P. v. Provencio CA4/1
Carmen Provencio entered into a plea bargain under which she pleaded guilty to two securities-related offenses in exchange for dismissal of 126 other counts. She initialed a provision on her change of plea form acknowledging that "[t]he sentencing judge may consider . . . dismissed or stricken charges . . . when . . . ordering restitution"—a provision known as a Harvey waiver. The trial court later ordered her to pay nearly $4 million in restitution, which consisted primarily of losses incurred in connection with the dismissed counts. Defendant contends this was error because her Harvey waiver was invalid and, without it, the court lacked the authority to order restitution on the dismissed counts. The Attorney General contends this constitutes a challenge to the validity of defendant's guilty plea that required her to obtain a certificate of probable cause (Pen. Code, § 1237.5), which she admittedly did not do. We agree, and dismiss the appeal as inoperative.
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