P. v. Matagora















Filed 7/2/12
P. v. Matagora CA3









NOT TO BE PUBLISHED











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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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

THIRD
APPELLATE DISTRICT

(Tehama)

----






>

THE PEOPLE, Plaintiff and Respondent, v. ROY ANTHONY MATAGORA, Defendant and Appellant.

C068908 (Super. Ct. No. NCR81053)

In
July 2011 defendant Roy Anthony Matagora pleaded guilty to href="http://www.mcmillanlaw.com/">transportation of a controlled substance
(Health & Saf. Code, § 11379, subd. (a)) and admitted a prior serious
felony conviction (Pen. Code,href="#_ftn1" name="_ftnref1" title="">[1] §§ 667, subds. (b) through (i), 1170.12, subds. (a)-(d)) in
exchange for a stipulated sentence of four years in state prison and the
dismissal of an enhancement for having served a prior prison term
(§ 667.5, subd. (b)). In August he
was sentenced to the four-year term and the court imposed a restitution fine of
$400 in accordance with section 1202.4.
Defendant filed a timely notice of
appeal.

Relying
on People v. Walker (1991) 54 Cal.3d
1013 (Walker),
defendant contends the $400 mandatory restitution fine must be reduced to $200,
the statutory minimum for such fines. We
agree that the case resembles Walker, but disagree that here a reduction is necessary.

In
Walker, the defendant entered
into a plea bargain whereby he pled guilty to attempted use of a destructive
device in exchange for a stipulated sentence of five years and the dismissal of
another count. (Walker, supra, 54 Cal.3d at pp. 1018-1019.) In accepting the defendant’s plea, the court
neither admonished him pursuant to section 1192.5 nor told him that a direct
consequence of his plea required imposition of a restitution fine with a
minimum of $100 and a maximum of $10,000.
(Id. at pp. 1022, 1025.) The defendant was sentenced to five years in
prison and the trial court imposed a $5,000 restitution fine. (Id.
at p. 1019.) The >Walker court held that the $5,000 restitution fine was not part of the
bargain; that $5,000 was a significant deviation from the terms of the bargain;
and that the appropriate remedy was to reduce the restitution fine to the
statutory minimum, $100. (>Id. at pp. 1029-1030.)

>Walker set forth the general rule that “[w]here the restitution fine
significantly exceeds the terms of a negotiated
plea, and the section 1192.5[href="#_ftn2" name="_ftnref2" title="">[2]] admonition is not given, the
error is not waived by acquiescence and may not be deemed harmless.” (Walker,
supra, at p. 1030, original italics.)
The “significance” of the imposition of a term which exceeds the plea
agreement is determined “in the context of the plea bargain as a
whole . . . .” (>Id. at p. 1024.)

In
the present case, in accepting defendant’s plea, the trial court did not
admonish defendant pursuant to section 1192.5.
However, the court did advise defendant that “[t]he maximum penalty for
this offense is eight years in State Prison and fines totaling up to $20,000.” It did not advise him that a minimum
restitution fine of $200 was required.
Although the probation officer’s report recommended a restitution fine
of $400, it was just that -- a recommendation.


While
the circumstances of the present case are similar to those of >Walker, there is a clear difference.
The variance from the plea bargain in Walker was $5,000 and in the present case the variance was
$200. Defendant’s maximum exposure in
this case was nine years in state prison plus a restitution fine of up to
$10,000. We conclude that not only is
the $200 difference “insignificant” when
considered in the context of the entire plea bargain, but that even if
defendant had been informed of the mandatory minimum, the information would not
have affected his willingness to plead.
Consequently, the error was harmless.


DISPOSITION

The
judgment is affirmed.







NICHOLSON , Acting P. J.







We concur:







BUTZ , J.







DUARTE , J.