Filed 2/10/14 P. v. Tompkins CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                         H039693
                                                                   (Santa Clara County
         Plaintiff and Respondent,                                  Super. Ct. No. C1243000)

         v.

KAREN M. TOMPKINS,

         Defendant and Appellant.




         Pursuant to a negotiated plea, defendant and appellant Karen M. Tompkins
pleaded no contest to one count of second degree burglary, a felony (Pen. Code, §§ 459,
460, subd. (b)).1 She also admitted the following enhancement allegations: (1) she had
previously been convicted of one serious or violent felony within the meaning of the
Three Strikes Law (§§ 667, subds. (b)-(i); 1170.12); (2) she had served a prior prison
term (§ 667.5, subd. (b)); and (3) she had two prior felony convictions that made her
ineligible for probation (§ 1203, subd. (e)(4)).
         After denying her Romero 2 motion, the court sentenced defendant to 32 months in
prison, the maximum amount of time permissible under the plea agreement. The court
also struck the punishment for the prison prior enhancement, imposed a $480 restitution
         1
              All further statutory references are to the Penal Code.
         2
              People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
fine (§ 1202.4), and imposed, but suspended, a $480 parole revocation restitution fine
(§ 1202.45). The court imposed other fines, fees, and assessments and awarded custody
credits.
       On appeal, defendant contends the amounts of the restitution fine (§ 1202.4) and
the parole revocation restitution fine (§ 1202.45) are incorrect. She asserts that the
parties agreed, when they entered into the plea agreement, that the amount of each of
those fines would be $308, and that the court violated the plea agreement when it
imposed the $480 restitution fine and imposed, but suspended, the $480 parole revocation
restitution fine. The Attorney General concedes that defendant’s restitution fine claim
has merit and urges us to modify the judgment and reduce the restitution fine to $308.
We shall accept the concession. And although the Attorney General’s brief does not
mention the parole revocation restitution fine, we shall also reduce the amount of that
fine since section 1202.45 requires that the parole revocation restitution fine be in the
same amount as the restitution fine. We shall affirm the judgment as so modified.

                                           F ACTS

       The facts are based on the testimony of two San José Police officers at the
preliminary hearing.
       Around 5:30 p.m. on October 14, 2012, Simon Gonzalez was at home, watching
television, when he heard a noise in his backyard. He went outside and saw the
following: the doors to his shed were open and the shed had been ransacked. He also
saw defendant leaving his backyard.
       Shortly before that, Gonzalez’s neighbor, Maria Ponce, saw defendant and an
unidentified man walking down the street; one was carrying a trash can and the other was
carrying a recycling bin. Ponce then saw both of them walk up Gonzalez’s driveway,
open the gate, and enter his backyard.


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      Gonzalez and two family members followed defendant on foot to a nearby
apartment complex. Someone called the police and officers were dispatched to the
apartment complex. Defendant was arrested without incident. Gonzalez told the officers
some items were missing from his shed, including a power tool. Defendant did not have
the items with her when she was arrested.

                                 P ROCEDURAL HISTORY

      After the preliminary hearing, defendant was charged by information with one
count of second degree burglary (§§ 459, 460, subd. (b)) and the three enhancements
described previously. Defendant initially pleaded not guilty and denied the
enhancements.
      On January 14, 2013, the day the case was set for trial, the parties entered into a
negotiated disposition. At the change of plea hearing, defendant pleaded no contest to the
second degree burglary count (§§ 459, 460, subd. (b)) and admitted the three
enhancement allegations, including the allegation that she had previously been convicted
of one serious or violent felony within the meaning of the Three Strikes Law (§§ 667,
subds. (b)-(i); 1170.12). The parties agreed that defendant would be allowed to make a
Romero motion and that the maximum sentence under the plea agreement would be
32 months.
      Upon taking the plea, the court advised defendant that if she went to trial, her
maximum sentence would be seven years, with a “mandatory minimum of 32 months
with the strike prior.” The court also advised defendant, among other things, that she
would be required to pay a “restitution fund fine of $308” and that the court would
“impose but suspend an equal amount that [defendant] only need pay if [she] fail[ed]




                                            3
probation and probation is revoked.”3 This is a reference to the probation revocation
restitution fine under section 1202.44; the court did not advise defendant regarding a
section 1202.45 parole revocation restitution fine.
       A probation report was prepared after the plea was taken. The probation officer
recommended that: (1) probation be denied; (2) defendant be sentenced to 32 months in
prison; (3) a “Restitution Fine of $480.00 be imposed under the formula permitted by”
section 1202.4; and (4) a parole revocation restitution fine in the amount of $480.00 be
imposed and suspended pursuant to section 1202.45.4
       At the sentencing hearing, the court denied the Romero motion and defendant’s
request for probation. The court followed the recommendations in the probation report
and sentenced defendant to 32 months in prison (the 16-month lower term, doubled
because of the strike prior), imposed a $480 restitution fine (§ 1202.4), and imposed and
suspended a $480 parole revocation restitution fine (§ 1202.45). The court struck the
one-year punishment resulting from defendant’s admission of the prison prior (§ 667.5,
subd. (b)) and awarded custody credits equal to 413 days. At sentencing, defendant did
not object that the amounts of the restitution and parole revocation restitution fines
violated the plea agreement.




       3
          When the parties entered into the plea agreement, it appears they agreed that if
defendant’s Romero motion were granted, her sentence could include a grant of
probation. The court advised defendant that if she were “placed on probation, which
would only happen if the strike was stricken,” she would have to pay a probation
supervision fee. The court also stated, “If you are sentenced to state prison, upon your
release, you could be placed on parole or community supervision for up to three years.”
       4
          The probation officer also reported that defendant was “excluded from
sentencing” under the 2011 public safety realignment legislation (§ 1170, subd. (h))
because of her strike prior for attempted first degree burglary.

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                                        DISCUSSION

       Defendant argues that the court violated the plea agreement when it imposed a
$480 restitution fine (§ 1202.4) because the court had advised her, when it took her plea,
that the restitution fine would be $308. She also contends that the “section 1202.45
suspended parole revocation restitution fine must also be reduced to $308.” The Attorney
General concedes that the restitution fine claim has merit and urges us to modify the
judgment and reduce the restitution fine to $308. But the Attorney General has
overlooked the parole revocation restitution fine. For the following reasons, we shall
accept the concession and modify the judgment as to both fines.
       Section 1202.4 requires every person convicted of a crime to pay a restitution fine.
(People v. Villalobos (2012) 54 Cal.4th 177, 180-181 (Villalobos).) It provides in
relevant part: “(b) 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. [¶] (1) The
restitution fine shall be set at the discretion of the court and commensurate with the
seriousness of the offense. If the person is convicted of a felony, the fine shall not be less
than two hundred forty dollars ($240) starting on January 1, 2012, two hundred eighty
dollars ($280) starting on January 1, 2013, . . . and not more than ten thousand dollars
($10,000).” The restitution fine is not paid directly to the victim; instead, it is deposited
in the Restitution Fund in the State Treasury (§ 1202.4, subd. (e)) from which crime
victims may obtain compensation through an application process. (Villalobos, at p. 181.)
       “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). (§ 1202.45.) The parole revocation fine is also paid into the state



                                              5
Restitution Fund, and the fine ‘shall be suspended unless the person’s parole is revoked.’
(Ibid.)” (Villalobos, supra, 54 Cal.4th at p. 181.)
       “[I]t is important to distinguish ‘two related but distinct legal principles’ ” that
may apply when a restitution fine is erroneously imposed. (Villalobos, supra, 54
Cal.4th at p. 181, quoting People v. Walker (1991) 54 Cal.3d 1013, 1020, 1022 (Walker),
overruled on another ground as stated in Villalobos, at pp. 185-186.) “First, ‘before
taking a guilty plea the trial court must admonish the defendant of both the constitutional
rights that are being waived and the direct consequences of the plea.’ ” (Villalobos, at
p. 181.) “The second principle is the constitutional due process requirement that ‘both
parties, including the state, must abide by the terms of [a plea] agreement’ and ‘[t]he
punishment may not significantly exceed that which the parties agreed upon.’ ”
(Villalobos, at p. 182, quoting Walker, at p. 1024 [a restitution fine ‘qualifies as
punishment for this purpose’].)5 As we shall explain, both principles are implicated in
this case.
       Regarding the restitution fine (§ 1202.4), only the second type of error, violation
of the plea bargain, is at issue. The court advised defendant when it took her plea that the
direct consequences of her plea included a $308 restitution fine (§ 1202.4). But when the
court sentenced defendant, it imposed a $480 restitution fine, an amount that was not
consistent with the terms of the plea agreement. “When a restitution fine above the
statutory minimum is imposed contrary to the actual terms of a plea bargain, the

       5
         “A defendant forfeits a claim that his [or her] punishment exceeds the terms of a
plea bargain when the trial court gives a section 1192.5 admonition and the defendant
does not withdraw his plea at sentencing. ([Citation]; see § 1192.5 [requiring trial court,
upon approving a plea, to inform defendant that its approval is not binding and that
defendant may withdraw the plea if the court withdraws its approval before
sentencing].)” (Villalobos, supra, 54 Cal.4th at p. 182.) Here, as in Villalobos, the trial
court did not give a section 1192.5 admonition, so defendant’s failure to object at
sentencing does not forfeit her claim on appeal. (Ibid.)



                                               6
defendant is entitled to a remedy.” (People v. Crandell (2007) 40 Cal.4th 1301, 1309.)
Since the court failed to abide by the terms of the plea agreement, the proper remedy is to
modify the judgment and reduce the restitution fine to $308, the amount agreed upon.6
(Ibid.) We therefore accept the Attorney General’s concession regarding the restitution
fine.
        As for the parole revocation restitution fine (§ 1202.45), the first type of error
(failure to advise of the consequences of the plea) is at issue. As the court explained in
Villalobos, “because ‘advisement as to the consequences of a plea is not constitutionally
mandated,’ ‘the error is waived absent a timely objection.’ ” (Villalobos, supra, 54
Cal.4th at p. 182, quoting Walker, supra, 54 Cal.3d at pp. 1022, 1023; see also People v.
Dickerson (2004) 122 Cal.App.4th 1374, 1386-1387 [“When the complaint is simply that
advisement of a direct consequence of a plea was omitted, and not that the plea bargain
was breached, this ‘error is waived if not raised at of before sentencing’ ”]) Under this
rule, since defendant failed to object to the parole revocation restitution fine at or before
sentencing, the advisement error does not entitle her to a remedy. (Villalobos, at p. 182.)
However, when the court omits or imposes an erroneous parole revocation restitution
fine, it may be corrected on appeal because “[u]nder section 1202.45, a trial court has no
choice and must impose a parole revocation fine equal to the restitution fine whenever the
‘sentence includes a period of parole.’ ” (People v. Smith (2001) 24 Cal.4th 849, 853,
quoting § 1202.45, original italics.) Since the amount of the parole revocation restitution
fine must be the same as the restitution fine (§ 1202.45), we shall modify the judgment
and reduce the amount of the parole revocation restitution fine to $308.


        6
          Defendant committed her offense in October 2012 and was sentenced in May
2013. The amount the parties negotiated for the restitution fine ($308) exceeds both the
statutory minimum fine in effect starting on January 1, 2012 ($240) and the minimum
fine in effect starting on January 1, 2013 ($280). (§ 1202.4, subd. (b)(1).) Thus, as
defendant observes, the question of which of those two rates applies need not be resolved.

                                               7
                                       DISPOSITION

       The restitution fine (§ 1202.4) is reduced to $308. The parole revocation
restitution fine (§ 1202.45) is also reduced to $308. As so modified, the judgment is
affirmed. The trial court clerk is directed to prepare an amended abstract of judgment
that sets forth the correct amounts of the restitution fine and the parole revocation
restitution fine, and to send a copy of the amended abstract of judgment to the
Department of Corrections and Rehabilitation.




                                    _______________________________
                                    Márquez, J.




       WE CONCUR:




       ______________________________
        Rushing, P. J.




       _______________________________
        Premo, J.



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