Filed 1/12/23 P. v. Wright CA2/7

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

JOHN EDWARD WRIGHT,

Defendant and Appellant.

 B319212

 (Los Angeles County

 Super. Ct. No. MA076641)

APPEAL from an order of the Superior Court of Los 

Angeles County, Kathleen Blanchard, Judge. Affirmed.

Micah Reyner, under appointment by the Court of Appeal, 

for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Idan Ivri and Gabriel Bradley, Deputy 

Attorneys General, for Plaintiff and Respondent.

_________________
2

John Edward Wright appeals from a restitution order 

requiring him to pay $1,176.93 to Rasa Zumaiti to install security 

equipment at her home. Wright was charged with first degree 

robbery and first degree burglary of Zumaiti’s home, but the 

charges were dismissed pursuant to a plea agreement in which 

Wright pleaded no contest to two counts of second degree robbery 

of other victims. Wright contends the trial court erred in 

ordering restitution for the security equipment because Penal 

Code section 1202.4, subdivision (f)(3)(J),1 limits restitution for a 

victim’s home security expenses to cases involving a violent 

felony or a violation of section 273.5 (willfully inflicting corporal 

injury on a spouse, cohabitant, or other specified victims). 

Because Wright stipulated as part of the plea agreement 

that the trial court could consider the facts underlying the 

dismissed counts (both violent felonies) in awarding restitution, 

we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Complaint and Wright’s Plea Agreement

Wright was charged in an amended felony complaint with 

first degree burglary, person present, on June 14, 2019 of a 

dwelling occupied by Zumaiti (§ 459; count 1); second degree 

robbery of Jorge Molina on June 20, 2019 (§ 211; count 2); 

misdemeanor brandishing a replica gun on June 20, 2019 

(§ 417.4; count 3); second degree robbery of Fredi Herrera on 

June 22, 2019 (§ 211; count 4); second degree robbery of Heather 

Parnell on June 24, 2019 (§ 211; count 5); and first degree 

residential robbery of Zumaiti on June 14, 2019 (§ 211; count 6). 

1 Further statutory references are to the Penal Code.
3

The complaint specially alleged as to count 4 that Wright 

personally used a deadly weapon in the commission of the 

robbery of Herrera (§ 12022, subd. (b)(1)) and inflicted great 

bodily injury on Herrera (§ 12022.7, subd. (a)). The complaint 

also alleged Wright had a prior strike conviction of robbery

within the meaning of section 667, subdivision (a)(1), and the 

three strikes law (§§ 667, subds. (b)-(j), 1170.12). 

On September 4, 2019 Wright entered into a negotiated 

plea agreement under which he pleaded no contest to two counts 

of second degree robbery of Molina and Herrera (counts 2 and 4) 

and admitted the special allegation he inflicted great bodily 

injury on Herrera. Wright also pleaded no contest to one count of 

first degree burglary charged in a separate case (no. MA076173). 

The remaining charges, including the counts involving Zumaiti

(counts 1 and 6), were dismissed pursuant to the plea agreement. 

Wright initialed the statement on the “plea form with 

explanations and waiver of rights—felony” that “I understand 

and agree that the sentencing judge may consider facts 

underlying dismissed counts to determine restitution and to 

sentence me on the counts to which I am entering a plea.” At the 

time Wright entered the plea, the trial court2 inquired whether 

Wright had read the form or his attorney read it to him, and 

Wright replied, “Yes.” Wright also responded in the affirmative 

when asked whether he understood “everything on the form 

including all of [his] constitutional rights and consequences of 

[the] plea.” Wright confirmed he had sufficient time to discuss 

the waiver form with his attorney and had initialed and signed 

the form. The court advised Wright, “If there’s any direct victim 

restitution in this case, [you are] going to be responsible for that 

2 Judge Robert G. Chu.
4

under Penal Code Section 1202.4(f).” Wright stated he 

understood the consequences of the plea and did not have any 

questions about the court’s advisements. 

On September 25, 2019 the trial court3 sentenced Wright to 

an aggregate state prison term of eight years four months, 

comprised of the middle term of three years on count 4 for second 

degree robbery, plus three years for the great bodily injury 

enhancement, plus one year on count 2 for second degree robbery 

(one-third the middle term of three years), plus one year four 

months on the first degree burglary charge in case number 

MA076173 (one-third the middle term of four years). Among 

other fines and fees, the court imposed a restitution fine of $2,400 

(§ 1202.4, subd. (b)) and suspended a parole revocation 

restitution fine in the same amount (§ 1202.45).

B. The Restitution Hearing

A victim restitution hearing was held on March 18, 2022.4 

Zumaiti testified that at 2:00 or 3:00 in the morning of June 14, 

2019 she was at her home when Wright came to her door. 

Zumaiti opened the door and saw that another man, who had 

been obscured by the door, was waiting outside with Wright. The 

man “leaped in and pinned [Zumaiti] down and turned [her] head 

away from [her] purse.” After some time, both men left her home. 

When Zumaiti was able to stand up, she found that at least $500 

in cash had been taken from her purse, and two cartons of 

cigarettes had been removed from her refrigerator. Zumaiti 

3 Judge Charles A. Chung sentenced Wright. At the 

initial plea hearing, Wright agreed that a different judge could 

sentence him at a later date.

4 Judge Kathleen Blanchard presided over the 

restitution hearing.
5

stated each carton of cigarettes was worth $90. In addition, one 

of her bedroom drawers had been pulled out. 

After the incident, Zumaiti purchased a security door, and 

her brother-in-law installed a video security system in her home. 

The trial court admitted into evidence a receipt from an 

electronics store showing the purchase on June 18, 2019 of a 

digital security system with night vision cameras for $159.99, 

plus $19.99 for an extended warranty, and a receipt from a home 

improvement store showing the purchase on July 21, 2019 of a 

security door for $316.95. Zumaiti installed the security 

equipment to prevent this type of incident from happening again. 

The People rested after the court admitted the two receipts 

into evidence.5 The trial court found Zumaiti’s claimed economic 

losses totaled $1,176.93 including the home security equipment, 

cash, and cigarettes. Defense counsel argued, “I do want to object 

to the security door and the security system. Those were 

expenses that were supposed to protect [Zumaiti] in the future 

against any attacks, or crimes of this nature. And they are 

preventive measures and remedial measures. And I just want 

the record to be clear that we’re objecting to those expenses.” The 

court found the Penal Code specifically allowed reimbursement of 

5 Wright waived his right to appear at the victim 

restitution hearing. Defense counsel did not call any witnesses.

He offered as exhibit A an “Offender Restitution Payment 

History” form from the California Department of Corrections and 

Rehabilitation (CDCR) showing that Wright paid $2,400 toward 

the restitution fine, arguing Wright’s payments should be applied 

first to satisfy any direct victim restitution the court might order. 

The trial court held its jurisdiction was limited to determining 

the amount of direct victim restitution and Wright would have to 

raise with CDCR or another entity the allocation of payments he 

had already made. Wright does not raise this issue on appeal.
6

those types of preventative measures, and it ordered restitution 

to be paid to Zumaiti in the amount of $1,176.93.6

Wright timely appealed from the restitution order. 

DISCUSSION 

A. Governing Law and Standard of Review 

“Under the California Constitution, as amended in 1982 by 

Proposition 8 (commonly known as The Victims’ Bill of Rights), 

every crime victim has a right to be compensated by the 

defendant for losses incurred as a result of the defendant’s crime. 

(Cal. Const., art. I, § 28, subd. (b)(13).)” (People v. Martinez

(2017) 2 Cal.5th 1093, 1100.) Consistent with this constitutional 

provision, section 1202.4, subdivision (a)(1), provides, “It is the 

intent of the Legislature that a victim of crime who incurs an 

economic loss as a result of the commission of a crime shall 

receive restitution directly from a defendant convicted of that 

crime.” Section 1202.4, subdivision (f), similarly states, with 

limited exceptions not applicable here, “[I]n every case in which a 

victim has suffered economic loss as a result of the defendant’s 

conduct, the court shall require that the defendant make 

restitution to the victim or victims in an amount established by 

6 The trial court at the victim restitution hearing 

stated restitution was ordered in the amount of $1,076.93,

instead of the correct total of claimed expenses ($1,176.93). 

However, earlier in the hearing, the court made an express 

determination Zumaiti’s claimed expenses totaled $1,176.93, 

which is consistent with the court’s minute order and the 

March 18, 2022 victim restitution order signed by the court. 

Wright acknowledges the court ordered restitution in the amount 

of $1,176.93. 
7

court order, based on the amount of loss claimed by the victim or 

victims or any other showing to the court.” 

Section 1202.4, subdivision (f)(3), specifies that “[t]o the 

extent possible, the restitution order . . . shall be of a dollar 

amount that is sufficient to fully reimburse the victim or victims 

for every determined economic loss incurred as the result of the 

defendant’s criminal conduct, including, but not limited to,” 

12 enumerated categories of victim expenses. As relevant here, 

subdivision (f)(3)(J) includes “[e]xpenses to install or increase 

residential security incurred related to . . . a violent felony as 

defined in subdivision (c) of Section 667.5, including, but not 

limited to, a home security device or system, or replacing or 

increasing the number of locks.”

We review a restitution order for an abuse of discretion. 

(People v. Giordano (2007) 42 Cal.4th 644, 663; People v. Baudoin

(2022) 85 Cal.App.5th 1184, 1191.) “‘However, a restitution order 

“resting upon a ‘“demonstrable error of law”’ constitutes an abuse 

of the court’s discretion.”’” (Baudoin, at 1191; accord, People v. 

Millard (2009) 175 Cal.App.4th 7, 26; see People v. Williams

(2010) 184 Cal.App.4th 142, 146 [“when the propriety of a 

restitution order turns on the interpretation of a statute, a 

question of law is raised, which is subject to de novo review on 

appeal”].)

B. The Trial Court Properly Awarded Restitution to Zumaiti

for Home Security Equipment

Wright contends the trial court erred in awarding 

restitution to Zumaiti for the security door and video security 

system because the counts relating to Zumaiti were dismissed, 

and “[a]s part of his plea, [Wright] never conceded that he 

committed a violent crime against [Zumaiti],” nor did the trial 
8

court make a finding a violent crime was committed. The People 

respond that Wright was charged with two violent felonies 

against Zumaiti, and those charges were dismissed as part of a 

plea bargain that included a waiver pursuant to People v. Harvey

(1979) 25 Cal.3d 754 (Harvey waiver), under which Wright agreed

the sentencing judge could consider the facts underlying the 

dismissed counts in ordering restitution.7 We agree that 

pursuant to the Harvey waiver, the trial court properly ordered 

restitution for the security equipment installed by Zumaiti based 

on Wright’s commission of two violent felonies.

The Supreme Court in People v. Harvey, supra, 25 Cal.3d at 

page 758 held that a trial court may not impose any adverse 

sentencing consequences on a defendant as a result of a plea 

bargain based on dismissed counts absent an agreement by the 

defendant. (See People v. Brooks (2017) 15 Cal.App.5th 331, 334, 

fn. 3 [“A Harvey waiver is a defendant’s agreement, as part of a 

plea bargain, to allow the sentencing court to consider facts 

supporting dismissed counts.”]; People v. Weatherton (2015) 

238 Cal.App.4th 676, 678 (Weatherton) [“facts underlying charges 

7 The People contend Wright forfeited his argument 

the trial court was barred under section 1202.4, 

subdivision (f)(3)(J), from ordering restitution for security 

equipment by failing to raise it below. However, defense counsel 

objected to restitution for the security door and video security

system on the grounds they were “preventive measures and 

remedial measures.” Although Wright’s attorney did not 

specifically argue Wright had not committed a violent felony, his 

objection adequately apprised the prosecution and the court of 

Wright’s contention security equipment was not an authorized 

category of restitution expenses. We therefore decline to find 

forfeiture. (See In re S.B. (2004) 32 Cal.4th 1287, 1293 

[“application of the forfeiture rule is not automatic”].)
9

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 

in Harvey that the trial court may consider the facts supporting 

the dismissed count by agreement of the defendant was extended 

in People v. Baumann (1985) 176 Cal.App.3d 67, 74-75 to cover 

restitution, and was later codified in section 1192.3, subdivision 

(b). (See § 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 [Harvey] from the 

defendant as to the dismissed count.”]; Weatherton, at p. 678.) 

As discussed, Wright’s plea agreement included a Harvey

waiver in that he agreed the sentencing judge could “consider 

facts underlying dismissed counts to determine restitution” in 

sentencing him on the counts to which he pleaded. Wright 

concedes the Harvey waiver he signed is valid and enforceable. 

But without citing any authority, Wright asserts he may 

challenge whether Zumaiti’s testimony established he had 

committed a violent felony despite his agreement the same 

testimony could be considered in determining restitution.

Wright’s argument misapprehends the effect of the Harvey 

waiver. 

The prosecution is not required at a victim restitution 

hearing to prove the defendant committed the offenses dismissed

under a plea agreement that includes a Harvey waiver. 

Weatherton, supra, 238 Cal.App.4th 676 is directly on point. 

There, Donnie Weatherton shot his housekeeper in the hand and 

prevented her from leaving his apartment to seek medical 

attention. (Id. at p. 679.) Facing nine charges, including assault 

with a firearm and false imprisonment, Weatherton agreed to 

plead guilty to two counts of being a felon in possession of a 

firearm, and in exchange the prosecution dismissed the 
10

remaining charges with a Harvey waiver. (Ibid.) At the victim 

restitution hearing, the trial court admitted evidence the 

housekeeper’s insurance paid more than $22,000 for medical 

treatment of her gunshot wound. (Id. at p. 680.) Weatherton 

requested he be allowed to testify that he acted in self-defense, 

arguing he did not owe restitution because he was not liable for 

committing a crime against the housekeeper. (Id. at pp. 680-

681.) Further, his Harvey waiver “‘allows the [c]ourt 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.’” (Id. at p. 680.)

The Court of Appeal, in affirming the trial court’s 

restitution order (and denial of Weatherton’s request to testify),

explained, “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.” (Weatherton, 

supra, 239 Cal.App.4th at p. 685.) The court reasoned, “[i]t 

strains credulity to think the concept of a Harvey waiver meant 

to approve such a situation [allowing the defendant to litigate 

liability]. 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. . . . [I]f Weatherton’s contention is 

accepted, a Harvey waiver’s utility would be undermined, if not 

severely curtailed. Indeed, it could truly be asked that if a 
11

Harvey waiver could be so easily repudiated and evaded, what 

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

one?” (Ibid.) 

In his reply brief, Wright argues Weatherton is inapposite 

because Wright conceded his obligation to pay restitution to 

Zumaiti for the cigarettes and cash that were taken and only 

challenges his liability for Zumaiti’s security expenses on the 

basis he did not commit a violent felony under section 1202.4, 

subdivision (f)(3)(J). This is a distinction without a difference. 

As discussed, under a Harvey waiver, the prosecution is not 

required to prove the facts that show the defendant committed 

the crime. Here, the complaint charged Wright with two violent 

felonies, as defined in section 667.5, subdivision (c), based on 

factual allegations that on June 14, 2019, Wright robbed Zumaiti 

by force and burgled her home while she was present. In 

entering his plea, Wright understood that restitution for Zumaiti 

would be based on these alleged facts and charged violent 

felonies.8 Therefore, Zumaiti’s recovery of home security 

8 Because we hold the prosecution was not required to 

prove Wright’s liability for commission of a violent felony at the 

victim restitution hearing, we do not reach whether a victim’s 

home security expenses are recoverable for nonviolent felonies 

given the language in section 1202.4, subdivision (f)(3), 

authorizing restitution for a victim’s expenses “including, but not 

limited to” home security expenses recoverable for violent 

felonies under subdivision (f)(3)(J)). (See People v. Brooks (2018) 

23 Cal.App.5th 932, 942-943 [section 1202.4, subdivision (f), did 

not bar recovery by victims of nonviolent felonies for home 

security expenses because statute provided for recovery 

“‘including, but not limited to’” home security expenses for 

victims of violent felonies]; but see People v. Salas (2017) 

9 Cal.App.5th 736, 740 [victim could not recover home security 
12

expenses was proper under section 1202.4, subdivision (f)(3)(J). 

Only the amount of the loss remained in dispute.

DISPOSITION

The restitution order is affirmed.

FEUER, J.

We concur:

SEGAL, Acting P.J. HOWARD, J.*

expenses because section 1202.4, subdivision (f), explicitly limited 

recovery of home security expenses to victims of violent felonies, 

and defendant was not convicted of a violent felony].)

In Salas, supra, 9 Cal.App.5th at page 739, the defendant 

pleaded no contest to one count of felony domestic violence under 

section 273.5, subdivision (a), but at the time section 1202.4, 

subdivision (f)(3)(J), provided for recovery of home security 

expenses only for victims of violent felonies. In 2018 the 

Legislature amended section 1202.4, subdivision (f)(3)(J), to apply 

to commission of violent felonies and domestic violence under 

section 273.5. (Assembly Bill No. 2226 (2017-2018 Reg. Sess.)

§ 1.) 

* Judge of the Marin County Superior Court, assigned 

by the Chief Justice pursuant to article VI, section 6 of the 

California Constitution.