P. v. White

Filed 1/9/09 P. v. White CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Edward P. Moffat, II, Judge.

William J. Capriola, 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, Assistant Attorney General, Catherine Chatman and Heather S. Gimle, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

In return for a sentence limited to two years, Joshua Ray White pleaded no contest to a charge of being a felon in possession of a firearm. The court included a penal fine of $720 in the sentence. White now argues that this fine must be stricken because it exceeded the terms of the plea agreement. In the plea agreement form he signed, however, White was informed and acknowledged that a penal fine of up to $10,000 and a restitution fine of up to $10,000 were possible consequences of his plea. We affirm.

FACTUAL AND PROCEDURAL HISTORIES

According to the probation report, White was riding in a friends car when a Chowchilla police officer tried to pull the car over. White jumped out and the car sped away. Another officer watched as White ran along a fence toward the back yard of a house. The second officer found White at the house and arrested him. A neighbor found a handgun and a scanner by the fence. White admitted the scanner was his but said the gun was not. He was on parole at the time.

The district attorney filed a criminal complaint charging White with being a felon in possession of a firearm. (Pen. Code,  12021, subd. (a)(1).^[1]) For purposes of sentence enhancement under section 667.5, subdivision (b), the complaint also alleged that White had served prison terms for three prior convictions.

White pleaded no contest to the charged offense pursuant to a negotiated disposition. In return for the plea, the People agreed to a sentence of two years, the middle term, to run concurrently with the term for the parole violation. The court accordingly imposed a two-year term, concurrent with any term imposed for the parole violation. It also imposed a $200 restitution fine ( 1202.4, subd. (b)); a $200 parole revocation fine, suspended pending successful completion of parole ( 1202.45); a $20 court security fee ( 1465.8, subd. (a)); and a penal fine of $720 ( 672).^[2] The last item consisted of a $200 base fine; a $200 state penalty assessment under section 1464; a $40 penalty assessment to fund the state DNA program under Government Code section 76104.6; a $140 county penalty assessment under Government Code section 76000; a $100 state court construction fund penalty assessment under Government Code section 70372, subdivision (a); and a $40 surcharge under section 1465.7.

After the sentencing, the court received a letter from White requesting leave to withdraw the plea. The court denied the request as untimely, noting that it remained open to White to file a writ petition or a motion to vacate the judgment. Whites notice of appeal included a request for a certificate of probable cause, which the court granted.

DISCUSSION

When a defendant enters a plea pursuant to a plea bargain, the punishment may not significantly exceed that which the parties agreed upon. This rule applies to fines. (Walker, supra, 54 Cal.3d at p. 1024.) In forming the plea agreement, however, the parties may elect to fix the amount of prison time to be served while leaving the amount of any applicable fines to the courts discretion. In that situation, the defendant has no grounds for claiming that the fine imposed by the court exceeded the punishment contemplated by the agreement. (People v. Crandell (2007) 40 Cal.4th 1301, 1309-1310 (Crandell).)

White signed, and initialed each paragraph of, a plea agreement in the form of a declaration. The agreement included the following paragraphs:

13. My attorney has explained the possible sentence(s) to me, and I understand the maximum punishment of the plea(s) of GUILTY to be:

a) Maximum period of incarceration __2 yrs__________

b) Fine ___$10K_________ c) Restitution fine _$10K_

d) Parole term __3 yrs_____ e) Other ____________ []  []

18. I have not been induced to plea[d] GUILTY by any promise or representation of a lesser sentence, probation, reward, immunity, or anything else, except as stated below:

2 years concurrent with parole violation_______________

The parties agreement thus stipulated that in return for Whites plea, he would be sentenced to no more than two years with any term for the parole violation to be served concurrently, plus, potentially, a penal fine of up to $10,000 and a restitution fine of up to $10,000. The agreement expressly stated that fines up to these amounts were possible consequences of the plea. It limited the consideration for the plea to a two-year limit on the prison time. A limit on fines to an amount less than $10,000 in each category was not part of the agreement. Since it stated maximum fine figures and said imposition of the full amounts was a possible consequence of the plea, this was a plea agreement that left the fine amounts to the trial courts discretion. That the court exercised that discretion to impose a $720 penal fine does not constitute error.

Whites opening brief claims that the trial court imposed a monetary penalty  which the plea agreement did not mention and which appellant was never even advised of. As we have shown, the plea agreement did state that a maximum fine of $10,000 and a maximum restitution fine of $10,000 were possible in addition to the two-year prison term as consequences of the plea.

White points out that, at the hearing, before the court took Whites plea, it referred to restitution fines of up to $10,000 but did not mention penal fines. We see no reason, however, why the written plea agreementwhich, we repeat, White signed, initialing every paragraphwould not sufficiently inform him of the potential fine amounts for purposes of forming the plea agreement. White has cited no authority for the view that it would not. (Whether White received a sufficient oral admonition from the court is a different issue, which, though White has not raised it, we will discuss briefly below.)

White relies on a discussion in Crandell in which the court distinguishes Walker. Stating that there was error in Walker but not in Crandell, the Crandell court explained that the trial court in Walker obtained no assurance that the parties intended their plea bargain to leave the amount of the restitution fine to the courts discretion. (Crandell, supra, 40 Cal.4th at p. 1310.) Further, 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: You will be ordered to pay restitution to the victims in this case. (Ibid.) White points out that in the present case, the trial court did not ask for any assurance on this subject and did not flatly inform him that he would be ordered to pay the challenged fine. These facts do not, however, show that the $720 fine deviated from the terms of the plea agreement. The plea agreement form told White that if he entered into the agreement, he might have to pay as much as $10,000 in fines and $10,000 in restitution. That the court did not reiterate these points orally does not change the content of the agreement.

White appears not to intend to raise the issue of whether the court gave him a sufficient oral admonition of the consequences of his plea.^[3] [B]efore taking a guilty plea the trial court must admonish the defendant of both the constitutional rights that are being waived and the direct consequences of the plea. (Walker, supra, 54 Cal.3d at p. 1022.) This issue is distinct from the issue of whether the plea agreement was violated. (Id. at pp. 1019-1020.) The court arguably failed to tell White all the direct consequences of his plea when it mentioned restitution fines but not penal fines. Error in the admonition with respect to consequences of the plea is waived absent a timely objection, however. (Id. at p. 1023.) White never objected to the sentence on this ground in the trial court, so any such error is waived.

DISPOSITION

The judgment is affirmed.

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

^[1]Subsequent statutory references are to the Penal Code.

^[2]The courts minutes, the abstract of judgment, and the transcript of the sentencing hearing show a total of $740, but this includes $20 for the mandatory court security fee, which White does not challenge in this appeal.

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. This is a penal fine. (People v. Walker (1991) 54 Cal.3d 1013, 1019 (Walker).)

^[3]His reply brief contends that the Peoples arguments on waiver and lack of prejudice are inapplicable because his claim is that the fine violated the terms of the plea agreement, not that the court gave an inadequate admonition of the consequences of the plea.