Unreported / Non-Citable
Background
Viviana Serrano appealed from a judgment for misdemeanor reckless driving following a negotiated plea, challenging the trial court's order requiring her to pay $4,281.95 in restitution to Erik Waite. The charges arose from a March 7, 2023 road rage incident in which Serrano followed Waite, flashing her high-beam lights and honking, then called her boyfriend Christian Martinez to assist. Martinez used his car to hit the back of Waite's car, and the two parked in front of and behind Waite, preventing him from leaving.
The complaint charged Serrano and Martinez with false imprisonment by violence and child abuse, and charged Serrano with misdemeanor reckless driving; the court granted Serrano's section 995 motion to dismiss the child abuse count. On March 4, 2024, Serrano pleaded no contest to reckless driving, the court dismissed the false imprisonment count subject to a Harvey waiver with respect to restitution, and placed her on summary probation. The court advised her she would be responsible for restitution on both counts, and she confirmed her understanding.
Waite requested about $7,000 in restitution for vehicle repairs, rental car, medical costs, and lost wages. Serrano stipulated to $961.76 for court-appearance lost wages but objected to the rest, blaming Martinez's collision. At the August 30, 2024 continued hearing, the court ordered $4,281.95 total, including the stipulated amount, reasoning the damages all came from the same instance generated by Serrano, and held Serrano and Martinez jointly and severally liable. Serrano appealed to the appellate division, which transferred the case to the Court of Appeal.
The Court’s Holding
The Court of Appeal affirmed, finding no abuse of discretion. Under the California Constitution and Penal Code section 1202.4, victims have a right to compensation for losses from the defendant's crime, and a court's discretion in setting restitution is broad. A Harvey waiver permits a court to consider facts underlying a count dismissed in a negotiated plea when imposing sentence, including restitution, as codified in section 1192.3(b). Review is for abuse of discretion, asking whether the ruling falls outside the bounds of reason.
The court applied tort causation principles. Because the plea included a Harvey waiver, the trial court properly considered facts underlying both the reckless driving and false imprisonment counts. The appellate court implied a finding that the vehicle damage was a foreseeable result of Serrano's criminal conduct and that but for that conduct the vehicle would not have been damaged. When Serrano followed Waite and summoned Martinez to help stop him, it was reasonably foreseeable that they would drive in concert and one would hit Waite's vehicle.
The court rejected Serrano's intervening-cause argument. Citing People v. Rojas, it explained an intervening cause absolves a defendant only if unforeseeable and extraordinary; summoning Martinez made the collision reasonably foreseeable. Substantial evidence supported the implied finding that the damage resulted from Serrano's conduct, and the restitution obligation arose from both counts.
Key Takeaways
- A Harvey waiver lets a trial court consider facts underlying a dismissed count when ordering restitution as part of a negotiated plea.
- Tort causation principles—but-for causation and foreseeability—govern whether a victim's loss resulted from the defendant's criminal conduct.
- A defendant may be liable for an accomplice's damage if her conduct set in motion a chain of events making that damage reasonably foreseeable.
- An intervening cause defeats restitution liability only if it is unforeseeable and an extraordinary, abnormal occurrence.
- Restitution orders receive broad discretion and are reviewed for abuse of discretion.
Why It Matters
This unpublished decision applies established Harvey waiver and causation rules to a road rage pursuit: a defendant who summons an accomplice may be ordered to pay restitution for vehicle damage the accomplice inflicted, because the damage was a foreseeable consequence of her own criminal conduct and the collision was not an extraordinary intervening cause.
It illustrates how tort causation principles operate in criminal restitution, turning on foreseeability and but-for causation rather than direct personal causation, and shows that a Harvey waiver gives defendants notice that dismissed counts can still support restitution.