P. v. Barajas
Filed 7/11/13
P. v. Barajas CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
JOE TELEVARA BARAJAS,
Defendant and
Appellant.
F065506
(Super.
Ct. No. CRM000508)
THE COURT
name="_ftnref1" title="">*
APPEAL from
a judgment of the Superior Court of
County. Marc A. Garcia, Judge.
Robert L.S.
Angres, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Charles A. French and John G.
McLean, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
This is an
appeal from a postjudgment modification of sentence to impose restitution
pursuant to the court’s reservation of jurisdiction to do so at the original
sentencing. Defendant and appellant Joe
Televara Barajas contends the court committed prejudicial error by failing to
require his presence at the postjudgment hearing. Respondent contends the error was
harmless. We cannot agree. We reverse the judgment in part and affirm in
part.
FACTS AND PROCEDURAL HISTORY
On October
14, 2008, defendant shot Joseph Salas in the leg and shot at Chad Villanueva,
slightly wounding him. In a
defendant was charged with attempted murder of Salas (Pen. Code, §§ 187,
664) in count 1; assault with a firearm on Villanueva (Pen. Code, § 245,
subd. (a)(2)) in count 2; and possession of a firearm by a felon (former Pen. Code,
§ 12021, subd. (a)(1)) in count 3.
Gang and firearm enhancements were alleged as to counts 1 and 2. On April 7, 2010, defendant pled no
contest to count 1, attempted murder of Salas, and admitted amended
enhancements as part of a plea bargain for a total prison term of 16
years. All remaining counts and
enhancements were dismissed by the prosecutor.
In connection with this plea bargain, defendant executed an advisement
and waiver of rights form in which, among other terms, he agreed to dismissal
of charges in a separate case “with a Harvey waiver.â€
On November
8, 2010, defendant was permitted to withdraw from the plea bargain. The parties then entered into a new plea
bargain in which defendant pled no contest to count 2, assault with a firearm on
Villanueva, and admitted a Penal Code section 12022.5, subdivision (a),
enhancement, with an operative sentence of 12 years in prison. The court imposed that sentence, and imposed
various fines and fees. The court
reserved jurisdiction on the issue of restitution.
On a
noticed motion of the district attorney filed May 16, 2012, the matter of
restitution was brought before the court.
The motion attached a request for restitution from the Victim
Compensation and Government Claims Board dated May 15, 2012, seeking
reimbursement of $10,778.40 paid to “Adult Victim†(not otherwise named). Defendant was not present at the
hearing. His attorney identified herself
as “standing in for [defendant] who is not present. He is in custody in a state prison facility.†Counsel stated that she had reviewed the
claim and “it appears to be appropriate.â€
The court imposed restitution in the requested amount.
DISCUSSION
Defendant
contends, and respondent agrees, he had a constitutional
and statutory right to be present at the restitution portion of his
sentencing hearing. (See
60.) Defendant further contends, and
respondent agrees, that he did not validly waive his presence at the hearing. Respondent contends this error does not
require reversal of the judgment if the error was harmless beyond a reasonable
doubt. (Id. at p. 62.)
In the
unique circumstances of this case, we cannot conclude the error was harmless
beyond a reasonable doubt. Counts 1 and
2 had different victims, and it appears from the record that the injury to the
victim of count 2, Villanueva, was minor and was not the basis for the claimed
restitution amount. There was no express
Harvey waiver at the time of the
operative entry of plea in this case, nor was there an express agreement that
the injury to Salas was “transactionally related†to the assault on Villanueva,
an exception to the rule against using dismissed counts for sentencing
established in Harvey. (See People
v. Harvey, supra, 25 Cal.3d at p. 757.)
Defendant, had he been present and raised the issue with his attorney,
might well have persuaded the trial court that imposition of restitution based
on payments to Salas was not contemplated by the plea bargain. We believe he is entitled to present the
DISPOSITION
The
judgment is reversed insofar as it imposes restitution on defendant. In all other respects, the judgment is
affirmed. The matter is remanded to the
trial court for further hearing on the issue of restitution at a duly noticed
hearing at which defendant is present or for which defendant has validly waived
his presence.
name="_ftn1" title="">* Before
Kane, Acting P.J., Detjen, J. and Peña, J.
name="_ftn2" title="">[1] See
People v. Harvey (1979) 25 Cal.3d
754. Harvey
prohibits a sentencing court from relying on the facts underlying dismissed
counts for sentencing purposes under some circumstances, absent the defendant’s
agreement for the use of those facts.
(See id. at pp. 757-758.)
