(Super. Ct. No. 11F06154)
The opinion of the court was delivered by: Nicholson , 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Michael Antonio Shepherd entered a negotiated plea of no contest to assault with a semiautomatic firearm (Pen. Code, § 245, subd. (b)),*fn1 and admitted using a semiautomatic firearm in the commission of the crime (§ 12022.5, subds. (a), (d)).
Defendant contends on appeal the trial court erred in imposing at sentencing a restitution fine of $1,000, after he "agreed" in connection with his plea to a restitution fine of only $200. He also contends the abstract of judgment must be amended to reflect the correct enhancement statute. The People concede that defendant is entitled to the relief he seeks.
At the brief change of plea hearing, the prosecutor said little, other than to confirm defense counsel's outline of the disposition; state the factual basis for the plea, a small matter: while a passenger in the backseat of a car, defendant pointed a gun out the rear passenger window and fired several shots at his 15-year-old, pedestrian victim, who was grazed in the leg by a bullet fragment causing three puncture wounds; "join" defense counsel and defendant in the plea; and ask when sentencing would occur.
There is no written plea agreement in the record on appeal, and the minute order of defendant's plea hearing is silent on the matter of restitution fines. However, in response to the court's prompting at the change of plea hearing, defendant acknowledged, in connection with the plea, the court would "order [him to] make restitution for any injuries and also pay various fines and fees, including [a] mandatory restitution fine of $200." The trial court also advised defendant that a different judge would sentence him and if he were ultimately not sentenced in accordance with the plea, he could withdraw his plea.
Apparently ignorant of the plea "agreement," the probation department, in its presentence probation report, recommended imposition of a $2,000 restitution fine, pursuant to section 1202.4, and the imposition of a second restitution fine in the same amount, pursuant to section 1202.45, to be suspended unless defendant's parole is revoked.
At the sentencing hearing before a second judge, the prosecutor made no comment, while defense counsel asked the trial court to "consider reducing" the restitution fine amounts recommended by the probation department to "under a thousand dollars." The trial court reserved imposition of victim restitution and imposed a restitution fine and suspended parole restitution fine in the amount of $1,000, each.
Defendant contends on appeal the imposition of $1,000 restitution fines violated his plea agreement. The People, finally, dispute that the $200 restitution fine was a part of the parties' plea agreement, but agree, by virtue of the colloquy at the change of plea ...