People v. Burke6/18/2004
Defendant Patrick Dennis Burke appeals after pleading no contest to driving under the influence of alcohol with three or more prior convictions (Veh.Code, §§ 23152, subd. (a), 23550, subd. (a)), felony vandalism (Pen.Code, § 594, subds.(a) & (b)(1)), possession of controlled substance paraphernalia (Health & Saf.Code, § 11364), and driving while license suspended for a conviction of driving under the influence (Veh.Code, § 14601.2, subd. (a)). Defendant admitted that he had two prior "strike" convictions (Pen.Code, §§ 667, subds.(b)-(i), 1170.12) and that he had served a prior prison term (Pen.Code, § 667.5, subd. (b)). The trial court struck one of the "strike" priors pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497, and imposed an aggregate prison term of six years, four months. It also imposed a $1,200 restitution fine pursuant to Penal Code section 1202.4, with an additional suspended $1,200 fine pursuant to Penal Code section 1202 .45.
On appeal, defendant contends the $1,200 restitution fines violated the terms of his plea bargain and that they should be reduced to the statutory minimum amount of $200. We conclude there was no plea bargain here; we will therefore affirm the judgment.
I. Background
The facts underlying defendant's convictions are not relevant to the claim raised on appeal. The pertinent procedural history follows:
Defendant was charged, by amended information, with driving under the influence of alcohol with three or more prior convictions (count 1; Veh.Code, §§ 23152, subd. (a), 23550, subd. (a)), driving with a blood alcohol level of 0.08 or more with three or more prior convictions (count 2; Veh.Code, §§ 23152, subd. (b), 23550, subd. (a)), felony vandalism (count 3; Pen.Code, § 594, subds. (a) & (b)(1)), possession of controlled substance paraphernalia (count 4; Health & Saf.Code, § 11364), driving while privileges suspended for refusal of a chemical test (count 5; Veh.Code, § 14601.5, subd. (a)), and driving while license suspended for a conviction of driving under the influence (count 6; Veh.Code, § 14601.2, subd. (a)). The information alleged that defendant had two prior "strike" convictions (Pen.Code, §§ 667, subds.(b)-(i), 1170.12) and that he had served a prior prison term (Pen.Code, § 667.5, subd. (b)).
On September 11, 2003, the trial court addressed defendant. It told him, "[G]ood morning. You wish to go to trial in this case, which is your absolute right to do so. I want to clarify a few things so that after trial, if you get a sentence of 25 to life, you can't say, 'Gee, nobody told me.' I want to put all the cards on the table so we'll play this hand face up.
"The two strike prior that you have, if they are strike priors, the jury decides on those. They just simply decide, was there a conviction. The Court decides identity, are they your priors, one. Two is, are they strike priors? So all the jury is deciding is, was he conviction of two counts of robbery in Illinois?
*2 "The facts of this case, to get to a trial, are there's a car stop for driving under the influence. Those officers, as you know, make thousands of those every day. It's sort of like if you call the DUI case, what it's all about. What makes it serious is your past life that wraps around that. All these priors here and there.
"You've got three prior DUI charges. They allege two strike priors, one prison prior. Now, all of this brings you within the 25 to life sentence, if convicted.
"I don't know what your defense is. I don't know what the facts of the case are. You do not get punished for going to trial. But you do get rewarded for early resolution...."
The trial court warned defendant that if he testified at trial, he could be impeached with his prior DUI convictions. The trial court then stated:
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