Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Merced County, Super. Ct. No. AF42798A. Gerard J. Kettmann and Brian L. McCabe, Judges.
Jean M. Marinovich, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and John G. McLean, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
Kane, J.
Pursuant to a no contest plea, defendant Donnie Ray Coyle was convicted of assault of Maria Vega. The trial court sentenced him to three years in prison and ordered him to pay $6,417.55 in restitution to one victim and $45,758.75 to another. On appeal, defendant contends (1) there was no Harvey waiver and therefore the trial court erred when it ordered him to pay restitution to the victim of a dismissed count and (2) the restitution ordered on the dismissed count was a significant deviation from the plea agreement. We will affirm.
People v. Harvey (1979) 25 Cal.3d 754.
FACTUAL AND PROCEDURAL SUMMARY
On January 15, 2006, the victims, Maria Vega and Alan Chavez, and three other friends left a party in Livingston. They noticed they were being followed by a red convertible containing defendant and two other people. Defendant’s group threw things at the victims’ vehicle. Eventually the victims pulled into a school parking lot and defendant’s group followed. Vega got out and demanded an explanation for being followed. Mederios got out and hit Vega with a crowbar. When Chavez tried to help Vega, defendant took the crowbar and beat Chavez until he fell to the pavement unconscious. Defendant then broke the window of the victims’ vehicle.
Defendant was charged with two counts of assault by means of force likely to produce great bodily injury or with a deadly weapon (Pen. Code, § 245, subd. (a)(1); counts 1 & 2) and one count of vandalism (§ 594, subd. (b)(2)(A)). Enhancements were also alleged.
All statutory references are to the Penal Code unless otherwise noted.
In a hearing before Judge Kettmann, defendant originally pled not guilty, but later withdrew his plea and entered a no contest plea to count 1, assault on Vega. In return for the plea, he would receive the middle term of three years in prison and all other counts, including assault on Chavez, and enhancements would be dismissed. Before entering his no contest plea, defendant initialed an advisement of rights, waiver and plea form. One of the statements he initialed was the following: “I understand that I may be ordered to pay restitution to the victim(s).” The plea form did not mention a Harvey waiver.
At the plea hearing, the following occurred:
“THE COURT: … Will you tell us what’s going to happen?
“[DEFENSE COUNSEL]: Plead to Count 1, mid term of 3 years in state prison, remaining charges and enhancements will be dismissed. [¶] And he wants immediate sentencing, there may be a request for restitution hearing; if there is, he doesn’t -- he wants to waive his presence for that.
“[PROSECUTOR]: Count 2 dismissed with a Harvey waiver with restitution to Allen Chavez.
“THE COURT: All right. You’re Mr. Coyle, right?
“THE DEFENDANT: Yes, sir.
“THE COURT: Donnie Ray Coyle?
“THE DEFENDANT: Yes, sir.
“THE COURT: And you are charged in Count 1 with a violation of 245(a) of the California Penal Code, assault by means of force likely to produce great bodily injury or with a deadly weapon in that you did willfully and unlawfully commit an assault on Maria Vega by means of force likely to produce great bodily injury or with a deadly weapon, to wit, a crowbar and a knife. [¶] It’s indicated to me that you wish to withdraw your previous plea of not guilty and enter a new and different plea; is that correct?
“THE DEFENDANT: Yes, sir.
“THE COURT: And what plea is it that you intend to enter?
“THE DEFENDANT: No contest.
“THE COURT: Do you understand, sir, that a no contest plea results in a conviction on your record the same as a guilty plea for all purposes and at the conclusion, the court must find you guilty of the charge if you enter a plea of no contest[?]
“THE DEFENDANT: Yes, sir.
“THE COURT: I have what we call a waiver form; I’m going to hold it up. Your attorney has just given it to me. It carries what purports to be your initials on certain paragraphs and a signature at the end. I’ll hold that up.
“THE DEFENDANT: Yes, sir.
“THE COURT: Did you sign and initial this document?
“THE DEFENDANT: Yes, sir.
“THE COURT: Did you understand everything on the document that you initialed and signed?
“THE DEFENDANT: Yes, sir.
“THE COURT: And all of this you did under the supervision of your attorney; is that correct?
“THE DEFENDANT: Yes, sir.
“THE COURT: Is it stipulated that there’s a factual basis?
“[PROSECUTOR]: Yes.
“[DEFENSE COUNSEL]: Yes.
“THE COURT: And this plea is made freely and voluntarily on your part without any promises or threats of any sort?
“THE DEFENDANT: Yes, sir.
“THE COURT: Okay. All right, to the charge of violating Section 245(a) as charged, as I just read to you, how do you plead?
“THE DEFENDANT: No contest.
“THE COURT: And what about the enhancement did you say was going to happen to that?
“[PROSECUTOR]: Enhancements would be dismissed, your Honor.
“THE COURT: Okay.
“[PROSECUTOR]: That’s just -- it has 1, 2 and 3 that pertain to [defendant].
“THE COURT: And they’re all being dismissed?
“[PROSECUTOR]: Yes, your Honor, with the plea to Count 1.
“THE COURT: Okay. Then the clerk will -- those will be dismissed upon the acceptance of this plea. [¶] It was stipulated that there’s a factual basis.
“[PROSECUTOR]: Yes, your Honor.
“[DEFENSE COUNSEL]: Yes, your Honor.
“THE COURT: The court finds the plea is made freely, voluntarily, knowingly, and intelligently, that there is a factual basis…. [¶] … [¶]
“[DEFENSE COUNSEL]: He wants to be sentenced today and waive his presence for the restitution. [¶] … [¶]
“THE COURT: The court will sentence you today but as counsel said, there is a restitution hearing…. [¶] … [¶]
“THE COURT: Is there anything to be said other than what’s already been said?
“[DEFENSE COUNSEL]: No. [¶] … [¶]
“THE COURT: Court imposes the mid term of 3 years, and you are remanded immediately to the deputy sheriffs to be transferred to the Department of Corrections to begin your time. [¶] The remaining charges against you and the enhancements are dismissed on motion of the [prosecutor]. [¶] Count 2 is dismissed subject to a Harvey waiver.
“[PROSECUTOR]: With restitution to an Allen Chavez.
“THE COURT: And anything else? [¶] … [¶]
“[DEFENSE COUNSEL]: If you want to fix credits, he was picked up by parole on January 24th and then brought down here. [¶] … [¶]
“[DEFENSE COUNSEL]: And do you want to set a date for restitution pretrial?
“[PROSECUTOR]: Yeah, we need to have a date for hearing….
“THE DEFENDANT: I’m not going to be here.
“[PROSECUTOR]: No.
“[DEFENSE COUNSEL]: Why don’t we set a restitution pretrial May 31st at 8:15 and note that [defendant] waives his presence.
“THE COURT: There will be certain restitution fines imposed; we can impose those at the time of the [hearing.]” (Italics added.)
At a subsequent hearing a few months later, held before Judge Dougherty, the court could not determine from the record that a Harvey waiver had been entered at the time of the plea. The matter was continued to allow the prosecutor to research the issue.
At the next hearing, Judge McCabe ruled that the earlier court had erred by failing to follow the proper procedure in obtaining a Harvey waiver, but concluded defendant had suffered no prejudice. The court determined the restitution hearing could proceed.
At the restitution hearing, Judge McCabe determined restitution would be in the amount of $6,417.55 to Vega and $45,758.75 to Chavez. The following colloquy occurred:
“[DEFENSE COUNSEL:] [Defendant] is agreeable at least to be responsible for restitution for Chavez. He doesn’t think he should be ordered to pay for Vega. [¶] We are asking the court to not order the $6,000.00 attributed to Maria Vega because [defendant] had no contact with her. I don’t know what happened to the co-defendant’s case with regard to the restitution.
“THE COURT: All right. Conceding the forty-five thousand to Chavez?
“[DEFENSE COUNSEL]: Yes, not contesting the amount. I just received the additional doctor bill today that seems to add up.
“THE COURT: And Mr. [Prosecutor]?
“[PROSECUTOR]: Your Honor, we’ve already litigated the issue of the Harvey Waiver. That count was dismissed with a Harvey Waiver. Restitution was to both victims.
“[DEFENSE COUNSEL]: I just don’t think it was at the time the plea was entered, and I don’t think it should be ordered as to both victims.”
The parties submitted the issue and the court ordered defendant to pay $6,417.55 to Vega and $45,758.75 to Chavez.
DISCUSSION
I. Harvey Waiver
Defendant contends he did not enter a valid Harvey waiver and the trial court erred when it determined he was not prejudiced by the court’s error.
Harvey held there is an implicit understanding in every plea bargain that the defendant will not suffer adverse sentencing consequences because of the facts underlying and pertaining solely to dismissed counts, unless there is an agreement to the contrary. (People v. Harvey, supra, 25 Cal.3d at p. 758.) Thus, a “Harvey waiver permits a trial court to consider facts underlying dismissed counts in determining the appropriate disposition for the offense of which the defendant was convicted.” (People v. Moser (1996) 50 Cal.App.4th 130, 132-133.)
The Harvey principle applies to restitution on dismissed counts. Section 1192.3, subdivision (b), provides: “If restitution is imposed which is attributable to a count dismissed pursuant to a plea bargain, ... the court shall obtain a waiver pursuant to People v. Harvey[, supra,] 25 Cal.3d 754 from the defendant as to the dismissed count.” An effective Harvey waiver requires that the court personally advise the defendant of the penal consequences of his guilty plea. The defendant also must be told the maximum punishment for the admitted crimes. (In re Yurko (1974) 10 Cal.3d 857, 864.)
In this case, we agree with the trial court’s observation that although the court erred by failing to properly obtain a Harvey waiver, defendant failed to protest or object to the Harvey waiver when it was twice discussed in his presence during the plea hearing. The record demonstrates that defendant was informed by his plea form that he could be required to pay victim restitution; that before the plea was entered, the prosecutor stated count 2 would be dismissed with a Harvey waiver and restitution to Chavez, the victim of that dismissed count; that the court repeated moments later that count 2 was dismissed with a Harvey waiver and again the prosecutor mentioned restitution to Chavez; that the parties understood there would be a restitution hearing at which restitution would be imposed and at which defendant waived his attendance; and that at the restitution hearing, defendant conceded restitution for Chavez. It is apparent from these facts that defendant forfeited his opportunities to object to the Harvey waiver or the restitution on the dismissed count, or to withdraw his plea. (See People v. Scott (1994) 9 Cal.4th 331, 351 [forfeiture for failure to object]; In re Jimmy P. (1996) 50 Cal.App.4th 1679, 1685, fn. 8 [Scott applies to Harvey error].) Furthermore, defendant cannot claim surprise or prejudice from the Harvey waiver under these circumstances. He was aware he would be required to pay victim restitution to Chavez and did not object to that requirement or attempt to withdraw his plea. In fact, he later stated his willingness to pay Chavez. Therefore, it is not reasonably probable that a result more favorable to defendant would have been reached in the absence of the court’s error. (People v. Watson (1956) 46 Cal.2d 818, 836.)
II. Violation of Plea Bargain
Defendant also argues the trial court’s imposition of the $45,758.75 victim restitution to Chavez was a significant deviation from the terms of the plea bargain because neither a Harvey waiver nor restitution on the dismissed count was contemplated as part of the bargain.
“When a guilty [or no contest] plea is entered in exchange for specified benefits such as the dismissal of other counts or an agreed maximum punishment, both parties, including the state, must abide by the terms of the agreement. The punishment may not significantly exceed that which the parties agreed upon.” (People v. Walker (1991) 54 Cal.3d 1013, 1024; § 1192.5.) We have already concluded that restitution to Chavez on the dismissed count was contemplated as part of defendant’s plea bargain. Thus, restitution to Chavez was part of the plea agreement and its imposition did not violate the terms of the agreement. As for the amount of that restitution, the agreement did not mention a specific amount or a limitation on the amount, suggesting an implicit agreement that the amount was left to the discretion of the sentencing court. (See People v. Sorenson (2005) 125 Cal.App.4th 612, 619; People v. Knox (2004) 123 Cal.App.4th 1453, 1461; People v. Dickerson (2004) 122 Cal.App.4th 1374, 1384-1385.) If the restitution order violated defendant’s plea bargain, defendant or his attorney could be expected to have commented or objected. At the restitution hearing, defense counsel said defendant did not contest restitution to Chavez and was willing to pay. This lack of objection demonstrates that no one in the trial court seemed to think that the imposition of the $45,758.75 victim restitution violated the terms of the bargain. (People v. Dickerson, supra, at p. 1385.) Moreover, counsel conceded that the $45,758.75 amount was supported by Chavez’s medical bills. Thus, there was no abuse of discretion in the court’s choice of $45,758.75 as the amount of restitution. (See In re Johnny M. (2002) 100 Cal.App.4th 1128, 1132 [we review trial court’s restitution order for an abuse of discretion].) Neither the imposition of restitution nor the $45,758.75 amount of the restitution violated the terms of the plea bargain.
Defendant cites People v. Brown (2007) 147 Cal.App.4th 1213, but in that case the plea bargain contained an “express” and “specific agreement limiting the amount of victim restitution” (id. at p. 1223).
DISPOSITION
The judgment is affirmed.
WE CONCUR: Vartabedian, Acting P.J., Gomes, J.