Opinion
A099678.
11-3-2003
The People, Plaintiff and Respondent, v. Alan Cianci, Defendant and Appellant.
Appellant Alan Cianci was convicted of unlawfully taking a vehicle (Veh. Code, § 10851), felony hit and run (Veh. Code, § 20001, subd. (b)(2)), and reckless driving (Veh. Code, § 23104). We affirmed the judgment of conviction. Subsequently, the trial court entered an order requiring that appellant pay restitution in the sum of more than $4 million to the victim, who was seriously injured and paralyzed as the result of appellants conduct. Appellant does not directly challenge the amount of the restitution, but he raises technical or procedural arguments contesting the propriety of the restitution order. We conclude there was no prejudicial error, and the order imposing victim restitution is affirmed.
I. FACTS AND PROCEDURAL HISTORY
The facts of the offense are not directly relevant to this appeal, which arises solely from an order imposing victim restitution.
In brief, appellant stole a car, a Datsun 280ZX, and was driving it on San Francisco streets at a high rate of speed. He proceeded through a stop sign at the intersection of Lisbon and Brazil Streets without first stopping, and crashed into the side,of a car driven by Kai Wu (Wu), who was crossing the intersection. The force of the collision knocked Wus vehicle into a Chevrolet Camaro parked on the street, also damaging the latter vehicle and slightly injuring a bystander, Enrico Reyes (Reyes). Wu was very seriously injured in the accident, and was partially paralyzed. Appellant, who suffered only minor injuries, remained conscious and was able to exit the stolen vehicle without assistance after it came to rest down the street.
After leaving the vehicle he had been driving, appellant began immediately walking away from the crash scene, in an apparent effort to flee. Bystanders at the scene tried to detain him, whereupon he then began running away with an angry group of citizens in pursuit. Appellant attempted to avoid capture by climbing a fence, but his pursuers pulled him back down. The police were summoned, and appellant was detained by the angry crowd until their arrival.
In a seven-count information, appellant was charged with the following Vehicle Code violations: (1) vehicle theft (Veh. Code, § 10851, subd. (a)); (2) felony hit and run (Veh. Code, § 20001) as to Wu; (3) misdemeanor hit and run (Veh. Code, § 20001) as to Reyes; (4) misdemeanor reckless driving (Veh. Code, § 23104) causing injury to Wu; (5) misdemeanor reckless driving (Veh. Code, § 23104) causing injury to Reyes; and the infractions of (6) speeding (Veh. Code, § 22350) and (7) failing to stop at a stop sign (Veh. Code, § 22450).
The matter proceeded to a jury trial, and the evidence summarized above was presented by the prosecution. The jury convicted appellant of the first five counts in the information: vehicle theft, felony hit and run as to Wu and misdemeanor hit and run as to Reyes, and reckless driving causing injury as to both victims. The two infractions of speeding and failing to stop at a stop sign were tried to the court, and also resulted in convictions. A sentence of three years eight months in the Department of Corrections was imposed. The trial court reserved jurisdiction over the issue of restitution to the victim for a future hearing. After affirming the conviction, we issued our remittitur to the trial court on March 3, 2000, which it received on March 14, 2000.
The trial court conducted an initial hearing on the subject of victim restitution, on April 28, 2000, and ordered appellant to pay Wu the sum of $2,299,450. Appellant then exercised his right to obtain a further hearing to contest the amount of the restitution order.
Over the next few years, there were numerous continuances of proposed hearing dates. Although the record is not entirely clear as to the reasons for the various delays, it appears a hearing was not immediately held because a related civil action was pending. Trial of this civil action resulted in a judgment against appellant of more than $10 million. Judgment was entered on October 4, 2001. It does also appear that at least one continuance was sought, on December 11, 2001, as a result of the inadequate preparation of defense counsel. Unavoidable staffing problems in the San Francisco Public Defenders Office was cited as the grounds for continuance, and the restitution hearing was reset. Thereafter, additional delays were apparently occasioned by the courts own scheduling needs, and difficulties in producing appellant. A hearing date was rescheduled again for April 8, 2002, then May 28, 2002, and ultimately on July 19, 2002.
In the meantime, the deputy public defender who had been representing appellant in this matter resigned from the public defenders office. The next deputy public defender who was to represent appellant filed a written motion for continuance on July 11, 2002, stating she had inherited the file from the departed attorney, and had not yet familiarized herself with all the documentation relevant to the restitution issue.
Although the defenses motion for continuance was filed in the superior court clerks office, the trial judge in whose court the restitution hearing was to be held did not receive the paperwork in timely fashion. On the day of the restitution hearing, the court was orally informed that such a motion had been filed, and a file-stamped copy of the written motion was presented. By this time, appellant had been released from prison and all parties, including the victim, were in attendance. The court denied this latest request for continuance, held a brief restitution hearing, and modified the amount of restitution to $4,389,007.74.
II. DISCUSSION
A. DOUBLE JEOPARDY
The main issue presented in this appeal concerns appellants contention that the trial court improperly ordered direct restitution to the victim, in violation of appellants double jeopardy rights. He claims the restitution order violated his double jeopardy rights because his conviction had already been affirmed on appeal, and appellant had already served his sentence. In a closely related argument, appellant maintains that the restitution order was barred by principles of res judicata or collateral estoppel, because Wu had obtained the related civil judgment.
The trial judge did not make any victim restitution order at the original sentencing hearing, and instead reserved jurisdiction over this issue for later determination. At the final restitution hearing on July 19, 2002, the trial court imposed direct victim restitution under the provision of Penal Code section 1202.4, subdivision (a)(1), which provides: "It is the intent of the Legislature that a victim of crime who incurs any economic loss as a result of the commission of a crime shall receive restitution directly from any defendant convicted of that crime." In addition, the statute provides: "In every case in which a victim has suffered economic loss as a result of the defendants conduct," the court is mandated to order "that the defendant make restitution to the victim or victims in an amount established by court order, based on the amount of loss claimed by the victim or victims or any other showing to the court." (§ 1202.4, subd. (f); see also People v. OCasey (2001) 88 Cal.App.4th 967, 970.)
Under this restitution statute, it has been held that victims have "a right to restitution based on the full amount of their losses, without regard to full or partial recoupments from other sources except the Restitution Fund." (People v. Birkett (1999) 21 Cal.4th 226, 229 (Birkett), italics in original.)
Our Supreme Court has ruled, in People v. Hanson (2000) 23 Cal.4th 355, that double jeopardy concerns apply to preclude a trial court from increasing restitution fines, on remand for resentencing following an appeal. In Hanson, the court held that "one who appeals an erroneous conviction at the risk of a greater fine is indistinguishable from one who hazards a longer period of incarceration. In both situations, the defendant suffers a penalty for invoking the right to raise that challenge." (Id. at p. 363.) Accordingly, a trial courts imposition of increased restitution fines under section 1202.4, subdivision (b), and section 1202.45 could violate the prohibition recognized by the Supreme Court against double jeopardy, and might be required to be set aside.
A very different question is presented with respect to a direct victim restitution order pursuant to section 1202.4, subdivision (f), which is in issue here. As appellant acknowledges in his opening brief, several Courts of Appeal have addressed this topic. Each case concludes that victim restitution is not punishment, and therefore not subject to double jeopardy limitations. (People v. Harvest (2000) 84 Cal.App.4th 641, 649, review den. (Harvest); see also People v. Moreno (2003) 108 Cal.App.4th 1, 11.)
In Harvest, supra, 84 Cal.App.4th at pages 647 through 650, Division Four of our appellate district considered the propriety of a victim restitution order which was initially imposed at resentencing. The victim restitution order was challenged on due process and double jeopardy grounds. Restitution in the form of funeral and burial expenses, which had been incurred by the mother of a victim, was overturned due to the lack of a sufficient evidentiary support. However, the court affirmed the restitution order in all other respects, including child support payments that one of the deceased victims was required to make. In so ruling, the majority held that the double jeopardy prohibitions of the California Constitution (Cal. Const., art. I, § 15) did not bar the trial court from imposing victim restitution for the first time at resentencing, because court-ordered victim restitution is a civil remedy rather than a punishment. In short, the majority reasoned that, although the rationale of victim restitution includes some element of deterrence, such restitution is more analogous to a civil remedy than to a criminal fine or penalty, since its purpose is to provide monetary compensation for actual economic losses incurred by the victim. (Harvest, supra, at p. 647.) Harvest, therefore, stands for the proposition that double jeopardy does not apply to victim restitution orders, since direct victim restitution "has not historically been regarded as punishment." (Id. at p. 650; see also U.S. v. Behrman (7th Cir. 2000) 235 F.3d 1049, 1054 [victim restitution is not a penalty for a crime].)
Appellant argues that Harvest is wrongly decided, and urges this court to follow Justice Pochés dissent, in which he concluded that direct victim restitution is so punitive in purpose and effect as to render it a criminal punishment, thereby offending "the double jeopardy provisions of our state Constitution under the rule announced in People v. Henderson (1963) 60 Cal.2d 482, 495-497." (Harvest, supra, 84 Cal.App.4th at p. 656 [dis. opn.].) His dissent points out that such an order is only imposed upon conviction of a crime, and that it could far exceed the scope and scale of damages which otherwise would be available to the victim in a civil suit. (Ibid.)
Nevertheless, we are persuaded by the majority opinion in Harvest (the Supreme Court denied the appellants petition for review in Harvest on Feb. 28, 2001) and conclude that double jeopardy considerations do not bar the imposition of the direct victim restitution order for the damages suffered by the victim in this case. Restitution to the victim is imposed as recompense for the monetary harm caused by the defendant, and is not affected by double jeopardy concerns. Because the direct victim compensation provisions of section 1202.4 are not criminal penalties barred by the double jeopardy provisions of the state and federal Constitutions, we reject appellants constitutional arguments.
In a related argument, appellant suggests the trial court had lost jurisdiction to order victim restitution, since he had served his prison sentence before the final restitution hearing was held. Appellant also argues that the restitution order was barred by principles of res judicata or collateral estoppel, because a civil judgment had been entered against him in the meantime. Appellants arguments are without merit. First, the trial court reserved jurisdiction to enter a new restitution order following the imposition of his sentence. (§ 1202.4, subd. (f); see Harvest, supra, 84 Cal.App.4th at pp. 649-652.) Secondly, section 1202.4 contemplates that the reimbursement of a victims economic losses is generally mandatory. Section 1202.4, subdivision (f), reads, "In every case in which a victim has suffered economic loss as a result of the defendants conduct, the court shall require that the defendant make restitution to the victim or victims in an amount established by court order, based on the amount of loss claimed by the victim or victims or any other showing to the court. If the amount of loss cannot be ascertained at the time of sentencing, the restitution order shall include a provision that the amount shall be determined at the direction of the court. The court shall order full restitution unless it finds compelling and extraordinary reasons for not doing so, and states them on the record." (§ 1202.4, subd. (f).)
As to appellants claim that the judgment obtained by Wu in the civil action precludes the same issues from being litigated in the subsequent restitution proceeding, we again point out that section 1202.4 requires a restitution order, regardless of the availability of relief through the enforcement of a related civil judgment. (Birkett, supra, 21 Cal.4th at p. 229.) Victims of crimes have "a right to restitution based on the full amount of their losses, without regard to full or partial recoupments from other sources . . . ." (Ibid , italics in original.) Thus, we reject appellants claims that the restitution order was barred by the closely related doctrines of res judicata or collateral estoppel, merely because the victim obtained a civil judgment for his losses. (Ibid.; see also People v. Moser (1996) 50 Cal.App.4th 130, 133-135 (Moser).)
B. OTHER CLAIMS
1. Denial of Continuance, and Related Claims of Ineffective Assistance of Counsel Next, appellant contends the trial court abused its discretion by denying his motion for a three-month continuance at the July 19, 2002, restitution hearing, leading to asserted ineffective assistance by his inadequately prepared counsel. On this point, appellant suggests that the prejudice to him from these circumstances must be "presumed."
The decision whether to grant a continuance rests in the sound discretion of the trial court. (People v. Beeler (1995) 9 Cal.4th 953, 1003 (Beeler).) When a trial court denies a defense motion to continue, the defendant bears the burden of demonstrating that the court abused its discretion. (Ibid .) It is only in the unusual case in which we would find an abuse of discretion in the denial of a continuance, because the trial court retains wide discretion in the management of its own calendar. (Beeler, supra, at p. 1003; see also Moyal v. Lanphear (1989) 208 Cal.App.3d 491, 497.)
Even more critically, a reviewing court should not reverse the order under review, unless the defendant establishes that he was actually prejudiced by the denial of the continuance. (People v. Zapien (1993) 4 Cal.4th 929, 972-973 (Zapien); People v. Samayoa (1997) 15 Cal.4th 795, 840 (Samayoa).) "`[I]t is not every denial of a request for more time that violates due process even if the party fails to offer evidence or is compelled to defend without counsel. [Citation.]" (People v. Jenkins (2000) 22 Cal.4th 900, 1039 (Jenkins).)
Some further background is necessary at this point. As mentioned, appellants new attorney in the San Francisco Public Defenders Office filed a written motion for continuance, which informed the court that she had inherited the file from another departed deputy public defender in April 2002, who had also inherited the case from yet another deputy public defender who first represented appellant. Due to the press of business and a large workload, and despite her good faith efforts to prepare for the hearing, the new attorney averred that she had been unable to adequately familiarize herself with all of the "boxes" of documents relating to the previous proceedings in the case, which were in disarray. These materials had been delivered to the public defenders office at least five months before the July 19 hearing date, and had been available to appellants new counsel when she inherited the file in April. Counsel represented that she had reviewed "much" but not all of the documentary material. She therefore sought a three-month continuance, after which she was "hopeful" and "expect[ed]"—although she did not guarantee—that she would be able to obtain assistance from others in her office and complete her preparation in that time.
The record shows there had been many prior continuances of scheduled hearing dates, and that one of the continuances had been based on the identical grounds urged in the most recent request—the inadequate preparation of a newly appointed defense attorney, occasioned by the departure of appellants trial counsel from the San Francisco Public Defenders Office and unavoidable staffing problems resulting from that departure.
For whatever reason, the filed written motion was not routed to the judge who was to conduct the restitution hearing, and he therefore was unaware of the motions existence until the day of the scheduled hearing, when the deputy public defender brought her file-stamped copy of the motion to the courts attention. The prosecutor also had not personally received a copy of the written motion before July 19th, even though there was a file stamp on the public defenders copy of the document from the district attorneys office, as well as from the court itself. The prosecution opposed the motion for continuance, noting that all parties, including the paralyzed victim, were present; all the documents in question had been turned over to appellant personally as well as the public defenders office more than six months previous; and all the documents to be introduced at the restitution hearing (18 exhibits constituting a stack about two inches high, comprising about 340 pages, with a seven-page declaration by the victim identifying them) had been received in evidence in the related civil trial.
Defense counsel argued that a continuance was necessary because she could not effectively represent appellant, citing her inability to review all of the documents to be introduced into evidence, except for a limited review during a five-minute unreported conference in the trial judges chambers prior to the hearing. She advised the court that her client would be receiving ineffective assistance, due to her unfamiliarity with the exhibits the district attorney proposed to offer in evidence.
The trial court observed that a three-month continuance was unjustified, given that these materials had been turned over to appellant and the public defenders office many months earlier; the relevant documents had been received in evidence in the civil trial at which appellant represented himself; and appellants attorney of record had already had three months to review the materials. Defense counsel did not propose, nor did the court suggest, any other alternatives, such as a shorter continuance, bifurcation of the proceedings, or sanctions. Consequently, the question of alternative remedies is not before us. (See Ochoa v. Pacific Gas & Electric Co. (1998) 61 Cal.App.4th 1480, 1488.) In the end, the court denied the requested three-month continuance, and received the various exhibits into evidence, which concluded the evidentiary portion of the hearing.
We first consider whether there was an adequate showing of good cause for the requested continuance. Implicit in the trial courts denial of this motion was that there was none. As the court observed, the documents in question had been provided to appellant and his attorney of record as early as December of 2001. Aside from her "inheritance" of the file, and general reference to a heavy workload and staffing problems in the public defenders office, no more specific explanation was offered for defense counsels failure to complete a review of the materials over the previous three-month period. Even the deputy public defenders continuance request contained the caveat that she was merely "hopeful" of completing her review—and only then, if assistance could be obtained. Although we are mindful of defense counsels comment to the court, that "[P]erhaps Mr. Cianci is receiving ineffective assistance of counsel," in light of the record and deferential standard of review we must apply, we nevertheless can find no abuse of discretion by the trial court in denying the request for a further three-month continuance. (SeeBeeler, supra, 9 Cal.4th at p. 1003.)
In addition to convincing us that it was an abuse of discretion for the trial court to deny the requested continuance, appellant must also demonstrate prejudice. In the present case, it does not appear the courts denial of the continuance led to a waiver of any meritorious defense, or the loss of any of appellants rights. All the documents relied upon by the court had previously been introduced into evidence as exhibits in the related civil trial, for the similar purpose of setting damages. There was no attempt made to argue, either in the trial court or on appeal, that these same exhibits were not relevant and admissible in the restitution proceeding. Even now, appellant does not identify any particular meritorious defense strategies or evidentiary objections that should have been pursued, but were not, as a result of the denial of the continuance. He merely suggests some undefined prejudice should be "presumed," which is inconsistent with binding precedent requiring that appellant show actual prejudice. (See Zapien, supra, 4 Cal.4th at pp. 972-973 [finding no prejudice from denial of a continuance, where there was no reasonable basis to conclude from the appellants showing this denial led to a less favorable result for the defendant]; Samayoa, supra, 15 Cal.4th at p. 840;Jenkins, supra, 22 Cal.4th at p. 1039; see also Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
In a closely related contention, appellant claims he received ineffective assistance of counsel at the restitution hearing. In order to establish ineffective assistance of counsel, appellant must show his counsels performance fell below prevailing professional norms; and, more importantly, a showing by appellant of prejudice, i.e., there is a reasonable probability that there would have been a better result had counsel performed competently. (Strickland v. Washington (1984) 466 U.S. 668, 694 (Strickland).) A reasonable probability is a probability that undermines confidence in the outcome. (Id. at p. 694.)
As we have concluded, appellant has failed to demonstrate any specific prejudice from the actions or inactions of his trial attorney. He has not shown that any meritorious defense was foregone, or that meritorious objections were not made, so that a reasonable possibility would exist of a different outcome if his attorney had been better prepared. Because we cannot presume prejudice, we reject this contention. (Strickland, supra, 466 U.S. at p. 694.)
2. Claim of Abuse of Discretion in Ordering Restitution
Finally, appellant contends the trial court abused its discretion in ordering restitution because, once again, appellant had already served his sentence, and the victim had also secured a civil judgment. Appellant claims that the foregoing circumstances make his case so "compelling and extraordinary" that the trial court abused its discretion in imposing the restitution order. These arguments are also without merit.
Appellant cites no authority to support his claim that the trial court abused its discretion in allowing full restitution under these circumstances. The applicable case law provides: "The court shall order full restitution unless it finds clear and compelling reasons for not doing so, and states them on the record. . . . [Citation.]" (People v. Rowland (1997) 51 Cal.App.4th 1745, 1751, italics omitted (Rowland).) The fact that appellant had completed his prison term is logically irrelevant to the requirement of full restitution, as is the existence of a civil judgment. (See Harvest, supra, 84 Cal.App.4th at p. 647; Moser, supra, 50 Cal.App.4th at pp. 133-134 [A civil judgment, which may be voided in bankruptcy, is not equivalent to a restitution order.].)
The trial court always retains discretion within the mandate of section 1202.4 to set the amount of the restitution order in an amount that will fully reimburse the victim, regardless of any other considerations. (Rowland, supra, 51 Cal.App.4th at p. 1751.) Neither the fact that appellant has served his sentence, nor the existence of a civil judgment, establishes the sort of "compelling" or "extraordinary" circumstances required to show that the trial court abused its discretion in ordering full restitution to the victim, as the law requires. (Ibid.)
III. DISPOSITION
The order imposing victim restitution is affirmed.
JONES, P.J., SIMONS, J. we concur. --------------- Notes: Unless otherwise indicated, all further section references are to the Penal Code.