Opinion
G056484
12-10-2019
THE PEOPLE, Plaintiff and Respondent, v. CARLOS ANDRES CATALAN-ARANEDA, Defendant and Appellant.
Alissa L. Bjerkhoel, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Kristen Ramirez, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 15HF0798) OPINION Appeal from a judgment of the Superior Court of Orange County, Julian W. Bailey, Judge. Affirmed in part, reversed in part; remanded with directions. Alissa L. Bjerkhoel, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Kristen Ramirez, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant Carlos Andres Catalan-Araneda of 14 sexual offenses committed against his daughter, including: continuous sexual abuse of a child under the age of 14 (Pen. Code, § 288.5, subd. (a); undesignated statutory references are to the Penal Code); five forcible lewd acts on a child under the age of 14 (§ 288, subd. (b)(1)); aggravated sexual assault (oral copulation) of a child (§ 269, subd. (a)(4)); aggravated sexual assault (rape) of a child (§ 269, subd. (a)(1)); forcible rape of a child under the age of 14 (§§ 261, subd. (a)(2) & 264, subd. (c)(2)); two lewd acts upon a child 14 or 15 years old (§ 288, subd. (c)(1)); two forcible oral copulations of a child under the age of 14 (§ 288a, subd. (c)(2)(C)); and kidnapping to commit a sexual offense (§ 209, subd. (b)(1)).
Defendant was sentenced to an indeterminate term of 114 years to life. The trial court credited defendant with 1,192 days in custody and, following a subsequent restitution hearing, ordered restitution in the amount of $8,386.48.
On appeal, defendant does not challenge his convictions or his prison term. Instead, he contends the trial court erred in excluding him from the restitution hearing because he had a constitutional and statutory right to be present, and that he was prejudiced by his absence. Defendant also claims the trial court erred in calculating his credits and that on remand the trial court should recalculate his credits to include the credits he earned between his sentencing hearing and the restitution hearing.
The Attorney General agrees with both contentions, and so do we. Therefore, defendant's sentence is reversed in part. The matter is remanded to the trial court with directions to conduct a new restitution hearing. In addition, at the conclusion of the restitution hearing, the trial court is ordered to recalculate defendant's credits, and prepare and forward an amended abstract of judgment reflecting defendant's additional credits to the Department of Corrections and Rehabilitation. In all other aspects the judgment is affirmed.
FACTS
Because defendant does not challenge his convictions or his prison term, and does not contest the underlying facts, we need only briefly describe them. Suffice it to say, defendant sexually abused his daughter for almost two years, from the time she was 12 to after she turned 14. During that time, defendant touched and rubbed her vagina with his hand and penis; had her hold, kiss, and masturbate his penis; fondled her buttocks; kissed and fondled her breasts; kissed her on the lips; orally copulated her; and penetrated her vagina with his penis.
She did not like what was happening, sensed it was wrong and wanted it to stop, but did not know what to do. She verbally and physically resisted defendant's advances, often without success. When she asked him if she could tell her mother what they were doing, defendant said "no," and explained that if she told her mother, she would be angry, he would have to move away, her parents would get a divorce, and she would end up in a foster home.
Eventually, she confided in her mother and the two contacted police. During a recorded pretext phone call, defendant admitted to touching her, putting his penis inside of her, and licking her vagina. Defendant asked her to lie about what happened.
DISCUSSION
1. The Court Erred by Holding a Restitution Hearing Without Defendant or His Attorney's Presence
A. Background
At the original sentencing hearing, the trial court ordered defendant to pay victim restitution pursuant to section 1202.4, and retained jurisdiction over the matter to determine the amount at a later date. The parties agreed on a restitution hearing date, and defense counsel told the court defendant wished to appear. The court ordered defendant to appear and to disclose his assets and liabilities as of the date of his arrest.
On the date set for hearing, the prosecutor was present, but defense counsel was not. The court's efforts to reach him were unsuccessful. Defendant was also not present in court, and he remained in custody in a nearby holding cell.
The court proceeded with the restitution hearing, noting it had reviewed the documents presented by the prosecutor from the California Victims Compensation Board. Nothing in the record suggests defendant had disclosed his assets and liabilities as ordered.
The court stated, "The documents are signed and sealed, appear to be efficient [sic] documents of the Board; each declaration bearing the embossed seal and the attachments, which are the forms for the claims; and I find that the claim for $8,386.48 has been submitted with proper documentation, which I accept . . . ." The court then ordered restitution in the amount of $8,386.48, plus an administrative fee pursuant to section 1203.1.
Defendant now contends the trial court violated his constitutional and statutory right to be present at the restitution hearing, the error is not harmless, and the matter must be remanded for a new restitution hearing. The Attorney General agrees, and so do we.
B. Standard of Review
"'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.' [Citation.]" (People v. Gutierrez (2003) 29 Cal.4th 1196, 1202.) A contested restitution hearing entails such a measurement. (Cf. Kentucky v. Stincer (1987) 482 U.S. 730, 744, fn. 17 [the defendant must be present when his appearance is necessary to prevent "interference with [his] opportunity for effective cross-examination"].)
C. Defendant Is Entitled to a New Restitution Hearing Because He Was Denied His Constitutional and Statutory Rights to be Present
"A defendant has a right to be present at critical stages of a criminal prosecution, a right protected by both the federal [C]onstitution and the state [C]onstitution." (People v. Wilen (2008) 165 Cal.App.4th 270, 286 (Wilen); see United States v. Gagnon (1985) 470 U.S. 522, 526 (Gagnon) [finding the right to presence in the 6th and 14th Amendments to the federal Constitution], Cal. Const., art. I, §§ 15, 16.) Similarly, statutory law encompasses a defendant's state law rights to be present during various stages of a criminal proceeding. (See, e.g., §§ 977, subd. (b)(1), 1043, subd. (a), & 1193, subd. (a).)
Sentencing and pronouncement of judgment is a critical stage of a criminal prosecution. (Wilen, supra, 165 Cal.App.4th at p. 287.) "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; People v. Cain (2000) 82 Cal.App.4th 81, 87 (Cain) ["a hearing on an amount of restitution . . . is part and parcel of the sentencing process"].)
In general, a defendant may waive his or her federal constitutional right to be present at a critical stage. (People v. Mendoza (2016) 62 Cal.4th 856, 898-899 (Mendoza).) Waiver may be express or implied. (People v. Concepcion (2008) 45 Cal.4th 77, 82; cf. Gagnon, supra, 470 U.S. at pp. 528-529 [implied waiver by voluntary absence].) 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.)
Here, neither defendant nor his counsel was present at the restitution hearing, and there is no evidence defendant or counsel waived his right to be present. Rather, at the original sentencing hearing defendant's counsel explicitly stated defendant wished to be present at the restitution hearing, and the trial court had ordered defendant to appear at the hearing. However, the trial court conducted the restitution hearing without defendant or his counsel, and without giving defendant or his counsel an opportunity to contest the amount of restitution.
Because the trial court's error resulted in a violation of defendant's federal constitutional right to be present at a critical stage of the proceedings, we review the error under Chapman v. California (1967) 386 U.S. 18, 23, to determine if it was harmless beyond a reasonable doubt. (Mendoza, supra, 62 Cal.4th at p. 902 ["'Under the federal Constitution, error pertaining to a defendant's presence is evaluated under the harmless-beyond-a-reasonable-doubt standard set forth in Chapman'"].) Under that standard, the error "may be deemed harmless only if we can conclude beyond a reasonable doubt that the deprivation did not affect the outcome of the proceeding." (People v. Simms (2018) 23 Cal.App.5th 987, 998; People v. Rutterschmidt (2012) 55 Cal.4th 650, 661 [federal constitutional error requires reversal of the judgment "unless the prosecution can show 'beyond a reasonable doubt' that the error was harmless"].)
Here, defendant expressed a desire to be present. He may have offered arguments or evidence for why the restitution amount was inaccurate or incorrect. While the trial court may or may not have chosen to believe what defendant might have said, if he said anything, we cannot conclude beyond a reasonable doubt that his presence at the hearing would not have affected the ultimate restitution amount.
Therefore, "remand is necessary to ensure proceedings that are just under the circumstances, namely, a hearing at which both the People and defendant may be present and advocate for their positions." (People v. Rocha (2019) 32 Cal.App.5th 352, 360.) Accordingly, the matter must be remanded for a new restitution hearing. 2. The Court Erred by Not Recalculating Defendant's Additional Local Custody Credits
Defendant was originally sentenced on May 25, 2018. On that date the court credited defendant with 1,192 days, comprising 1,037 days of custody credits and 155 days of conduct credits. However, defendant was not transported to prison after this sentencing hearing and instead remained in local custody pending the restitution hearing. The restitution hearing was held on July 13, 2018 and, at its conclusion, the court finally ordered defendant into the custody of the Department of Corrections and Rehabilitation. The court did not recalculate defendant's additional local time credits earned between the sentencing hearing and the restitution hearing.
"Everyone sentenced to prison for criminal conduct is entitled to credit against his term for all actual days of confinement solely attributable to the same conduct. [Citations.] . . . '[T]he court imposing a sentence' has responsibility to calculate the exact number of days the defendant has been in custody 'prior to sentencing,' add applicable good behavior credits . . . and reflect the total in the abstract of judgment. [Citations.]" (People v. Buckhalter (2001) 26 Cal.4th 20, 30.) Because a restitution hearing is "part and parcel of the sentencing process," here the trial court was obligated to recalculate defendant's credits at the close of the restitution hearing and prior to his transfer into the custody of the Department of Corrections and Rehabilitation. (Cain, supra, 82 Cal.App.4th at p. 87.) On remand, the trial court must do such recalculation and prepare an amended abstract of judgment.
DISPOSITION
The trial court's sentence is reversed in part. The matter is remanded to the trial court with directions to conduct a new restitution hearing, at which defendant and his counsel shall be present unless defendant waives his presence in accordance with section 1193.
In addition, at the conclusion of the restitution hearing, the trial court shall recalculate defendant's credits, and prepare and forward an amended abstract of judgment reflecting defendant's additional credits to the Department of Corrections and Rehabilitation. In all other aspects the judgment is affirmed.
THOMPSON, J. WE CONCUR: ARONSON, ACTING P. J. IKOLA, J.