P. v. Barajas CA5

California Court of Appeal Jul 11, 2013 No. F065506Unpublished

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Holding. The court held that the trial court committed prejudicial error by failing to ensure the defendant's presence at a postjudgment restitution hearing, as the defendant might have successfully challenged the restitution award based on the plea agreement's limitations.

Issues

Did the trial court commit prejudicial error by failing to require the defendant's presence at a postjudgment restitution hearing?
Was the error of the defendant's absence at the restitution hearing harmless beyond a reasonable doubt?

Disposition. reversed in part and affirmed in part

Quotations verified verbatim against the opinion

“Defendant contends, and respondent agrees, he had a constitutional and statutory right to be present at the restitution portion of his sentencing hearing.”

“In the unique circumstances of this case, we cannot conclude the error was harmless beyond a reasonable doubt.”

“The judgment is reversed insofar as it imposes restitution on defendant.”

Filed 7/11/13 P. v. Barajas CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

THE PEOPLE, F065506 Plaintiff and Respondent, (Super. Ct. No. CRM000508) v.

JOE TELEVARA BARAJAS, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Merced County. Marc A. Garcia, Judge. Robert L.S. Angres, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and John G. McLean, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Kane, Acting P.J., Detjen, J. and Peña, J.

This is an appeal from a postjudgment modification of sentence to impose restitution pursuant to the court’s reservation of jurisdiction to do so at the original sentencing. Defendant and appellant Joe Televara Barajas contends the court committed prejudicial error by failing to require his presence at the postjudgment hearing. Respondent contends the error was harmless. We cannot agree. We reverse the judgment in part and affirm in part. FACTS AND PROCEDURAL HISTORY On October 14, 2008, defendant shot Joseph Salas in the leg and shot at Chad Villanueva, slightly wounding him. In a criminal complaint filed May 8, 2009, defendant was charged with attempted murder of Salas (Pen. Code, §§ 187, 664) in count 1; assault with a firearm on Villanueva (Pen. Code, § 245, subd. (a)(2)) in count 2; and possession of a firearm by a felon (former Pen. Code, § 12021, subd. (a)(1)) in count 3. Gang and firearm enhancements were alleged as to counts 1 and 2. On April 7, 2010, defendant pled no contest to count 1, attempted murder of Salas, and admitted amended enhancements as part of a plea bargain for a total prison term of 16 years. All remaining counts and enhancements were dismissed by the prosecutor. In connection with this plea bargain, defendant executed an advisement and waiver of rights form in which, among other terms, he agreed to dismissal of charges in a separate case “with a Harvey waiver.”1 On November 8, 2010, defendant was permitted to withdraw from the plea bargain. The parties then entered into a new plea bargain in which defendant pled no contest to count 2, assault with a firearm on Villanueva, and admitted a Penal Code section 12022.5, subdivision (a), enhancement, with an operative sentence of 12 years in

P. v. Barajas CA5

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