P. v. Kyle

Filed 9/4/08 P. v. Kyle CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Madera County. Jennifer R.S. Detjen, Judge.

Cathy Anne Neff, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Lloyd G. Carter and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Appellant, Eugene Kyle, pled guilty to transportation of cocaine base (Health & Saf. Code, 11352, subd. (a))^[1]and admitted a prior prison term enhancement (Pen. Code, 667.5, subd. (b)) On appeal, Kyle contends the court erred in imposing a $740 fine^[2]because: 1) it was unauthorized; and 2) imposition of the fine violated his plea bargain. We will affirm.

FACTS

On November 15, 2006, members of the Madera Narcotics Enforcement Team stopped a van driven by Kyle after it left a house they had under surveillance. Kyle was arrested on a misdemeanor warrant. A search of the van uncovered a plastic baggie containing 36 rocks of cocaine base weighing a total of 5.6 grams. When Kyle saw the agent processing the drugs he stated, The bag is mine, Im a user.

On May 15, 2007, the district attorney filed an information charging Kyle with transportation of cocaine base, possession for sale of cocaine base ( 11351.5), and a prior prison term enhancement.

On September 4, 2007, Kyle entered his plea in exchange as part of a plea bargain which, in pertinent part, provided for the dismissal of the possession for sale charge, the prosecutors agreement not to file a possession of Vicodin case, and a stipulated term of four years (the mitigated term of three years and a one-year prior prison term enhancement), which would be imposed concurrent to any term he received for violating his probation in case No. MCR023178.

Prior to entering his plea, Kyle filled out a change of plea form that at paragraph 2 stated:

PLEA AGREEMENT[:] I understand that I must tell the court on this form about any promises anyone has made to me about the sentence I will receive or the sentence recommendations that will be made to the court. [] My attorney, the court or the prosecutor has explained to me that if I plead guilty or no contest to the charges and admit the allegations listed above, the court will sentence me as follows: [] ... [] e. Restitution, Statutory Fees, and Assessments[:] I understand that the court will order me to pay the following amounts (if an amount is not yet known, TBD for to be determined is entered next to the $ [sign]. [] ... [] 5. $TBD other (specify): statutory fine, plus penalties, assessments, & surcharges. (Italics in original.)

During the change of plea proceedings the following colloquy occurred:

THE COURT: Mr. Kyle, the plea form on Page 2, line 2.[e].5 refers to a statutory fine. The statutory fine in this case can go up to $10,000.

Do you understand that?

THE DEFENDANT: Yes.

THE COURT: The form says its the statutory fine plus penalties, assessments and surcharges.

Do you have any questions about that?

THE DEFENDANT: No.

THE COURT: Mr. Keitz [prosecutor], there is not a victim in this case that restitution would be owed to, is there?

MR.KEITZ: No. But its my understanding, your Honor, that [the] statutory fine for [a violation of section] 11352 is $20,000.

THE COURT: Oh, thank you. Its 20,000, not 10,000. Mr. Kyle, do you understand that?

THE DEFENDANT: Yes. (Italics added.)

At Kyles sentencing hearing on October 1, 2007, the court sentenced Kyle to the stipulated term of four years, which it imposed concurrent to the sentence he received in case No. MCR023178. The court also ordered Kyle to pay certain fines and penalties including a fine of $740 under Penal Code section 672. The court then suspended criminal proceedings and committed Kyle to the California Rehabilitation Center pursuant to Welfare and Institutions Code section 3051.^[3]

DISCUSSION

The Unauthorized Sentence Issue

Section 11372 provides:

In addition to the term of imprisonment provided by law for persons convicted of violating Section 11350, 11351, 11351.5, 11352, 11353, 11355, 11359, 11360, or 11361, the trial court may impose a fine not exceeding twenty thousand dollars ($20,000) for each offense. In no event shall a fine be levied in lieu of or in substitution for the term of imprisonment provided by law for any of these offenses.

Penal Code section 672 provides:

Upon a conviction for any crime punishable by imprisonment in any jail or prison, in relation to which no fine is herein prescribed, the court may impose a fine on the offender not exceeding one thousand dollars ($1,000) in cases of misdemeanors or ten thousand dollars ($10,000) in cases of felonies, in addition to the imprisonment prescribed. (Italics added.)

In People v. Breazell (2002) 104 Cal.App.4th 298, the court stated:

The language used in [Penal Code] section 672 demonstrates that it was meant to provide a fine for offenses for which another statute did not impose a fine. In other words, this is a catchall provision allowing a fine to be imposed for every crime, even if the statute criminalizing the conduct did not specifically authorize a fine. The limiting provision was meant to ensure that a fine pursuant to [Penal Code] section 672 would not be imposed if another statute authorized a fine for the offense. (Id. at p. 304, italics added.)

Kyle cites Breazell to contend the trial court could not impose a fine pursuant to Penal Code section 672 in the instant case because section 11372 authorized the court to impose a fine for his transportation conviction. Thus, according to Kyle, the court imposed an unauthorized fine of $740 pursuant to Penal Code section 672 and this fine must be a stricken. We disagree.

It is presumed that official duty has been regularly performed. (Evid. Code, 664.) As an aspect of the presumption that judicial duty is properly performed, [the court] presume[s], nonetheless, in other proceedings that the court knows and applies the correct statutory and case law[.] (People v. Coddington (2000) 23 Cal.4th 529, 644.)

During the change of plea proceedings the court advised Kyle that his plea to the transportation charge would subject him to a maximum statutory fine of $10,000. After the prosecutor interjected, the court accepted his representation that the maximum statutory fine for a violation of section 11352 was $20,000 not $10,000 as the court had stated. This clearly shows the court was aware Kyles plea to a violation of section 11352 subjected him to the fine provided for by section 11372. It also shows that in advising Kyle his plea subjected him to a maximum statutory fine of $20,000, the court was referring to a fine pursuant to this section. Further, Kyles plea was taken by the same judge who sentenced him.

Except for the courts citation to Penal Code section 672, Kyle does not cite any other facts to support his contention that the court imposed the $740 fine pursuant to that section. We conclude from these circumstances including the presumptions noted above that the court imposed the $740 fine pursuant to section 11372 and misspoke when it cited Penal Code section 672 as the basis for imposing this fine. Accordingly, we reject Kyles contention that the $740 fine imposed by the court was unauthorized.

The Alleged Violation of Kyles Plea Agreement

Kyle cites People v. Walker (1991) 54 Cal.3d 1013 to contend the court violated the terms of his plea bargain when it imposed the $740 fine because his negotiated plea did not provide for a fine in this amount. Kyle is wrong.

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.

[W]hen a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled. [Citation.] [] The Supreme Court has thus recognized that due process applies not only to the procedure of accepting the plea [citation], but that the requirements of due process attach also to implementation of the bargain itself. It necessarily follows that violation of the bargain by an officer of the state raises a constitutional right to some remedy. [Citations.] (People v. Walker, supra,54 Cal.3d at p. 1024.)

In People v. Walker, supra, 54 Cal.3d 1013 the defendant pled guilty pursuant to a plea bargain that did not mention a restitution fine. In advising the defendant of the consequences of his plea the court simply stated that a $10,000 fine was a possible consequence of his plea and did not mention that he was subject to a mandatory restitution fine of between $1,000 and $10,000. Except for the probation report recommending a restitution fine of $7,000 there was no other mention of the possibility of such a fine until the defendants sentencing hearing at which the court imposed a $5,000 restitution fine. (Id. at p. 1018-1019, 1029.)

The Walker court found that $5,000 was a significant deviation from the terms of the defendants bargain and that the defendant was entitled to some remedy because the trial court did not advise him, as required by section 1192.5, that he could withdraw his plea if the court did not abide by its terms. (People v. Walker, supra, 54 Cal.3d. at p. 1024-1025.) However, instead of allowing the defendant to withdraw his plea the court reduced the fine to the mandatory minimum of $100 finding that in the context of a felony plea a $100 fine was not significant. (Id. at pp. 1027-1028.)

Walker is inapposite because unlike the defendant in that case, Kyle filled out a change of plea form that specifically stated his plea bargain provided that he would be subject to a statutory fine that was to be determined. Further, prior to taking Kyles plea the court clarified that it would impose a statutory fine of up to $20,000 referring to the fine pursuant to section 11372, subdivision (a). Thus, unlike Walker, the section 11372 fine was included as part of defendants plea bargain, notwithstanding the courts failure to state the correct statutory basis for the fine.

Walker is also distinguishable because aside from the fine being encompassed in Kyles plea bargain, the trial court here advised Kyle at the change of plea proceedings that he would be subject to a section 11372, subdivision (a) fine of up to $20,000. These facts distinguish the case from Walker, where the court advised the defendant only that the maximum penalties provided by law for his offense included a fine of up to $10,000 and obtained no assurance that the parties intended their plea bargain to leave the amount of the restitution fine to the courts discretion. [Citation.]

Thus, while the defendant in [Walker] reasonably could have understood the negotiated plea agreement to signify that no substantial fine would be imposed [citation], defendant in this case was flatly informed [that he would be ordered to pay a section 11372, subdivision (a) fine]. In light of these circumstances, it is clear that when defendant entered his plea, he could not reasonably have understood his negotiated disposition to signify that no [section 11372, subdivision (a)] fine would be imposed. (People v. Crandell (2007) 40 Cal.4th 1301, 1310.)

Moreover, since the actual fine imposed here was $200, only twice the amount the Walker court found insignificant in the context of a felony plea, we conclude this fine did not violate Kyles plea bargain for the additional reason that it too was insignificant in the context of Kyles felony plea.^[4] Accordingly, for all these reasons we also reject Kyles contention that the court violated the terms of his plea bargain when it imposed a $740 fine. Nevertheless, we will direct the trial court to correct its paperwork to show that the $200 base fine was imposed pursuant to section 11372, subdivision (a).

DISPOSITION

The trial court is directed to correct its paperwork to show that the court imposed the $200 base fine (that with penalties, assessments, and fees totaled $740) pursuant to section 11372, subdivision (a). In all other respects the judgment is affirmed.

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^*Before Wiseman, Acting P.J., Dawson, J., and Kane, J.

^[1] Unless otherwise indicated, all further statutory references are to the Health and Safety Code.

^[2] The $740 fine consisted of a $200 base fine, a mandatory $200 penalty assessment pursuant to Penal Code section 1464, a mandatory $20 penalty assessment pursuant to Government Code section 76104.6, a mandatory $20 penalty assessment pursuant to Government Code section 76104.7, a mandatory $140 penalty assessment pursuant to Government Code section 76000, a mandatory $100 court construction penalty assessment pursuant to Government Code section 703272, subdivision (a), a mandatory $40 surcharge per Penal Code section 1465.7, and a $20 mandatory court security fee pursuant to Penal Code section 1465.8 subdivision (a) and the remainder in penalties, assessments, surcharges, and fees. We refer to these aggregate components collectively as the $740 fine.

^[3] Judge Jennifer Detjen presided over Kyles change of plea and sentencing hearings.

^[4] The remaining $540 in penalties, assessments and fees did not violate the terms of Kyles plea bargain because these additional burdens imposed on the defendant were statutorily mandated. [Citations.] (People v. Crandell, supra, 40 Cal.4th at p. 1309.)