IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
October 5, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
SABRINA ALBERTA BANKS, DEFENDANT AND APPELLANT.
(Super. Ct. No. 09F05664)
The opinion of the court was delivered by: Raye , P. J.
P. v. Banks
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
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 sentence. Defendant filed a timely notice of appeal.
Defendant contends that under People v. Walker (1991) 54 Cal.3d 1013 (Walker), the court failed to warn her of the maximum consequences of her plea under section 1192.5, and violated the terms of her plea by imposing two maximum $10,000 fines. According to defendant, these errors require the reduction of the fines to the statutory minimum of $200 under section 1202.4, subdivision (b)(1).
Section 1202.4, subdivision (b) provides that "[i]n every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so, and states those reasons on the record." In the case of a felony conviction, the "restitution fine shall be set at the discretion of the court" and must be no less than $200 and no more than $10,000. (§ 1202.4, subd. (b)(1).) Express findings as to the amount of the fine are not required. (§ 1202.4, subd. (d).) Section 1202.45 requires a parole revocation fine in the same amount as the restitution fine "in every case where a person is convicted of a crime and whose sentence includes a period of parole."
Defendant claims the court in the present case committed error as outlined by the Supreme Court in Walker. In Walker, the defendant pleaded guilty under a negotiated plea bargain. In exchange for the defendant's plea, the prosecution and the defendant agreed that one count would be dismissed and the court would impose the midterm sentence on the remaining count. The defendant signed a change of plea form and initialed his understanding of the agreement. (Walker, supra, 54 Cal.3d at pp. 1018-1019.)
The court advised the defendant that "'the maximum penalties provided by law for this offense are either 3 years, 5 years, or 7 years in state prison and a fine of up to $10,000,' followed by a period of parole." (Walker, supra, 54 Cal.3d at p. 1019.) The probation report prepared prior to the plea recommended a restitution fine of $7,000, but the record disclosed no other mention of the possibility of such a fine prior to sentencing. (Ibid.) The court sentenced the defendant to the agreed-upon midterm sentence and imposed a restitution fine of $5,000, even though the plea agreement did not mention such a fine. The defendant did not object but, on appeal, argued the fine should be stricken. (Ibid.)
The Supreme Court considered the propriety of the fine based on two related but distinct legal principles relating to guilty pleas. The first is the judicially declared rule of criminal procedure that requires the trial court to advise the defendant of both the constitutional rights being waived and the direct consequences of the plea. (Walker, supra, 54 Cal.3d at pp. 1020-1022.) The court found: "Thus, before taking any guilty plea a trial court should advise the defendant of the minimum [$200] and maximum $10,000 restitution fine." (Id. at p. 1022.) The court continued, "when the only error is a failure to advise of the consequences of the plea, the error is waived if not raised at or before sentencing." (Id. at p. 1023.)
The second principle considered by the court in Walker requires that parties adhere to the terms of the plea bargain. Under this principle, when a guilty plea is entered in exchange for specific benefits, both sides must abide by the agreement and the punishment may not significantly exceed that which the parties agreed upon. (Walker, supra, 54 Cal.3d at p. 1024.)
After considering both basic principles, the court held the $5,000 restitution fine was a significant deviation from the negotiated terms of the plea bargain. The court ordered the fine reduced to the statutory minimum. (Walker, supra, 54 Cal.3d at pp. 1029-1030.)
Subsequently, the Supreme Court further expounded on the analysis of Walker in In re Moser (1993) 6 Cal.4th 342 (Moser). In Moser, the trial court erred in advising the defendant that his parole period was 36 to 48 months, when the statute mandated lifetime parole. The defendant, relying on Walker, challenged the imposition of the lifetime parole. The court rejected the defendant's argument. (Moser, at pp. 347, 351-356.)
The Supreme Court determined the imposition of the statutorily mandated terms of parole did not violate the parties' plea agreement since it appeared from the record that the subject of parole was not part of the plea negotiations. (Moser, supra, 6 Cal.4th at p. 357.) The Moser court distinguished its holding in Walker: "In concluding that the imposition of such a substantial fine constituted a violation of the plea agreement in Walker, we implicitly found that the defendant . . . reasonably could have understood the negotiated plea agreement to signify that no substantial fine would be imposed. Moreover, in reaching this conclusion, we reasoned that, because the amount of an appropriate restitution fine imposed upon a defendant could vary significantly depending upon the specific facts of a given case, 'the restitution fine should generally be considered in plea negotiations.'" (Moser, at pp. 356-357.)
The Supreme Court in People v. McClellan (1993) 6 Cal.4th 367 found the trial court's failure to advise the defendant that his guilty plea would require him, by statute, to register as a sex offender did not violate the terms of his plea bargain. The court found Walker did not compel a different result since the statutorily mandated consequence of a guilty plea, even if not embodied specifically within the negotiated plea, "does not signify that imposition of such a consequence constitutes a violation of the agreement." (McClellan, at pp. 380-381.)
More recently, the Supreme Court again considered restitution fines as part of a plea bargain. In People v. Crandall (2007) 40 Cal.4th 1301 (Crandall), the defendant entered into a plea bargain. The trial court asked if the defendant understood that the maximum time he could be sentenced to was 16 years and that the prosecution had offered a 13-year sentence. The court also cautioned the defendant that he would have to pay a restitution fine of a minimum of $200 and a maximum of $10,000. The defendant stated he understood and also affirmed that no other promises had been made. (Id. at p. 1305.) The court sentenced defendant to 13 years in prison and imposed a $2,600 restitution fine and a $2,600 parole revocation fine. The defendant did not object. (Id. at p. 1306.)
The defendant appealed, citing Walker, and requested the fine be reduced to the statutory minimum. (Crandall, supra, 40 Cal.4th at p. 1308.) The Supreme Court distinguished Walker, finding the court in Crandall advised the defendant he would have to pay a restitution fine of between $200 and $10,000 and ascertained the prosecution had made no other promises other than the 13-year sentence. (Id. at pp. 1309-1310.) Therefore, unlike the defendant in Walker, the defendant in Crandall could not reasonably understand that the plea bargain he agreed to foreclosed the possibility of a substantial restitution fine. (Crandall, at p. 1310.)
In the present case, defendant argues Walker, not Crandall, applies to the facts before us. We agree.
The People contend the restitution fine did not violate the terms of defendant's plea agreement because the amount of the fine was left to the discretion of the trial court. In support, the People cite the Supreme Court's reasoning in Crandall: "[T]he parties to a criminal prosecution are free, within such parameters as the Legislature may establish, to reach any agreement concerning the amount of restitution (whether by specifying the amount or by leaving it to the sentencing court's discretion) they find mutually agreeable. As the Court of Appeal majority below correctly observed, 'Moser and McClellan teach that the core question in every 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.'" (Crandall, supra, 40 Cal.4th at p. 1309.)
The People contend the amount of the restitution fine was left to the discretion of the trial court and therefore does not run afoul of Walker. Instead, the People contend the situation mirrors that of People v. Dickerson (2004) 122 Cal.App.4th 1374 (Dickerson). In Dickerson, the defendant argued the restitution fine violated his plea bargain because the trial court was silent on the matter of a restitution fine when reciting the plea agreement. (Id. at p. 1385.) The appellate court rejected this argument, noting the silence simply showed that the parties had not agreed on the imposition or amount of the fine. In addition, the court reasoned "[t]his omission does not imply that there was an agreement on no fine or a minimum fine. Instead, this omission is among the circumstances suggesting to us that the parties in this case expressly or implicitly agreed to leave the imposition and amount of restitution fines to the court's discretion." (Ibid.)
However, as defendant astutely points out, the defendant in Dickerson, prior to sentencing, was advised by the trial court that "'[i]f you owe any restitution, I'll order that you pay it. I could impose fines up to $50,000. I must impose a restitution fine of between $200 and $10,000.' Defendant acknowledged each of these statements by the court. After these admonitions, defendant entered no contest pleas to the charges and admitted the allegations." (Dickerson, supra, 122 Cal.App.4th at p. 1378, internal quotations omitted.) In finding the restitution fine did not violate the plea bargain under Walker, the court referenced the defendant's acknowledgment that the court "must impose" a restitution fine of between $200 and $10,000, noting that "[i]f the minimum fine was a term of his plea bargain, presumably defendant or his attorney would have questioned this judicial advice." (Id. at p. 1385.)
No such advisement took place in the present case. The only mention of restitution by the court was that "the Court can consider the dismissed charges in deciding your sentence including the issue of restitution." In Crandall, the court informed the defendant he would "'have to pay a restitution fund fine of a minimum of $200, a maximum of $10,000.'" (Crandall, supra, 40 Cal.4th at p. 1309.) Here, the court never mentioned restitution fines or delineated any possible amount that could be imposed. This absolute dearth of information runs afoul of Walker and does not support the People's contention that the record reflects the restitution fines were "not a bargained-for part of [defendant's] plea agreement, but were instead left to the discretion of the court." Therefore, defendant's restitution fines should be reduced to the statutory minimum.
The judgment of the trial court is reversed and remanded with directions to modify the judgment by reducing the two $10,000 restitution fines to $200 each. In all other respects, the judgment is affirmed.
We concur: HULL , J. HOCH , J.