P. v. Adams

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Filed 1/19/07 P. v. Adams 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(San Joaquin)
THE PEOPLE,
Plaintiff and Respondent,
v.
KENNETH JAMES ADAMS,
Defendant and Appellant.
C050911
(Super. Ct. No.
MF028072A)
The sole issue in this case is whether a victim restitution
payment imposed by the court after defendant’s guilty plea
violated the terms of his plea bargain. Defendant obtained a
certificate of probable cause. We shall conclude defendant has
not demonstrated that the imposition of the victim restitution
payment violated the terms of his plea bargain, a fact that
distinguishes this case from the leading case of People v.

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Walker (1991) 54 Cal.3d 1013 (Walker). Accordingly, we shall
affirm the judgment and sentence.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was accused of stabbing Kathleen Tompkins with a
15-inch sword, puncturing her lung and liver, and piercing her
arm with a “through and through wound.” Her injuries required
surgery, and she was hospitalized for 12 days.
After initially entering a not guilty plea to charges of
attempted murder, and assault with a deadly weapon, defendant
pleaded guilty to the charge of assault with a deadly weapon.
(Pen. Code, § 245, subd. (a)(1).)1 He also admitted three
enhancements to that count, namely two enhancements for
conviction of a prior serious felony (§§ 1170.12, subd. (b),
667, subds. (a) and (d)) and one enhancement for infliction of
great bodily injury (§ 12022.7, subd. (a)).
No written plea agreement or waiver appears in the record.
The trial court recited the terms of the agreement in court as
follows:
“Mr. Adams, what I have been told is you’re
going to plead to Count 2, the assault by
means of force likely to produce great
bodily injury, a felony, and that is also a
strike. [¶] That you are going to admit
the prior strike from January 28th, 2002,
and you are also going to admit the prior
serious felony offense, which was that
strike. [¶] And you will also admit the
infliction of great bodily injury. [¶] The
1 References to an undesignated section are to the Penal Code.

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remaining counts and enhancements will be
dismissed. I’m going to sentence you to the
upper term of four years in State Prison.
That would be doubled because of the strike
to eight years. [¶] You will receive an
additional five years for the serious
felony, an additional three years for the
great bodily injury, for a total sentence of
sixteen years in State Prison. [¶] Is that
your understanding of what’s going to happen
today?”
Defendant answered in the affirmative, and in response to
questioning informed the court no one had made any threats or
any other promises to him to get him to enter a plea. He also
indicated he had been given enough time to discuss his case with
his attorney, and that he had no questions before sentencing.
The trial court proceeded to inform defendant of the
consequences of his plea including the possibility of parole and
deportation if he was not a citizen. The trial court did not
advise defendant that he could be required to make a restitution
payment to the victim, nor did the court advise defendant of any
possible fines. The court did not advise defendant pursuant to
section 1192.5 that the court could not sentence him to a
punishment more severe than the one specified in the plea.
The trial court advised defendant of his constitutional
rights and took defendant’s waiver of those rights. The court
took defendant’s guilty plea. The victim made a statement on
the record, and immediately thereafter the trial court sentenced
defendant. After specifying the prison term, the court ordered
defendant to pay a restitution fine of $200 and a parole
revocation fine of $200, which the court stayed on the condition

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defendant not violate parole. The court then ordered defendant
to pay restitution to the victim “in an amount and manner to be
determined by Probation and to be collected by the Department of
Corrections.” Defendant raised no objection to the sentence.
DISCUSSION
Defendant argues the restitution payment must be stricken
because it was not part of his plea bargain.2 Defendant’s
argument rests entirely on the California Supreme Court decision
in Walker. In that case, the defendant signed a change of plea
form, initialing his understanding of the agreement. (Walker,
supra, 54 Cal.3d at p. 1019.) He agreed to be sentenced to
prison for five years. The court orally explained that “‘the
maximum penalties provided by law for this offense are either 3
years, 5 years, or 7 years in state prison and a fine of up to
$10,000,’ followed by a period of parole.” (Ibid.) The court
sentenced defendant to a five-year prison term, but also imposed
a restitution fine of $5,000, even though the plea agreement did
not mention such a fine. (Ibid.) The defendant did not object
to the fine at sentencing, but argued on appeal that the
restitution fine should be stricken because it was not a part of
the plea bargain. (Ibid.)
The court explained that there were two principles at work.
The first was a defendant’s right to be advised of the direct
2 Defendant filed a notice of appeal based in part on the
imposition of the restitution order, and the trial court granted
his request for a certificate of probable cause.

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consequences of the plea, a “‘judicially declared rule of
criminal procedure[,]’” which may be forfeited absent a timely
objection, and which requires a showing of prejudice by the
appellant.3 (Walker, supra, 54 Cal.3d at pp. 1020, 1022-1023.)
The second was the principle that the parties must adhere to the
terms of a plea bargain. (Id. at p. 1020.) This latter right
cannot be forfeited by mere failure to object at sentencing,
unless the trial court specifically informed the defendant
pursuant to section 1192.5 prior to making the plea that the
defendant may not receive a punishment more severe than that
specified in the plea, that the court may withdraw its approval
at the time of application for probation or pronouncement of
judgment, and that in such case the defendant could withdraw the
plea. (Id. at pp. 1024-1025.) A violation of a plea bargain is
not subject to a harmless error analysis. (Id. at p. 1026.)
The remedy is to reduce the fine to the statutory minimum. (Id.
at p. 1027.)
It is clear that the trial court’s failure to advise
defendant of the victim restitution payment is not a ground to
strike the payment. Such an argument is forfeited if not raised
at sentencing, and defendant has not established prejudice.
(Walker, supra, 54 Cal.3d at pp. 1022-1023.)
3 Although Walker used the term “waiver,” the Supreme Court
has more recently indicated that the term “forfeiture” is more
accurate. (People v. Simon (2001) 25 Cal.4th 1082, 1097, fn.
9.)

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The only possible ground for striking the payment is that
the punishment imposed significantly exceeded that which the
parties agreed upon.4 Defendant admits the amount of the payment
is not known, but asserts it is “likely to be a significant
amount given that the victim was hospitalized for twelve days
and continued to have lingering impairments at the time of
sentencing.”
In People v. Dickerson (2004) 122 Cal.App.4th 1374, 1382,
(Dickerson) the basis for the defendant’s appeal was the
imposition of post-plea fines. The trial court did not specify
the amount of any fines that might be imposed, but did advise
the defendant prior to sentencing that he could be subject to
fines of up to $50,000 and that the court was required to impose
a restitution fine of between $200 and $10,000. (Id. at p.
1378.) In resolving whether the fines imposed violated the
defendant’s plea bargain, Dickerson noted that later Supreme
Court cases have clarified the application of Walker.
The high court has explained that, “[i]n Walker, the
offense to which the defendant had agreed to plead guilty
4 We address this issue with the understanding that the
Supreme Court has granted review in People v. Crandell (May 20,
2005, H027641) [nonpub. opn.] review granted August 24, 2005,
S134883. The court’s docket states that the issue presented in
that case is whether the “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[.]” (See the court’s website at
<http://appellatecases.courtinfo.ca.gov/search/case/mainCaseScre
en.cfm?dist=0&doc_id=376320&doc_no=S134883>.)

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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 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. [¶] 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.” (In re Moser (1993) 6 Cal.4th 342, 356,
italics added.)
In People v. McClellan (1993) 6 Cal.4th 367, the defendant
sought to have his guilty plea set aside on the ground that the
trial court had failed to inform him that upon conviction he
would be required to register as a sex offender. (Id. at p.
370.) The court noted that the defendant was not contending
that the challenged element of the sentence was a negotiated
part of the agreement or that the prosecutor had made any
promises in that regard. (Id. at p. 379.) The court concluded
that the trial court’s omission of advice regarding the
registration requirement did not transform the court’s error
into a term of the parties’ plea agreement. (Ibid.)
In light of the Supreme Court cases explaining Walker,
Dickerson concluded that under the circumstances the parties had
not included the imposition of fines in their plea negotiation,

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and the setting of the fines had been left to the court’s
discretion. (Dickerson, supra, 122 Cal.App.4th at p. 1385.)
The fact that the court did not mention the restitution fine
when reciting the plea bargain suggested that no agreement had
been reached on the imposition or amount of any fine. (Ibid.)
Also relevant to the court’s decision was the fact that the
defendant had indicated the district attorney had made no
promises other than fixing the prison term, and the fact that no
one in the trial court seemed to think that the imposition of
restitution fines violated the terms of the bargain, as
evidenced by their failure to object. (Ibid.)
As in Dickerson, we conclude that the fact that the parties
and court omitted any mention of a restitution payment as part
of the plea agreement cannot be construed to imply that there
was an agreement that the sentence would include no payment. In
fact, the language of section 1202.4 indicates that the payment
of full restitution is mandatory unless the court “finds
compelling and extraordinary reasons for not doing so, and
states them on the record.” (§ 1202.4, subd. (f).) Relevant to
our decision is the lack of any affirmative evidence that the
parties actually agreed there would be no restitution payment,
the defendant’s representation that no one had made any promises
to obtain his plea except those related to the length of the
prison term, and the absence of any objection when the payment
was imposed.

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DISPOSITION
The judgment and sentence are affirmed.
BLEASE , Acting P. J.
I concur:
CANTIL-SAKAUYE , J.

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ROBIE, J.
I concur in the result.
For purposes of this case, direct victim restitution under
subdivision (f) of Penal Code section 1202.4 is
indistinguishable from the sex offender registration requirement
in People v. McClellan (1993) 6 Cal.4th 367. Specifically, it
is “a statutorily mandated element of punishment for the
underlying offense” that, “unlike the amount of a restitution
fine, . . . is not a permissible subject of plea agreement
negotiation,” and therefore it “was an inherent incident of
defendant’s decision to plead guilty.” (Id. at p. 380.) For
this reason, defendant is not entitled to have the restitution
order stricken.
ROBIE , J.

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