Oberreuter

Frank Frederick Oberreuter appeals a judgment on his negotiated guilty plea to assault with a deadly weapon. (Pen. Code, 1 § 245, subd. (a)(1).) He contends the court erred in imposing a restitution fine pursuant to Government Code section 13967, the possibility of which the court never advised him and which was not mentioned as a consequence of his plea in the plea-agreement form executed by the parties and filed in this record. He also claims the court erred in imposing the upper term of imprisonment. 2 Because we find the plea bargain did not encompass imposition of the restitution fine, the court did not reject the bargain and permit Oberreuter to choose whether to withdraw his plea, and he has served a substantial portion of his prison sentence, we accept the alternative disposition proposed by the People and modify the judgment by striking the order for a restitution fine rather than remanding to allow Oberreuter to choose between now withdrawing his plea or ratifying the present sentence. We find no other sentencing error and thus affirm the judgment as modified.

I

On April 13, 1987, Oberreuter entered a residence and struck Timothy Ferris in the head with a…

I respectfully dissent from that portion of the majority opinion which strikes the restitution ordered by the sentencing court. I.am not prepared to say that under the circumstances presented here this court can strike the restitution which the sentencing court has ordered pursuant to subdivision (c) of Government Code section 13967.

The sentencing judge here ordered restitution in the amount of $6,848.63 “per section 13967(c) of the Government Code to the victim as contained in the probation department’s report.” In making its recommendations for restitution, the probation report outlines the injuries to the victim.

“This officer sent the victim, Mr. Timothy Ferris, a request for a restitution letter and also telephoned him regarding the offense and the defendant. Mr. Ferris began by stating that he stayed in the hospital as a result of the incident for five days and left as he could not afford it any longer. Mr. Ferris indicates that he is still recuperating from the wounds inflicted by the defendant and has not been able to work since the incident. Mr. Ferris indicated that the nature of his problems consist of headaches, blurred vision, and a lack of feeling in his left…