Filed 8/27/13
                               CERTIFIED FOR PUBLICATION




                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                               THIRD APPELLATE DISTRICT
                                         (San Joaquin)
                                              ----


THE PEOPLE,                                                        C069405

                  Plaintiff and Respondent,              (Super. Ct. No. ST056863A)

        v.

MICHAEL ANTHONY CRUZ,

                  Defendant and Appellant.




      APPEAL from a judgment of the Superior Court of San Joaquin County, Franklin
Stephenson, Judge. Affirmed with directions.

      Donn Ginoza, under appointment by the Court of Appeal, for Defendant and
Appellant.

       Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and J. Robert
Jibson, Deputy Attorneys General, for Plaintiff and Respondent.



        Defendant Michael Anthony Cruz entered a negotiated plea of no contest to
driving with a 0.08 percent blood-alcohol level or higher and causing injury (Veh. Code,
§ 23153, subd. (b)). The trial court sentenced him to the agreed upon term of 16 months


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in state prison. On appeal, he contends the imposition of $2,450 worth of fines must be
reversed as having no statutory basis within the confines of the plea agreement.
       The People initially agreed that remand was appropriate in this case because no
statutory basis for the penal fine was specified in the plea agreement. However, during
the pendency of this appeal, the California Supreme Court decided People v. Villalobos
(2012) 54 Cal.4th 177 (Villalobos), which clarified the law relied upon by the parties in
their briefs. We requested and received supplemental briefs from the parties regarding
the effect of Villalobos on the issue presented. The People withdrew their concession
that the fine should be reduced. We agree and affirm the judgment.
                                      BACKGROUND
       We dispense with a recitation of the facts underlying defendant‟s offense, as they
are irrelevant to the disposition of this appeal.
       Defendant was charged with driving under the influence and causing injury in
violation of Vehicle Code section 23153, subdivision (a) (count 1), driving with a 0.08
percent blood-alcohol level or higher and causing injury in violation of Vehicle Code
section 23153, subdivision (b) (count 2), driving with a suspended or revoked license in
violation of Vehicle Code section 14601.2, subdivision (a) (count 3), failure to provide
evidence of financial responsibility in violation of Vehicle Code section 16028,
subdivision (a) (count 4), and failure to stop in violation of Vehicle Code section 22450
(count 5). It was also alleged that defendant had personally inflicted great bodily injury
(Pen. Code, § 12022.7, subd. (a)) and caused bodily injury to multiple victims (Veh.
Code, § 23558) in connection with counts 1 and 2.
       On May 23, 2011, defendant entered into a negotiated plea agreement wherein he
agreed to plead no contest to count 2 in exchange for dismissal of the remaining
allegations. It was further agreed that defendant would be sentenced to the low term of
16 months in prison. Neither the plea agreement, nor the trial court‟s advisements prior



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to the plea, mentioned the imposition of any fines other than a general understanding that
there would be a “restitution order.”
       Preparation of a probation report was waived and defendant also waived his rights
under Arbuckle.1 Sentence was imposed by a judge other than the one who took
defendant‟s plea. The trial court imposed the agreed upon term of 16 months in prison
and awarded defendant custody credits. It then imposed “a fine in the amount of $2,744.
That includes a $200 restitution fine, a $20 surcharge, a $40 court security fee, $30
administrative fee and $4 transportation fee. [¶] There‟s a second $200 restitution fine
that‟ll be stayed on the condition you comply with the terms and conditions of your
parole.” The court clerk supplied statutory references on the abstract of judgment for all
of the fines and fees expressly specified by the trial court, with the exception of the “$4
transportation fee.”
                                        DISCUSSION
                                              I
       As the parties recognize, the trial court identified the statutory basis for only $294
of the $2,744 fine, leaving an unspecified amount of $2,450. The parties also
acknowledge that there is a mandatory minimum fine for defendant‟s offense of $390,
which was not identified by the trial court as included in the stated fine.2 (Veh. Code, §




1      People v. Arbuckle (1978) 22 Cal.3d 749.
2       The record reflects defendant also has a 2010 conviction for driving under the
influence. Vehicle Code section 23560 provides, in pertinent part: “If a person is
convicted of a violation of Section 23153 and the offense occurred within 10 years of a
separate violation of Section 23103, as specified in Section 23103.5, 23152, or 23153 that
resulted in a conviction, that person shall be punished by imprisonment in the state
prison, or in a county jail for not less than 120 days nor more than one year, and by a fine
of not less than three hundred ninety dollars ($390) nor more than five thousand dollars
($5,000).”

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23560.) We presume the trial court was aware of and followed the applicable law.
(People v. Martinez (1998) 65 Cal.App.4th 1511, 1517.) The logical conclusion to be
drawn here is that the trial court intended the $2,450 to be the mandatory Vehicle Code
section 23560 penal fine.
       Relying on People v. Walker (1991) 54 Cal.3d 1013, 1026-1030 (Walker), the
parties initially agreed that, because neither the plea agreement nor the court‟s
advisement set forth an understanding that the trial court may impose a fine in an amount
in its discretion beyond the statutory minimum, a fine in excess of the $390 minimum
would be a significant deviation from the terms of the plea agreement.3
       However, the California Supreme Court has since decided Villalobos, “clarif[ying]
the default rule when neither the parties nor the trial court mentions restitution fines in
the context of a plea bargain.” (Villalobos, supra, 54 Cal.4th at p. 186.) The court
explained that reading Walker to suggest that mere silence concerning a statutorily
mandated punishment indicates a defendant could reasonably understand that no
substantial fine would be imposed cannot be reconciled with subsequent California
Supreme Court cases. (Villalobos, supra, at p. 183.) As explained in People v. Crandell
(2007) 40 Cal.4th 1301, “ „ “the core question in every case . . . is whether the restitution
fine was actually negotiated and made a part of the plea agreement, or whether it was left



       In his brief, defendant erroneously states that the current conviction is his first
driving under the influence conviction and cites to Vehicle Code section 23554 as the
provision providing for the penal fine. That provision provides for a fine of “not less
than three hundred ninety dollars ($390) nor more than one thousand dollars ($1,000)” if
the conviction is a first offense for driving under the influence.
3      Defendant did not object to the imposition of the fine as exceeding the terms of his
plea agreement at sentencing. However, the trial court did not admonish defendant in
accordance with Penal Code section 1192.5, informing him of the right to withdraw a
disapproved plea. Accordingly, he has not forfeited his objection to a punishment
exceeding the terms of the plea agreement. (Walker, supra, 54 Cal.3d at pp. 1024-1026,
1030.)

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to the discretion of the court . . . .” ‟ [Citations.]” (Villalobos, supra, at p. 185, quoting
People v. Crandell, supra, 40 Cal.4th at p. 1309.)
       Thus, “where the parties have not mentioned the amount of the fine during the
plea negotiation, and where the trial court has not threatened or promised any particular
amount of fine during the plea colloquy, the amount of the fine is not part of the plea
agreement, and the trial court is free to impose a fine within the statutory range. Absent
an expressly negotiated term in the plea bargain concerning the fine, [there is] no basis to
conclude that imposition of a fine within the statutory range constitutes more punishment
than what the defendant bargained for.” (Villalobos, supra, 54 Cal.4th at p. 184.)
       Of course, although Villalobos addressed a mandatory restitution fine, the rule
applies equally to mandatory penal fines. Defendant contends the rule set forth in
Villalobos should not be applied retroactively to him because it established a new rule of
law, in conflict with what had been the previous existing law upon which he was entitled
to rely. (See People v. Guerra (1984) 37 Cal.3d 385, 399-401.)
       On the contrary, Villalobos expressly stated it was clarifying the default rule that,
as the court explained, was being misapplied based on lack of clarity in the Walker
decision, and was consistently applying the proper analysis as set forth in its subsequent
cases. (Villalobos, supra, 54 Cal.4th at pp. 183-186; see People v. Crandell, supra, 40
Cal.4th 1301; People v. McClellan (1993) 6 Cal.4th 367.) In fact, Villalobos affirmed the
judgment of the Court of Appeal, which had relied upon existing law -- specifically,
People v. Crandell, supra, 40 Cal.4th 1301. (Villalobos, supra, at p. 180.) Thus, the rule
in Villalobos is appropriately applied retroactively to defendant as, indeed, the California
Supreme Court applied it retroactively to defendant Villalobos.
       In sum, because the amount of the penal fine was neither made a part of
defendant‟s plea agreement nor otherwise specified in the plea colloquy, it was left to the
trial court‟s discretion. (See Villalobos, supra, 54 Cal.4th at pp. 181, 184-185.) The



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record reflects the trial court imposed a $2,450 penal fine. No modification of the
judgment is warranted.
                                              II
       Defendant also complains that the abstract of judgment does not delineate the
statutory basis for the $4 transportation fee. This omission, he contends, requires the $4
fee be stricken.
       The trial court expressly imposed a “$4 transportation fee.” The abstract describes
the fee as a “$4 MED. AIR TRANSP. FEE.” Government Code section 76000.10
requires the trial court to impose a mandatory $4 fee as part of the “Emergency Medical
Air Transportation Act” for every conviction for violation of the Vehicle Code, with the
exception of parking offenses. (Gov. Code, § 76000.10, subd. (c)(1).)
       Although this fee was sufficiently identified by the trial court upon imposition of
sentence, the statutory basis for the fee must be set forth on the abstract of judgment.
(People v. High (2004) 119 Cal.App.4th 1192, 1200.) Additionally, the abstract should
set forth the statutory basis for the $2,450 penal fine discussed in the previous section.
Accordingly, we will direct the trial court to prepare a corrected abstract of judgment.
                                      DISPOSITION
       The judgment is affirmed. The trial court is directed to prepare a corrected
abstract of judgment setting forth Government Code section 76000.10 as the statutory
basis for the $4 transportation fee, and Vehicle Code section 23560 as the statutory basis
for the $2,450 penal fine, and forward a certified copy thereof to the Department of
Corrections and Rehabilitation.

                                                    NICHOLSON          , J.

We concur:

      RAYE            , P. J.

      DUARTE          , J.

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