P. v. Aguilar

Filed 10/25/06 P. v. Aguilar CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIRST APPELLATE DISTRICT

DIVISION ONE

Defendant Anthony Aguilar appeals from the portion of his sentence that imposes a $1,600 fine under Penal Code section 1202.45.[1] He contends that the fine must be reduced to the statutory minimum amount of $200 because it “constitutes punishment in excess of that contemplated by the plea bargain.” We disagree and affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

On the morning of January 9, 2005, two young men were riding home on their bicycles when a passing vehicle slowed next to them. The young men exchanged stares with the occupants of the vehicle, and one of the young men “threw his arms in the air in a ‘What’s up?!’ manner.” The vehicle circled back and one of its occupants asked the young men which gang they were affiliated with. When they responded that they were with the 18th Street gang, a person got out of the vehicle. The two young men tried to ride away from the scene, but they were both shot. One of them was shot in the back and required surgery to remove a perforated portion of his intestine. The other was shot through the leg. Defendant was identified as the shooter by his codefendants.

Defendant, who was allegedly affiliated with the Norteño gang, was charged in an amended complaint with various offenses, including aggravated assault (Pen. Code, § 245, subd. (a)(1)), second degree robbery (§ 211), two counts of assault with a firearm (§ 245, subd. (a)(2)), and participation in a criminal street gang (§ 186.22, subd. (a)). The complaint alleged that defendant committed four counts for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1).) It was further alleged with respect to four counts that defendant was a person 14 years of age or older who committed the offenses for the benefit of a criminal street gang (Welf. & Inst. Code, § 707, subd. (d)(2)(C)(ii)), and who personally used a firearm (Welf. & Inst Code, § 707(d)(2)(B)) in the commission of the shootings.

Defendant pleaded guilty “per Alford“^[2] to one count of assault with a firearm. He also admitted the gang enhancement. In exchange for his plea, the prosecutor agreed to dismiss the remaining counts with a Harvey waiver.[3]

The trial court sentenced defendant to the aggravated term of four years and imposed an additional four years for the gang enhancement under section 186.22, subdivision (b)(1). He received a total sentence of eight years.

The plea form initialed and signed by defendant states, in part: “I understand that a further consequence of my plea of guilty is that the court is required to order restitution to the victim(s); and, if there is/are no victim(s), the court must order the payment of not less than $200 or more than $10,000 to the State Restitution Fund per Penal Code section 1203.04. The court must also order a restitution fine of not less than $200 or more than $10,000 per Penal Code section 1202.4(b).”

At the sentencing hearing, the court stated: “The defendant is ordered to pay a restitution fine in the amount of $1,600 pursuant to 1202.4, and an additional restitution fine in the amount of $1,600 pursuant to Penal Code section 1202.45, which is suspended unless the defendant’s parole is revoked.” Defendant did not object to either restitution fine at the hearing.

DISCUSSION

Defendant asserts that the trial court erred in imposing the $1,600 fine pursuant to section 1202.45 because it constitutes punishment in excess of that contemplated by the plea bargain. He claims the fine should be reduced to the statutory minimum of $200. He does not challenge the $1,600 fine imposed under section 1202.4.

I. Waiver

Perhaps in acknowledgment of the fact that he did not challenge the disputed fine at his sentencing hearing, defendant contends that his claim of error is not forfeited because the court did not advise him pursuant to section 1192.5[4] that “its approval of the plea was not binding, that it could withdraw its approval of the plea at sentencing and that if it withdrew its approval of the plea,” he could withdraw his plea. We note that the Attorney General does not contend that defendant waived his right to challenge imposition of the fine. We therefore assume, but do not decide, that defendant retained the right to raise his claim of error and we now proceed to address the merits of this case.

II. Did the $1,600 Parole Revocation Fine Violate the Terms of the Plea Bargain?

Defendant claims the $1,600 fine is significant and exceeds the fines that were part of the plea bargain. “When 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 (1991) 54 Cal.3d 1013, 1024.)

Section 1202.4 requires judicial imposition of a fine whenever a person is convicted of a crime (§ 1202.4, subd. (a)(3)(A)), unless the court “finds compelling and extraordinary reasons for not doing so, and states those reasons on the record.” (§ 1202.4, subds. (b) & (c).) The fine may be no less than $200 nor more than $10,000 (§ 1202.4, subd. (b)(1)), and should be based on all relevant factors found by the court (§ 1202.4, subd. (d)). The court may use a statutory formula to calculate the amount of the fine, which involves multiplying $ 200 by the number of years of imprisonment and then by the number of counts. (§ 1202.4, subd. (b)(2).)

Section 1202.45 provides: “In every case where a person is convicted of a crime and whose sentence includes a period of parole, the court shall at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional parole revocation restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4. This additional parole revocation restitution fine shall be suspended unless the person’s parole is revoked. Parole revocation restitution fine moneys shall be deposited in the Restitution Fund in the State Treasury.”

We first observe that “the law requires only that a defendant be advised generally of the ‘ “permissible range of punishment provided by statute” ‘ [citations], not specifically about each of the components of which a hypothetical maximum punishment might consist. ‘Common sense dictates that the court need only apprise defendant of the sentence possibilities in a general fashion. It is not necessary that defendant be given a detailed lecture on criminal procedure as it pertains to all the various dispositional devices available.’ [Citation.]” (People v. Sorenson (2005) 125 Cal.App.4th 612, 621.)

We note “Walker established that payment of a restitution fine is among the direct consequences of a guilty plea about which a defendant should be admonished. After that decision, former section 1202.45 was enacted to require imposition of ‘additional restitution fines‘ in the same amount as the restitution fine under section 1202.4 to be imposed and suspended until parole was revoked. It is a logical extension of Walker that the section 1202.45 fine is also a direct consequence of a guilty plea about which defendant should have been advised.” (People v. Sorenson, supra, 125 Cal.App.4th 612, 620.)

In this case, defendant was advised on the plea form that he could be ordered to contribute as much as $10,000 to the State Restitution Fund “per Penal Code section 1202.4(b).” The court followed the statutory formula by setting the amount of this fine at $200 per year of sentence, or $1,600. Ultimately, the court imposed a total of $3,200 in restitution fines, with half of this amount suspended pursuant to section 1202.45. This is well below the $10,000 maximum fine of which defendant was made aware. The only error we can discern is that the plea form fails to reference section 1202.45.

Under the circumstances of this case, we fail to see how the absence of this statutory citation on the form has any relevance. Accordingly, we conclude that defendant was adequately advised about the potential amount of the penalties he faced. We agree with the court’s statement in Sorenson that “[t]he trial court was not required to cite every possibly applicable statute in advising defendant.” (People v. Sorenson, supra, 125 Cal.App.4th 612, 622.) Moreover, we note that the trial court did provide the correct statutory citation at defendant’s sentencing hearing. The judgment is affirmed.

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

[2] North Carolina v. Alford (1970) 400 U.S. 25.

[3] People v. Harvey (1979) 25 Cal.3d 754.

[4] Section 1192.5 provides, in part: “If the court approves of the plea, it shall inform the defendant prior to the making of the plea that (1) its approval is not binding, (2) it may, at the time set for the hearing on the application for probation or pronouncement of judgment, withdraw its approval in the light of further consideration of the matter, and (3) in that case, the defendant shall be permitted to withdraw his or her plea if he or she desires to do so.”