P. v. Encinas
Filed 3/25/13 P. v. Encinas CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE
DISTRICT
DIVISION SIX
THE PEOPLE,
Plaintiff and
Respondent,
v.
CARLOS ARMANDO ENCINAS,
Defendant and
Appellant.
2d Crim. No.
B242934
(Super. Ct. No.
1282198)
(Santa
Barbara County)
Carlos Armando Encinas
appeals a $9,985.98 victim restitution order following his
contest plea to assault with force likely to produce great bodily injury. (Pen. Code, § 245, subd. (a)(1).)
hearing, the People filed an application for a victim restitution order. The trial court granted it.
We conclude, among other
things, that: 1) Encinas's negotiated
plea agreement did not preclude the trial court from modifying the sentence to
include a victim restitution order, and 2) the court was not required to obtain
a Harvey waiver before making that
FACTS
On April 19, 2008, Encinas stabbed Jacob Tell with a
knife at a bar in Santa Maria, California. Tell sustained "two stab wounds to the
lower abdomen."
When the police arrived,
Encinas tried to run away. A police
officer chased him and shoved him "to the ground." Encinas struggled and tried "to conceal
something underneath him." It was a
knife. Encinas unsuccessfully attempted
to "kick the knife" away. The
officer took him into custody.
The district attorney
filed a felony complaint alleging attempted
premeditated murder (§§ 664, 187, subd. (a), 189) (count 1), with
special allegations that Encinas's knife attack on Tell was a serious felony,
that he used a deadly weapon, and inflicted great bodily injury
(§§ 1192.7, subd. (c)(8), (23); former 12022, subd. (b)(1); former 12022.7,
subd. (a)); assault with personal use of
a deadly weapon (§ 245, subd. (a)(1)) (count 2), with special
allegations that the knife attack on Tell was a serious felony (§ 1192.7,
subd. (c)(31)); and resisting arrest
(§ 69) (count 3).
The district attorney
amended the complaint to add count 4 - assault with force likely to produce
great bodily injury - a "non-strike felony." (§ 245, subd. (a)(1).) On the same day, pursuant to the terms of a
negotiated plea agreement, Encinas pled no contest to count 4, and the other
counts and special allegations were dismissed.
On November 24, 2008, Encinas was sentenced to two
years in state prison. The trial court
imposed two $400 fines. (§§ 1202.4,
1202.45.)
On July 12, 2011, the People filed an
"application" for a modification of the sentence to include a victim
restitution order. The prosecutor said
Tell "submitted a claim with the Victim Compensation and Government Claims
Board" and received $9,985.98 as
compensation for "medical
expenses." The People requested
the trial court to make a restitution order payable to the "Victim
Compensation Board" for the money it paid to Tell.
The trial court held a
hearing on restitution and ordered Encinas to pay the amount requested to the
"State Victim Compensation Board, to reimburse payments to the victim from
the Restitution Fund."
DISCUSSION
Encinas contends the
victim restitution order he signed must be vacated. He claims his plea agreement did not
authorize the trial court to grant victim restitution. We disagree.
In the portion of the
agreement that sets forth the consequences of his plea, Encinas acknowledged,
"I may be ordered to pay restitution
to the victim(s) whether I go to prison or I am granted
probation." (Italics added.) Consequently, he had notice of his
responsibility for such restitution; and by entering into the plea agreement,
he agreed to accept such responsibility.
Encinas claims that
because the trial court did not order victim restitution at his original
sentencing hearing, it lacked authority to award it at a later date. He argues the original sentence is conclusive
on restitution.
But "[a] sentence
without an award of victim restitution is invalid." (People
v. Brown (2007) 147 Cal.App.4th 1213, 1225.) "Victim restitution may not be bargained
away by the People." (
omission of a restitution order . . . , the district attorney,
or the court on its own motion may at any
time request correction of the sentence to include a proper restitution
award." (Id. at p. 1226, fn. 7, italics added.) Here the People filed the application to
award restitution, and the trial court properly granted it. "Victim restitution is mandated by the
California Constitution . . . ." (Id.
at p. 1225.) A court must award it
unless it finds "compelling and extraordinary reasons" for not doing
so. (Ibid.) Here the court made no finding that there
were any grounds for an exception to the restitution requirement. The award is mandatory "regardless of
whether the restitution is paid directly to a victim or to the Restitution Fund
to the extent it incurred expenses on behalf of the victim." (Ibid.) Where the restitution fund has paid a victim,
as here, "'the amount of assistance provided shall be presumed to be a
direct result of the defendant's criminal conduct and shall be included in the
amount of the restitution ordered.'"
(Ibid.)
Encinas contends the
victim restitution award must be vacated because the trial court did not obtain
a Harvey waiver and restitution was
based on the facts from the dismissed counts.
Under
758, without a waiver by the defendant, a court may not consider facts
underlying a dismissed count in sentencing unless " those facts were also
to which defendant pleaded guilty."
Here the People concede
there was no Harvey waiver. They claim, however, that restitution was
awarded based on the facts of count 4 and the facts of the dismissed counts
were transactionally related to count 4.
We agree.
The restitution award
was as result of the medical expenses incurred by victim Tell because of the knife
attack. Tell was listed as the victim in
the attempted murder and assault with a deadly weapon counts, which were
dismissed (counts 1 and 2). Count 3,
which was dismissed, charged Encinas with resisting arrest, as he tried to flee
after stabbing Tell. Encinas pled no
contest to count 4 - assault with force likely to produce great bodily
injury.
Encinas claims count 4
"did not name any victim." But
the trial court found Tell was the victim in count 4. To challenge that finding, Encinas must show
the court abused its discretion. (
7, 26.) He has not done so.
The prosecutor added
count 4 and dismissed the remaining counts to achieve a plea bargain. Encinas has not shown why the trial court
could not reasonably find that: 1) he
pled no contest to count 4 because it was a "non-strike felony," and
2) he would avoid trial for the more serious
weapon counts for his knife attack on Tell.
The identity of the victim did not change with the addition of count 4.
In addition, an admitted
count and dismissed counts may be transactionally related where: 1) "some action of the defendant giving
rise to the dismissed count was also involved in the admitted count," 2)
all counts involved "parts of the same transaction," or 3) all of the
counts involved "a continuing crime."
(People v.
421.) Here the trial court could find
that all of the counts were transactionally related and that counts 1, 2 and 4
were based on the same facts - the knife attack on Tell.
The order is affirmed.
NOT TO BE PUBLISHED.
GILBERT,
P.J.
We concur:
YEGAN, J.
PERREN, J.
Patricia
Kelly, Judge
Superior
Court County of Santa Barbara
______________________________
Richard C. Gilman, under
appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E.
Winters, Senior Assistant Attorney General, Susan Sullivan Pithey, Supervising
Deputy Attorney General, Taylor Nguyen, Deputy Attorney General, for Plaintiff
and Respondent.
name="_ftn1" title="">[1] All statutory references are to the Penal
Code.
