People v. Duarte CA5

── People v. Duarte CA5 ── Court: California Court of Appeal Date: April 23, 2026 Category: General Filed 4/23/26 P. v. Duarte CA5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT THE PEOPLE, F089272 Plaintiff and Respondent, (Super. Ct. No. F19901415) v. DANIEL HERNANDEZ DUARTE, OPINION Defendant and Appellant. APPEAL from a judgment of the Superior Court of Fresno County. Kimberly A. Gaab, Judge. Heather E. Shallenberger, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Kimberley A. Donohue, Assistant Attorney General, Ivan P. Marrs and Viktoriya Chebotarev, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-  Defendant Daniel Hernandez Duarte pled guilty to committing a lewd or lascivious act upon a child under the age of 14 years without admitting a factual basis for the plea. Pursuant to the plea agreement, the court dismissed another count for the same offense alleged against a second child victim. Defendant now appeals, asserting he did not agree to pay restitution on the dismissed count because he did not enter a waiver under People v. Harvey (1979) 25 Cal.3d 754 (Harvey), which requires a defendant’s agreement before any adverse consequences may result “by reason of the facts underlying, and solely pertaining to, the dismissed count.” (Id. at p. 758.) We affirm. PROCEDURAL HISTORY AND FACTUAL BACKGROUND On April 3, 2024, the District Attorney of Fresno County filed a second amended complaint charging defendant with two counts of a lewd or lascivious act upon a child under the age of 14 years (Pen. Code,1 § 288, subd. (a); counts 1, 3) as to Jane Doe 1 and Jane Doe 2, respectively, and one count of indecent exposure (§ 314(1); count 2) as to Jane Doe 1. The second amended complaint also alleged defendant had suffered a prior strike conviction within the meaning of the “Three Strikes” law (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)), as well as three aggravating factors (Cal. Rules of Court, rule 4.421(a)(3), (11) & (b)(2)). At a hearing the same day, the parties relayed their negotiated plea agreement, and the trial court indicated it would strike the prior strike conviction and grant probation contingent on a positive evaluation under section 288.1. Defendant pleaded guilty to count 1, without admitting a factual basis pursuant to People v. West (1970) 3 Cal.3d 595 (West), and admitted the prior strike conviction and one aggravating factor. The prosecution moved to dismiss the remaining counts and aggravating factors “with right to comment, restitution and a Harvey waiver.” (Italics added.) The plea form noted that 1 Undesignated statutory references are to the Penal Code. 2. defendant may have to pay between $300 and $10,000 in restitution but did not specifically mention restitution on the dismissed counts. The California Victim Compensation Board (CVCB) submitted a restitution request for $6,778.74 in a letter dated April 3, 2024. The request recommended ordering restitution as follows: $5,403.75 for “Mental Health” for “Confidential Victim”; $978.99 for “Residential Security” for “Confidential Victim”; and