People v. Melton, E005998

• Decision Date: 27 February 1990
• Docket Number: No. E005998,E005998
• Citation: 267 Cal.Rptr. 640,218 Cal.App.3d 1406
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Ronald David MELTON, et al., Defendants and Appellants.

Page 640

267 Cal.Rptr. 640

218 Cal.App.3d 1406

PEOPLE of the State of California, Plaintiff and Respondent, v. Ronald David MELTON, et al., Defendants and Appellants.

No. E005998.

Court of Appeal, Fourth District, Division 2, California.

Feb. 27, 1990.

Review Denied May 16, 1990.

Conrad Petermann and Dennis L. Cava (under appointment by the Court of Appeal), Beverly Hills, for defendants and appellants.

John K. Van de Kamp, Atty. Gen., Arnold O. Overoye, Acting Chief Asst. Atty. Gen., Harley D. Mayfield, Sr. Asst. Atty. Gen., Rudolf Corona, Jr., Supervising Deputy Atty. Gen., and Craig E. Fisher, Deputy Atty. Gen., for plaintiff and respondent.

Before McDANIEL, Acting P.J., and DABNEY and McCONAGHY ^*, JJ.

OPINION

BY THE COURT.

These appeals by co-defendants Ronald Melton and Sheri McAllister present but a single question for determination: the effect of the trial court's failure to advise them, at the time they pleaded guilty, that such a plea would subject them to a virtually mandatory restitution fine. We determine that defendants are entitled to no relief and affirm the judgment.

Due to the nature of the issue presented, no detailed recitation of the facts is required. It suffices to say that each defendant pleaded guilty to a variety of charges arising out of a series of armed robberies; allegations of prior offenses were also admitted. The pleas were part of a negotiated disposition under which defendant Melton would receive a sentence of twenty years, and defendant McAllister would be sentenced to a term of sixteen years and four months.

These sentences were duly imposed. However, the court also followed the recommendation contained in the probation reports and imposed on each defendant a restitution fine in the amount of $5,000. Although neither defendant objected at the sentencing hearing, both now contend that the fine was not part of the negotiated disposition and was therefore improperly imposed.

Division One of this court recently confronted a similar situation in People v. Oberreuter (1988) 204 Cal.App.3d 884, 251 Cal.Rptr. 522. Defendant agreed to plead guilty without having been informed that he would be subject to a restitution fine. Holding that the fine could not be imposed where defendant had not agreed to the term and had not been advised that he would be subject to such a fine, the court struck the fine while upholding the remainder of the sentence. (Id., at p. 890, 251 Cal.Rptr. 522.) On the other hand, in a still more recent decision, the Fifth District refused either to strike the fine or to remand for the purpose of allowing defendant the opportunity to withdraw his plea. (People v. Davis (1988) 205 Cal.App.3d 1305, 252 Cal.Rptr. 924.) However, we find neither case directly applicable to the facts in the case at bar.

It cannot be disputed that a plea of guilty may be taken only after defendant is advised of the direct penal consequences of his plea. (Bunnell v. Superior Court (1975) 13 Cal.3d 592, 605, 119 Cal.Rptr. 302, 531 P.2d 1086.) Earlier cases have held that where a defendant has not been advised that his plea of guilty to a felony will subject him to a period of parole under Penal Code section 3000 et seq., the condition of parole cannot stand. (In re Carabes (1983) 144 Cal.App.3d 927, 933, 193 Cal.Rptr. 65; Carter v. McCarthy (1986) 806 F.2d 1373, 1375-76; contra In re Chambliss (1981) 119 Cal.App.3d 199, 173 Cal.Rptr. 712.) As the Davis court recognized, the possible imposition of a $10,000 fine is a "severe" consequence of a guilty plea. ¹ (People v. Davis, supra, 205 Cal.App.3d at p. 1311, 252 Cal.Rptr. 924.) While it may be true, as the Davis court held, that a plea bargain silent on the issue of a fine does not impose a legal limitation on the power of the court to impose such a fine, defendants entered their pleas in ignorance of a serious direct consequence.

However, the People argue that any error was waived by defendants' failure to object at the sentencing hearing, noting that the imposition of a fine was recommended in the probation report, and we agree.

Generally, the sentencing hearing serves as an opportunity for a defendant to point out any inaccuracies or omissions in the report, and if he fails to do so he will be deemed to have waived any error. (People v. Keele (1986) 178 Cal.App.3d 701, 708, 224 Cal.Rptr. 32.) The purpose of the general doctrine of waiver is to encourage a defendant to bring errors to the attention of the trial court, so that they may be corrected or avoided and a fair trial had. Thus, an objection must be made to the proposed admission...