California Penal Code Section 1192.5 Admonition - Example Case

In People v. Walker (1991) 54 Cal.3d 1013, the defendant pleaded guilty pursuant to a plea bargain. He was not given the section 1192.5 admonition. He was told at his plea hearing that he would be sentenced to state prison for five years and that "the maximum penalties provided by law for this offense are either 3 years, 5 years, or 7 years in state prison and a fine of up to $ 10,000." (Walker, supra, 54 Cal.3d at p. 1019.) He was not told, however, that he would in fact be fined, or even that he might be fined. He was merely told what "the maximum penalties provided by law for this offense" were. According to the Walker opinion, a probation report prepared before the plea recommended a $ 7,000 restitution fine, but "the record discloses no other mention of the possibility of such a fine prior to sentencing." (Ibid.) The defendant in Walker was sentenced immediately after his guilty plea. The court imposed a five-year prison sentence and a $ 5,000 restitution fine. The Walker court concluded that "the $ 5,000 restitution fine was a significant deviation from the negotiated terms of the plea bargain." (Id. at p. 1029.) The defendant was told that "the maximum penalties provided by law for this offense" included a "fine of up to $ 10,000." (Walker, supra, 54 Cal.3d at p. 1019.) The maximum penalties provided by law for his offense also included "7 years in state prison" (ibid.), as he was also told, but his plea agreement was for "the midterm of five years with credit for time served." (Ibid.) The court held: "Where the restitution fine significantly exceeds the terms of a negotiated plea, and the section 1192.5 admonition is not given, the error is not waived by acquiescence and may not be deemed harmless. Hence, the trial court must either reduce the fine to $ 100 or allow the defendant to withdraw the plea. Finally, if the error is raised after sentencing, as here on appeal, the proper remedy is generally to reduce the fine to the statutory minimum." (Walker, supra, 54 Cal.3d at p. 1030.) In People v. Walker (1991) the court explained "two related but distinct legal principles" pertaining to guilty pleas. "The first principle concerns the necessary advisements whenever a defendant pleads guilty, whether or not the guilty plea is part of a plea bargain. The defendant must be admonished of and waive his constitutional rights. (Boykin v. Alabama (1969) 395 U.S. 238 23 L.Ed.2d 274, 89 S.Ct. 1709; In re Tahl (1969) 1 Cal.3d 122 81 Cal.Rptr. 577, 460 P.2d 449.) In addition, and pertinent to this case, the defendant must be advised of the direct consequences of the plea. (Bunnell v. Superior Court (1975) 13 Cal.3d 592, 605 119 Cal.Rptr. 302, 531 P.2d 1086.) "The second principle is that the parties must adhere to the terms of a plea bargain. (People v. Mancheno (1982) 32 Cal.3d 855, 860 187 Cal.Rptr. 441, 654 P.2d 211.)"In any given case, there may be a violation of the advisement requirement, of the plea bargain, or of both. Although these possible violations are related, they must be analyzed separately, for the nature of the rights involved and the consequences of a violation differ substantially." (Walker, supra, 54 Cal.3d at p. 1020.) As for the first of these two principles, the Walker court pointed out that "when the only error is a failure to advise of the consequences of the plea, the error is waived if not raised at or before sentencing." (Walker, supra, 54 Cal.3d at p. 1023.) The case presently before us, however, involves the second principle. With regard to adhering to the terms of a plea bargain, the Walker court stated: "'"When a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled." (Santobello v. New York (1971) 404 U.S. 257, 262 30 L.Ed.2d 427, 433, 92 S.Ct. 495.) The Supreme Court has thus recognized that due process applies not only to the procedure of accepting the plea (see Boykin v. Alabama (1969) 395 U.S. 238 23 L.Ed.2d 274, 89 S.Ct. 1709), but that the requirements of due process attach also to implementation of the bargain itself. It necessarily follows that violation of the bargain by an officer of the state raises a constitutional right to some remedy." (People v. Mancheno, supra, 32 Cal.3d 855, 860; see also People v. Glennon, supra, 225 Cal.App.3d at p. 104.) Although the purpose of a restitution fine is not punitive, we believe its consequences to the defendant are severe enough that it qualifies as punishment for this purpose. Accordingly, the restitution fine should generally be considered in plea negotiations. "This does not mean that any deviation from the terms of the agreement is constitutionally impermissible. As Santobello v. New York (1971) 404 U.S. 257, 262 30 L.Ed.2d 427, 433, 92 S.Ct. 495, suggests, the variance must be 'significant' in the context of the plea bargain as a whole to violate the defendant's rights. A punishment or related condition that is insignificant relative to the whole, such as a standard condition of probation, may be imposed whether or not it was part of the express negotiations. "Whether or not a defendant waives an objection to punishment exceeding the terms of the bargain by the failure to raise the point in some fashion at sentencing depends upon whether the trial court followed the requirements of section 1192.5. That section provides in pertinent part that when a plea bargain is accepted by the parties and approved by the court, the defendant generally 'cannot be sentenced on such plea to a punishment more severe than that specified in the plea and the court may not proceed as to such plea other than as specified in the plea.' The court 'shall inform the defendant prior to the making of the plea that (1) its approval is not binding, (2) it may, at the time set for the hearing on the application for probation or pronouncement of judgment, withdraw its approval in the light of further consideration of the matter, and (3) in such case, the defendant shall be permitted to withdraw his plea if he desires to do so.' ( 1192.5.) "Absent compliance with the section 1192.5 procedure, the defendant's constitutional right to the benefit of his bargain is not waived by a mere failure to object at sentencing. 'Of course, there can be no waiver of a constitutional right absent "an intentional relinquishment or abandonment of a known right or privilege." No less should a court presume from mere silence that defendant is waiving implementation of the consideration that induced him to waive his constitutional rights." (People v. Mancheno, supra, 32 Cal.3d at p. 864.) "When, however, the section 1192.5 admonition is given, and it is generally required, the situation is quite different. The issue then becomes whether the defendant has relinquished his statutory right to withdraw the plea. People v. Mancheno, supra, 32 Cal.3d 855, does not state whether the admonition was given in that case, and thus it does not address the point. "We have held that absent a section 1192.5 admonition, a defendant's 'failure affirmatively to request a change of plea should not be deemed a waiver of his right to do so. Since he was never advised of his rights under section 1192.5, he should not be held to have waived them.' (People v. Johnson (1974) 10 Cal.3d 868, 872 112 Cal.Rptr. 556, 519 P.2d 604, fn. omitted.) Implicit in this reasoning is that when the admonition is given, the failure affirmatively to request a change of plea does waive the right to do so.'" (Walker, supra, 54 Cal.3d at pp. 1024-1025.)