Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. SS082254.
Mihara, Acting P. J.
Defendant Andy Custodio entered a no contest plea to misdemeanor unauthorized entry of a dwelling house (Pen. Code, § 602.5, subd. (a)) in exchange for dismissal of felony counts of residential burglary (Pen. Code, § 459) and grand theft (Pen. Code, § 487, subd. (a)) and the agreement that any incarceration would be concurrent to his incarceration for unrelated offenses. At the sentencing hearing, the trial court imposed probation and, as a condition of probation, ordered defendant to pay restitution for items that were stolen during the alleged burglary. In People v. Harvey (1979) 25 Cal.3d 754 (Harvey), the California Supreme Court held that, where a plea is entered on condition that other counts be dismissed, it is an “[i]mplicit” term of the plea agreement “(in the absence of any contrary agreement) that defendant will suffer no adverse sentencing consequences by reason of the facts underlying, and solely pertaining to, the dismissed count.” (Harvey, at p. 758; see also Pen. Code, § 1192.3.) However, Harvey does not apply where the dismissed counts were “transactionally related” to the count to which the defendant pleaded. (Harvey, at p. 758.) Here, the plea agreement did not explicitly indicate that defendant could be ordered to pay restitution based on the dismissed counts; that is, there was no “Harvey waiver.” The question before us is whether Harvey precluded the imposition of a probation condition requiring defendant to pay restitution based on the facts underlying the dismissed counts. We hold that the probation condition did not violate Harvey in this case because the dismissed counts were transactionally related to the count to which defendant pleaded no contest. Consequently, we affirm.
I. Factual and Procedural Background
On June 22, 2008, defendant went to see the mother of his son and told her he wanted to see the baby. After she told him that her mother was taking care of the baby, he told her that he was going to her home. Because her boyfriend was actually watching the baby at her home, she hurried home and saw defendant approaching her home. She arrived home before defendant, and she took her boyfriend and the baby to the police station as she knew defendant would be upset if he learned that her boyfriend was watching the baby. As she was driving to the police station, she received a telephone call from her home telephone number. It was defendant calling her from her home. Defendant did not have a key to her home. The police were summoned, and they determined that entry had been made through a window. Photography equipment and a classical guitar with a total value of $4,665 were missing.
Defendant was charged by complaint with residential burglary (Pen. Code, § 459), grand theft (Pen. Code, § 487, subd. (a)), and misdemeanor unauthorized entry of a dwelling house (Pen. Code, § 602.5, subd. (a)). It was further alleged that the grand theft had been committed while defendant was released from custody on bail or own recognizance (Pen. Code, § 12022.1).
Defendant pleaded no contest to the unauthorized entry count in exchange for dismissal of the other counts. It was further agreed that any incarceration would be concurrent with his incarceration for other offenses. Defendant told the probation officer that he had gone to the house and jumped over a fence to visit his dog, but he denied entering the home or taking anything. The probation officer recommended “that restitution remain open until it is determined whether there is a Harvey Waiver in this case. If there is, it will be recommended the defendant pay restitution in the amount of $4,665.00.”
At the outset of the sentencing hearing, defendant’s trial counsel mentioned that there was no Harvey waiver. The following colloquy occurred between defendant and the court near the end of the hearing. “THE COURT: All right. As far as victim restitution, I have discretion -- even though Harvey waiver wasn’t entered, I have discretion under the probation terms for rehabilitation and to make sure justice is met to pay victim restitution in an amount and manner to be determined by the probation officer. Even though the other charges were dismissed. And this is for the purpose of ensuring justice as well as to rehabilitate this defendant in front of me here. So do you understand that, sir? [¶] THE DEFENDANT: Yes, sir.” The court suspended imposition of sentence, placed defendant on probation for three years with no jail time, and ordered him, as a condition of probation, to pay restitution to the victim. Defendant accepted the conditions of probation.
The reporter’s transcript of the sentencing hearing does not contain any record of an explicit objection by defendant’s trial counsel to the victim restitution probation condition. However, the trial court’s signed minute order from the sentencing hearing states: “Defense’s objection noted for the record regarding victim restitution.” Defendant filed a timely notice of appeal challenging only the victim restitution probation condition.
II. Analysis
Defendant’s appointed appellate counsel originally filed an opening brief under People v. Wende (1979) 25 Cal.3d 436 that raised no issues. We requested and received supplemental briefing from the parties addressing whether the victim restitution probation condition was imposed in violation of Harvey and whether defendant adequately preserved this issue for appellate review.
In People v. Beagle (2004) 125 Cal.App.4th 415 (Beagle), the Fifth District Court of Appeal held that the Harvey rule applies to probation conditions. (Beagle, at p. 421.) In October 2009, the California Supreme Court granted review in People v. Martin (2009) 175 Cal.App.4th 1252, review granted, October 22, 2009, S175356 (Martin) to consider whether the Harvey rule applies to probation conditions. In Martin, the Fourth District Court of Appeal had disagreed with Beagle and held that Harvey does not apply to probation conditions. (Martin, at pp. 1256-1257.) Thus, the question of whether Harvey applies to probation conditions remains unresolved.
No petition for review was filed in Beagle.
The first question before us is whether defendant adequately preserved a challenge to the restitution condition. Ordinarily, a probation condition may not be challenged on appeal unless the defendant interposed an objection to the condition at the sentencing hearing. (People v. Welch (1993) 5 Cal.4th 228, 237.) “Traditional objection and waiver principles encourage development of the record and a proper exercise of discretion in the trial court.” (Welch, at p. 236.) “A timely objection allows the court to modify or delete an allegedly unreasonable condition or to explain why it is necessary in the particular case.” (Welch, at p. 235.) However, a failure to object is excused where an objection would have been futile. (People v. Hill (1998) 17 Cal.4th 800, 820.)
Although the reporter’s transcript does not reflect that an explicit objection was interposed at the sentencing hearing to the restitution condition, defendant’s trial counsel expressly noted the absence of a Harvey waiver, the trial court explicitly addressed the Harvey issue in connection with the restitution condition, and the trial court’s signed minute order in the clerk’s transcript expressly notes that there was a defense objection to the restitution probation condition. Under these circumstances, we find that defendant adequately interposed an objection to the restitution probation condition and that any further objection would have been futile in light of the trial court’s expressed opposition to the basis for the objection.
The next question is whether the trial court violated Harvey when it imposed the restitution probation condition. In Harvey, the California Supreme Court held that it was improper for a trial court to enhance or aggravate a defendant’s sentence based on facts underlying a count that was dismissed under a plea agreement. (Harvey, supra, 25 Cal.3d at p. 758.) However, the court limited this rule to facts which were not “transactionally related” to the count to which the defendant had pleaded. (Harvey, at p. 758.)
Both parties rely on People v. Carbajal (1995) 10 Cal.4th 1114 (Carbajal). In Carbajal, a probation condition was imposed requiring the defendant to pay restitution for damage to a vehicle after he was convicted of leaving the scene of an accident (Veh. Code, § 20001). (Carbajal, at pp. 1119-1120.) The opinion in Carbajal does not reflect that the defendant had entered into a plea agreement under which other counts were dismissed. (Carbajal, at pp. 1119-1120.) Thus, no Harvey issue arose in Carbajal, and the analysis in Carbajal is not relevant to our analysis of the issue before us.
Here, the burglary and theft offenses were transactionally related to the unauthorized entry count to which defendant pleaded no contest. Hence, Harvey did not preclude the trial court from basing the restitution probation condition on the facts underlying the dismissed transactionally related counts.
III. Disposition
The probation order is affirmed.
WE CONCUR: McAdams, J., Duffy, J.