P. v. Akao

Filed 7/27/06 P. v. Akao 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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.
JAMES HERROSKI AKAO,
Defendant and Appellant.
H029821
(Santa Clara County
Super. Ct. No. CC457539)
Appellant was charged by information filed January 21, 2005, with one count of
assault with a deadly weapon by means of force likely to produce great bodily injury.
(Pen. Code, § 245, subd. (a)(1).) The information contained the following allegations:
(1) The offense was committed for the benefit of, at the direction of, or in association
with a criminal street gang, with the specific intent to promote, further, and assist in
criminal conduct by gang members (Pen. Code, § 186.22, subd. (b)(1)(B)); (2) Appellant
personally inflicted great bodily injury on Cesar Manriquez within the meaning of Penal
Code section 12022.7, subdivision (a) and Penal Code section 1202.3, subdivision (e)(3);
and (3) appellant suffered a serious felony conviction within the meaning of Penal Code
sections 667, subdivisions (a) and (b) through (i), and 1170.12.

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On April 12, 2005, appellant pleaded no contest to the felony assault charge and
admitted the serious bodily injury and gang allegations on the condition that the serious
felony strike allegation be dismissed and that he receive a seven-year prison sentence.
On November 17, 2005 appellant was sentenced to serve the aggravated term of
four years for the substantive count, plus a consecutive three-year term for the great
bodily injury enhancement. The court struck the five-year gang enhancement. The court
imposed a $1400 restitution fine pursuant to Penal Code section 1202.4 and an additional
$1400 probation revocation fine, which the court suspended. (Pen. Code, § 1202.45.)
Appellant filed a timely notice of appeal.
On appeal, appellant contends that the restitution fine must be reduced to $200
because the trial court violated the terms of the plea agreement by imposing a restitution
fine of $1400 and a parole revocation fine in the same amount.
Facts
A summary of appellant's offenses is unnecessary to address the sole issue on
appeal, which relates to the trial court's imposition of a restitution fine. However, we set
forth in detail the proceedings below relevant to the plea agreement.
Before appellant entered his plea of no contest, the court asked the district attorney
to outline the proposed disposition.
"MS. WELLS: Yes, Your Honor. Thank you. [¶] It's my understanding that the
defendant will be pleading no contest to Count One, he will be admitting the allegation
pursuant to 186.22(b)(1)(B) and admitting the great bodily injury enhancement for a
sentence of seven years calculated as follows: Four years on the 245 count which is the
aggravated term, plus three years for the great bodily injury, for a total of seven years.
[¶] The People will move to dismiss the strike allegation as well as the allegation
pursuant to Penal Code Section 667 (a).
"THE COURT: You are also asking the Court to stay any punishment for the
allegation pursuant to 186.22 (b)(1)(B)?

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"MS. WELLS: Yes, Your Honor.
"THE COURT: Is that your understanding?
"[DEFENSE COUNSEL]: It is, Your Honor. In addition I believe the prison
prior will either be dismissed or stayed.
"THE COURT: I only see a Prop. 8 and strike prison alleged.
"[DEFENSE COUNSEL]: That's fine."
The court proceeded to explain to appellant that in order to accept appellant's plea,
the court needed to be satisfied that appellant "fully understand all of the legal rights that
[he was] giving up in order to do that as well as all of the consequences of the conviction
that's going to result."
The court asked appellant if he was under the influence of any kind of drug or
medication, if he had enough time to talk to his attorney, and was satisfied that he
understood the discussions. Then, the court restated the terms of the plea bargain as
follows:
"THE COURT: Now all the promises that go along with this change of plea today
have been stated here in court on the record. They include the fact that the district
attorney is going to move to dismiss the two allegations of prior conviction which greatly
increase the sentence, and she is also going to ask the Court to stay the punishment for
what's called the gang enhancement, and further it's been agreed that you will receive a
term in state prison of seven years, no more, no less. [¶] What I need to know is whether
or not anyone has made any promises to you off the record in order to try and get you to
change your plea?"
Appellant replied, "No."
The court went on to explain the consequences of appellant's plea including that
appellant would be "ordered to pay a restitution fund fine of between 200 and $10,000."
Appellant acknowledged that he understood.

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Thereafter, appellant entered his plea. The probation report prepared for
appellant's sentencing recommended a $1400 restitution fine pursuant to the formula set
forth in Penal Code section 1202.4, subdivision (b)(2). The court imposed the fine
without objection.
Discussion
Appellant's sole issue on appeal is that the restitution fine does not comport with
the terms of the plea agreement.
Appellant recognizes that this issue is pending before the California Supreme
Court,1 and acknowledges this court's decisions in People v. Dickerson (2004) 122
Cal.App.4th 1374 (Dickerson), People v. Knox (2004) 123 Cal.App.4th 1453 and People
v. Sorenson (2005) 125 Cal.App.4th 612. However, appellant asserts that Dickerson was
wrongly decided and contrary to the conclusion "mandated based on the California
Supreme Court's holding in People v. Walker (1991) 54 Cal.3d 1013, 1019."
In Dickerson, supra, 122 Cal.App.4th 1374, this court rejected the same claim that
appellant asserts. Dickerson negotiated a plea bargain to resolve three separate cases. In
announcing the bargain, the court stated that Dickerson would plead no contest to various
charges and receive a sentence of 12 years. When asked if he had been made any other
promises, Dickerson said he had not. After Dickerson waived his rights, the court
advised him that he would be subject to parole when released. Dickerson acknowledged
the court's advisements that the court would order him to pay restitution he owed; it could
impose fines up to $50,000; and it would impose a restitution fine of between $200 and
$10,000. Thereafter, the probation report prepared for Dickerson's sentencing hearing
recommended, among other things, a restitution fine in each case, totaling $6,800. It also
1 People v. Crandell, review granted August 24, 2005, S134883.

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recommended parole revocation fines in the same amount. At sentencing, the court
imposed the 12-year term and the recommended fines. (Id. at p. 1378.)
On appeal, Dickerson claimed the fines violated the plea bargain. He argued that
the bargain excluded the imposition of the two $6,800 fines. In support of his claim,
Dickerson noted that in reciting the terms of the bargain, the court did not mention
restitution. (Dickerson, supra, 122 Cal.App.4th at p. 1384.) However, this court found
that "[the lack of reference] simply shows that the parties reached no agreement on the
imposition or amount of any fine. '[I]t would appear that [this topic] was not a part of the
plea agreement.' [Citation.] Indeed, when asked by the court, defendant denied that any
promises had been made other than fixing the prison term. The court's omission of
another term cannot transform it 'into a term of the parties' plea agreement.' [Citations.]
This omission does not imply that there was an agreement on no fine or on a minimum
fine." (Id. at p. 1385.) Instead, this court concluded that (1) this omission, (2) the
defendant's acknowledgment that the court would have to impose a fine of between $200
and $10,000, (3) the recommendation for substantial fines in the probation report, and (4)
the lack of objection when the fines were imposed indicated that the parties were
concerned only with reaching an agreement on the term of imprisonment and expressly or
implicitly agreed to leave the imposition and amount of restitution fines to the court's
discretion. (Id. at pp. 1385-1386.) In other words, the bargain did not encompass an
agreement concerning fines.
In addition, this court found Dickerson's reliance on Walker, supra, 54 Cal.3d
1013, to be misplaced. In Walker, the California Supreme Court reiterated the principle
that "the parties must adhere to the terms of a plea bargain. [Citation.]" (Id. at p. 1020.)
Therefore, "[t]he punishment may not significantly exceed that which the parties agreed
upon." (Id. at p. 1024.) The court concluded that a restitution fine "qualifies as
punishment for this purpose. Accordingly, the restitution fine should generally be
considered in plea negotiations." (Ibid.)

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In Dickerson, this court explained that "Walker held that '[t]he court should always
admonish the defendant of the statutory minimum $100 and maximum $10,000
restitution fine as one of the consequences of any guilty plea, and should give the section
1192.5 admonition whenever required by that statute.' [Citation.] Walker recommended
that '[c]ourts and the parties should take care to consider restitution fines during the plea
negotiations.' [Citation.] The court '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.' [Citations, italics added.] [¶] But Walker should not
be understood as finding that the restitution fine has been and will be the subject of plea
negotiations in every criminal case. 'The parties to a plea agreement are free to make any
lawful bargain they choose.' [Citation.] Walker does not prohibit criminal defendants
from striking whatever bargains appear to be in their best interests, including leaving the
imposition of fines to the discretion of the sentencing court." (Dickerson, supra, 122
Cal.App.4th at p. 1384.) Thus, this court opined that "Walker did not require [the parties]
to negotiate--whether to resolution or impasse--regarding the imposition or amount of
restitution fines." (Id. at p. 1386.) Rather, as noted, the agreement focused solely on the
length of imprisonment, and the parties implicitly agreed that fines would be left to the
discretion of the sentencing court.
Finally, this court acknowledged that the court failed to advise Dickerson about a
potential parole-revocation fine in an amount equal to the restitution fine. However,
since the subject of fines in general was not covered by the bargain, the imposition of the
parole revocation fine could not have violated it. (Dickerson, supra, 122 Cal.App.4th at
pp. 1386-1387.) We pointed out that "[w]hen the complaint is simply that advisement of
a direct consequence of a plea was omitted, and not that the plea bargain was breached,
this 'error is waived if not raised at or before sentencing.' [Citation.] Since defendant did
not object at sentencing, we conclude that this advisement objection was forfeited."
(Ibid.)

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This case is virtually indistinguishable from Dickerson. As noted, in reciting the
bargain, the court noted the agreed-upon length of incarceration. Appellant indicated that
no other promises had been made to him. The court advised appellant of the possibility
of a restitution fine in an amount between $200 and $10,000, and appellant
acknowledged this. The probation report recommended restitution and parole revocation
fines; and, when these were imposed, appellant did not object or otherwise suggest that
the fines were not permitted under the plea bargain.
Finally, appellant fails to point to any evidence indicating that the bargain
excluded fines greater than the statutory minimum. Under the circumstances, we
conclude that the imposition of the restitution and parole revocation fines did not violate
appellant's plea bargain.
Disposition
The judgment is affirmed.
_____________________________
ELIA, J.
WE CONCUR:
_____________________________
RUSHING, P. J.
_____________________________
PREMO, J.

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