Opinion
A151012
05-03-2018
THE PEOPLE, Plaintiff and Respondent, v. JOHNNY FOBBS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. 16SF003421-A)
This timely appeal is from a judgment and sentence to state prison entered upon the defendant's pleas of no contest to seven felonies (six first degree burglaries, one attempted first degree burglary), his admission of an enhancement allegation applicable to all the felonies, and his admission that he had a prior conviction that qualified as a so-called strike according to the Three Strikes law. Twenty-six other charges of first degree burglary were dismissed. Defendant was ultimately sentenced to state prison for an aggregate term of 34 years and eight months. The only issue on appeal is the validity of the restitution order, specifically, whether restitution was properly ordered for the victims of the dismissed counts.
The essential terms of the negotiated disposition between defendant Johnny Fobbs and the prosecution were spelled out in a "Declaration Concerning a Plea or Change of Plea." Over his signature, defendant stated: "I have not been induced to plead guilty or nolo contendere by any promise or representation of a lesser sentence, probation, reward, immunity or anything else except: [and this written by hand] 34 years 8 months prison at 85%, actual restitution."
On December 6, 2016, after defense counsel detailed the general terms of the bargain, the court questioned defendant as to his understanding of the contents of the declaration, whether it had been explained to him by his counsel, and the usual inquiries attending entry of a guilty plea. The court then stated: "By your plea, you're going to be sentenced to 34 years, eight months in prison. You'll have to serve 85 percent, plus making actual restitution." Defendant answered "Yes." The court continued: You understand all that?" Defendant again replied "Yes." The court: "You really do?" Defendant replied "Yeah."
After defendant made his no contest pleas, the issue of restitution arose as follows:
"MR. JANGLA [the prosecutor]: . . . We just need to refer it for a probation report and a restitution report. [¶] Just for probation's purposes, the codefendant . . . was already referred for a restitution report so they may have already done a lot of the leg work, but that's all we need to set a date for.
"THE COURT: Has that already been received?
"MR. JANGLA: That is due on January 4th.
"MR. BERNSTEIN [defense counsel]: That's only restitution.
"THE COURT: Okay."
After a date was agreed upon, the following occurred:
"THE COURT: Probation and restitution hearing—restitution report?
"MR. JANGLA: Yes. Probation report and sentencing.
"THE COURT: February?
"MR. JANGLA: 10th.
"THE COURT: 10th at 8:45?
"THE CLERK: 9 o'clock.
"THE COURT: 9 o'clock. So this is referred to the probation department. The balance of the information is?
"MR. JANGLA: Is going to be dismissed pursuant to plea and a Harvey waiver for restitution.
"MR. BERNSTEIN: And there is one.
"THE COURT: Okay. Have you explained to your client what that means?
"MR. BERNSTEIN: Yes.
"THE COURT: You okay with that, Mr. Jangla?
"MR. JANGLA: Yes
"THF COURT: All right. That's the court's order."
In his report, the probation officer described all of the dismissed counts as "dismissed pursuant to Harvey waiver." He recommended restitution for 27 named victims, the amounts ranging from $978 to $145,285.61, totaling close to $650,000.
At the time of sentencing, the prosecutor brought up, "Was there restitution [that] had been stipulated to?" Defense counsel Bernstein responded "Submitted on the report." The court then told defendant, "You're also ordered to pay restitution as indicated on page 2 of the probation report. . . . And in the report there is a specific amount for several of the numerous victims."
Defendant's appeal is founded upon the language of Penal Code section 1192.3, subdivision (b), which provides in pertinent part: "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 (1979) 25 Cal.3d 754 from the defendant as to the dismissed count." His contention is simple—no such waiver was obtained from him. As he puts it: "Counsel for both parties made mention of one [a Harvey waiver] but Fobbs never did. . . . Fobbs never consented to any supposed Harvey waiver. . . . [¶] Because the Harvey waiver issue was only mentioned after Fobbs had pled guilty, and never by Fobbs himself, the pleas and admissions were not made knowingly and intelligently as the trial court never advised Fobbs of the consequences of a Harvey waiver."
Defendant's criteria are too severe. There is no authority that it must be the trial judge who does all of the advising, or that a particular form of words must be used. The established test for the validity of waivers attending guilty pleas is whether the plea is determined to be voluntary and intelligent under the totality of the circumstances. (E.g., People v. Daniels (2017) 3 Cal.5th 961, 992; People v. Sivongxxay (2017) 3 Cal.5th 151, 167.) According to this standard, we have no difficulty concluding defendant impliedly made a waiver that satisfied the statutory text.
It is reasonable to assume that defense counsel explained the contents of the change-of-plea declaration to defendant prior to defendant actually changing his pleas. This explanation would include the term "actual restitution," which needs little or no translation. The court confirmed that counsel had explained all the rights defendant was waiving and the consequences of his plea, including restitution, and that defendant understood. It is true, as defendant points out, that the issue of restitution otherwise figured only after defendant changed his pleas. But when defendant heard the prosecutor state that a "restitution report" would be prepared and there was "a Harvey waiver for restitution" that was a part of the exchange for "the balance of the information" being dismissed, he made no objection. Nor did he protest when his counsel confirmed "there is one," and that he had "explained . . . what that means" to defendant. Defendant was silent at the time of sentencing, not questioning when he was ordered to "pay restitution" to "the numerous victims" "as indicated on page 2 of the probation report."
Defendant is a career criminal, and it is not unreasonable to conclude he had previously come to understand the concept of restitution to the victims of his crimes. --------
The totality of the circumstances demonstrates rather clearly that the issue and scope of restitution were not more fully explicated on the record because they had already been discussed and explained to defendant, and to his satisfaction. There is nothing in the record to indicate that defendant, his counsel, the prosecutor, or the court, had the least uncertainty on the topic.
The judgment, which incorporates the restitution order, is affirmed.
/s/_________
Kline, P.J. We concur: /s/_________
Richman, J. /s/_________
Miller, J.