(Super. Ct. No. 09F05664)
The opinion of the court was delivered by: Raye , P. J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Following the death of her three-year-old daughter, defendant Sabrina Alberta Banks was charged with murder, child homicide, and felony child abuse. (Pen. Code, §§ 187, subd. (a), 273ab, 273, subd. (a).)*fn1 Defendant entered into a negotiated plea of no contest to second degree murder in exchange for dismissal of the remaining counts. The court sentenced defendant to 15 years to life and imposed various fines, including two $10,000 parole restitution fines. On appeal, defendant challenges the appropriateness of these fines. We agree and shall reduce the restitution fines to the statutory minimum.
FACTUAL AND PROCEDURAL BACKGROUND
In May 2008 emergency workers were dispatched to defendant's home. Defendant told police her three-year-old daughter had medical problems and had vomited on herself. She picked up her daughter and found her cold and stiff. Defendant dislodged some food from her daughter's throat and contacted emergency personnel. However, it was subsequently determined defendant waited eight hours before summoning help. Efforts to revive the child proved unsuccessful. Interviews with defendant and her other children were inconsistent. Defendant had a history of child protective services referrals between 1998 and 2003.
An autopsy revealed defendant's daughter had numerous blunt force injuries on her head, mouth, neck, torso, and extremities. There were no obstructions in her throat and she did not appear to have the medical issues defendant had claimed. The autopsy found the cause of death "probable asphyxia by smothering and multiple blunt force injuries" and ruled it a homicide.
An information charged defendant with murder, child homicide, and felony child abuse. As to the latter count, the information alleged defendant caused willful harm or injury resulting in death to a child within the meaning of section 12022.95.
Defendant entered into a negotiated disposition. She entered a plea of no contest to the murder charge as second degree murder in exchange for a dismissal of the remaining counts. At the hearing, the prosecution and defense agreed defendant would enter a plea as to second degree murder, and the remaining counts would be dismissed with a Harvey waiver.*fn2 No other details of the plea were discussed.
The court explained to defendant the consequences of her plea. When asked by the court whether she understood that the sentence she faced was 15 years to life, defendant responded, "Yes." The court continued to explain the other consequences of the plea and asked if she understood that the court "can consider the dismissed charges in deciding your sentence including the issue of restitution." Again, defendant responded, "Yes." The court also affirmed that defendant had not been promised anything that was not discussed "right out here in open court."
A month later, defendant filed a motion to withdraw her plea on the basis of her discovery that two witnesses would testify she did not inflict the injuries leading to her daughter's death. The motion was unsupported by any affidavits or declarations. The court denied the motion based on a lack of evidentiary support.
The court sentenced defendant to 15 years to life and imposed various fines, including two $10,000 parole restitution fines.*fn3 Defendant did not object to the court's ...