Filed 4/8/14 P. v. Gonzalez CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E059037
v. (Super.Ct.No. FVI1201936)
GABRIEL ANTHONY GONZALEZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. John M.
Tomberlin, Judge. Affirmed as modified.
Patricia Ihara, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Barry Carlton and James H.
Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
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I
INTRODUCTION
On May 16, 2013, pursuant to a negotiated plea agreement, defendant and
appellant Gabriel Anthony Gonzalez pled guilty to (1) assault with a deadly weapon in
violation of Penal Code1 section 245, subdivision (a)(1), and (2) assault by means of
force likely to cause great bodily injury in violation of section 245, subdivision (a)(4).
Defendant also admitted a gang enhancement under section 186.22, subdivision (b)(1).
Thereafter, the trial court sentenced defendant to 10 years in state prison and imposed
various fines and fees.
On appeal, defendant contends that the victim restitution fine under section
1202.4 should be reduced pursuant to the terms of the negotiated plea agreement. The
People agree with defendant.
II
STATEMENT OF FACTS2
Defendant and three other people attacked two victims with a car and knife.
Police found pictures of defendant throwing gang signs. Defendant has a gang tattoo.
1 All statutory references are to the Penal Code unless otherwise specified.
2 The parties stipulated that the police reports would represent the factual basis
of defendant’s guilty plea.
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III
ANALYSIS
Defendant contends that a victim’s restitution fine should be reduced because it
exceeded the negotiated term that he and the prosecutor agreed to in the plea
agreement. The People agree with defendant.
In this case, on the day set for the preliminary hearing, the parties provided the
trial court with an executed change of plea form. Among other terms, the form stated
that the parties had agreed for defendant to pay the minimum restitution fines. The
trial court stated that it accepted and approved the plea agreement. The court then
imposed the agreed-upon sentence and ordered a $1,000 restitution fine under section
1202.4.
At the time of the plea agreement, the minimum restitution fine was $280.00.
(Former § 1202.4, subd. (b)(1).) Here, the parties clearly stated to the court that the
plea agreement represented a contract between them. “[W]hen a plea rests in any
significant degree on a promise or agreement of the prosecutor, so that it can be said to
be a part of the inducement or consideration, such promise must be fulfilled.”
(Santobello v. New York (1971) 404 U.S. 257, 262; see also People v. Walker (1991)
54 Cal.3d 1013, 1024, overruled on another ground in People v. Villalobos (2012) 54
Cal.4th 177, 183.) “Where the plea is accepted by the [People] in open court and is
approved by the court . . . the court may not proceed as to the plea other than as
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specified in the plea.” (§ 1192.5; see also In re Jermaine B. (1999) 69 Cal.App.4th
634, 639.)
Recently, the California Supreme Court provided that defendants are free to
negotiate the amount of restitution fines as part of their plea bargains. (People v.
Villalobos, supra, 54 Cal.4th at p. 181.) The parties to a criminal proceeding may
choose to agree upon a specific amount between the statutory minimum and
maximum, or they may leave it up to the sentencing court’s discretion. (Ibid.)
Constitutional due process requires that both parties, including the state, must abide by
the terms of a plea agreement and the punishment may not significantly exceed that
which the parties agreed upon. (Id. at p. 182.) A restitution fine qualifies as
punishment for this purpose. (Ibid.)
In this case, according to the plea form, the agreed-upon restitution fine was the
statutory minimum, $280.00. There is nothing in the record to suggest that there was a
contrary agreement. “Once [the trial court] accepted [defendant’s] plea, the terms of
the contract became fixed.” (People v. Toscano (2004) 124 Cal.App.4th 340, 345.)
Here, defendant should receive the benefit of his bargain pursuant to the terms of the
negotiated plea agreement. Therefore, his restitution fine should be reduced from
$1,000 to $280.
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IV
DISPOSITION
The judgment is modified to reflect a $280 restitution fine. (§ 1202.4.) The
court is directed to amend the abstract of judgment and its minute order to reflect this
modification and to forward a certified copy of the amended abstract of judgment to
the Department of Corrections and Rehabilitation. In all other respects, the judgment
is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI
Acting P. J.
We concur:
MILLER
J.
CODRINGTON
J.
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