People v. Birdsell CA2/6 ( 2023 )

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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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, 2d Crim. No. B320387
(Super. Ct. No. 21CR07906)
Plaintiff and Respondent, (Santa Barbara County)
v.
DANIEL M. BIRDSELL,
Defendant and Appellant.
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.
All statutory references are to the Penal Code unless
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otherwise stated.
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
2Section 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): ___________________________
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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.
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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,
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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.
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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.
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