Ct.App. 5 Crim. F056729 Tulare County Super. Ct. No. VCF189886A
The opinion of the court was delivered by: Kennard, J.
We granted review to address whether imposition of a mandatory restitution fine violates a defendant's plea agreement where the parties fail to make the fine an express term of the agreement and where the trial court fails to mention the fine during the plea colloquy. We explained in People v. Crandell (2007) 40 Cal.4th 1301 (Crandell), 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.' " (Id. at p. 1309, quoting the Court of Appeal.) Because the amount of defendant's restitution fine was neither made a part of his plea agreement nor otherwise specified in the plea colloquy, we conclude that it was left to the trial court's discretion. The Court of Appeal reached the same conclusion. Accordingly, we affirm its judgment.
Defendant was charged with attempted premeditated murder, assault with a deadly weapon, and second degree robbery, with each count including enhancements. Defendant pleaded no contest to attempted murder with a street-gang enhancement and to second degree robbery in exchange for a 17-year prison term and dismissal of the other allegations.
During the plea colloquy, the prosecutor informed the trial court of the agreement and then said, " 'there are obviously the advisements. This is going to be a plea regarding gang registration and restitution, [a] strike and the deportation consequences pursuant to [Penal Code, section] 186.30.' The court responded, 'Those will definitely be all incorporated.' The court asked whether [defendant] understood the maximum prison sentence to be 15 years to life. [Defendant] said he understood. The court . . . asked whether [defendant] agreed to a [prison] term of 17 years. [Defendant] said he [did]. The court advised [defendant] of other consequences of his plea, including possible immigration consequences and the possibility that the plea would establish a parole or probation violation. [Defendant] said he understood."
The court then asked defendant if he "under[stood] that as a result of your plea, you may be required to pay restitution." Defendant said, "Yes, ma'am." The court further inquired, "Other than what I have told you regarding the consequences of your plea, has anyone threatened you or promised you anything today to enter into this plea." Defendant responded, "No." The court said nothing regarding restitution fines and gave no further advisements. Defendant did not object at any time during the plea colloquy.
At sentencing, the court imposed a prison term of 17 years. In addition, based upon a recommendation of the probation department, the court imposed a $4,000 restitution fine pursuant to Penal Code section 1202.4, subdivision (b), and a $4,000 parole revocation fine pursuant to Penal Code section 1202.45, with the latter suspended. The court also ordered victim restitution to remain open pending any future medical or counseling expenses. Defendant did not make any objections. On appeal, defendant argued that because the trial court erred in failing to advise him of the restitution fine and parole revocation fine, imposition of each $4,000 fine violated his plea agreement. Relying on People v. Walker (1991) 54 Cal.3d 1013 (Walker), defendant asked the Court of Appeal to reduce both fines to the then applicable statutory minimum of $200. The Court of Appeal agreed that the trial court erred in failing to advise defendant of the fines, but it held that imposition of the fines did not violate the plea agreement. Observing that both fines are statutorily mandated, the Court of Appeal explained that the parties' and trial court's silence with respect to the amount of the fines in the plea agreement and during the plea colloquy left resolution of that issue to the trial court's discretion. In affirming the judgment, the Court of Appeal relied on our decision in Crandell, supra, 40 Cal.4th 1301, and sought to distinguish the instant case from Walker.
Penal Code section 1202.4, subdivisions (a) and (f) require every person convicted of a crime to pay restitution directly to the victim in an amount equal to the economic loss suffered by the victim as a result of the defendant's conduct. (Further undesignated statutory references are to the Penal Code.) Separate and apart from restitution, section 1202.4, subdivision (b) requires every person convicted of a crime to pay a restitution fine: "In 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." A restitution fine is not paid by the defendant directly to the victim. Instead, it "shall be deposited in the Restitution Fund in the State Treasury" (§ 1202.4, subd. (e)), from which crime victims may obtain compensation through an application process (see Gov. Code, §§ 13950-13960).
If a person is convicted of a felony, as defendant was here, under the present version of the statute "[t]he restitution fine shall be set at the discretion of the court and commensurate with the seriousness of the offense, but shall not be less than two hundred forty dollars ($240) . . . and not more than ten thousand dollars ($10,000)." (§ 1202.4, subd. (b)(1), as amended by Stats. 2011, ch. 358, § 1; see id., subds. (b)(2), (d) [listing various factors a court may consider in setting the fine amount].)
In addition, section 1202.45 requires every person who "is convicted of a crime and whose sentence includes a period of parole" to pay "an additional parole revocation restitution fine in the same amount as" the restitution fine under section 1202.4, subdivision (b). (§ 1202.45.) The parole revocation fine is also paid into the state Restitution Fund, and the fine "shall be suspended unless the person's parole is revoked." (Ibid.)
Against this statutory backdrop, our cases have made clear that "defendants are free to negotiate the amount of restitution fines as part of their plea bargains." (People v. Soria (2010) 48 Cal.4th 58, 65, fn. 6 (Soria); see In re McClellan (1993) 6 Cal.4th 367, 380 (McClellan).) The parties to a criminal proceeding may choose to agree on a specific amount between the statutory minimum and maximum, or they may leave it up to the sentencing court's discretion. (See Crandell, supra, 40 Cal.4th at p. 1309.) In this case, the plea agreement did not mention the imposition of a restitution fine or parole revocation fine, and the trial court did not advise defendant of either fine during the plea colloquy. Under these circumstances, may such a fine be imposed, and if so, in what amount?
At the outset, it is important to distinguish "two related but distinct legal principles" implicated here. (Walker, supra, 54 Cal.3d at p. 1020.) First, "before taking a guilty plea the trial court must admonish the defendant of both the constitutional rights that are being waived and the direct consequences of the plea." (Id. at p. 1022.) "A possible $10,000 restitution fine constitutes such a direct consequence" (ibid.), and the trial court in this case should have advised defendant accordingly. However, we have held that because "advisement as to the consequences of a plea is not constitutionally mandated," "the error is waived absent a timely objection." (Id. at pp. 1022, 1023.) In this case, defendant failed to object to the restitution fine at or before sentencing; thus, the advisement error does not entitle defendant to a remedy.
The second principle is the constitutional due process requirement that "both parties, including the state, must abide by the terms of [a plea] agreement" and "[t]he punishment may not significantly exceed that which the parties agreed upon." (Walker, supra, 54 Cal.3d at p. 1024; see ibid. [a restitution fine "qualifies as punishment for this purpose"].) A defendant forfeits a claim that his punishment exceeds the terms of a plea bargain when the trial court gives a section 1192.5 admonition and the defendant does not withdraw his plea at sentencing. (Walker, supra, 54 Cal.3d at pp. 1024-1025; see § 1192.5 [requiring trial court, upon approving a plea, to inform defendant that its approval is not binding and that defendant may withdraw the plea if the court withdraws its approval before sentencing].) Here, the trial court did not give a section 1192.5 admonition, so defendant's failure to object at sentencing does not waive his claim on appeal. This claim -- that imposition of the two $4,000 fines violated the terms of his plea bargain -- is the basis of defendant's argument for relief.
In support of his claim, Defendant relies exclusively on our holding in Walker, supra, 54 Cal.3d 1013. In that case, the defendant pleaded guilty to one felony count in exchange for dismissal of another charge and a five-year prison term with credit for time served. (Id. at pp. 1018-1019.) In taking the plea, the trial 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 [penal] fine of up to $10,000,' followed by a period of parole." (Id. at p. 1019; see § 672 [if no fine is otherwise prescribed, the court may impose a penal fine of up to $10,000 for a felony conviction].) At sentencing, the court imposed the agreed-upon prison term as well as a $5,000 restitution fine. (Walker, supra, 54 Cal.3d at p. 1019.) "The probation report prepared before the plea, and supplied to the defense, recommended a $7,000 restitution fine; the record discloses no other mention of the possibility of such a fine prior to sentencing. Defendant did not object to the fine at sentencing." (Ibid.)
On appeal, the defendant claimed that the fine exceeded the terms of the plea bargain. We agreed, observing that "the $5,000 restitution fine was a significant deviation from the negotiated terms of the plea bargain." (Walker, supra, 54 Cal.3d at p. 1029.) After concluding that Walker's plea agreement was violated, we considered the appropriate remedy. We said that "striking the fine is not appropriate because the fine is mandatory," yet "allowing the defendant to withdraw his plea for want of a restitution fine will often be undesirable." (Id. at p. 1027.) The proper remedy, we concluded, is "to reduce the fine to the statutory minimum," an amount that "[i]n the context of felony pleas, . . . is not, as a matter of law, 'significant.' " (Ibid.) This solution "achieve[s] substantial compliance with the terms of the plea bargain without violating the statutory requirement of a restitution fine." (Id. at p. 1028.)
Although Walker held that the defendant's plea agreement was violated, the court's opinion provided no explanation for its finding that the plea agreement contemplated no significant restitution fine. In stating that "the $5,000 restitution fine was a significant deviation from the negotiated terms of the plea bargain" (Walker, supra, 54 Cal.3d at p. 1029), the court did not point to any facts indicating that the parties actually negotiated the exclusion of a substantial fine. In later cases, we have said that the defendant in Walker " 'reasonably could have understood the negotiated plea agreement to signify that no substantial fine would be imposed.' " (Crandell, supra, 40 Cal.4th at p. 1310, quoting In re Moser (1993) 6 Cal.4th 342, 356 (Moser).) But those cases also do not explain what facts supported Walker's reasonable belief that no substantial fine would be imposed. This gap in Walker's reasoning leads ...