Metropolitan News-Enterprise

 

Monday, May 7, 2018

 

Page 1

 

Court of Appeal:

Agreement to Pay ‘Actual Restitution’ Entails Payments to Victims of Dismissed Counts

 

By a MetNews Staff Writer

 

The First District Court of Appeal has held that a defendant was properly ordered to pay restitution to victims of counts that were dismissed pursuant to a plea bargain, although the judge did not explain that this was what was meant by the phrase “actual restitution.”

Affirmance of the judgment, including the order for restitution to 27 victims in an amount approaching $650,000, came Thursday in an unpublished opinion by Div. Two’s presiding justice, J. Anthony Kline.

Defendant Johnny Fobbs on Dec. 5, 2016, pled no contest to six counts of first degree burglary and one count of attempted first degree burglary. In exchange for the plea, 26 counts of first degree burglary were dropped, and he was sentenced Feb. 10, 2017 to 34 years and eight months in prison, plus making “actual restitution”—with Fobbs confirming orally and writing that he understood this.

The appeal was founded on Penal Code §1192.3(b), which says:

“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 from the defendant as to the dismissed count.”

A Harvey waiver permits a court, in sentencing, to consider dismissed counts. In Harvey, it was held that such counts could not be considered in connection with aggravating or enhancing the sentence.

No Court Admonishment

Fobbs argued on appeal:

“Because the Harvey waiver issue was only mentioned after Fobbs had pled guilty, and never by Fobbs himself, the pleas and admissions were not made knowingly and intelligently as the trial court never advised Fobbs of the consequences of a Harvey waiver.”

Kline declared:

“Defendant’s criteria are too severe. There is no authority that it must be the trial judge who does all of the advising, or that a particular form of words must be used. The established test for the validity of waivers attending guilty pleas is whether the plea is determined to be voluntary and intelligent under the totality of the circumstances….According to this standard, we have no difficulty concluding defendant impliedly made a waiver that satisfied the statutory text.

“It is reasonable to assume that defense counsel explained the contents of the change-of-plea declaration to defendant prior to defendant actually changing his pleas. This explanation would include the term ‘actual restitution,’ which needs little or no translation.”

Career Criminal

The jurist pointed out in a footnote:

“Defendant is a career criminal, and it is not unreasonable to conclude he had previously come to understand the concept of restitution to the victims of his crimes.”

Fobbs and two confederates were alleged to have stolen more than stole more than $500,000 worth of property in a string of residential burglaries, primarily in San Mateo County. Police apprehended him following a car chase succeeded by a chase on foot and found in his pockets loot from one of the burglaries.

He was held in custody following inability to make bail in the amount of $10 million.

The case is People v. Fobbs, A151012.

 

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