Opinion
F079210
01-29-2021
THE PEOPLE, Plaintiff and Respondent, v. JOSE MANUEL SANCHEZ, Defendant and Appellant.
Eric E. Reynolds, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Nikta (Nikki) Allami, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. VCF358291)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Tulare County. Joseph A. Kalashian, Judge. (Retired judge of the Tulare County Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Eric E. Reynolds, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Nikta (Nikki) Allami, Deputy Attorneys General, for Plaintiff and Respondent.
Before Poochigian, Acting P.J., Peña, J. and De Santos, J.
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INTRODUCTION
Appellant Jose Manuel Sanchez entered a plea of no contest to one count of second degree robbery (Pen. Code, § 211). He was sentenced to an aggregate term of five years in state prison. Following sentencing, the trial court held a restitution hearing and ordered Sanchez to pay restitution in the amount of $599. Sanchez was not present at this hearing.
All undefined statutory references are to the Penal Code unless otherwise indicated.
On appeal, Sanchez contends the trial court violated his constitutional and statutory right to be present at the restitution hearing. He further contends the error calls for this matter to be remanded back to the lower court for a new restitution hearing. We conclude Sanchez's absence from the hearing was not prejudicial. Therefore, we affirm the trial court's order.
PROCEDURAL HISTORY
On July 2, 2018, the People filed an information charging Sanchez with second degree robbery (§ 211, counts 1, 3, & 5); attempted second degree robbery (§ 211, count 7); assault with a firearm (§ 245, subd. (a)(2), counts 2, 4, 6, & 8); possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a), count 9); possession of drug paraphernalia (Health & Saf. Code, § 11364, subd. (a)(1), count 10). As to counts 1, 3, 5, and 7, the information alleged that Sanchez personally used a firearm in the commission of the offense (§ 12022.53, subd. (b)). As to counts 2, 4, 6, and 8, the information alleged Sanchez used a firearm, causing the offense to become a serious felony (§§ 12022.5, 1192.7, subd. (c), 667.5, subd. (c)).
On December 13, 2018, pursuant to a negotiated plea agreement, Sanchez withdrew his plea of not guilty and entered a plea of no contest to one count of second degree robbery. The parties stipulated to the factual basis for the plea and the People dismissed the remaining counts and enhancements alleged in the information.
On January 14, 2019, the court sentenced Sanchez to a term of five years in state prison.
On March 7, 2019, the court held a hearing to discuss restitution. Defense counsel appeared on behalf of Sanchez, who was in custody.
On March 22, 2019, the court held a restitution hearing and ordered Sanchez to pay a direct restitution fine of $599. He was not present at this hearing.
Sanchez filed a timely notice of appeal.
FACTUAL HISTORY
Because Sanchez entered a plea of no contest to robbery and he stipulated to the factual basis for his plea, we need not recite the facts of his underlying conviction.
On December 13, 2018, when Sanchez entered his plea of no contest, the parties and the court discussed whether restitution would be ordered. One cell phone had been taken during the commission of the robbery that had not been recovered. Accordingly, the court told Sanchez restitution would be involved and asked if he understood. Sanchez responded affirmatively.
On January 14, 2019, the court held a sentencing hearing. At the hearing, defense counsel stated, "[w]hen it comes to restitution, [Sanchez] would not like to stipulate to it. He wants to have a hearing." After the court set a pretrial restitution hearing, the court asked whether Sanchez would be waiving his presence. Defense counsel responded, "[d]efinitely for the pretrial. At that point if we have to set a hearing, I would send him a letter and ask if he would like to be present." Sanchez was not ordered present for the pretrial hearing.
On March 7, 2019, the court held the pretrial hearing. The People told the court the victim was requesting restitution in the amount of $599, the replacement cost of the unrecovered cell phone. Defense counsel stated, "[Sanchez] has been transported to prison. I need to communicate with him to see if we can get a stipulation to that amount."
On March 22, 2019, the court held the restitution hearing. The following exchange ensued:
"[Defense Counsel]: [Counsel] for Mr. Sanchez, who is not present, as he's in prison. I wrote Mr. Sanchez about the restitution amount. I have not heard back. My notes from his sentencing date indicated that he did want to have a hearing on this matter. So I think we can just rely on that representation. The defense will not present any evidence, but we can have the hearing either today or—
"THE COURT: Does he want to be here?
"[Defense Counsel]: Again, I haven't asked him—I sent the letter asking. He has not responded. But at the time of sentencing he said he wanted to have a hearing and he did not want to be present. So I think we can rely on that initial representation.
"THE COURT: Sure. We can have the hearing now."
The People submitted on the victim's statement pertaining to the replacement cost of the phone and on the probation report. Having no evidence to contradict the victim's claim that the replacement cost of the phone was $599, defense counsel also submitted. The court awarded restitution in the amount of $599.
ANALYSIS
I. Standard of Review
We apply " '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; see People v. Waidla (2000) 22 Cal.4th 690, 741.) A contested restitution hearing entails such a measurement.
With respect to a trial court's finding of voluntary absence, our review is limited to determining whether, based upon the totality of the facts, substantial evidence supports the finding. (People v. Concepcion (2008) 45 Cal.4th 77, 84; People v. Espinoza (2016) 1 Cal.5th 61, 74.)
II. A Criminal Defendant's Right to Be Present at a Restitution Hearing
Section 1202.4, subdivision (f) provides that "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." Both the federal and state Constitutions confer to a criminal defendant the right "to be present at critical stages of a criminal prosecution." (People v. Wilen (2008) 165 Cal.App.4th 270, 286 (Wilen); see U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, § 15; § 977, subd. (b)(1).) Sentencing and pronouncement of judgment is a critical stage of a criminal proceeding. (Wilen, at p. 287.) Because restitution hearings held pursuant to section 1202.4 are sentencing hearings, they are "hearings which are a significant part of a criminal prosecution." (People v. Dehle (2008) 166 Cal.App.4th 1380, 1386; see People v. Giordano (2007) 42 Cal.4th 644, 662; People v. Cain (2000) 82 Cal.App.4th 81, 87.)
A defendant may waive his or her right to be present at a critical stage of a criminal proceeding. (People v. Mendoza (2016) 62 Cal.4th 856, 898-899.) "Waiver may be express or implied." (People v. Concepcion, supra, 45 Cal.4th at p. 82.) Defense counsel may also waive a defendant's right to attend a criminal proceeding where there is evidence the defendant knowingly understood and consented to the waiver. (People v. Davis (2005) 36 Cal.4th 510, 532 (Davis).)
Coextensive with a defendant's constitutional right, California statutory law also secures a defendant's right to be present during various stages of a criminal proceeding. (See, e.g., §§ 977, subd. (b)(1), 1043, subd. (a), 1193, subd. (a).) Pursuant to section 977, a criminal defendant is required to be present at a restitution hearing, as it is part of sentencing. (People v. Dehle, supra, 166 Cal.App.4th at p. 1386.)
Although section 977 provides no waiver procedure, section 1193 provides several methods by which a defendant may waive his or her presence. A defendant may, "in open court and on the record, or in a notarized writing, request[] that judgment be pronounced against him or her in his or her absence." (§ 1193, subd. (a).) This procedure requires the defendant to be represented by an attorney and the defendant's absence must be approved by the court. (Ibid.) A defendant's presence may also be impliedly waived if "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." (Ibid.)
III. Appellant's Absence From Restitution Hearing Was Harmless Error
The People contend Sanchez voluntarily absented himself from the restitution hearing by executing both an express and implied waiver. As discussed further below, we find no evidence of an express waiver. Although there is some evidence of an implied waiver, the record does not support the People's characterization of this evidence as "substantial." Although we find insufficient evidence Sanchez voluntarily absented himself from the restitution hearing, we are persuaded the error is harmless.
A. The Trial Court Erred by Holding a Restitution Hearing Without Appellant
First, we address the People's assertion that Sanchez waived his constitutional right to be present at the restitution hearing. According to the People, Sanchez expressly waived his right to be present when he told defense counsel at sentencing that he did not want to be present at the restitution hearing.
1. Express Waiver
To validly waive the federal and state constitutional right to be present at a crucial aspect of criminal proceedings, the waiver must be voluntary, knowing and intelligent. (Davis, supra, 36 Cal.4th at p. 531; People v. Cunningham (2015) 61 Cal.4th 609, 633.) Defense counsel may waive the defendant's presence at a critical stage of criminal prosecution, "but only if there is evidence that defendant consented to the waiver. [Citations.] At a minimum, there must be some evidence that the defendant understood the right he was waiving and the consequences of doing so." (Davis, at p. 532, fn. omitted.)
In Davis, our Supreme Court held defense counsel's waiver of the defendant's presence at a pretrial hearing was not valid under the federal Constitution because "[a]ll the record shows is that defense counsel represented to the court that counsel had discussed the hearing with defendant and that defendant would waive his presence. There is no evidence that defense counsel informed defendant of his right to attend the hearing; nor is there evidence that defendant understood that by absenting himself from the hearing he would be unable to contribute to the discussion of the contents of the tape recording." (Davis, supra, 36 Cal.4th at p. 532.) Therefore, the court held, "we cannot conclude that defendant knowingly and intelligently waived his right to presence at the hearing." (Ibid.)
As in Davis, there is insufficient evidence in the record before us to find Sanchez knowingly and intelligently waived his constitutional right to be present at the restitution hearing. At the restitution hearing, defense counsel stated she had sent Sanchez a letter about the proposed restitution amount, but that she "ha[d] not heard back" from him. She added, "[m]y notes from his sentencing date indicated that he did want to have a hearing on this matter. So I think we can just rely on that representation." When the court asked whether Sanchez wanted to be present for the hearing, counsel replied, "Again, I haven't asked him—I sent the letter asking. He has not responded. But at the time of sentencing he said he wanted to have a hearing and he did not want to be present. So I think we can rely on that initial representation." Defense counsel's assertion that Sanchez stated he did not want to be present is belied by the record.
At sentencing, the court asked defense counsel whether Sanchez was waiving his presence for the pretrial hearing. Defense counsel replied, "[d]efinitely for the pretrial. At that point if we have to set a hearing, I would send [Sanchez] a letter and ask if he would like to be present." Thus, based upon counsel's statement, she had yet to ask Sanchez if he wanted to be present at the hearing.
The People suggest defense counsel could have been referring to a subsequent conversation she had with Sanchez, which presumably occurred during an off-the-record conference to which we are not privy. Even assuming such a conversation had occurred, the record provided contains no evidence Sanchez knowingly and intelligently waived his right to be present at the restitution hearing. The record shows only that Sanchez was advised restitution would be "involved." It is unclear whether Sanchez knew the date the hearing was scheduled to occur.
We conclude the record fails to support the conclusion Sanchez expressly waived his constitutional right to be present at the restitution hearing. We now turn to whether Sanchez impliedly waived his right to be present.
2. Implied Waiver
The People assert Sanchez impliedly waived his right to be present at the restitution hearing by voluntarily absenting himself. According to the People, although Sanchez had requested a restitution hearing, he "waived his presence for the pretrial hearings ... and then failed to respond to his attorney's letter ...."
On March 7, 2019, defense counsel advised the court she was going to communicate with Sanchez to discuss whether he would stipulate to the amount of restitution requested by the victim. Two weeks later, counsel claimed she had written Sanchez, but did not receive a response as to either the proposed restitution award or whether he desired to be present at the restitution hearing. The record does not contain facts showing when the letter was dispatched. As a result, we are unable to reasonably infer Sanchez received the letter, had a sufficient opportunity to respond, but chose not to, electing to absent himself from the hearing.
Moreover, we find defense counsel's representation at the restitution hearing problematic once again. The record contradicts counsel's claim that Sanchez stated at sentencing that he did not want to attend the restitution hearing. As discussed, defense counsel stated she was going to ask Sanchez whether he wanted to attend the hearing once the pretrial hearing occurred. From the record, it appears the only notice Sanchez had as far as the date of the hearing is concerned is from defense counsel's letter, which may or may not have reached him in a timely manner. Based on the totality of the facts, there is insufficient evidence to conclude Sanchez voluntarily absented himself from the restitution hearing.
With respect to Sanchez's statutory right to be present, the People offer neither argument nor evidence supporting the conclusion Sanchez expressly or impliedly waived this right. As set forth in section 1193, a defendant may waive his presence at sentencing when "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." (§ 1193, subd. (a).) Alternatively, a defendant's presence may also be impliedly waived if "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." (Ibid.)
Our independent review of the record discloses no such request was made by Sanchez on the record. Further, the trial court made no finding regarding whether reasonable diligence had been exercised to procure Sanchez's presence. Nonetheless, as discussed in part III.B, post, the error is harmless.
B. Appellant Was Not Prejudiced
Errors of federal constitutional magnitude are reviewed under the standard set forth in Chapman v. California (1967) 386 U.S. 18, which requires us to determine whether the error was "harmless-beyond-a-reasonable-doubt." (Davis, supra, 36 Cal.4th at p. 532, citing Chapman, at p. 23.) "[A] defendant whose right of personal presence was denied bears the burden of demonstrating prejudice." (Wilen, supra, 165 Cal.App.4th at p. 290; People v. Bradford (1997) 15 Cal.4th 1229, 1358.)
Failure to comply with the presence requirement of section 977 is an error "of a purely statutory dimension" (People v. Jackson (1996) 13 Cal.4th 1164, 1211) and the judgment will be reversed "only if we can conclude 'that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.' (People v. Watson (1956) 46 Cal.2d 818, 836.)" (Ibid.) The error here is of a constitutional and statutory dimension, so the heightened standard articulated under Chapman applies.
There is no dispute the victim here was entitled to restitution. (§ 1202.4, subd. (f)), and Sanchez's interests were represented by counsel at the hearing. At the hearing, defense counsel stated she did not have any evidence "to counteract the representation of the cost of replacing [the victim's] cell phone." Thus, the record contains no evidence Sanchez's presence at the restitution hearing would have had any impact at all on the amount of restitution awarded.
Sanchez argues if he had been present, he could have offered testimony contradicting the victim's claim as to the type of phone taken, or its condition. Sanchez's assertion that he may have been able to rebut the People's showing is purely speculative. He cites nothing in the record for support. Consequently, we are persuaded the trial court's error of excluding him from the restitution hearing is harmless beyond a reasonable doubt.
DISPOSITION
The restitution order is affirmed.