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November 30, 2010


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

P. v. Feliciano



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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendant Jaime Enrique Feliciano entered a negotiated plea of no contest to possessing child pornography, sexual exploitation of a minor, and committing lewd acts on a child under the age of 14. (Pen. Code, §§ 311.11, subd. (b), 288, subd. (a), 311.3, subd. (a).)*fn1 He also admitted having been convicted of a prior serious felony. (§§ 667, subd. (a)(1) & (b)-(i), 1170.12.) In exchange for his plea, five additional counts for committing lewd acts on a child and several aggravating allegations were dismissed.

Having received the stipulated 25-year prison term, he appeals. He contends the $5,000 restitution fine and $5,000 parole revocation fine imposed by the trial court exceeded the terms of the plea agreement. We agree and reduce the fines to the statutory minimum of $200.

At the change of plea hearing, the prosecutor indicated an agreement had been reached for a stipulated term of 25 years and explained how that term would be calculated. Judge Orr then advised defendant that he would be pleading to several strikes and the consequences thereof. He also advised defendant of his constitutional rights and obtained express waivers from defendant of those rights. He did not, however, mention the possibility of a fine or fee, ask defendant if he had been made any additional promises, or admonish defendant pursuant to section 1192.5 that he could withdraw his plea should the court subsequently withdraw its approval and impose a more severe punishment.*fn2

A probation report was filed prior to sentencing. The report recommended defendant pay a $5,000 restitution fine, a corresponding $5,000 parole revocation fine, a $60 court security surcharge, a $263.85 jail booking fee, a $28.75 jail classification fee, and a $90 mandatory facility fee. On the trailing violation of probation case, the report recommended an additional $200 restitution fine and a corresponding $200 parole revocation fine.

Defendant was sentenced by Judge Earl. The court stated it had reviewed the probation report and asked if the parties wished to be heard. Defense counsel stated, "We would ask for minimum fines, and a waiver of fees, Your Honor. It is a significant amount of time." The prosecutor submitted on the probation report. The court then imposed the stipulated term of 25 years in prison, ordered defendant to pay a $5,000 restitution fine, imposed and stayed a $5,000 parole revocation fine, and ordered a $60 court security fee and a $90 court facility fee. The court waived the jail booking and classification fees, the cost of investigation and preparation of the presentence report, the monthly cost of probation, and the cost of urinalysis testing. No objections were made to the sentence.

Defendant contends the imposition of the restitution fine and parole revocation fine constitutes a violation of the plea agreement. Citing People v. Walker (1991) 54 Cal.3d 1013 (Walker) as "precisely" analogous, he argues the fines must be reduced to the statutory minimum of $200. We agree that Walker is materially indistinguishable from the instant case.

In Walker, the defendant was charged with the attempted use of a destructive device with the intent to injure or intimidate. The court orally advised defendant that the triad for the offense was three, five or seven years in state prison and a maximum $10,000 fine. The defendant entered a negotiated plea of guilty to the offense in exchange for dismissal of another felony count and a stipulated sentence of five years with credit for time served. At sentencing immediately after the plea, the trial court imposed the agreed-upon five-year sentence as well as a $5,000 restitution fine. (Walker, supra, 54 Cal.3d at pp. 1018-1019.) Walker stated the rule, "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." (Id. at p. 1024.) In holding that the imposition of such a substantial fine amounted to a violation of the plea bargain, Walker implicitly found that the defendant reasonably could have understood the negotiated plea bargain meant no substantial fine. (Id. at pp. 1024-1026.) Walker also concluded that "the restitution fine should generally be considered in plea negotiations." (Id. at p. 1024.) Additionally, the court held that, because the trial court failed to comply with section 1192.5, the defendant did not waive his objection to the punishment exceeding the terms of the plea bargain by failing to raise the issue at sentencing. (Id. at pp. 1022, 1024-1026.)

The Attorney General argues this case is more akin to People v. Crandell (2007) 40 Cal.4th 1301 (Crandell), which distinguished the holding in Walker, than to Walker. We disagree.

In Crandell, the defendant not only affirmed he had been made no other promises beyond a stipulated 13-year sentence and was admonished by the court pursuant to section 1192.5, but he was also advised at sentencing that "he would 'have to pay a restitution fund fine of a minimum of $200, a maximum of $10,000.'" (Crandell, supra, 40 Cal.4th at p. 1305.) This last advisement reflected that the parties "intended to leave the amount of defendant's restitution fine to the discretion of the court, [and] defendant is not entitled to relief." (Id. at p. 1309.) Thus, the court reasoned, "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.' 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 substantial restitution fine would be imposed." (Crandell, supra, 40 Cal.4th at p. 1310.) The court clarified that "'the core question in every [such] case is . . . whether the restitution fine was actually negotiated and made a part of the plea agreement, or whether it was left to the discretion of the court.' When a restitution fine above the statutory minimum is imposed contrary to the actual terms of a plea bargain, the defendant is entitled to a remedy." (Crandell, supra, 40 Cal.4th at p. 1309.)

None of the distinguishing factors in Crandell are present here. Defendant was not asked if any additional promises had been made, he was not admonished pursuant to section 1192.5 and, significantly, he was not informed by the court that he would be required to pay a restitution fine of up to $10,000. We further reject the Attorney General's suggestion that defense counsel's request at sentencing for imposition of minimum fines and a waiver of fees indicates there was an earlier understanding that the amount of fines and fees would be left to the discretion of the sentencing judge. Indeed, this request comports with the belief that the statutory minimum should be imposed pursuant to Walker. The instant case is directly analogous to Walker, not to Crandell.

We also reject the Attorney General's alternative argument that $5,000 is not a sufficient amount to significantly increase defendant's punishment and, therefore, does not violate the terms of the plea agreement. As Walker instructs, "[c]courts should generally be cautious about deeming a nonbargained punishment to be insignificant." (Walker, supra, 54 Cal.3d at p. 1027, fn. 3.) Here, the amount imposed is half the statutory maximum and the same amount found significant in Walker. Five thousand dollars is a significant sum, even considering defendant's lengthy 25-year sentence.


The judgment is modified to reduce both the restitution fine (Pen. Code, § 1202.4) and the parole revocation fine (Pen. Code, § 1202.45) to $200. As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. *fn3

We concur: NICHOLSON , J.


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