California Court of Appeals, First District, Second Division
San Mateo County Superior Court No. SC075972A Trial Judge: Honorable John W. Runde
[Copyrighted Material Omitted]
Law Offices of Hanlon & Rief, Stuart Hanlon and Nathan Robert Peterson for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Assistant Attorney General, Masha A. Dabiza, Na'Shaun Neal and Elizabeth W. Hereford, Deputy Attorneys General.
In People v. Harvey (1979) 25 Cal.3d 754, 758–759 [159 Cal.Rptr. 696, 602 P.2d 396] (Harvey) our Supreme Court held that facts underlying charges dismissed as part of a negotiated plea may not, absent contrary agreement by the defendant (now called a “Harvey waiver”), be used to impose adverse sentencing consequences. The principle expanded to cover victim restitution (e.g., People v. Baumann (1985) 176 Cal.App.3d 67, 74-75 [222 Cal.Rptr. 32]) and was soon codified. (Stats. 1988, ch. 287, § 1. p. 989, adding Pen. Code,  § 1192.3, subd. (b) ["If restitution is imposed which is attributable to a count dismissed pursuant to a plea bargain, ... the court shall obtain a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754 [159 Cal.Rptr. 696. 602 P.2d 396] from the defendant as to the dismissed count.''].)
The novel issue for decision here is whether, notwithstanding a Harvey waiver, a defendant is entitled to an evidentiary hearing in the hope of establishing that no restitution is owing to the victim of a dismissed charge because the defendant did not commit the offense, an issue that arises out of these circumstances:
On Christmas Eve 2011, Yasmin Jenkins was cleaning the apartment of 62-year-old, wheelchair-bound Donnie Weatherton. Instead of paying Jenkins as he promised, Weatherton shot her in her hand, and then would not let her leave to seek medical attention. A number of firearms were discovered when Weatherton’s apartment was searched on January 5, 2012.
Following a preliminary examination, Weatherton was charged by information with committing the following felonies: (1) assaulting Jenkins with a firearm and personally inflicting great bodily injury (§§ 245, subd. (a)(2), 12022.7, subd. (a)); (2) falsely imprisoning Jenkins by violence and the personal use of a firearm (§§ 236, 12022.5, subd. (a)); (3) being a past-convicted felon in possession of a firearm when he shot Jenkins (§ 29800, subd. (a)(1)); (4) unlawful possession of a firearm in a public place on January 5, 2012 (§ 25850, subd. (c)(1)); (5), (6), (7) and (9) being a past-convicted felon in possession of a firearm on or about January 5, 2012 (§ 29800, subd. (a)(1)); and (8) unauthorized possession of a firearm on or about January 5, 2012 (§ 30305, subd. (a)). It was further alleged in the information that Weatherton had a 1992 prior strike conviction for assault with a firearm.
Shortly thereafter Weatherton entered pleas of guilty to two charges, counts 3 and 7, of being a past-convicted felon in possession of a firearm on December 24, 2011, the date Jenkins was shot, and on or about January 5, 2012. Weatherton also admitted the prior strike allegation. At two points on the change of plea form, Weatherton acknowledged making a “Harvey waiver for restitution” and facing liability for “actual restitution per Harvey waiver.” This understanding was confirmed by the court prior to Weatherton changing his pleas: “Mr. Weatherton, the D. A. is willing to dismiss the other charges as long as you enter into a Harvey waiver, which means I can consider the other counts in ...