payne

Filed 8/29/06 P. v. Payne CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Defendant Noel Payne was sentenced to prison for 32 months following his negotiated guilty plea to two counts of failing to update his registration as a sex offender (Pen. Code, § 290, subd. (a)(1).)[1] As part of defendant’s sentence, the court ordered him to pay an $800 restitution fine. Defendant contends that the court violated the terms of his negotiated plea by imposing the $800 fine, which was not part of the plea agreement. We disagree, and therefore affirm.

BACKGROUND

Defendant was charged by amended felony complaint filed January 18, 2005, with failing to notify law enforcement of his change of address (§ 290, subd. (a)(1)(A)), and failing to update his registration as a sex offender following his birthday (§ 290, subd. (a)(1)(D)). The complaint further alleged that defendant had a prior sex offense that qualified as a strike (§ 1170.12), and that he had served a prior prison term (§ 667.5, subd. (b)). On June 9, 2005, defendant entered a guilty plea to the charges, and admitted the priors, on condition that he receive a sentence of no more than 32 months in state prison. Before accepting defendant’s plea, the court informed defendant, and defendant stated that he understood, that a mandatory restitution fine of not less than $200 nor more than $10,000 would be ordered at sentencing. The court did not give defendant the section 1192.5 advisement regarding his right to withdraw his plea should the court withdraw its approval of the plea agreement.

On August 8, 2005, defendant filed a request that the court exercise its discretion under section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497, to strike his prior strike. The People filed opposition to the motion. The probation report recommended that the court sentence defendant to 32 months in state prison and impose a restitution fine of $800 under the formula permitted by section 1202.4, subdivision (b). On August 9, 2005, the court denied the Romero motion and sentenced defendant to 32 months in state prison. The court also ordered defendant to pay an $800 restitution fine. Defendant did not object to imposition of the fine.

DISCUSSION

Defendant contends that the trial court violated the terms of his negotiated disposition by imposing a restitution fine that was not part of his plea agreement. He argues that the restitution fine must therefore be reduced to $200, the statutory minimum, pursuant to People v. Walker (1991) 54 Cal.3d 1013. Defendant acknowledges that this court rejected a similar argument in three cases: People v. Dickerson (2004) 122 Cal.App.4th 1374 (petn. for review den. Jan. 19, 2005) (Dickerson); People v. Knox (2004) 123 Cal.App.4th 1453 (petn. for review den. Jan. 19, 2005) (Knox); and People v. Sorenson (2004) 125 Cal.App.4th 612 (petn. for review den. April 13, 2005) (Sorenson). He urges this court to reconsider its holdings in these three cases for the reasons stated in Justice Mihara’s dissent in Knox, and because the Supreme Court granted review of the holding in People v. Crandell (review granted Aug. 24, 2005, S134883).

The People contend that, for the reasons stated in Dickerson, the trial court did not breach the plea agreement by imposing an $800 restitution fine.

In Walker, the court stated that “[w]hen a guilty plea is entered in exchange for specified benefits such as the dismissal of other counts or an agreed maximum punishment, both parties, including the state, must abide by the terms of the agreement. The punishment may not significantly exceed that which the parties agreed upon.” (People v. Walker, supra, 54 Cal.3d at p. 1024.) A “restitution fine . . . qualifies as punishment for this purpose. Accordingly, the restitution fine should generally be considered in plea negotiations.” (Ibid.) However, it is not a violation of a plea agreement if “a statutorily mandated consequence of the guilty plea is not embodied specifically within the terms of a plea agreement.” (People v. McClellan (1993) 6 Cal.4th 367, 381 (McClellan).)

In Walker, the trial court “only advised the defendant that a $10,000 fine was a possible consequence of the guilty plea. This was inadequate. The court should have advised defendant there was a possible $10,000 penalty fine and a mandatory restitution fine of between $100 [now $200] and $10,000.” (People v. Walker, supra, 54 Cal.3d at p. 1029.) The court concluded that, since Walker had not received the section 1192.5 advisement, he was able to assert on appeal that “the $5,000 restitution fine was a significant deviation from the negotiated terms of the plea bargain.” (Id. at p. 1029.) The remedy for this violation was to reduce the restitution fine to the statutory minimum rather than remanding the case for a redetermination of the fine. (Id. at pp. 1028-1030.)

In the case before us, the trial court informed defendant before accepting his plea that the consequences of his plea included imposition of various mandatory fines including a mandatory restitution fine of not less than $200 nor more than $10,000. Defendant acknowledged before entering his guilty plea that the court must impose the restitution fine at sentencing. The probation report also notified defendant that an $800 restitution fine was recommended pursuant to the formula set forth in section 1202.4, subdivision (b). At sentencing, neither defendant nor his attorney objected to this recommendation or to the court’s imposition of the $800 restitution fine. Thus, it would appear that nobody in the trial court seemed to think that imposition of a restitution fine of $800 violated the terms of defendant’s plea agreement. (See Dickerson, supra, 122 Cal.App.4th at p. 1385.)

All the circumstances indicate that the parties to the plea agreement were concerned only with reaching an agreement specifying that defendant receive a prison sentence of no more than 32 months and that he be allowed to file a Romero motion. Neither Walker nor McClellan required them to negotiate regarding the imposition or the amount of the mandatory restitution fine. And, unlike the defendant in Walker, defendant here entered his plea after being advised and indicating his understanding that a mandatory restitution fine of between $200 and $10,000 would be ordered at sentencing in addition to the agreed-upon prison sentence of no more than 32 months. It appears, therefore, that the parties implicitly agreed that the amount of the fine would be left to the discretion of the sentencing court. (See, Dickerson, supra, 122 Cal.App.4th at p. 1385; Knox, supra, 123 Cal.App.4th at p. 1461; Sorenson, supra, 125 Cal.App.4th at p. 619.) Accordingly, we conclude that defendant has not established that the trial court’s imposition of the $800 restitution fine at sentencing violated his plea agreement.

DISPOSITION

The judgment is affirmed.

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Bamattre-Manoukian, ACTING P.J.

I CONCUR:

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MCADAMS, J.

MIHARA, J., dissenting.

Since I believe that the imposition of an $800 restitution fund fine in this case was a violation of the plea bargain, I dissent for the same reasons I dissented in People v. Knox (2004) 123 Cal.App.4th 1453. (Knox at pp. 1463-1465, Mihara, J., dissenting.) I would modify the judgment to reduce the restitution fund fine to $200.

___________________________

Mihara, J.

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[1] All further statutory references are to the Penal Code.