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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.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. B 3 20387 (Super. Ct. No. 21 CR 07906 ) ( 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 restitut ion fine at sentencing. Birdsell
maintains that the fine violat es t he 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 aggr egate prison term of 15 years

. Section 2. f

. of the parties’ form plea agreement is titled “Restitution, Statutory Fees, and Assessments.” It list s 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 S ection 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,

assessmen ts, 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 p lea colloquy with appellant

. The trial court accepted the plea and scheduled the
case for sen tencing.
T he 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 d efense counsel ’s request to lower
the fine pursuant to People v. D uenas

. 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, sub d. (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 th e defendant ’s ability to pay. Appellant does not invoke Dueñas in this appea l.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 th e 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 th at leaving the “Victim Restitution Fund”
category blank on the plea form meant the parties intended the court to impose the minimum fine. We dec line to infer intent
from their silence. (See Villalobos

, supra , 54 Cal.4th at p . 18 3 [ “[M]ere silence by the parties and tr ial court concerning a statutorily mandated punishment does not make exclusion of the punishment a negotiated term of a plea agreement” ].) T he record leaves no clue whether the parties contemplated a precise fine during their negotiations

. The y did not refer to restitution during the plea colloquy or at any time before Birdsell received
his senten ce

. And contrary to Bird s ell’s claim, i nsert ing “TBD”
into the “Other” category o n the plea form suggests the parties
intended to leave the amount to the court ’s discretion

. Consequently, the court could im pose a fine above the
minimum so long as it considered the statutory factors

. (§ 1202.4, sub d. (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 th e court should have a d vise d him
that pleading guilty would re sult 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
fai lure 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 agreemen t.

. . . [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 Supe ri or Court Co unty of Santa Barbara

______________________________

Heather E. Shallenberger

, under appointment by the Court of Appeal, for D efendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney G eneral, Noah P. Hill

, and Eric J. Kohm , Deputy Attorney s General , for Plaintiff and Respondent

.