P. v. Floyd

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Filed 1/10/07 P.v . Floyd CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
ERIC JASON FLOYD,
Defendant and Appellant.
A114159
(Lake County
Super. Ct. No. CR908603)
This appeal from a guilty plea concerns the propriety of a $525 drug program
fee imposed as part of appellant’s sentence. We affirm.
I. BACKGROUND
By information filed in March 2006, the District Attorney of Lake County
charged appellant Eric Jason Floyd with possession of oxycodone for sale (Health &
Saf. Code,1 § 11351, count 1) and possession of oxycodone (§ 11350, subd. (a),
count 2). The information further alleged that appellant suffered two prior prison
terms. Pursuant to a negotiated disposition, appellant pleaded guilty to the first count
in return for dismissal of the remaining count and the enhancements. The court
sentenced appellant to the midterm of three years in state prison and also imposed a
$600 restitution fine; a suspended parole revocation fine of the same amount; a $175
laboratory analysis fee plus penalty assessment (§ 11372.5); a $525 drug program fee
1 Unless otherwise noted, all statutory references are to the Health and Safety
Code.

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plus penalty assessment (§ 11372.7); and a $20 court security fee. This timely appeal
followed.
II. DISCUSSION
In the process of taking appellant’s plea, the court advised him that in addition
to the restitution fine “you may also be ordered to make a fine payment in the sum of
not to exceed ten thousand dollars, plus penalty assessments; you understand that?”
Appellant acknowledged that he understood. Among other items the probation report
recommended the lab and drug program fees (with penalties) and the court imposed
the same without objection.
Appellant attacks the imposition of the drug program fine and penalty
assessment pursuant to section 11372.7. He argues that these items were not part of
the plea bargain and therefore the court had no authority to impose them.
Appellant relies on People v. Walker (1991) 54 Cal.3d 1013 (Walker).2 There,
the court imposed a restitution fine but did not advise the defendant of the possibility
of such fine prior to his plea. The defendant did not object at sentencing. Because
imposition of such a fine was recommended in the probation report, the Supreme
Court deemed the failure to advise of this consequence waived by the defendant’s
failure to object at the sentencing hearing. (Id. at pp. 1022-1023.) However, the
court concluded that imposition of the restitution fine violated the defendant’s plea
agreement and reversed with directions to modify the judgment by reducing the
restitution fine to the $100 statutory minimum. (Id. at pp. 1029-1031.)
The salient facts of Walker are captured in In re Moser (1993) 6 Cal.4th 342,
356: “[T]he offense to which the defendant had agreed to plead guilty carried a
potential seven-year sentence and a $10,000 punitive fine, but under the negotiated
plea agreement the defendant was to receive a five-year term of imprisonment and no
2 We note that on August 24, 2005, the Supreme Court granted review in People v.
Crandell, S134883 on the issue of whether imposition of a restitution fine under Penal
Code section 1202.4, subdivision (b) violates a defendant’s plea agreement if the fine was
not an express term of the agreement.

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punitive fine. At the subsequent sentencing hearing, the trial court imposed the
agreed-upon five-year sentence but also a substantial ($5,000) restitution fine.” The
Moser court also explained: “In concluding that the imposition of such a substantial
fine constituted a violation of the plea agreement in Walker, we implicitly found that
the defendant in that case reasonably could have understood the negotiated plea
agreement to signify that no substantial fine would be imposed.” (Ibid.)
The parties negotiating a plea agreement are free to craft any lawful bargain
they choose. (People v. Buttram (2003) 30 Cal.4th 773, 785.) Walker does not
preclude criminal defendants from reaching whatever deal seems to be in their best
interests, including a deal that leaves imposition of fines to the discretion of the
sentencing court. (People v. Dickerson (2004) 122 Cal.App.4th 1374, 1384.) Here
the record of the negotiated disposition is silent as to a drug program fine and penalty
assessments. Certainly such silence does not constitute evidence of an agreement
that no fine, or a minimum fine within a statutory range, would be imposed. Rather,
we conclude it suggests an implicit agreement that the imposition and amount of any
fines would be left to the discretion of the sentencing court. (See People v. Sorenson
(2005) 125 Cal.App.4th 612, 619-620.)
Several factors support our conclusion that the matter of fines was left to the
court’s discretion. First, the main focus of the plea agreement was the amount of
prison time. (See People v. Knox (2004) 123 Cal.App.4th 1453, 1460.) Second, the
court advised, and appellant acknowledged, that he could be fined up to $10,000 plus
penalty assessments. (See id. at p. 1461; People v. Sorenson, supra, 125 Cal.App.4th
at pp. 616, 619.) Further, the probation report notified appellant that the probation
officer was recommending specific fines and penalties, and appellant did not object
at sentencing to these recommendations or the court’s imposition of such fines. (See
People v. Dickerson, supra, 122 Cal.App.4th at p. 1385.)

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III. DISPOSITION
The imposition of the $525 drug program fee did not violate the terms of the
negotiated disposition. Accordingly, the judgment is affirmed.
_________________________
Reardon, J.
We concur:
_________________________
Ruvolo, P.J.
_________________________
Sepulveda, J.

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