IN RE: JERRY W.

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Court of Appeal, Fifth District, California.

IN RE: JERRY W., a Person Coming Under the Juvenile Court Law. The PEOPLE, Plaintiff and Respondent, v. JERRY W., Defendant and Appellant.

No. F018430.

Decided: May 18, 1993

Bonnie L. Rollin, under appointment by the Court of Appeal, Nevada City, for defendant and appellant. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Robert R. Anderson, Asst. Atty. Gen., Shirley A. Nelson and Laura I. Heidt, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

OPINION

When is a plea bargain not a “plea bargain” within the meaning of People v. Walker (1991) 54 Cal.3d 1013, 1 Cal.Rptr.2d 902, 819 P.2d 861, in the context of the imposition of a restitution fine not mentioned at the time of the entry of a plea?   In the present case, we find that the minor, Jerry W., did enter into a plea bargain under Walker;  the restitution fine imposed on him amounted to a significant violation of the terms of that plea agreement.   In the unpublished portion of our opinion, we additionally find that the court impermissibly imposed financial responsibility on Jerry's father (for fees and support incurred after Jerry had turned 18), and that the record does not demonstrate error in the award of custody credits.   As modified, the order committing Jerry to the Youth Authority is affirmed.

FACTS AND PROCEDURAL HISTORY

On December 13, 1990, Jerry was placed on juvenile probation for possession of cocaine.  (Welf. & Inst.Code, § 602;  Health & Saf.Code, § 11350, subd. (a).)  He remained on probation on July 28, 1992, when he shot Shon McGee in the leg during an altercation at a service station.

A Welfare and Institutions Code section 602 petition was filed, alleging three counts of assault with a firearm (there were two other young men with McGee) and one count of violation of probation.   The petition alleged that in commission of the assaults Jerry personally used a firearm.

On July 31, 1992, counsel was appointed for Jerry.   At a hearing on August 18, 1992, Jerry entered into a plea bargain, agreeing to admit one count of assault with a firearm (Pen.Code, § 245, subd. (a)(2)) and the probation violation count (Welf. & Inst.Code, § 777, subd. (a)).  Pursuant to the plea agreement, the other two assault counts and all personal use enhancements were dismissed.   On September 3, 1992, Jerry was committed to the Youth Authority for up to four years on the assault count, and for a consecutive term of up to eight months on the cocaine charge.   The court also imposed a $300 restitution fine pursuant to Welfare and Institutions Code section 730.6, subdivision (b) (hereafter section 730.6), and ordered Jerry's father to pay $150 toward Jerry's attorney fees and $25 per month for his support.

DISCUSSION

I.Restitution Fine

Jerry contends the imposition of the $300 restitution fine exceeded the terms of his plea bargain.

In People v. Walker, supra, 54 Cal.3d 1013, 1 Cal.Rptr.2d 902, 819 P.2d 861, the Supreme Court addressed the issue of imposition of restitution fines in adult felony cases involving guilty pleas.   In pertinent part, the court held that when the plea is entered “in exchange for specified benefits such as the dismissal of other counts or an agreed maximum punishment” (id. at p. 1024, 1 Cal.Rptr.2d 902, 819 P.2d 861), imposition of a substantial restitution fine violates the plea bargain unless the plea bargain expressly permits the fine (ibid.).   Even if the issue is not raised at sentencing or otherwise in the trial court, the defendant may raise the issue on appeal unless the trial court, prior to imposition of sentence, admonished the defendant pursuant to Penal Code section 1192.5.  (Id. at p. 1026, 1 Cal.Rptr.2d 902, 819 P.2d 861.) 1

Adult felony restitution fines are imposed pursuant to Government Code section 13967, subdivision (a).   That section is not applicable to delinquent juveniles.   Instead, restitution fines for juveniles are addressed in section 730.6.   At the time of the juvenile court proceedings in this matter, section 730.6 provided, in relevant part, “In addition, if the person is found to be a person described in Section 602 by reason of the commission of one or more felony offenses, the court shall impose a separate and additional restitution fine of not more than one thousand dollars ($1,000).” 2  Section 730.6 is, however, similar in purpose and origin to the restitution fine required by Government Code section 13967, subdivision (a).  (See, e.g., In re John H. (1992) 3 Cal.App.4th 1109, 1112, 6 Cal.Rptr.2d 25.)   Accordingly, a Walker analysis of the plea bargain is appropriate in this case.

 Jerry's plea bargain explicitly required dismissal of two counts and the firearm enhancements.   Prior to acceptance of the plea bargain, however, the court informed Jerry that the maximum confinement on the remaining assault count was four years.   The court did not inform him of the required restitution fine.   Since “the plea agreement did not mention such a fine” (People v. Walker, supra, 54 Cal.3d at p. 1019, 1 Cal.Rptr.2d 902, 819 P.2d 861), imposition of a substantial fine was a violation of the plea bargain (id. at pp. 1024–1027, 1 Cal.Rptr.2d 902, 819 P.2d 861.)

 Further, in this case the juvenile court did not admonish Jerry pursuant to Penal Code section 1192.5 (or any commonlaw equivalent), so the violation of the plea bargain has not been waived on appeal.  (People v. Walker, supra, 54 Cal.3d at pp. 1025–1026, 1 Cal.Rptr.2d 902, 819 P.2d 861.)

Notwithstanding the holding of People v. Walker, supra, 54 Cal.3d 1013, 1 Cal.Rptr.2d 902, 819 P.2d 861, the People rely on People v. DeFilippis (1992) 9 Cal.App.4th 1876, 12 Cal.Rptr.2d 431 for the proposition that a plea bargain that does not establish a sentence is not violated by imposition of a restitution fine.   In DeFilippis, the defendant admitted four counts of insurance fraud in return for dismissal of other counts.  “The plea bargain did not specify any punishment․  Defense counsel merely stated his ‘understanding, though not a binding commitment’ that DeFilippis would be sentenced concurrently ․ and his further ‘understanding the maximum for four counts is eight years' (i.e., assuming aggravated and consecutive sentencing).”  (Id. at p. 1878, 12 Cal.Rptr.2d 431.)   The Court of Appeal found that imposition of a restitution fine did not violate the plea bargain.   (Id. at p. 1879, 12 Cal.Rptr.2d 431;  see also People v. Davis (1988) 205 Cal.App.3d 1305, 1308–1309, 252 Cal.Rptr. 924 [disapproved by People v. Walker, supra, 54 Cal.3d at p. 1024, 1 Cal.Rptr.2d 902, 819 P.2d 861 on this point].)

We do not have before us, of course, the reporter's transcript of the DeFilippis change-of-plea and sentencing hearings.   In any event, it is not for us to determine whether the imposition of a restitution fine violated the plea bargain in the circumstances before the DeFilippis court.   It is sufficient to say that, in the matter now before us, Walker clearly requires us to find that the restitution fine violated the plea bargain.

In the present case, before the court accepted the plea bargain it advised Jerry that the maximum punishment pursuant to the bargain was five years' commitment to the Youth Authority.   As in Walker, “the plea agreement did not mention [a restitution] fine.”  (People v. Walker, supra, 54 Cal.3d at p. 1019, 1 Cal.Rptr.2d 902, 819 P.2d 861.)   Accordingly, the $300 fine was a substantial departure from the plea bargain.

The People urge a contrary result on the basis that Jerry acknowledged (after the court stated the terms of the plea agreement, including the maximum punishment) no one had made any other promises or threats to induce Jerry's admission of the two counts.   But, under Walker, that is precisely the point:  no one “promised” Jerry that pursuant to the plea bargain he could receive a monetary fine.   Instead, he impliedly (at the least) was promised that the most punishment he would receive was the five-year Youth Authority commitment.

 People v. Walker, supra, 54 Cal.3d at page 1027, 1 Cal.Rptr.2d 902, 819 P.2d 861 directs that the proper remedy for this kind of violation of a plea bargain is reduction of the mandatory restitution fine to the lowest permissible amount, thereby rendering the violation “insubstantial.”   In this case, the reduced fine is insubstantial indeed.   At the time of these proceedings, section 730.6 required a fine of “up to” $1,000, without stating a minimum amount.   Accordingly, we are compelled to reduce the section 730.6 restitution fine to $1.

II.–III.***

DISPOSITION

The dispositional order is hereby modified to reduce the restitution fine from $300 to $1 and to strike the clause requiring Jerry's father to pay support and fees for legal services.   As modified, the order is affirmed.   The juvenile court is directed to send a copy of the modified dispositional order to the Youth Authority.

FOOTNOTES

1.   Penal Code section 1192.5 provides, in relevant part, “Where such plea is accepted by the prosecuting attorney in open court and is approved by the court, the defendant, except as otherwise provided in this section, cannot be sentenced on such plea to a punishment more severe than that specified in the plea and the court may not proceed as to such plea other than as specified in the plea.  [¶] 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 application for probation or pronouncement of judgment, withdraw its approval in the light of further consideration of the matter, and (3) in such case, the defendant shall be permitted to withdraw his plea if he desires to do so.”

2.   Effective September 14, 1992, this subsection was amended to require a minimum fine of $100;  the maximum fine remains $1,000.  (See Stats.1992, ch. 682, § 9.)

FOOTNOTE.   See footnote *, ante.

VARTABEDIAN, Associate Justice.

BEST, P.J., and HARRIS, J., concur.