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Name: People v. Weatherton
Case #: A140186
Court: CA Court of Appeal
District 1 DCA
Division: 2
Opinion Date: 07/09/2015

Defendant who made a Harvey waiver as part of a plea deal was not entitled to an evidentiary hearing to establish that no restitution was owed to the victim of a dismissed charge because the defendant did not commit the offense. Weatherton was charged with assaulting Jenkins with a firearm and inflicting great bodily injury, as well as other offenses and a strike prior. He entered a guilty plea to two charges that did not include the assault count, and admitted the strike. At two points in the change of plea form, he acknowledged making a Harvey waiver for restitution. The court advised him that it could consider the dismissed counts in determining the restitution. At a subsequent restitution hearing, Weatherton was ordered to pay Jenkins $22,141.08, the amount that her insurer had paid for treatment of a gunshot injury. Weatherton was not allowed to present evidence regarding his liability. On appeal, he argued that the denial deprived him of his due process right to present evidence at the restitution hearing that would controvert his culpability for the dismissed counts. Held: Affirmed. When a defendant makes a Harvey waiver, the trial court may take account of the facts underlying, and pertaining to, the dismissed counts, and a court considering victim restitution has an even broader authorization. Although defendants have a due process right to a restitution hearing to determine the value of a victim’s losses, the focus is on the amount of loss. Here, when Weatherton made his Harvey waiver, he personally agreed that restitution to Jenkins for the dismissed counts was a reserved issue. Only the amount of the restitution remained at issue, not whether he was responsible for the crime. Having expressly agreed to the plea, and having received its benefits, Weatherton could not repudiate it by trying to reinterpret the facts underlying the dismissed counts in his favor.