People v. Perez CA3

Filed 6/11/15 P. v. Perez CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C077137

Plaintiff and Respondent, (Super. Ct. No. 09F05993)

v.

TIMOTHY ALEN PEREZ,

Defendant and Appellant.

Defendant Timothy Alen Perez pled no contest to five counts of forcible lewd conduct upon two victims under the age of 14 years (counts two through five [victim S. M.] and count ten [victim C. E.]) in exchange for a stipulated state prison sentence of 40 years and the dismissal of the remaining counts (count one [victim S. R.], counts six through nine [victim S. M.], and count eleven [victim C. E.]) and the multiple victim allegation.

1

The trial court imposed the stipulated sentence and ordered defendant to pay victim restitution in an amount to be determined on the counts to which he pled as well as the dismissed counts. Defendant appeals, contending the trial court erred in imposing victim restitution on the dismissed counts since he did not enter a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754. The People concede the issue except as to count eleven, for which the People claim a Harvey waiver was not required because the offense is transactionally related to the offense charged in count ten. We will accept the People’s concession and order the judgment modified accordingly. With respect to count eleven, defendant has not carried his burden to show that the count is not transactionally related to count ten. FACTS Between June 2, 2003, and May 31, 2004, and on separate occasions, defendant used force and/or fear and touched nine-year-old S. M.’s back with his penis, touched her vagina with his fingers, and touched her chest (counts two through five). Sometime between December 1, 2008, and December 19, 2008, defendant used his hand to touch the vagina of nine-year-old C. E. who felt she could not get away (count ten). DISCUSSION Article I, section 28, subdivision (b)(13)(A) of the California Constitution provides, “It is the unequivocal intention of the People of the State of California that all persons who suffer losses as a result of criminal activity shall have the right to seek and secure restitution from the persons convicted of the crimes causing the losses they suffer.” Harvey held that “[i]mplicit in . . . a plea bargain . . . is the understanding (in the absence of a contrary agreement) that defendant will suffer no adverse sentencing consequences by reason of the facts underlying, and solely pertaining to, the dismissed