People v. Oberreuter ( 1988 )

Opinion

WORK, J.

Frank Frederick Oberreuter appeals a judgment on his negotiated guilty plea to assault with a deadly weapon. (Pen. Code,¹ § 245, subd. (a)(1).) He contends the court erred in imposing a restitution fine pursuant to Government Code section 13967, the possibility of which the court never advised him and which was not mentioned as a consequence of his plea in the plea-agreement form executed by the parties and filed in this record. He also claims the court erred in imposing the upper term of imprisonment.² Because we find the plea bargain did not encompass imposition of the restitution fine, the court did not reject the bargain and permit Oberreuter to choose whether to withdraw his plea, and he has served a substantial portion of his prison sentence, we accept the alternative disposition proposed by the People and modify the judgment by striking the order for a restitution fine rather than remanding to allow Oberreuter to choose between now withdrawing his plea or ratifying the present sentence. We find no other sentencing error and thus affirm the judgment as modified.

I

On April 13, 1987, Oberreuter entered a residence and struck Timothy Ferris in the head with a hatchet. Ferris suffered a fractured skull, was hospitalized for five days, and had continuing blurred vision, headaches, and loss of feeling in his left hand. At the sentencing hearing the court stated: “The court finds that due to the nature of the violence, being armed with an ax under [California Rules of Court] rule 421(a)(2), the level of violence, the fact that he went with someone else to the . . . residence apparently for a confrontation, those factors outweigh circumstances in mitigation and he will be sentenced to the aggravated term.”

Oberreuter contends the trial court erred in imposing the upper term by using three improper factors. He argues the court improperly found three factors in aggravation: great violence, use of a deadly weapon, and inducing others to commit the crime or occupying a position of leadership in its commission. He asserts “great violence” and “use of a weapon” are inherent in the crime of assault with a deadly weapon or by means of force likely to produce great bodily injury, and the record does not support a finding others participated in the assault or that it was planned in advance.

Section 1170, subdivision (b) provides in part: “When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime.” California Rules of Court,³ rule 439(b) provides: “Selection of the upper term is justified only if, considering the entire record of the case, including the probation officer’s report, other reports properly filed in the case, and other competent evidence, circumstances in aggravation are established by a preponderance of the evidence and outweigh circumstances in mitigation.” Sentencing courts have wide discretion in weighing aggravating and mitigating factors (People v. Evans (1983) 141 Cal.App.3d 1019, 1022 [190 Cal.Rptr. 633]; People v. Giminez (1975) 14 Cal.3d 68, 72 [120 Cal.Rptr. 577, 534 P.2d 65]; People v. Covino (1980) 100 Cal.App.3d 660, 670-671 [161 Cal.Rptr. 155]), and may balance them against each other in “qualitative as well as quantitative terms” (People v. Roe (1983) 148 Cal.App.3d 112, 119 [195 Cal.Rptr. 802]). One factor alone may warrant imposition of the upper term. (People v. Kellett (1982) 134 Cal.App.3d 949, 963 [185 Cal.Rptr. 1].) We must affirm unless there is a clear showing the sentence choice was arbitrary or irrational. (People v. Hubbel (1980) 108 Cal.App.3d 253, 260 [166 Cal.Rptr. 466].)

Rule 421(a)(1) provides a crime is aggravated if it “involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness or callousness, whether or not charged or chargeable as an enhancement under section 12022.7.” Because serious injury is not inherent in the crime of assault with a deadly weapon (People v. Hopkins (1978) 78 Cal.App.3d 316, 320 [142 Cal.Rptr. 572]), the trial court did not err in finding the crime here aggravated by the method of the attack and serious injury to Ferris caused by the viciousness of the attack. The court did not find Oberreuter induced others to commit the crime or took a leadership position in its commission. The record lacks support for a finding this attack by one drug trafficker on another was premeditated. It is not, however, reasonably probable a result more favorable to Oberreuter would have been achieved absent that finding where the unexpected assault from behind caused substantial head injuries requiring surgery. Reliance on this factor was harmless error. (See People v. Axtell (1981) 118 Cal.App.3d 246, 259 [173 Cal.Rptr. 360].)

II

Relying upon People v. Covino, supra, 100 Cal.App.3d 660, and People v. Simpson (1979) 90 Cal.App.3d 919 [154 Cal.Rptr. 249], Oberreuter also argues the trial court failed to consider the crime mitigated by imperfect self-defense, as set forth in his statement in mitigation. At the outset of sentencing, the court stated it had read and considered the statement in mitigation. While the court did not express why it minimized or rejected self-defense as a mitigating factor, it need not have done so. (People v. Salazar (1983) 144 Cal.App.3d 799, 813 [193 Cal.Rptr. 1].)

Citing Covino and Simpson, Oberreuter argues the trial court committed reversible error in failing to consider on the record all mitigating factors referred to in rule 423. Neither case supports this conclusion. In Covino, the court quoted Simpson, saying the trial court had failed to exercise its discretion because it had not considered alcoholism as a mitigating factor. Neither Covino nor Simpson require the consideration of possible mitigating factors to be on the record. Absent an explicit statement by the trial court to the contrary, it is presumed the court properly exercised its legal duty to consider all possible mitigating and aggravating factors in determining the appropriate sentence. (See Ross v. Superior Court (1977) 19 Cal.3d 899, 913 [141 Cal.Rptr. 133, 569 P.2d 727].)

III

Oberreuter also contends the restitution fine must be stricken, because it was not part of the plea bargain and he was not advised a fine could be imposed as possible punishment before he entered his plea. He is correct.

We are satisfied a restitution fine, like any other penal consequence, may not be imposed on a plea-bargain participant where it was not included in the negotiated agreement. There is no reference to the potential of any fine being imposed in this record. The People ask us to rely, however, on the fact Oberreuter initialed the box beside a typewritten section inserted into a printed form entitled “Defendant’s Statement Upon Plea of Guilty to Felony” which states: “I agree that the sentencing judge may consider my prior criminal history and the entire factual background of the case, including any unfiled, dismissed, or stricken charges or allegations, when granting probation, ordering restitution, or imposing sentence.” The People argue this general reference to restitution expressed in context of Oberreuter’s Harvey⁴ waiver, permitting the court to consider factors relating to unproved criminal charges in structuring an appropriate sentence, satisfies the requirement that the court advise Oberreuter a restitution fine must be imposed in addition to his term of imprisonment, and that he has agreed to that condition. The obvious purpose of this section of the form is to memorialize the Harvey waiver. It was typed onto a printed change of plea form which contains a separate and specific section in which defendants are to list all possible direct penal consequences they agree to accept in exchange for relinquishing their constitutional right to force the People to prove their charges beyond a reasonable doubt to a jury. In that specific section, the maximum sentence is stated as four years and a space provided to list possible additional penalties is blank. Another section recites the applicable parole term should a prison sentence be imposed. Oberreuter, his lawyer, the prosecution and the court signed this document and are presumed to be aware of its limits.

The People are forced to their strained analysis because the court’s oral advisement of possible consequences omitted any reference to a fine in addition to imprisonment. It is the obligation of the court to personally advise a defendant of penal consequences before taking waivers associated with a guilty plea. The court did so here, carefully admonishing Oberreuter of his constitutional rights and insuring the waivers elicited were knowing and voluntary. It then confirmed that Oberreuter understood he faced a maximum penalty of four years. It did not mention any possible or mandatory fine. On this record, we are satisfied Oberreuter was not advised of, and never agreed to accept, a mandatory fine pursuant to Government Code section 13967 as a condition of his plea of guilty.

IV

Because Oberreuter has completed a substantial portion of his prison term, permitting him to withdraw his guilty plea cannot restore the status he enjoyed before sentencing. Both the People and Oberreuter ask us to modify the sentence by striking the restitution fine should we conclude it deviates from the plea bargain rather than remand the matter to the sentencing court. We have received supplemental briefing as to our power to do so. The People support their request we strike the order imposing the restitution fine, by reference to the rule espoused in People v. Mancheno (1982) 32 Cal.3d 855, 860 [187 Cal.Rptr. 441, 654 P.2d 211], that the goal when fashioning appellate remedies is to redress the harm caused by the error without prejudice to either party or curtailing the normal discretionary power of the sentencing court. They assert specific performance in this case comports with Mancheno’s recognition that it is appropriate to do so when it implements the reasonable expectations of the parties without forcing the trial court to accept a disposition which the court considers unacceptable in all cases. (Id. at pp. 860-861.) We agree with the People that this is not a case where the trial court intentionally deviated from the agreement; it appears the trial court never suspected the sentence did not conform. Nor is this a case where the trial court lacked the power to waive imposition of the fine to comply with the agreement as stated because section 1202.4 permits the court to do so for compelling and extraordinary reasons.

We are satisfied we are empowered to modify the judgment by striking the ordered restitution fine and that it is appropriate to do so here where both the People and Oberreuter urge that disposition.

The judgment is modified by striking the fine imposed pursuant to Government Code section 13967 and the superior court is directed to change its records accordingly. The superior court shall correct the clerical error in its abstract of judgment to reflect the sentence term of four years. As modified, the judgment is affirmed.

Wiener, Acting P. J., concurred.

1 All statutory references are to the Penal Code unless otherwise specified.

2 The parties agree the abstract incorrectly reflects the upper term as five years’ imprisonment. We direct the trial court to correct this error.

3 All rule references are to the California Rules of Court.

4 People v. Harvey (1979) 25 Cal.3d 754, 758 [159 Cal.Rptr. 696, 602 P.2d 396],