1

Filed 7/9/15

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

DONNIE WEATHERTON,

Defendant and Appellant.

 A140186

 (San Mateo County

 Super. Ct. No. SC075972A)

In People v. Harvey (1979) 25 Cal.3d 754, 758–759 (Harvey) our Supreme Court 

held that facts underlying charges dismissed as part of a negotiated plea may not, absent 

contrary agreement by the defendant (now called a “Harvey waiver”), be used to impose 

adverse sentencing consequences. The principle expanded to cover victim restitution 

(e.g., People v. Baumann (1985) 176 Cal.App.3d 67, 74–75), and was soon codified. 

(Stats. 1988, ch. 287, § 1, adding Pen. Code,1§ 1192.3, subd. (b) [“If restitution is 

imposed which is attributable to a count dismissed pursuant to a plea bargain, . . . the 

court shall obtain a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754 from the 

defendant as to the dismissed count.”].) 

The novel issue for decision here is whether, notwithstanding a Harvey waiver, a 

defendant is entitled to an evidentiary hearing in the hope of establishing that no 

restitution is owing to the victim of a dismissed charge because the defendant did not 

commit the offense, an issue that arises out of these circumstances:

On Christmas Eve 2011, Yasmin Jenkins was cleaning the apartment of 62-yearold, wheelchair-bound Donnie Weatherton. Instead of paying Jenkins as he promised, 

 

1

Statutory references are to the Penal Code.
2

Weatherton shot her in her hand, and then would not let her leave to seek medical 

attention. A number of firearms were discovered when Weatherton’s apartment was 

searched on January 5, 2012. 

Following a preliminary examination, Weatherton was charged by information 

with committing the following felonies: (1) assaulting Jenkins with a firearm and 

personally inflicting great bodily injury (§§ 245, subd. (a)(2), 12022.7, subd. (a)); (2) 

falsely imprisoning Jenkins by violence and the personal use of a firearm (§§ 236, 

12022.5, subd. (a)); (3) being a past-convicted felon in possession of a firearm when he 

shot Jenkins (§ 29800, subd. (a)(1)); (4) unlawful possession of a firearm in a public 

place on January 5, 2012 (§ 25850, subd. (c)(1)); (5), (6), (7) and (9) being a pastconvicted felon in possession of a firearm on or about January 5, 2012 (§ 29800, subd. 

(a)(1)); and (8) unauthorized possession of a firearm on or about January 5, 2012 

(§ 30305, subd. (a)). It was further alleged in the information that Weatherton had a 1992 

prior strike conviction for assault with a firearm. 

Shortly thereafter Weatherton entered pleas of guilty to two charges, counts 3 and 

7, of being a past-convicted felon in possession of a firearm on December 24, 2011, the 

date Jenkins was shot, and on or about January 5, 2012. Weatherton also admitted the 

prior strike allegation. At two points on the change of plea form, Weatherton 

acknowledged making a “Harvey waiver for restitution” and facing liability for “actual 

restitution per Harvey waiver.” This understanding was confirmed by the court prior to

Weatherton changing his pleas: “Mr. Weatherton, the D. A. is willing to dismiss the 

other charges as long as you enter into a Harvey waiver, which means I can consider the 

other counts in determining the sentence and can also order restitution with regards to the 

dismissed counts. Do you agree and enter into a Harvey waiver at this time?” 

Weatherton replied, “Yes.” 

At the sentencing hearing the court: heard and granted Weatherton’s motion to 

strike the prior conviction allegation; suspended imposition of sentence; admitted 

Weatherton to probation upon specified conditions; and reserved jurisdiction to determine 
3

restitution to Jenkins.

2

The court denied Jenkins’s request to speak, on the ground that 

“She is not the victim any more. She is not a victim in this case. That case was 

dismissed. So, she is not technically a victim.” 

At the restitution hearing held three months later, the court3received evidence that 

Jenkins’s insurer had paid $22,14l.08 for the treatment of her gunshot injury.4 However, 

Weatherton would not stipulate to this amount because, as his counsel explained: “Mr. 

Weatherton has always adamantly stated steadfastly that he never committed any crime 

against Ms. Jenkins,” and was present to testify to that effect. With respect to the Harvey

waiver, Weatherton’s counsel argued “it allows the Court to consider uncharged conduct, 

but . . . it’s not an admission to the conduct. I think the burden is still on the People to 

prove that by a preponderance of the evidence.” 

The court was not persuaded: “Looking at the minutes of the plea proceedings 

. . . , the pleas were to counts 3 and 7, which were violations of Penal Code section 

 

2

Probation was not the probation officer’s recommendation, which was clearly 

based on information authorized by the Harvey waiver: “It is noted that despite the 

defendant’s physical limitations, this is his second violent conviction involving a firearm. 

For this reason, he is not suitable for probation supervision and thus a commitment to the 

California Department of Corrections [and Rehabilitation] is recommended. . . . [¶]

Pursuant to [California Rules of Court, rule] 4.421, circumstances in aggravation include 

the defendant was armed with and used a weapon at the time of the commission of the 

crime and caused bodily injury to the victim, and the defendant took advantage of a 

position of trust in that he knew the victim. Further, the defendant has engaged in violent 

conduct that indicates a serious danger to society.” 

3

Judge John Runde presided at the restitution hearing. Both the hearing where 

Weatherton changed his pleas and the hearing at which he was sentenced had been before 

Judge Jonathan Karesh. At the sentencing hearing, Weatherton entered a waiver in 

accordance with People v. Arbuckle (1978) 22 Cal.3d 749, so that “another judge could 

hear just the issue of restitution.” Although Weatherton unsuccessfully sought to have 

the restitution issue decided by Judge Karesh, he does not press this point on appeal. 

4

Jenkins, who was not present at the hearing, had earlier advised the probation 

officer that she would seek restitution for economic losses other than her medical 

expenses. However, the subsequent restitution request was limited to hospital and 

surgical expenses. The documentation of that request, which was received in evidence 

without objection, was not included in the record on appeal. 
4

29800(a)[1], which were possession of a firearm by a felon. But the minutes say, quote, 

‘Dismissed counts may be considered at time of sentencing in re: Harvey.’ Dismissed 

counts would include Count 1, which was the . . . assault with a firearm charge [on 

Jenkins]. [¶] So it’s clear that the Harvey waiver embraced Count 1. [¶] Then looking 

again at the minutes of the sentencing . . . it says, quote, ‘Defendant shall make restitution 

in amount to be determined by the probation officer [sic]. Restitution to victim Yasmin 

Jenkins,’ end quote. . . . [¶] So the Court made a determination already at that sentence 

hearing that restitution would be ordered for Yasmin Jenkins. So that’s . . . a ship that has 

sailed, and the Court will not revisit that.” The court then ordered defendant to pay 

restitution to Jenkins in the amount of $22,141.08.

5

Weatherton challenges only the ruling that he could not present evidence, i.e., his 

testimony, disputing any liability for either of the two dismissed charges which posited 

Jenkins as the victim of Weatherton’s criminal acts. He contends that denial deprived him

of “his due process right to present evidence at the restitution hearing that would 

controvert his culpability for the dismissed counts.” The supporting argument runs as 

follows:

“It is unquestioned that restitution may be granted to a victim in a dismissed count 

so long as there is a valid Harvey waiver by the defendant. (Cal. Pen[.] Code, § 1192.3; 

People v. Ozkan (2004) 124 Cal.App.4th 1072, 1078; see also People v. Harvey (1979) 25 

Cal.3d 754, 758.) However, even where there is a valid Harvey waiver, if the defendant 

contests the allegations in the dismissed counts, the prosecution bears the burden of 

proving the allegations in said counts by a preponderance of the evidence. (People v. 

Baumann (1985) 176 Cal.App.3d 67, 80 (When the defendant denies having committed 

uncharged or dismissed offenses, the prosecution has the burden or proving the 

 

5

The postjudgment restitution order is appealable. (§ 1237, subd. (b); People v. 

Denham (2014) 222 Cal.App.4th 1210, 1213–1214; People v. DiMora (1992) 10 

Cal.App.4th 1545, 1549–1550.) Because Weatherton is not attacking the legality of his 

guilty pleas, he was not required to obtain a certificate of probable cause to prosecute this 

appeal. (§ 1237.5; People v. French (2008) 43 Cal.4th 36, 45; People v. Brown (2007) 

147 Cal.App.4th 1213, 1220.)
5

defendant’s culpability by a preponderance of the evidence.)” 

“While the judge [i.e., Judge Runde] was correct in noting that there was a valid 

Harvey waiver, he erred by denying Appellant his due process right to present evidence at 

the restitution hearing controverting the record from the preliminary hearing and showing 

that he was not culpable for the shooting of Jenkins. . . . Appellant was prepared to 

testify at the restitution hearing, as he was entitled to do, and the judge erred by refusing 

to hear his evidence and take it under consideration before determining that Jenkins was 

entitled to restitution.” 

Concerning Judge Runde’s “ship that has sailed” comment, Weatherton argues: 

“Judge Runde was also mistaken as to the determination made by the sentencing judge, 

Judge Karesh. There was no finding made by the sentencing judge as to the culpability of 

Appellant for any dismissed counts. In fact, Judge Karesh stated on the record that 

Yasmin Jenkins was ‘not a victim in this case’ and refused to allow her to testify as a 

victim. Judge Karesh did order a hearing on restitution, but that . . . is not a dispositive 

ruling that an alleged victim is entitled to restitution.” 

Finally, believing that Jenkins’s testimony at the preliminary examination was 

“destroyed,” and thus she had “zero credibility” after being “thoroughly impeached and 

contradicted,” Weatherton concludes that by using that testimony ‘the prosecution could 

not meet its burden for proving the assault charge.” The appropriate remedy, he 

concludes, is reversal for a new restitution hearing. 

Until this appeal there appears to be no reported decision directly challenging the 

logical and settled consequence of Harvey, namely, that “[b]ecause restitution on the 

dismissed counts was part of the plea bargain and was a condition of appellant’s plea, and 

there being no dispute that appellant’s plea was freely and voluntarily made, had factual 

basis, and was approved by the court, the court did not err in ordering restitution on [the 

dismissed counts].”6(People v. Beck (1993) 17 Cal.App.4th 209, 217.) In mounting that 

 

6 Our research did produce one instance of a less-than-direct challenge: People v. 

Goulart (1990) 224 Cal.App.3d 71. There, the defendant was caught systematically 

stealing energy from a utility. He pleaded guilty to one of eight counts for interfering 
6

challenge, Weatherton cites People v. Baumann, supra, 176 Cal.App.3d 67, where the 

defendant pled guilty to one count of embezzlement and five identical counts were 

dismissed. The defendant was admitted to probation on condition she make restitution to 

the victim in an amount that reflected the dismissed counts, as well as uncharged 

embezzlements.

Judging by the page he cites, Weatherton apparently relies on this passage in 

Baumann: “In People v. Hartley (1984) 163 Cal.App.3d 126, 130, it was said: ‘Since a 

defendant will learn of the amount of restitution recommended when [s]he reviews the 

probation report prior to sentencing, the defendant bears the burden at the hearing of 

proving that amount exceeds the replacement or repair cost.’ (Fn. omitted.) ‘The 

purposes of an order for restitution are . . . rehabilitating the offender and deterring future 

criminal conduct; these purposes differ from those underlying a civil restitution order. . . . 

Due process is considered satisfied in the criminal law as long as a separate hearing is 

held to determine the value of the victim’s loss. [Citation.] As noted, however, there is 

no requirement that the order be limited to the exact amount of loss in which the 

individual is actually found culpable.’ [Citation.]” (People v. Baumann, supra, 176 

Cal.App.3d, 67, 80.) The “As noted” is an obvious incorporation of the preceding 

paragraph: “The requirements of due process are satisfied by providing the defendant a 

hearing on ability to pay as well as the extent of the loss occasioned by the defendant’s 

criminal conduct. An order of restitution as a condition of probation is not an abuse of 

discretion as long as the defendant is given an opportunity to present evidence rebutting 

her civil liability at the sentencing hearing. [Citations.]” (Id. at pp. 79–80.)

 

with a power line in exchange for dismissal of the other seven, and one count of 

tampering with a utility meter. As a condition of probation, he was ordered to pay 

restitution for the energy he had stolen. (Id. at pp. 77–78.) The Court of Appeal rejected 

his claim that the amount of restitution ordered exceeded the scope of his Harvey waiver 

because it “took into account criminal acts, the prosecution of which was barred by the 

statute of limitations”: “[T]he statute of limitations does not bar a trial court from 

considering previous criminal acts . . . therefore, the amount ordered was not beyond the 

scope of Goulart’s Harvey waiver.” (Id. at p. 81.) It appears that the defendant Goulart, 

like Weatherton, was in effect arguing that there was no crime.
7

Neither the “extent of the loss occasioned by the defendant’s criminal conduct” 

nor the “opportunity to present evidence rebutting . . . civil liability” language in 

Baumann can—or should—be read as reopening the actual existence or occurrence of a

criminal act as alleged in a dismissed count. To do so would not only be contrary to the 

plain logic of Harvey, it would result in absurd consequences—and largely strip Harvey

of its intended utility. Baumann was obviously considering only the context of 

restitution, not a belated attempt to resolve the substantive issue of guilt. When the 

Supreme Court allowed that, with the appropriate waiver, a trial court could take account 

of “the facts underlying, and . . . pertaining to, the dismissed counts[s]” (Harvey, supra, 

25 Cal.3d 754, 758), it was clearly authorizing, because of the defendant’s personal 

acquiescence, a sentencing court to take cognizance of such relevant “facts” as might be 

shown from the court record.

A court considering victim restitution has an even broader authorization. 

Baumann acknowledged that liability for restitution is not co-extensive with 

demonstrated criminal culpability. Our Supreme Court has subsequently explained the 

broadened scope of that authorization, at the same time reiterating the point made in 

Baumann: “California courts have long interpreted the trial courts’ discretion to 

encompass the ordering of restitution as a condition of probation even when the loss was 

not necessarily caused by the criminal conduct underlying the conviction. . . .

[R]estitution has been found proper where the loss was caused by related conduct not 

resulting in a conviction [citation], by conduct underlying dismissed and uncharged 

counts [citation], and by conduct resulting in an acquittal7[citation]. There is no 

 

7

Thus, destroying Jenkins’s credibility would not guarantee that Weatherton 

would escape restitution. However tattered Jenkins’s credibility may have been at the 

conclusion of the preliminary examination, it satisfied the magistrate who ordered 

Weatherton held to answer for assaulting Jenkins. Having examined the transcript of that 

proceeding, we cannot conclude her testimony meets the exceptionally steep 

requirements for categorical rejection: “ ‘Testimony may be rejected only when it is 

inherently improbable or incredible, i.e., “ ‘unbelievable per se,’ ” physically impossible 

or “ ‘wholly unacceptable to reasonable minds.’ ” ’ ” (People v. Ennis (2010) 
8

requirement the restitution order be limited to the exact amount of the loss in which the 

defendant is actually found culpable, nor is there any requirement the order reflect the 

amount of damages that might be recoverable in a civil action.” (People v. Carbajal

(1995) 10 Cal.4th 1114, 1121.) 

Moreover, pursuant to constitutional mandate, the statutory scope of restitution has 

widened even further. (See Cal. Const., art. I, § 28, subd. (b) [“Restitution shall be 

ordered from the convicted persons in every case, regardless of the sentence or 

disposition imposed”]; § 1202.4, subds. (d) [“the court shall consider any relevant factors, 

including . . . losses as a result of the crime . . . [which] . . . may include pecuniary 

losses . . . as well as intangible losses, such as psychological harm caused by the crime”], 

(f)(3) [listing some expenses and losses]; People v. Williams (2010) 184 Cal.App.4th 142, 

147 [“A victim’s restitution right is to be broadly and liberally construed”].) Weatherton 

points to no authority suggesting that this expansive discretion is confined to 

probationary restitution.

Restitution hearings are intended to be informal. “ ‘ “Section 1202.4 does not, by 

its terms, require any particular kind of proof. However, the trial court is entitled to 

consider the probation report, and, as prima facie evidence of loss, may accept a property 

owner’s statement made in the probation report about the value of stolen or damaged 

property.” [Citations.] “ ‘This is so because a hearing to establish the amount of 

restitution does not require the formalities of other phases of a criminal prosecution. 

[Citation.] When the probation report includes information on the amount of the victim’s 

loss and a recommendation as to the amount of restitution, the defendant must come 

forward with contrary information to challenge that amount.’ ” [Citations.]’ ” (People v. 

Lockwood (2013) 214 Cal.App.4th 91, 96.) This is invariably a dollars and cents dispute. 

As we stated in People v. Chappellone (2010) 183 Cal.App.4th 1159, 1172, it is up to the 

defendant “ ‘ “to demonstrate that the amount of the loss is other than that claimed by the 

 

190 Cal.App.4th 721, 729.) There was consequently no disqualification to accepting it at 

the restitution hearing. 
9

victim,” ’ ” namely, that the amount claimed is excessive. (See People v. Gemelli (2008) 

161 Cal.App.4th 1539, 1543.)

The two decisions cited by Weatherton take due process no further. (See In re 

Brittany L. (2002) 99 Cal.App.4th 1381, 1391 [“statutory directive is meant to afford the 

minor a reasonable opportunity to challenge the accuracy or validity of the victims’

claimed losses. It is a crucial part of the overall statutory scheme, necessary to satisfy 

due process, and ensure fundamental fairness in the determination of the restitution 

ultimately ordered. [¶] In the present case the court refused to consider appellant’s 

proffered evidence challenging the amount and necessity of the victims’ claimed 

economic losses. [¶] The court’s action thus did not comply with the statutory directives 

. . . which expressly allow a minor to challenge the amount of the victims’ claimed loss”

(fn. omitted)]; People v. Hartley, supra, 163 Cal.App.3d 126, 130 [“At the conclusion of 

the hearing the trial court must then make an independent judicial determination of the 

amount of restitution the defendant shall be required to pay based on the available 

evidence of the replacement or repair cost of the stolen or damaged property.”].) 

Weatherton cites no authority that the prosecution is required to prove the corpus delicti 

of the dismissed counts, whether by a preponderance of the evidence or other standard, 

above and beyond what was produced at the preliminary examination.

While it is one thing to respond that a victim has inflated a claim for restitution, or 

may even have no claim at all, it is an entirely different matter to assert, as Weatherton 

does, that while it is undisputed that the victim suffered compensable losses, he bears no 

responsibility in that there was no crime because he was acting in self-defense. (See 

§ 197, subd. 2; People v. Goins (1991) 228 Cal.App.3d 511, 517.) The startled 

prosecutor, expecting to litigate only the restitution issue, could hardly be expected to let 

Weatherton’s claim go unchallenged. Weatherton was prepared to testify, but how and 

with what was the prosecutor to respond? Not with Jenkins, who refused to testify. And

the prosecutor would face tactical decisions about a number of issues, such as: (1) 

whether Weatherton entertained an honest and reasonable belief of the necessity to use 

deadly force to defend himself from Jenkins; (2) whether Weatherton’s use of deadly 
10

force was reasonable in the circumstances; and (3) whether Weatherton was not entitled 

to claim self-defense because he provoked a quarrel that created the ostensible need for 

self-defense. (See 1 Witkin, Cal. Criminal Law (4th ed. 2012) Defenses, § 68, pp. 509–

510.) The court would be equally taken aback, expecting only the regular Friday 

restitution calendar and now looking at presiding over a felony mini-trial.

It strains credulity to think the concept of Harvey waiver meant to approve such a 

situation. The obvious point of the concept was to regularize and streamline the 

circumstances in which dismissed charges could be considered at the time of sentencing 

on charges to which the defendant had pled guilty. Even if Weatherton were allowed to 

present his version of events, and even if that version were disbelieved, valuable court 

time would have been consumed. Thus, if Weatherton’s connection is accepted, a 

Harvey waiver’s utility would be undermined, if not severely curtailed. Indeed, it could 

truly be asked that if a Harvey waiver could be so easily repudiated and evaded, what 

would be the point of section 1192.3, subdivision (b) requiring one? 

“Simply stated, the Harvey rationale is that ‘a deal is a deal.’ ” (People v. Martin

(2010) 51 Cal.4th 75, 80.) So is a Harvey waiver. Yet, having expressly agreed to a deal, 

and received the benefits of it, Weatherton now wants to repudiate it by trying to recast or 

reinterpret in his favor “the facts underlying, and . . . pertaining to, the dismissed 

counts[s].” (Harvey, supra, 25 Cal.3d 754, 758.) Weatherton has never argued he was 

unaware that he faced having to pay restitution to Jenkins even if the counts naming her 

as the victim were dismissed, and it is reasonable to assume that the other counts 

involving Jenkins were dismissed in the expectation that restitution to her would be 

ordered. Weatherton never asked to have his guilty pleas withdrawn because of a 

misapprehension on this point.

Weatherton lays considerable emphasis on Judge Karesh’s comment at the 

sentencing hearing that Jenkins was “not a victim.” The comment was true for purposes 

of that proceeding, not for all time. Judge Runde was correct to treat that comment as not 

binding at the restitution hearing because Weatherton had personally agreed at the time he 

changed his pleas and made his Harvey waiver that restitution to Jenkins for the 
11

dismissed counts was a reserved issue. Only the amount of that restitution remained at 

issue, not Jenkins’s entitlement to what restitution could be proven. Weatherton had the 

opportunity to dispute the amount but he elected not to do so.

A deal is a deal. 

The restitution order is affirmed.

_________________________

Richman, J.

We concur:

_________________________

Kline, P.J.

_________________________

Stewart, J.

A140186, People v. Weatherton
12

Trial Court: San Mateo County Superior Court

Trial Judge: Honorable John W. Runde

Attorney for Defendant: Law Offices of Hanlon & Rief, Stuart 

Hanlon and Nathan Robert Peterson

Attorneys for Plaintiff and Respondent: Kamala D. Harris, Attorney General, 

Gerald A. Engler, Senior Assistant 

Attorney General, Masha A. Dabiza, 

Deputy Attorney General, Na’Shaun Neal, 

Deputy Attorney General, Elizabeth W. 

Hereford, Deputy Attorney General