The opinion of the court was delivered by: Nicholson, Acting P. 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A court may base a victim restitution order on unfiled charges if the defendant waives his right under People v. Harvey (1979) 25 Cal.3d 754, 758, not to suffer adverse consequences based on the facts underlying an uncharged crime or a dismissed count (a Harvey waiver). (People v. Goulart (1990) 224 Cal.App.3d 71, 80-81.) Had a Harvey waiver been obtained in this matter, we would not be required to reverse a victim restitution order that attempted to make the victim whole. However, the prosecutor did not seek a Harvey waiver, and defense counsel did not object when the trial court ordered restitution based on uncharged conduct. Faced with both an unauthorized sentence and the allegation by defendant's appellate counsel of ineffective assistance by defendant's trial counsel, we must reverse the trial court's order. In the absence of a Harvey waiver and where the defendant is sentenced to state prison, state law limits victim restitution to losses incurred due to the crimes for which defendant was convicted.
Defendant Brettford Tyler Sparks pleaded no contest to two counts of burglary (Pen. Code, § 459),*fn1 and seven counts of possessing a completed document with the intent to defraud. (§ 475, subd. (c).) He also admitted one prior strike for purposes of the "Three Strikes" law. (§ 667, subd. (c).) There was no Harvey waiver.
According to defendant's probation report, a police investigation determined defendant had written a total of 67 insufficient funds checks to several Nugget Markets from December 8, 2008, to January 6, 2009, the day of his arrest. The amount of those checks totaled $3,888.19. Each bad check generated a $25 bank fee, resulting in a total loss of $5,563.19.
At sentencing, the trial court stated there was victim restitution to Nugget Market in the amount of $5,563.19. It asked if the defense agreed to that amount or whether the amount of restitution had yet to be determined. Defense counsel turned to his client and asked, "[Defendant], do you agree to that amount?"
Defendant asked, "That's with their fees and 3,000?"
The court responded: "Three thousand in change was the actual losses from the checks, but you add their $25 per check fee on it and it comes to $5,563.19. [¶] The question is, do you have any evidence or argument you would like to present to contest that requested amount?"
Defendant said he did not. The court then set restitution to Nugget Market at $5,563.19. It also sentenced defendant to an aggregate state prison term of 14 years eight months, calculated as follows: the midterm of two years on the first burglary count, plus consecutive eight-month terms on the second burglary count and the seven insufficient funds checks counts, all doubled for the prior strike.
After obtaining a certificate of probable cause, defendant filed this appeal. He claims the trial court erred in ordering restitution beyond the seven ...