P. v. Infante

Filed 2/13/07 P. v. Infante 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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,
Plaintiff and Respondent,
v.
JOSE ANTONIO INFANTE,
Defendant and Appellant.
H030376
(San Benito County
Super. Ct. No. CR0600089)
I. INTRODUCTION
After entering into a plea agreement, defendant Jose Antonio Infante
pleaded no contest to two felonies, resisting an executive officer by means of
threats and violence (Pen. Code, § 69)1 and carrying a concealed dirk or dagger
(§ 12020, subd. (a)(4)). He also admitted a prior prison term allegation (§ 667.5,
subd. (b)). The trial court sentenced defendant to the agreed-upon aggregate term
of two years, four months.
On appeal, defendant contends that (1) the People’s failure to file an
information deprived the trial court of jurisdiction; and (2) the $400 restitution fine
must be reduced to the statutory minimum of $200 because the restitution fine was
1 All further statutory references are to the Penal Code unless otherwise
indicated.

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not specified in the plea agreement. For reasons that we will explain, we find no
merit in defendant’s contentions and therefore we will affirm the judgment.
We ordered defendant’s related petition for writ of habeas corpus, which
asserts a claim of ineffective assistance of counsel, to be considered with this
appeal. We have disposed of the petition by separate order filed this day. (See
Cal. Rules of Court, rule 8.264(b).)
II. FACTUAL AND PROCEDURAL BACKGROUND
A. The Complaint
The complaint filed January 13, 2006, charged defendant with two felonies,
resisting an executive officer by means of threats and violence (§ 69; count 1) and
carrying a concealed dirk or dagger (§ 12020, subd. (a)(4); count 2).2 The
complaint also included a special allegation that defendant had served three prior
prison terms.
B. The Preliminary Hearing
The witnesses at the preliminary hearing held January 30, 2006, included
Sergeant Juan Carlos Reynoso and Officer Heather Dorman of the Hollister Police
Department.
Sergeant Reynoso testified regarding his contact with defendant on
January 11, 2006. At that time, Sergeant Reynoso was wearing his police uniform
and badge and driving a police vehicle. Immediately before contacting defendant,
Sergeant Reynoso was advised over his radio that a “Mr. Jose Infante” had been
seen in the area of the 100 block of San Felipe Road and there was “a possibility
of him having a warrant for his arrest.” When Sergeant Reynoso arrived at that
2 The record on appeal reflects that at an unspecified time defendant was
also charged with third count, misdemeanor failure to appear (§ 166, subd. (a)(4)).
Count 3 was dismissed at the time of sentencing. No issues pertaining to count 3
have been raised in this appeal.

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location, he saw Jose Infante, whom he identified in court as defendant.
Defendant was walking in front of a pizza restaurant.
Sergeant Reynoso stopped his vehicle, got out, and called to defendant,
“Hey, how are you doing,” in order to make contact with him. As described by
Sergeant Reynoso, defendant responded as follows: “[H]e immediately took a
fighting stance . . . . [¶] . . . [¶] [Defendant] clinched his hands into a fist, took a
fighting stance and said ‘fuck you, Holmes [sic]. What do you want?’ And then
he motioned with his hands and went like--moved his fists up and down in a
threatening manner and said . . .‘come on. Come on, fucker,’ as he held his hands
and fists in front of me.”
Sergeant Reynoso demonstrated defendant’s posture for the magistrate,
who then described it for the record: “Squared off, fists clinched, the elbows bent,
raising up the forearms to almost a parallel position, parallel to the ground and
then actually pivoting at the elbows up and down in a preparatory fighting manner
as would be represented by boxing.”
After defendant assumed a fighting stance, Sergeant Reynoso took his tazer
out of the holster and ordered defendant to put his hands on the hood of the police
vehicle. Defendant continued to be “verbally confrontational,” but he eventually
complied with the order. Sergeant Reynoso then conducted a patdown search and
discovered a leatherman tool in defendant’s shirt pocket. He also found a pocket
knife locked in the open position in defendant’s left front pants pocket. Defendant
told Sergeant Reynoso that he needed the knife to cut lemons.
During their contact, defendant advised Sergeant Reynoso that there was no
outstanding arrest warrant for him. Sergeant Reynoso later learned that the arrest
warrant for “a Mr. Jose Infante” was not actually for defendant.
Officer Dorman arrived when Sergeant Reynoso was handcuffing
defendant. She searched defendant and found a folded pocket knife in defendant’s

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right front pants pocket. At that time, defendant was confrontational and hostile.
Officer Dorman also noticed that defendant’s speech was rapid and his conduct
was erratic. When Officer Dorman attempted to check defendant’s pulse, he said,
“Why don’t you take off the handcuffs and I’ll bitch slap you?” He also told
Officer Dorman that the knife was for cutting fruit.
At the conclusion of the preliminary hearing, defendant was held to answer
on all charges set forth in the complaint. At the court’s request, both parties
stipulated to “the use of the complaint as the information.”
C. The Plea Agreement and Sentencing
Defendant entered into a plea agreement on April 10, 2006. Before
accepting defendant’s plea, the trial court advised defendant that, among other
things, he could be ordered to pay a restitution fine of a minimum of $200 to a
maximum of $10,000. Thereafter, defendant pleaded no contest to all counts and
one prison prior in exchange for an indicated aggregate sentence of two years, four
months and dismissal of two prison priors.
At the sentencing hearing held May17, 2006, the trial court imposed an
aggregate sentence of two years, four months, which included imposition of the
lower term of 16 months on count 1, resisting an executive officer by means of
threats and violence (§ 69); a concurrent term of 16 months on count 2, carrying a
concealed dirk or dagger (§ 12020, subd. (a)(4)); and a sentence of one year, to be
served consecutively, on the special allegation of a prison prior. The trial court
also imposed a restitution fund fine of $400 and another restitution fine in the
same amount, suspended.
After the sentencing hearing, defendant filed a request for a certificate of
probable cause, which the trial court granted on July 7, 2006. A notice of appeal
was filed on July 3, 2006.

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III. DISCUSSION
On appeal, defendant contends that the People’s failure to file an
information deprived the trial court of jurisdiction. Defendant also contends that
the $400 restitution fine must be reduced to the statutory minimum of $200
because the restitution fine was not specified in the plea agreement. We will
address each contention in turn.
A. The Information
“ ‘An information is a written accusation of crime made by a district
attorney, without action by a grand jury, after a magistrate, at a preliminary
hearing, has found sufficient cause to believe the defendant guilty of a public
offense and has ordered him [or her] committed.’ ” (People v. Cartwright (1995)
39 Cal.App.4th 1123, 1132 (Cartwright.) Thus, the purpose of the information is
“to notify the accused of the charge he [or she] is to meet at trial.” (People v.
Adams (1974) 43 Cal.App.3d 697, 705.)
In the present case, immediately after the magistrate had held defendant to
answer all charges set forth in the complaint at the conclusion of the January 30,
2006, preliminary hearing, the following colloquy took place regarding the
information:
“THE COURT: . . . Stipulate to the use of the complaint as the
information, [defense counsel]?
“[DEFENSE COUNSEL]: Yes.
“THE COURT: So stipulated to, [prosecutor]?
“[THE PROSECUTOR]: So stipulated.”
The minute order for January 30, 2006, reflects the parties’ stipulation that
the complaint would be deemed the information.
However, defendant contends on appeal that the trial court lacked
jurisdiction because an information was not filed by the district attorney and

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therefore the judgment must be reversed. Defendant points out that the California
Constitution, article I, section 14, requires that a felony be prosecuted either by
information or indictment and section 739 mandates the filing of an information
by the district attorney.
Defendant also relies on People v. Smith (1986) 187 Cal.App.3d 1222
(Smith) for the proposition that treating the complaint as the information does not
confer jurisdiction on the trial court. In Smith, the superior court judge discovered
at the time of arraignment that no information had been filed. However, the
superior court and the parties apparently treated the municipal court complaint as
the information and the court subsequently accepted the defendant’s guilty plea.
The appellate court ruled that the superior court lacked jurisdiction to enter a
judgment in a case where no information was filed, because “[f]ailure to file an
information is an irregularity of sufficient importance to the functioning of the
courts that the parties cannot cure the irregularity by their consent to the
proceedings.” (Smith, supra, 187 Cal.App.3d at pp. 1224-1225.)
The People assert that Smith, supra, 187 Cal.App.3d 1222, is
distinguishable from the case at bar and argue that the decision in Cartwright,
supra, 39 Cal.App.4th 1123, is directly on point. In Cartwright, the magistrate
deemed the complaint to be an information immediately after holding the
defendant to answer. On appeal, the defendant objected that an information was
never filed and, in reliance on Smith, supra, 187 Cal.App.3d 1222, claimed that
the trial court lacked jurisdiction to try him. The appellate court rejected
defendant’s argument, finding that Smith was distinguishable and ruling that
“[h]ere, the magistrate acting as a superior court judge, accepted the document on
file as an information. At that point the information was filed. Unlike People v.
Smith, supra, 187 Cal.App.3d 1222, this is not a case where the parties consented

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in an after-the-fact attempt to cure the failure to file the proper document.”
(Cartwright, supra, 39 Cal.App.4th at p. 1132.)
Under the circumstances of this case, we determine that the trial court did
not lack jurisdiction to accept defendant’s no contest plea. While defendant is
correct that an information is mandated by both the California Constitution (art. I,
§ 14)3 and the Penal Code (§§ 682,4 739)5 for the offenses with which he is
charged, he has not shown that an information was lacking here.
Immediately after holding defendant to answer all charges set forth in the
complaint, the magistrate in the present case obtained the parties’ stipulation that
the complaint would serve as the information. The magistrate, acting as a superior
court judge, then deemed the complaint to be an information. At that point, there
was an information on file in the superior court that notified defendant of the
3 Article I, section 14 of the California Constitution provides in pertinent
part, “Felonies shall be prosecuted as provided by law, either by indictment or,
after examination and commitment by a magistrate, by information.”
4 Section 682 provides, “Every public offense must be prosecuted by
indictment or information, except: [¶] 1. Where proceedings are had for the
removal of civil officers of the state; [¶] 2. Offenses arising in the militia when in
actual service, and in the land and naval forces in the time of war, or which the
state may keep, with the consent of Congress, in time of peace; [¶] 3.
Misdemeanors and infractions; [¶] 4. A felony to which the defendant has pleaded
guilty to the complaint before a magistrate, where permitted by law.”
5 Section 739 provides, “When a defendant has been examined and
committed, as provided in Section 872, it shall be the duty of the district attorney
of the county in which the offense is triable to file in the superior court of that
county within 15 days after the commitment, an information against the defendant
which may charge the defendant with either the offense or offenses named in the
order of commitment or any offense or offenses shown by the evidence taken
before the magistrate to have been committed. The information shall be in the
name of the people of the State of California and subscribed by the district
attorney.”

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charges he was to meet at trial. Accordingly, the superior court had jurisdiction to
try defendant.
We are not persuaded by defendant’s argument that the decision in Smith,
supra, 187 Cal.App.3d 1222, compels a different result because Smith is
distinguishable. In Smith, the superior court and the parties recognized that no
information had been filed and apparently proceeded on the municipal court
complaint. There was no stipulation that the complaint would serve as the
information and the superior court did not deem the complaint to be an
information. (Smith, supra, 187 Cal.App.3d at pp. 1224-1225.) Thus, in contrast
to Cartwright and the present case, no document constituting an information was
ever filed in Smith.
For these reasons, we conclude that the trial court did not lack jurisdiction
due to the lack of a properly filed information.
B. The $400 Restitution Fine
Defendant contends that the trial court violated the terms of his plea bargain
by imposing a $400 restitution fine to which he did not specifically agree.
According to defendant, the restitution fine must be reduced to the statutory
minimum of $200, pursuant to People v. Walker (1991) 54 Cal.3d 1013 (Walker).
Defendant acknowledges that this court rejected a similar argument in three
cases (People v. Dickerson (2004) 122 Cal.App.4th 1374 (petn. for review den.
Jan. 19, 2005) (Dickerson); People v. Knox (2004) 123 Cal.App.4th 1453 (petn.
for review den. Jan. 19, 2005) (Knox); and People v. Sorenson (2005)
125 Cal.App.4th 612 (petn. for review den. Apr. 13, 2005) (Sorenson)). However,
he contends that these decisions are inconsistent with Walker, supra, 54 Cal.3d
1013, and notes that the California Supreme Court will be considering the issue in
People v. Crandell (review granted Aug. 24, 2005, S134883).

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The People respond that, for the reasons stated in Dickerson, Knox, and
Sorensen, the trial court did not violate the plea bargain by imposing a $400
restitution fine. We determine that imposition of the $400 restitution fine was
lawful under Walker as well as our previous decisions in Dickerson, Knox, and
Sorensen.
In Walker, the California Supreme Court did not rule that a plea bargain is
violated whenever the trial court imposes a section 1202.4 restitution fine to which
the defendant did not specifically agree as one of the terms of the plea agreement.
Moreover, the Walker court did not require the parties to negotiate the amount of
the restitution fine. (Dickerson, supra, 122 Cal.App.4th at p. 1386.) Instead, the
court recommended that “the restitution fine should generally be considered in
plea negotiations.” (Walker, supra, 54 Cal.3d at p. 1024.)
As our Supreme Court subsequently explained in In re Moser (1993)
6 Cal.4th 342, “[i]n concluding that the imposition of [a] substantial fine
constituted a violation of the plea agreement in Walker, we implicitly found that
the defendant in that case reasonably could have understood the negotiated plea
agreement to signify that no substantial fine would be imposed.” (Id. at p. 356.)
The facts in Walker involved the trial court imposing a $5000 restitution fine
without having advised the defendant, prior to accepting his guilty plea, that he
was subject to a mandatory restitution fine. (Walker, supra, 54 Cal.3d at p. 1019.)
Thus, as we stated in Knox, “Walker turned on the court’s assessment of the
defendant’s reasonable understanding of the plea agreement, which in turn
resulted from the lack of an advisement concerning the restitution fine.” (Knox,
supra, 123 Cal.App.4th at p. 1461.)
In the present case, before accepting defendant’s no contest plea on
April 10, 2006, the trial court advised defendant that he would be subjected to a
mandatory restitution fine, as stated in the following colloquy:

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“THE COURT: . . . You could be ordered to pay . . . a restitution fine of a
minimum of $200 to a maximum of $10,000, and various other fees. You also
will be ordered to make restitution to any victim for any economic injury suffered
by that victim in an amount to be ordered by the Court. Do you understand that?
“THE DEFENDANT: Yes.”
Defendant did not object to the imposition of a restitution fine above the
statutory minimum of $200. Thereafter, at the time of the May 17, 2006,
sentencing hearing, the trial court announced the following order regarding
restitution fines: “Restitution fine in the amount of $400, and another restitution
fine in the same amount is suspended unless parole is revoked.” Defendant did
not object to the restitution fine of $400 during the sentencing hearing.
We believe that defendant’s failure to object to the imposition of the
restitution fine, when he was advised prior to his plea that a restitution fine of
$200 to $10,000 would imposed and again when the $400 fine was imposed at
sentencing, indicates that imposition of the restitution fine did not violate the
terms of his plea bargain. In People v. McClellan (1993) 6 Cal.4th 367, the
California Supreme Court found that the defendant’s failure to object to the
requirement of sex offender registration under section 290 at the sentencing
hearing suggested that the defendant “did not consider the registration requirement
significant in the context of his plea agreement.” (Id. at p. 378.)
Similarly, this court has previously determined that a defendant’s failure to
object to the imposition of a restitution fine at the time of sentencing indicates that
imposition of the fine does not violate the terms of the plea bargain. (Dickerson,
supra, 122 Cal.App.4th at p. 1385.) Additionally, failure to object “suggests an
implicit agreement that the imposition and amount of any fines was left to the
discretion of the sentencing court.” (Sorenson, supra, 125 Cal.App.4th at p. 619.)

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For these reasons, we conclude that defendant has not established that the
trial court’s imposition of a $400 restitution fine at sentencing violated his plea
agreement.
IV. DISPOSITION
The judgment is affirmed.
_______________________________________________________
BAMATTRE-MANOUKIAN, ACTING P.J.
I CONCUR:
_________________________
DUFFY, J.
I CONCUR IN THE JUDGMENT ONLY:
__________________________
MIHARA, J.

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