Tuesday, June 20, 2017
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Blank Space in Plea Form Causes Slash in Fine
Acting C.A. Presiding Justice Rubin Says That Where Dollar Amount of Restitution Isn’t Filled In, It Doesn’t Mean Judge Has Discretion to Impose Any Statutorily Authorized Amount
By a MetNews Staff Writer
A blank space on a plea form next to the amount of the fine does not mean that it’s up to the judge to decide later what to impose, the Court of Appeal for this district has held in striking a $1,200 restitutionary fine which, although within the statutorily authorized range, was not expressly agreed to by the defendant during plea negotiations.
Div. Eight, in an unpublished opinion filed Thursday, lowered to $300 the fine imposed on Andre Durouso, a registered sex offender who pled no contest to failing to update information as to his address.
The opinion affirms, as modified, the sentence imposed by Los Angeles Superior Court Judge Kathleen Blanchard.
Writing for the appeals court, Acting Presiding Justice Laurence D. Rubin declared:
“In our view the agreement affirmatively represented that a restitution fine would not be imposed, and the amount ordered was a significant deviation from the plea bargain, thus violating the agreement.”
He concluded that the agreement called for no restitutionary fine because a form Durouso signed provided: “$ to the Victim Restitution Fund.”
A.G. Office’s View
The Office of Attorney General insisted that “TBD”—signifying “To Be Determined,” was written at a diagonal, “in a manner suggesting that ‘TBD’ is intended to apply to all nine of the options.”
Rubin wrote:
“We disagree. The plea form provides clear instructions to a defendant of the fines that will be imposed as part of his plea deal: either an amount or ‘TBD’ is to be written next to the “$” sign provided with each itemized fine. Because the plea form left blank the line next to the restitution fine, the plea agreement did not adequately notify Durouso that a restitution fine would be imposed upon him. We conclude the diagonal TBD did not unequivocally put him on notice otherwise.”
He declared that the $1,2000 fine “was a significant deviation from the negotiated terms of the bargain.”
Appropriate Remedy
The jurist noted that in People v. Walker (1991) 54 Cal.3d 1013, the California Supreme Court dealt with a situation where, after a defendant pled guilty, the judge imposed a $5,000 restitution fine. Rubin recited that the high court found that the fine could not be stricken because such a fine is statutorily required unless the sentencing judge states, on the record, “compelling and extraordinary reasons” for not imposing it, and allowing the defendant to withdraw the plea and go to trial would on the record would contravene the notion that plea bargains “facilitate the efficient disposition of causes.”
In ordering the fine reduced to what was then the statutory minimum, $100, the court in Walker said, the amount was not so “significant” as to breach the plea bargain,
Likewise, Rubin said, imposing a $300 on Durouso “is not significant in the context of the bargain as a whole.”
Durouso agreed to a two-year prison term, doubled based on a prior strike.
The case is People v. Durouso, B272181.
The defendant was represented by Benjamin Adam Owens, of Baton Rouge, Louisiana. He was appointed by the Court of Appeal on July 27, 2016, and, after requesting and securing three extensions, filed a Wende brief on Nov. 28, indicating there were no arguable issues.
The court, on its own, spotted the issue relating to the restitutionary fine, as well as Blanchard denying custody credits for the time Durouso spent in jail from the time of his arrest in Ohio for a parole violation to the time the charges were filed for not keeping registration information up-to-date. In a Jan. 31 order, it requested briefing on the issues.
The parole violation was failing to wear a GPS tag. Rubin concluded that Blanchard’s decision to deny pre-filing credit was correct because Durouso’s “jail time prior to the filing of charges in this case was attributable to a parole violation based on different conduct than the failure to file a change of address.”
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