People v. Galan CA6

Filed 1/30/14 P. v. Galan CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, H039526 (Monterey County Plaintiff and Respondent, Super. Ct. Nos. SS130110, SS121656)

v.

EMMANUEL BARRERA GALAN,

Defendant and Appellant.

Defendant Emmanuel Barrera Galan appeals from a judgment entered after he pleaded no contest to a count of possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and a count of residential burglary (Pen. Code, § 459).1 His sole contention on appeal is that the restitution fund fine imposed under section 1202.4, subdivision (b) should be reduced from $280 to $240. For the reasons set forth below, we reject defendant’s arguments and affirm the judgment. FACTUAL AND PROCEDURAL BACKGROUND The underlying facts of defendant’s offenses are not relevant to his arguments on appeal. We therefore only provide a summary of the relevant procedural background pertaining to defendant’s case. On August 29, 2012, the district attorney filed a complaint (No. SS121656A) charging defendant with a count of possession of methamphetamine (Health & Saf. Code,

1 Further unspecified statutory references are to the Penal Code.

§ 11377, subd. (a), count 1), a count of possession of controlled substance paraphernalia (id. § 11364.1, subd. (a), count 2), and a count of using or being under the influence of a narcotic (id. § 11550, subd. (a), count 3). On January 15, 2013, the district attorney filed a complaint (No. SS130110A) charging defendant with a count of residential burglary (§ 459, count 1). Defendant signed and initialed a waiver of rights and plea form in case Nos. SS121656A and SS130110A on February 6, 2013. For both cases, defendant placed his initials next to the statement reading, “I understand that I will be ordered to pay a state restitution fine of not less than $200 nor more than $10,000 and may have a like amount suspended.” Defendant also placed his initials next to the statement reading, “I hereby waive and give up all rights regarding state and federal writs and appeals. This includes, but is not limited to, the right to appeal my conviction, the judgment, and any other orders previously issued by this court. I agree not to file any collateral attacks on my conviction or sentence at any time in the future. I further agree not to ask the Court to withdraw my plea for any reason after it is entered.” During the change of plea hearing on February 6, 2013, the trial court informed defendant that there was a “minimum restitution fine as to each of the felonies of $280 and a maximum fine of $10,000.” The trial court suspended imposition of sentence on March 15, 2013, and placed defendant on three years probation for both cases, subject to various terms and conditions. The court further ordered defendant pay a $280 restitution fund fine pursuant to section 1202.4, subdivision (b) in both cases. Defendant accepted the terms of probation and did not object to the imposition of the restitution fund fine. Defendant did not seek a certificate of probable cause and filed a timely notice of appeal. DISCUSSION On appeal, defendant argues that the trial court specifically intended to impose the minimum restitution fund fine under section 1202.4, subdivision (b); therefore, the