P. v. Howard

Filed 7/11/06 P. v. Howard 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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.
TIMOTHY HOWARD,
Defendant and Appellant.
H029743
(Santa Clara County
Super. Ct. No. EE504589)
Defendant Timothy Howard agreed to plead guilty to second degree burglary and
possession of a fictitious check and admit certain prior-conviction allegations in return
for a total sentence of no more than 32 months. The bargain, as recited by the trial court
at the change-of-plea hearing, did not mention the fines required by Penal Code sections
1202.4 (restitution-fund fine) and 1202.45 (parole-revocation fine).1 However, at the
same time as the hearing, defendant signed and initialed an advisement of rights, waiver,
and plea form that did mention the fines. At sentencing, the court imposed the agreed-
upon prison term and also imposed a restitution-fund fine of $800 and a suspended
parole-revocation fine in the same amount. On appeal, defendant contends that the trial
court violated the plea bargain by imposing the fines and asks that we reduce the fines to
the statutory minimum ($200). We affirm the judgment.
1 Further unspecified statutory references are to the Penal Code.

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BACKGROUND
The following colloquy took place at the change-of-plea hearing.
“THE COURT: All right. We will go ahead. And this form, you read, signed,
and understood everything on the form?
“THE DEFENDANT: Yes, sir.
“THE COURT: Do you have any questions about it?
“THE DEFENDANT: No, sir, Your Honor.
“THE COURT: Are these your initials and signature throughout the form?
“THE DEFENDANT: Yes, sir, Your Honor.
“THE COURT: All right. I will order it filed and adopt the Court’s findings and
orders as set forth on page seven of seven.”
The trial court then went on to explain: “So, you could get less than 32 months or
you could get 32 months. There are no promises. At least you know you are limited how
much it could be by pleading early.”
Provision 42 of the form signed by defendant states: “I understand that there will
be a mandatory restitution fund fine of not less than $200 nor more than $10,000, and if I
am being sentenced to State prison that there will be an additional equal amount imposed
but stayed.” Defendant placed his initials next to provision 42.
At the sentencing hearing, the trial court sentenced defendant to 32 months and
ordered the following consistent with the probation officer’s recommendation: “There’s
a restitution fine of $800 that is imposed under the formula permitted by Penal Code
Section 1202.4[, subdivision] (b); and an additional restitution fine of an amount equal to
that imposed under Penal Code Section 1202.4, but is suspended under Section 1202.45
of the Penal Code.” Defendant made no objection to the order.
DISCUSSION
The statutory bases for the fines at issue are sections 1202.4 and 1202.45. Section
1202.4, subdivision (a)(3)(A) mandates judicial imposition of a restitution-fund fine

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whenever a person is convicted of a crime. The trial court shall impose the fine “unless it
finds compelling and extraordinary reasons for not doing so, and states those reasons on
the record.” (§ 1202.4, subd. (c).) In the absence of extraordinary reasons, the minimum
fine the court must impose is $200. (Id. subd. (b)(1).) The court has discretion to impose
a fine of up to $10,000. (Ibid.) The general guideline is that the fine should be
“commensurate with the seriousness of the offense.” (Ibid.) Section 1202.45 mandates
an additional fine duplicating the amount of the restitution fine. This fine takes effect
only if parole is revoked.
Relying on People v. Walker (1991) 54 Cal.3d 1013, defendant asserts that any
restitution fine above the statutory minimum of $200 violated his plea bargain because
the terms of his plea bargain did not contain any reference to the fines.
We extensively reviewed the principles that govern plea bargains and restitution
fines in People v. Dickerson (2004) 122 Cal.App.4th 1374, People v. Knox (2004) 123
Cal.App.4th 1453, and People v. Sorenson (2005) 125 Cal.App.4th 612. We need not
repeat that discussion here.
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.)
Here, we conclude that the restitution fines did become part of defendant’s plea
agreement. At the change of plea hearing, the court and the parties orally identified the
agreed prison term as 32 months. But other aspects of the plea were reflected in the
written waiver form and became part of the bargain as well. As relevant here, the

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restitution fines of between $200 and $10,000 were reflected in provision 42 of the
waiver form. Defendant entered his plea only after confirming his understanding of that
form. This incorporated into the plea the terms set forth in the form.
Nor are we persuaded to a different conclusion by the fact that the court imposed
an $800 fine, four times the statutory minimum. 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; 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 contrary
contention.
Our conclusion is confirmed by the absence of objection to the recommendation in
the probation report that restitution fines be imposed, coupled with the absence of
objection when the trial court actually imposed the fines. We mention the lack of
objection in this context not to show waiver but to demonstrate that no one in the trial
court seemed to think that imposition of the fines violated the terms of the plea bargain.

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DISPOSITION
The judgment is affirmed.
Premo, J.
WE CONCUR:
Rushing, P.J.
Elia, J.

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