Supreme Court of California Justia
Docket No. S134883
People v. Crandell

Filed 4/30/07


Plaintiff and Respondent,
) Ct.App.
Santa Clara County
Defendant and Appellant.
Super. Ct. No. CC268506

The trial court imposed on defendant a restitution fine of $2,600 that had
not been mentioned by the prosecutor when he recited the parties’ plea agreement.
Defendant contends imposition of the fine violated his plea bargain and he
therefore is entitled, pursuant to People v. Walker (1991) 54 Cal.3d 1013 (Walker),
to have the fine reduced to the statutory minimum of $200. (See Pen. Code,
§ 1202.4, subd. (b)(1); Walker, at p. 1029.) We conclude the error that occurred in
Walker did not occur here. Accordingly, we affirm the judgment of the Court of
In November 2002, defendant, armed with a .45-caliber handgun, entered
an apartment and ordered its two occupants not to move. Two accomplices also
entered. Defendant brandished his gun and demanded the victims’ wallets; after
obtaining them, he bound the victims’ wrists and ankles with tape. Defendant and
his accomplices then left, taking some electronic components and marijuana plants

with them. A short time later, police apprehended the three, and the victims
identified them as the perpetrators.
The Santa Clara County District Attorney filed a complaint charging
defendant and his accomplices with two counts of first degree robbery in violation
of Penal Code sections 211 and 212.5.1 The complaint further alleged that
defendant used a firearm during the commission of the robbery. (§ 12022.53,
subd. (b).)
Defendant and the People entered into a negotiated disposition. At the
change of plea hearing in September 2003, the district attorney amended the
complaint to include both victims in one count of robbery and moved to dismiss
the second count. When the trial court directed the district attorney to “state the
offered disposition,” the district attorney responded: “As to the defendant Jeffrey
David Crandell, the People have made the following offer: If he should plead no
contest or guilty to Count One as amended and admit the enhancement of Penal
Code Section 12022.53(b), the offer is to dismiss Count Two and the enhancement
on Count Two as well. And that would be for a 13-year top bottom.” A moment
later, defendant’s counsel responded, “Yes, your Honor,” to the court’s question
whether defendant would accept the district attorney’s offer.
“Do you understand, Mr. Crandell,” the court then asked, “that the
maximum time you could be sentenced to if you were convicted of this one charge
at a later time or if you were to plead guilty or no contest at a later time, the
maximum would be sixteen years in state prison?” Defendant said, “yes.” The
court continued: “The district attorney has offered that you will go to state prison,

1 Unlabeled
references are to this code.

but it will be for 13 years, no more, no less. [¶] Do you understand that?”
Defendant answered, “Yes, ma’am.”
In further colloquy a few moments later, the trial court advised defendant of
various consequences his pleading guilty or no contest would have. The court
warned defendant he would “have to pay a restitution fund fine of a minimum of
$200, a maximum of $10,000.” The trial court also notified defendant it “could
impose a general fund fine of up to $10,000.” Defendant told the court he
understood these things.
After additional advisements, the trial court asked defendant whether
“anyone made any promises to you other than what I promised you here today in
open court? [¶] And all I promised you is Mr. Crandell, 13 years in prison . . . .
[¶] Has anyone made any other promises to you, Mr. Crandell?” Defendant
answered, “No, ma’am.” Defendant also acknowledged that he was pleading
freely and voluntarily.
Immediately thereafter, the trial court amended count one as the parties had
agreed and asked, “How do you plead to that charge, Mr. Crandell?” Defendant
responded, “No contest.” He also admitted the truth of the firearm allegation. The
trial court thereupon accepted defendant’s plea, finding it to have been free and
voluntary. The court did not admonish defendant on his right to withdraw the plea
should the court subsequently withdraw its approval. (§ 1192.5.)
The probation officer’s report on defendant’s case was prepared after
defendant’s plea had been taken. The report recommended imposition of a $2,600
restitution fine, using the mathematical formula found in section 1202.4,
subdivision (b)(2),2 and a $2,600 parole revocation fine, pursuant to section
1202.45,3 the latter to be suspended.
At the sentencing hearing in April 2004, defendant moved to withdraw his
no contest plea, asserting he had been under the influence of prescription
medication for a psychiatric disorder at the time of the plea and that the court had
not fully explained to him his rights respecting the firearm enhancement
allegation. Defendant’s motion made no mention of the potential imposition of a
restitution or parole revocation fine as recommended in the probation report.
The trial court denied defendant’s motion and sentenced him to 13 years in
state prison—the lower statutory term of three years for residential robbery, plus
10 years for the firearm enhancement. Consistently with the probation officer’s
recommendation, the court also imposed a restitution fine of $2,600.4 Defendant’s
counsel argued for reducing the amount of the fine, but did not object that its
imposition violated the plea agreement.

Section 1202.4, subdivision (b)(2) provides in its entirety: “In setting a
felony restitution fine, the court may determine the amount of the fine as the
product of two hundred dollars ($200) multiplied by the number of years of
imprisonment the defendant is ordered to serve, multiplied by the number of
felony counts of which the defendant is convicted.”
Section 1202.45 provides in its entirety: “In every case where a person is
convicted of a crime and whose sentence includes a period of parole, the court
shall at the time of imposing the restitution fine pursuant to subdivision (b) of
Section 1202.4, assess an additional parole revocation restitution fine in the same
amount as that imposed pursuant to subdivision (b) of Section 1202.4. This
additional parole revocation restitution fine shall be suspended unless the person’s
parole is revoked. Parole revocation restitution fine moneys shall be deposited in
the Restitution Fund in the State Treasury.”
The trial court also imposed, but suspended imposition of, a parole
revocation fine of $2,600. The petition for review did not raise any issue
respecting the parole revocation fine, and we do not address it.

Defendant appealed on the ground the trial court violated the plea
agreement by imposing the $2,600 restitution fine. A divided Court of Appeal
affirmed the judgment in its entirety. We granted defendant’s petition for review.
“The Supreme Court has . . . recognized that due process applies not only to
the procedure of accepting the plea [citation], but that the requirements of due
process attach also to the implementation of the bargain itself. It necessarily
follows that violation of the plea bargain by an officer of the state raises a
constitutional right to some remedy.” (People v. Mancheno (1982) 32 Cal.3d 855,
860 [citing Santobello v. New York (1971) 404 U.S. 257, 262].)
In Walker, supra, 54 Cal.3d 1013, the trial court imposed a restitution fine
on a defendant who had pled guilty in accordance with a plea bargain that made no
mention of restitution. The probation report recommended a $7,000 restitution
fine, but “the record disclose[d] no other mention of the possibility of such a fine
prior to sentencing” (id. at p. 1019). Observing that the “consequences to the
defendant [of a restitution fine] are severe enough that it qualifies as punishment
for this purpose” (id. at p. 1024), we held that, “[a]bsent compliance with the
section 1192.5 procedure [informing defendant of the right to withdraw a
disapproved plea], the defendant’s constitutional right to the benefit of his bargain
is not waived by a mere failure to object at sentencing” (id. at p. 1025) when a
restitution fine not bargained for is imposed.
In the course of deciding Walker, we carefully distinguished “two related
but distinct legal principles” (Walker, supra, 54 Cal.3d at p. 1020) that may apply
when a restitution fine is erroneously imposed. “The first principle concerns the
necessary advisements whenever a defendant pleads guilty, whether or not the
guilty plea is part of a plea bargain.” (Ibid.) These include “both the
constitutional rights that are being waived and the direct consequence of his plea.”
(Id. at p. 1022.) “The second principle is that the parties must adhere to the terms
of a plea bargain. [Citation.] [¶] 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.” (Id. at p. 1020.)
In Walker, both types of error were present. First, the trial court advised
the defendant only that a $10,000 fine was “a possible consequence” when it
“should have advised defendant there was a possible $10,000 penalty fine and a
mandatory restitution fine of between $100 and 10,000.” (Walker, supra, 54
Cal.3d at p. 1029, italics added.)5 Second, the trial court imposed a restitution fine
of $5,000 that had not been mentioned in the parties’ plea bargain. (Walker, at
p. 1019.) Under the circumstances, we held that imposition of the restitution fine
constituted “a significant deviation from the negotiated terms of the plea bargain.
Since the court did not give the section 1192.5 admonition [relating to the
defendant’s right to withdraw the plea], and this was not merely a failure to advise
of the consequences of the plea, defendant cannot be deemed to have waived his
rights by silent acquiescence. Nor did he waive them expressly. As harmless
error analysis is not applicable, defendant is entitled to a remedy.” (Id. at pp.
Respecting remedies, we concluded that by not objecting to the mandatory
restitution fine when it was imposed, the defendant had waived the trial court’s
error in failing to advise him about the fine. (Walker, supra, 54 Cal.3d at p. 1029.)

The minimum restitution fine, formerly stated in Government Code section
13967, subdivision (a), was $100 (Stats. 1983, ch. 1092, § 135.2, p. 3998) until in
1992 it was increased to $200 (Stats. 1992, ch. 682, § 4, p. 2922). (See now Pen.
Code, § 1202.4, subd. (b)(1).)

As to the court’s deviation from the plea bargain, we held that when such a
“breach of the plea bargain is first raised after sentencing, as here on appeal, the
proper remedy generally is to reduce the fine to the statutory minimum [then
$100], and to leave the plea bargain intact.” (Ibid.) In reaching that conclusion,
we stressed that “normally the defendant should not receive any more punishment
than that bargained for” (id. at p. 1027, fn. 3); we allowed “the nonbargained $100
fine” to stand on appeal only because it was “statutorily mandated and . . . not
significant in the context of the bargain as a whole” (ibid.).
In this case, only the second type of error, violation of the plea bargain, is
in question. Defendant complains that imposition of a $2,600 restitution fine
violated his plea bargain and that, pursuant to Walker, supra, 54 Cal.3d 1013, he is
entitled to have the amount of the fine reduced to $200, the current statutory
minimum. The majority in the Court of Appeal below rejected this view,
concluding that, “after Moser [(In re Moser (1993) 6 Cal.4th 342 (Moser))] and
McClellan [(People v. McClellan (1993) 6 Cal.4th 367 (McClellan))], Walker can
no longer be read as establishing a categorical rule that whenever a trial court
imposes a restitution fine that was not mentioned in the recitation of the plea
bargain, the trial court must have violated the plea agreement.”
Unlike this case, both Moser and McClellan involved misadvice. In Moser,
we held that a defendant who has pleaded guilty after receiving inadequate or
erroneous advice from the trial court with regard to the potential consequences of
his plea generally is entitled to obtain relief only by showing he was prejudiced by
the erroneous advice. (Moser, supra, 6 Cal.4th at p. 345.) In McClellan, we held
the defendant was not entitled to withdraw his guilty plea inter alia because the
record failed to establish he would not have pled guilty if he had been advised of
the mandatory sex offender registration requirement. (McClellan, supra, 6 Cal.4th
at p. 370.) Neither case undermined our holding in Walker that imposing a
discretionary restitution fine contrary to the terms of a plea bargain constitutes “a
significant deviation” from the terms of the bargain (Walker, supra, 54 Cal.3d at
p. 1029), for which “the proper remedy is generally to reduce the fine to the
statutory minimum” (id. at p. 1030). Rather, in each case we found no violation of
the plea bargain had occurred because the additional burdens imposed on the
defendant were statutorily mandated. (Moser, at p. 357 [length of parole term];
McClellan, at pp. 379-380 [sex offender registration requirement].) As we
explained in Moser: “Unlike the amount of the restitution fine at issue in Walker,
the length of a parole term is not a permissible subject of plea negotiations. The
lifetime term of parole challenged in the present case is a statutorily mandated
element of punishment imposed upon every defendant convicted of second degree
murder. (§ 3000.1, subd. (a).) Neither the prosecution nor the sentencing court
has the authority to alter the applicable term of parole established by the
Legislature.” (Moser, at p. 357.)
By contrast, the parties to a criminal prosecution are free, within such
parameters as the Legislature may establish, to reach any agreement concerning
the amount of restitution (whether by specifying the amount or by leaving it to the
sentencing court’s discretion) they find mutually agreeable. As the Court of
Appeal majority below correctly observed, “Moser and McClellan teach that the
core question in every case is . . . whether the restitution fine was actually
negotiated and made a part of the plea agreement, or whether it was left to the
discretion of the court.” When a restitution fine above the statutory minimum is
imposed contrary to the actual terms of a plea bargain, the defendant is entitled to
a remedy. In this case, however, because the record demonstrates that the parties
intended to leave the amount of defendant’s restitution fine to the discretion of the
court, defendant is not entitled to relief.
As previously noted, the record reveals that the trial court, before taking
defendant’s plea, accurately advised him he would “have to pay a restitution fund
fine of a minimum of $200, a maximum of $10,000” and ascertained that the
prosecution had not made “any other promises” beyond that defendant would be
sentenced to 13 years in prison.6 These facts distinguish the case from Walker,
where the court advised the defendant only that the “maximum penalties provided
by law” for his offense included “a fine of up to $10,000” and obtained no
assurance that the parties intended their plea bargain to leave the amount of the
restitution fine to the court’s discretion. (Walker, supra, 54 Cal.3d at pp. 1018-
Thus, while “the defendant in [Walker] reasonably could have understood
the negotiated plea agreement to signify that no substantial fine would be
imposed” (Moser, supra, 6 Cal.4th at p. 356), defendant in this case was flatly
informed: “You will be ordered to pay restitution to the victims in this case.” In
light of these circumstances, it is clear that when defendant entered his plea, he
could not reasonably have understood his negotiated disposition to signify that no
substantial restitution fine would be imposed.
We reiterate our guidance in Walker that “[c]ourts and the parties should
take care to consider restitution fines during the plea negotiations. The court
should always admonish the defendant of the statutory minimum [$200] and
maximum $10,000 restitution fine as one of the consequences of any guilty plea,
and should give the section 1192.5 admonition whenever required by that statute.”
(Walker, supra, 54 Cal.3d at p. 1030.) We again encourage trial courts either to

Specifically, the court before taking defendant’s plea asked him, “Has
anyone made any other promises to you, Mr. Crandell?” Defendant answered,
“No, ma’am.”

require that defendants sign a written change of plea form specifying all
significant elements of the plea or, when orally taking pleas, follow an informal
“script” that calls upon the parties to disclose all such for the record. “ ‘Where the
court inadvertently omits to list or explain a significant element, the prosecuting
attorney should be alert to ensure that it is expressly brought to the defendant’s
attention.’ To this we add that whenever possible, any error in taking the plea
should be brought to the attention of the court at sentencing so that it can be
addressed expeditiously.” (Ibid.)
For the foregoing reasons, the judgment of the Court of Appeal is affirmed.



The majority correctly holds that the imposition of a $2,600 restitution fine
did not violate the plea bargain, because the record makes clear the parties
negotiated no term contrary to the court’s action. Asked to “state the offered
disposition,” the prosecutor described it clearly: Defendant would plead to a
single count of robbery with use of a firearm, and would receive a sentence of 13
years, significantly below the legal maximum term he could otherwise suffer on
this charge and enhancement. In turn, the People would dismiss a second robbery
count, together with its related firearm enhancement.
The prosecutor mentioned no other terms. Neither defendant nor his
counsel spoke up to say the prosecutor had omitted provisions or otherwise
incompletely stated the agreement.
Then, before taking the plea, the court warned defendant he would “have to
pay” a restitution fine between $200 and $10,000. Defendant acknowledged he
understood. Neither he nor either counsel protested that the parties had agreed
there would be only a minimum fine. Under such circumstances, we may readily
infer the parties had made no bargain precluding the court from exercising its
discretion as to the amount of the fine.
As the majority notes, the court also specifically asked defendant whether
any other promises had been made to him, and he answered no. That dialogue
obviously removed all possible doubt about the parties’ intent, and it seems good
practice for trial courts to include such an inquiry in their “scripts” for taking
negotiated pleas. However, I do not read the majority opinion as requiring such a

question and answer, over and above the others presented on this record, before an
appellate court may find the parties did not bargain for a limited fine.
The parties have an obligation to address all subjects they deem significant
to the bargain, specifically including the amount of a restitution fine. (See
People v. Walker (1991) 54 Cal.3d 1013, 1024.) They have the further obligation
to state their agreement fully on the record. They should not leave trial and
appellate courts guessing about missing or unstated terms. If the record does not
disclose any agreement, one way or the other, on a particular subject, there is no
reason to assume a term favorable to the defendant. Thus, when (1) the parties, in
stating their bargain for the record, have mentioned no agreement to limit the
restitution fine, (2) the court warns that it will impose such a fine, and that the
amount may be anywhere in the statutory range, (3) the defendant says he
understands, and (4) neither the defendant nor counsel protests that such a fine
would violate the bargain, it is most sensible to assume the parties made no
agreement with respect to the fine, leaving it to the law and the court’s discretion
upon proper advisement.
Accordingly, if a trial court has failed, for whatever reason, to ask
specifically about “other promises” before imposing a substantial fine, that fact
alone should not require an appellate court to invalidate the fine. I do not interpret
the majority opinion to hold otherwise. On that basis, I join the majority’s
reasoning and result.


See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Crandell

Unpublished Opinion

NP opn. filed 5/22/05 – 6th Dist.
Original Appeal
Original Proceeding
Review Granted

Rehearing Granted


Opinion No.

Date Filed: April 30, 2007


County: Santa Clara
Judge: Marliese G. Kim


Attorneys for Appellant:

Jonathan Grossman, under appointment by the Supreme Court, and Larry L. Dixon, under appointment by
the Court of Appeal, for Defendant and Appellant.


Attorneys for Respondent:

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Manuel M. Medeiros, State Solicitor General,
Donald E. De Nicola, Deputy State Solicitor General, Robert R. Anderson, Chief Assistant Attorney
General, Gerald A. Engler, Assistant Attorney General, Laurence K. Sullivan, René A. Chacón and David
M. Baskind, Deputy Attorneys General, for Plaintiff and Respondent.

Counsel who argued in Supreme Court (not intended for publication with opinion):

Jonathan Grossman
Sixth District Appellate Program
100 N. Winchester, #310
Santa Clara, CA 95050
(408) 241-6171

David M. Baskind
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 703-1308

Opinion Information
Date:Docket Number:
Mon, 04/30/2007S134883

1The People (Plaintiff and Respondent)
Represented by David M. Baskind
Office of the Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA

2Crandell, Jeffrey David (Defendant and Appellant)
Represented by Jonathan Grossman
Sixth District Appellate Program
100 N. Winchester Boulevard, Suite 310
Santa Clara, CA

3Crandell, Jeffrey David (Defendant and Appellant)
Represented by Larry L. Dixon
Attorney at Law
P O Box 995
Jackson, CA

4Crandell, Jeffrey David (Defendant and Appellant)
Represented by Sixth District Appellate Program
100 N. Winchester Boulevard
100 N. Winchester Boulevard
Santa Clara, CA

Apr 30 2007Opinion: Affirmed

Jun 21 2005Record requested
Jun 21 2005Petition for review filed
  by counsel for aplt. (Jeffrey David Crandell)
Jun 22 2005Received Court of Appeal record
  file jacket/briefs/sealed envelope/transcripts
Aug 15 2005Time extended to grant or deny review
  to and including September 19, 2005
Aug 24 2005Petition for review granted (criminal case)
  Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, and Moreno, JJ.
Sep 12 2005Counsel appointment order filed
  Upon request of appellant for appointment of counsel, the Sixth District Appellate Program is hereby appointed to represent appellant on the appeal now pending in this court. Appellant's brief ont he merits must be served and filed on or before thirty (30) days from the date of this order.
Sep 13 2005Received:
  Letter from the David M. Baskind, Deputy Attorney Genral, Bar No. 208883, that he will be representing the People instead of DAG Rene Chacon (noted herein)
Oct 6 2005Request for extension of time filed
  By counsel for appellant {Jeffrey David Crandell} requesting a 30-day extension to and including November 14, 2005, to file appellant's opening brief on the merits
Oct 7 2005Extension of time granted
  To November 14, 2005 to file appellant's opening brief on the merits.
Oct 27 2005Opening brief on the merits filed
  by counsel for appellant (Jeffrey David Crandell)
Nov 22 2005Request for extension of time filed
  to 12-30-2005 (32 days) to file respondent's answer brief on the merits.
Nov 29 2005Extension of time granted
  On application of respondent and good cause appearing, it is ordered that the time to serve and file respondent's answer brief on the merits is hereby extended to and including December 30, 2005.
Dec 29 2005Request for extension of time filed
  to January 13, 2006 to file Respondent's Answer Brief on the Merits.
Jan 13 2006Extension of time granted
  to 1-13-06 for respondent to file the answer brief on the merits.
Jan 13 2006Answer brief on the merits filed
  The People, Respondent by David M. Baskind, Counsel
Feb 2 2006Reply brief filed (case fully briefed)
  Jeffrey David Crandell, appellant. Jonathan Grossman, Superme Court appointed counsel.
Apr 28 2006Received:
  Letter from David M. Baskind advising of prepaid vacation between July 3, 2006 and July 10, 2006, inclusive, and requesting that oral argument not be assigned during this period.
Jul 19 2006Compensation awarded counsel
  Atty Grossman - Sixth District Appellate Program
Feb 8 2007Case ordered on calendar
  to be argued Tuesday, March 6, 2007, at 1:30 p.m., in San Francisco
Mar 6 2007Cause argued and submitted
Apr 27 2007Notice of forthcoming opinion posted
Apr 30 2007Opinion filed: Judgment affirmed in full
  of the Court of Appeal. Opinion by Werdegar, J. -- joined by George, C.J., Kennard, Baxter, Chin, Moreno, Corrigan, JJ. Concuring opinion by Baxter, J. -- joined by Chin and Corrigan, JJ.
May 31 2007Remittitur issued (criminal case)
Jun 6 2007Received:
  received receipt for remittitur from CA/6
Jul 23 2007Received:
  Letter dated July 16, 2007 from the Supreme Court of the United States, writ of certiorari was filed July 11, 2007 and placed on the docket July 15, 2007 as No. 07-5322.
Aug 8 2007Compensation awarded counsel
  Atty Grossman - Sixth District Appellate Program
Oct 9 2007Received:
  Letter dated 10-1-2007 from the Supreme Court of the United States , writ of certiorari denied.

Oct 27 2005Opening brief on the merits filed
Jan 13 2006Answer brief on the merits filed
Feb 2 2006Reply brief filed (case fully briefed)
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website