Opinion
H036519
10-17-2011
THE PEOPLE, Plaintiff and Respondent, v. DONALD ANDREW WEBB, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Cruz County Super. Ct. No. F19214)
Pursuant to a plea agreement, defendant Donald Andrew Webb pleaded no contest to two theft related charges in exchange for dismissal of a burglary charge and imposition of an agreed-upon sentence. In pronouncing sentence, the trial court directed that Webb pay restitution to the victim of the dismissed burglary charge.
On appeal, Webb contends the order of restitution was unlawful because he did not enter a Harvey waiver as required by Penal Code section 1192.3, subdivision (b).
People v. Harvey (1979) 25 Cal.3d 754 (Harvey).
Further unspecified statutory references are to the Penal Code.
Because no objection was made below, we find that Webb has forfeited the argument on appeal and we shall affirm the judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
As a probation report was waived, the facts underlying the charged offenses are not part of the record on appeal.
Webb was charged by felony complaint with unlawfully entering a commercial building, the "Teddy Bear Wash and Dry," with the intent to commit larceny (§ 459, count 1), with unlawfully taking more than $400 in money and coins from a pay machine located at the "Soquel/Front Street Parking Garage," property belonging to the City of Santa Cruz (§ 487, count 2), and receiving certain stolen property (§ 496, count 3).
On November 19, 2010, Webb pleaded no contest to counts 2 and 3, pursuant to a plea bargain. Webb initialed and signed a seven page document entitled "Plea Form, with Explanations and Waiver of Rights--Felony," reflecting the rights of which he was advised by counsel and the waivers he was making by entering his plea. In the section labeled "Dismissal of Other Counts," Webb initialed the box next to the statement "I understand that as part of the plea agreement bargain, the following counts will be dismissed after sentencing: Count One (PC 459)." Just below that statement, the form contains this preprinted statement: "I understand and agree that the sentencing judge may consider facts underlying dismissed counts to determine restitution and to sentence me on the counts to which I am entering a plea." The box situated next to this statement is empty; it is not initialed or otherwise marked in any way.
The words "Count One (PC 459)" were filled in by hand, whereas the rest of the statement was preprinted.
The trial court, after confirming that Webb had gone over the waiver of rights form carefully and with his counsel's assistance before initialing and signing it, said "Restitution will be as previously stated off the record and then Miss Dunlap [i.e., the district attorney] will state it for the record at the time sentence is pronounced."
On the People's motion, count 1 was dismissed in view of the plea agreement. Webb waived formal arraignment and time for sentence, and the parties waived the presentence probation report. In accordance with the terms of the plea bargain, Webb was sentenced to consecutive eight month terms on counts 2 and 3, for a total term of one year and four months, to be served consecutive to Webb's sentence in a separate case arising in Yolo County.
After imposing various fees and fines, the trial court awarded victim restitution, as follows:
"THE COURT: There is restitution plus ten percent interest joint and several with codefendant Lloyd Sparks. And that is once again--one amount is to the City of Santa Cruz. . . .
"MS. DUNLAP: $3,500.
"THE COURT: The other amount is to the Teddy Bear Laundromat. [Sic.]"MS. DUNLAP: $6,600. And the address was again 819 or was it
"MS. DUNLAP: Bay Avenue.
"THE COURT: 816 Bay Avenue, Capitola, California. Those will be orders on restitution."
There was no objection by Webb's counsel.
Webb obtained a certificate of probable cause and timely appealed.
II. DISCUSSION
Webb argues that, because he did not initial the Harvey waiver language on the waiver of rights form, the trial court was precluded from awarding restitution to the victim of count 1, the dismissed commercial burglary charge. In his opening brief, Webb anticipated the possibility that this argument would be considered forfeited and suggested that we should consider the issue regardless for one of two reasons: (1) the restitution order was unauthorized by law and unconstitutional; or (2) he had no meaningful opportunity to object to the restitution order. We disagree.
In Harvey, the court held that, in sentencing a defendant who had pleaded guilty as part of a plea bargain, the trial court had improperly considered a dismissed count as a factor in aggravation supporting the selection of an upper term. (Harvey, supra, 25 Cal.3d at pp. 757-758.) Harvey noted that "it would be improper and unfair to permit the sentencing court to consider any of the facts underlying the dismissed count . . . for purposes of aggravating or enhancing defendant's sentence. . . . Implicit in . . . a plea bargain, we think, 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, the dismissed count." (Id. at p. 758.) Thus, a "Harvey waiver permits a trial court to consider facts underlying dismissed counts in determining the appropriate disposition for the offense of which the defendant was convicted." (People v. Moser (1996) 50 Cal.App.4th 130, 132-133.) By statute, the principle extends to restitution orders, as well.
Section 1192.3, subdivision (b) 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 [supra] 25 Cal.3d 754 from the defendant as to the dismissed count." (Italics added.)
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Although it is uncontested that Webb did not initial the Harvey waiver on the waiver of rights form, he nonetheless failed to object at the time the restitution order was entered. Consequently, Webb has forfeited this issue. (People v. Scott (1994) 9 Cal.4th 331, 356 (Scott).)
In Scott, the California Supreme Court determined that the "waiver" doctrine applies to a sentencing judge's reasoning in imposing a discretionary sentence. "We conclude that the waiver doctrine should apply to claims involving the trial court's failure to properly make or articulate its discretionary sentencing choices. Included in this category are cases in which the stated reasons allegedly do not apply to the particular case . . . ." (Scott, supra, 9 Cal.4th at p. 353.)
The forfeiture rule is, however, subject to certain exceptions, such as instances of " 'unauthorized sentences' or sentences entered in 'excess of jurisdiction.' " (People v. Welch (1993) 5 Cal.4th 228, 235.) The rationale for such exceptions is that "the errors presented 'pure questions of law' [citation], and were ' "clear and correctable" independent of any factual issues presented by the record at sentencing.' [Citation.] In other words, obvious legal errors at sentencing that are correctable without referring to factual findings in the record or remanding for further findings are not waivable." (People v. Smith (2001) 24 Cal.4th 849, 852.)
Though it is true that Webb did not initial the Harvey waiver language contained on the waiver of rights form he executed, there was an off-the-record discussion regarding restitution just prior to the court pronouncing sentence. It is possible that, during that off-the-record discussion, Webb expressly entered a Harvey waiver and agreed to pay restitution to the Teddy Bear Wash and Dry. If so, the restitution order would be lawful and there would have been no reason for defense counsel to object when the trial court pronounced sentence. If, on the other hand, there was no off-the-record Harvey waiver and agreement to pay restitution to the Teddy Bear Wash and Dry, it was incumbent on Webb's counsel to object, thus giving the trial court the opportunity to address the issue on the record.
We also cannot say for certain that Webb did not have a meaningful opportunity to object to the trial court's order. In People v. Gonzalez (2003) 31 Cal.4th 745, 752, the California Supreme Court expanded on the Scott decision's concept of "meaningful opportunity to object," stating that "[t]he parties are given an adequate opportunity to seek such clarifications or changes if, at any time during the sentencing hearing, the trial court describes the sentence it intends to impose and the reasons for the sentence, and the court thereafter considers the objections of the parties before the actual sentencing." (Ibid.) In this case, it is true that the trial court adjourned the hearing almost immediately after imposing restitution, but again we have no idea what the court and the parties discussed off-the-record just prior to the court pronouncing sentence. The trial court said the discussion was about restitution, meaning defense counsel could have been given advance notice the court intended to award restitution to the victim of the dismissed count. Because the discussion was not transcribed, however, we are not privy to its content and cannot say Webb had no meaningful opportunity to object to the restitution order.
Since the resolution of Webb's claims relies on facts outside the record on appeal, we are unable to address his claim of error.
III. DISPOSITION
The judgment is affirmed.
Premo, J.
WE CONCUR:
Rushing, P.J.
Elia, J.