P. v. Baez

Filed 8/25/06 P. v. Baez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or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.
BERNARDO BAEZ,
Defendant and Appellant.
H029224
(Santa Clara County
Super. Ct. No. CC331753)
Defendant Bernardo Baez was sentenced to prison following a no contest plea to a
charge of attempted murder. As part of his sentence, the court ordered defendant to pay a
restitution fund fine of $2,200. 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.
As indicated in the probation report, the criminal charge against defendant arose
from an incident in San Jose, which took place on October 27, 2003. Defendant and two
others (Garcia and Cruz) attacked the 16-year-old victim, Jose R., who was dressed in
blue. After attempting to determine whether the victim was affiliated with a rival gang,
defendant and Garcia struck him with plastic milk crates, while Cruz kicked and hit the

-- 1 of 7 --

2
victim with his feet and hands. The victim suffered a skull fracture and lacerations; he
was transported to San Jose Hospital, where he underwent emergency surgery.
Charges
In August 2004, by felony complaint, defendant was charged with one count of
attempted premeditated murder for his part in the October 27th attack on Jose R. (Pen.
Code, §§ 664, subd. (a)/187; further unspecified statutory references are to the Penal
Code.) As sentence enhancements, the complaint specially alleged infliction of great
bodily injury, perpetration of the crime for the benefit of a criminal street gang, and
personal use of a deadly weapon. (§§ 12022.7, subd. (a), 1203, subd. (e)(3) [great bodily
injury]; 186.22, subd. (b)(1) [gang enhancement]; 12022, subd. (b)(1) [personal use of a
weapon].) A felony information was filed in November 2004.
Change of Plea
On April 29, 2005, defendant entered a plea of no contest to the count of
attempted murder and he admitted the great bodily injury, personal weapon use, and gang
allegations. In exchange, the prosecution agreed to strike the allegation of premeditation.
Before the court accepted defendant’s plea, it sought and obtained his
acknowledgement that he would be required to “pay a restitution fund fine between
[$]200 and $10,000.” But the court failed to advise defendant of the circumstances under
which he would be permitted to withdraw his plea. (See § 1192.5.)1
The court then set the matter for sentencing.
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.)

-- 2 of 7 --

3
Sentencing
In July 2005, after conducting an extensive evidentiary hearing, the court imposed
sentence. The court sentenced defendant to the middle term of seven years in prison,
with additional consecutive sentences of three years for the great bodily injury
enhancement and one year for the personal weapon use enhancement. The court struck
the gang enhancement allegation. The court also ordered defendant to pay a restitution
fund fine of $2,200. (§ 1202.4.) In addition, the court imposed but suspended an
equivalent parole revocation fine. (§ 1202.45.)
Defendant’s Appeal
In August 2005, defendant brought this timely appeal. In October 2005, defendant
filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436. In February 2006, this
court requested and received supplemental briefing on the issue of whether the restitution
fine violated defendant’s plea agreement.
ISSUE
Defendant’s sole contention on appeal is that imposition of the $2,200 restitution
fund fine violated his plea bargain. He asks us to reduce the fine to $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

-- 3 of 7 --

4
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.
As noted above, 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.
“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.)
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

-- 4 of 7 --

5
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.
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.

-- 5 of 7 --

6
DISPOSITION
The judgment is affirmed.
___________________________________________
McAdams, J.
I CONCUR:
________________________________
Bamattre-Manoukian, Acting P.J.

-- 6 of 7 --

1
MIHARA, J., concurring in the judgment.
I do not agree with my colleagues’ analysis, but I do agree that
defendant has failed to establish that there was a violation of the plea agreement in
this case.
“When a guilty [or no contest] 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 (1991) 54 Cal.3d 1013, 1024, emphasis added.)
“[O]nly a punishment significantly greater than that bargained for violates the
plea bargain.” (Walker at p. 1027, emphasis added.)
The plea agreement in this case was that defendant would plead to
the attempted murder count and admit all of the enhancements except for the
premeditation allegation. The only condition to which the prosecution agreed in
exchange for defendant’s plea and admissions was the dismissal of the
premeditation allegation. There was no agreement as to punishment.
As the parties did not bargain for or agree to any particular
punishment, the trial court’s imposition of $2,200 restitution fund fines did not
exceed the punishment specified in the plea agreement and therefore did not
violate the plea agreement. For this reason, and this reason alone, I concur in the
judgment.
___________________________________
Mihara, J.

-- 7 of 7 --