People v. Weatherton, 238 Cal. App. 4th 676

Defendant Donnie Weatherton shot Yasmin Jenkins on Dec. 24, 2011; charged with multiple felonies including assault with a firearm and several counts of being a felon in possession of a firearm.
Weatherton pleaded guilty to two felon-in-possession counts (including the date of the shooting), admitted a prior strike, and executed a Harvey waiver permitting the court to consider dismissed counts for sentencing and restitution.
The prosecutor dismissed the remaining counts (including the assault count naming Jenkins as victim) as part of the plea bargain; restitution to Jenkins was reserved for later determination.
At the restitution hearing the court received evidence Jenkins’s insurer paid $22,141.08 in medical bills; Jenkins refused to testify.
Weatherton sought to testify and present evidence denying he committed the dismissed offenses (claiming he acted in self-defense); the trial court excluded that evidence and ordered restitution in the insurer-paid amount.
On appeal the Court of Appeal affirmed: a Harvey waiver allows consideration of dismissed counts for restitution and does not require relitigation of the defendant’s culpability for dismissed counts at a restitution hearing; the defendant could contest amount but not the underlying occurrence of the crime.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a defendant who executed a Harvey waiver is entitled to an evidentiary hearing to contest that he committed the dismissed offenses at a restitution hearing	Harvey waiver permits consideration of dismissed counts; restitution may be ordered based on record and probation report; defendant may challenge amount but not relitigate culpability	Due process requires opportunity to present evidence (including defendant testimony) to disprove commission of dismissed offenses; prosecution must prove culpability by preponderance if contested	Court held Harvey waiver bars relitigation of the existence/occurrence of dismissed offenses at restitution; defendant may contest amount but not collaterally relitigate guilt; restitution order affirmed

People v. Harvey, 25 Cal.3d 754 (establishing that facts underlying dismissed charges may not be used to impose adverse consequences absent a defendant's waiver)
People v. Baumann, 176 Cal.App.3d 67 (discussing defendant’s opportunity to challenge restitution amount; restitution can reflect dismissed/uncharged conduct)
People v. Carbajal, 10 Cal.4th 1114 (reiterating broad discretion to order restitution for losses from related, dismissed, or acquitted conduct)
People v. Beck, 17 Cal.App.4th 209 (restating that restitution tied to dismissed counts included in plea bargain may be ordered when plea and waiver are valid)
People v. Martin, 51 Cal.4th 75 (summarizing the principle that plea bargains must be enforced as made)
People v. Hartley, 163 Cal.App.3d 126 (discussing the defendant’s obligation to challenge claimed restitution amounts and the court’s independent determination)
People v. Chappellone, 183 Cal.App.4th 1159 (noting defendant must show the claimed loss is incorrect)
People v. Lockwood, 214 Cal.App.4th 91 (reaffirming informal nature of restitution hearings and reliance on probation reports as prima facie evidence)
People v. Gemelli, 161 Cal.App.4th 1539 (on defendant’s burden to challenge restitution amount)