IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
September 15, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
STEVE JOSEPH NOBLE, DEFENDANT AND APPELLANT.
(Super. Ct. No. 10F00752)
The opinion of the court was delivered by: Nicholson , Acting P. J.
P. v. Noble
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
On October 21, 2009, defendant Steve Joseph Noble was a state prisoner housed at Folsom State Prison.*fn1 Ignoring an officer's orders, defendant threw a book. Inside the book was an inmate-manufactured weapon that consisted of a piece of metal that had been sharpened to a point.
Defendant pleaded guilty to possession of a sharp instrument in state prison (Pen. Code, § 4502, subd. (a))*fn2 and admitted that he had suffered two strikes: a 1987 conviction of forcible lewd acts upon a child (§ 288, subd. (b)) and a 1992 conviction of second degree robbery (§§ 211, 212.5). (§§ 667, subds. (b)-(i), 1170.12.) In exchange, four prior prison term allegations (§ 667.5, subd. (b)) were dismissed and the prosecution refrained from going forward on an unrelated case involving an assault upon a correctional officer.
Defendant was sentenced to state prison for 25 years to life consecutive to the term he was then serving. Because he was a sentenced prisoner at the time of the offense, he was not awarded custody or conduct credit. The trial court initially imposed a $2,500 restitution fine (§ 1202.4) and a $2,500 restitution fine suspended unless parole is revoked (1202.45). However, following defendant's objection, both fines were reduced to $1,000. Defendant was ordered to pay a $40 court security fee. (§ 1465.8, subd. (a)(1).)
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief.
Defendant filed a supplemental brief contending the $1,000 restitution fine violates the plea agreement, which included an agreement that "no restitution would be ordered."*fn3 (Original underscoring.) The point has no merit.
During the plea colloquy, this exchange occurred:
"THE COURT: You could be ordered to pay a restitution fine and the minimum amount is two hundred, the maximum amount is ten thousand. [¶] Do you understand?
"(Off-the-record discussion was held between [defense counsel] and the defendant.)
"[DEFENSE COUNSEL]: No restitution.
"THE COURT: There's no actual victim restitution is my understanding. The law requires a restitution fine.
"THE DEFENDANT: Okay.
"THE COURT: Do you understand that?
"THE DEFENDANT: Yes."
Defendant claims the $1,000 restitution fine is "in breach of and in excess of the term orally agreed upon by the parties during the plea negotiations." We disagree. The record shows an agreement for "[n]o restitution," which the trial court construed to mean "no actual victim restitution." No one, including defendant, disputed the court's interpretation of the agreement. Rather, defendant replied, "Okay." The court further advised defendant that "[t]he law requires a restitution fine," and it asked him, "Do you understand that?" Defendant unequivocally answered, "Yes." This record refutes any suggestion that the parties agreed that there would be no restitution fine. Defendant's claim that the court "significantly exceeded that which the parties agreed upon" has no merit.
Defendant next claims he "would not have accepted a 25-years-to-life term consecutive to a 25-years-to-life term he is currently serving (which amounts to a prison death sentence) in addition to restitution." This contention challenges the validity of the plea and cannot be raised without a certificate of probable cause. (People v. Mendez (1999) 19 Cal.4th 1084, 1098-1099; People v. Panizzon (1996) 13 Cal.4th 68, 74-75.)
Defendant further claims that, had he received notice of a mandatory restitution fine, he could have met his burden of demonstrating his inability to pay. In particular, he claims he could have proven that, following and based upon his plea in this case (entered on the date of sentencing), prison officials assigned him to an area of the prison where he will be unable to perform work. However, actions the prison officials later took in response to the plea could not have been presented to the court at the sentencing hearing that was held immediately after the plea was entered.
In any event, in response to the trial court's initial imposition of the $2,500 restitution fines, defense counsel told the court that defendant was "making almost nothing" in income. No other evidence contradicted defense counsel by suggesting that defendant was earning more than "almost nothing." It is not reasonably probable that defendant could have obtained a lesser restitution fine had his counsel suggested to the court of prison officials' subsequent response to defendant's plea. (People v. Watson (1956) 46 Cal.2d 818, 836.)
Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.
The judgment is affirmed.
We concur: HULL , J. HOCH , J.