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Court of Appeal, Fifth District, California.

The PEOPLE, Plaintiff and Respondent, v. Jimmie Ferrel JONES, Defendant and Appellant.


Decided: August 13, 1987

Donald J. Horvath, Fresno, under appointment by the Court of Appeal, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Jane N. Kirkland, Deputy Atty. Gen., Sacramento, for plaintiff and respondent.

In an information filed in Kern County Superior Court, defendant was charged with violation of Penal Code 1 section 211 (robbery).   It was further alleged defendant suffered two prior serious felony convictions:  a 1968 conviction for violation of sections 207 and 211 (kidnapping and robbery) within the meaning of section 667;  and a 1977 conviction for violation of Health and Safety Code section 11350 (possession of a controlled substance) within the meaning of section 667.5, subdivision (b).

Defendant was arraigned and pled not guilty.   However, he subsequently changed his plea, entered a conditional plea of guilty and admitted the prior convictions.

Probation was denied and defendant was sentenced as follows:  three years for robbery plus a consecutive term of five years for the 1968 prior conviction, with a one-year term for the 1977 prior conviction being stayed.   The court also imposed a $100 restitution fine pursuant to Government Code section 13967.

Defendant filed a statement of reasons in support of his notice of appeal, based upon erroneous sentencing on the five-year prior.   A notice of appeal was then filed with this court.

Defendant's request for a certificate of probable cause was denied by the court which took the change of plea.   He then wrote the sentencing court and asked that his sentence be recalled because the record did not reveal the court exercised discretion when imposing the five-year sentence on the 1968 prior.   The court considered defendant's letter and calendared a motion for reconsideration of sentence.   A motion to strike the 1968 prior in the interests of justice, pursuant to section 1385, was filed by defense counsel.

Defendant's subsequent motion for reconsideration of sentence, based upon the imposition of the five-year enhancement for the 1968 prior conviction, was denied.   Defendant was given an opportunity to file a late appeal with this court.

Defendant filed a motion for summary reversal which was denied.   A second motion was filed in which defendant moved for summary reversal, or in the alternative, that the case be expedited.   Ruling on the new summary reversal motion was deferred until resolution of the merits;  the motion to expedite was denied.



Defendant's argument is presented as follows:

“If a trial court imposes sentence greater than that called for in a plea bargain, the defendant is entitled to withdraw his guilty plea.  (Pen.Code, section 1192.5;  People v. Calloway (1981) 29 Cal.3d 666 [175 Cal.Rptr. 596, 631 P.2d 30];  People v. Kaanehe (1977) 19 Cal.3d 1, 14 [136 Cal.Rptr. 409, 559 P.2d 1028].

“Therefore, the judgment should be reversed with directions to allow appellant a reasonable opportunity to withdraw his guilty plea if he is so advised.”

The Attorney General argues the imposition of a fine was implicit in the plea since the fine is mandatory, subject to waiver only upon extraordinary and compelling reasons (citing Gov.Code, § 13967 & Pen.Code, § 1202.4).   It is urged that if we reject this position and find the fine improper, we strike the fine and affirm the judgment.

Defendant goes on to argue by way of reply:



“Government Code section 13967 makes a restitution fine mandatory absent compelling and extraordinary reasons that such fine not be imposed.   However, the fact that the fine is mandatory does not mean that it can be imposed without regard for the terms of a negotiated guilty plea as urged by respondent.

“The fallacy of respondent's argument that a fine was ‘implicit in appellant's plea bargain’ ․ is easily demonstrated by assuming a criminal statute which makes imposition of a prison sentence mandatory and a defendant who pleads guilty upon condition that he be sentenced to jail.   Hopefully, respondent would not argue that a prison sentence was ‘implicit’ in such a plea bargain?

“Conceptually, a mandatory prison sentence is no different than a mandatory restitution fine.

“It is not difficult to deal with mandatory punishment in the context of a plea bargain.   For the mandatory punishment lawfully to be imposed, the defendant must agree to it;  if the defendant does not so agree, the punishment cannot be imposed upon a negotiated guilty plea without giving the defendant a right to withdraw his guilty plea.   The applicable statute so provides;  (Pen.Code section 1192.5) Government Code section 13967, relied upon by respondent, does not provide otherwise.


“Respondent urges this court to simply strike the fine and allow appellant's eight year prison sentence to stand if the court should conclude that the fine is improper․

“The problem with respondent's argument is that the California Legislature has provided a more effective remedy for the imposition of a sentence in excess of a plea bargain—it has given the defendant a right to withdraw his guilty plea.  (Pen.Code, section 1192.5.)   The California Supreme Court has also concluded that appellant has a right to withdraw his guilty plea.  (People v. Calloway (1981) 29 Cal.3d 666 [175 Cal.Rptr. 596, 631 P.2d 30];  People v. Kaanehe (1977) 19 Cal.3d 1, 14, fn. 9 [136 Cal.Rptr. 409, 559 P.2d 1028].)

“Appellant respectfully urges this court to refrain from charting new waters when the proper channel has already so clearly been marked by both statute and binding precedent.  (Auto Equity Sales v. Superior Court (1962) 57 Cal.2d 450, 456 [20 Cal.Rptr. 321, 369 P.2d 937].)

“Respondent also urges that appellant should be held to the benefit of his bargain.   If appellant had received any benefit from his plea bargain, this argument would lack merit in light of the authorities cited above;  when it is remembered that appellant is serving an eight year prison term for a $53 cap gun robbery, respondent's statement fast approaches frivolous.”

The record reveals no mention of the fine in the hearing in which the plea was taken.   Instead, the focus was upon defendant receiving a maximum “lid” of eight years.2  However, the fine was mentioned in the probation report, and no objection to its imposition was made at sentencing.

At the outset, we note the Attorney General has not argued the plea was a limited one—limited only to the term of imprisonment to be imposed.  (See In re Chambliss (1981) 119 Cal.App.3d 199, 202–203, 173 Cal.Rptr. 712.)   Nor has it been argued the issue is waived for purposes of appeal due to defendant's conduct at the hearing in which the plea was taken and at sentencing.

 Government Code section 13967 provides for a restitution fine of $100 to $10,000.3  Advisement of the direct consequences of a guilty plea is required as a judicially declared rule of criminal procedure.  (In re Yurko (1974) 10 Cal.3d 857, 864, 112 Cal.Rptr. 513, 519 P.2d 561.)   We conclude imposition of a fine pursuant to section 13967 is a direct consequence of a guilty plea;  therefore, a defendant must be advised a guilty plea might result in a restitution fine pursuant to Government Code section 13967, in an amount between $100 and $10,000.

Section 1192.5 provides:

“Upon a plea of guilty or nolo contendere to an accusatory pleading charging a felony ․ the plea may specify the punishment to the same extent as it may be specified by the jury on a plea of not guilty or fixed by the court on a plea of guilty, nolo contendere, or not guilty, and may specify the exercise by the court thereafter of other powers legally available to it.

“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 the 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.   The court shall also cause an inquiry to be made of the defendant to satisfy itself that the plea is freely and voluntarily made, and that there is a factual basis for such plea.

“If such plea is not accepted by the prosecuting attorney and approved by the court, the plea shall be deemed withdrawn and the defendant may then enter such plea or pleas as would otherwise have been available.”

 Defendant's position that under the above section withdrawal of the plea is mandatory simply asks this court to do too much by reading Penal Code section 1192.5 in such an all-encompassing manner.  (See, e.g., People v. Kaanehe (1977) 19 Cal.3d 1, 13, 136 Cal.Rptr. 409, 559 P.2d 1028;  People v. Daughtery (1981) 123 Cal.App.3d 314, 322, 176 Cal.Rptr. 500.)   We therefore order the judgment modified and the fine stricken—a result agreeable with the Attorney General and which provides defendant with the full benefit of his original bargain.  (See, e.g., People v. Flores (1971) 6 Cal.3d 305, 309, 98 Cal.Rptr. 822, 491 P.2d 406.)



The motion for summary reversal is denied.   The judgment is ordered modified to reflect the fine has been stricken.   As modified, the judgment is affirmed.


FN1. All statutory references are to the Penal Code unless otherwise indicated..  FN1. All statutory references are to the Penal Code unless otherwise indicated.

2.   Relevant portions of the transcript from the change of plea hearing are provided below:“THE COURT:  People versus Jones.“․“Mr. Jones, I understand that you are going to plead guilty to the charge of the first count, violation of Section 211 of the Penal Code, a felony, which has a determinate sentence of two years, three years, or five years, and you are pleading for the mid term, three years, and that you are going to admit a five-year prior and a one-year prior, but the one-year prior will be stayed, so the maximum prison time you are looking at is five plus three, or eight years.“Is that your understanding?“DEFENDANT JONES:  Yes, sir.“․“THE COURT:  You understand the maximum term you can get under this plea bargain is eight years in the state penitentiary?“DEFENDANT JONES:  Yes.“․“THE COURT:  May it be further stipulated any judge in the Superior Court may pass sentence in accordance with the plea bargain heretofore struck?“MR. ROSTAIN [District Attorney]:  That the one-year enhancement will be stayed, so stipulated.“MR. WIED [Defense Counsel]:  So stipulated.“DEFENDANT JONES:  Agreed.”

3.   Section 13967, subdivision (a), provides:“(a) Upon a person being convicted of any crime in the State of California, the court shall, in addition to any other penalty provided or imposed under the law, order the defendant to pay restitution in the form of a penalty assessment in accordance with Section 1464 of the Penal Code.   In addition, if the person is convicted of one or more felony offenses, the court shall impose a separate and additional restitution fine of not less than one hundred dollars ($100) and not more than ten thousand dollars ($10,000).   In setting the amount of the fine for felony convictions, the court shall consider any relevant factors including, but not limited to, the seriousness and gravity of the offense and the circumstances of its commission, any economic gain derived by the defendant as a result of the crime, and the extent to which others suffered losses as a result of the crime.   Such losses may include pecuniary losses to the victim or his or her dependents as well as intangible losses, such as psychological harm caused by the crime.   Except as provided in Section 1202.4 of the Penal Code and subdivision (c) of this section, under no circumstances shall the court fail to impose the separate and additional restitution fine required by this section.   This fine shall not be subject to penalty assessments as provided in Section 1464 of the Penal Code.”Penal Code section 1202.4, subdivision (a), at the time of sentencing in this case, provided:“(a) In any case in which a defendant is convicted of a felony, the court shall order the defendant to pay a restitution fine as provided in subdivision (a) of Section 13967 of the Government Code.   Such restitution fine shall be in addition to any other penalty or fine imposed and shall be ordered 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.”

FOOTNOTE.   See footnote *, ante.

WOOLPERT, Acting Presiding Justice.

BEST and REID †, JJ., concur.