People v. Robinson

California Court of Appeal Oct 20, 1988 No. A038157Published

Before: Anderson

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Holding. The court held that a trial court must advise a defendant of restitution consequences as a direct consequence of a guilty plea, but dismissed the appeal because the defendant failed to obtain a certificate of probable cause as required by Penal Code section 1237.5.

Issues

Must a trial court advise a defendant of restitution consequences as a direct consequence of a guilty plea?
Does the failure to obtain a certificate of probable cause under Penal Code section 1237.5 bar an appeal regarding the validity of a plea?

Disposition. dismissed

Quotations verified verbatim against the opinion

“Since a restitution fine or order flows directly from conviction of the felony, we hold, consistent with Bunnell, that the trial court must advise a defendant of this penal consequence.”

“Since appellant neither sought nor obtained a certificate of probable cause, section 1237.5 and rule 31(d) bar his appeal.”

Opinion

ANDERSON, P. J.

A jury convicted defendant Gary Wayne Robinson (appellant) of (1) lewd and lascivious conduct with a child under the age of

[282]

14 (Pen. Code,

§ 288, subd. (a)), and (2) oral copulation with a child under the age of 14 years and more than 10 years younger than appellant (§ 288a, subd. (c)). The trial court granted appellant’s motion for new trial on the basis of ineffective assistance of counsel (failure to object to admission of evidence of uncharged acts). Thereafter, the People filed an amended information alleging 111 counts of similar violations.

The first 106 counts were set aside pursuant to appellant’s section 995 motion, but appellant’s simultaneous motion to dismiss for vindictive prosecution as well as his petition for writ of mandate to review that decision were denied.

Under the terms of a negotiated disposition, appellant pled nolo contendere to counts 108 and 109 (lewd conduct, § 288, subd. (a)); the remaining counts were dismissed. He received a 10-year state prison sentence and, without prior notification concerning imposition of a restitution fine or order, was ordered to make restitution in the amount of $5,000 pursuant to Government Code section 13967, subdivision (c).

Discussion

Appellant contends the trial court erred in failing to inform him of the pecuniary consequences of his plea and further argues he was prejudiced thereby. Where the circumstances set forth in Government Code section 13967, subdivision (c), are present, the trial court must order restitution to be paid to the victim. Our Supreme Court has directed that “In all guilty plea and submission cases the defendant shall be advised of the direct consequences of conviction . . . .”

(Bunnell

Superior Court

(1975) 13 Cal.3d 592, 605 [119 Cal.Rptr. 302, 531 P.2d 1086].) This judicially mandated rule of criminal procedure encompasses only primary and direct consequences of a defendant’s impending conviction as contrasted with secondary, indirect or collateral consequences.

People v. Robinson

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ANDERSON, P. J.

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