Friday, May 2, 2008

Change of Plea form plus the California DUI conviction record rule

California DUI attorneys know the Change of Plea form plus the California DUI conviction record rule

Filed 5/1/08 P. v. Bejarano CA5


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



Plaintiff and Respondent,



Defendant and Appellant.
(Super. Ct. No. F06904541-0)



APPEAL from a judgment of the Superior Court of Fresno County. Ralph Nunez, Judge.

Deborah Prucha, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and John A. Bachman, Deputy Attorneys General, for Plaintiff and Respondent.


Appellant, Macario Bejarano, pled no contest to driving with a blood alcohol of .08 percent or greater causing injury (count 2/Veh. Code, § 23153, subd. (b)) and admitted two great bodily injury enhancements (Pen. Code, § 12022.7, subd. (a)),2 four multiple victim enhancements (Veh. Code, § 23558), and allegations that he had a prior conviction within the meaning of the three strikes law (§ 667, subds. (b)-(i)).

On January 31, 2007, the court sentenced Bejarano to an aggregate 13-year term, the midterm of 2 years on the substantive offense, doubled to 4 years because of Bejarano’s strike conviction, two 3-year great bodily injury enhancements, and three 1-year multiple victim enhancements.

On appeal, Bejarano contends the court violated the terms of his plea bargain. We will affirm.


With a blood alcohol content of .25 percent, Bejarano ran a stop sign and struck a pickup driven by Samuel Alvarez on June 26, 2006. Heather Lucas was ejected from Alvarez’s pickup and Alvarez and three other passengers in his truck were also injured.

On November 30, 2006, Bejarano entered his plea. In announcing the terms of the agreement, the following colloquy occurred:

“[THE PROSECUTOR]: If I could state the agreement for the record. The defendant is pleading to count number two, midterm lid. That would be doubled for the strike prior, which he will admit, which is alleged in the First Amended Complaint. Defendant would be admitting to two enhancements pursuant to [12022.7] of the Penal Code …, four enhancements pursuant to 23558 of the Vehicle Code.… Only three of those could be enforced or applied statutorily. That would be a total lid of 13 years. All remaining counts and enhancements would be dismissed, reserving the right to comments and restitution.

“THE COURT: Thank you.

“[THE PROSECUTOR]: Furthermore [y]our Honor, the enhancements for excessive blood alcohol would be dismissed, reserving the right to comment. And the parties would simply be stipulating that the blood alcohol was greater than .08.

“[DEFENSE COUNSEL]: That’s correct.”

Bejarano also filled out an Advisement, Waiver of Rights, and Plea Form. In describing the plea agreement, the first paragraph stated that in exchange for a 13-year lid, Bejarano would plead to driving with a blood alcohol content of .08 or greater causing injury, admit a prior strike conviction, two serious bodily injury enhancements and four multiple victim enhancements. The first paragraph did not mention a restitution fine.

The change of plea form stated at paragraph 4 of the section entitled, “CONSEQUENCES OF PLEA OF GUILTY OR NO CONTEST”: “Other possible consequences of this plea include a restitution fine of $100 to $1000 ….” (Italics added.)

In taking Bejarano’s plea, the court did not mention anything about a restitution fine or advise Bejarano of his right to withdraw his plea if the court did not sentence him in accord with his plea agreement. However, his probation report recommended the court impose a restitution fine of $3,000. Thereafter, when the court sentenced Bejarano on January 31, 2007, the court, without objection, ordered him to pay a restitution fine and parole revocation fine of $2,600 each.


Bejarano contends that because the change of plea form advised him that he could be ordered to pay a restitution fine from $100 to $1,000, this became part of his plea agreement. He further contends that because the court imposed a $2,600 restitution fine, which exceeded the maximum $1,000 fine provided for by his plea agreement, his restitution fine and parole revocation fine, which must be imposed in the same amount (§ 1202.45), must be reduced to $1,000 each. Respondent agrees that Bejarano’s plea provided for a maximum restitution fine of $1,000 thus requiring that his restitution and parole revocation fines each be reduced to $1,000. The parties are wrong.

“‘The Supreme Court has ... recognized that due process applies not only to the procedure of accepting the plea [citation], but that the requirements of due process attach also to the implementation of the bargain itself. It necessarily follows that violation of the plea bargain by an officer of the state raises a constitutional right to some remedy.’ [Citations.]

“In [People v.] Walker [1990] 54 Cal.3d 1013, … the trial court imposed a restitution fine on a defendant who had pled guilty in accordance with a plea bargain that made no mention of restitution. The probation report recommended a $7,000 restitution fine, but ‘the record disclose[d] no other mention of the possibility of such a fine prior to sentencing’ [citation]. Observing that the ‘consequences to the defendant [of a restitution fine] are severe enough that it qualifies as punishment for this purpose’ [citation], we held that, ‘[a]bsent compliance with the section 1192.5 procedure [informing defendant of the right to withdraw a disapproved plea], the defendant’s constitutional right to the benefit of his bargain is not waived by a mere failure to object at sentencing’ [citation] when a restitution fine not bargained for is imposed.” (People v. Crandell (2007) 40 Cal.4th 1301, 1307 (Crandell).)

In Crandell, supra, 40 Cal.4th at p. 1304, the defendant objected on appeal to “a restitution fine of $2,600 that had not been mentioned by the prosecutor when he recited the parties’ plea agreement.” Although the prosecutor omitted any reference to the fine from his recital of the terms of the plea bargain, the court advised the defendant that the consequences of his plea included a restitution fund fine of $200 to $10,000. (Crandell, supra, 40 Cal.4th at p. 1305.) The defendant acknowledged that no promises were made to him other than those recited on the record. (Ibid.) The fine ultimately imposed was presaged by a recommendation in the probation officer’s presentence report. (Id. at p. 1306.) Although the defendant later moved to withdraw his plea, he at no time objected that the restitution fine violated his plea agreement. (Ibid.)

In upholding the imposition of the $2,600 restitution fine, the Supreme Court in Crandell, stated, “‘[t]he core question in every case is ... whether the restitution fine was actually negotiated and made a part of the plea agreement, or whether it was left to the discretion of the court.’” (Crandell, supra, 40 Cal.4th at p. 1309.) The Crandell court also concluded that the record there showed that the fine was left to the discretion of the court, because the court “accurately advised [the defendant that] he would ‘have to pay a restitution fund fine of a minimum of $200, a maximum of $10,000’ and ascertained that the prosecution had not made ‘any other promises’ beyond that defendant would be sentenced to 13 years in prison.” (Ibid., fn. omitted.) This distinguished the case from People v. Walker, supra, 54 Cal.3d at pp. 1018-1019, where the defendant had only been told that the “‘maximum penalties provided by law’ for his offense included ‘a fine of up to $10,000,’ and ‘obtained no assurance that the parties intended their plea bargain to leave the amount of the restitution fine to the court’s discretion. [Citation.]” (Crandell, supra, 40 Cal.4th at p. 1310.)

Here, in announcing the terms of the plea bargain, the prosecutor did not mention a restitution fine and defense agreed that the prosecutor had accurately stated the agreement. Further, although the court did not advise Bejarano on the record that he would be subject to a restitution fine, the change of plea form did, stating he would be subject to a restitution fine from $100 to $1,000. Moreover, as in Crandell, the imposition of a restitution fine was presaged by the probation report which recommended a restitution fine of $3,000, and neither Bejarano nor his defense counsel objected when the court imposed a fine of $2,600. It is clear from these circumstances that as in Crandell, the amount of the restitution fine was not part of the bargain and was left to the trial court to decide.

The instant case, however, involves a misadvisement of the consequences of Bejarano’s plea because every defendant who is convicted of a felony is subject to a fine of $200 to $10,000 (see § 1202.4, subd. (b)(1)), not $100 to $1,000 as was written in his change of plea form. When a defendant’s complaint involves the failure to advise of a direct consequence of a plea, and not that the plea bargain was breached, this “error is waived if not raised at or before sentencing.” (People v. Walker, supra, 54 Cal.3d at p. 1023.) Since Bejarano did not object at or prior to sentencing, he waived this issue on appeal.


The judgment is affirmed.

*Before Harris, Acting P.J., Levy, J., and Gomes, J.

2 All further statutory references are to the Penal Code, unless otherwise indicated.