Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Los Angeles Superior Court. No. TA082776 Eleanor J. Hunter, Judge.
Lynda A. Romero, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and Catherine Okawa Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
RUBIN, J.
A jury convicted Jesus Ramon Rosales of possession of a firearm by a felon (count 5), following which Rosales pled guilty to voluntary manslaughter (count 8), and admitted that he had used a firearm during the manslaughter offense and that he had committed the manslaughter offense for the benefit of a criminal street gang. In accord with a negotiated plea agreement, the trial court sentenced Rosales to state prison for 25 years. We affirm, and remand the cause to the trial court with directions to make clerical corrections to the abstract of judgment.
FACTS
1. The Robbery of Christopher Benitez (count 4)
On October 14, 2005, Rosales and a cohort approached Christopher Benitez and Michael Gutierrez as they were preparing to drive out of a gas station. Rosales walked up to the driver’s side window and asked Benitez, “How was thug life[?]” and Benitez replied, “Everything is cool.” Rosales then bent down, looked at Gutierrez, demanded to know why he was looking at Rosales, and asked, “You want to get fucked up?” When Gutierrez replied, “By who?” Rosales stated, “Compton Varrios T-Flats,” and pulled out a handgun. At that point, Rosales’s cohort demanded Benitez’s cell phone, and grabbed the phone from Benitez’s lap.
2. The Killing of Larry Martinez (count 8)
On October 31, 2005, Larry Martinez drove his car to an auto repair shop on Paramount Boulevard for some repairs. When Martinez entered the parking lot, Rosales approached Martinez’s car, and the two men engaged in a short conversation during which Rosales hit Martinez in the head, and said, “How do you like that[?]” The encounter ended when Rosales pulled out a handgun and shot and killed Martinez. Martinez was a member of the East Side Paramount gang, which is a rival gang to Rosales’s gang.
3. The Possession of a Firearm
On November 10, 2005, Rosales drove his car to Indiana Avenue, leaned out the window, and fired several gunshots at cars parked along the street. At least one bullet hit a nearby house. Los Angeles County Sheriff’s Department officers responded to the scene within about three or four minutes, where a victim reported that the shooter (whom the victim later identified as Rosales) had driven away in a burgundy or maroon car. Deputy Luis Delatorre broadcast a description of the shooter and his car. Shortly after receiving the radio broadcast, Deputy Joel Rodriguez spotted Rosales’s car and decided to initiate a traffic stop because the car matched the description in the radio broadcast. When Deputy Rodriguez activated the lights on is patrol car, Rosales drove away and led Deputy Rodriguez on a pursuit at a “high rate of speed.” The pursuit ended near Rosecrans Avenue and Century Boulevard, where Rosales crashed into a wall, and abandoned his car and ran away. Police found a .22-caliber rifle and a .357 revolver in Rosales’s car. On November 16, SWAT officers used chemical agents to “extract” Rosales from a garage in which he had barricaded himself. When the SWAT officers secured the premises, they found an Intertech Tec-9 pistol in the garage.
4. Trial, Plea, and Sentencing
In March 2006, the People filed an information charging Rosales with six felony counts: (1) murder; (2) shooting at an unoccupied vehicle; (3) shooting at an inhabited dwelling; (4) robbery of Benitez; (5) possession of a firearm by a felon; and (6) a robbery unrelated to the events summarized above. On May 18, 2006, a jury found Rosales guilty of possession of a firearm by a felon (count 5), but could not reach verdicts on the remaining counts. Prior to retrial, Rosales negotiated a plea agreement with the prosecution.
On December 1, 2006, Rosales pled guilty to an amended charge of voluntary manslaughter (count 8), and admitted that he had used a firearm during the manslaughter offense and that he had committed the manslaughter offense for the benefit of a criminal street gang. On February 6, 2007, in accord with the negotiated plea agreement, the trial court sentenced Rosales to state prison for 25 years and dismissed the remaining counts.
In addition to the term of imprisonment, the trial court ordered Rosales to pay a $200 restitution fine to the victims’ restitution fund (Pen. Code, § 1202.4, subd. (b)), a parole revocation fine (Pen. Code, § 1202.45), and direct victim restitution in the amount of $4,850.34 (Pen. Code, § 1202.4, subd. (f)).
Rosales filed a timely notice of appeal.
DISCUSSION
I.
Rosales contends the trial court erred by ordering him to pay direct victim restitution in the amount of $4,850.34 -- the burial expenses incurred by Larry Martinez’s family. According to Rosales, the direct victim restitution award is improper because it “significantly exceeds” the terms of his plea agreement. He expressly concedes the negotiated plea is not invalid “in any respect,” but suggests his case “should be remanded so the trial court may consider whether compelling and extraordinary reasons justify a reduced victim restitution award.” We reject Rosales’s suggestion, and affirm the award of direct victim restitution.
A.
As we explained in our opinion in People v. Collins (2003) 111 Cal.App.4th 726 (Collins): “Even though there are both statutory . . . and due process limitations on a trial court’s ability to deviate from a plea bargain, . . . ‘[a] punishment or related condition that is insignificant relative to the whole, such as a standard condition of probation, may be imposed whether or not it was part of the express negotiations.’ ” (Id. at p. 731, quoting People v. Walker (1991) 54 Cal.3d 1013, 1024 (Walker); see also People v. Nystrom (1992) 7 Cal.App.4th 1177, 1181 (Nystrom).)
In Walker, the Supreme Court essentially concluded that an advisement of the “maximum penalties . . . and . . . fine” for a crime did not operate as the functional equivalent of an advisement that a “restitution” fine also would be imposed. (Walker, supra, 54 Cal.3d at pp. 1019, 1026.) For this reason, and because a plea bargain “is not subject to harmless error analysis,” the Supreme Court vacated an undiscussed $5,000 “restitution” fine, and ordered the fine to be reduced to the statutory minimum of $100. (Id. at pp. 1026-1031 [a court may not impose punishment significantly greater than that bargained for by the defendant].)
In Collins, we affirmed an award for direct victim restitution where defendant had been advised that a “restitution fine” in a sum between $200 and $10,000 would be imposed. Although the probation officer’s report indicated that the victim suffered property loss in the amount of $4,500, the report did not specifically recommend payment of direct victim restitution, nor was defendant advised that direct victim restitution would be a consequence of his plea. The trial court, without objection, ordered defendant to pay a $200 fine payable to the victims’ restitution fund (Pen. Code, § 1202.4, subd. (a)(2)), plus a $200 parole revocation fine (Pen. Code, § 1202.45), plus direct victim restitution in the amount of $4,500. (Collins, supra, 111 Cal.App.4th at p. 729.)
We found the award for direct victims restitution was insignificant under Walker because defendant had been advised that he could be assessed as much as $10,000 as a “restitution fine.” (Collins, supra, 111 Cal.App.4th at pp. 731-733.) In other words, we found that an advisement about the possibility of a “restitution fine” was sufficient to encompass a possible restitution fine payable both to the victims’ restitution fund and to the victim directly. (Id. at p. 733 [“[w]e cannot discern how it could possibly matter to appellant whether he paid restitution to the victim or to the state”].)
The Nystrom case is similar to our Collins decision. In Nystrom, Division One of the Fourth District Court of Appeal affirmed a direct victim restitution award where defendant had been advised of the following potential consequence of his plea: “ ‘Restitution and/or restitution fine. ($100-$10,000) . . . ’ ” (Nystrom, supra, 7 Cal.App.4th at pp. 1180-1181.) Basically, the Nystrom court found defendant had been put on adequate notice that he would have to pay restitution in some form, and, therefore, he had not been subjected to a term which was outside the parameters of his plea agreement.
The lesson to be learned from Collins and the other published cases is that, in determining whether the addition of an undiscussed restitution term is significant, we must consider the totality of the circumstances surrounding the plea agreement, and determine whether the final judgment violates the plea bargain. (Collins, supra, 111 Cal.App.4th at p. 732.)
B.
1.
Before Rosales entered his plea on December 1, 2006, the following exchange took place while the prosecutor was advising Rosales of the consequences of his plea:
“[THE PROSECUTOR]: You’re going to have to pay a restitution fine. In addition to your prison sentence, the court can impose a fine ranging from $200 to the maximum $10,000. And restitution fine [is] at least $200.
“(The defendant confers with his counsel off the record.)
“[DEFENSE COUNSEL]: It will be $200 or $10,000, Your Honor? I always heard it [was] at $10,000.
“THE COURT: It will be $200.
“[DEFENSE COUNSEL]: Thank you.”
2.
At Rosales’s sentencing on February 6, 2007, after the trial court pronounced the 25-year prison sentence, the following exchange occurred:
“THE COURT: . . . The defendant is ordered to pay a $200 restitution fine; [¶] pay a $200 parole revocation . . . fine; I’ll stay that pending any type of future revocation hearings; [¶] the defendant is to submit himself for a D.N.A sample; [¶] and, lastly, the defendant is ordered to pay a $20 court security fine.
“[THE PROSECUTOR]: Your Honor, I submitted an order . . . for restitution for the victim’s burial expenses. I think it came out to $4,850.34.
“THE COURT: And restitution to the victim. At this time, the court will order the defendant to pay $4,850.34. That apparently covers the cost of the burial for the victim. [¶] The court will go ahead and sign that, and that will be part of his sentence. [¶] Anything further?
“[THE PROSECUTOR]: . . . There’s a People’s motion to dismiss counts 1, 2, 3, and 6.
“THE COURT: All right. Very well. [¶] All right. Mr. Rosales, good luck to you.
“[DEFENSE COUNSEL]: Thank you, Your Honor. [¶] One other matter. Can he kiss his family members. The bailiff has no objection.
“THE COURT: As long as my bailiff doesn’t care, I don’t get involved.”
C.
Based on the totality of the circumstances surrounding Rosales’s plea and sentencing, we decline to vacate the award of direct victim restitution intended to compensate Larry Martinez’s family for his funeral expenses. Although it is true that, at the time Rosales entered his plea, the trial court suggested that the amount of restitution would be $200, we are satisfied for several reasons that the award for Martinez’s funeral expenses did not add a “significant” new term to Rosales’s plea agreement.
First, direct victim restitution is mandatory under Penal Code section 1202.4, subdivision (f), and, at the time of his plea, Rosales’s counsel acknowledged that Rosales would be required to pay restitution (his only question was about the amount). Second, Rosales pled guilty to manslaughter –– to the killing of Martinez –– and was advised that he would be required to pay restitution. In this context, we find it difficult to accept that Rosales did not expect to pay his victim’s funeral expenses. Third, when the award of direct victim restitution in the amount of $4,850.34 was announced at the time of Rosales’s sentencing, Rosales did not express any surprise or concern, and did not object. In addition, Rosales’s opening brief on appeal does not argue that the award of direct victim restitution is wholly improper; his request is a remand in order to allow the trial court to consider whether to reduce the award. Under these circumstances, we are satisfied that the award of direct victim restitution was an understood element of Rosales’s plea agreement, and that the award need not be disturbed. (Collins, supra, 111 Cal.App.4th at pp. 731-733; Nystrom, supra, 7 Cal.App.4th at pp. 1180-1181.)
Finally, Rosales has failed to persuade us that any purpose would be served by a remand. There is nothing in the record to suggest a reasonable probability that the trial court would reduce the award of direct victim restitution on remand. (People v. Price (1991) 1 Cal.4th 324, 492.)
II.
In his opening brief, Rosales claimed he was entitled to additional custody credits. In their respondent’s brief, the People advised us that the trial court had corrected Rosales’s custody credits. In his reply brief, Rosales confirms that he has received the proper custody credits. Rosales’s claim regarding custody credits error is moot.
III.
In their respondent’s brief, the People note that the abstract of judgment contains two clerical errors: first, it indicates that the firearm enhancement was imposed pursuant to Penal Code section 12022.53, subdivision (b), rather than Penal Code section 12022.5; and, second, it indicates that the sentence on the firearm enhancement is 10 years and the sentence on the gang enhancement is four years, rather than vice-versa. The People request that we direct the trial court to prepare a corrected abstract of judgment. We agree the abstract should reflect the trial court’s true sentence, and will direct the trial court to prepare a corrected abstract of judgment.
DISPOSITION
The judgment is affirmed. The cause is remanded to the trial court with directions to issue a corrected abstract of judgment.
We concur: COOPER, P. J., FLIER, J.