Filed 10/28/13 P. v. Goodman CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                       (Nevada)
                                                            ----



THE PEOPLE,                                                                                  C073068

                   Plaintiff and Respondent,                                      (Super. Ct. No. SF11388)

         v.

KIRK IVEN GOODMAN,

                   Defendant and Appellant.




         Defendant Kirk Iven Goodman pled no contest to continuous sexual abuse of a
child under age 14, four counts of lewd acts with a child under age 14, and contributing
to the delinquency of a minor. In exchange, 31 related counts were dismissed.
Defendant was sentenced to prison for 24 years and to jail on one count for time already
served. He was ordered to pay, among other things, a $1,320 restitution fine, a $1,320
restitution fine suspended unless parole is revoked, and a $2,000 restitution payment to
the Victim Compensation and Government Claims Board. Defendant obtained a
certificate of probable cause.




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       On appeal, defendant contends the restitution fines and victim restitution (payable
to the Victim Compensation and Government Claims Board) must be reduced to $240
each, the amount specified in the plea agreement. We agree the fines must be reduced
and modify the judgment accordingly.
                                          FACTS
       The facts of defendant‟s offenses are not at issue and need not be set forth in this
opinion.
                                      DISCUSSION
                                              I
                                        Restitution
       Defendant contends the restitution fines and victim restitution (payable to the
Victim Compensation and Government Claims Board) must be reduced to $240 each, the
amount specified in the plea agreement. We conclude that, following entry of the plea,
defendant agreed to a greater victim restitution payment but did not agree to greater
restitution fines. Thus, only the restitution fines must be modified.
                                             A
                                     Restitution Fines
       On October 18, 2012, defendant completed a seven page “Plea Form, with
Explanations and Waiver of Rights - Felony.” Under “Restitution, Statutory Fees, and
Assessments,” the plea form stated that the court would order defendant to pay, among
other things, “$240 to the Victim Restitution Fund (between $200 and $10,000)” and
“$240 restitution to the State of California, Victims of Crime Fund.” The form indicated
that defendant would be ordered to pay victim restitution and “court security fees” in
amounts to be determined (“TBD”).
       At the change-of-plea hearing on October 19, 2012, the trial court reviewed with
defendant the terms of the plea agreement as indicated by the plea form. Defendant
stated he had reviewed the entire plea form with his attorney and understood everything

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that was on the form. After accepting defendant‟s pleas, the trial court referred the matter
to the probation department for preparation of a presentence report.
       On December 7, 2012, the probation department filed a report recommending that
defendant pay, among other things, a $28,800 restitution fine and a $28,800 restitution
fine suspended unless parole is revoked. The amount appears to have been computed by
multiplying the statutory minimum fine ($240) by the number of felony counts (five) and
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the number of years of imprisonment (24), as suggested in Penal Code section 1202.4,
                   2
subdivision (b)(2). The recommendation overlooked both the $10,000 maximum stated
in section 1202.4, subdivision (b)(1), and the $240 fine specified in the plea form.
       Four days later, defendant filed a statement in mitigation that responded to the
probation department‟s recommendation. Recognizing that the restitution fine had been
calculated pursuant to the formula, defendant submitted that he has an “inability to pay”
and requested “that the Court not aggravate the amount but impose the statutory
minimum of $1,320 ($240 x 5 + $120 [for the misdemeanor conviction]).” Curiously, the
statement in mitigation failed to recognize that the “statutory minimum” for the felonies
was $240, not $1,200, because the minimum need not be multiplied by the number of
counts. Like the probation report, the statement in mitigation failed to recognize that the
amount of the restitution fine had been specified in the plea agreement.
       The trial court ordered restitution fines in the amount requested in the statement in
mitigation.




1
       Further statutory references are to the Penal Code unless otherwise indicated.
2
       Section 1202.4, subdivision (b)(2) provides: “In setting a felony restitution fine,
the court may determine the amount of the fine as the product of the minimum fine
pursuant to paragraph (1) multiplied by the number of years of imprisonment the
defendant is ordered to serve, multiplied by the number of felony counts of which the
defendant is convicted.”

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       “[S]ection 1202.4, subdivisions (a) and (f) require every person convicted of a
crime to pay restitution directly to the victim in an amount equal to the economic loss
suffered by the victim as a result of the defendant‟s conduct. . . . Separate and apart from
restitution, section 1202.4, subdivision (b) requires every person convicted of a crime to
pay a restitution fine: „In every case where a person is convicted of a crime, the court
shall impose a separate and additional restitution fine, unless it finds compelling and
extraordinary reasons for not doing so, and states those reasons on the record.‟ A
restitution fine is not paid by the defendant directly to the victim. Instead, it „shall be
deposited in the Restitution Fund in the State Treasury‟ [citation], from which crime
victims may obtain compensation through an application process [citation].
       “If a person is convicted of a felony, as defendant was here, under the [2012]
version of the statute „[t]he restitution fine shall be set at the discretion of the court and
commensurate with the seriousness of the offense, but shall not be less than two hundred
forty dollars ($240) . . . and not more than ten thousand dollars ($10,000) . . . .‟
[Citation.]
       “In addition, section 1202.45 requires every person who „is convicted of a crime
and whose sentence includes a period of parole‟ to pay „an additional parole revocation
restitution fine in the same amount as‟ the restitution fine under section 1202.4,
subdivision (b). [Citation.] The parole revocation fine is also paid into the state
Restitution Fund, and the fine „shall be suspended unless the person‟s parole is revoked.‟
[Citation.]” (People v. Villalobos (2012) 54 Cal.4th 177, 180-181.)
       Villalobos noted that “ „defendants are free to negotiate the amount of restitution
fines as part of their plea bargains.‟ [Citations.] The parties to a criminal proceeding
may choose to agree on a specific amount between the statutory minimum and maximum,
or they may leave it up to the sentencing court‟s discretion. [Citation.]” (People v.
Villalobos, supra, 54 Cal.4th at p. 181.) Constitutional due process requires that “ „both
parties, including the state, must abide by the terms of [a plea] agreement‟ and „[t]he

                                               4
punishment may not significantly exceed that which the parties agreed upon.‟
[Citation.]” (Id. at p. 182.) A restitution fine qualifies as punishment for this purpose.
(Ibid.)
          According to the plea form, the agreed-upon restitution fine was $240, the then-
existing statutory minimum. On appeal, the People claim this amount “was intended to
be applied to each felony count” to which defendant pled no contest. They argue “the
intent of the parties” may be divined from defense counsel‟s statement in mitigation,
prepared months after the plea, which mistakenly asserted that the “statutory minimum”
for the felonies was $240 times five counts.
          But no evidence suggests that defense counsel had held this mistaken view when
she signed the plea form. Rather, the idea of using the multiplication formula appears to
have originated with the probation report‟s recommendation of a statutorily unauthorized
$28,800 restitution fine. The fact that defense counsel‟s response to the probation report
focused upon the years multiplier, rather than the counts multiplier, does not mean that
she or defendant had intended a $1,320 restitution fine at the time they negotiated the
plea. Indeed, had that been the intent, it would have been a simple matter to state in the
plea form that the negotiated restitution fine is $1,320.
          In any event, no evidence suggests that the prosecutor ever shared defense
counsel‟s mistaken belief as to the statutory minimum restitution fines. For this reason
alone, defense counsel‟s argument in her statement in mitigation did not represent “the
intent of [both] parties.”
          The People nevertheless contend that, ultimately, defendant “expressly agreed to
the fines and restitution in the amounts imposed by the court.” We disagree.
          “Once [the trial court] accepted [defendant‟s] plea, the terms of the contract
became fixed [citation], and subsequent interpretations of that contract must be based on
an objective standard in which [defendant‟s] „reasonable beliefs‟ control. [Citations.]”
(People v. Toscano (2004) 124 Cal.App.4th 340, 345.) Even if defense counsel‟s

                                                5
statement in mitigation contained her interpretation of the plea contract, there is no
evidence that her interpretation was consistent with defendant‟s reasonable beliefs.
Defendant could not reasonably have believed the plea contract called for restitution
fines in excess of $240.
       Alternatively, nothing in the statement in mitigation suggests that defendant was
offering to modify the terms of his plea contract in exchange for the court‟s rejection of
the recommended years multiplier. Rather, the statement in mitigation appears simply to
reflect defense counsel‟s incorrect understanding of the restitution law.
       The People commendably do not claim that defendant forfeited his claim of
violation of the plea agreement when his counsel failed to object to (and, in fact,
proposed) the excessive restitution fines in the statement in mitigation. In any event,
there could not have been a rational tactical purpose for failing to insist that the plea
agreement be enforced according to its terms. We shall modify the judgment to impose a
$240 restitution fine and a $240 restitution fine suspended unless parole is revoked.
                                              B
                                      Victim Restitution
       The plea form stated that the court would order defendant to pay, among other
things, “$240 restitution to the State of California, Victims of Crime Fund.” Restitution
“to actual victim(s)” was “TBD” (to be determined).
       Defendant‟s statement in mitigation stated: “Counsel received from the People
documents reflecting $2,000 had been paid for relocation services. . . . If this direct
victim restitution is requested it should be imposed first and [defendant] is prepared to
stipulate to this amount.” Attached to the statement was a form indicating a “Relocation”
benefit in the amount of $2,000 had been paid.
       At sentencing, the trial court ordered defendant to pay “a 2,000 dollar restitution
payment to the -- direct to the Victims [sic] Compensation [and] Government [Claims]
Board. And restitution will be reserved to allow for any future appropriate restitution

                                              6
items to be claimed.” Defendant‟s counsel replied, “Your Honor, for the record,
[defendant] waives his right to a hearing on the requested 2,000 dollars.”
       The trial court‟s minute order reflects the $2,000 payment to the Victim
Compensation and Government Claims Board. It does not reflect a separate $240
payment to the “State of California, Victims of Crime Fund” identified in the plea
agreement.
       On appeal defendant contends the plea agreement‟s specification of $240 payment
to the “State of California, Victims of Crime Fund” precluded the court from ordering the
$2,000 restitution payment. We disagree.
       As we have seen, defendant‟s statement in mitigation expressly acknowledged
that sum had been paid for relocation services on behalf of the victim. The statement
further acknowledged that, “If this direct victim restitution is requested it should be
imposed first and [defendant] is prepared to stipulate to this amount.” By describing the
sum as “direct victim restitution,” defendant effectively conceded that the sum was
within the plea agreement‟s provision for “restitution to actual victim(s),” which, at the
time of the plea, had yet to be determined (“TBD”). Contrary to defendant‟s argument,
the court‟s order that “restitution will be reserved to allow for any future appropriate
restitution items to be claimed” does not mean the $2,000 payment was something other
than an item of direct victim restitution. There was no error.
                                              II
                                   Abstract Of Judgment
       We note a minor error in the abstract of judgment. Because defendant has been
convicted of violent felonies (§ 667.5, subd. (c)(6), (c)(16)), his presentence conduct
credit is calculated pursuant to section 2933.1, subdivision (a), not section 4019. The
amended abstract of judgment should so indicate.




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                                      DISPOSITION
       The judgment is modified to impose a $240 restitution fine and a $240 restitution
fine suspended unless parole is revoked. As so modified, the judgment is affirmed. The
trial court is directed to prepare an amended abstract of judgment reflecting these fines
and indicating that defendant‟s presentence conduct credit is calculated pursuant to
section 2933.1. The clerk is further directed to forward a certified copy of the amended
abstract of judgment to the Department of Corrections and Rehabilitation.



                                                   ROBIE          , J.



We concur:



      RAYE          , P. J.



      MURRAY           , J.




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