Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 07F4651
CANTIL-SAKAUYE, J.
Defendant Elvis Perez entered a negotiated plea of no contest to an assault charge after he hit the victim in the head with a Maglite flashlight (Pen. Code, § 245, subd. (a)(1)). In exchange, a misdemeanor vandalism charge for his alleged damaging of the window of the victim’s van was dismissed. Defendant was sentenced to three years in state prison.
At a postjudgment hearing, the court ordered defendant to pay victim restitution of $167.85, of which $80 represented damage to the window. The court made this order notwithstanding defendant’s objection that he had neither been convicted of vandalizing the victim’s van window, nor had he entered a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754, permitting the court to consider dismissed charges.
Defendant’s sole contention on appeal is that the trial court’s victim restitution order was improper because it purported to reimburse the victim for damages related to a dismissed count, and because no evidence in the record supports the trial court’s determination that the value of the broken van window was $80. The People concede both prongs of defendant’s argument and we agree the court erred.
“Trial courts have broad discretion to order victim restitution and such an order will not be reversed if there is a ‘factual and rational basis for the amount of restitution.’ [Citation.]” Such exercise of discretion is, however, not unlimited and will be reversed if it is arbitrary or capricious. (People v. Rubics (2006) 136 Cal.App.4th 452, 462.) “It is the unequivocal intention of the People of the State of California that all persons who suffer losses as a result of criminal activity shall have the right to restitution from the persons convicted of the crimes for losses they suffer. [¶] Restitution shall be ordered from the convicted persons in every case, regardless of the sentence or disposition imposed, in which a crime victim suffers a loss, unless compelling and extraordinary reasons exist to the contrary.” (Cal. Const., art. I, § 28, subd. (b); accord, People v. Rubics, supra, at pp. 456-457.)
Penal Code section 1202.4 governs a trial court’s authority to order a criminal defendant to pay restitution directly to a crime victim. Section 1202.4, subdivision (a)(1) states: “[i]t is the intent of the Legislature that a victim of crime who incurs any economic loss as a result of the commission of a crime shall receive restitution directly from any defendant convicted of that crime.” (Italics added.) Here, defendant was not convicted of the crime of vandalizing the victim’s van; he cannot be required to pay restitution for a crime for which he was not convicted.
Defendant is correct that the court was required to obtain a Harvey waiver before ordering victim restitution over and above the criminality admitted by defendant in his plea. As the Harvey court concluded, “[i]mplicit in such a plea bargain... is the understanding (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,... dismissed count[s].” (People v. Harvey, supra, 25 Cal.3d at p. 758.) There was no Harvey waiver here.
Both the defendant and the People also correctly note a second ground for challenging the court’s order of restitution for the van’s broken window. Nothing in the record supports the trial court’s conclusion that the value of the window is $80: neither victim testimony nor written estimates were presented to establish this value. Because $80 of the victim restitution order attributable to damage to the van’s window is not supported by substantial evidence, that portion of the court’s order was also an abuse of discretion. (See People v. Baker (2005) 126 Cal.App.4th 463, 469.)
DISPOSITION
The judgment is affirmed. The court shall modify its post-judgment order regarding victim restitution to reflect that defendant is ordered to pay the victim $87.85, and shall forward a copy of the modified restitution order to the Department of Corrections and Rehabilitation.
We concur: SIMS, Acting P. J., RAYE, J.