The PEOPLE, Plaintiff and Respondent,
v.
Melvin Lewis KNOX, Defendant and Appellant.
Court of Appeal, Sixth District.
*878 Lоri A. Quick, under appointment by the Court of Appeal, for Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Martin S. Kaye, Supervising Deputy Attorney General, for Respondent.
McADAMS, J.
Defendant Melvin Knox was sentenced to prison following a no contest plea. As part of defendant's sentence, the court ordered him to pay fines, inсluding a restitution fund fine of $1,200. Defendant challenges the court's imposition of that fine on appeal. He asserts that the fine was not part of his plea bargain, and he asks us to reduce the fine to the statutory minimum.
We reject defendant's contentions and we affirm the judgment. As we explain, there is no violation of the plea bargain where, as here, the court properly advises the defendant of the restitution fine prior to accepting his plea.
BACKGROUND
In May 2002, following his arrest by a Gilroy police officer, defendant was charged in a felony complaint with one count of possessing cocaine base for sale. (Health & Saf.Code, § 11351.5.) As sentence enhancements, the complaint also alleged prior drug convictions and prior prison terms. In September 2002, after the preliminary examination in this matter, a felony information was filed against defendant. Like the complaint, the information alleged the single drug violation count plus prior drug convictions and prison terms.
Change of Plea
In February 2003, defendant entered a plea of no contest to the felony drug count; he also admitted all of the enhancement allegations. In exchange for defendant's plea, the prosecution agreed to a prison sеntence of no more than seven years and no less than five, against a maximum term of 19 years.
At the hearing on defendant's change of plea, the court first recited the parties' agreement concerning the prison sentence. The court then obtained defendant's acknowledgement that he was entering the plea freely and voluntarily. The court next advised defendant of his constitutional rights and оbtained a waiver of those rights. The court then advised defendant of the various consequences of his plea, including immigration, penal, and financial consequences. Significantly, however, the court did not advise defendant of the circumstances under which he would be permitted *879 to withdraw his plea. (See Pen. Code, § 1192.5.[1])
On the subject of financial consequences, the court mentioned victim restitution then said: "In addition, there's a restitution fund fine. It cаn be no less than $200, and it might be as much as $10,000. Do you know that?" The defendant answered: "Yes, Your Honor."
The defendant thereafter entered a plea of no contest to the single felony count alleged in the information, and he admitted the truth of the enhancement allegations. The court accepted defendant's plea and admissions, making an express finding that defendant's waiver of constitutional rights was voluntary and intelligent. The court also said: "I further find that you understand the consequences of your plea." After determining the necessary factual basis, the court obtained defense counsel's concurrence in her client's plea.
Sentencing
In April 2003, the court conducted the sentencing hearing. The court heard evidence and argument before imposing a prison term of six years, which it calculated by seleсting the midterm of four years on the single charged count, plus one year consecutive terms on each of the two prison enhancements. The court noted: "This is an agreed-upon sentence." The court then said: "I impose a $1200 restitution fine pursuant to the formula." (§ 1202.4.) The court also imposed an equivalent parole revocation fine, which it suspended. (§ 1202.45.)
Defendant's Appeal
In December 2003, defendant filed a noticе of appeal after this court granted his application for relief from default.
CONTENTIONS
Defendant contends that the trial court violated the plea agreement by imposing a restitution fund fine of $1,200. He asserts that the restitution fine was not an element of his plea bargain. He asks us to reduce the fine to $200, the statutory minimum, under the authority of People v. Walker (1991)
DISCUSSION
The sole question before us is whether the imposition of the restitution fine viоlated defendant's plea bargain. To establish the proper framework for our analysis of that issue, we first briefly review the principles that govern plea bargains. We next summarize the statute that mandates restitution fines. We then apply the relevant legal concepts to the case before us.
Plea Agreements
Negotiated plea agreements are "`an accepted and integral part of our criminal justice system.' [Citations.] Such agreements benefit the system by promoting speed, economy and finality of judgments. [Citation.]" (People v. Panizzon (1996)
*880 Traditionally, courts have viewed plea agreements "using the paradigm of contract law. [Citations.]" (People v. Nguyen (1993)
Employing the contract law paradigm, our state's high court has said: "When a guilty plea is entered in exchange for specified benefits such as the dismissal of other counts or an agreed maximum punishment, both parties, including the state, must abide by the terms of the agreement." (People v. Walker, supra,
In addition to their contractual qualities, plea agreements also have a constitutional dimension. A criminal defendant's constitutional due process right is implicated by the failure to implement a plea bargain according to its terms. (People v. Mancheno, supra,
In analyzing claims of plea bargain violations, courts distinguish between two facets of plea-taking: advisements and agreement. Each gives rise to a different inquiry, though the two aspects are sometimes confused. With respect to the first facet, the question is whether the court properly advised the defendant concerning plea consequences. With respect to the second facet, the question is whether specific terms or consequences became part of the plea bargain. Thus a defendant's "claim as to the asserted breach of the plea agreement is distinct from the question whether the trial court properly fulfilled its duty to advise him regarding the direct consequences of his plea." (In re Moser (1993)
In its seminal decision in People v. Walker, the California Supreme Court explained these "two related but distinct legal principles." (People v. Walker, supra,
Restitution Fund 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." (§ 1202.4, subd. (b).) For felony convictions, the fine ranges from a minimum of $200 to a maximum of $10,000. (Id., subd. (b)(1).) The amount of the restitution fine is subject to the trial court's discretion. (Ibid; People v. Lytle (1992)
A restitution fine "qualifies as punishment" for purposes of a plea. (People v. Walker, supra,
Analysis
With the foregoing principles in mind, we now cоnsider whether imposition of the restitution fine violated the plea bargain in this case. We conclude that it did not. As we explain, the critical consideration is whether the challenged fine was within the "defendant's contemplation and knowledge" when he entered his plea. (People v. Panizzon, supra,
Not surprisingly, the primary focus of the on-the-record plea discussions in this case was the length of defendant's prison sentence. As is typically the case, the amount of prison time was the crux of the bargain.
In addition to the prison term, however, other aspects of the plea also were discussed. The mandatory restitution fund fine was among them. That discussion took place prior to the entry of defendant's plea. In addition, we note, the court won defendant's acknowledgement that he understood each of the consеquences that were discussed, including the prison term and the restitution fine. The fine thus was within "defendant's contemplation and knowledge" when he entered *882 his plea. (People v. Panizzon, supra,
The fact that the precise amount of the fine was not specified prior to the entry of defendant's plea does not change the analysis. To the contrary, it represents defendant's implicit recognition that the amount of the fine will be left to the sentencing court's discretion.[2]
To summarize, we have analyzed defendant's understanding that his plea would result in a restitution fine, as disclosed by the pre-plea timing of the advisement and by defendant's acknowledgement that the fine would be imposed. (See People v. Nguyen, supra,
In reaching that conclusion, we do no violence to People v. Walker. Two years after that seminal case was decided, it was revisited and explained by our state's high court in two companion cases, Moser and McClellan. (In re Moser, supra,
Our analysis likewise does no violence to either McClellan or Moser. Both of those cases involved challenges to "a consummated plea agreement, based upon a trial court's error in advising the defendant of certain consequences of a plea of guilty." (People v. McClellan, supra,
Like Walker, McClellan involved the trial court's failure to advise the defendant of a direct consequence of his pleathere, lifetimе sex offender registration. (People v. McClellan, supra,
In contrast to Walker and McClellan, which both concerned a failure to advise, Moser involved an erroneous advisement. (In re Moser, supra,
Returning to the case at hand, in which the trial court made no errors in its advisements, we conclude that defendant's argument "rests on an erroneous, overbroad reading of Walker." (In re Moser, supra,
This is not a case where a judicial advisement concerning the restitution fine was omitted, as in Walker and McClellan. This is not a case where the advisement was in error, as in Moser. Rather, this is a case where a full and accurate advisement was both given by the court and acknowledged by the defendant prior to his plea, as in Panizzon. Because defendant understood that he would be subject to the restitution fund fine, the sentencing court did not violate the plea bargain in imposing it.
CONCLUSION
Prior to accepting defendant's negotiated plea, the court fully advised him of its consequences, including the mandatory restitution fine. Because the fine was within defendant's contemplation when he entered his plea, its imposition did not violate the plea agreement.
DISPOSITION
The judgment is affirmed.
I CONCUR: BAMATTRE-MANOUKIAN, Acting P.J.
MIHARA, J., dissenting.
I can find no meaningful basis for distinguishing the facts оf the case before us from the facts in People v. Walker (1991)
My colleagues conclude that Walker is distinguishable because here the trial court advised defendant regarding the restitution fund fine, and, in Walker, "the court never disclosed [the fine] to the defendant prior to his plea." Thus, in their view, a restitution fund fine may be imposed without violating the plea bargain so long as the trial court "advises the defendant of the restitution fine prior to accepting his plea." They conclude that a fine does not violate a plea bargain if it was "within `defendant's contemplation and knowledge' when he entered his plea."
As much as I would like to avoid the result required by Walker, I cannot accept this misreading of the facts in Walker. In Walker, the plea agreement was that, in exchange for defendant's guilty plea to one of two counts, the remaining count would be dismissed and defendant would be sentenced to state prison fоr five years with credit for time served. Defendant waived his constitutional rights, and the court "orally explained to 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." (People v. Walker,
It is simply erroneous to characterize Walker as a case in which the defendant was not advised prior to his plea that a substantial fine could be imposed. In Walker, as in the case before us, the defendant was advised prior to his plea that a fine of up to $10,000 could be imposed. In Walker, as in the case before us, the plea agreement did not mention a fine. In Walker, as in the case before us, the trial court imposed a fine consistent with the *885 advisement. Thus, in Walker, as in the case before us, it could be said, as my colleagues claim, that, due to the advisement, the imposition of a substantial fine was "within `defendant's contemplation and knowledge' when he entered his plea." The fact that Walker had been advised that a substantial fine could be imposed was not enough to persuade the California Supreme Court that the imposition of such a fine did not violate the plea bargain.
The similarities between the case before us and Walker are striking. And there is no significance to the fact that the fine in Walker was not explicitly identified as a restitution fund fine. Indeed my colleagues do not claim that there is. If all that was required was an advisement, there could never be a violation of the plea bargain unless there was also a failure to advise. Yеt Walker explicitly contemplated that a violation of the plea bargain could occur even if there was no failure to advise or misadvisement.
The cases cited by my colleagues in support of their analysis do not undermine the holding in Walker. Each of these cases found that there was no violation of the plea bargain because the parole period (In re Moser (1993)
Accordingly, under the compulsion of Walker (Auto Equity Sales, Inc. v. Superior Court (1962)
NOTES
Notes
[*] Werdegar, J., dissented.
[1] Further unspecified statutory references are to the Penal Code
[2] This conclusion is consistent with this court's recent decision in People v. Dickerson (2004)
