P. v. Romo

Filed 10/16/07 P. v. Romo 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Lisa Jerriann Romo appeals from the judgments entered in two cases. In 2004, case number F355791 appellant pleaded guilty to forgery. (Pen. Code,  470, subd. (d).)[1] The imposition of sentence was suspended, and she was placed on probation. In 2005, case number F376707, appellant pleaded no contest to two counts of second degree burglary ( 459, 460) and two counts of forgery. ( 470, subd. (d).) She admitted a prior prison term within the meaning of section 667.5, subdivision (b). At the same time that appellant pleaded no contest in F376707, she admitted a violation of her probation in F355791.

In F376707, the trial court sentenced appellant to prison for six years. In F355791, she was sentenced to a concurrent prison term of two years. The trial court suspended execution of both sentences and committed appellant to the Civil Addict Program at the California Rehabilitation Center (CRC). CRC found her to be unsuitable for the program, and she was returned to the trial court for further proceedings. The trial court vacated the commitment to CRC and lifted the suspension of execution of the prison sentences.

Appellant contends that CRC staff erroneously excluded her from the Civil Addict Program.[2] In addition, she contends that in F376707 the trial court erroneously required her to pay restitution to victims in dismissed counts. We affirm.

Exclusion from CRC

Appellant was excluded from CRC pursuant to Welfare and Institutions Code section 3053, subdivision (a), which provides: "If at any time following receipt at the facility of a person committed pursuant to this article, the Director of Corrections concludes that the person, because of excessive criminality or for other relevant reason, including the person's eligibility for treatment pursuant to Section 1210.1 of the Penal Code, is not a fit subject for confinement or treatment in the narcotic detention, treatment, and rehabilitation facility, he or she shall return the person to the court in which the case originated for further proceedings on the criminal charges that the court may deem warranted."

We review the decision excluding appellant from CRC for abuse of discretion. (People v. Ramirez (1979) 25 Cal.3d 260, 264.) The decision was not an abuse of discretion if "there was a reasonable basis for the decision." (ABS Institute v. City of Lancaster (1994) 24 Cal.App.4th 285, 296.)

The record includes a letter from the warden of CRC setting forth the reasons for appellant's exclusion. The letter states that appellant was found to be "unsuitable for the program" because of her "dual case status under both a Felon Commitment and a Civil Addict Commitment." The felon commitment was based upon her violation of parole in a previous case. The letter asserts: "[A] person while serving a parole revocation term, may not be committed to the Civil Addict Program."

The letter indicates that appellant was not excluded from CRC because of "excessive criminality." (Welf. & Inst. Code,  3053, subd. (a).) "Therefore, the validity of the return must rest upon the second basis, 'other relevant reason.' " (People v. Pate (1965) 234 Cal.App.2d 273, 274.) "The quoted phrase does not give unbounded discretion to the director to reject a person from the program. The 'other reason,' to be 'relevant,' must relate to his fitness for 'confinement or treatment in a rehabilitation facility.' [Citation.]" (People v. Hannagan (1967) 248 Cal.App.2d 107, 111.)

CRC staff did not abuse their discretion in excluding appellant from the program because of her dual commitment status as a civil addict and a felon serving a parole revocation prison term. CRC staff could have reasonably concluded that, in view of appellant's failure to perform satisfactorily while on parole, she was not a fit candidate for rehabilitation in the drug program provided by CRC.

Restitution

In F376707, appellant was charged with 30 counts: nine counts of second degree burglary ( 459, 460); ten counts of forgery ( 470, subd. (d)); four counts of receiving stolen property ( 496, subd. (a)); two counts of petty theft with a prior ( 666); one count of possession of a completed financial document with intent to defraud ( 475, subd. (c)); one count of possession of an unfinished financial document with intent to defraud ( 475, subd. (b)); one count of grand theft of access cards ( 484e, subd. (b)); one count of transfer of personal identifying information with intent to defraud ( 530.5, subd. (d)); and one count of possession of a controlled substance. (Health & Saf. Code,  11377, subd. (a).) (CT 4-11) Appellant pleaded no contest to only four counts, and the remaining 26 counts were dismissed. The trial court also dismissed a prior prison term allegation within the meaning of section 667.5, subdivision (b). Appellant was ordered to pay restitution to the victims in both the counts to which she had pleaded no contest and the counts that had been dismissed. The total amount of restitution was $5,501.50. Appellant contends that the trial court erroneously ordered her to pay restitution on the dismissed counts.

As part of the plea bargain whereby 26 counts and a prior prison term allegation were dismissed, appellant expressly agreed in open court "that if restitution is needed in any of the counts, charges or cases that are still pending [or] which may not be filed or which will be dismissed against you, that the court in determining sentence will order you to make such restitution as it deems necessary for these counts, charges or cases."

Because appellant's payment of restitution on dismissed counts was an express element of the plea bargain, appellant is precluded from challenging the trial court's order requiring her to pay restitution on dismissed counts. (People v. Amin (2000) 85 Cal.App.4th 58, 62 ["Having agreed to pay restitution as part of her plea bargain, appellant cannot validly challenge the order requiring her to pay restitution."]; see also People v. Hester (2000) 22 Cal.4th 290, 295 [" 'When a defendant maintains that the trial court's sentence violates rules which would have required the imposition of a more lenient sentence, yet the defendant avoided a potentially harsher sentence by entering into the plea bargain, it may be implied that the defendant waived any rights under such rules by choosing to accept the plea bargain.' "]; People v. Nguyen (1993) 13 Cal.App.4th 114, 123 ["defendants who have received the benefit of their bargain should not be allowed to 'trifle with courts' by attempting to better the bargain through the appellate process"].)

In any event, the trial court did not err in ordering restitution on the dismissed counts because appellant's agreement permitting such restitution constituted a Harveywaiver. (People v. Harvey (1979) 25 Cal.3d 754.) "A Harvey waiver permits a trial court to consider facts underlying dismissed counts in determining the appropriate disposition for the offense of which the defendant was convicted." (People v. Moser (1996) 50 Cal.App.4th 130, 132-133; see also People v. Beck (1993) 17 Cal.App.4th 209, 217 ["Because restitution on the dismissed counts was part of the plea bargain and was a condition of appellant's plea, and there being no dispute that appellant's plea was freely and voluntarily made, had a factual basis, and was approved by the court, the court did not err in ordering restitution on [the dismissed counts]."].)

Appellant contends that, despite the Harveywaiver, the trial court "had no jurisdiction to order" restitution on the dismissed counts because they "were completely unrelated [to the counts on which he was convicted], in that they involved different commercial establishments and different dates and times." Appellant appears to be arguing that a Harveywaiver cannot encompass dismissed counts involving different victims and crimes committed on different occasions. Appellant, however, has not cited any cases that so hold.

Disposition

The judgment is affirmed.
NOT TO BE PUBLISHED.

YEGAN, Acting P.J.

We concur:

COFFEE, J.

PERREN, J.

Charles S. Cramdall, Judge

Superior Court County of San Luis Obispo

______________________________

California Appellate Project, under appointment by the Court of Appeal, Jonathan B. Steiner, Executive Director and Richard B. Lennon, Staff Attorney, for Appellant.

Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, Catherine Okawa Kohm, Deputy Attorney General, for Plaintiff and Respondent.

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[1] All statutory references are to the Penal Code unless otherwise stated.

[2] As to this issue, appellant obtained a certificate of probable cause from the trial court. ( 1237.5.)