People v. Cain CA3

Filed 5/20/22 P. v. Cain CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C094492

Plaintiff and Respondent, (Super. Ct. No. 19FE010790)

v.

TIVON RAVI CAIN,

Defendant and Appellant.

Defendant Tivon Ravi Cain was charged with murder, two counts of attempted murder, and conspiracy to commit robbery, amongst other charges. Defendant pled no contest to conspiracy to commit robbery in exchange for a three-year prison term and the dismissal of the remaining charges. The trial court sentenced defendant to three years in prison and, pursuant to Penal Code1 section 1202.4, imposed restitution in an amount to be determined. On appeal, defendant contends the trial court erred by imposing restitution to the victims of the murder and attempted murder because defendant did not enter a waiver

1 Undesignated section references are to the Penal Code.

1

pursuant to People v. Harvey (1979) 25 Cal.3d 754. Because the losses for which restitution was imposed were a result of defendant’s admitted offense of conspiracy to commit robbery, we affirm. FACTUAL AND PROCEDURAL BACKGROUND2 On June 19, 2019, defendant and his codefendants were charged with the murder of Jaquan W. and the attempted murders of Dominique M. and Demarcus S. A plea was negotiated whereby defendant would plead no contest to conspiracy to commit robbery in exchange for a three-year prison term. At the plea hearing on March 5, 2021, the complaint was amended to include the conspiracy count, as well as six overt acts supporting the conspiracy.” After the complaint was amended, the prosecutor provided the factual basis for defendant’s plea, which the prosecutor based on the alleged overt acts: “As charged in Count 6 . . . the defendant . . . conspire[d] together and with another person, and persons whose identity is unknown, [to] commit the crime of robbery . . . . [¶] [P]ursuant to and for the purpose of carrying out the objects and purposes of the conspiracy, the defendant, with others, committed the following overt acts in the county of Sacramento: Specifically, the defendant, along with his charged codefendants, met at [a park] in Natomas. Following that meeting, they drove in tandem in three vehicles from that park to [an apartment complex] in Sacramento, [and] upon arrival, two vehicles stopped, not driven by [defendant], but by the codefendants, allowing [two codefendants] to exit [the vehicle] and enter the apartment complex on foot, waiting at the gate. [¶] [I]n furtherance of the conspiracy, a pair of three-way phone calls were made, including the defendant . . . . [D]uring the conspiracy, [two codefendants] fired multiple rounds at the