Opinion
NOT TO BE PUBLISHED
Lake County Super. Ct. No. CR917399
Dondero, J.
Defendant Raymon Narvaes appeals the trial court orders requiring him to pay restitution to the alleged victims of dismissed counts. He claims the plea agreement did not specify that restitution would be required as to those victims. We affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Except to the limited extent indicated in our discussion, post, the facts of the underlying offenses are not important to the issues raised on appeal. It is sufficient to state that between October and November 2008, defendant committed a series of burglaries and vehicle thefts.
On January 16, 2009, defendant was charged in a third amended complaint with eleven counts of first degree burglary (Pen. Code, § 459; Counts 1–2, 4–7, 10, 13, 18, 22, and 26); six counts of grand theft (§ 487, subd. (a); Counts 3, 8, 12, 15, 20, and 23); four counts of grand theft of a firearm (§ 487, subd. (d); Counts 9, 11, 14, and 21); three counts of vehicle taking (Veh. Code, § 10851, subd. (a); Counts 16, 17, and 19); one count of receiving stolen property (§ 496, subd. (a); Count 24); one count of possessing a firearm as an ex-felon (§ 12021, subd. (c)(1); count 25).
All further statutory references are to the Penal Code except as otherwise indicated.
On January 16, 2009, defendant entered a negotiated plea of guilty to Counts 5, 7, 11, and 17. All other counts were dismissed. However, appellant stipulated that the dismissed counts could be considered at sentencing.
At the sentencing hearing held on February 13, 2009, defendant was sentenced to a total term of eight years eight months. He was ordered to pay restitution in the sum of $1,600 to victim Hawk, (the victim in Count 11, a guilty plea count), $16,447.23 to victim Karylyle, (the victim in Count 7, a guilty plea count), $9,006.24 to Farmers Insurance Company (an additional victim of Count 7), and $5,450 to victim Findlay, (a victim in Count 18, a count incorporated based on the Harvey waiver). Each payment includes 10 percent interest per anum. Restitution for nine other victims was reserved. Defendant did not object to the restitution orders at the hearing. This appeal followed.
DISCUSSION
I. Waiver
On appeal, defendant claims the trial court erred by ordering victim restitution for charges that were dismissed. The People assert defendant waived his claim by failing to object in the trial court.
Sentencing errors that are not jurisdictional, but instead concern sentences “which, though otherwise permitted by law, were imposed in a procedurally or factually flawed manner,” are waived on appeal if not first raised in the trial court. (People v. Scott (1994) 9 Cal.4th 331, 354.) For example, the waiver doctrine precludes appellate review in cases where a defendant fails to object to the reasonableness of a probation condition. (People v. Welch (1993) 5 Cal.4th 228, 236–237.) As defendant did not object to the restitution order in the trial court, it appears his claim is waived.
Defendant relies on People v. Walker (1991) 54 Cal.3d 1013, 1024–1026, in arguing that “Where the defendant is not informed at sentencing that there is to be a departure from the plea agreement, and informed of the option of withdrawing the plea, the violation of the plea agreement is cognizable on appeal, even though no objection was stated.” As will be discussed below, we find that there was no departure from the plea agreement. Thus defendant’s claim fails due to waiver and, in any event, fails on the merits.
II. The Restitution Orders are Valid
Section 1192.3, subdivision (b), requires a so-called Harvey waiver before restitution can be ordered on some counts dismissed pursuant to a plea bargain. That subdivision provides: “If restitution is imposed which is attributable to a count dismissed pursuant to a plea bargain, as described in this section, the court shall obtain a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754 [Harvey] from the defendant as to the dismissed count.” (Italics added.)
In Harvey, supra, 25 Cal.3d 754, it was held that while “[i]mplicit in... a plea bargain... is the understanding... that defendant will suffer no adverse sentencing consequences by reason of the facts underlying, and solely pertaining to, the dismissed count,” (id. at p. 758) such adverse sentencing consequences may properly be imposed if there was agreement to the contrary. This “contrary agreement” proviso is what has since been called a “Harvey waiver.” (People v. Goulart (1990) 224 Cal.App.3d 71, 80 (Goulart).) Goulart held that “A defendant who signs the typical waiver form agrees to allow the sentencing judge to consider his entire criminal history, including any unfiled or dismissed charges.” (Ibid.) In the present case, the record does not contain a written plea form. It appears a form was not prepared because defendant is “functionally illiterate.”
Regardless, the trial court fully informed defendant of the rights that he was giving up and of the consequences of pleading guilty. At the hearing on his plea, the court explained the charges he was pleading to and ensured that he understood the nature of these charges. After advising defendant that the maximum prison term he would be sentenced to could be as long as eight years and eight months, the trial court stated: “As part of the judgment to be pronounced in this case, you’ll be ordered to pay restitution for any financial loss suffered by any victim of your crime. Are you aware of that?” (Italics added.) Defendant answered in the affirmative.
The court then defined the Harvey waiver as follows: “Now when I said that the other counts would be dismissed, other than the ones you plead guilty to, may be dismissed with what’s called a Harvey waiver. And that means that even though certain charges are now pending against you in this case, it [sic] may be dismissed on motion of the district attorney upon your entry of your guilty pleas to the other charges. Nevertheless, at the time of the sentencing, the sentencing judge making every sentencing decision which the judge must make, will take into consideration any information provided by the probation officer’s sentencing report which tends to show your participation in the events giving rise to the dismissed charges. In other words, the judge will take such information into account in deciding whether to grant or deny probation, whether to impose a jail term and, if so, for how long, and whether to impose a prison term and, if so, for how long. Do you understand that?” Again, defendant answered in the affirmative. The court also asked defendant’s counsel if he’d had enough time to discuss the case “and all its ramifications” with his client. The attorney answered “Yes.”
Defendant claims the trial court’s explanation of the significance of the Harvey waiver was erroneous because it did not make reference to restitution. He also asserts that the court’s earlier statement that he could be “ordered to pay restitution for any financial loss suffered by any victim of your crime” was insufficient to alert him, or any reasonable person, to the potential for restitution orders based on the dismissed counts. He claims the reference to “your crime” reasonably refers to the victims in Counts 5, 7, 11, and 17 only. We are not persuaded.
Simply put, we fail to see how a reasonable person could interpret “any victim of your crime” to be limited solely to the counts that were admitted under the plea agreement. While the statement would perhaps have been clearer if it had specifically included mention of the dismissed counts, in the context in which it was made the statement fairly apprised defendant of the consequences of the plea deal. Had the statement appeared in any part of a written plea agreement we would have no difficulty finding that it applied to the dismissed counts. Nor are we troubled by the fact that the trial court’s definition of the Harvey waiver did not include mention of restitution. Defendant had already been advised that one of the consequences of pleading guilty was that he would have to pay restitution to “any victim.” Thus, defendant was fully apprised of the consequence of his plea, regardless of whether the court specifically designated that consequence as being the result of a “Harvey waiver.”
Additionally, defendant’s trial attorney verified to the court that he had discussed the plea agreement with defendant “at length,” including what it meant to give up his rights and the consequences of doing so. Defendant also failed to object to the probation report that recommended the victim restitution order, he failed to object when the court imposed the recommended victim restitution order, and he did not move to withdraw from his favorable plea bargain. This conduct suggests that both he and his counsel understood that restitution would be imposed for the charges dismissed with a Harvey waiver.
Finally, the trial court unquestionably had the authority to make the restitution order. As our Supreme Court has explained: “Under certain circumstances, restitution has been found proper where the loss was caused by related conduct not resulting in a conviction [citation], by conduct underlying dismissed and uncharged counts [citation], and by conduct resulting in an acquittal....” (People v. Carbajal (1995) 10 Cal.4th 1114, 1121.) Indeed, the appellate court in Goulart, supra, 224 Cal.App.3d 71, 81, held that a defendant may even be required to pay restitution for crimes that could not be prosecuted because the statute of limitations had lapsed.
In People v. Beck (1993) 17 Cal.App.4th 209 (Beck), defendant was charged with multiple counts of grand theft and tax evasion. As part of a plea bargain, he entered a no contest plea to all but one count each of grand theft and tax evasion. (Id. at p. 212.) The latter two counts were dismissed, with the stipulation the court could consider them for sentencing. (Id. at p. 214.) The defendant was both sentenced to a prison term on the counts to which he pled no contest and ordered to pay restitution to the victims of the two dismissed counts. (Id. at p. 215.)
In the present case, as in Beck, “Because restitution on the dismissed counts was part of the plea bargain and was a condition of [defendant’s] plea, and there being no dispute that [defendant’s] plea was freely and voluntarily made, had factual basis, and was approved by the court, the court did not err in ordering restitution” to the victims on the dismissed counts. (Beck, supra, 17 Cal.App.4th 209, 216.)
DISPOSITION
The orders are affirmed.
We concur: Marchiano, P. J., Margulies, J.