Filed 4/8/14 P. v. Gonzalez CA4/2

                     NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
    publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
                              publication or ordered published for purposes of rule 8.1115.


          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                  FOURTH APPELLATE DISTRICT

                                                DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E059037

v.                                                                       (Super.Ct.No. FVI1201936)

GABRIEL ANTHONY GONZALEZ,                                                OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of San Bernardino County. John M.

Tomberlin, Judge. Affirmed as modified.

         Patricia Ihara, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Barry Carlton and James H.

Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.




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                                             I

                                    INTRODUCTION

       On May 16, 2013, pursuant to a negotiated plea agreement, defendant and

appellant Gabriel Anthony Gonzalez pled guilty to (1) assault with a deadly weapon in

violation of Penal Code1 section 245, subdivision (a)(1), and (2) assault by means of

force likely to cause great bodily injury in violation of section 245, subdivision (a)(4).

Defendant also admitted a gang enhancement under section 186.22, subdivision (b)(1).

Thereafter, the trial court sentenced defendant to 10 years in state prison and imposed

various fines and fees.

       On appeal, defendant contends that the victim restitution fine under section

1202.4 should be reduced pursuant to the terms of the negotiated plea agreement. The

People agree with defendant.

                                             II

                               STATEMENT OF FACTS2

       Defendant and three other people attacked two victims with a car and knife.

Police found pictures of defendant throwing gang signs. Defendant has a gang tattoo.




       1   All statutory references are to the Penal Code unless otherwise specified.

       2 The parties stipulated that the police reports would represent the factual basis
of defendant’s guilty plea.


                                             2
                                            III

                                      ANALYSIS

       Defendant contends that a victim’s restitution fine should be reduced because it

exceeded the negotiated term that he and the prosecutor agreed to in the plea

agreement. The People agree with defendant.

       In this case, on the day set for the preliminary hearing, the parties provided the

trial court with an executed change of plea form. Among other terms, the form stated

that the parties had agreed for defendant to pay the minimum restitution fines. The

trial court stated that it accepted and approved the plea agreement. The court then

imposed the agreed-upon sentence and ordered a $1,000 restitution fine under section

1202.4.

       At the time of the plea agreement, the minimum restitution fine was $280.00.

(Former § 1202.4, subd. (b)(1).) Here, the parties clearly stated to the court that the

plea agreement represented a contract between them. “[W]hen a plea rests in any

significant degree on a promise or agreement of the prosecutor, so that it can be said to

be a part of the inducement or consideration, such promise must be fulfilled.”

(Santobello v. New York (1971) 404 U.S. 257, 262; see also People v. Walker (1991)

54 Cal.3d 1013, 1024, overruled on another ground in People v. Villalobos (2012) 54

Cal.4th 177, 183.) “Where the plea is accepted by the [People] in open court and is

approved by the court . . . the court may not proceed as to the plea other than as




                                            3
specified in the plea.” (§ 1192.5; see also In re Jermaine B. (1999) 69 Cal.App.4th

634, 639.)

       Recently, the California Supreme Court provided that defendants are free to

negotiate the amount of restitution fines as part of their plea bargains. (People v.

Villalobos, supra, 54 Cal.4th at p. 181.) The parties to a criminal proceeding may

choose to agree upon a specific amount between the statutory minimum and

maximum, or they may leave it up to the sentencing court’s discretion. (Ibid.)

Constitutional due process requires that both parties, including the state, must abide by

the terms of a plea agreement and the punishment may not significantly exceed that

which the parties agreed upon. (Id. at p. 182.) A restitution fine qualifies as

punishment for this purpose. (Ibid.)

       In this case, according to the plea form, the agreed-upon restitution fine was the

statutory minimum, $280.00. There is nothing in the record to suggest that there was a

contrary agreement. “Once [the trial court] accepted [defendant’s] plea, the terms of

the contract became fixed.” (People v. Toscano (2004) 124 Cal.App.4th 340, 345.)

Here, defendant should receive the benefit of his bargain pursuant to the terms of the

negotiated plea agreement. Therefore, his restitution fine should be reduced from

$1,000 to $280.




                                            4
                                           IV

                                     DISPOSITION

       The judgment is modified to reflect a $280 restitution fine. (§ 1202.4.) The

court is directed to amend the abstract of judgment and its minute order to reflect this

modification and to forward a certified copy of the amended abstract of judgment to

the Department of Corrections and Rehabilitation. In all other respects, the judgment

is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS




                                                             RICHLI
                                                                             Acting P. J.


We concur:


MILLER
                          J.


CODRINGTON
                          J.




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