Opinion
D068741
02-23-2017
THE PEOPLE, Plaintiff and Respondent, v. DANIEL KLAHN, Defendant and Appellant.
Renée Paradis, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Theodore M. Cropley and Laura Baggett, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCN328097) APPEAL from a judgment of the Superior Court of San Diego County, Michael J. Popkin, Judge. Affirmed. Renée Paradis, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Theodore M. Cropley and Laura Baggett, Deputy Attorneys General, for Plaintiff and Respondent.
Daniel Klahn pled guilty to one count of grand theft by an employee (Pen. Code, § 487, subd. (b)(3)), with an admission that he had taken more than $100,000 (§ 186.11, subd. (a)(3)); and one count of forgery (§ 470, subd. (d)). Consistent with the parties' agreement in the guilty plea, the trial court sentenced Klahn to a three-year prison term. At the time of the guilty plea and sentencing, Klahn orally waived his right to be present at an upcoming restitution hearing. Klahn accordingly did not appear at the restitution hearing, at which the trial court ordered that Klahn pay victim restitution in the amount of $277,639, based on a stipulation that defense counsel and the prosecutor orally presented to the trial court.
Unless otherwise indicated, all further statutory references are to the Penal Code.
Klahn contends that the restitution order should be reversed because he did not validly waive his presence at the restitution hearing, violating his statutory and constitutional right to be present. We conclude that Klahn's oral waiver of his right to be present at the restitution hearing was sufficient under the applicable statutory and constitutional provisions. Accordingly, we affirm the judgment.
Klahn has filed a petition for habeas corpus challenging the restitution order. (In re Daniel Klahn on Habeas Corpus, case D070576.) We address and reject the habeas corpus petition in a separate order. We also hereby deny Klahn's motion to consolidate the habeas corpus petition with this case.
I.
FACTUAL AND PROCEDURAL BACKGROUND
According to a police detective's declaration in support of Klahn's arrest warrant, Klahn was employed as a financial controller at a travel agency. Klahn's employer discovered that Klahn had written numerous forged checks to himself from the company account and had made other unauthorized monetary transfers for his personal benefit. According to the detective, Klahn admitted in an e-mail exchange that he owed the business approximately $176,000. The detective also concluded from his review of the relevant documents that the total amount Klahn embezzled could be as high as $362,000.
Because Klan pled guilty and no probation officer's report was submitted, the only factual information in the record regarding Klahn's crimes appears in the declaration in support of Klan's arrest prepared by the detective who investigated Klahn's crimes.
Klahn was charged with one count of fraudulent appropriation by an employee (§ 508); one count of grand theft by an employee (§ 487, subd. (b)(3)); and 10 counts of forgery (§ 470, subd. (d)). As to each count, the complaint also alleged that Klahn's pattern of related conduct involved the taking of more than $100,000.
On May 5, 2014, Klahn pled guilty to grand theft by an employee (§ 487, subd. (b)(3)), with an admission that he had taken more than $100,000 (§ 186.11, subd. (a)(3)); and one count of forgery (§ 470, subd. (d)). At the same hearing, the trial court sentenced Klahn to a three-year prison term, consistent with the parties' agreement.
At the beginning of the May 5, 2014 hearing, the trial court and defense counsel discussed the fact that, as defense counsel described, "there's going to be an issue as to restitution," so that although sentencing could go forward immediately following the guilty plea, the issue of restitution would have to be continued to a future hearing. Accordingly, after taking the guilty plea, the trial court asked defense counsel if he wanted to set a restitution hearing. Defense counsel answered affirmatively, and the trial court set a restitution hearing for June 4, 2014. In setting the restitution hearing, the trial court stated to Klahn, "Mr. Klahn, you have a right to be here for that. Do you give your -- that right up and let your attorney appear for [you] pursuant to Penal Code section 977?" Klahn replied, "Yes, Your Honor." The trial court stated, "All right. I'll accept the 977 waiver. He may appear through counsel."
On June 4, 2014, defense counsel appeared on behalf of Klahn for the restitution hearing. Defense counsel and the prosecutor stated that an agreement had been reached on the amount of restitution owed. As the prosecutor described the agreement, "[t]he amount of restitution owed is $277,639" and was to be paid to Klahn's employer. The trial court accordingly ordered that Klahn pay $277,639 in restitution to his employer, and issued a minute order deeming the abstract of judgment to be amended to reflect the restitution order.
Klahn originally attempted to file a notice of appeal on October 2, 2014, challenging the restitution order, which the Superior Court rejected as untimely. On October 5, 2015, we granted Klahn's request for constructive filing of a notice of appeal, ordering the superior court to file the October 2, 2014 notice of appeal.
II.
DISCUSSION
Klahn contends that the restitution order was invalid and should be vacated because he was not present at the restitution hearing and did not enter a valid waiver of his right to be present. According to Klahn, his absence at the restitution hearing violated (1) his due process rights under the federal and state constitutions; and (2) his statutory right to be present.
" 'An appellate court applies the independent or de novo standard of review to a trial court's exclusion of a criminal defendant from trial, either in whole or in part, insofar as the trial court's decision entails a measurement of the facts against the law.' " (People v. Gutierrez (2003) 29 Cal.4th 1196, 1202 (Gutierrez).) Further, "[t]he voluntariness of a waiver is a question of law which appellate courts review de novo." (People v. Panizzon (1996) 13 Cal.4th 68, 80 (Panizzon).) A. Klahn Made a Valid and Knowing Waiver of His Constitutional Right to Be Present
We first consider Klahn's contention that his constitutional right to due process was violated by his absence at the restitution hearing.
The federal constitutional right to due process " 'guarantees the [defendant's] right to be present at any "stage . . . that is critical to [the] outcome" and where the defendant's "presence would contribute to the fairness of the procedure." ' . . . The state constitutional right to be present at trial, which is guaranteed by article I of the California Constitution, ' "is generally coextensive with the federal due process right." ' . . . As a matter of both federal and state constitutional law, however, a defendant may validly waive his or her right to be present during a critical stage of the trial, provided the waiver is knowing, intelligent, and voluntary." (People v. Cunningham (2015) 61 Cal.4th 609, 633, citations omitted.)
"Restitution hearings held pursuant to section 1202.4 are sentencing hearings and are thus hearings which are a significant part of a criminal prosecution." (People v. Dehle (2008) 166 Cal.App.4th 1380, 1386 (Dehle); see also Gardner v. Florida (1977) 430 U.S. 349, 358 ["sentencing is a critical stage of the criminal proceeding"].) Accordingly, Klahn had a due process right to be present at the restitution hearing, as that hearing was a critical stage of the criminal proceedings, but Klahn could waive that right through a knowing, intelligent and voluntary waiver.
The restitution order in this case was made pursuant to section 1202.4, subdivision (f), which provides that with certain exceptions, "in 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 court order." Section 1202.4, subdivision (f)(1) states that "[t]he defendant has the right to a hearing before a judge to dispute the determination of the amount of restitution."
Here, on our de novo review (Panizzon, supra, 13 Cal.4th at p. 80), we conclude that Klahn entered a knowing, intelligent and voluntary waiver of his due process right to be present at the restitution hearing when he stated in open court that he wished to waive that right.
Regarding whether Klahn's waiver was voluntary, Klahn plainly agreed to forego his right to be present in open court and on the record, with his attorney present. We find no indication in the record that Klahn experienced any type of coercion or pressure to waive his right to be present at the restitution hearing. Accordingly, all of the evidence indicates that the waiver was voluntary.
On the issue of whether the waiver was knowing and intelligent, Klahn points out that neither the trial court nor counsel explained the importance of the restitution hearing and thus there is no indication that he made a knowing and intelligent waiver of his right to be present at that proceeding. Specifically Klahn argues that "there was no explanation of what the restitution hearing would involve and no explanation of Klahn's right to testify at the hearing or to call witnesses or present evidence contesting the amount of restitution." We reject the argument.
Here, although the trial court did not specifically explain the importance of the restitution hearing, we conclude that the nature of the right that Klahn was waiving was sufficiently defined for Klahn so that his waiver was knowing and intelligent. Specifically, in the trial court's colloquy with Klahn, the court referred to the proceeding at issue as a "restitution review," and earlier in the hearing, defense counsel had referred to an expected "issue as to restitution" that would have to be addressed at a future hearing. From those comments, it should have been evident to Klahn that disputed issues regarding restitution would be decided at the restitution hearing. Further, because Klahn had pled guilty to taking in excess of $100,000, he was on notice that the restitution order could be in a significant amount. If Klahn had any uncertainty about what the restitution hearing would involve, defense counsel was in the courtroom, and Klahn could have consulted with him prior to agreeing to waive his right to be present at the restitution hearing.
Our Supreme Court's decision in People v. Weaver (2001) 26 Cal.4th 876, 967, is pertinent to our analysis of whether Klahn's waiver was knowing and intelligent. In Weaver, the defendant, who was represented by counsel, specifically told the trial court that he wanted to waive his right to be present for part of the trial. On appeal, the defendant argued that his waiver of his right to be present was not knowing or intelligent because "he was not advised of the importance of his personal presence before he waived it," in that specifically " 'he was not admonished by the court or counsel as to the significant impact his presence and demeanor would have on the jury." (Id. at pp. 966-967.) Weaver rejected the argument, explaining that despite the absence of any specific admonishment by the trial court about the importance of the defendant's presence at trial, the defendant's waiver of his right to be present was knowing and intelligent as he stated his waiver in open court for his own reasons and was represented by counsel. (Id. at p. 967; see also People v. Mendoza (2016) 62 Cal.4th 856, 900 [the record established that the defendant's waiver was knowing and intelligent when he personally waived his presence in the courtroom during the playing of 911 call recording].) As in Weaver, we conclude that because Klahn personally stated in open court that he wanted to waive his right to be present, and his attorney was with him at the hearing, which afforded Klahn a chance to clarify the nature of a restitution hearing if he desired to do so, Klahn entered a knowing and intelligent waiver even though the trial court did not explicitly explain to him the importance of the restitution hearing.
In sum, we find no merit to Klahn's argument that he failed to effectuate a knowing, voluntary and intelligent waiver of his constitutional right to attend the restitution hearing. B. Klahn Validly Waived His Statutory Right to Be Present at the Restitution Hearing
The remaining issue is whether Klahn validly waived his statutory right to be present at the restitution hearing.
Two statutes are relevant to the issue presented.
The first relevant statute is section 977. At the time of the proceedings in this matter, section 977 provided that a defendant was required to be present at five categories of proceedings, including sentencing: "In all cases in which a felony is charged, the accused shall be present at the arraignment, at the time of plea, during the preliminary hearing, during those portions of the trial when evidence is taken before the trier of fact, and at the time of the imposition of sentence." (Former § 977(b)(1), as amended by Stats. 2007, ch. 747, § 8.5, p. 6240.) Former section 977 sets forth no procedure by which a defendant could waive his or her required presence at any of those five categories of proceedings. (See Safety Nat. Cas. Corp., supra, 62 Cal.4th at p. 711 [" 'defendant cannot waive his right to be present' at any of the five proceedings enumerated in section 977[, subdivision ](b)(1)"]; Gutierrez, supra, 29 Cal.4th at p. 1203 [" 'section 977 requires a defendant to be present at the five fundamental proceedings' "].) However, with respect to the defendant's presence "at all other proceedings," the statute provides that the defendant may "with leave of court, execute in open court, a written waiver of his or her right to be personally present." (Former § 977, subdivision (b)(1), italics added.)
After Klahn's sentencing and restitution hearing, an amended version of section 977 went into effect, under which section 977, subdivision (c)(1) was added to expressly "authorize a defendant who does not wish to be personally present for noncritical portions of the trial when no testimonial evidence is taken to submit an oral waiver in open court prior to the proceeding, or submit a written request to the court and would allow the court to grant the request in its discretion." (Stats. 2014, ch. 167, italics added; see also People v. Safety Nat. Cas. Corp. (2016) 62 Cal.4th 703, 711, fn. 2 (Safety Nat. Cas. Corp.) [discussing amendment of the statute].) The parties agree that the amended version of the statute is not applicable here.
As discussed above, a restitution hearing is part of the sentencing proceedings. (Dehle, supra, 166 Cal.App.4th at p. 1386; cf. People v. Cain (2000) 82 Cal.App.4th 81, 87 ["a hearing on an amount of restitution to be made to the victim pursuant to section 273.5 is part and parcel of the sentencing process"].) Thus, under the terms of section 977, a defendant is required to be present at a restitution hearing (as it is part of sentencing), and the statute provides no procedure by which the defendant's presence at the proceeding may be waived.
The second relevant statute is section 1193, which concerns the defendant's presence during pronouncement of judgment. "Judgment upon persons convicted of commission of crime shall be pronounced as follows: (a) If the conviction is for a felony, the defendant shall be personally present when judgment is pronounced against him or her, unless the defendant, in open court and on the record, or in a notarized writing, requests that judgment be pronounced against him or her in his or her absence, and that he or she be represented by an attorney when judgment is pronounced, and the court approves his or her absence during the pronouncement of judgment, or unless, after the exercise of reasonable diligence to procure the presence of the defendant, the court shall find that it will be in the interest of justice that judgment be pronounced in his or her absence." (§ 1193, italics added.)
Pronouncement of judgment includes sentencing. (See Hoffman v. Superior Court (1981) 122 Cal.App.3d 715, 723 [" 'After a conviction, following either a plea or verdict of guilty, the court must pronounce judgment upon the defendant [citation], i.e., impose a fine or sentence of imprisonment.' "] Thus, our Supreme Court has expressly acknowledged that the provisions in section 1193 regarding waiver of the right to be present at pronouncement of judgment govern a defendant's waiver of his "right to be present at sentence." (People v. Robertson (1989) 48 Cal.3d 18, 62 (Robertson).) Other authority is in accord, recognizing that "[w]hile section 977, subdivision (b)(1) imposes a general requirement of personal appearance for sentencing in felony matters, section 1193 permits defendants to be sentenced in absentia when specific conditions are met." (Polanski v. Superior Court (2009) 180 Cal.App.4th 507, 546, italics added (Polanski); see also People v. Sanchez (2016) 245 Cal.App.4th 1409, 1414 [citing § 1193 as support for the statement that a criminal defendant has a statutory right to be present for sentencing and recognizing that the defendant's presence may be "properly waived" under that statute].)
In a similar context, our Supreme Court has recognized that although section 977 includes "those portions of the trial when evidence is taken before the trier of fact" as one of the five categories of proceedings during which a defendant must be present (§ 977, subd. (b)(1)), a separate statutory provision qualifies section 977's presence requirement by setting forth circumstances in which a defendant may be absent during trial, once it has commenced. (Gutierrez, supra, 29 Cal.4th at pp. 1203-1204; People v. Welch (1999) 20 Cal.4th 701, 774.) Specifically, section 1043 states that a trial may proceed without the defendant's presence, once commenced, if (1) the defendant voluntarily absents himself; or (2) a defendant is removed from the courtroom for being disruptive. (§ 1043, subd. (b).) In the same way that section 1043, subdivision (b) qualifies the requirement stated in section 977 that a defendant be present during trial, the provisions in section 1193 qualify the requirement stated in section 977 that the defendant be present during sentencing. (Robertson, supra, 48 Cal.3d at p. 62; Polanski, supra, 180 Cal.App.4th at p. 546.) --------
Thus, taken together, section 977 and section 1193 set forth the rule that although a defendant is required by section 977 to be present at sentencing, with section 977 providing no waiver procedure for presence at sentencing, a defendant may utilize one of the procedures set forth in section 1193 to waive his or her presence at pronouncement of judgment, including his or her presence at sentencing. Accordingly, as Klahn's restitution hearing was part of his sentencing, our analysis of whether Klahn validly waived his statutory right to be present at the restitution hearing is governed by section 1193.
As set forth in section 1193, the methods by which defendant may waive his presence at sentencing include when "the defendant, in open court and on the record . . . requests that judgment be pronounced against him or her in his or her absence." (§ 1193, subd. (a).) That is precisely what occurred in this case. In open court and on the record, Klahn stated that he waived his right to be present at the restitution hearing. Accordingly, Klahn's oral waiver in open court fully complied with the statutory requirements.
DISPOSITION
The judgment is affirmed.
IRION, J. WE CONCUR: BENKE, Acting P. J. O'ROURKE, J.