I can find no meaningful basis for distinguishing the facts of the case before us from the facts in Walker, and I disagree with Dickerson. I am therefore compelled to conclude that the restitution fund fine *Page 1464 imposed in this case violated the plea bargain and should be reduced to the statutory minimum.
My colleagues conclude that Walker is distinguishable because here the trial court advised defendant regarding the restitution fund fine, and, in Walker, "the court never disclosed [the fine] to the defendant prior to his plea." Thus, in their view, a restitution fund fine may be imposed without violating the plea bargain so long as the trial court "advises the defendant of the restitution fine prior to accepting his plea." They conclude that a fine does not violate a plea bargain if it was "within `defendant's contemplation and knowledge' when he entered his plea."
As much as I would like to avoid the result required byWalker, I cannot accept this misreading of the facts inWalker. In Walker, the plea agreement was that, in exchange for defendant's guilty plea to one of two counts, the remaining count would be dismissed and defendant would be sentenced to state prison for five years with credit for time served. Defendant waived his constitutional rights, and the court "orally explained to defendant 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." (People v. Walker, 54 Cal.3d 1013, 1019 [1 Cal.Rptr.2d 902, 819 P.2d 861], italics added.) The probation report recommended imposition of a $7,000 restitution fine. The court sentenced Walker immediately after his plea to the agreed five-year prison term with credit for time served, and it "imposed a restitution fine of $5,000, although the plea agreement did not mention such a fine." (Id. at p. 1019.)
It is simply erroneous to characterize Walker as a case in which the defendant was not advised prior to his plea that asubstantial fine could be imposed. In Walker, as in the case before us, the defendant was advised prior to his plea that a fine of up to $10,000 could be imposed. In Walker, as in the case before us, the plea agreement did not mention a fine. InWalker, as in the case before us, the trial court imposed a fine consistent with the advisement. Thus, in Walker, as in the case before us, it could be said, as my colleagues claim, that, due to the advisement, the imposition of a substantial fine was "within `defendant's contemplation and knowledge' when he entered his plea." The fact that Walker had been advised that a substantial fine could be imposed was not enough to persuade the California Supreme Court that the imposition of such a fine did not violate the plea bargain.
The similarities between the case before us and Walker are striking. And there is no significance to the fact that the fine in Walker was not explicitly identified as a restitution fund fine. Indeed my colleagues do not claim that there is. If all that was required was an advisement, there could never be a *Page 1465 violation of the plea bargain unless there was also a failure to advise. Yet Walker explicitly contemplated that a violation of the plea bargain could occur even if there was no failure to advise or misadvisement.
The cases cited by my colleagues in support of their analysis do not undermine the holding in Walker. Each of these cases found that there was no violation of the plea bargain because the parole period (In re Moser (1993) 6 Cal.4th 342 [24 Cal.Rptr.2d 723,862 P.2d 723]) or the sex offender registration requirement (People v. McClellan (1993) 6 Cal.4th 367 [24 Cal.Rptr.2d 739,862 P.2d 739]) that was not mentioned as a term of the plea bargain was nevertheless statutorily mandated and could not properly be the subject of plea negotiations. In contrast, asWalker explicitly acknowledged, the level of a restitution fund fine over $200 is a proper subject for plea negotiations.
Accordingly, under the compulsion of Walker (Auto EquitySales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [20 Cal.Rptr. 321, 369 P.2d 937]), I would reduce the restitution fund fine to $200. Nevertheless, I urge the California Supreme Court to revisit this issue and clarify its holding in Walker so that this troublesome issue will cease to arise in the future. *Page 1466