Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. PEF006505, Albert J. Wojcik, Judge.
Philip M. Brooks, under appointment by the Court of Appeal, for Defendant and Appellant Louis Manuel Gonzales.
Stephen Gilbert, under appointment by the Court of Appeal, for Defendant and Appellant Renee Gonzales.
Edmund G. Brown, Jr., Attorney General, and James D. Dutton, Supervising Deputy Attorney General, for Plaintiff and Respondent.
OPINION
King, J.
I. FACTS AND PROCEDURAL HISTORY
Defendants Louis Manuel Gonzales and Renee Gonzales were convicted on December 20, 2002, of various charges arising out of the beating and stabbing of Louis’s stepnephew. At the sentencing hearing, victim restitution was left “to be determined.” Counsel for defendants waived defendants’ presence at any subsequent hearing on the determination of restitution. On August 7, 2007, the superior court ordered defendants to pay restitution in the amount of $19,763.98 to the State Victim Compensation Board as reimbursement for payments made to the victim from the restitution fund. Nothing in the record indicates any notice of hearing was given defendants prior to issuance of the orders. No minute order for any hearing conducted in relation to the orders exists in the record. According to a clerk’s certificate issued on November 2, 2007, there is no record of any hearing for August 7, 2007, in regards to this case; thus, there is no reporter’s transcript either.
II. DISCUSSION
On appeal, defendants contend their statutory and constitutional rights to due process were violated by the court’s order of victim restitution without the provision of notice to defendants of the amount sought and the holding of a hearing to determine that amount. The People concede the matter must be remanded for notice and a hearing. We agree.
Penal Code section 1202.4, subdivision (f) provides, in pertinent part, 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, 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 defendant has the right to a hearing before a judge to dispute the determination of the amount of restitution.” (Pen. Code, § 1202.4, subd. (f)(1).) A court’s summary imposition of a victim restitution order without affording the defendant a reasonable opportunity to challenge the accuracy and/or validity of that order violates that defendant’s constitutional right to due process. (People v. Resendez (1993) 12 Cal.App.4th 98, 114 & fn. 11.)
Here, it appears from the record that the court entered the orders of restitution based on forms provided by the California Victims’ Compensation Board (the Board). Neither defendant was provided notice that the Board was seeking recompense nor the amount of restitution sought. No hearing was conducted to determine the accuracy or validity of the amount of restitution ordered. Thus, defendants were denied their statutory and constitutional due process rights to notice and hearing. The restitution orders must be vacated and the matter remanded for a properly noticed restitution hearing.
Defendants further maintain that their counsels’ waiver of their presence at any subsequent restitution hearing was statutorily flawed because it was not executed in writing and signed by defendants. The People agree. So do we.
Penal Code section 977, subdivision (b) provides that “the accused shall be present” at certain proceedings and “at all other proceedings unless he or she shall, with leave of court, execute in open court, a written waiver of his or her right to be personally present . . . .” (See also People v. Davis (2005) 36 Cal.4th 510, 531.)
No written waivers of defendants’ rights to be present at the restitution hearing appear in the record. Thus, on remand, the court shall permit the defendants’ presence at any hearing on restitution unless valid waivers have been executed.
III. DISPOSITION
The restitution order is hereby vacated and the matter remanded for further proceedings consistent with the views expressed herein.
We concur: Hollenhorst, Acting P.J., Richli, J.