P. v. Sanchez























Filed 1/10/13 P. v. Sanchez CA2/3

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>NOT TO BE PUBLISHED IN THE
OFFICIAL REPORTS

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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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115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 THREE




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THE PEOPLE, Plaintiff and Respondent, v. ABRAHAM SAUCEDO SANCHEZ, Defendant and Appellant.

B237659 (Los Angeles County Super. Ct. No. YA082193)

APPEAL from a judgment of
the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County, Mark S. Arnold, Judge.
Modified and, as modified, affirmed.



Ava R. Stralla,
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,
Assistant Attorney General, Steven D. Matthews and Peggy Z. Huang, Deputy
Attorneys General, for Plaintiff and Respondent.



INTRODUCTION

Defendant
and appellant Abraham Saucedo Sanchez pleaded guilty to one count of corporal href="http://www.sandiegohealthdirectory.com/">injury to a spouse or
cohabitant, and the remaining three counts for the same charge were
dismissed. The trial court ordered
Sanchez to pay restitution related to the dismissed charges. The prosecutor, however, did not obtain a
waiver under People v. Harvey (1979)
25 Cal.3d 754, 758 (a “Harvey
waiver”), which held that when charges are dismissed against a defendant, there
should not be any punishment for them.
Because the defendant did not agree to waive his rights under >Harvey, the trial court erred by
ordering him to make restitution on the dismissed charges. We therefore modify the judgment to strike
those restitution amounts improperly imposed and affirm the judgment as
modified.

BACKGROUNDhref="#_ftn1" name="_ftnref1" title="">[1]

A felony
complaint alleged against Sanchez four counts of corporal injury to a spouse,
cohabitant, and child’s parent (Pen. Code, § 273.5, subd. (a)). On October 6, 2011, Sanchez pled no
contest to count 1 for corporal injury, and the remaining counts 2, 3, and 4
were dismissed. The trial court placed
Sanchez on probation for five years on the condition he spend 365 days in jail.

At the
subsequent restitution hearing on October 13, 2011, defense counsel noted that
there was no Harvey waiver in the
file. Because the witness was present,
the trial court elected to proceed with the hearing and consider the waiver
issue later. The victim then testified
about her damages. The trial court indicated that although there
was no Harvey waiver, it could impose
restitution on the dismissed counts.
Over defense counsel’s objection, the court ordered Sanchez to pay
$4,201.67 in restitution, which amount included damages related to the dismissed
counts.

DISCUSSION

A. The Harvey
waiver.

The trial
court’s restitution order included damages other than those incurred in
connection with count 1. Sanchez
therefore contends that because there was no Harvey waiver, he is not responsible for damages in connection with
dismissed counts 2, 3, and 4. We agree.

Under >People v. Harvey, supra, 25 Cal.3d 754, a trial court, in determining the
disposition, may not consider evidence of any crime as to which charges were
dismissed. (>People v. Moser (1996) 50 Cal.App.4th
130, 132-133.) It is “ ‘improper and
unfair’ to permit the sentencing court to consider any of the facts underlying
dismissed counts because, absent an agreement to the contrary, a plea bargain
implicitly includes the understanding that the defendant will suffer no adverse
sentencing consequences by reason of the facts underlying, and solely
pertaining to, dismissed counts.” (>People v. Munoz (2007) 155 Cal.App.4th
160, 166-167.) The prosecution may,
however, obtain a Harvey waiver,
which “permits a trial court to consider facts underlying dismissed counts in
determining the appropriate disposition for the offense of which the defendant
was convicted.” (Moser, at pp. 132-133; >Munoz, at p. 167.)

The
record here shows that Sanchez pleaded guilty only to count 1 in return for the
dismissal of counts 2, 3, and 4, and he agreed “to pay restitution to the
victim in this case in an amount to be determined at a later time at a
restitution hearing.” Nothing in the
record indicates that Sanchez’s agreement to pay restitution related to any
count other than the count of conviction, that is, count 1. Thus, in the absence of a >Harvey waiver that his restitution
obligation extended to dismissed counts, the trial court erred by imposing
restitution on those counts.

The
People, however, argue that restitution could be imposed on the dismissed
counts because restitution can be imposed as a condition of probation, so long
as the restitution award is “reasonably related either to the crime of which
the defendant is convicted or to the goal of deterring future
criminality.” (People v. Carbajal (1995) 10 Cal.4th 1114, 1123; see also >People v. Lent (1975) 15 Cal.3d 481,
486-487.) But Carbajal and Lent did not
involve a sentence imposing restitution on counts dismissed according to a href="http://www.mcmillanlaw.com/">plea bargain. They have no bearing on whether restitution
can be imposed on counts dismissed under a plea bargain where no >Harvey waiver was given. Accordingly,
because Sanchez did not give a Harvey waiver,
there was no agreement that the sentence imposed could include restitution on
the dismissed counts.

Count 1 to which
Sanchez pled no contest, concerned events occurring on or between August 21 to
August 27, 2011. The victim, however,
testified about these damages relating to the dismissed counts 2, 3, and 4,
which concerned events occurring on September 3, 2011, July 8, 2011 and July
30, 2010:

·
$133.77 for an urgent care visit on July 17, 2011 to treat
bruising, dizziness and headaches (count 3).

·
$230 for a medical visit on July 31, 2010 to treat injury to
her clavicle (count 4).

·
$1,330 for a computer Sanchez damaged on September 3, 2011
(count 2).

·
$446 for work she missed from July 11 to 15, 2011 (count 3).

Because these damages related
to the dismissed counts, they could not be ordered as restitution in the
absence of a Harvey waiver. Two thousand one hundred and thirty-nine
dollars and seventy-seven cents must therefore be subtracted from the $4,201.67
restitution order.

>B. Restitution
for the damaged cell phones.

The victim
testified that defendant damaged three cell phones. The cell phones were not related to any of
the charged counts, and therefore Sanchez concedes that the trial court could
order him to pay restitution for them as long as the restitution was reasonably related either to the crime of which he was convicted or
to the goal of deterring future criminality.
(People v. Carbajal, supra, 10
Cal.4th at p. 1123.) What Sanchez does >not concede is that the trial court acted
within its discretion in ordering him to pay for the cell phones, because the
victim’s testimony was vague as to the amount of damage she sustained.

“
‘ “The standard of review of a restitution order is abuse of discretion. ‘A victim’s restitution right is to be
broadly and liberally construed.’
[Citation.] ‘ “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.]”
[Citation.]’ (>People v. Baker (2005) 126 Cal.App.4th
463, 467 [].) ‘In reviewing the
sufficiency of the evidence, “ ‘[t]he 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.” [Citations.]
Further, the standard of proof at a restitution hearing is by a
preponderance of the evidence, not proof beyond a reasonable doubt. [Citation.]’
(Id. at pp. 468-469.) The trial court ‘ “must use a rational method
that could reasonably be said to make the victim whole, and may not make an
order which is arbitrary or capricious.” ’
[Citation.]” (>People v. Keichler (2005) 129
Cal.App.4th 1039, 1045; see also People
v. Thygesen (1999) 69 Cal.App.4th 988, 992.) If there is no substantial evidence to
support a restitution award, the trial court will have obviously abused its
discretion. (Thygesen, at p. 993.)

The
victim testified that her Touch 4G phone retailed at $499; a second one cost
$499.95; and a third cost $399.95. She
was making payments on the two phones costing $499 or $499.95 and she was
obligated to pay them off. She then
explained that “when––you can buy it for $499.95. However, if you extend your contract for
another two years, they do drop it down to between $129 and $130. So that was the price that I was paying for
it, which I’m still paying but I’m unable to.”

Based
on this testimony, Sanchez contends that it is unclear what amount the victim
paid on the two phones, about $499 each or about $130 each. The victim, however, was entitled to the
replacement value of her phones. (Pen.
Code, § 1202.4, subd. (f)(3).) She
testified that Sanchez broke her phones.
She testified that the phones retailed at about $499. There was no showing that she will once again
qualify for any special deal lowering the retail price. We therefore conclude that the trial court
did not abuse its discretion by ordering Sanchez to pay the retail price of the
phones.

DISPOSITION

The
judgment is modified to strike $2,139.77 from the restitution award, and, as
modified, the judgment is affirmed.

NOT TO BE PUBLISHED
IN THE OFFICIAL REPORTS











ALDRICH,
J.





We concur:





CROSKEY, Acting P. J.











KITCHING, J.