People v. Walker

Decision Date05 December 1991
Docket NumberNo. S017854,S017854
Citation819 P.2d 861,54 Cal.3d 1013,1 Cal.Rptr.2d 902
CourtCalifornia Supreme Court
Parties, 819 P.2d 861 The PEOPLE, Plaintiff and Respondent, v. Dexter M. WALKER, Defendant and Appellant.

Harvey E. Goldfine, San Rafael, under appointment by the Supreme Court, for defendant and appellant.

John K. Van de Kamp and Daniel E. Lungren, Attys. Gen., Richard B. Iglehart and George Williamson, Chief Asst. Attys. Gen., Harley D. Mayfield, Asst. Atty. Gen., and Robert M. Foster, Deputy Atty. Gen., for plaintiff and respondent.

ARABIAN, Justice.

We granted review in this case to resolve a conflict in the Court of Appeal over the proper means of remedying the erroneous imposition of a restitution fine. As explained below, we order the restitution fine of this case reduced to the statutory minimum of $100.

I. FACTS

Defendant was charged by information with two felony counts, including, in count 2, the attempted use of a destructive device with the intent to injure or intimidate. (Pen.Code, § 12303.3.) 1 According to the probation report, defendant placed a bomb in his ex-wife's car which was designed to detonate when the brake lights or headlights were activated. Fortunately, the bomb was discovered and defused before it exploded.

On April 21, 1988, pursuant to a plea bargain, defendant pleaded guilty to count 2. The district attorney and defendant agreed that in return for the guilty plea, count 1 would be dismissed, and defendant would be sentenced to state prison for the midterm of five years with credit for time served. Defendant signed a change of plea form, and initialed his understanding of the agreement. He waived his constitutional rights. The court orally explained to defendant that "the maximum penalties provided by law for this offense are either 3 years, 5 years, or 7 years in state prison and a fine of up to $10,000," followed by a period of parole.

The court sentenced defendant immediately after the guilty plea. In accordance with the plea bargain, it imposed a five-year prison sentence and awarded credit for time served. It also imposed a restitution fine of $5,000, although the plea agreement did not mention such a fine. The probation report prepared before the plea, and supplied to the defense, recommended a $7,000 restitution fine; the record discloses no other mention of the possibility of such a fine prior to sentencing. Defendant did not object to the fine at sentencing.

Defendant appealed on the sole ground that the restitution fine was not part of the plea bargain, and should be stricken. The Court of Appeal found error, but held that the only remedy was to allow defendant to withdraw his guilty plea and, if he chose to do so, to reinstate the dismissed count. Accordingly, it reversed the judgment and remanded the matter to the trial court. We granted review to consider the propriety of that disposition.

II. DISCUSSION
A. Background

A person convicted of a felony faces the possible imposition of two different kinds of fine. First is a penal fine, up to $10,000 in this case. (§§ 672, 12303.3.) The court "may" impose this fine. (§ 672.) Second is a restitution fine. As relevant to this case, the court "shall" impose a restitution fine of at least $100 and not more than $10,000 (Gov.Code, § 13967, subd. (a)) "regardless of the defendant's present ability to pay. However, if the court finds that there are compelling and extraordinary reasons, the court may waive imposition of the fine. When such a waiver is granted, the court shall state on the record all reasons supporting the waiver." (§ 1202.4, subd. (a).) "This statutory requirement is the result of a constitutional amendment adopted by the voters as part of Proposition 8. (See Cal. Const., art. I, § 28, subd. (b).)" (People v. Davis (1988) 205 Cal.App.3d 1305, 1309, 252 Cal.Rptr. 924.)

Determining whether the restitution fine in this case was properly imposed and, if not, the appropriate remedy to correct the error, requires consideration of two related but distinct legal principles. (See People v. Glennon (1990) 225 Cal.App.3d 101, 104, 276 Cal.Rptr. 1.)

The first principle concerns the necessary advisements whenever a defendant pleads guilty, whether or not the guilty plea is part of a plea bargain. The defendant must be admonished of and waive his constitutional rights. (Boykin v. Alabama (1969) 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274; In re Tahl (1969) 1 Cal.3d 122, 81 Cal.Rptr. 577, 460 P.2d 449.) In addition, and pertinent to this case, the defendant must be advised of the direct consequences of the plea. (Bunnell v. Superior Court (1975) 13 Cal.3d 592, 605, 119 Cal.Rptr. 302, 531 P.2d 1086.)

The second principle is that the parties must adhere to the terms of a plea bargain. (People v. Mancheno (1982) 32 Cal.3d 855, 860, 187 Cal.Rptr. 441, 654 P.2d 211.)

In any given case, there may be a violation of the advisement requirement, of the plea bargain, or of both. Although these possible violations are related, they must be analyzed separately, for the nature of the rights involved and the consequences of a violation differ substantially. Indeed, much of the confusion engendered by the appellate decisions on this issue results from a blurring of the distinction between these principles.

B. The Prior Cases

The first case to consider this question was People v. Oberreuter (1988) 204 Cal.App.3d 884, 251 Cal.Rptr. 522. In Oberreuter the defendant argued that the restitution fine "must be stricken, because it was not part of the plea bargain and [defendant] was not advised a fine could be imposed as possible punishment before he entered his plea." (Id. at p. 888, 251 Cal.Rptr. 522.) The court found that "a restitution fine, like any other penal consequence, may not be imposed on a plea-bargain participant where it was not included in the negotiated agreement." (Ibid.) It held that the proper remedy for the violation was to strike the fine. (Id. at pp. 889-890, 251 Cal.Rptr. 522.) Justice Benke dissented, finding no error and arguing that if there was error, the proper remedy was not to strike the fine but to allow the defendant to withdraw the guilty plea. (Id. at pp. 890-893, 251 Cal.Rptr. 522 (dis. opn. of Benke, J.).)

A similar contention was raised in People v. Robinson (1988) 205 Cal.App.3d 280, 252 Cal.Rptr. 202. The Court of Appeal dismissed the appeal because the defendant had not obtained a certificate of probable cause, but stated in dicta that the trial court must advise the defendant about the restitution fine prior to the guilty plea.

People v. Davis, supra, 205 Cal.App.3d 1305, 252 Cal.Rptr. 924, was the first decision to disagree with Oberreuter. Davis discussed both the plea bargain and advisement issues, and concluded the defendant was not entitled to relief from the imposition of a $100 restitution fine. Concerning the plea bargain, the court found that defendant "has not demonstrated that the plea bargain involved any limitation on the court's mandatory duty to impose a restitution fine" (id. at p. 1308, 252 Cal.Rptr. 924), and that "The public policy represented by the mandatory fine 'is too substantial to permit erosion' by reliance on mere silence in the course of a plea bargain." (Id. at p. 1309, 252 Cal.Rptr. 924, quoting In re Chambliss (1981) 119 Cal.App.3d 199, 203, 173 Cal.Rptr. 712.) It found a violation of the advisement requirement, but held there was no prejudice because of the small amount of the fine. (Id. 205 Cal.App.3d at pp. 1310-1311, 252 Cal.Rptr. 924.)

In People v. Ross (1990) 217 Cal.App.3d 879, 265 Cal.Rptr. 921, the defendant claimed that "the imposition of restitution fines was improper and they must be stricken because [defendant] was not advised of the possibility of such fines when she entered her plea." (Id. at p. 885, 265 Cal.Rptr. 921.) Agreeing with Oberreuter and disagreeing with Davis, the court held that the fine must be stricken. It pointed out that imposition of the restitution fine may be waived for " 'compelling and extraordinary' " reasons (§ 1202.4, subd. (a)), and reasoned that a failure of advisement was a valid basis for not imposing the fine. (Ross, supra, 217 Cal.App.3d at p. 887, 265 Cal.Rptr. 921.)

The court in People v. Melton (1990) 218 Cal.App.3d 1406, 267 Cal.Rptr. 640 took a different approach. Although a plea bargain was negotiated and a guilty plea taken without mention of a possible restitution fine, the probation report recommended such a fine. In light of this, the Court of Appeal held that the defendant's failure to object to the imposition of the fine waived his right to challenge the fine on appeal.

In People v. Williams (1990) 224 Cal.App.3d 179, 273 Cal.Rptr. 526, the court reviewed the prior cases and agreed with Ross and Oberreuter. It ordered the restitution fine stricken both because of the failure of advisement and because it was not part of the negotiated plea. (Id. 224 Cal.App.3d at pp. 185-186, 273 Cal.Rptr. 526.)

Most recently, in People v. Glennon, supra, 225 Cal.App.3d 101, 276 Cal.Rptr. 1, the court noted that the guilty plea was not the result of a negotiated disposition. Hence the court concluded that "it is appropriate, in such cases where there is no evidence of breach of the plea agreement, to deny relief unless the error is shown to be prejudicial." (Id. at p. 105, 276 Cal.Rptr. 1.) The court found no prejudice and would have denied relief, except that the trial court (unnecessarily) advised the defendant at the time of the plea "that he could withdraw it if the indicated disposition was not the sentence imposed." (Id. at pp. 105-106, 276 Cal.Rptr. 1.) In light of this advice, the court allowed the defendant to withdraw his guilty plea. (Id. at p. 106, 276 Cal.Rptr. 1.)

The Court of Appeal here found that the trial court had erroneously failed to advise defendant under section 1192.5 that if it imposed a sentence other than in conformity with the plea bargain, he could withdraw the guilty plea....

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