Filed 1/12/23 P. v. Wright CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B319212
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA076641)
v.
JOHN EDWARD WRIGHT,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Kathleen Blanchard, Judge. Affirmed.
Micah Reyner, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Idan Ivri and Gabriel Bradley, Deputy
Attorneys General, for Plaintiff and Respondent.
_________________
John Edward Wright appeals from a restitution order
requiring him to pay $1,176.93 to Rasa Zumaiti to install security
equipment at her home. Wright was charged with first degree
robbery and first degree burglary of Zumaiti’s home, but the
charges were dismissed pursuant to a plea agreement in which
Wright pleaded no contest to two counts of second degree robbery
of other victims. Wright contends the trial court erred in
ordering restitution for the security equipment because Penal
Code section 1202.4, subdivision (f)(3)(J),1 limits restitution for a
victim’s home security expenses to cases involving a violent
felony or a violation of section 273.5 (willfully inflicting corporal
injury on a spouse, cohabitant, or other specified victims).
Because Wright stipulated as part of the plea agreement
that the trial court could consider the facts underlying the
dismissed counts (both violent felonies) in awarding restitution,
we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Complaint and Wright’s Plea Agreement
Wright was charged in an amended felony complaint with
first degree burglary, person present, on June 14, 2019 of a
dwelling occupied by Zumaiti (§ 459; count 1); second degree
robbery of Jorge Molina on June 20, 2019 (§ 211; count 2);
misdemeanor brandishing a replica gun on June 20, 2019
(§ 417.4; count 3); second degree robbery of Fredi Herrera on
June 22, 2019 (§ 211; count 4); second degree robbery of Heather
Parnell on June 24, 2019 (§ 211; count 5); and first degree
residential robbery of Zumaiti on June 14, 2019 (§ 211; count 6).
1 Further statutory references are to the Penal Code.
2
The complaint specially alleged as to count 4 that Wright
personally used a deadly weapon in the commission of the
robbery of Herrera (§ 12022, subd. (b)(1)) and inflicted great
bodily injury on Herrera (§ 12022.7, subd. (a)). The complaint
also alleged Wright had a prior strike conviction of robbery
within the meaning of section 667, subdivision (a)(1), and the
three strikes law (§§ 667, subds. (b)-(j), 1170.12).
On September 4, 2019 Wright entered into a negotiated
plea agreement under which he pleaded no contest to two counts
of second degree robbery of Molina and Herrera (counts 2 and 4)
and admitted the special allegation he inflicted great bodily
injury on Herrera. Wright also pleaded no contest to one count of
first degree burglary charged in a separate case (no. MA076173).
The remaining charges, including the counts involving Zumaiti
(counts 1 and 6), were dismissed pursuant to the plea agreement.
Wright initialed the statement on the “plea form with
explanations and waiver of rights—felony” that “I understand
and agree that the sentencing judge may consider facts
underlying dismissed counts to determine restitution and to
sentence me on the counts to which I am entering a plea.” At the
time Wright entered the plea, the trial court2 inquired whether
Wright had read the form or his attorney read it to him, and
Wright replied, “Yes.” Wright also responded in the affirmative
when asked whether he understood “everything on the form
including all of [his] constitutional rights and consequences of
[the] plea.” Wright confirmed he had sufficient time to discuss
the waiver form with his attorney and had initialed and signed
the form. The court advised Wright, “If there’s any direct victim
restitution in this case, [you are] going to be responsible for that
2 Judge Robert G. Chu.
3
under Penal Code Section 1202.4(f).” Wright stated he
understood the consequences of the plea and did not have any
questions about the court’s advisements.
On September 25, 2019 the trial court3 sentenced Wright to
an aggregate state prison term of eight years four months,
comprised of the middle term of three years on count 4 for second
degree robbery, plus three years for the great bodily injury
enhancement, plus one year on count 2 for second degree robbery
(one-third the middle term of three years), plus one year four
months on the first degree burglary charge in case number
MA076173 (one-third the middle term of four years). Among
other fines and fees, the court imposed a restitution fine of $2,400
(§ 1202.4, subd. (b)) and suspended a parole revocation
restitution fine in the same amount (§ 1202.45).
B. The Restitution Hearing
A victim restitution hearing was held on March 18, 2022.4
Zumaiti testified that at 2:00 or 3:00 in the morning of June 14,
2019 she was at her home when Wright came to her door.
Zumaiti opened the door and saw that another man, who had
been obscured by the door, was waiting outside with Wright. The
man “leaped in and pinned [Zumaiti] down and turned [her] head
away from [her] purse.” After some time, both men left her home.
When Zumaiti was able to stand up, she found that at least $500
in cash had been taken from her purse, and two cartons of
cigarettes had been removed from her refrigerator. Zumaiti
3 Judge Charles A. Chung sentenced Wright. At the
initial plea hearing, Wright agreed that a different judge could
sentence him at a later date.
4 Judge Kathleen Blanchard presided over the
restitution hearing.
4
stated each carton of cigarettes was worth $90. In addition, one
of her bedroom drawers had been pulled out.
After the incident, Zumaiti purchased a security door, and
her brother-in-law installed a video security system in her home.
The trial court admitted into evidence a receipt from an
electronics store showing the purchase on June 18, 2019 of a
digital security system with night vision cameras for $159.99,
plus $19.99 for an extended warranty, and a receipt from a home
improvement store showing the purchase on July 21, 2019 of a
security door for $316.95. Zumaiti installed the security
equipment to prevent this type of incident from happening again.
The People rested after the court admitted the two receipts
into evidence.5 The trial court found Zumaiti’s claimed economic
losses totaled $1,176.93 including the home security equipment,
cash, and cigarettes. Defense counsel argued, “I do want to object
to the security door and the security system. Those were
expenses that were supposed to protect [Zumaiti] in the future
against any attacks, or crimes of this nature. And they are
preventive measures and remedial measures. And I just want
the record to be clear that we’re objecting to those expenses.” The
court found the Penal Code specifically allowed reimbursement of
5 Wright waived his right to appear at the victim
restitution hearing. Defense counsel did not call any witnesses.
He offered as exhibit A an “Offender Restitution Payment
History” form from the California Department of Corrections and
Rehabilitation (CDCR) showing that Wright paid $2,400 toward
the restitution fine, arguing Wright’s payments should be applied
first to satisfy any direct victim restitution the court might order.
The trial court held its jurisdiction was limited to determining
the amount of direct victim restitution and Wright would have to
raise with CDCR or another entity the allocation of payments he
had already made. Wright does not raise this issue on appeal.
5
those types of preventative measures, and it ordered restitution
to be paid to Zumaiti in the amount of $1,176.93.6
Wright timely appealed from the restitution order.
DISCUSSION
A. Governing Law and Standard of Review
“Under the California Constitution, as amended in 1982 by
Proposition 8 (commonly known as The Victims’ Bill of Rights),
every crime victim has a right to be compensated by the
defendant for losses incurred as a result of the defendant’s crime.
(Cal. Const., art. I, § 28, subd. (b)(13).)” (People v. Martinez
(2017) 2 Cal.5th 1093, 1100.) Consistent with this constitutional
provision, section 1202.4, subdivision (a)(1), provides, “It is the
intent of the Legislature that a victim of crime who incurs an
economic loss as a result of the commission of a crime shall
receive restitution directly from a defendant convicted of that
crime.” Section 1202.4, subdivision (f), similarly states, with
limited exceptions not applicable here, “[I]n every case in which a
victim has suffered economic loss as a result of the defendant’s
conduct, the court shall require that the defendant make
restitution to the victim or victims in an amount established by
6 The trial court at the victim restitution hearing
stated restitution was ordered in the amount of $1,076.93,
instead of the correct total of claimed expenses ($1,176.93).
However, earlier in the hearing, the court made an express
determination Zumaiti’s claimed expenses totaled $1,176.93,
which is consistent with the court’s minute order and the
March 18, 2022 victim restitution order signed by the court.
Wright acknowledges the court ordered restitution in the amount
of $1,176.93.
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court order, based on the amount of loss claimed by the victim or
victims or any other showing to the court.”
Section 1202.4, subdivision (f)(3), specifies that “[t]o the
extent possible, the restitution order . . . shall be of a dollar
amount that is sufficient to fully reimburse the victim or victims
for every determined economic loss incurred as the result of the
defendant’s criminal conduct, including, but not limited to,”
12 enumerated categories of victim expenses. As relevant here,
subdivision (f)(3)(J) includes “[e]xpenses to install or increase
residential security incurred related to . . . a violent felony as
defined in subdivision (c) of Section 667.5, including, but not
limited to, a home security device or system, or replacing or
increasing the number of locks.”
We review a restitution order for an abuse of discretion.
(People v. Giordano (2007) 42 Cal.4th 644, 663; People v. Baudoin
(2022) 85 Cal.App.5th 1184, 1191.) “‘However, a restitution order
“resting upon a ‘“demonstrable error of law”’ constitutes an abuse
of the court’s discretion.”’” (Baudoin, at 1191; accord, People v.
Millard (2009) 175 Cal.App.4th 7, 26; see People v. Williams
(2010) 184 Cal.App.4th 142, 146 [“when the propriety of a
restitution order turns on the interpretation of a statute, a
question of law is raised, which is subject to de novo review on
appeal”].)
B. The Trial Court Properly Awarded Restitution to Zumaiti
for Home Security Equipment
Wright contends the trial court erred in awarding
restitution to Zumaiti for the security door and video security
system because the counts relating to Zumaiti were dismissed,
and “[a]s part of his plea, [Wright] never conceded that he
committed a violent crime against [Zumaiti],” nor did the trial
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court make a finding a violent crime was committed. The People
respond that Wright was charged with two violent felonies
against Zumaiti, and those charges were dismissed as part of a
plea bargain that included a waiver pursuant to People v. Harvey
(1979) 25 Cal.3d 754 (Harvey waiver), under which Wright agreed
the sentencing judge could consider the facts underlying the
dismissed counts in ordering restitution.7 We agree that
pursuant to the Harvey waiver, the trial court properly ordered
restitution for the security equipment installed by Zumaiti based
on Wright’s commission of two violent felonies.
The Supreme Court in People v. Harvey, supra, 25 Cal.3d at
page 758 held that a trial court may not impose any adverse
sentencing consequences on a defendant as a result of a plea
bargain based on dismissed counts absent an agreement by the
defendant. (See People v. Brooks (2017) 15 Cal.App.5th 331, 334,
fn. 3 [“A Harvey waiver is a defendant’s agreement, as part of a
plea bargain, to allow the sentencing court to consider facts
supporting dismissed counts.”]; People v. Weatherton (2015)
238 Cal.App.4th 676, 678 (Weatherton) [“facts underlying charges
7 The People contend Wright forfeited his argument
the trial court was barred under section 1202.4,
subdivision (f)(3)(J), from ordering restitution for security
equipment by failing to raise it below. However, defense counsel
objected to restitution for the security door and video security
system on the grounds they were “preventive measures and
remedial measures.” Although Wright’s attorney did not
specifically argue Wright had not committed a violent felony, his
objection adequately apprised the prosecution and the court of
Wright’s contention security equipment was not an authorized
category of restitution expenses. We therefore decline to find
forfeiture. (See In re S.B. (2004) 32 Cal.4th 1287, 1293
[“application of the forfeiture rule is not automatic”].)
8
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
in Harvey that the trial court may consider the facts supporting
the dismissed count by agreement of the defendant was extended
in People v. Baumann (1985) 176 Cal.App.3d 67, 74-75 to cover
restitution, and was later codified in section 1192.3, subdivision
(b). (See § 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 [Harvey] from the
defendant as to the dismissed count.”]; Weatherton, at p. 678.)
As discussed, Wright’s plea agreement included a Harvey
waiver in that he agreed the sentencing judge could “consider
facts underlying dismissed counts to determine restitution” in
sentencing him on the counts to which he pleaded. Wright
concedes the Harvey waiver he signed is valid and enforceable.
But without citing any authority, Wright asserts he may
challenge whether Zumaiti’s testimony established he had
committed a violent felony despite his agreement the same
testimony could be considered in determining restitution.
Wright’s argument misapprehends the effect of the Harvey
waiver.
The prosecution is not required at a victim restitution
hearing to prove the defendant committed the offenses dismissed
under a plea agreement that includes a Harvey waiver.
Weatherton, supra, 238 Cal.App.4th 676 is directly on point.
There, Donnie Weatherton shot his housekeeper in the hand and
prevented her from leaving his apartment to seek medical
attention. (Id. at p. 679.) Facing nine charges, including assault
with a firearm and false imprisonment, Weatherton agreed to
plead guilty to two counts of being a felon in possession of a
firearm, and in exchange the prosecution dismissed the
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remaining charges with a Harvey waiver. (Ibid.) At the victim
restitution hearing, the trial court admitted evidence the
housekeeper’s insurance paid more than $22,000 for medical
treatment of her gunshot wound. (Id. at p. 680.) Weatherton
requested he be allowed to testify that he acted in self-defense,
arguing he did not owe restitution because he was not liable for
committing a crime against the housekeeper. (Id. at pp. 680-
681.) Further, his Harvey waiver “‘allows the [c]ourt to consider
uncharged conduct, but . . . it’s not an admission to the conduct. I
think the burden is still on the People to prove that by a
preponderance of the evidence.’” (Id. at p. 680.)
The Court of Appeal, in affirming the trial court’s
restitution order (and denial of Weatherton’s request to testify),
explained, “Weatherton cites no authority that the prosecution is
required to prove the corpus delicti of the dismissed counts,
whether by a preponderance of the evidence or other standard,
above and beyond what was produced at the preliminary
examination. [¶] While it is one thing to respond that a victim
has inflated a claim for restitution, or may even have no claim at
all, it is an entirely different matter to assert, as Weatherton
does, that while it is undisputed that the victim suffered
compensable losses, he bears no responsibility in that there was
no crime because he was acting in self-defense.” (Weatherton,
supra, 239 Cal.App.4th at p. 685.) The court reasoned, “[i]t
strains credulity to think the concept of a Harvey waiver meant
to approve such a situation [allowing the defendant to litigate
liability]. The obvious point of the concept was to regularize and
streamline the circumstances in which dismissed charges could
be considered at the time of sentencing on charges to which the
defendant had pled guilty. . . . [I]f Weatherton’s contention is
accepted, a Harvey waiver’s utility would be undermined, if not
severely curtailed. Indeed, it could truly be asked that if a
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Harvey waiver could be so easily repudiated and evaded, what
would be the point of section 1192.3, subdivision (b) requiring
one?” (Ibid.)
In his reply brief, Wright argues Weatherton is inapposite
because Wright conceded his obligation to pay restitution to
Zumaiti for the cigarettes and cash that were taken and only
challenges his liability for Zumaiti’s security expenses on the
basis he did not commit a violent felony under section 1202.4,
subdivision (f)(3)(J). This is a distinction without a difference.
As discussed, under a Harvey waiver, the prosecution is not
required to prove the facts that show the defendant committed
the crime. Here, the complaint charged Wright with two violent
felonies, as defined in section 667.5, subdivision (c), based on
factual allegations that on June 14, 2019, Wright robbed Zumaiti
by force and burgled her home while she was present. In
entering his plea, Wright understood that restitution for Zumaiti
would be based on these alleged facts and charged violent
felonies.8 Therefore, Zumaiti’s recovery of home security
8 Because we hold the prosecution was not required to
prove Wright’s liability for commission of a violent felony at the
victim restitution hearing, we do not reach whether a victim’s
home security expenses are recoverable for nonviolent felonies
given the language in section 1202.4, subdivision (f)(3),
authorizing restitution for a victim’s expenses “including, but not
limited to” home security expenses recoverable for violent
felonies under subdivision (f)(3)(J)). (See People v. Brooks (2018)
23 Cal.App.5th 932, 942-943 [section 1202.4, subdivision (f), did
not bar recovery by victims of nonviolent felonies for home
security expenses because statute provided for recovery
“‘including, but not limited to’” home security expenses for
victims of violent felonies]; but see People v. Salas (2017)
9 Cal.App.5th 736, 740 [victim could not recover home security
11
expenses was proper under section 1202.4, subdivision (f)(3)(J).
Only the amount of the loss remained in dispute.
DISPOSITION
The restitution order is affirmed.
FEUER, J.
We concur:
SEGAL, Acting P.J. HOWARD, J.*
expenses because section 1202.4, subdivision (f), explicitly limited
recovery of home security expenses to victims of violent felonies,
and defendant was not convicted of a violent felony].)
In Salas, supra, 9 Cal.App.5th at page 739, the defendant
pleaded no contest to one count of felony domestic violence under
section 273.5, subdivision (a), but at the time section 1202.4,
subdivision (f)(3)(J), provided for recovery of home security
expenses only for victims of violent felonies. In 2018 the
Legislature amended section 1202.4, subdivision (f)(3)(J), to apply
to commission of violent felonies and domestic violence under
section 273.5. (Assembly Bill No. 2226 (2017-2018 Reg. Sess.)
§ 1.)
* Judge of the Marin County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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