Filed 4/9/13 P. v. Gomez CA4/1
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               COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                             DIVISION ONE

                                      STATE OF CALIFORNIA



THE PEOPLE,                                                         D061952

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD230452)

JOSEPH GOMEZ,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of San Diego County,

Charles R. Gill, Judge. Affirmed in part, reversed in part and remanded.



         Joseph Gomez pleaded guilty to two counts of robbery and to possession

for sale and transportation of a controlled substance. The court dismissed nine

counts of robbery with a Harvey waiver (People v. Harvey (1979) 25 Cal.3d 754

(Harvey)) and ordered Gomez to pay restitution, including to the victims of the

dismissed counts. Gomez appeals, contending the trial court erred in (1) finding

his Harvey waiver prevented him from presenting evidence at the restitution
hearing that his conduct did not cause the victims' losses, and (2) denying his

request to order funds seized from his home be paid to victims as restitution. We

agree that a Harvey waiver does not prohibit a defendant from presenting evidence

regarding causation at a restitution hearing. Accordingly, we reverse the portion

of the judgment awarding restitution to the victims of the dismissed counts and

remand the issue to the trial court to hold a further restitution hearing consistent

with this opinion. In all other respects, we affirm the judgment.

               FACTUAL AND PROCEDURAL BACKGROUND

       From February to September 2010, an individual robbed five pharmacies in

Mira Mesa, Poway and Escondido. In each robbery, the suspect stole prescription

narcotics, such as oxycontin and hydrocodone. In October 2010, Escondido police

arrested Gomez for the robberies. During a search of Gomez's residence, the

police seized prescription narcotics and $12,090.

       The People charged Gomez with eleven counts of robbery, one count of

possession for sale of a controlled substance, and one count of transporting a

controlled substance. Gomez entered a plea agreement, admitting to two counts of

robbery and to possession for sale and transportation of a controlled substance.

The plea agreement included a Harvey waiver, which allowed the court to

consider the nine dismissed robbery counts for purposes of sentencing and

restitution.

       At his sentencing, Gomez objected to restitution for the victims identified

with the dismissed counts. The court set a restitution hearing to determine the

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issue. At the restitution hearing, Gomez argued that he should be able to present

evidence regarding whether he caused the victims' losses. The court ruled

Gomez's Harvey waiver precluded him from presenting evidence concerning

causation at the restitution hearing. It then ordered Gomez to pay restitution in the

amount of $34,400.50 to the victims identified in the dismissed counts.

                                    DISCUSSION

                              I. Scope of Harvey Waiver

       Gomez argues the trial court erred in finding his Harvey waiver prevented

him from presenting evidence at the restitution hearing that his conduct did not

cause the victims' losses. We agree.

A. General Legal Principles

       In general, we review a trial court's order of restitution for abuse of

discretion. (People v. Giordano (2007) 42 Cal.4th 644, 663.) "However, when

the propriety of a restitution order turns on the interpretation of a statute, a

question of law is raised," which we review de novo. (People v. Williams (2010)

184 Cal.App.4th 142, 146.)

       The California Constitution provides a victim the right to receive restitution

from persons convicted of crimes which caused a loss to the victim. (Cal. Const.,

art. I, § 28, subd. (b), par. (13)(A).) To ensure this right, courts shall order

defendants to pay restitution to the victims who suffered economic loss "as a result

of the defendant's conduct." (Pen. Code, § 1202.4, subd. (f).) (All subsequent

statutory references are to the Penal Code.)

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       Section 1202.4 also provides defendants with a statutory right to challenge

the amount of restitution. (§ 1202.4, subd. (f)(1).) Inherent in this right to

challenge the amount of restitution is the right to argue that the claimed economic

loss was not a result of the defendant's conduct. (People v. Chappelone (2010)

183 Cal.App.4th 1159, 1180 [limiting restitution to the loss in value of returned

stolen property]; People v. Millard (2009) 175 Cal.App.4th 7, 41–42 [limiting

restitution based on the doctrine of comparative negligence]; People v. Rivera

(1989) 212 Cal.App.3d 1153, 1162 [denying restitution for receipt of stolen

property because defendant was not responsible for the theft].)

       Once a victim makes a prima facie case for restitution, the burden shifts to

the defendant to prove the amount of loss claimed by the victim is some other

value. (People v. Millard, supra, 175 Cal.App.4th at p. 26.) In order to rebut the

victim's evidence, the defendant must present evidence to refute the victim's prima

facie case for the restitution amount. (See ibid.) If a defendant could not present

evidence, this burden shift would be pointless. Accordingly, section 1202.4

provides defendants with a right to present evidence at a restitution hearing that

their conduct did not cause the victim's loss.

       A standard Harvey waiver allows the sentencing judge to consider a

defendant's entire criminal history, including any unfiled or dismissed charges,

when the judge orders restitution. (People v. Goulart (1990) 224 Cal.App.3d 71,

80.) Therefore, a defendant could be ordered to pay restitution to the victims of

dismissed counts if the defendant agreed to a Harvey waiver, even if the victims'

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losses did not arise from criminal activity associated with the counts to which the

defendant pleaded guilty. (See § 1192.3 [requires a Harvey waiver when a

defendant agrees to restitution for dismissed nonfelony charges].)

       A standard Harvey waiver, however, does not explicitly state a defendant

agrees to relinquish or abandon his or her right to dispute the determination of the

amount of restitution, including the right to present evidence. And in the context

of a plea agreement, courts look to "the specific language of the agreement to

ascertain the expressed intent of the parties" in order to define the scope of a

waiver. (People v. Nguyen (1993) 13 Cal.App.4th 114, 120.) Thus, a Harvey

waiver does not prevent a defendant from presenting evidence at a restitution

hearing.

B. Analysis

       Gomez agreed to a standard Harvey waiver. In doing so, he acknowledged

that "[t]he sentencing judge may consider [his] prior criminal history and the

entire factual background of the case, including any unfiled, dismissed or stricken

charges or allegations or cases when granting probation, ordering restitution or

imposing sentence." Nothing in Gomez's Harvey waiver states he waived his right

to present evidence at his restitution hearing. Based on this standard Harvey

waiver, Gomez only agreed the court could consider the facts of the dismissed

charges when ordering restitution. Accordingly, Gomez did not waive his right to

present evidence at his restitution hearing.



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       The Attorney General, alternatively, contends that when Gomez stipulated

to the facts of the preliminary hearing, he stipulated to "his involvement in the

dismissed counts." We disagree with this contention.

       Paragraph 15 of Gomez's plea form required him to describe the facts "as to

each charge and allegation" to which he pleaded guilty. Paragraph one of the

same form listed those specific charges and allegations. In paragraph 15, Gomez

wrote in the words, "submit to the preliminary hearing transcript."

       Paragraph 15 is one way to verify the factual basis for a plea agreement as

required by section 1192.5. (People v. Holmes (2004) 32 Cal.4th 432, 438–442

[discussing the requirement and history for the factual basis in plea agreements].)

When a defendant initials and submits to the preliminary hearing transcript in a

plea agreement, the defendant admits to the facts of the preliminary hearing with

respect to the charges to which the defendant is pleading guilty, nothing more.

Therefore, when Gomez wrote, "submit to the preliminary hearing transcript,"

Gomez submitted to the facts from the transcript with respect to the charges to

which he pleaded guilty, not the dismissed charges. "[A]n informed 'Harvey

waiver' cannot be treated as tantamount to a guilty plea to the dismissed or

uncharged crimes." (People v. Myers (1984) 157 Cal.App.3d 1162, 1168.)

Otherwise, defendants such as Gomez, by agreeing to the Harvey waiver, would

be worse off in a restitution hearing than if they had gone to trial and were

convicted on the dismissed counts.



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       Based on the foregoing, we reverse the portion of the judgment awarding

restitution on the dismissed counts and remand for the trial court to conduct a

further restitution hearing where Gomez will be allowed to present evidence and

argue causation. Although we conclude Gomez may present evidence at a

restitution hearing, we do not pass judgment on the merits of that evidence or on

the amount of restitution to be awarded to the victims.

                     II. Application of Seized Funds to Restitution

A. Additional Background

       At the restitution hearing, Gomez requested that the court apply the

$12,090 seized from his apartment to the payment of restitution. The court denied

Gomez's motion without prejudice, stating it was not certain it had jurisdiction to

decide the matter.

       We requested supplemental briefing from the parties on the issue of

jurisdiction. In its supplemental briefing, the Attorney General requested we take

judicial notice of a Declaration of Forfeiture by the U.S. Department of Justice,

Drug Enforcement Administration (DEA), dated February 10, 2011. The Attorney

General subsequently submitted a certified copy of the Declaration of Forfeiture.

That document provides the DEA declared the $12,090 seized from Gomez

forfeited to the United States pursuant to title 19 United States Code section 1609.

Gomez opposed the Attorney General's request for judicial notice.




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B. Analysis

       Gomez argues the money seized by Escondido police should be applied to

victim restitution pursuant to the Victims' Bill of Rights Act of 2008: Marsy's

Law, which enhanced many state constitutional rights of victims. In particular,

California's Constitution was amended to provide that "[a]ll monetary payments,

monies, and property collected from any person who has been ordered to make

restitution shall be first applied to pay the amounts ordered as restitution to the

victim." (Cal. Const., art. I, § 28, subd. (b)(13)(c).) Gomez argues this provision

confers jurisdiction on a trial court to order distribution of seized money. We

reject Gomez's arguments.

       As a preliminary matter, we take judicial notice of the DEA's Declaration

of Forfeiture. The Evidence Code permits a reviewing court to take judicial notice

of any matter specified in Evidence Code section 452. (Evid. Code, § 459, subd.

(a).) Accordingly, we may take judicial notice of official acts of the executive

department of the United States. (Evid. Code, § 452, subd. (c).)

       The DEA seized the $12,090 recovered from Gomez's home. This act

removed the property from the court's jurisdiction. (People v. Icenogle (1985) 164

Cal.App.3d 620, 624 [holding a criminal court does not possess money seized by

federal agents; thus the money was not subject to a motion before that court].)

Therefore, the court did not have the ability to apply the seized funds to victim

restitution. We affirm the court's denial of Gomez's motion.



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       Because we decide the court did not have jurisdiction over the money

seized from Gomez, we decline to address the remainder of his contentions.

                                   DISPOSITION

       The portion of the judgment awarding restitution on the dismissed counts is

reversed. In all other respects, the judgment is affirmed. The matter is remanded

to the trial court with directions to hold a restitution hearing in accordance with

this opinion.



                                                         MCINTYRE, Acting P. J.

WE CONCUR:

AARON, J.

IRION, J.




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