People v. Mazzarella, B210479 (Cal. App. 7/29/2009)

• Decision Date: 29 July 2009
• Docket Number: B210479
• Court: California Court of Appeals Court of Appeals
• Parties: THE PEOPLE, Plaintiff and Respondent, v. JAYSON DEVON MAZZARELLA, Defendant and Appellant.

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THE PEOPLE, Plaintiff and Respondent, v. JAYSON DEVON MAZZARELLA, Defendant and Appellant.

B210479

Court of Appeals of California, Second District, Division Five

Filed July 29, 2009

Not to be Published in official Reports

Appeal from a judgment of the Superior Court of Los Angeles County, No. MA042545, Steven D. Ogden, Judge. Affirmed as modified.

Rachel Lederman, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan Sullivan Pithey, Scott A. Taryle and Theresa A. Patterson, Deputy Attorneys General, for Plaintiff and Respondent.

TURNER, P. J.

Defendant, Jason Devon Mazzarella, appeals after he pled no contest to a single count of first degree burglary. (Pen. Code,¹ § 459.) Defendant challenges the $1,099 restitution order. We asked the parties to brief the issue of whether the $10 section 1202.5, subdivision (a) fine should be modified. We modify the section 1202.5, subdivision (a) fine but otherwise affirm the judgment.

First, defendant argues the order he pay $1,099 to Beverly Ann Garcia, the victim in count 1, must be reversed because no Harvey waiver was secured. Defendant was charged as follows in four counts of a felony complaint: count 1—first degree burglary and the victim was Ms. Garcia; count 2—unlawful driving of an automobile in violation of Vehicle Code section 10851, subdivision (a) and the victim was Randall Wesley; count 3—first degree burglary and the victim was James McClendon; and count 4—first degree burglary and the victim was Jeff Stevens. On July 7, 2008, defendant pled no contest to the first degree burglary charge in count 3 which identified Mr. McClendon as the victim. On July 7, 2008, the parties agreed that the restitution issue could be resolved later on July 30, 2008. On July 30, 2008, the trial court imposed a $1,099 restitution order in favor of Ms. Garcia. As defendant only pled no contest to count 3, which listed Mr. McClendon as the victim, defense counsel objected to the order to pay $1,099 in restitution to Ms. Garcia on the sole ground that no Harvey waiver had been taken. On July 31, 2008, the trial court issued a probable cause certificate. The notice of appeal, which was reviewed by the trial court prior to issuing the probable cause certificate, indicates defendant is challenging the validity of his plea.

Defendant argues that the $1,099 restitution order in favor of Ms. Garcia must be reversed because: "At the plea hearing below, [defendant] was never advised of the consequences of a Harvey waiver, and he never made such a waiver on the record. [Defendant] was never advised that, absent a Harvey waiver, it was his right to be ordered to pay restitution only as to the charge to which he was pleading. [Defendant] never signed a plea form to a Harvey waiver. Absent such advisement and waiver, it cannot be concluded that [defendant] freely, voluntarily and intelligently submitted to restitution on the dismissed charges."

In People v. Harvey (1979) 25 Cal.3d 754, 758, Associate Justice Frank K. Richardson explained that a trial court, in selecting one of the three possible terms when imposing a determinate sentence, may not rely on the facts underlying a dismissed count as an aggravating factor. Justice Richardson set forth the applicable rule as follows: "[I]t would be improper and unfair to permit the sentencing court to consider any of the facts underlying the dismissed count three for purposes of aggravating or enhancing defendant's sentence. Count three was dismissed in consideration of defendant's agreement to plead guilty to counts one and two. Implicit in such a plea bargain, we think, is the understanding (in the absence of any contrary agreement) that defendant will suffer no adverse sentencing consequences by reason of the facts underlying, and solely pertaining to, the dismissed count. The People have cited no contrary authorities." (People v,. Harvey, supra, 25 Cal.3d at pp. 758.) As can be noted, Justice Richardson explained the rule enunciated in Harvey did not apply if there was an "agreement" the facts underlying a dismissed count could be considered in selecting an aggravated sentence.

Appellate courts refer to the "agreement" described by Associate Justice Richardson in Harvey in sundry fashion including: the "`so-called "Harvey waiver"'" (In re T.C. (2009) 173 Cal.App.4th 837, 842); the "agreement is known as a `Harvey waiver'" (People v. Munoz (2007) 155 Cal.App.4th 160, 167; a "Harvey waiver . . . is a `contrary agreement' permitting the sentencing judge to consider the facts relating to dismissed charges" (People v. Barasa (2002) 103 Cal.App.4th 287, 291); the "`"contrary agreement" proviso is what has since been called a "Harvey waiver'"" (People v. Draut (1999) 73 Cal.App.4th 577, 580, fn. 2, quoting People v. Beck (1993) 17 Cal.App.4th 209, 215); "The phrase `Harvey waiver' means the defendant has agreed that the court may consider facts behind dismissed or uncharged counts" (In re Josh W. (1997) 55 Cal.App.4th 1, 5, fn. 2); "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 People v. Floyd. P. (1988) 198 Cal.App.3d 608, 611, fn. 1); "the court could consider the dismissed count for purposes of restitution" (People v. Campbell (1994) 21 Cal.App.4th 825, 830); "A defendant who signs the typical waiver form agrees to allow the sentencing judge to consider his entire criminal history, including any unfiled or dismissed charges" (People v. Goulart (1990) 224 Cal.App.3d 71, 80); "A Harvey waiver may permit consideration of dismissed charges to determine restitution" (People v. Lafantasie (1986) 178 Cal.App.3d 758, 764); and "The defendant's agreement is what has become known popularly, if somewhat incorrectly, as the `Harvey waiver.'" (People v. Myers (1984) 157 Cal.App.3d 1162, 1167.)

Defendant argues that section 1192.3 required a Harvey waiver be secured from him before a restitution order could be entered in Ms. Garcia's favor. In 1982, after the Harvey decision was filed, the voters added article I, section 28, subdivision (b) to the California Constitution which guaranteed crime victims the right to restitution. (People v. Birkett (1999) 21 Cal.4th 226, 243-244; People v. Broussard (1993) 5 Cal.4th 1067, 1072-1073.) In 1983, in response to this constitutional amendment, the Legislature adopted several statutes which provided limited restitution rights to crime victims. Our Supreme Court described the immediate legislative response to the adoption of the new constitutional restitution right: "The new legislation, enacted in 1983, included: Penal Code section 1203.04, requiring trial courts to order restitution from defendants convicted of crimes and placed on probation; Welfare and Institutions Code section 729.6, imposing a similar requirement in all juvenile delinquency matters; Penal Code section 1202.4, requiring all persons convicted of a felony to pay a `restitution fine' of up to $10,000, payable into the restitution fund for victims of violent crime; and several laws designed to aid victims filing civil actions against persons convicted of crimes (§ 26820.4, subd. (b); former § 72055, subd. (b) [now subd. (c) ]; Code Civ. Proc., §§ 37, 340.3 & 1021.4; Pen. Code, § 1191.2; former Welf. & Inst. Code, § 656.2 [see now [], § 679.02]). The Legislature also amended section 13967 to provide that in every criminal case a person convicted of a crime must pay `restitution in the form of a penalty assessment' to the state and the county in which the offense was committed. Curiously, the Legislature did not enact legislation either requiring or authorizing trial courts to order defendants who were convicted of crimes but were not given probation to make restitution to any of the victims of their crimes." (Id. at p. 1073; see People v. Giordano (2007) 42 Cal.4th 644, 653.)

Beginning in 1985, a panel in Division One of the Fourth Appellate District used the term "Harvey waiver" to refer to the process where an accused allows the sentencing court to require restitution to a victim specified in a dismissed count. (People v. Baumann (1985) 176 Cal.App.3d 67, 76; see People v. Lafantasie, supra, 178 Cal.App.3d at pp. 763-764.) In Lafantasie, the Court of Appeal held, in the probation context, that a defendant convicted of unlawfully leaving an accident scene in violation of Vehicle Code section 20001 could not be required to pay the medical costs of a woman injured in an automobile collision. (Id. at pp. 761-764.) The Lafantasie opinion was based in large part on the California Supreme Court decision in People v. Richards (1976) 17 Cal.3d 614, 620-622 which sharply restricted a crime victim's restitution rights. (People v. Lafantasie, supra, 178 Cal.App.3d at pp. 763-764.) In 1986, the Legislature extended the right to restitution to cases where the defendant is sentenced to state prison effective January 1, 1987. (People v. Giordano, supra, 42 Cal.4th at p. 653; People v. Broussard, supra, 5 Cal.4th at p. 1074.) In 1984, statutory restitution rights in felony cases were based on sections 1202.4, subdivision (a) and 1203.1. (Stats. 1984, ch. 1340, § 2, pp. 4722-4723 [§1202.4, subd. (a)]; Stats. 1987, ch. 713, § 1, pp. 2249-2253; Stats. 1987, ch. 897, § 2, pp. 2866-2870 [§1203.1].)

It is in this context that in 1988 the Legislature adopted section 1192.3, subdivision (b) which uses the term "waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754" in reference to restitution to a victim named in a dismissed count. Section 1192.3 states in its entirety: "(a) A plea of guilty or nolo contendere to an accusatory pleading charging a public offense, other than a felony specified in ...