P. v. Encinas CA2/6

Filed 3/25/13 P. v. Encinas CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B242934 (Super. Ct. No. 1282198) Plaintiff and Respondent, (Santa Barbara County)

v.

CARLOS ARMANDO ENCINAS,

Defendant and Appellant.

Carlos Armando Encinas appeals a $9,985.98 victim restitution order following his negotiated plea agreement and his no contest plea to assault with force likely to produce great bodily injury. (Pen. Code, § 245, subd. (a)(1).)1 More than two years after his sentencing hearing, the People filed an application for a victim restitution order. The trial court granted it. We conclude, among other things, that: 1) Encinas's negotiated plea agreement did not preclude the trial court from modifying the sentence to include a victim restitution order, and 2) the court was not required to obtain a Harvey waiver before making that restitution order. We affirm. FACTS On April 19, 2008, Encinas stabbed Jacob Tell with a knife at a bar in Santa Maria, California. Tell sustained "two stab wounds to the lower abdomen."

1 All statutory references are to the Penal Code.

When the police arrived, Encinas tried to run away. A police officer chased him and shoved him "to the ground." Encinas struggled and tried "to conceal something underneath him." It was a knife. Encinas unsuccessfully attempted to "kick the knife" away. The officer took him into custody. The district attorney filed a felony complaint alleging attempted premeditated murder (§§ 664, 187, subd. (a), 189) (count 1), with special allegations that Encinas's knife attack on Tell was a serious felony, that he used a deadly weapon, and inflicted great bodily injury (§§ 1192.7, subd. (c)(8), (23); former 12022, subd. (b)(1); former 12022.7, subd. (a)); assault with personal use of a deadly weapon (§ 245, subd. (a)(1)) (count 2), with special allegations that the knife attack on Tell was a serious felony (§ 1192.7, subd. (c)(31)); and resisting arrest (§ 69) (count 3). The district attorney amended the complaint to add count 4 - assault with force likely to produce great bodily injury - a "non-strike felony." (§ 245, subd. (a)(1).) On the same day, pursuant to the terms of a negotiated plea agreement, Encinas pled no contest to count 4, and the other counts and special allegations were dismissed. On November 24, 2008, Encinas was sentenced to two years in state prison. The trial court imposed two $400 fines. (§§ 1202.4, 1202.45.) On July 12, 2011, the People filed an "application" for a modification of the sentence to include a victim restitution order. The prosecutor said Tell "submitted a claim with the Victim Compensation and Government Claims Board" and received $9,985.98 as compensation for "medical expenses." The People requested the trial court to make a restitution order payable to the "Victim Compensation Board" for the money it paid to Tell. The trial court held a hearing on restitution and ordered Encinas to pay the amount requested to the "State Victim Compensation Board, to reimburse payments to the victim from the Restitution Fund."