P. v. Ulloa

Filed 2/21/07 P. v. Ulloa CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H030533
Plaintiff and Respondent, (Santa Clara County
Superior Court
v. No. CC513651)
HENRY ULLOA,
Defendant and Appellant.
_____________________________________/
The sole contention on appeal is that the trial court’s imposition of a $400
restitution fund fine was a violation of an alleged plea bargain. We conclude that there
was no plea bargain and the imposition of the fine did not violate the plea
“understanding.”
I. Background
Defendant was charged by information with alternative counts of felony driving
under the influence of alcohol and causing injury (Veh. Code, § 23153, subd. (a)) or
driving with a .08 blood alcohol level and causing injury (Veh. Code, § 23153, subd.
(b)) and misdemeanor driving with a suspended license (Veh. Code, § 14601.2, subd.
(a)). It was further alleged that defendant had personally inflicted great bodily injury

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(Pen. Code, §§ 1203, subd. (e)(3), 12022.7, subd. (a)) in the commission of the drunk
driving counts and that he had served a prison term for a prior felony conviction (Pen.
Code, § 667.5, subd. (b)).
At the commencement of the change of plea hearing, the court said “[i]t is my
understanding that there is a proposed disposition in this case.” “The People had made
an offer of two years, top and bottom, to the defendant. And after discussions, the
Court made a Court offer of two years top and 16 months bottom. And it is essentially
the People’s offer, essentially.” The court subsequently informed defendant that “[t]he
understanding is that you would be committed to state prison for the term of no more
than two years and no less than 16 months. And you would not be considered for
probation. And that’s the only promise being made to you. And there’s no promise as
to any certain amount of fines or fees imposed.”
Defendant thereafter pleaded no contest to the .08 count and the misdemeanor
driving with a suspended license count, and he admitted the great bodily injury
enhancement and the prison prior. The court dismissed the remaining count, imposed
the two-year midterm for the admitted felony count and a six-month jail term (which it
deemed served) for the misdemeanor count. It struck the punishment for the
enhancements. The court imposed a $400 restitution fund fine. Defendant filed a
timely notice of appeal.
II. Discussion
Defendant’s challenge to the $400 restitution fund fine fails for several reasons.
First, although there was a plea “understanding,” there was no plea bargain. Second,
the plea “understanding” explicitly encompassed the court’s statement that “there’s no
promise as to any certain amount of fines or fees.” Finally, the $400 fine did not
significantly exceed the plea “understanding.”

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A. No Plea Bargain With Prosecutor
People v. Walker (1991) 54 Cal.3d 1013 applies only where there is a violation
of a “plea bargain” between the defendant and the prosecution. “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. The punishment may not significantly exceed that which the
parties agreed upon.” (People v. Walker, supra, 54 Cal.3d at p. 1024.) “[O]nly a
punishment significantly greater than that bargained for violates the plea bargain.”
(Walker, at p. 1027.)
“The process of plea bargaining . . . contemplates an agreement negotiated by
the People and the defendant and approved by the court.” (People v. Orin (1975) 13
Cal.3d 937, 942.) “Pursuant to this procedure the defendant agrees to plead guilty in
order to obtain a reciprocal benefit, generally consisting of a less severe punishment
than that which could result if he were convicted of all offenses charged. This more
lenient disposition of the charges is secured in part by prosecutorial consent to the
imposition of such clement punishment, by the People’s acceptance of a plea to a
lesser offense than that charged, either in degree or kind, or by the prosecutor’s
dismissal of one or more counts of a multi-count indictment or information. Judicial
approval is an essential condition precedent to the effectiveness of the ‘bargain’
worked out by the defense and prosecution. But implicit in all of this is a process of
‘bargaining’ between the adverse parties to the case — the People represented by the
prosecutor on one side, the defendant represented by his counsel on the other — which
bargaining results in an agreement between them. [¶] However, the court has no
authority to substitute itself as the representative of the People in the negotiation
process and under the guise of ‘plea bargaining’ to ‘agree’ to a disposition of the case
over prosecutorial objection. Such judicial activity would contravene express statutory
provisions requiring the prosecutor’s consent to the proposed disposition, would

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detract from the judge’s ability to remain detached and neutral in evaluating the
voluntariness of the plea and the fairness of the bargain to society as well as to the
defendant, and would present a substantial danger of unintentional coercion of
defendants who may be intimidated by the judge’s participation in the matter. In the
instant case it is undisputed that the prosecution did not agree to the arrangement by
which the charges against defendant were disposed of; it is therefore clear that the
matter under consideration herein does not involve a plea bargain.” (Orin, at pp. 942-
943, citations and footnotes omitted.)
Defendant did not enter into a plea bargain with the prosecutor. He rejected
the prosecution’s offer of “two years, top and bottom” and instead accepted “a Court
offer of two years top and 16 months bottom.” Acceptance of a “Court offer” does not
constitute a plea bargain and does not constitute an agreement with the prosecutor.
Consequently, Walker is inapplicable.
B. Plea “Understanding” Explicitly Negated Agreement As To Amount of Fine
Even if the plea “understanding” was a plea bargain, it was not violated. One
of the express terms of the plea “understanding,” stated by the court on the record at
the change of plea hearing, was that “there’s no promise as to any certain amount of
fines or fees imposed.” Since the plea “understanding” explicitly negated any
agreement as to the amount of any fines, the amount of the restitution fund fine
imposed by the trial court could not possibly “exceed that which the parties agreed
upon.” (People v. Walker, supra, 54 Cal.3d 1013, 1024.)
C. Fine Did Not Significantly Exceed Plea “Understanding”
In People v. Walker, supra, 54 Cal.3d 1013, the California Supreme Court
upheld the imposition of what was then the $100 mandatory minimum restitution fund
fine. It concluded that the imposition of the $100 fine did not significantly exceed the

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terms of the plea agreement even though the plea agreement did not mention any
restitution fund fine. Here, defendant accepts that imposition of the $200 mandatory
minimum restitution fund fine would not be a significant deviation from the terms of
the plea “understanding.” Like a $100 fine and a $200 fine, a $400 fine will not
violate a plea agreement that does not mention the amount of the fine because, it is not
“significantly greater than” the punishment otherwise identified in such a plea
agreement. (Walker at p. 1027.) In our view, a $400 fine is just not significant in the
context of a prison sentence.
III. Disposition
The judgment is affirmed.
_______________________________
Mihara, J.
I CONCUR:
_____________________________
Bamattre-Manoukian, Acting P.J.
I CONCUR IN THE JUDGMENT ONLY:
_____________________________
Duffy, J.

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