RICHMAN, J. —
In People v. Harvey (1979) 25 Cal.3d 754, 758-759 [159 Cal.Rptr. 696, 602 P.2d 396] (Harvey) our Supreme Court held that facts underlying charges dismissed as part of a negotiated plea may not, absent contrary agreement by the defendant (now called a Harvey waiver), be used to impose adverse sentencing consequences. The principle expanded to cover victim restitution (e.g., People v. Baumann (1985) 176 Cal.App.3d 67, 74-75 [222 Cal.Rptr. 32]) and was soon codified. (Stats. 1988, ch. 287, § 1, p. 989, adding Pen. Code,
The novel issue for decision here is whether, notwithstanding a Harvey waiver, a defendant is entitled to an evidentiary hearing in the hope of establishing that no restitution is owing to the victim of a dismissed charge because the defendant did not commit the offense, an issue that arises out of these circumstances:
Following a preliminary examination, Weatherton was charged by information with committing the following felonies: (1) assaulting Jenkins with a firearm and personally inflicting great bodily injury (§§ 245, subd. (a)(2), 12022.7, subd. (a)); (2) falsely imprisoning Jenkins by violence and the personal use of a firearm (§§ 236, 12022.5, subd. (a)); (3) being a past-convicted felon in possession of a firearm when he shot Jenkins (§ 29800, subd. (a)(1)); (4) unlawful possession of a firearm in a public place on January 5, 2012 (§ 25850, subd. (c)(1)); (5), (6), (7) and (9) being a past-convicted felon in possession of a firearm on or about January 5, 2012 (§ 29800, subd. (a)(1)); and (8) unauthorized possession of a firearm on or about January 5, 2012 (§ 30305, subd. (a)). It was further alleged in the information that Weatherton had a 1992 prior strike conviction for assault with a firearm.
Shortly thereafter Weatherton entered pleas of guilty to two charges, counts 3 and 7, of being a past-convicted felon in possession of a firearm on December 24, 2011, the date Jenkins was shot, and on or about January 5, 2012. Weatherton also admitted the prior strike allegation. At two points on the change of plea form, Weatherton acknowledged making a "Harvey waiver for restitution" and facing liability for "actual restitution per Harvey waiver." This understanding was confirmed by the court prior to Weatherton changing his pleas: "Mr. Weatherton, the D. A. is willing to dismiss the other charges as long as you enter into a Harvey waiver, which means I can consider the other counts in determining the sentence and can also order restitution with regards to the dismissed counts. Do you agree and enter into a Harvey waiver at this time?" Weatherton replied, "Yes."
At the sentencing hearing the court heard and granted Weatherton's motion to strike the prior conviction allegation; suspended imposition of sentence; admitted Weatherton to probation upon specified conditions; and reserved jurisdiction to determine restitution to Jenkins.
At the restitution hearing held three months later, the court
The court was not persuaded: "Looking at the minutes of the plea proceedings ..., the pleas were to counts 3 and 7, which were violations of Penal Code section 29800(a)[1], which were possession of a firearm by a felon. But the minutes say, quote, `Dismissed counts may be considered at time of sentencing in re: Harvey.' Dismissed counts would include Count 1, which was the ... assault with a firearm charge [on Jenkins]. [¶] So it's clear that the Harvey waiver embraced Count 1. [¶] Then looking again at the minutes of the sentencing ... it says, quote, `Defendant shall make restitution in amount to be determined by the probation officer. Restitution to victim Yasmin Jenkins,' end quote.... [¶] So the Court made a determination already at that sentence hearing that restitution would be ordered for Yasmin Jenkins. So that's ... a ship that has sailed, and the Court will not revisit that." The court then ordered defendant to pay restitution to Jenkins in the amount of $22,141.08.
Concerning Judge Runde's "ship that has sailed" comment, Weatherton argues: "Judge Runde was also mistaken as to the determination made by the sentencing judge, Judge Karesh. There was no finding made by the sentencing judge as to the culpability of Appellant for any dismissed counts. In fact, Judge Karesh stated on the record that Yasmin Jenkins was `not a victim in this case' and refused to allow her to testify as a victim. Judge Karesh did order a hearing on restitution, but that ... is not a dispositive ruling that an alleged victim is entitled to restitution."
Finally, believing that Jenkins's testimony at the preliminary examination was "destroyed," and thus she had "zero credibility" after being "thoroughly
Until this appeal there appears to be no reported decision directly challenging the logical and settled consequence of Harvey, namely, that "[b]ecause restitution on the dismissed counts was part of the plea bargain and was a condition of appellant's plea, and there being no dispute that appellant's plea was freely and voluntarily made, had factual basis, and was approved by the court, the court did not err in ordering restitution on [the dismissed counts]."
Judging by the page he cites, Weatherton apparently relies on this passage in Baumann: "In People v. Hartley (1984) 163 Cal.App.3d 126, 130 [209 Cal.Rptr. 131], it was said: `Since a defendant will learn of the amount of restitution recommended when [s]he reviews the probation report prior to sentencing, the defendant bears the burden at the hearing of proving that amount exceeds the replacement or repair cost.' (Fn. omitted.) `The purposes of an order for restitution are ... rehabilitating the offender and deterring future criminal conduct; these purposes differ from those underlying a civil restitution order.... Due process is considered satisfied in the criminal law as long as a separate hearing is held to determine the value of the victim's loss. [Citation.] As noted, however, there is no requirement that the order be limited to the exact amount of loss in which the individual is actually found culpable.' [Citation.]" (People v. Baumann, supra, 176 Cal.App.3d 67, 80.) The "As noted" is an obvious incorporation of the preceding paragraph: "The requirements of due process are satisfied by providing the defendant a hearing on ability to pay as well as the extent of the loss occasioned by the
The two decisions cited by Weatherton take due process no further. (See In re Brittany L. (2002) 99 Cal.App.4th 1381, 1391 [122 Cal.Rptr.2d 376] ["statutory directive is meant to afford the minor a reasonable opportunity to challenge the accuracy or validity of the victims' claimed losses. It is a crucial part of the overall statutory scheme, necessary to satisfy due process, and ensure fundamental fairness in the determination of the restitution ultimately ordered. [¶] In the present case the court refused to consider appellant's proffered evidence challenging the amount and necessity of the victims' claimed economic losses. The court's action thus did not comply with the statutory directives ... which expressly allow a minor to challenge the amount of the victims' claimed loss" (fn. & citation omitted)]; People v. Hartley, supra, 163 Cal.App.3d 126, 130 ["At the conclusion of the hearing the trial court must then make an independent judicial determination of the amount of restitution the defendant shall be required to pay based on the
While it is one thing to respond that a victim has inflated a claim for restitution, or may even have no claim at all, it is an entirely different matter to assert, as Weatherton does, that while it is undisputed that the victim suffered compensable losses, he bears no responsibility in that there was no crime because he was acting in self-defense. (See § 197, subd. 2; People v. Goins (1991) 228 Cal.App.3d 511, 517 [279 Cal.Rptr. 42].) The startled prosecutor, expecting to litigate only the restitution issue, could hardly be expected to let Weatherton's claim go unchallenged. Weatherton was prepared to testify, but how and with what was the prosecutor to respond? Not with Jenkins, who refused to testify. And the prosecutor would face tactical decisions about a number of issues, such as (1) whether Weatherton entertained an honest and reasonable belief of the necessity to use deadly force to defend himself from Jenkins; (2) whether Weatherton's use of deadly force was reasonable in the circumstances; and (3) whether Weatherton was not entitled to claim self-defense because he provoked a quarrel that created the ostensible need for self-defense. (See 1 Witkin, Cal. Criminal Law (4th ed. 2012) Defenses, § 68, pp. 509-510.) The court would be equally taken aback, expecting only the regular Friday restitution calendar and now looking at presiding over a felony mini-trial.
It strains credulity to think the concept of a Harvey waiver meant to approve such a situation. The obvious point of the concept was to regularize and streamline the circumstances in which dismissed charges could be considered at the time of sentencing on charges to which the defendant had pled guilty. Even if Weatherton were allowed to present his version of events, and even if that version were disbelieved, valuable court time would have been consumed. Thus, if Weatherton's connection is accepted, a Harvey waiver's utility would be undermined, if not severely curtailed. Indeed, it could truly be asked that if a Harvey waiver could be so easily repudiated and evaded, what would be the point of section 1192.3, subdivision (b) requiring one?
"Simply stated, the Harvey rationale is that `a deal is a deal.'" (People v. Martin (2010) 51 Cal.4th 75, 80 [119 Cal.Rptr.3d 99, 244 P.3d 496].) So is a Harvey waiver. Yet, having expressly agreed to a deal, and received the benefits of it, Weatherton now wants to repudiate it by trying to recast or reinterpret in his favor "the facts underlying, and ... pertaining to, the dismissed count[s]." (Harvey, supra, 25 Cal.3d 754, 758.) Weatherton has
A deal is a deal.
The restitution order is affirmed.
Kline, P. J., and Stewart, J., concurred.