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People v. Villalobos

August 28, 2009

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
RAMIRO VILLALOBOS, DEFENDANT AND APPELLANT.



APPEAL from a judgment of the Superior Court of Tulare County. Kathryn T. Montejano, Judge. (Super. Ct. No. VCF189886a).

The opinion of the court was delivered by: Wiseman, Acting P.J.

CERTIFED FOR PUBLICATION

OPINION

In return for a reduced sentence, defendant Ramiro Villalobos pled no contest to charges of attempted premeditated murder and second degree robbery. At sentencing, the court imposed a $4,000 restitution fine and a $4,000 parole revocation fine. On appeal, Villalobos argues the fines violated his plea agreement. Our Supreme Court first examined the issue of fines added at sentencing to a plea-bargained sentence in People v. Walker (1991) 54 Cal.3d 1013 (Walker). We publish to illustrate the application of Walker in light of our Supreme Court's most recent discussion of the issue in People v. Crandell (2007) 40 Cal.4th 1301 (Crandell). So far as the record discloses, fines were not a subject of the parties' bargaining in this case, and the plea agreement left the issue of fines to the court's discretion. We affirm the fines.

Villalobos also appeals the concurrent gang enhancement sentence added to his sentence for second degree robbery. Because Villalobos never admitted the truth of the enhancement allegation for that count, we reverse this part of the sentence.

PROCEDURAL AND FACTUAL HISTORIES

Villalobos was charged in a three-count information alleging attempted premeditated murder, assault with a deadly weapon, and second degree robbery. All three counts included enhancements.*fn1

The charges arose out of a brutal incident involving rival street gangs. The victim was a 16-year-old admitted gang member who was cornered and attacked by four or five opposing gang members. The victim was stabbed 17 times, one wound causing a collapsed lung. The attackers also stole the victim's shoes. Villalobos admitted taking part and stabbing the victim five or six times but claimed self defense.

Pursuant to a plea agreement, Villalobos pled no contest to attempted murder and second degree robbery. He also pled no contest to the street-gang enhancement on the attempted murder charge. All other allegations were dismissed. Villalobos would serve 17 years in state prison. As far as the record reveals, Villalobos did not sign a written change-of-plea form.

At the plea hearing, the People informed the court of the agreement. The People then added, "there are obviously the advisements. This is going to be a plea regarding gang registration and restitution, [a] strike and the deportation consequences pursuant to 186.30." The court responded, "Those will definitely be all incorporated." The court asked Villalobos whether he understood the maximum prison sentence to be 15 years to life. Villalobos said he understood. The court then asked whether he agreed to a term of 17 years. Villalobos said he understood. The court advised Villalobos of other consequences of his plea, including possible immigration consequences and the possibility that the plea would establish a parole or probation violation. Villalobos said he understood each advisement. The court asked if he "under[stood] that as a result of your plea, you may be required to pay restitution." Villalobos responded, "Yes, ma'am." The court asked Villalobos, "Other than what I have told you regarding the consequences of your plea, has anyone threatened you or promised you anything today to enter into this plea." Villalobos responded, "No." Villalobos waived his constitutional rights. He was given no further advisements.

For count one (attempted murder), Villalobos was sentenced to serve the middle term of seven years, plus a consecutive term of 10 years for the street-gang enhancement, for a total of 17 years. For count three (robbery), he was sentenced to serve the middle term of three years, and 10 years for the gang enhancement, for a total of 13 years to run concurrently with count one. Following the recommendation of the probation department, the court ordered Villalobos to pay a $4,000 restitution fine pursuant to Penal Code*fn2 section 1202.4 and a $4,000 parole revocation fine pursuant to section 1202.45; the latter was suspended. The court ordered the victim restitution to remain open pending any future medical or counseling expenses. Villalobos did not make any objections.

DISCUSSION

Villalobos contends that the concurrent 10-year gang enhancement on count three should be stricken. The People concede this issue and we accept the concession. A sentence enhancement is ""an additional term of imprisonment added to the base term'" and, as such, must be admitted in open court or found true by a trier of fact before a defendant can be sentenced. (Robert L. v. Superior Court (2003) 30 Cal.4th 894, 898, quoting Cal. Rules of Court, rule 4.405, subd. (c); § 1170.1, subd. (e).) Villalobos never admitted the gang-enhancement allegation of count three and a trier of fact never found the allegation true.

Villalobos also argues that the $4,000 restitution fine and the $4,000 parole revocation fine violated the plea agreement. Pursuant to People v. Walker, supra, 54 Cal.3d 1013, he asks us to ...


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