Filed 6/11/15 P. v. Perez CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----




THE PEOPLE,                                                                                  C077137

                   Plaintiff and Respondent,                                     (Super. Ct. No. 09F05993)

         v.

TIMOTHY ALEN PEREZ,

                   Defendant and Appellant.




         Defendant Timothy Alen Perez pled no contest to five counts of forcible lewd
conduct upon two victims under the age of 14 years (counts two through five [victim
S. M.] and count ten [victim C. E.]) in exchange for a stipulated state prison sentence of
40 years and the dismissal of the remaining counts (count one [victim S. R.], counts six
through nine [victim S. M.], and count eleven [victim C. E.]) and the multiple victim
allegation.




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       The trial court imposed the stipulated sentence and ordered defendant to pay
victim restitution in an amount to be determined on the counts to which he pled as well as
the dismissed counts.
       Defendant appeals, contending the trial court erred in imposing victim restitution
on the dismissed counts since he did not enter a waiver pursuant to People v. Harvey
(1979) 25 Cal.3d 754. The People concede the issue except as to count eleven, for which
the People claim a Harvey waiver was not required because the offense is transactionally
related to the offense charged in count ten.
       We will accept the People’s concession and order the judgment modified
accordingly. With respect to count eleven, defendant has not carried his burden to show
that the count is not transactionally related to count ten.
                                            FACTS
        Between June 2, 2003, and May 31, 2004, and on separate occasions, defendant
used force and/or fear and touched nine-year-old S. M.’s back with his penis, touched her
vagina with his fingers, and touched her chest (counts two through five).
       Sometime between December 1, 2008, and December 19, 2008, defendant used
his hand to touch the vagina of nine-year-old C. E. who felt she could not get away
(count ten).
                                        DISCUSSION
       Article I, section 28, subdivision (b)(13)(A) of the California Constitution
provides, “It is the unequivocal intention of the People of the State of California that all
persons who suffer losses as a result of criminal activity shall have the right to seek and
secure restitution from the persons convicted of the crimes causing the losses they
suffer.”
       Harvey held that “[i]mplicit in . . . a plea bargain . . . is the understanding (in the
absence of a contrary agreement) that defendant will suffer no adverse sentencing
consequences by reason of the facts underlying, and solely pertaining to, the dismissed

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count.” (People v. Harvey, supra, 25 Cal.3d at p. 758; see People v. Martin (2010)
51 Cal.4th 75, 80.) In the absence of a Harvey waiver, victim restitution may be ordered
for a dismissed count that is “transactionally related” to an offense to which the
defendant has entered a plea. (Harvey, at p. 758.) An offense may be considered
transactionally related when it circumstantially relates to the admitted offense. (Id. at
pp. 758-759; People v. Beagle (2004) 125 Cal.App.4th 415, 421 [“facts from which it
could at least be inferred that some action of the defendant giving rise to the dismissed
counts was also involved in the admitted count”].)
       Restitution imposed in violation of a trial court’s authority constitutes an
unauthorized sentence. (See People v. Slattery (2008) 167 Cal.App.4th 1091, 1094-1096
[victim restitution to hospital which was not a “direct” victim was an unauthorized
sentence].) “[T]he ‘unauthorized sentence’ concept constitutes a narrow exception to the
general requirement that only those claims properly raised and preserved by the parties
are reviewable on appeal. . . . [¶] Although the cases are varied, a sentence is generally
‘unauthorized’ where it could not lawfully be imposed under any circumstance in the
particular case.” (People v. Scott (1994) 9 Cal.4th 331, 354.)
       “We review the trial court’s restitution order for abuse of discretion. [Citation.] A
restitution order that is based on a demonstrable error of law constitutes an abuse of the
trial court’s discretion.” (People v. Woods (2008) 161 Cal.App.4th 1045, 1048-1049.)
       At sentencing, the prosecutor erroneously represented that defendant had entered a
Harvey waiver as to count one for which the victim should be awarded restitution. The
trial judge then erroneously stated that there had been a Harvey waiver as to all dismissed
counts and awarded victim restitution on those counts as well. The trial court stated those
counts were “dismissed with the aforementioned Harvey waivers and restitution would be
ordered in an amount to be determined.”
       Count one alleged that defendant molested S. R. on or about March 25, 2002.
S. R. is not named as a victim in any other count and none of the counts to which

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defendant entered a plea occurred on that date. Count one is not transactionally related as
a matter of law. The trial court imposed an unauthorized sentence in awarding victim
restitution to S. R.
       It was alleged in counts six through nine that defendant molested S. M. in 2008
(between July 1, 2008, and July 31, 2008 (count six), between July 1, 2008, and
September 1, 2008 (count seven), between September 1, 2008, and September 30, 2008
(counts eight and nine)). Although S. M. is the same victim as in counts two through five
to which defendant entered his plea, the offenses in counts six though nine were alleged
to have occurred in 2008, years after the dates alleged in counts two through five
(between June 2, 2003, and May 31, 2004 (counts two through five)). Counts six through
nine are not transactionally related as a matter of law. The trial court imposed an
unauthorized sentence in awarding victim restitution to S. M. on counts six through nine.
       Count ten alleged that defendant molested C. E. between December 1, 2008, and
December 19, 2008, by putting his hands on her vagina. This was the factual basis for
defendant’s plea to count ten. Count eleven alleged that defendant molested C. E.
between December 1, 2008, and December 19, 2008, by putting his penis on her vagina.
Count eleven was dismissed.
       In arguing that count eleven is transactionally related to count ten, the People
rely on the police report which reflects that during one night, defendant put his hands on
the victim and put his penis on her vagina. Defendant replies that it “appears that there
was one incident with one touching, either hand on vagina or penis on vagina.”
Defendant suggests that the victim restitution order on count ten “will cover the entire
incident” and that “[a] separate order of restitution on count eleven is not necessary.”
The issue with respect to count eleven is a factual one. Defendant has failed to
demonstrate that the trial court erred in imposing restitution for count eleven. Defendant
concedes count eleven involved his conduct upon the same victim on the same occasion
as count ten for which he was convicted. The record reflects the trial court did not err in

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impliedly finding that the offense in count eleven is transactionally related to the offense
in count ten.
                                      DISPOSITION
       The judgment is modified, striking the order of restitution on count one and counts
six through nine. As modified, the judgment is affirmed.



                                                        ROBIE                  , Acting P. J.



We concur:



      MAURO                 , J.



      HOCH                  , J.




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