P. v. Heald
Filed
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL DAVID HEALD, Defendant and Appellant. | 2d Crim. No. B190260 (Super. Ct. No. 2002001677) (Super. Ct. No. 2002029142) (Super. Ct. No. 2002029505) (Super. Ct. No. 2004045383) ( |
Michael David Heald was sentenced to 10 years 4 months state prison in four cases and ordered to pay restitution. He appeals contending that the trial court increased a restitution fine after he violated probation in one case and ordered victim restitution on a count that was dismissed pursuant to a plea agreement. (Pen. Code, § 1202.4, subd. (f).)[1] We conclude that the trial court erred in increasing the restitution fine (§ 1202.4, subd. (b)) in case number 2002029505 from $200 to $1,500, and reduce the restitution fine and matching parole revocation fine (§ 1202.45) to $200. (People v. Arata (2004) 118 Cal.App.4th 195, 201-203.) As modified, the judgments are affirmed.
Procedural History
First Case
On
Second and Third Cases
On
The trial court suspended imposition of sentence in case numbers 2002029142 and 2002029505, granted 36 months probation with county jail, and ordered appellant to pay a $200 restitution fine in each case. (§ 1202.4, subd. (b).) In case number 2002001677, the trial court reinstated probation.
Fourth Case
On
At a consolidated sentencing hearing on
Increased Restitution Fine – Case Number 2002029505
Appellant contends, and the Attorney General agrees, that the trial court erred in increasing the restitution fine from $200 to $1,500 in case number 2002029505. When probation was granted in 2004, appellant was ordered to pay $200 restitution (§ 1202.4, subd. (b)). At the March 12, 2006 sentencing hearing, the trial court revoked probation, sentenced appellant to state prison, and imposed a $1,500 restitution fine and a matching $1,500 parole revocation fine.
It is settled that a trial court may not increase the amount of a previously imposed restitution fine upon revocation of probation. (People v. Arata, supra, 118 Cal.App.4th at pp. 201-203; People v. Johnson (2003) 114 Cal.App.4th 284, 306-307; People v. Chambers (1998) 65 Cal.App.4th 819, 822-823.) We accordingly modify the judgment in case number 2002029505 and reduce the restitution fine to $200 (§ 1202.4, subd. (b)) and reduce the parole revocation fine to $200 (§ 1202.45).
Victim Restitution
Appellant next argues that the trial court erred in ordering $2,317.14 victim restitution in case number 2004045483. (§ 1202.4, subd. (f).) Pursuant to the negotiated plea, appellant entered a plea of guilty to forgery of access card information (count 2; § 484e, subd. (d)) and the trial court dismissed a vandalism count involving a different victim (count 1; § 594, subd. (b)(1)). At the sentencing hearing, appellant was ordered to pay $2,317.14 direct restitution to the victim on the vandalism count. (§ 1202.4, subd. (f).)
Citing People v. Lai (2006) 138 Cal.App.4th 1227, appellant argues that victim restitution may only be ordered for losses caused by criminal conduct on which he was convicted. There, the defendant was convicted by jury of welfare fraud and the trial court ordered victim restitution for loses suffered before the dates charged in the criminal complaint. (Id., at p. 1235.) The Court of Appeal held that " section 1202.4 limits restitution to losses caused by the criminal conduct for which the defendant was convicted. Therefore, section 1202.4 does not support that portion of the restitution order of Lai's sentence attributable to fraudulently obtained aid before the charged period." (Id., at p. 1249.)
Unlike People v. Lai, supra, appellant entered into a plea agreement which included a Harvey waiver (People v. Harvey (1979) 25 Cal.3d 754) (Harvey) permitting the trial court to consider the dismissed count at sentencing. The order to pay victim restitution complied with section 1192.3, subdivision (b) which provides: " If restitution is imposed which is attributable to a count dismissed pursuant to a plea bargain, . . . the court shall obtain a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754 from the defendant as to the dismissed count."
We reject the argument that victim restitution may only be ordered on a dismissed count that is related to the count on which appellant pled guilty (i.e., forgery of card access information). Article I, section 28, subdivision (b) of the California Constitution, also known as Proposition 8, states in pertinent: " Restitution shall be ordered from the convicted person[] in every case, regardless of the sentence or disposition imposed, in which a crime victim suffers a loss, unless compelling and extraordinary reasons exist to the contrary." (See e.g., People v. Carbajal (1995) 10 Cal.4th 1114, 1122 [victim restitution ordered as term of probation]; People v. Beck (1993) 17 Cal.App.4th 209, 215-216 [state prison sentence imposed; victim restitution ordered on dismissed count].) Section 1192.3 " clearly recognizes that restitution ordered on dismissed counts is valid provided the plea under which payment of restitution is made a condition was 'freely and voluntarily made, there is factual basis for the plea, and the plea and all conditions are approved by the court.' " (People v. Beck, supra, 17 Cakl.App.4th at p. 216.) We see no basis for distinguishing conditions of probation from prison sentences in the context of a Harvey waiver and Proposition 8. (Id., at pp. 216-222.)
Appellant negotiated a favorable plea agreement that included a Harvey waiver and agreement to pay victim restitution.[3] There was no requirement that the plea agreement specifically refer to restitution on the dismissed count. (See e.g., People v. Campbell (1994) 21 Cal.App.4th 825, 829-830; Cal. Crim. Law: Procedure and Practice (Cont'd. Ed. Bar 2006) § 40.3A, p. 1226.) The probation report requested $2,317.14 direct restitution to the vandalism victim, Philip Chang. (People v. Gillard (1997) 57 Cal.App.4th 136, 165, fn. 18 [probation report put defendant on notice that restitution was sought].) Appellant did not object to the restitution order or move to withdraw his plea, thereby waiving the issue on appeal. (People v. Walker (1991) 54 Cal.3d 1013, 1023; People v. Foster (1993) 14 Cal.App.4th 939, 944.)
In case number 2002029505 the judgment is modified to reduce the $1,500 restitution fine to $200 (§ 1202.4, subd. (b)) and to reduce the $1,500 parole revocation fine to $200 (§ 1202.45). The trial court is directed to issue an amended abstract of judgment reflecting the reduced fines and to forward a certified copy of the amended abstract of judgment to the Department of Corrections. As modified, the judgments are affirmed.
NOT TO BE PUBLISHED.
YEGAN, Acting P.J.
We concur:
COFFEE, J.
PERREN, J.
Bruce A. Clark, Judge
______________________________
California Appellate Project, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Margaret E. Maxwell, Supervising Deputy Attorney General, Erika D. Jackson, Deputy Attorney General, for Plaintiff and Respondent.
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[1] All statutory references are to the Penal Code.
[2] The trial court struck the prior strike enhancement and sentenced appellant to 10 years 4 months based on the following sentence calculation: In case number 2002029505 appellant was sentenced to two years for second degree commercial burglary (§ 459), plus eight months for dissuading a witness by force (§ 136.1, subd. (c)(1)), plus five years on the serious felony enhancement (§ 667, subd. (a)(1)). In the three other cases, the trial court imposed consecutive sentences of 16 months for first degree residential burglary (§ 459; case number 2002001677), 8 months for forgery (§ 470, subd. (d); case number 2002029142) and 8 months for forgery of access card information (§ 484e, subd. (d); case number 2004045383).
[3] Appellant signed a written plea agreement stating: " I may be ordered to pay restitution to the victim. I understand that I am entitled to a judicial determination of the amount of restitution and that, unless otherwise ordered, the probation and sentencing hearing will constitute the hearing on the amount of restitution."
