No. B272181.

THE PEOPLE, Plaintiff and Respondent, v. ANDRE DUROUSO, Defendant and Appellant.

Court of Appeals of California, Second District, Division Eight.

Attorney(s) appearing for the Case

Benjamin Owens , under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

RUBIN, Acting P. J.

On appeal from his criminal conviction, defendant Andre Durouso raises two claims of sentencing error. First, he argues the trial court imposed a restitution fine in violation of his plea agreement. 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. The appropriate remedy is to reduce the fine to the statutory minimum.

Durouso also argues the trial court erred in calculating his presentence custody credits. We disagree with this contention and affirm the judgment as modified.


In 2016, the prosecution filed a felony complaint charging Durouso, a registered sex offender, with two counts of failing to file a change of address (Pen. Code, § 290.013, subds. (a) & (b)).1 The complaint alleged that Durouso had suffered two prior strike convictions (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and one prior prison term (§ 667.5, subd. (b)). Pursuant to a plea bargain, Durouso pled no contest to count one in exchange for the midterm of two years in state prison doubled based on his admission of a prior strike. The second count was dismissed.

During the plea colloquy, the court said, "So, Mr. Durouso, mid term state prison, two years, doubled, because of the strike that you are admitting. Is that your understanding of the deal, sir?" Durouso said, "Yes, sir."

The court then said to Durouso, "By initialing the boxes and signing the form, you are telling me that you read it; any questions you have were answered [by] your attorney. You are telling me you understand the charges, the maximum potential confinement time, any fees or fines that might be applicable, the consequences of pleading, your constitutional rights, and you want to waive and give up those rights as to both the new charge, the prior strike that you are admitting, plead no contest to the new charge and admit that strike for mid term to two years doubled to four." When asked if this was correct, Durouso replied in the affirmative. The court did not orally give a specific advisement regarding the restitution fine.

At sentencing, the court imposed a prison term of four years in accordance with the plea bargain. In addition, the court imposed a $1,200 restitution fine. Durouso timely appealed.2


1. The Restitution Fine

a. The Imposition and Collection of Restitution Fines

Article I, section 28 of the California Constitution provides, "It is the unequivocal intention of the People of the State of California that all persons who suffer losses as a result of criminal activity shall have the right to restitution from the persons convicted of the crimes for losses they suffer." "In addition to direct restitution payments to the victim from the offender, the Legislature has over time, beginning first in 1965, developed a statutory scheme providing for indemnity for crime victims" through the operation of the Restitution Fund. (People v. Hong (1998) 64 Cal.App.4th 1071, 1078.)

The Restitution Fund is financed, in part, by fines imposed on criminal defendants. (Legis. Analyst's Office (LAO), Overview of The Restitution Fund (Feb. 2009) p. 1.) Crime victims may obtain compensation from the Restitution Fund through an application process. (People v. Villalobos (2012) 54 Cal.4th 177, 181 (Villalobos) citing Gov. Code, §§ 13950-13960.)

The Restitution Fund helps pay unreimbursed expenses produced by crime. (LAO, Overview of The Restitution Fund (Feb. 2009) p. 1.) Even when an offense involves no victim, the court must impose a restitution fine of between $300 and $10,000 on defendants convicted of a felony, except in "extraordinary" circumstances. (§ 1202.4, subd. (b)(1).) In setting the amount of the fine in excess of the minimum amount, the court shall consider "the defendant's inability to pay, the seriousness and gravity of the offense and the circumstances of its commission, any economic gain derived by the defendant as a result of the crime, the extent to which any other person suffered losses as a result of the crime, and the number of victims involved in the crime." (§ 1202.4, subd. (d).)

"A defendant's inability to pay shall not be considered a compelling and extraordinary reason not to impose a restitution fine." (§ 1202.4, subd. (c).) Section 1202.4 presumes a defendant has the ability to pay the fine, and the defendant bears the burden of demonstrating his inability to pay. (People v. Romero (1996) 43 Cal.App.4th 440, 448-449; § 1202.4, subd. (d).) The court is not required to make "express findings" as to any of the factors it considers in imposing the fine. (§ 1202.4, subd. (d).)

When a defendant is incarcerated, the restitution fine is collected by the California Department of Corrections and Rehabilitation (CDCR) or the county by the deduction of up to 50 percent of the prisoner's wages and trust account deposits. (§ 2085.5, subd. (d).) Of the approximately 130,000 inmates in California, some 7,000 qualify for work through the California Prison Industry Authority (CalPIA), earning wages of between $.30 and $.95 an hour. (§ 2801; CDCR, Operations Manual (2017) § 51120.10; CalPIA, Fast Facts, <> (as of June 13, 2017); CDCR, Spring 2017 Population Report.)

A prisoner who does not qualify for paid work in prison and who does not have the assets to pay off his restitution fine will likely be released from prison with legal debt. A restitution fine is enforceable as a civil judgment. (Pen. Code, § 1214.2, subds. (a) & (b)(2).) An ex-offender who does not pay his debt may be subject to various fines and additional interest. "One of the first sanctions typically used by collection programs" is a $300 civil assessment imposed on ex-offenders who fail to pay their fine. (LAO, Restructuring the Court-Ordered Debt Collection Process (Nov. 2014) p. 9; § 1214.1, subd. (a).) The state may also charge seven percent interest on delinquent court-ordered debts. (Rev. & Tax. Code, §§ 19280, subds. (a) & (f), 19521.)

b. The Restitution Fine Here Violated Durouso's Plea Bargain

With this backdrop in mind, we now consider Durouso's challenge to his $1,200 restitution fine. He contends that his plea agreement affirmatively represented that he would not be ordered to pay a restitution fine and, therefore, the imposition of the fine violated the agreement. We agree.

Defendants "`are free to negotiate the amount of restitution fines as part of their plea bargains.' [Citations.] The parties to a criminal proceeding may choose to agree on a specific amount between the statutory minimum and maximum, or they may leave it up to the sentencing court's discretion. [Citation.]" (Villalobos, supra, 54 Cal.4th at p. 181.) It is a constitutional due process requirement that "both parties, including the state, must abide by the terms of [a plea] agreement" and the "punishment may not significantly exceed that which the parties agreed upon." (People v. Walker (1991) 54 Cal.3d 1013, 1024 (Walker), overruled on a different point in Villalobos at p. 183 [a restitution fine "qualifies as punishment for this purpose"].)

Here, Durouso signed a plea form that had been filled out by the District Attorney. In the section entitled "Restitution, Statutory Fees, and Assessments," the form provided a box for Durouso to initial and the following text, "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 $). . . ." Under these instructions, there was a list of nine enumerated fines, fees and assessments. A "$" sign and blank line was provided next to each item on the list.

"TBD" was handwritten diagonally next to the "$" signs as to three items. Nothing was written on the lines next to the other six items on the list; those lines remained blank. The first item on the list—"$ ____ to the Victim Restitution Fund"—was one of the items left blank. No other markings made clear that "TBD" applied to all categories.

The Attorney General argues that Durouso was adequately informed that a restitution fine would be imposed as part of his plea deal because "TBD" was written diagonally "in a manner suggesting that `TBD' is intended to apply to all nine of the options." 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.

The present set of facts is distinguishable from Villalobos, supra, 54 Cal.4th 177. In Villalobos, the court held that "where the parties have not mentioned the amount of the fine during the plea negotiation, and where the trial court has not threatened or promised any particular amount of fine during the plea colloquy, the amount of the fine is not part of the plea agreement, and the trial court is free to impose a fine within the statutory range. Absent an expressly negotiated term in the plea bargain concerning the fine, [there is] no basis to conclude that imposition of a fine within the statutory range constitutes more punishment than what the defendant bargained for." (Id. at p. 184.)

Here, by contrast, the plea agreement was not silent as to the imposition of a restitution fine. Rather, the plea form indicated that a restitution fine would be imposed on Durouso if an amount or "TBD" next to the "$" sign provided. Unlike in Villalobos where the parties did not discuss the restitution fine, this statement and corresponding lack of an amount or "TBD" written on the blank line next to "Victim Restitution Fund" provided "a basis for the defendant's belief that his plea agreement excluded imposition of a substantial fine." (Villalobos, supra, 54 Cal.4th at p. 183.)

The Attorney General argues that "even if" the plea agreement "somehow indicated" to Durouso that he would not be charged a restitution fine, the fine should be affirmed because it fell within the statutory range. However, a restitution fine that significantly exceeds that which the parties agreed upon violates the agreement and is not subject to harmless error analysis. (Walker, supra, 54 Cal.3d at pp. 1024, 1026.) We disagree.

Instead, we find the plea agreement was not effectuated because the $1,200 restitution fine was a significant deviation from the negotiated terms of the bargain. A deviation from the terms of a plea agreement "must be `significant' in the context of the plea bargain as a whole to violate the defendant's rights." (Walker, supra, 54 Cal.3d at p. 1024.) "Courts should generally be cautious about deeming nonbargained punishment to be insignificant. The test whether a punishment greater than that bargained for is `significant' under Santobello v. New York [(1971)] 404 U.S. 257, is stricter than the prejudice test. . . . Punishment that is not prejudicial, i.e., when it is not reasonably probable the defendant would not have pleaded guilty if informed of the punishment [citation], may well be `significant' if imposed after a negotiated plea." (Id. at p. 1027, fn. 3.) "A punishment or related condition that is insignificant relative to the whole, such as a standard condition of probation, may be imposed whether or not it was part of the express negotiations." (Id. at p. 1024.)

Here, Durouso's plea rested on the imposition of a midterm sentence of two years which was doubled based on his admission of a prior strike. Under the optimistic assumption that Durouso is one of the small percentage of prisoners to qualify for paid employment in prison, he might succeed in paying off the $1,200 fine by the end of his four-year prison term. If paid at the lower end of the wage spectrum, he would have to work essentially forty hours a week for four years to pay off the fine. Given this context, we conclude the $1,200 fine was a significant departure from the terms of his plea.

c. The Proper Remedy is to Reduce the Fine to the Statutory Minimum

Relying on Walker, supra, 54 Cal.3d 1013, Durouso argues he should be allowed to withdraw his plea or, in the alternative, the restitution fine should be reduced to the statutory minimum of $300. We conclude the appropriate remedy here is to reduce the restitution fine to the statutory minimum.

In Walker, the defendant pled guilty to one charge in exchange for the dismissal of another and a stipulated sentence of five years. (Walker, supra, 54 Cal.3d at pp. 1018-1019.) The trial court also imposed a $5,000 restitution fine. (Id. at p. 1019.) The Supreme Court held that the fine was not a part of the plea bargain and was a significant deviation from the agreement. (Id. at p. 1029.)

The court identified three "usual remedies for violation of a plea bargain": (1) withdrawal of the plea and go to trial on the original charges, (2) striking the nonbargained restitution fine, or (3) reducing the fine to the statutory minimum. (Walker, supra, 54 Cal.3d at p. 1027.) The court reasoned that striking the fine would violate the statutory mandate that a restitution fine be imposed unless the court states "compelling and extraordinary reasons" on the record. (Id. at p. 1027.) Allowing a defendant to withdraw his plea would also be "undesirable" for several reasons: the imposition of the fine and orderly entry of a plea bargain constitute important benefits to crime victims, and negotiated pleas "facilitate the efficient disposition of causes." (Ibid.) These benefits would be lost by withdrawal of a plea.

The Walker court concluded that when a plea bargain violation is raised for the first time after sentencing, "the passage of time tilts the relevant interests strongly towards reducing the fine rather than undoing the plea bargain." (Walker, supra, 54 Cal.3d at p. 1028.) The court, which decided Walker in 1991, reduced the restitution fine to the statutory minimum amount of $100 which it held was not "significant" as a matter of law such that it would violate the defendant's plea bargain. (Id. at p. 1027.)

Following Walker's 1991 opinion, the minimum restitution fine has increased to $300 which, taking inflation into account, is approximately double the value of $100 in 1991. However, under the facts of Durouso's plea to four years in state prison and prior strike admission, we conclude that a fine of $300 is not significant in the context of the bargain as a whole. Thus, the proper remedy here is to reduce the fine to the statutory minimum of $300.3

2. Durouso Was Not Entitled to Additional Presentence Custody Credits

Durouso contends the trial court erred in calculating his presentence custody credits. We disagree.

On October 19, 2015, Durouso's parole officer notified the Los Angeles County Sheriff's Department that Durouso had cut off his global positioning system (GPS) tag and his whereabouts were unknown. On December 30, 2015, Durouso was arrested in Ohio pursuant to a "fugitive from justice" warrant. On February 17, 2016, the felony complaint in this case was filed. A sentencing hearing was held on March 14, 2016. The trial court awarded Durouso 27 days of actual presentence custody credit based on the time he spent in custody from the filing of the felony complaint through the sentencing hearing.4 The trial court did not award Durouso credit for any days in custody prior to charges being filed against him.

Durouso now argues he should also receive credit for the period between his arrest and the filing of the complaint. The Attorney General argues that Durouso was not entitled to credit for that period of time because his custody then was attributable to a separate parole violation.

Section 2900.5, subdivision (b) provides that "credit shall be given only where the custody to be credited is attributable to the proceedings related to the same conduct for which the defendant has been convicted." "A criminal sentence may not be credited with jail or prison time attributable to a parole or probation revocation that was based only in part upon the same criminal episode. (People v. Bruner (1995) 9 Cal.4th 1178, 1191.) A defendant must prove that the conduct which led to the conviction was a `dispositive' or `"but for"' cause of the presentence custody. (Id. at p. 1180 [].)" (People v. Johnson (2007) 150 Cal.App.4th 1467, 1485.)

Here, Durouso was found in violation of parole based upon the removal of his GPS tag. After his arrest based on this violation, he was charged with failing to comply with the requirement that, as a sex offender, he inform law enforcement of any change in his residence address. (§ 290.013.) The conduct that led to his conviction—failure to register a change of address with law enforcement—was not a "but for" cause of his custody prior to the filing of charges against him. His violation of the parole condition that he wear a GPS tag provided a separate basis for his presentence custody. As his 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, he was not entitled to credit for that time.


The judgment is modified to reduce the restitution fine to $300. The trial court shall correct the abstract of judgment to reflect this modification, and forward a copy of the amended abstract to the Department of Corrections. As so modified, the judgment is affirmed.

FLIER, J. and SORTINO, J.,* concurs.


1. All further nondesignated statutory references are to the Penal Code.
2. Durouso's appointed appellate counsel filed a brief in accordance with People v. Wende (1979) 25 Cal.3d 436 raising no issues. We requested and received supplemental briefing on the issues of whether the imposition of the restitution fine violated the plea agreement and whether Durouso was entitled to additional presentence custody credits.
3. Although we hold that $300 is not significant in the context of Durouso's felony plea bargain, we do not discount the potential impact restitution fines may have on criminal defendants. "Many offenders live below the poverty line, and even nominal restitution payments can compose a significant percentage of the offender's income." (Dickman, Should Crime Pay? A Critical Assessment of the Mandatory Victims Restitution Act of 1996 (2009) 97 Cal. L.Rev. 1687, 1707.) It is estimated that 80 to 85 percent of inmates leave prison with debt from court-imposed costs, restitution, fines and fees. (Shapiro, National Public Radio, As Court Fees Rise, The Poor Are Paying the Price (May 2014).) Because unpaid monetary sanctions imposed on criminal defendants "are often subject to interest and other collection fees, legal debt tends to be long term in nature." (Harris et al., Drawing Blood From Stones: Legal Debt and Social Inequality in the Contemporary United States (2010) 115 Am. J. of Sociology 1753, 1786.) Having said this, we do not suggest that the $1,200 restitution fine originally imposed here would have been inappropriate.
4. He also received 26 days of conduct credit.
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.


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