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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,
                                                                                           F065506
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. CRM000508)
                   v.

JOE TELEVARA BARAJAS,                                                                    OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Merced 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-

*        Before Kane, Acting P.J., Detjen, J. and Peña, J.
       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 criminal complaint filed May 8, 2009, 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.”1
       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



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.)



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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.” 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 People v.
Robertson (1989) 48 Cal.3d 18, 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



                                              3.
imposition of restitution based on payments to Salas was not contemplated by the plea
bargain. We believe he is entitled to present the Harvey issue to the trial court.
                                      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.




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