(Super. Ct. Nos. CM026920 & CM031889)
The opinion of the court was delivered by: Duarte , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Pursuant to a plea bargain, defendant Matthew Ryan Hayes*fn1 pled no contest to two counts of first degree burglary (Pen. Code,*fn2 §§ 459, 460); in return, several counts of receiving stolen property were dismissed. Defendant seeks appellate review of the trial court's order requiring him to pay $1858.86 in restitution for a home security system installed by the victim of one of the dismissed counts. (§ 1202.4.) Defendant contends that, because he was not present at that specific burglary, he did not cause the victim's loss, and the restitution order is contrary to the legislative intent of section 1202.4.
We conclude the restitution order was proper based on defendant's active and ongoing participation in various burglaries, which the trial court properly considered pursuant to defendant's Harvey*fn3 waiver, which expressly allowed the trial court to consider for restitution purposes defendant's prior criminal history and entire factual background of the case. We therefore affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
In October 2009, victim Natalie Guiliano reported a residential burglary in which a $400 PlayStation 3, a $1000 laptop computer, and other items were stolen. A subsequent attempted use of the PlayStation led police to defendant, who was on probation. A probation search of defendant's residence revealed the stolen PlayStation and property (including a gun) stolen from other homes. Defendant ultimately told police he "fence[d]" stolen property for one Tim Schneider of no known address, though defendant intended to keep and pay Schneider for the PlayStation. Defendant said he was "just the 'driver'" for Schneider, and defendant never entered the homes. Schneider entered the homes and removed the property. Defendant said he did not know the source of the PlayStation and received it before becoming Schneider's getaway driver. When asked about how one knew which homes to hit, defendant said, "you just know."
In trial court case No. CM033189, the prosecution charged defendant with the following offenses occurring on November 17, 2009: (1) first degree residential burglary (§ 459) of a dwelling on El Monte in Chico; (2) first degree residential burglary (§ 459) of a dwelling on Manzanita in Chico; (3) possession of a firearm by a felon (§ 12021, subd. (a)(1)); (4) receiving stolen property (§ 496, subd. (a)) (a PlayStation 3) from a third burglary (the Guiliano home); (5) receiving stolen property (§ 496, subd. (a)) (a .357 revolver) from another victim; (6) receiving stolen property (§ 496, subd. (a)) from other burglary victims; and (7) receiving stolen property (§ 496, subd. (a)) from yet another burglary victim.
On February 18, 2010, defendant entered a plea agreement in case No. CM031889, in which he pled no contest to counts 1 and 2, first degree residential burglary (§ 459), and the remaining counts were dismissed with Harvey waivers. The plea agreement signed by defendant stated, "(HARVEY WAIVER) I STIPULATE THE SENTENCING JUDGE MAY CONSIDER MY 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."
Defendant's prior criminal history included the following:
On July 8, 2007, police officers investigating a string of burglaries were led to defendant's motel room, where they found stolen property, burglary tools, and drugs. In trial court case No. CM026920, defendant was convicted in August 2007 of (1) receiving stolen property (§ 496, subd. (a)); (2) possession of a smoking device (Health & Saf. Code, § 11364, subd. (a)); (3) possession of a controlled substance, Hydrocodone (Health & Saf. Code, § 11350, subd. (a)); (4) possession of burglar tools (§ 466); and (5) forgery (§ 484e, subd. (c)). The trial court placed defendant on formal probation for five years.
In January 2008, while defendant was on probation, a police officer initiated a traffic stop of defendant and found in his car controlled substances and personal property which defendant said he bought "cheaply" and admitted he believed was stolen property. The prosecution charged defendant with the drug offense and violation of probation. He admitted the probation violation; the drug offense was ...