People v. Glennon

Opinion

STEIN, J.

The sole issue raised by this appeal is whether a restitution fine of $10,000 should be stricken because the trial court failed to advise appellant of the fine prior to accepting his plea of no contest. We conclude that although appellant has failed to show that he was prejudiced by the court’s failure to so advise, he must be given the opportunity to withdraw his plea.

Factual and Procedural Background

Appellant was the purchasing manager for the biochemistry and biophysics departments of the University of California at San Francisco. Utilizing his own outside company, appellant engaged in a number of fraudulent sales to the university which were accomplished by means of appellant’s position as purchasing manager.

Prior to the preliminary hearing, appellant pleaded no contest to the charge that he misappropriated over $300,000 in state funds over a period of 10 years while employed by the university. (Pen. Code, § 424, subd. 1.) He also admitted the special allegation that the amount taken was over $100,000 thereby exposing himself to an additional two-year term. (Pen. Code, § 12022.6, subd. (b).)

Prior to entering this plea, appellant was advised of and waived his constitutional rights.

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After he was advised of the range of punishment for the offense, the applicable parole period, and the consequences of a revocation of parole, appellant entered a plea of no contest to all charges. This plea was “open to the court” and was not the result of negotiations with the prosecutor; however, the sentencing judge had indicated that a two-year prison term appeared to be an appropriate disposition. The requirement of a restitution fine was not mentioned.

Even though this was not a negotiated plea, appellant was advised that his plea was not binding on the court and, if the sentencing judge withdrew

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his approval of the indicated disposition, he would be allowed to withdraw his plea.

Appellant was thereafter sentenced to the mitigated term of two years in prison for the reason that he acknowledged his guilt at an early stage in the proceedings. A two-year term for the special allegation was imposed but stayed because of appellant’s lack of a prior criminal record. The court also imposed a restitution fine of $10,000, as required by Government Code section 13967, subdivision (c). Appellant did not object to the fine at the time of sentencing.