Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. C146000.
Reardon, Acting P.J.
Appellant Jhomari Cory Sutton appeals a judgment of conviction following a plea of no contest. His challenge is to the order for direct victim restitution in the amount of $98,719.15. We conclude appellant has waived any objection to the amount of direct victim restitution and accordingly affirm the judgment.
I. BACKGROUND
A. Procedural History
Pursuant to a negotiated disposition, appellant pleaded no contest to 10 counts of a multicount, multidefendant amended indictment charging him and others with a string of robberies, attempted robberies and murders. Specifically, his plea was to two counts of residential robbery; four counts of second degree robbery; and four counts of attempted second degree robbery. As to each offense appellant also admitted that he was armed with a firearm pursuant to Penal Code section 12022, subdivision (a)(1). The court dismissed the remaining counts on motion of the district attorney.
Unless otherwise noted, all statutory references are to the Penal Code.
The court sentenced appellant to 15 years four months and ordered that he pay actual restitution to the Victim Compensation Board in the amount of $98,719.15, jointly and severally with the codefendants.
B. The Crimes
The probation report provides the following summary of offenses:
1. Counts 20 and 21: “On January 20, 2003, at approximately 2020 hours, two victims were standing in an open garage when the defendant and two co-participants approached them. They were all carrying guns and took the victim’s [sic] wallets.”
2. Counts 25-27: “On January 6, 2003, at approximately 2119 hours, three victims were leaving the BART Station when they observed a man being chased by the defendant and two co-participants. Upon seeing the three victims, the suspects stopped running. One of the men pointed a revolver at the victims and demanded their purses, wallets and camcorders while the defendant revealed his gun that was concealed under his jacket. The victims asked if they could keep some of the items, such as their identification when the defendant responded by punching one of the victims in the face. The third man took one of the victim’s [sic] purses off of her shoulder before they were all told to turn around and run from the area.”
3. Count 28: “On January 6, 2003, at approximately 2125 hours, the victim was walking when the defendant and two co-participants approached him. The defendant and one of the co-participants had a gun, which they used to hit the defendant in the head before taking his wallet.”
4. Counts 31-34: “On November 27, 2002, at approximately 2218 hours, four male adults were celebrating their upcoming four-day break as they drank beers in the parking lot adjacent to their residence. The defendant and four co-participants approached and surrounded them. One of the men brandished a shotgun and said, ‘Give me everything, or I’ll kill you’. When the victims resisted, one was punched, one was grabbed from behind and shot, one was shot in the stomach while attempting to run away and the fourth was shot in the head while attempting to give them his wallet. (ages 25, 30, 31 and 42)”
II. DISCUSSION
Appellant argues in his opening brief that the trial court erred to his prejudice in requiring him to pay direct victim restitution based on counts that were dismissed. In his reply brief, appellant contends he was subjected to substantial misadvisement about the consequences of his plea and thus should be allowed to withdraw the plea or alternatively, we should reduce restitution to $200.
A. Procedural Background
At the commencement of the January 2007 plea proceeding, the parties recited on the record their understanding of the negotiated disposition. The district attorney stated the terms of the agreement, namely the counts appellant would plead no contest to; the allegations he would admit; the sentence he would receive on those counts and allegations; the requirement that appellant serve 85 percent of that sentence before being eligible for parole; and the People’s commitment to dismiss the remaining counts and clauses. Defense counsel concurred that those were the terms of the negotiated disposition and approved them, and appellant concurred in the terms as well. Thereafter the trial judge detailed to appellant the consequences of his plea, indicating that based on his understanding of the case and review of the plea disposition, he would set the restitution fine at the statutory minimum of $200. Further, the court indicated it did not think there would be any surprises in the probation report and was satisfied that the sentence it outlined would be the sentence. Additionally, the court stated that the plea was conditional because the court must remain satisfied after reviewing the probation report that the disposition was appropriate; if after review the court was not satisfied that the sentence was in the interest of justice, appellant would be given an opportunity to withdraw his plea. Appellant indicated he understood.
The trial court referenced Government Code section 13967 (repealed by Stats. 2003, ch. 230, § 2) as the statutory basis for the fine. The correct statute is section 1202.4, subdivision (b).
Thereafter the probation officer submitted her report, recommending that in addition to the restitution fine imposed by section 1202.4, subdivision (b), appellant be ordered to pay restitution to the Victim Compensation Board in the amount of $98,719.15. Pursuant to section 1202.4, subdivision (f), absent compelling and extraordinary reasons, the trial court must require the defendant to make direct restitution to the victim in all cases where the victim suffered economic loss as a result of the offender’s conduct.
Unlike the trial court, the probation officer recommended the statutory maximum of $10,000 for the section 1202.4, subdivision (b) fine.
At proceedings on February 22, 2007, the trial court confirmed that it had received documentation from the probation department on victim restitution claims totaling $98,719.15, distinguishing that amount from the restitution fine.
The sentencing hearing took place on March 9, 2007. At that time the court inquired as to whether the parties had received the restitution documentation. Counsel indicated they had. The court also asked if there was any other evidence that counsel wanted to offer with respect to the sentence or restitution orders. Defense counsel submitted the matter. After imposing sentence, the court went over particulars of the restitution order, confirmed to defense counsel that the order would be joint and several, and defense counsel discussed the order with appellant. Counsel then confirmed with the court that actual restitution would be joint and several and the “codefendants on each of these counts will also be required to pay that sort of restitution.”
The $98,719.15 restitution order to the State Victim Compensation Fund related to six victims, of whom two were victims of crimes subject to appellant’s no contest plea. Specifically, the victims appellant offended were Stephen Pitcher, Andrew Young, Gary Lee, Iraida Gonzalez, Flor Gonzalez, Edgar Gonzalez, Filimon Betancourt, Salvador Betancourt, Felipe Priego and Angel Hernandez. The documentation revealed that the $98,719.15 in victim compensation claims were paid to Sylvia Tang, Christopher Fitzgerald, Felipe Priego ($328.66), Angel Hernandez ($3,670.45), and a minor.
B. Legal Framework
Implicit in a negotiated disposition is the understanding that the defendant will not suffer adverse sentencing consequences by virtue of facts underlying and solely pertaining to dismissed counts. However, the trial court may consider facts from dismissed charges that are transactionally related to the offense to which the defendant pleads guilty. (People v. Harvey (1979) 25 Cal.3d 754, 758 (Harvey).) For this exception to apply, there must be identified facts from which it can be inferred that some action on the defendant’s part giving rise to the dismissed count also played a part in the admitted count. (People v. Beagle (2004) 125 Cal.App.4th 415, 421.)
A restitution order is an adverse penal consequence. (See People v. Moser (1996) 50 Cal.App.4th 130, 135-136.)
Appellant first argues that the trial court erroneously ordered him to pay victim restitution in large part based on dismissed counts and, given the absence of a Harvey waiver, the judgment must be vacated with respect to the restitution order and remanded for recomputation. The People counter that appellant has waived his claim of erroneous imposition of restitution by failing to object at sentencing, citing People v. Walker (1991) 54 Cal.3d 1013, 1020-1023, 1026 (Walker).
In Walker, the court imposed a restitution fine but did not advise the defendant of the possibility of such a fine prior to his plea. The defendant did not object at sentencing. Because imposition of such a fine was recommended in the probation report, the Supreme Court deemed the failure to advise of this consequence waived by the defendant’s failure to object at the sentencing hearing. (Walker, supra, 54 Cal.3d at pp. 1022-1023; see also People v. McClellan (1993) 6 Cal.4th 367, 377.) Walker supports a determination in this case that appellant waived his claim of error by failing to interpose a timely objection to the scope of the direct restitution recommendation and order, either at the sentencing hearing or the early February proceeding. We note that appellant’s counsel was well advised of the scope of potential restitution, appellant was on notice through the probation report of the direct restitution recommendation, and the matter was discussed at two hearings. Defense counsel readily could have lodged a Harvey challenge to the order, but did not. The only concern expressed was that the obligation be joint and several. Under these circumstances, appellant has waived any claim of error.
In response appellant urges that he was substantially misadvised about the consequences of his plea and thus we should reduce the direct victim restitution order to $200—the amount of the statutory restitution fine that was properly included in the trial court’s advisements—or allow him to withdraw his plea. In support of this theory he refers us to In re Moser (1993) 6 Cal.4th 342 and People v. Lamb (1999) 76 Cal.App.4th 664. This authority does not help appellant. Neither case involved the procedural bar of waiver.
As the court in Moser explained, there was no issue of waiver “because, unlike Walker, the present case does not involve a trial court’s imposition at the sentencing hearing of a sentence at variance with the advice given at the earlier plea proceeding—a situation in which a defendant reasonably may be required to bring the discrepancy to the court’s attention by a timely objection at the sentencing hearing. Rather, under the present circumstances, where nothing in the record suggests that petitioner had any reason to question the accuracy of the trial court’s advisement, it would be unfair to hold that petitioner should have objected to the trial court’s erroneous description of the applicable period of parole.” (In re Moser, supra, 6 Cal.4th at pp. 352-353, fn. 8.) Likewise, Lamb involved substantial misadvisement about the consequences of the defendant’s plea rather than the imposition of a sentencing factor that varied from the advice given at the time the plea was entered. (People v. Lamb, supra, 76 Cal.App.4th at p. 674.) To reiterate, this case falls squarely within Walker.
III. DISPOSITION
The judgment is affirmed.
We concur: Sepulveda, J., Rivera, J.