People v. DeFilippis

[1878]

Opinion

KING Acting P. J.

In this case we hold that if a plea bargain does not specify punishment and the defendant is not advised of an obligatory restitution fine, the imposition of a restitution fine above the statutory minimum violates only the right to be advised as to the direct consequences of the plea, not the plea bargain itself, and thus the error is waived if not raised at or before sentencing.

An amended information charged Edward Charles DeFilippis with 15 counts of insurance fraud (Ins. Code, § 1871.1, subd. (a)(1), Ins. Code, former § 556 repealed in 1989) and one count of preventing or dissuading a witness from testifying by force or threat (Pen. Code, § 136.1, subd. (c)(1)). Pursuant to a plea bargain, DeFilippis pleaded no contest to four counts of insurance fraud. In exchange for the pleas, the remaining counts were dismissed.

The plea bargain did not specify any punishment. (See Pen. Code, § 1192.5.) Defense counsel merely stated his “understanding, though not a binding commitment” that DeFilippis would be sentenced concurrently on proceedings pending in another county, and his further “understanding the maximum for four counts is eight years” (i.e., assuming aggravated and consecutive sentencing).

When accepting the plea, the judge advised DeFilippis that “it would ultimately be the court who will decide what your sentence will be.” The judge further advised that “at this time the court has not made a decision as to what your sentence will be in your case. . . . [T]he matter would be referred to the probation department for a report and recommendation to this court and the court would only impose sentence after reviewing and considering the probation department recommendation but would not be obligated to follow the recommendation . . . .”

The judge did not give an advisement that he would be required to impose a restitution fine of not less than $100 and not more than $10,000. (Gov. Code, § 13967, subd. (a).)

The judge subsequently imposed a six-year prison sentence, consisting of a midterm of three years plus three consecutive subordinate one-year terms. The judge also ordered DeFilippis to pay a restitution fine of $500. DeFilippis never objected below to the imposition of the restitution fine.