Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Super. Ct. No. MA042545, Steven D. Ogden, Judge.
Rachel Lederman, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan Sullivan Pithey, Scott A. Taryle and Theresa A. Patterson, Deputy Attorneys General, for Plaintiff and Respondent.
TURNER, P. J.
Defendant, Jason Devon Mazzarella, appeals after he pled no contest to a single count of first degree burglary. (Pen. Code, § 459.) Defendant challenges the $1,099 restitution order. We asked the parties to brief the issue of whether the $10 section 1202.5, subdivision (a) fine should be modified. We modify the section 1202.5, subdivision (a) fine but otherwise affirm the judgment.
Unless otherwise indicated, all future statutory references are to the Penal Code.
First, defendant argues the order he pay $1,099 to Beverly Ann Garcia, the victim in count 1, must be reversed because no Harvey waiver was secured. Defendant was charged as follows in four counts of a felony complaint: count 1—first degree burglary and the victim was Ms. Garcia; count 2—unlawful driving of an automobile in violation of Vehicle Code section 10851, subdivision (a) and the victim was Randall Wesley; count 3—first degree burglary and the victim was James McClendon; and count 4—first degree burglary and the victim was Jeff Stevens. On July 7, 2008, defendant pled no contest to the first degree burglary charge in count 3 which identified Mr. McClendon as the victim. On July 7, 2008, the parties agreed that the restitution issue could be resolved later on July 30, 2008. On July 30, 2008, the trial court imposed a $1,099 restitution order in favor of Ms. Garcia. As defendant only pled no contest to count 3, which listed Mr. McClendon as the victim, defense counsel objected to the order to pay $1,099 in restitution to Ms. Garcia on the sole ground that no Harvey waiver had been taken. On July 31, 2008, the trial court issued a probable cause certificate. The notice of appeal, which was reviewed by the trial court prior to issuing the probable cause certificate, indicates defendant is challenging the validity of his plea.
Defendant argues that the $1,099 restitution order in favor of Ms. Garcia must be reversed because: “At the plea hearing below, [defendant] was never advised of the consequences of a Harvey waiver, and he never made such a waiver on the record. [Defendant] was never advised that, absent a Harvey waiver, it was his right to be ordered to pay restitution only as to the charge to which he was pleading. [Defendant] never signed a plea form to a Harvey waiver. Absent such advisement and waiver, it cannot be concluded that [defendant] freely, voluntarily and intelligently submitted to restitution on the dismissed charges.”
In People v. Harvey (1979) 25 Cal.3d 754, 758, Associate Justice Frank K. Richardson explained that a trial court, in selecting one of the three possible terms when imposing a determinate sentence, may not rely on the facts underlying a dismissed count as an aggravating factor. Justice Richardson set forth the applicable rule as follows: “[I]t would be improper and unfair to permit the sentencing court to consider any of the facts underlying the dismissed count three for purposes of aggravating or enhancing defendant’s sentence. Count three was dismissed in consideration of defendant’s agreement to plead guilty to counts one and two. Implicit in such 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. The People have cited no contrary authorities.” (People v,. Harvey, supra, 25 Cal.3d at pp. 758.) As can be noted, Justice Richardson explained the rule enunciated in Harvey did not apply if there was an “agreement” the facts underlying a dismissed count could be considered in selecting an aggravated sentence.
Appellate courts refer to the “agreement” described by Associate Justice Richardson in Harvey in sundry fashion including: the “‘so-called “Harvey waiver”’” (In re T.C. (2009) 173 Cal.App.4th 837, 842); the “agreement is known as a ‘Harvey waiver’” (People v. Munoz (2007) 155 Cal.App.4th 160, 167; a “Harvey waiver... is a ‘contrary agreement’ permitting the sentencing judge to consider the facts relating to dismissed charges” (People v. Barasa (2002) 103 Cal.App.4th 287, 291); the “‘“contrary agreement” proviso is what has since been called a “Harvey waiver’”” (People v. Draut (1999) 73 Cal.App.4th 577, 580, fn. 2, quoting People v. Beck (1993) 17 Cal.App.4th 209, 215); “The phrase ‘Harvey waiver’ means the defendant has agreed that the court may consider facts behind dismissed or uncharged counts” (In re Josh W. (1997) 55 Cal.App.4th 1, 5, fn. 2); “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, see People v. Floyd. P. (1988) 198 Cal.App.3d 608, 611, fn. 1); “the court could consider the dismissed count for purposes of restitution” (People v. Campbell (1994) 21 Cal.App.4th 825, 830); “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” (People v. Goulart (1990) 224 Cal.App.3d 71, 80); “A Harvey waiver may permit consideration of dismissed charges to determine restitution” (People v. Lafantasie (1986) 178 Cal.App.3d 758, 764); and “The defendant’s agreement is what has become known popularly, if somewhat incorrectly, as the ‘Harvey waiver.’” (People v. Myers (1984) 157 Cal.App.3d 1162, 1167.)
Defendant argues that section 1192.3 required a Harvey waiver be secured from him before a restitution order could be entered in Ms. Garcia’s favor. In 1982, after the Harvey decision was filed, the voters added article I, section 28, subdivision (b) to the California Constitution which guaranteed crime victims the right to restitution. (People v. Birkett (1999) 21 Cal.4th 226, 243-244; People v. Broussard (1993) 5 Cal.4th 1067, 1072-1073.) In 1983, in response to this constitutional amendment, the Legislature adopted several statutes which provided limited restitution rights to crime victims. Our Supreme Court described the immediate legislative response to the adoption of the new constitutional restitution right: “The new legislation, enacted in 1983, included: Penal Code section 1203.04, requiring trial courts to order restitution from defendants convicted of crimes and placed on probation; Welfare and Institutions Code section 729.6, imposing a similar requirement in all juvenile delinquency matters; Penal Code section 1202.4, requiring all persons convicted of a felony to pay a ‘restitution fine’ of up to $10,000, payable into the restitution fund for victims of violent crime; and several laws designed to aid victims filing civil actions against persons convicted of crimes (§ 26820.4, subd. (b); former § 72055, subd. (b) [now subd. (c) ]; Code Civ. Proc., §§ 37, 340.3 & 1021.4; Pen. Code, § 1191.2; former Welf. & Inst. Code, § 656.2 [see now [], § 679.02]). The Legislature also amended section 13967 to provide that in every criminal case a person convicted of a crime must pay ‘restitution in the form of a penalty assessment’ to the state and the county in which the offense was committed. Curiously, the Legislature did not enact legislation either requiring or authorizing trial courts to order defendants who were convicted of crimes but were not given probation to make restitution to any of the victims of their crimes.” (Id. at p. 1073; see People v. Giordano (2007) 42 Cal.4th 644, 653.)
Beginning in 1985, a panel in Division One of the Fourth Appellate District used the term “Harvey waiver” to refer to the process where an accused allows the sentencing court to require restitution to a victim specified in a dismissed count. (People v. Baumann (1985) 176 Cal.App.3d 67, 76; see People v. Lafantasie, supra, 178 Cal.App.3d at pp. 763-764.) In Lafantasie, the Court of Appeal held, in the probation context, that a defendant convicted of unlawfully leaving an accident scene in violation of Vehicle Code section 20001 could not be required to pay the medical costs of a woman injured in an automobile collision. (Id. at pp. 761-764.) The Lafantasie opinion was based in large part on the California Supreme Court decision in People v. Richards (1976) 17 Cal.3d 614, 620-622 which sharply restricted a crime victim’s restitution rights. (People v. Lafantasie, supra, 178 Cal.App.3d at pp. 763-764.) In 1986, the Legislature extended the right to restitution to cases where the defendant is sentenced to state prison effective January 1, 1987. (People v. Giordano, supra, 42 Cal.4th at p. 653; People v. Broussard, supra, 5 Cal.4th at p. 1074.) In 1984, statutory restitution rights in felony cases were based on sections 1202.4, subdivision (a) and 1203.1. (Stats. 1984, ch. 1340, § 2, pp. 4722-4723 [§1202.4, subd. (a)]; Stats. 1987, ch. 713, § 1, pp. 2249-2253; Stats. 1987, ch. 897, § 2, pp. 2866-2870 [§1203.1].)
It is in this context that in 1988 the Legislature adopted section 1192.3, subdivision (b) which uses the term “waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754” in reference to restitution to a victim named in a dismissed count. Section 1192.3 states in its entirety: “(a) A plea of guilty or nolo contendere to an accusatory pleading charging a public offense, other than a felony specified in Section 1192.5 or 1192.7, which public offense did not result in damage for which restitution may be ordered, made on the condition that charges be dismissed for one or more public offenses arising from the same or related course of conduct by the defendant which did result in damage for which restitution may be ordered, may specify the payment of restitution by the defendant as a condition of the plea or any probation granted pursuant thereto, so long as the plea is freely and voluntarily made, there is factual basis for the plea, and the plea and all conditions are approved by the court. [¶] (b) 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 from the defendant as to the dismissed count.”
The genesis of section 1192.3 is a November 2, 1987 letter from now retired Commissioner Michael L. Kanninen of the former Municipal Court of the Fremont-Newark-Union City Judicial District in Alameda County to Assemblymember Delaine Eastin. (Rep. to Assem. Committee on Public Safety on Assem. Bill No. 3907 (1987-1988 Reg. Sess.) May 2, 1988, p. 1; Assemblymember Delaine Eastin, letter to Senate Committee on Judiciary, May 24, 1988.) In that letter, Commissioner Kanninen explained the inequity of the situations, such as was present in People v. Lafantasie, supra, 178 Cal.App.3d at pages 763-764, where an accused convicted of leaving an accident scene could never be subject to a duty to pay restitution to a person injured in the collision. Introduced on February 18, 1988, by Assemblymember Eastin, Assembly Bill No. 3907 consisted entirely of what is now section 1192.3, subdivision (a). (Assem. Bill No. 3907 (1987-1988 Reg. Sess.) § 1.) After Assembly Bill No. 3907 passed the lower house, Assemblymember Eastin forwarded a copy of the Lafantasie opinion to the entire Senate Committee on Judiciary. (Assemblymember Delaine Eastin, letter to Senate Committee on Judiciary, op. cit.) On May 26, 1988, in the Senate, Assembly Bill No. 3907 was amended to add what is now section 1192.3, subdivision (b) with its reference to a Harvey waiver. (Sen. Amend. to Assem. Bill No. 3907 (1987-1988 reg. Sess.) May 26, 1988.) On July 7, 1988, Governor George Deukmejian signed Assembly Bill No. 3907.
Section 1192.3, subdivision (b) uses the term “Harvey waiver.” But as the Attorney General notes, section 1192.3, with its Harvey waiver requirement, has nothing to do with this case. Section 1192.3, subdivision (a) expressly states that it does not apply when the accused is charged with a serious felony. As noted, section 1192.3, subdivision (a) begins, “A plea of guilty or nolo contendere to an accusatory pleading charging a public offense, other than a felony specified in Section 1192.5 or 1192.7....” Section 1192.7, subdivision (c)(18) includes “any first degree burglary” in the definition of a serious felony. Defendant pled nolo contendere to the first degree burglary charge in count 3. Thus, the Harvey waiver language in section 1192.3, subdivision (b) does not apply here.
But the Harvey decision itself still applies. Harvey requires an “agreement” before any adverse consequences may result by reason of the facts underlying and solely pertaining to a dismissed count. (People v. Harvey, supra, 25 Cal.3d at p. 758; People v. Munoz, supra, 155 Cal.App.4th at pp. 166-167.) Thus, the question here is whether there was an agreement that restitution could be imposed as to a dismissed count. There was. Prior to the entry of the plea, the following occurred: “THE COURT:... There’s an amended felony complaint. I don’t have any idea what it does or does not change. I haven’t looked at it. [¶]... Okay, we’ve got a first degree burg, a joyride, another first degree burg, a third degree burg, and it’s two years?... [DEFENSE COUNSEL]: The only issue is that I was just handed the discovery. I just wanted to go through it. He’s ready to plead. I think we will take Harvey waivers to the other counts. [¶] [DEPUTY DISTRICT ATTORNEY]: That is the only issue. THE COURT: I’d like to take it right now. [DEFENSE COUNSEL]: We certainly can. I’ll just advise my client as to what we just said.” Thereafter, defendant waived his constitutional and other rights. No reference during the waiver of rights colloquy was made to the count involving Ms. Garcia. Although no express oral waiver was secured, there was an “agreement,” as that term was used by Justice Richardson, there could be “adverse sentencing consequences by reason of the facts underlying, and solely pertaining to, the dismissed count” within the meaning of Harvey. (People v. Harvey, supra, 25 Cal.3d at p. 758.) No doubt, sound practice is for the accused to be advised of the fact she or he is agreeing to allow restitution on a dismissed count and to secure a written or oral waiver. But Harvey does not require a personal waiver by the accused; it requires an agreement.
Two final comments are in order on the Harvey issue. Defendant has not sought on appeal to set aside his plea. He has not argued he was unaware of the obligation to pay restitution as to count 1 when he pled no contest. Moreover, we need not discuss whether, if there was a failure to comply with People v. Harvey, supra, 25 Cal.3d at page 758, a reversal would result in the reinstatement of the three dismissed counts. It is clear the prosecution dismissed the three other counts under the assumption defendant would be liable to pay restitution on all counts. Our conclusion there was an agreement to permit restitution on all counts obviates the need to address these issues concerning setting aside the entire plea bargain.
Second, we asked the parties to brief the issue of the amount of the restitution fine. Defendant argues for the first time on appeal there was insufficient evidence that Ms. Garcia sustained a $1,099 loss. When asked by the trial court, the deputy district attorney stated Ms. Garcia experienced a $1,099 loss. Arguing the prosecutor’s unchallenged statement was the only evidence of Ms. Garcia’s loss, defendant argues the restitution order must be set aside. We disagree. To begin with, this entire issue has been forfeited. The sole objection raised at the post-judgment restitution hearing was that no Harvey waiver had been secured. Defense counsel did not object to the prosecutor’s oral statement as to Ms. Garcia’s loss. No other objection was interposed to the prosecutor’s statement as to Ms. Garcia’s loss or the trial court’s $1,099 restitution order. Defense counsel made no request for a hearing on the amount of the restitution.
The majority rule is that any factual or legal objection to a restitution order is forfeited if not presented to the trial court. In People v. Brasure (2008) 42 Cal.4th 1037, 1075, our Supreme Court held: “But by his failure to object, defendant forfeited any claim that the order was merely unwarranted by the evidence, as distinct from being unauthorized by statute. (People v. Smith (2001) 24 Cal.4th 849, 852.) As the order for restitution was within the sentencing court’s statutory authority, and defendant neither raised an objection to the amount of the order nor requested a hearing to determine it (see § 1202.4, subd. (f)(1)), we do not decide whether the court abused its discretion in determining the amount.” Brasure is consistent with the weight of the forfeiture authority in connection with restitution and restitution fine orders. (People v. Smith, supra, 24 Cal.4th at p. 852; People v. Prosser (2007) 157 Cal.App.4th 682, 689; People v. O’Neal (2004) 122 Cal.App.4th 817, 820; People v. Valtakis (2003) 105 Cal.App.4th 1066, 1071-1077; People v. Hall (1997) 59 Cal.App.4th 972, 987; People v. Gillard (1997) 57 Cal.App.4th 136, 165, fn. 18; People v. White (1997) 55 Cal.App.4th 914, 917; People v. Riccio (1996) 42 Cal.App.4th 995, 1003; People v. Le (1995) 39 Cal.App.4th 1518, 1523; People v. Forshay (1995) 39 Cal.App.4th 686, 689; People v. Hennessey (1995) 37 Cal.App.4th 1830, 1836; People v. Gibson (1994) 27 Cal.App.4th 1466, 1468-1469; People v. Menius (1994) 25 Cal.App.4th 1290, 1297-1299.)
In a similar vein, defendant has waived the right to object to the prosecutor providing the amount of Ms. Garcia’s loss rather than the information being conveyed in a probation report or via live testimony. Hearsay evidence is admissible at a probation and sentence hearing. (Williams v. New York (1949) 337 U.S. 241, 246; People v. Peterson (1973) 9 Cal.3d 717, 725; People v. Birmingham (1990) 217 Cal.App.3d 180, 184; In re Tasman B. (1989) 210 Cal.App.3d 927, 934; In re Melendez (1974) 37 Cal.App.3d 967, 973-974; People v. Barajas (1972) 26 Cal.App.3d 932, 939.) Traditional forfeiture rules apply to hearsay declarations. (Evid. Code § 353, subd. (a); People v. Panah (2005) 35 Cal.4th 395, 476.) No objection was interposed to the prosecutor providing the information orally and, as such, the issue posited on appeal has been forfeited. Further, if any part of the prosecutor’s report to the court was false, defense counsel had an obligation to object. (People v. Birmingham, supra, 217 Cal.App.3d at p. 184; In re Beal (1975) 46 Cal.App.3d 94, 100.)
In any event, the prosecutor’s oral statement was sufficient to support the restitution order. On appeal, even incompetent evidence is sufficient to support a judgment. (People v. Panah, supra, 35 Cal.4th at p. 476 [“‘“[i]t is settled law that incompetent testimony, such as hearsay or conclusion, if received without objection takes on the attributes of competent proof when considered upon the question of sufficiency of the evidence to support a finding”’”]; Estate of Fraysher (1956) 47 Cal.2d 131, 135 [“evidence which is admitted... without objection, although incompetent, should be considered in support of that court’s action”].) Thus, the prosecutor’s unchallenged statement is sufficient to support the restitution finding on appeal.
Third, we asked the parties to address whether the section 1202.5, subdivision (a) fine should be modified. We conclude the section 1202.5, subdivision (a) fine should be modified to add: the $10 section 1464, subdivision (a)(2) penalty assessment; the $7 Government Code section 76000, subdivision (a)(1) penalty assessment; the $2 Government Code section 76000.5, subdivision (a)(1) penalty assessment; the $2 section 1465.7, subdivision (a) state surcharge; $3 Government Code section 70372, subdivision (a)(1) state court construction penalty; Government Code section 76104.6, subdivision (a)(1) $1 deoxyribonucleic acid penalty; and Government Code section 76104.7, subdivision (a) $1 deoxyribonucleic acid state-only penalty. Defendant’s request that we remand the fine issue to the trial court for an ability to pay determination is granted. The trial court is to actively and personally insure the clerk accurately prepares a correct amended abstract of judgment which reflects the modifications we have ordered. (People v. Acosta (2002) 29 Cal.4th 105, 109, fn. 2; People v. Chan ((2005) 128 Cal.App.4th 408, 425-426.)
The judgment is modified as set forth in the immediately preceding paragraph. Upon remittitur issuance, the trial court is to determine defendant’s ability to pay the fine and assessment. The judgment is affirmed in all other respects. The clerk is to prepare an amended abstract of judgment and forward it to the Department of Corrections and Rehabilitation.
I concur: ARMSTRONG, J.
MOSK, J., Concurring and Dissenting
I dissent as to the restitution award and concur in all other respects.
I agree that the Penal Code section 1202.5, subdivision (a) fine should be modified as stated in the majority opinion. I disagree, however, that there is sufficient evidence to support the trial court’s $1,099 restitution award to Beverly Ann Garcia and that defendant forfeited review of this issue. Because I believe insufficient evidence supports the $1,099 restitution award and that this issue was not forfeited, it is unnecessary for me to reach the issue of waiver under People v. Harvey (1979) 25 Cal.3d 754.
Defendant’s challenge to the sufficiency of the evidence supporting the trial court’s restitution order did not require an objection in the trial court. “In the absence of a guilty plea, the sufficiency of the evidence to support a finding is an objection that can be made for the first time on appeal.” (People v. Lopez (2005) 129 Cal.App.4th 1508, 1537; People v. Butler (2003) 31 Cal.4th 1119, 1126 [right to appeal the sufficiency of the evidence in support of an order requiring the defendant to submit to an HIV blood test was not forfeited by the failure to object in the trial court].) Thus, there was no forfeiture of the sufficiency of the evidence issue in this case.
A trial court’s restitution order is reviewed for abuse of discretion. (People v. Giordano (2007) 42 Cal.4th 644, 663.) “Under this standard, while a trial court has broad discretion to choose a method for calculating the amount of restitution, it must employ a method that is rationally designed to determine the surviving victim’s economic loss. To facilitate appellate review of the trial court’s restitution order, the trial court must take care to make a record of the restitution hearing, analyze the evidence presented, and make a clear statement of the calculation method used and how that method justifies the amount ordered.” (Id. at pp. 663-664.) “‘When there is a factual and rational basis for the amount of restitution ordered by the trial court, no abuse of discretion will be found by the reviewing court.’ [Citations.]” (People v. Mearns (2002) 97 Cal.App.4th 493, 499.)
“The burden is on the party seeking restitution to provide an adequate factual basis for the claim.” (People v. Giordano, supra, 42 Cal.4th at p. 664.) “[T]he standard of proof at a restitution hearing is by a preponderance of the evidence, not proof beyond a reasonable doubt.” (People v. Baker (2005) 126 Cal.App.4th 463, 469.) In reviewing the sufficiency of the evidence to support an award of restitution, ““‘the power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted,” to support the trial court’s findings.’” (Id. at pp. 468-469.) “If there is no substantial evidence to support the award, and assuming no other rational explanation, the trial court will have obviously abused its discretion.” (People v. Thygesen (1999) 69 Cal.App.4th 988, 993.)
“‘Evidence’ means testimony, writings, material objects, or other things presented to the senses that are offered to prove the existence or nonexistence of a fact.” (Evid. Code, § 140.) “‘Testimony’ refers to statements made under oath. (People v. Belton (1979) 23 Cal.3d 516, 524 [153 Cal.Rptr. 195, 591 P.2d 485].) Thus, attorneys’ statements do not constitute evidence. (Van de Kamp v. Bank of America (1988) 204 Cal.App.3d 819, 843 [251 Cal.Rptr. 530].)” (County of Alameda v. Moore (1995) 33 Cal.App.4th 1422, 1426 [holding that the evidence in support of a judgment awarding child support was insufficient because the “only information upon which the trial court could base its judgment... was contained in the unsworn statements of the district attorney”], disapproved on another ground in Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1361, fn. 15.)
The trial court awarded restitution to Garcia in the amount of $1,099 based on its apparent understanding that defendant took a washing machine from Garcia and the prosecutor’s assertion that the replacement cost of the washing machine was $1,099. No evidence was presented at the restitution hearing that would support the trial court’s award of $1,099. Garcia, the victim, did not testify, and no documentary evidence was adduced. The probation reports in the record on appeal do not address defendant’s offenses or the damages his victims suffered as a result of his criminal conduct. The prosecutor did not purport to provide evidence, hearsay or otherwise, to support the assertion that Garcia’s loss as a result of defendant’s criminal conduct was $1,099, and the prosecutor’s statement that the replacement cost of the washing machine was $1,099 was not evidence. (Evid. Code, § 140; County of Alameda v. Moore, supra, 33 Cal.App.4th at p. 1426.)
No evidence is not substantial evidence, and the trial court abused its discretion in awarding Garcia $1,099 in restitution. (People v. Thygesen, supra, 69 Cal.App.4th at p. 993.) Accordingly, I would order the abstract of judgment amended to strike the Penal Code section 1202.4, subdivision (f) restitution award of $1,099 to Garcia.