P. v. Romeo

Filed 12/08/06 P. v. Romeo 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 977.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.
ROBERTO DOMENICO ROMEO,
Defendant and Appellant.
H030153
(Santa Clara County
Super. Ct. No. CC513391)
I. INTRODUCTION
Defendant Roberto Domenico Romeo pleaded no contest to four felony and
two misdemeanor counts pursuant to a negotiated plea agreement. The trial court
sentenced defendant to three years, eight months in prison and imposed a
restitution fine of $2,400. On appeal, defendant contends that the trial court
violated the plea bargain because he did not agree to the $2,400 restitution fine
and therefore, pursuant to People v. Walker (1991) 54 Cal.3d 1013 (Walker), the
fine should be reduced to the statutory minimum of $200. We disagree, for
reasons that we will explain, and accordingly we will affirm the judgment.
II. FACTUAL AND PROCEDURAL BACKGROUND
On December 8, 2005, defendant was arrested after displaying symptoms of
being under the influence of a stimulant and admitting to a police officer that he
had used methamphetamine. The police officer determined that defendant was on
probation for check fraud with a search and seizure clause and searched defendant

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and his vehicle. The officer recovered two USB hard drives, approximately
24 checks belonging to different people, and a mailbox key. The USB hard drives
contained a number of different bank logos, blank format forms for California
driver’s licenses and FBI identification cards, and input screens for printing
checks. Further investigation included contacting some of the people identified on
the recovered checks, who informed police that they had mailed the checks and
did not know defendant.
After the preliminary hearing held January 20, 2006, the People filed an
information charging defendant with four felony counts, including buying,
receiving, concealing, or withholding stolen property (Pen. Code, § 496, subd.
(a);1 count 1), possession of a blank or unfinished check (§ 475, subd. (b); count
2), and possession of a completed check (§ 475, subd. (c); counts 3, 6). The
information also alleged two misdemeanor counts, possession of burglar tools
(§ 466; count 4) and being under the influence of a controlled substance (Health &
Saf. Code, § 11550, subd. (a); count 5), as well as three prior felony convictions.
Defendant subsequently brought a motion to suppress evidence (§ 1538.5),
which the trial court denied. The trial court also denied defendant’s renewed
motion to suppress evidence and his section 955 motion to dismiss the
information. Thereafter, defendant entered into a negotiated plea agreement and
pleaded no contest to all counts on March 22, 2006 in exchange for a prison term
of three years, eight months; resolution of pending probation violations; the
People’s promise not to file any additional charges based on the preliminary
1 All further statutory references are to the Penal Code unless otherwise
indicated.

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hearing evidence; and a Harvey stipulation.2 Prior to accepting defendant’s plea,
the trial court did not give a section 1192.5 admonition.3
At the sentencing hearing held April 12, 2006, the trial court sentenced
defendant to a total term of three years, eight months in state prison in accordance
with the terms of the plea agreement. The trial court also imposed a restitution
fine of $2,400 (§ 1202.4) and a second $2400 restitution fine, suspended
(§ 1202.45)
Defendant filed a timely notice of appeal on May 1, 2006.
III. DISCUSSION
Defendant contends that the trial court violated the terms of his plea bargain
by imposing a $2,400 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 Walker, supra, 54 Cal.3d 1013.
While defendant acknowledges that this court has 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)
2 A Harvey stipulation permits the sentencing court to consider dismissed
or uncharged counts in reaching its sentencing decision or disposition. (In re Josh
W. (1997) 55 Cal.App.4th 1, 4, fn.2; In re Devin J. (1984) 155 Cal.App.3d 1096,
1098, fn.2; see generally People v. Harvey (1979) 25 Cal.3d 754.)
3 Section 1192.5 provides in relevant 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.”

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(Sorenson)), he urges reconsideration of those decisions in light of Justice
Mihara’s dissent in Knox and the California Supreme Court’s grant of review in
People v. Crandell (review granted Aug. 24, 2005, S134883).
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 $2,400
restitution fine. We determine that imposition of the $2,400 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 stated 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, 356, “[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.” 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.)

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In the present case, before accepting defendant’s no contest pleas on
March 22, 2006, the trial court advised defendant that he would be subjected to a
mandatory restitution fine, as stated in the following colloquy:
“THE COURT: I would like to talk to you about some other consequences
of your pleas here this morning. First of all, I will order restitution in this matter.
I don’t know if there is any or how much there is, but you must know there is a
consequence of your plea? Do you understand that?
“[DEFENDANT]: Yes, your Honor.
“THE COURT: You would be subject to a restitution fund fine anywhere
from two hundred to ten thousand dollars. Do you understand that?
“[DEFENDANT]: Yes, your Honor.”
Defendant did not object to the imposition of a restitution fine above the
statutory minimum of $200. Subsequently, a probation report was filed on April
12, 2005, in which the probation officer recommended a restitution fine of
$2,400.4 At the time of the April 12, 2006, sentencing hearing, the trial court
announced the following order regarding restitution fines: “A general order of
restitution is made. A restitution fine of twenty four hundred dollars is the
appropriate number . . . under the formula permitted by [section] 1202.4
[subdivision (b)]. An additional restitution fine of an amount equal to that
imposed under [section] 1202.4 is imposed and suspended pursuant to [section]
1202.45 of the Penal Code.” Defendant did not object to the restitution fine of
$2,400 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
4 In the typed probation report, the amount of the restitution fine
recommended was $1,600, but that figure was crossed out and replaced with the
handwritten notation “2400--.”

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$200 to $10,000 would imposed and again when the $2400 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, 378, 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.”
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.)
For these reasons, we conclude that defendant has not established that the
trial court’s imposition of a $2400 restitution fine at sentencing violated his plea
agreement.
IV. DISPOSITION
The judgment is affirmed.
BAMATTRE-MANOUKIAN, ACTING P.J.
WE CONCUR:
MCADAMS, J.
DUFFY, J.

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