Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. F426661, F426679, Martin J. Tangeman, Judge.
Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Kenneth C. Byrne, Supervising Deputy Attorney General, David C. Cook, Deputy Attorney General, for Plaintiff and Respondent.
GILBERT, P.J.
Jose Maria Orozco IV appeals a restitution order following his no contest pleas to stalking (Pen. Code, § 646.9, subd. (a)), resisting an executive officer (id., § 69), and disobeying a court order (id., § 273. 6, subd. (a)). The trial court placed Orozco on probation and ordered him to pay restitution. Orozco requested a restitution hearing. The court initially held two hearings on that issue. Orozco attended the first restitution hearing, but was voluntarily absent from the second. We conclude, among other things, that the trial court did not err by proceeding with the second hearing and making a restitution order. We affirm.
FACTS
C.A. obtained a restraining order to prevent Orozco from contacting her. On December 24, 2008, she contacted the police. She said that Orozco had violated the restraining order by leaving threatening telephone messages. In one message, he told her, "Do not ever threaten me again with the police, or these stupid papers. They're just papers."
Orozco stalked C.A. He went to her place of work looking for her. He left threatening messages on her work cell phone stating, "I know where you came from and where you are. So watch out."
Two sheriff's deputies went to Orozco's residence to make an arrest. Orozco became combative; he resisted arrest and threatened the deputies. Because of his combative behavior, the officers had to place him in "hobble nylon restraints."
Orozco was charged with three felonies stalking, resisting an executive officer and violating a court order. Pursuant to a plea agreement, these offenses were reduced to misdemeanors.
At the sentencing hearing, Orozco discharged his counsel and told the trial court that he was representing himself. At the hearing, the court said, "You must pay restitution to be determined by the probation department. If you disagree with any amount that they set at probation, you may request a hearing."
C.A. filed a claim with the Victim Compensation and Government Claims Board (VCGCB). The probation department determined the restitution amount to be $4,083.61 based on the benefits paid by the VCGCB as of December 17, 2009.
On March 26, 2010, Orozco requested a hearing on the amount of restitution.
On April 7, 2010, the trial court held a hearing on restitution. Orozco attended and represented himself. The court considered the written documentation that had been submitted by the probation department and the VCGCB. It scheduled a second hearing on restitution for May 3, 2010, at 1:30 p.m.
On April 29, the VCGCB sent additional records to the trial court and Orozco in a document entitled "certification of records for restitution hearing." Those records reflected that the VCGCB had paid a total of $5,403.61 for loss of income and mental health services for C.A. Orozco made no response to these documents.
On May 3, 2010, the trial court commenced the second hearing on restitution. Orozco did not appear for this hearing. He had not called the court, and between April 7 and May 3, he had not moved for any continuance. The court ordered that Orozco pay restitution in the amount of $5,403.61.
On May 10, Orozco contacted the trial court and requested that the case be calendared for a modification of restitution.
On May 14, Orozco wrote a letter to the trial court. He stated that he had failed to attend the May 3rd hearing because he was visiting his mother who was in a nursing home and was ill. He asked the court to give him "another hearing."
The trial court granted his request and scheduled a hearing on May 24. Orozco appeared at the hearing. The court rejected his request to change the restitution amount.
DISCUSSION
Making a Restitution Order During Orozco's Absence
Orozco contends that the trial court erred by proceeding with the May 3rd restitution hearing and making a restitution order in his absence. The Attorney General claims that the court properly proceeded and had the authority to make the order, because after attending the first restitution hearing, Orozco was voluntarily absent from the second hearing. The Attorney General is correct.
"A criminal defendant's right to be present at trial is protected under both the federal and state Constitutions." (People v. Gutierrez (2003) 29 Cal.4th 1196, 1202.) But Orozco's contention that the trial court lacked the constitutional authority to proceed in his absence in this case is not correct.
In Gutierrez, our Supreme Court rejected the claim that a trial court could never proceed with a trial in the absence of the defendant. The court said, "[A] trial court may continue a trial in a custodial defendant's absence after the trial has commenced in the defendant's presence without first obtaining the defendant's written or oral waiver of the right to presence if other evidence indicates the defendant has chosen to be absent voluntarily." (People v. Gutierrez, supra, 29 Cal.4th at p. 1206.) This rule is "'designed to prevent the defendant from intentionally frustrating the orderly processes of his trial by voluntarily absenting himself.'" (Id., at pp. 1204-1205.)
Orozco claims that he was deprived of his right to be present at the second hearing. But the record reflects that after attending the first hearing, Orozco voluntarily decided not to attend the second hearing. He had notice that it was scheduled for May 3. The April 7th minute order reflects that at the first hearing the trial court set the date and time for the second restitution hearing. He had an additional reminder that there was a second hearing. The VCGCB sent Orozco a packet of documents entitled "certification of records for restitution hearing" on April 29.
Moreover, there is nothing in the record to show that anyone prevented Orozco from attending. In his May 14th letter to the trial court, Orozco admitted that he did not go to the hearing because he decided to visit his mother. He claimed she was in poor health in a nursing home, but he provided no details and did not claim that there was any emergency. The court could reasonably infer that his absence was not excusable. Orozco was not in custody. There was almost a month between the two hearings. He never moved for a continuance. He did not call the clerk's office on May 3 to inform the court he was unable to attend. Orozco had no right to frustrate "'the orderly processes of his trial by voluntarily absenting himself.'" (People v. Gutierrez, supra, 29 Cal.4th at p. 1205.) He has not shown that the court abused its discretion by deciding to proceed in his absence.
But even if the trial court had erred, the result does not change because there was no prejudice. Orozco requested and received another hearing on May 24 on the restitution issue. He has not shown that at that hearing the court prevented him from challenging the amount of restitution or that there was any constitutional deficiency in that proceeding. Moreover, the restitution order is consistent with the documentary evidence in the record. Orozco makes no showing on appeal that the amount the court ordered was excessive and has not demonstrated what evidence he could have produced to support a different result. The court held three hearings on the restitution issue.
Orozco claims that when he went to the two restitution hearings, the trial court ruled that he was not entitled to appointed counsel. But the record that Orozco has provided of the April 7th and May 24th hearings contains nothing to reflect that the court ever made such rulings. Orozco did not request a settled statement. We cannot presume error on a silent or incomplete record. (See People v. Malabag (1997) 51 Cal.App.4th 1419, 1427 ["The orders of the trial court are presumed to be valid and defendant has the burden of providing a record adequate to support his arguments on appeal"].)
We have reviewed Orozco's remaining contentions and conclude that he has not shown any error.
The judgment is affirmed.
We concur: YEGAN, J., COFFEE, J.