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The People v. Ingo Middlebrook

January 11, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
INGO MIDDLEBROOK, DEFENDANT AND APPELLANT.



(Super. Ct. No. CM033989)

The opinion of the court was delivered by: Mauro , J.

P. v. Middlebrook

CA3

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

BACKGROUND*fn1

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 ...


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