People v. Romero10/9/2002
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Pursuant to a negotiated disposition, defendant Amilcar Jonathan Romero entered a plea of guilty to selling heroin (Health & Saf. Code, § 11352) and admitted having a prior sales conviction (Health & Saf. Code, § 11370.2), on condition that his maximum sentence would be seven years. He was sentenced to a prison term of seven years and the court imposed a concurrent three-year prison term on the probation violation involving the prior conviction. The court also imposed a restitution fine of $1,400 pursuant to Penal Code section 1202.4, subdivision (b). On appeal he argues that the $1,400 restitution fine violated the terms of his plea agreement. We agree and we will therefore modify the judgment to reduce the restitution fine to the statutory minimum of $200.
BACKGROUND
In case No. SS992520, a complaint was filed on December 20, 1999, charging defendant with six counts: count 1, sale or transportation of cocaine (Health & Saf. Code, § 11352); count 2, possession of cocaine for sale (Health & Saf. Code, § 11351); count 3, possession of cocaine (Health & Saf. Code, § 11350); count 4, driving under the influence (Veh. Code, § 23152); count 5, driving with a blood alcohol of .08 percent or higher (Veh. Code, § 23152, subd. (b)); and count 6, possession of marijuana while driving (Veh. Code, § 23222, subd. (b)).
On January 11, 2000, pursuant to a negotiated disposition, defendant pleaded guilty to counts 2 and 4 on the condition that he be placed on felony probation. He signed a waiver form, acknowledging that he waived his rights to a jury trial. He also acknowledged that if he violated probation he could be sent to state prison for the maximum term allowed by law, namely four years. The terms of the negotiated plea did not include mention of any restitution fine. The court asked defendant if he understood the rights set forth on the waiver form and he said that he did. However, the court did not advise defendant in accordance with Penal Code section 1192.5, which provides that a defendant must be informed by the trial court prior to the negotiated plea that the trial court's approval of the plea bargain is not binding and may be withdrawn, and that if approval of the bargain is withdrawn, the defendant has the right to withdraw the plea.
On February 9, 2000, the court suspended imposition of sentence and placed defendant on formal probation for a period of five years. The remaining counts were dismissed.
In case No. SS012250, a complaint was filed against defendant on October 1, 2001, charging him with the following: count 1, sale or transportation of heroin (Health & Saf. Code, § 11352), with a prior sales conviction (Health & Saf. Code, § 11370.2); count 2, possession of heroin for sale (Health & Saf. Code, § 11351), with a prior sales conviction (Health & Saf. Code, § 11370.2); and count 3, driving with a suspended license (Veh. Code, § 14601.2, subd. (a)).
Based on the new complaint, a notice of probation violation in case No. SS992520 was filed on October 2, 2001.
On November 19, 2001, defendant admitted violating his probation. On the same day he pleaded guilty to count 1 in case No. SS012250, and admitted the special allegation, on the condition that he receive no more than seven years in state prison. He signed a waiver form waiv
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