Filed 4/9/13 P. v. Gomez CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D061952
Plaintiff and Respondent,
v. (Super. Ct. No. SCD230452)
JOSEPH GOMEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Charles R. Gill, Judge. Affirmed in part, reversed in part and remanded.
Joseph Gomez pleaded guilty to two counts of robbery and to possession
for sale and transportation of a controlled substance. The court dismissed nine
counts of robbery with a Harvey waiver (People v. Harvey (1979) 25 Cal.3d 754
(Harvey)) and ordered Gomez to pay restitution, including to the victims of the
dismissed counts. Gomez appeals, contending the trial court erred in (1) finding
his Harvey waiver prevented him from presenting evidence at the restitution hearing that his conduct did not cause the victims' losses, and (2) denying his
request to order funds seized from his home be paid to victims as restitution. We
agree that a Harvey waiver does not prohibit a defendant from presenting evidence
regarding causation at a restitution hearing. Accordingly, we reverse the portion
of the judgment awarding restitution to the victims of the dismissed counts and
remand the issue to the trial court to hold a further restitution hearing consistent
with this opinion. In all other respects, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
From February to September 2010, an individual robbed five pharmacies in
Mira Mesa, Poway and Escondido. In each robbery, the suspect stole prescription
narcotics, such as oxycontin and hydrocodone. In October 2010, Escondido police
arrested Gomez for the robberies. During a search of Gomez's residence, the
police seized prescription narcotics and $12,090.
The People charged Gomez with eleven counts of robbery, one count of
possession for sale of a controlled substance, and one count of transporting a
controlled substance. Gomez entered a plea agreement, admitting to two counts of
robbery and to possession for sale and transportation of a controlled substance.
The plea agreement included a Harvey waiver, which allowed the court to
consider the nine dismissed robbery counts for purposes of sentencing and
restitution.
At his sentencing, Gomez objected to restitution for the victims identified
with the dismissed counts. The court set a restitution hearing to determine the
2 issue. At the restitution hearing, Gomez argued that he should be able to present
evidence regarding whether he caused the victims' losses. The court ruled
Gomez's Harvey waiver precluded him from presenting evidence concerning
causation at the restitution hearing. It then ordered Gomez to pay restitution in the
amount of $34,400.50 to the victims identified in the dismissed counts.
DISCUSSION
I. Scope of Harvey Waiver
Gomez argues the trial court erred in finding his Harvey waiver prevented
him from presenting evidence at the restitution hearing that his conduct did not
cause the victims' losses. We agree.
A. General Legal Principles
In general, we review a trial court's order of restitution for abuse of
discretion. (People v. Giordano (2007) 42 Cal.4th 644, 663.) "However, when
the propriety of a restitution order turns on the interpretation of a statute, a
question of law is raised," which we review de novo. (People v. Williams (2010)
184 Cal.App.4th 142, 146.)
The California Constitution provides a victim the right to receive restitution
from persons convicted of crimes which caused a loss to the victim. (Cal. Const.,
art. I, § 28, subd. (b), par. (13)(A).) To ensure this right, courts shall order
defendants to pay restitution to the victims who suffered economic loss "as a result
of the defendant's conduct." (Pen. Code, § 1202.4, subd. (f).) (All subsequent
statutory references are to the Penal Code.)
3 Section 1202.4 also provides defendants with a statutory right to challenge
the amount of restitution. (§ 1202.4, subd. (f)(1).) Inherent in this right to
challenge the amount of restitution is the right to argue that the claimed economic
loss was not a result of the defendant's conduct. (People v. Chappelone (2010)
183 Cal.App.4th 1159, 1180 [limiting restitution to the loss in value of returned
stolen property]; People v. Millard (2009) 175 Cal.App.4th 7, 41–42 [limiting
restitution based on the doctrine of comparative negligence]; People v. Rivera
(1989) 212 Cal.App.3d 1153, 1162 [denying restitution for receipt of stolen
property because defendant was not responsible for the theft].)
Once a victim makes a prima facie case for restitution, the burden shifts to
the defendant to prove the amount of loss claimed by the victim is some other
value. (People v. Millard, supra, 175 Cal.App.4th at p. 26.) In order to rebut the
victim's evidence, the defendant must present evidence to refute the victim's prima
facie case for the restitution amount. (See ibid.) If a defendant could not present
evidence, this burden shift would be pointless. Accordingly, section 1202.4
provides defendants with a right to present evidence at a restitution hearing that
their conduct did not cause the victim's loss.
A standard Harvey waiver allows the sentencing judge to consider a
defendant's entire criminal history, including any unfiled or dismissed charges,
when the judge orders restitution. (People v. Goulart (1990) 224 Cal.App.3d 71,
80.) Therefore, a defendant could be ordered to pay restitution to the victims of
dismissed counts if the defendant agreed to a Harvey waiver, even if the victims'
4 losses did not arise from criminal activity associated with the counts to which the
defendant pleaded guilty. (See § 1192.3 [requires a Harvey waiver when a
defendant agrees to restitution for dismissed nonfelony charges].)
A standard Harvey waiver, however, does not explicitly state a defendant
agrees to relinquish or abandon his or her right to dispute the determination of the
amount of restitution, including the right to present evidence. And in the context
of a plea agreement, courts look to "the specific language of the agreement to
ascertain the expressed intent of the parties" in order to define the scope of a
waiver. (People v. Nguyen (1993) 13 Cal.App.4th 114, 120.) Thus, a Harvey
waiver does not prevent a defendant from presenting evidence at a restitution
hearing.
B. Analysis
Gomez agreed to a standard Harvey waiver. In doing so, he acknowledged
that "[t]he sentencing judge may consider [his] prior criminal history and the
entire factual background of the case, including any unfiled, dismissed or stricken
charges or allegations or cases when granting probation, ordering restitution or
imposing sentence." Nothing in Gomez's Harvey waiver states he waived his right
to present evidence at his restitution hearing. Based on this standard Harvey
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Filed 4/9/13 P. v. Gomez CA4/1 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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D061952
Plaintiff and Respondent,
v. (Super. Ct. No. SCD230452)
JOSEPH GOMEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Charles R. Gill, Judge. Affirmed in part, reversed in part and remanded.
Joseph Gomez pleaded guilty to two counts of robbery and to possession
for sale and transportation of a controlled substance. The court dismissed nine
counts of robbery with a Harvey waiver (People v. Harvey (1979) 25 Cal.3d 754
(Harvey)) and ordered Gomez to pay restitution, including to the victims of the
dismissed counts. Gomez appeals, contending the trial court erred in (1) finding
his Harvey waiver prevented him from presenting evidence at the restitution hearing that his conduct did not cause the victims' losses, and (2) denying his
request to order funds seized from his home be paid to victims as restitution. We
agree that a Harvey waiver does not prohibit a defendant from presenting evidence
regarding causation at a restitution hearing. Accordingly, we reverse the portion
of the judgment awarding restitution to the victims of the dismissed counts and
remand the issue to the trial court to hold a further restitution hearing consistent
with this opinion. In all other respects, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
From February to September 2010, an individual robbed five pharmacies in
Mira Mesa, Poway and Escondido. In each robbery, the suspect stole prescription
narcotics, such as oxycontin and hydrocodone. In October 2010, Escondido police
arrested Gomez for the robberies. During a search of Gomez's residence, the
police seized prescription narcotics and $12,090.
The People charged Gomez with eleven counts of robbery, one count of
possession for sale of a controlled substance, and one count of transporting a
controlled substance. Gomez entered a plea agreement, admitting to two counts of
robbery and to possession for sale and transportation of a controlled substance.
The plea agreement included a Harvey waiver, which allowed the court to
consider the nine dismissed robbery counts for purposes of sentencing and
restitution.
At his sentencing, Gomez objected to restitution for the victims identified
with the dismissed counts. The court set a restitution hearing to determine the
2 issue. At the restitution hearing, Gomez argued that he should be able to present
evidence regarding whether he caused the victims' losses. The court ruled
Gomez's Harvey waiver precluded him from presenting evidence concerning
causation at the restitution hearing. It then ordered Gomez to pay restitution in the
amount of $34,400.50 to the victims identified in the dismissed counts.
DISCUSSION
I. Scope of Harvey Waiver
Gomez argues the trial court erred in finding his Harvey waiver prevented
him from presenting evidence at the restitution hearing that his conduct did not
cause the victims' losses. We agree.
A. General Legal Principles
In general, we review a trial court's order of restitution for abuse of
discretion. (People v. Giordano (2007) 42 Cal.4th 644, 663.) "However, when
the propriety of a restitution order turns on the interpretation of a statute, a
question of law is raised," which we review de novo. (People v. Williams (2010)
184 Cal.App.4th 142, 146.)
The California Constitution provides a victim the right to receive restitution
from persons convicted of crimes which caused a loss to the victim. (Cal. Const.,
art. I, § 28, subd. (b), par. (13)(A).) To ensure this right, courts shall order
defendants to pay restitution to the victims who suffered economic loss "as a result
of the defendant's conduct." (Pen. Code, § 1202.4, subd. (f).) (All subsequent
statutory references are to the Penal Code.)
3 Section 1202.4 also provides defendants with a statutory right to challenge
the amount of restitution. (§ 1202.4, subd. (f)(1).) Inherent in this right to
challenge the amount of restitution is the right to argue that the claimed economic
loss was not a result of the defendant's conduct. (People v. Chappelone (2010)
183 Cal.App.4th 1159, 1180 [limiting restitution to the loss in value of returned
stolen property]; People v. Millard (2009) 175 Cal.App.4th 7, 41–42 [limiting
restitution based on the doctrine of comparative negligence]; People v. Rivera
(1989) 212 Cal.App.3d 1153, 1162 [denying restitution for receipt of stolen
property because defendant was not responsible for the theft].)
Once a victim makes a prima facie case for restitution, the burden shifts to
the defendant to prove the amount of loss claimed by the victim is some other
value. (People v. Millard, supra, 175 Cal.App.4th at p. 26.) In order to rebut the
victim's evidence, the defendant must present evidence to refute the victim's prima
facie case for the restitution amount. (See ibid.) If a defendant could not present
evidence, this burden shift would be pointless. Accordingly, section 1202.4
provides defendants with a right to present evidence at a restitution hearing that
their conduct did not cause the victim's loss.
A standard Harvey waiver allows the sentencing judge to consider a
defendant's entire criminal history, including any unfiled or dismissed charges,
when the judge orders restitution. (People v. Goulart (1990) 224 Cal.App.3d 71,
80.) Therefore, a defendant could be ordered to pay restitution to the victims of
dismissed counts if the defendant agreed to a Harvey waiver, even if the victims'
4 losses did not arise from criminal activity associated with the counts to which the
defendant pleaded guilty. (See § 1192.3 [requires a Harvey waiver when a
defendant agrees to restitution for dismissed nonfelony charges].)
A standard Harvey waiver, however, does not explicitly state a defendant
agrees to relinquish or abandon his or her right to dispute the determination of the
amount of restitution, including the right to present evidence. And in the context
of a plea agreement, courts look to "the specific language of the agreement to
ascertain the expressed intent of the parties" in order to define the scope of a
waiver. (People v. Nguyen (1993) 13 Cal.App.4th 114, 120.) Thus, a Harvey
waiver does not prevent a defendant from presenting evidence at a restitution
hearing.
B. Analysis
Gomez agreed to a standard Harvey waiver. In doing so, he acknowledged
that "[t]he sentencing judge may consider [his] prior criminal history and the
entire factual background of the case, including any unfiled, dismissed or stricken
charges or allegations or cases when granting probation, ordering restitution or
imposing sentence." Nothing in Gomez's Harvey waiver states he waived his right
to present evidence at his restitution hearing. Based on this standard Harvey
waiver, Gomez only agreed the court could consider the facts of the dismissed
charges when ordering restitution. Accordingly, Gomez did not waive his right to
present evidence at his restitution hearing.
5 The Attorney General, alternatively, contends that when Gomez stipulated
to the facts of the preliminary hearing, he stipulated to "his involvement in the
dismissed counts." We disagree with this contention.
Paragraph 15 of Gomez's plea form required him to describe the facts "as to
each charge and allegation" to which he pleaded guilty. Paragraph one of the
same form listed those specific charges and allegations. In paragraph 15, Gomez
wrote in the words, "submit to the preliminary hearing transcript."
Paragraph 15 is one way to verify the factual basis for a plea agreement as
required by section 1192.5. (People v. Holmes (2004) 32 Cal.4th 432, 438–442
[discussing the requirement and history for the factual basis in plea agreements].)
When a defendant initials and submits to the preliminary hearing transcript in a
plea agreement, the defendant admits to the facts of the preliminary hearing with
respect to the charges to which the defendant is pleading guilty, nothing more.
Therefore, when Gomez wrote, "submit to the preliminary hearing transcript,"
Gomez submitted to the facts from the transcript with respect to the charges to
which he pleaded guilty, not the dismissed charges. "[A]n informed 'Harvey
waiver' cannot be treated as tantamount to a guilty plea to the dismissed or
uncharged crimes." (People v. Myers (1984) 157 Cal.App.3d 1162, 1168.)
Otherwise, defendants such as Gomez, by agreeing to the Harvey waiver, would
be worse off in a restitution hearing than if they had gone to trial and were
convicted on the dismissed counts.
6 Based on the foregoing, we reverse the portion of the judgment awarding
restitution on the dismissed counts and remand for the trial court to conduct a
further restitution hearing where Gomez will be allowed to present evidence and
argue causation. Although we conclude Gomez may present evidence at a
restitution hearing, we do not pass judgment on the merits of that evidence or on
the amount of restitution to be awarded to the victims.
II. Application of Seized Funds to Restitution
A. Additional Background
At the restitution hearing, Gomez requested that the court apply the
$12,090 seized from his apartment to the payment of restitution. The court denied
Gomez's motion without prejudice, stating it was not certain it had jurisdiction to
decide the matter.
We requested supplemental briefing from the parties on the issue of
jurisdiction. In its supplemental briefing, the Attorney General requested we take
judicial notice of a Declaration of Forfeiture by the U.S. Department of Justice,
Drug Enforcement Administration (DEA), dated February 10, 2011. The Attorney
General subsequently submitted a certified copy of the Declaration of Forfeiture.
That document provides the DEA declared the $12,090 seized from Gomez
forfeited to the United States pursuant to title 19 United States Code section 1609.
Gomez opposed the Attorney General's request for judicial notice.
7 B. Analysis
Gomez argues the money seized by Escondido police should be applied to
victim restitution pursuant to the Victims' Bill of Rights Act of 2008: Marsy's
Law, which enhanced many state constitutional rights of victims. In particular,
California's Constitution was amended to provide that "[a]ll monetary payments,
monies, and property collected from any person who has been ordered to make
restitution shall be first applied to pay the amounts ordered as restitution to the
victim." (Cal. Const., art. I, § 28, subd. (b)(13)(c).) Gomez argues this provision
confers jurisdiction on a trial court to order distribution of seized money. We
reject Gomez's arguments.
As a preliminary matter, we take judicial notice of the DEA's Declaration
of Forfeiture. The Evidence Code permits a reviewing court to take judicial notice
of any matter specified in Evidence Code section 452. (Evid. Code, § 459, subd.
(a).) Accordingly, we may take judicial notice of official acts of the executive
department of the United States. (Evid. Code, § 452, subd. (c).)
The DEA seized the $12,090 recovered from Gomez's home. This act
removed the property from the court's jurisdiction. (People v. Icenogle (1985) 164
Cal.App.3d 620, 624 [holding a criminal court does not possess money seized by
federal agents; thus the money was not subject to a motion before that court].)
Therefore, the court did not have the ability to apply the seized funds to victim
restitution. We affirm the court's denial of Gomez's motion.
8 Because we decide the court did not have jurisdiction over the money
seized from Gomez, we decline to address the remainder of his contentions.
DISPOSITION
The portion of the judgment awarding restitution on the dismissed counts is
reversed. In all other respects, the judgment is affirmed. The matter is remanded
to the trial court with directions to hold a restitution hearing in accordance with
this opinion.
MCINTYRE, Acting P. J.
WE CONCUR:
AARON, J.
IRION, J.