P. v. Thoreson

Filed 9/21/06 P. v. Thoreson 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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.
MARTIN ADRIAN THORESON,
Defendant and Appellant.
H029705
(Santa Clara County
Super. Ct. No. CC595160 &
CC300573)
Pursuant to a plea bargain, defendant Martin Adrian Thoreson was convicted of
offenses involving possession of depictions of juvenile sexual conduct. He contends that
a $400 restitution fine violated the terms of the plea bargain, and that he is entitled to two
more days conduct credit than the trial court allowed. Respondent concedes the second
contention. The first, however, conflicts with settled authority from this court, and we
reject it. We will direct a modification of the abstract of judgment but will otherwise
affirm the judgment.
B ACKGROUND
On January 3, 2003, defendant was charged with two counts of developing and
duplicating matter depicting sexual conduct of a person under 18 (Pen. Code, § 311.3)
and one count of possessing or controlling matter depicting sexual conduct of a person
under 18 (Pen. Code, § 311.11). He pleaded guilty to all counts and was placed on

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probation for five years. On June 17, 2005, defendant was charged with one count of
possessing or controlling matter depicting sexual conduct of a person under 18. (Pen.
Code, § 311.11.) This charge arose from the discovery, during a probation search of
defendant’s residence, of 50 DVDs containing depictions of juveniles engaged in sexual
activity.
On October 20, 2005, defendant entered into a plea bargain under which he would
plead no contest and receive a sentence of three years based upon a violation of probation
in the earlier case, and two years in the later case, to be served concurrently. Prior to
accepting his change of plea, the court advised him that among its consequences, he
would “be ordered to pay a mandatory ten dollar fine, actual restitution to the victims. A
restitution fund fine of not less than [$]200, no more than $10,000, with an equal amount
imposed by [sic] suspended. A general fund fine not to exceed $10,000. If you are given
probation a $207.55 booking fee to the agency that booked you but before you have to
pay any of those I would refer you to the Department of Revenue and they would
determine your ability to pay.” Defendant affirmed that he understood these statements.
On December 13, 2005, the court sentenced defendant to three years in prison. In
addition to other assessments, the court imposed a “[f]our hundred dollar restitution fund
fine” and “an equal amount imposed by [sic] suspended.” As pertinent here, the court
allowed 343 days credit for time actually served and 168 days conduct credit under Penal
Code section 4019.
Defendant filed this timely appeal.
D ISCUSSION
I. Restitution Fund Fine
Defendant charges as error the trial court’s imposition of a $400 restitution fund
fine. He argues that because his plea agreement did not provide for the imposition of any
such fine, the court could not impose one in an amount greater than the statutory
minimum, which is $200. (Pen. Code, § 1202.4, subd. (b)(1).) He acknowledges that the

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court told him such a fine might be imposed in an amount up to $10,000, but he argues
that such an admonition establishes only that he was adequately apprised of the potential
legal consequences of his plea, not that such a fine was contemplated by his plea bargain.
This court has rejected substantially identical contentions in three published
decisions. (People v. Dickerson (2004) 122 Cal.App.4th 1374, 1386; People v. Sorenson
(2004) 125 Cal.App.4th 612, 618-620; People v. Knox (2004) 123 Cal.App.4th 1453,
1460-1461.) The probation report specified the amount ultimately adopted by the court,
and defendant voiced no objection to the fine at any time prior to appeal. We follow our
previous decisions and hold that imposition of such a fine under these circumstances
cannot be overturned as a violation of his plea bargain.1
II. Custody Credits
Defendant also contends that the court understated his conduct credits (Pen. Code,
§ 4019) by two days. The court allowed 343 days for days actually served. The statutory
formula provides for the calculation of conduct credits by dividing this number by four,
which yields 85.75; rounding down to the nearest whole number (85); and multiplying
the result by two, which yields 170. (Pen. Code, § 4019.) The trial court allowed only
168 days. Respondent concedes the error.
1 As defendant recognizes, the issue is pending before the Supreme Court.
(People v. Crandell, review granted. Aug. 24, 2005, S134883.)

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D ISPOSITION
The trial court is directed to amend the abstract of judgment to allow 170 days
conduct credit under Penal Code section 4019. The judgment is otherwise affirmed.
______________________________________
RUSHING, P.J.
WE CONCUR:
____________________________________
PREMO, J.
____________________________________
ELIA, J.

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