Filed 2/23/23 P. v. Birdsell CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

 Plaintiff and Respondent,

v.

DANIEL M. BIRDSELL, 

 Defendant and Appellant.

2d Crim. No. B320387

(Super. Ct. No. 21CR07906)

(Santa Barbara County)

Appellant Daniel M. Birdsell pleaded guilty to one count of 

voluntary manslaughter (Pen. Code, § 192, subd. (a)1) and 

admitted that he personally and intentionally discharged a 

firearm (§ 12022.5, subd. (a)). The prosecutor dismissed a 

murder charge in exchange for his plea. Birdsell agreed to an 

aggregate sentence of 15 years in state prison. The trial court 

imposed a $10,000 restitution fine at sentencing. Birdsell 

maintains that the fine violates the plea agreement. We affirm

the judgment.

1 All statutory references are to the Penal Code unless 

otherwise stated.
2

FACTUAL AND PROCEDURAL BACKGROUND

Birdsell shot his stepbrother, Jordan Savard, during an 

argument outside the family home in Lompoc. Savard died on 

the way to the hospital. Police arrested Birdsell the next day as 

he debarked a train in Oceanside. The People charged him with 

one count of murder with a firearm enhancement (§§ 187, subd. 

(a), 12022.5, subd. (a).) Birdsell later agreed to plead guilty to 

voluntary manslaughter (§ 192, subd. (a)). He also agreed to 

admit the firearm allegation and accept an aggregate prison term 

of 15 years. 

Section 2.f. of the parties’ form plea agreement is titled 

“Restitution, Statutory Fees, and Assessments.” It lists nine 

categories of restitution and other post-conviction assessments, 

each preceded by a space into which parties can place a check 

mark and insert a dollar amount.2 The parties checked only the 

2 Section 2.f. states as follows: “f. Restitution, Statutory 

Fees, and Assessments [¶] I understand that the court will order 

me to pay the following amounts (if an amount is not yet known, 

‘TBD’ for ‘to be determined’ is entered next to the $); I must 

prepare financial disclosure statements to assist the court in

determining my ability to pay; and refusal or failure to prepare 

the required financial disclosure statements may be used against 

me at sentencing: [¶]

1. ___ $ ___ to the Victim Restitution Fund

2. ___ $ ___ restitution to actual victims 

3. ___ $ ___ restitution to the State of California, Victims of 

Crime Fund 

4. ___ $ ___ court operations assessment 

5. ___ $ ___ court facilities assessment 

6. ___ $ ___ base fine plus any applicable penalties, 

assessments, and surcharges 

7. ___ $ ___ other (specify): ___________________________ 

8. ___ $ ___ other (specify): ___________________________
3

seventh category, “Other,” and inserted “TBD” as the amount. 

The plea agreement states nothing else about the monetary 

component of Birdsell’s sentence.

Birdsell appeared at his preliminary hearing and entered 

his changed plea. The People did not raise the issue of 

restitution or any other assessment during its plea colloquy with 

appellant. The trial court accepted the plea and scheduled the 

case for sentencing. 

The trial court sentenced Birdsell to 15 years in state 

prison and imposed a restitution fine of $10,000, the maximum 

permitted by statute. It denied defense counsel’s request to lower 

the fine pursuant to People v. Duenas.

3 Birdsell appealed the 

restitution order.

DISCUSSION

Birdsell contends the trial court violated the plea 

agreement when it imposed the maximum restitution fine. The 

minimum restitution fine for a felony conviction is $300 and the 

maximum is $10,000. (§ 1202.4, subd. (b)(1).) “[T]he parties to a 

criminal prosecution are free . . . 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.” (People v. Crandell (2007) 40 Cal.4th 

1301, 1309 (Crandell).) The fine imposed by the trial court may 

9. ___ $ ___ An (additional) amount to be determined by 

the court at sentencing or such other hearing as the court may 

set.”

3 People v. Dueñas (2019) 30 Cal.App.5th 1157 holds that 

the trial court must stay execution of a restitution fine unless or 

until the prosecutor demonstrates the defendant’s ability to pay.

Appellant does not invoke Dueñas in this appeal.
4

not significantly exceed the agreed amount. (People v. Villalobos

(2012) 54 Cal.4th 177, 182 (Villalobos), quoting People v. Walker 

(1991) 54 Cal.3d 1013, 1024 [“‘both parties, including the state, 

must abide by the terms of [a plea] agreement’”].)

The People assert Birdsell waived any plea violation error 

by failing to object at sentencing. We disagree. A defendant may 

raise this issue for the first time on appeal where, as here, the 

trial court did not advise Birdsell of the right to withdraw his

plea pursuant to section 1192.5, subdivision (c). (Villalobos, 

supra, 54 Cal.4th at p. 182.)

Birdsell argues that leaving the “Victim Restitution Fund” 

category blank on the plea form meant the parties intended the 

court to impose the minimum fine. We decline to infer intent 

from their silence. (See Villalobos, supra, 54 Cal.4th at p. 183

[“[M]ere silence by the parties and trial court concerning a 

statutorily mandated punishment does not make exclusion of the 

punishment a negotiated term of a plea agreement”].) The record

leaves no clue whether the parties contemplated a precise fine

during their negotiations. They did not refer to restitution 

during the plea colloquy or at any time before Birdsell received 

his sentence. And contrary to Birdsell’s claim, inserting “TBD” 

into the “Other” category on the plea form suggests the parties

intended to leave the amount to the court’s discretion. 

Consequently, the court could impose a fine above the 

minimum so long as it considered the statutory factors. 

(§ 1202.4, subd. (d).) The court cited the seriousness of Birdsell’s 

offense and the decision of the victim’s family not to seek a 

separate restitution order as factors supporting the maximum 

fine. The transcript of proceedings confirms it did so. 

Birdsell also contends the court should have advised him 

that pleading guilty would result in a restitution fine between 

$300 and $10,000. We agree with him. (See People v. Walker, 
5

supra, 54 Cal.3d at p. 1030 [trial courts “should always admonish 

the defendant of the statutory minimum [$300] 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”]; accord, Crandell, supra, 40 Cal.4th at 

p. 1310; Villalobos, supra, 54 Cal.4th at p. 185.) The court’s 

failure to properly advise Birdsell about the statutory range of 

fines, however, speaks nothing of whether the parties negotiated 

a specific amount within that range. (See Villalobos, at p. 185 [“a 

trial court’s advisement error does not mean that imposition of a 

substantial fine violates a plea agreement. . . . [A]dvisement error 

and violation of a plea bargain are two different things”].)

DISPOSITION

Judgment is affirmed.

NOT TO BE PUBLISHED.

BALTODANO, J.

We concur:

GILBERT, P.J.

YEGAN, J. 
6

Von N. Deroian, Judge

Superior Court County of Santa Barbara

______________________________

Heather E. Shallenberger, under appointment by the Court 

of Appeal, for Defendant and Appellant. 

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Noah P. Hill, and Eric J. Kohm, Deputy 

Attorneys General, for Plaintiff and Respondent.