IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Butte)
January 11, 2012
THE PEOPLE, PLAINTIFF AND RESPONDENT,
INGO MIDDLEBROOK, DEFENDANT AND APPELLANT.
(Super. Ct. No. CM033989)
The opinion of the court was delivered by: Mauro , J.
P. v. Middlebrook
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Ingo Middlebrook pleaded guilty to transportation of a controlled substance (methamphetamine) and admitted a prior strike conviction. The trial court sentenced him to six years in prison and imposed, among other things, a $400 restitution fine, a $400 parole revocation restitution fine, and various other fines and fees totaling $180.
Defendant contends on appeal that imposition of the fines and fees violated his plea agreement because (1) he did not agree to pay a restitution fine or parole revocation restitution fine in an amount above the statutory minimum, and (2) he did not agree to pay the additional fines and fees totaling $180. We conclude, however, that because the plea agreement did not include a stipulated sentence and left the sentencing discretion to the trial court, imposition of the fines and fees did not violate the plea agreement. Moreover, because there was no violation of the plea agreement and defendant did not object to the fines and fees in the trial court, he cannot now complain of a failure to advise him of the consequences of his plea.
We will affirm the judgment.
Defendant was charged with transportation of a controlled substance (Health & Saf. Code, § 11379, subd. (a); count 1) and carrying a dirk and dagger (Pen. Code, § 12020, subd. (a)(4); count 2).*fn2 In addition, it was alleged as to both counts that defendant had a prior drug conviction (Health & Saf. Code, § 11370.2, subd. (c)) and a prior strike conviction for assault with a deadly weapon (§§ 245, subd. (a)(2), 1170.12, subds. (a)-(d), 667, subds. (b)-(i)). Defendant pleaded guilty to transportation of a controlled substance and admitted the prior strike in exchange for dismissal of the remaining count and allegation with a Harvey*fn3 waiver.
Before defendant entered his plea, defense counsel explained to the trial court that "this is an open plea" and "[t]here's no stipulated sentence in this case." The plea form advised defendant he could serve a maximum of eight years in state prison with a "$20,000 fine, plus full victim restitution and/or a restitution fine of a minimum of $200.00 or a maximum of $10,000." The plea form also advised defendant that there could be additional fines. Defendant agreed in the plea form that sentencing would be determined solely by the superior court judge. Defendant assured the trial court that he read and understood the plea form.
The trial court sentenced defendant to the middle term of six years. It also imposed, among other things, a $400 restitution fine (§ 1202.4), a $400 parole revocation restitution fine that was stayed pending parole (§ 1202.45), and other fines and fees totaling $180.
Defendant did not object to imposition of the fines and fees in the trial court. And the trial court did not advise defendant, pursuant to section 1192.5, that its approval of the plea was not binding, that it might withdraw its approval based on further consideration of the matter, and that if it withdrew its approval of the plea, defendant would be permitted to withdraw his plea. (§ 1192.5.)
Defendant contends that the trial court abused its discretion in imposing the $400 restitution fine and $400 parole revocation restitution fine because he did not agree to pay amounts above the statutory minimum, and hence those amounts constituted a sentence greater than that negotiated by the parties. Defendant also contends that the fines and fees totaling $180 violated his plea agreement because he did not agree to pay them. Defendant asserts that the restitution fine and parole revocation restitution fine must each be reduced to the statutory minimum of $200, and that the additional fines and fees totaling $180 must be stricken. He adds that although he did not object to the fines and fees in the trial court, the issue is not forfeited because the trial court did not advise him, pursuant to section 1192.5, that it might withdraw its approval of the plea agreement.
Defendant relies on People v. Walker (1991) 54 Cal.3d 1013 (Walker) to support his claim that the imposition of the $400 restitution fine and corresponding parole revocation fine was a violation of the plea agreement. But Walker does not assist him.
In Walker, the defendant entered into a plea agreement in which he pleaded guilty in exchange for dismissal of another count. The agreement provided that defendant would be sentenced to the middle term of five years with credit for time served. In sentencing the defendant, the trial court imposed a restitution fine even though such a fine had not been mentioned in the plea agreement. The California Supreme Court noted that although the trial court did not advise the defendant regarding the restitution fine, that error alone did not entitle the defendant to a remedy because he did not object to the fine in the trial court and he did not show prejudice. (Walker, supra, 54 Cal.3d at p. 1029.) But because the restitution fine was a "significant deviation" from the terms of the plea agreement, the Supreme Court concluded that the appropriate remedy was to reduce the mandatory restitution fine to the statutory minimum amount. (Walker, supra, 54 Cal.3d at pp. 1029-1030.)
By contrast, in this case defendant entered into an "open" plea agreement without a stipulated sentence. Defendant understood that the trial court would make the sentencing decisions. The trial court did not impose a sentence greater than that agreed to by the parties, because the parties explicitly and intentionally did not agree on a sentence. Moreover, because there was no agreement as to punishment, the trial court did not violate the agreement by imposing fines. (People v. DeFilippis (1992) 9 Cal.App.4th 1876, 1879.)
Nothing in Walker prohibits "defendants from striking whatever bargains appear to be in their best interests, including leaving the imposition of fines to the discretion of the sentencing court." (People v. Dickerson (2004) 122 Cal.App.4th 1374, 1384.) And absent a violation of the plea agreement, defendant cannot now complain of a failure to advise him of the consequences of the plea, because he failed to object to imposition of the fines in the trial court. (Walker, supra, 54 Cal.3d at pp. 1023, 1029; People v. DeFilippis, supra, 9 Cal.App.4th at pp. 1879-1880.)
The judgment is affirmed.
We concur: HULL , Acting P. J. HOCH , J.