P. v. Gutierrez

Filed 12/1/06 P. v. Gutierez CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified
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or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
OSCAR GUTIEREZ,
Defendant and Appellant.
H029793
(Santa Clara County
Super. Ct. Nos. CC466381, CC471404)
Defendant Oscar Gutierez was sentenced to prison following a no contest plea to
various criminal charges, including grand theft. As part of his sentence, the court ordered
defendant to pay a restitution fund fine of $1,200. Defendant challenges the court’s
imposition of that fine on appeal, asserting that it was not part of his plea bargain. For
reasons explained below, we reject defendant’s challenge and we affirm the judgment.
BACKGROUND
Because the sole issue in this appeal concerns sentencing, our recitation of the
facts will be brief. Two criminal cases were filed against defendant in Santa Clara
County Superior Court. The charges in those cases arose out of two separate incidents
that took place in September 2004 and November 2004 respectively. The facts
summarized below are drawn from transcripts of the preliminary examinations in the two
cases.

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Case Number CC466381
Facts: On September 9, 2004, defendant approached the 14-year-old victim, Jorge
Ruiz, who was pushing his small motorcycle on the street. Defendant told to give him
the motorcycle or he would beat him up. Defendant then grabbed the motorcycle, pulled
the victim’s hands away, and left with the vehicle.
Charges: In May 2005, defendant was charged by information with a single count
of carjacking. (Pen. Code, § 215; further unspecified statutory references are to the Penal
Code.) As a sentence enhancement, the information specially alleged that defendant had
served a prior prison term. (§ 667.5, subd. (b).) In November 2005, at the time of
defendant’s plea, the carjacking charge was effectively reduced to the lesser charge of
grand theft. (§§ 484, 487.)
Case Number CC471404
Facts: On November 1, 2004, defendant attacked victim Robert Johnson with a
metal pole. When a San Jose police officer approached, defendant ran away. The officer
gave chase. When caught, defendant took a combative stance, at which point the officer
used his baton to subdue defendant. Defendant was under the influence of drugs at the
time, and he gave false identifying information to the officer.
Charges: In May 2005, defendant was charged by information with the following
six offenses: [1] assault with a deadly weapon (§ 245, subd. (a)(1)); [2] being under the
influence of methamphetamine (Health & Saf. Code, § 11550, subd. (a)); [3] resisting,
delaying, and obstructing a police officer, in violation of section 148, subd. (a)(1); [4]
giving a false name to a police officer (§ 148.9); [5] possession of a billy club (§ 12020,
subd. (a)(1)); and [6] attempted second degree robbery (§§ 664; 211; 212.5, subd. (c).)
Once again, as a sentence enhancement, the information alleged that defendant had
served a prior prison term. (§ 667.5, subd. (b).) In addition, as to count 1, the information
alleged defendant’s personal use of a deadly weapon. (§§ 667, 1192.7.)

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Change of Plea
On November 8, 2005, defendant entered a plea of no contest to charges in both
cases. In case number CC466381, he pleaded no contest to a single count of grand theft.
In case number CC471404, he entered a plea of no contest to counts 1, 3, 5, and 6. In
each case, defendant admitted the special allegations. In exchange for defendant’s plea,
the prosecution agreed to strike the remaining counts against him. The agreed term of
incarceration was “six years in State Prison, no more no less.”
Before the court accepted defendant’s plea, it sought and obtained his
acknowledgement that he would be required to pay victim restitution and restitution
fines. The court told defendant: “You would also be required to pay a general fund and a
victim restitution fund fine, not less than 200 [nor] more [than] $10,000. And you would
be required to pay actual restitution to the victims in this matter. [¶] Do you understand
that?” Defendant asked: “For what?” The court responded: “For any financial losses.
[¶] Do you understand that?” Defendant responded in the affirmative.
After accepting defendant’s plea, the court set the matter for sentencing.
Sentencing
On December 15, 2005, the court imposed the agreed prison sentence of six years.
The court also ordered defendant to pay a restitution fund fine in each of the two cases:
$1,200 in case CC466381, and $2,400 in case CC471404. (§ 1202.4.) In addition, the
court imposed but suspended equivalent parole revocation fines. (§ 1202.45.)
Defendant’s Appeal
In January 2006, defendant brought this timely appeal.
ISSUE
Defendant’s sole contention on appeal is that imposition of the $1,200 restitution
fund fine in case CC466381 violated his plea bargain. He asks us to reduce that fine to

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$200, the statutory minimum, under the authority of People v. Walker (1991) 54 Cal.3d
1013 (Walker). The People defend the fine.
DISCUSSION
As defendant acknowledges, this court has rejected arguments identical to those
that he presents here. We have done so in at least three recent published cases: People v.
Dickerson (2004) 122 Cal.App.4th 1374; People v. Knox (2004) 123 Cal.App.4th 1453
[majority opinion]; and People v. Sorenson (2005) 125 Cal.App.4th 612. Defendant
nevertheless maintains that those three decisions conflict with Walker and were wrongly
decided. Defendant thus urges us to abandon the reasoning of Dickerson, Knox, and
Sorenson and to instead adopt the views expressed by Justice Mihara in his dissent in
Knox.
As the parties recognize, this issue is presently pending in the California Supreme
Court, in People v. Crandell (review granted August 24, 2005, S134883).
The claim is preserved for appeal.
In this case, the trial court failed to advise defendant of the circumstances under
which he would be permitted to withdraw his plea, as required by section 1192.5.1
“Absent a section 1192.5 admonition, we cannot assume the defendant knew he had a
right to withdraw his plea.” (Walker, supra, 54 Cal.3d at p. 1026.) For that reason, when
the statutory admonition is not given, the defendant’s plea bargain claim is preserved for
appellate review. (See id. at pp. 1024-1025.)
1 Section 1192.5 provides in pertinent part: “If the court approves of the plea, it
shall inform the defendant prior to the making of the plea that (1) its approval is not
binding, (2) it may, at the time set for the hearing on the application for probation or
pronouncement of judgment, withdraw its approval in the light of further consideration of
the matter, and (3) in that case, the defendant shall be permitted to withdraw his or her
plea if he or she desires to do so.” (§ 1192.5.)

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The fine does not violate the plea agreement.
We extensively reviewed the principles that govern plea bargains and restitution
fines in Dickerson, Knox, and Sorenson. We need not repeat that discussion here. We
simply reiterate this key conclusion: in determining whether a restitution fine is
encompassed by the plea bargain, “the critical consideration is whether the challenged
fine was within the ‘defendant’s contemplation and knowledge’ when he entered his
plea.” (People v. Knox, supra, 123 Cal.App.4th at p. 1460, quoting People v. Panizzon
(1996) 13 Cal.4th 68, 86.)
As we explained in Knox, plea agreements have “contractual qualities.” (People v.
Knox, supra, 123 Cal.App.4th at p. 1459; see also, e.g., People v. Shelton (2006) 37
Cal.4th 759, 767 [“plea agreement is a form of contract”].) Plea agreements also have “a
constitutional dimension.” (People v. Knox, at p. 1459.) “A criminal defendant’s
constitutional due process right is implicated by the failure to implement a plea bargain
according to its terms.” (Ibid.) The question presented in this case concerns the
contractual aspect of plea agreements: at issue here “is whether specific terms or
consequences became part of the plea bargain.” (Ibid.)
In this case, we conclude, the restitution fund fine did become part of defendant’s
plea agreement. Various aspects of the agreement were reflected in the colloquy that
preceded defendant’s plea. As relevant here, the restitution fund fine was among them.
Defendant entered his plea only after acknowledging that he was subject to a statutory
restitution fund fine of up to $10,000. As in Knox, “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.” (People v. Knox, supra, 123 Cal.App.4th at p. 1461.)
Nor are we persuaded to a different conclusion by the court’s later determination
of the amount of the fine. As stated in Knox: “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.

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To the contrary, it represents defendant’s implicit recognition that the amount of the fine
will be left to the sentencing court’s discretion.” (People v. Knox, supra, 123
Cal.App.4th at p. 1461, fn. omitted. See People v. Dickerson, supra, 122 Cal.App.4th at
p. 1385.)
As fully explained in this court’s recent cases, our conclusion does no violence to
Walker. (See People v. Sorenson, supra, 125 Cal.App.4th at pp. 618-619; People v.
Knox, supra, 123 Cal.App.4th at pp. 1461-1462; People v. Dickerson, supra, 122
Cal.App.4th at pp. 1384-1385.) We therefore reject defendant’s arguments to the
contrary.
DISPOSITION
The judgment is affirmed.

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___________________________________________
McAdams, J.
I CONCUR:
________________________________
Bamattre-Manoukian, Acting P.J.
People v. Gutierez
H029793

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MIHARA, J., dissenting.
Since I believe that the imposition of a $1200 restitution fund fine in
this case was a violation of the plea bargain, I dissent for the same reasons I
dissented in People v. Knox (2004) 123 Cal.App.4th 1453. (Knox at pp. 1463-
1465, Mihara, J., dissenting.) I would modify the judgment to reduce the
restitution fund fine to $200.
___________________________
Mihara, J.
People v. Oscar Gutierez
H029793

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