Opinion
D068266
01-10-2017
THE PEOPLE, Plaintiff and Respondent, v. ROBERTO HERNANDEZ, Defendant and Appellant.
Stephen M. Vasil, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Stacy A. Tyler, Marilyn L. George and Scott C. Taylor, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCN331383-3) APPEAL from orders of the Superior Court of San Diego County, Robert J. Kearney and Michael J. Popkins, Judges. Affirmed. Stephen M. Vasil, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Stacy A. Tyler, Marilyn L. George and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
Roberto Hernandez pled guilty to first degree residential burglary (Pen. Code., §§ 459, 460) (Count 1), second degree residential burglary (§ 459) (Count 11), resisting a peace officer (§ 69) (Count 13), and grand theft of a firearm (§ 487, subd. (d)(2)) (Count 18). In accordance with the parties' plea agreement, the People dismissed numerous other charges, including a charge of second degree burglary (§ 459) (Count 17). The plea agreement specified that the trial court could consider dismissed counts in ordering victim restitution. Pursuant to a stipulation, the trial court sentenced Hernandez to four years in prison on count 1 and imposed concurrent sentences on the remaining counts. After a restitution hearing, the trial court ordered Hernandez to pay the victim of counts 17 and 18, Stanley Thorp, restitution in the amount of $79,188.40. The court also ordered Hernandez and codefendant Moses Chavez to pay the victims of count 1, Rosanna and Anna Console (the Consoles), restitution in the amount of $578,015.
Unless otherwise specified, all subsequent statutory references are to the Penal Code.
On appeal, Hernandez claims that the restitution order in favor of the Consoles must be reversed because there is insufficient evidence in the record to support the trial court's determination that Hernandez's criminal conduct caused losses totaling the amount of restitution awarded. Hernandez also claims that both restitution orders must be reversed because he did not validly waive his right to be present at the restitution hearing. We affirm both restitution orders.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. The complaint
In September 2014, the People filed an 18 count complaint against Hernandez, and two codefendants, Chavez and Natalie Cervantes Mejia. The People charged Hernandez with the following offenses:
Count 1 - committing a residential burglary with the intent to commit theft on or about April 11, 2014. (§§ 459, 460.)
Count 11 - committing a burglary with the intent to commit theft on or about June 5, 2014. (§ 459.)
Count 12 - committing grand theft of personal property worth more than $950 from William Rhinehart between June 5, 2014, and June 6, 2014. (§ 487, subd (a).)
Count 13 - resisting an executive officer on June 13, 2014. (§ 69.)
Count 14 - unlawfully carrying a loaded firearm in public on June 13, 2014. (§ 25850, subd. (a).)
Count 15 - being a felon in possession of a firearm on June 13, 2014. (§ 29800, subd. (a)(1).)
Count 16 - knowingly receiving stolen property on June 13, 2014. (§ 496, subd. (a).)
Count 17 - committing a burglary between April 14, 2014, and April 21, 2014. (§ 459.)
Count 18 - committing grand theft of a firearm belonging to Thorp between April 14, 2014, and April 21, 2014. (§ 487, subd. (d)(2).)
Count 1 also named Chavez and Mejia as codefendants and counts 11 and 12 named Chavez as a codefendant. B. The plea
In December 2014, Hernandez agreed to plead guilty to residential burglary (Count 1), second degree burglary (Count 11), resisting an executive officer (Count 13), and grand theft of a firearm (Count 18). In exchange, the People agreed to dismiss the balance of the charges, and the parties agreed that Hernandez would receive a stipulated four-year prison term on count 1, and concurrent terms on the remaining convictions. In the plea agreement, Hernandez agreed that "[t]he sentencing judge may consider my prior criminal history and the entire factual background of the case, including any unfiled, dismissed or stricken charges or allegations or cases when . . . ordering restitution." That same day, the trial court held a change of plea hearing, and accepted Hernandez's guilty pleas as outlined in the plea agreement. C. The probation report
Such agreements are commonly referred to as Harvey waivers. (See People v. Harvey (1979) 25 Cal.3d 754.) "When the defendant enters a negotiated disposition, with counts dismissed subject to a Harvey waiver, the court can consider the dismissed counts for purposes of sentencing and restitution." (People v. Hume (2011) 196 Cal.App.4th 990, 996.)
Because there was no trial in this case, we base our summary of the relevant facts of the offenses for which restitution was ordered on the probation report. A trial court may consider a probation report in determining the proper amount of restitution. (People v. Keichler (2005) 129 Cal.App.4th 1039, 1048 (Keichler).)
The probation report indicates that count 1 was based on the burglary of the Consoles' vacation home. The report states:
"Shortly before 1:00 a.m. on [April 11, 2014], Rosanna Console arrived at her vacation home in Bonsall with her mother, Anna Console, and discovered someone was in her house without her permission. . . . As she approached, she saw lights on in her home.
Two of her family vehicles, a pick-up truck and a Lexus, were parked in the driveway . . . .
"The Consoles parked some distance from home and called the Sheriff. As they waited in the car, defendants . . . Chavez and . . . Mejia, drove by in Rosanna's Lexus. . . .
"The inside of the Console home was in complete disarray. The suspects left behind clothing, bedding and food that did not belong to the victims. As Rosanna walked through her home with deputies, she discovered several items had been stolen from her home, including a washer and dryer, several pieces of antique furniture, a television, a Persian rug, a telescope, a microwave and jewelry. Her 1991 Acura had also been stolen. A water heater had been cut out of a closet. Ms. Console discovered that the home security system panels in two closets had been disconnected."
The probation report further states that Hernandez's fingerprints were found inside the Consoles' residence.
With respect to counts 17 and 18, the probation report stated:
"Victim Stanley Thorp owned a contracting company. He kept two Conex storage containers and a trailer filled with tools and machinery from the company on his property in an unincorporated area of Escondido. On [April 14, 2014], he locked the Conex boxes and trailer before going out of town. When he returned, he discovered entry had been forced to both boxes and the trailer. Generators, air compressors, paint supplies and about $10,000 in hand tools had been stolen from the containers. Additionally, three rifles were stolen from one of the storage boxes. His estimated loss was over $14,000."
The probation report noted that Hernandez's DNA was found on a cigarette butt in one of the storage boxes.
In addition to these offenses, the probation report described evidence linking Chavez and Hernandez to an additional theft of a storage unit in a mobile home park during which $4,909.45 in property had been stolen. D. Sentencing
In February 2015, the trial court (Judge Popkins) held a sentencing hearing. At that hearing, Judge Popkins sentenced Hernandez to four years in prison as outlined in part I, ante. Judge Popkins also ordered restitution to the Consoles and Thorpe "in amounts to be determined," and set a restitution review hearing for March 16. Defense counsel stated that Hernandez wished to waive his presence at the restitution review hearing. E. Restitution review hearing
Judge Popkins informed defense counsel that a restitution review hearing would consist of a hearing during which the defense and the People would attempt to reach an agreement with respect to the amount of restitution to be ordered. Judge Popkins explained further that if no agreement could be reached, the matter would be litigated at a restitution hearing.
At the March 16 restitution review hearing, defense counsel requested a restitution hearing and stated that Hernandez wished to waive his presence at that hearing. Hernandez was present in court at the March 16 hearing when defense counsel made this request, despite counsel's prior waiver of Hernandez's presence for the hearing. Judge Popkins set a restitution hearing for the following month and accepted Hernandez's counsel's waiver of Hernandez's presence at the hearing. F. Restitution hearing
The trial court (Judge Kearney) held a restitution hearing on April 15. Thorp testified at the hearing that he had suffered a loss of "somewhere in the neighborhood of $80,000," as a result of Hernandez's theft. Thorp also referred to a list of the items taken and their approximate value, which the People offered in evidence. As discussed in detail in part III.A, post, the People presented evidence that the Consoles had suffered $578,015 in damages as a result of Hernandez's conduct.
At the hearing, Judge Kearney ordered Hernandez to pay Thorp $79,188.40 in restitution, and ordered Hernandez and Chavez, jointly and severally, to pay the Consoles $578,015. Judge Kearney subsequently entered formal restitution orders in favor of Thorp and the Consoles in accordance with the court's rulings at the April 15 hearing. G. The appeal
Hernandez appeals from the trial court's April 15 restitution orders.
Hernandez's notice of appeal states that he is appealing "the restitution hearing entered on April 15, 2015." We liberally construe the notice as referring to the court's restitution orders made at the April 15 hearing. (See In re Z.A. (2012) 207 Cal.App.4th 1401, 1405, fn. 2 ["A notice of appeal is to be construed liberally"].)
III.
DISCUSSION
A. There is sufficient evidence in the record to support Judge Kearney's order holding Hernandez jointly and severally liable with Chavez for $578,015 in restitution to the Consoles
Hernandez claims that there is insufficient evidence in the record to support Judge Kearney's restitution order holding Hernandez jointly and severally liable with Chavez for $578,015 in restitution to the Consoles.
1. Governing law and standard of review
Section 1202.4 provides in relevant part:
"(a)(1) It is the intent of the Legislature that a victim of crime who incurs an economic loss as a result of the commission of a crime shall receive restitution directly from any defendant convicted of that crime. [¶] . . . [¶]
"(3) The court, in addition to any other penalty provided or imposed under the law, shall order the defendant to pay . . . the following: [¶] . . . [¶] (B) Restitution to the victim or victims, if any, in accordance with subdivision (f), which shall be enforceable as if the order were a civil judgment. [¶] . . . [¶]
"(f) . . . [I]n 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.
"[C]ourts have found that if two defendants convicted of the same crime caused a victim to suffer economic loss, a court may impose liability on each defendant to pay the full amount of the economic loss, as long as the victim does not obtain a double recovery." (People v. Leon (2004) 124 Cal.App.4th 620, 622 (Leon).)
"[A] prima facie case for restitution is made by the People based in part on a victim's testimony on, or other claim or statement of, the amount of his or her economic loss. [Citations.] 'Once the victim has [i.e., the People have] made a prima facie showing of his or her loss, the burden shifts to the defendant to demonstrate that the amount of the loss is other than that claimed by the victim.' " (People v. Millard (2009) 175 Cal.App.4th 7, 26 (Millard).)
" '[T]he standard of proof at a restitution hearing is by a preponderance of the evidence, not proof beyond a reasonable doubt.' " (People v. Tabb (2009) 170 Cal.App.4th 1142, 1153.) " '[T]he trial court is entitled to consider the probation report when determining the amount of restitution.' " (Keichler, supra, 129 Cal.App.4th at p. 1048.)
In Millard, supra, 175 Cal.App.4th at page 26, this court outlined the standard of review to be applied to a trial court's victim restitution order:
" 'The standard of review of a restitution order is abuse of discretion. "A victim's restitution right is to be broadly and liberally construed." [Citation.] " 'When there is a factual and rational basis for the amount of restitution ordered by the trial court, no abuse of discretion will be found by the reviewing court.' " [Citations.]' [Citation.] . . . 'In reviewing the sufficiency of the evidence [to support a factual finding], the " 'power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted,' to support the trial court's findings." [Citations.] . . . "If the circumstances reasonably justify the [trial court's] findings," the judgment may not be overturned when the circumstances might also reasonably support a contrary finding. [Citation.] We do not reweigh or reinterpret the evidence; rather, we determine whether there is sufficient evidence to support the inference drawn by the trier of fact.' "
2. Factual and procedural background
Count 1 charged Hernandez with first-degree residential burglary, and alleged that he unlawfully entered a building with the intent to commit theft. Hernandez pled guilty to count 1.
At the restitution hearing, the prosecutor offered in evidence a series of documents comprised of an e-mail from Rosanna Console to probation officer Christy Serra, who prepared the probation report in this case, an eight-page spreadsheet that the Consoles had submitted to their insurance company outlining their losses, and photographs (Exhibit 2).
Rosanna Console's e-mail stated, "Attached is the Content List of items stolen or damaged by the suspects." The e-mail further stated that the Consoles had suffered losses totaling $673,915, including $579,000 related to stolen items, $51,320 for cleaning and repairs to their home necessitated by damage caused by defendants, and $43,595 related to damages to three cars.
As described by Judge Kearney, the spreadsheet included a "description of the item, where it was located in the house, the make or the model, when and where it was obtained, and the cost . . . to purchase the items." The prosecutor stated that the list represented the Consoles' estimate of the items taken or damaged and the value of such items. The prosecutor also stated that the list had previously been provided to Hernandez's counsel and Chavez's counsel. The spreadsheet indicated that the Consoles had suffered losses totaling $578,015. The photographs depicted various rooms in the Consoles' ransacked house.
After clarifying that the prosecutor was relying on the spreadsheet to establish the amount of restitution to be ordered to compensate the Consoles for items stolen from their home, Judge Kearney inquired whether the prosecutor had any documentation to support the Consoles' request for restitution related to losses suffered for cleaning and repairs to their home and damage to their cars. The prosecutor stated that she had no such documentation.
Judge Kearney stated that he had no basis to enter a restitution award with respect to losses suffered for cleaning and repairs to the home and damage to their cars. The court denied, without prejudice, the Consoles' request for restitution related to these losses. With respect to the stolen items, Judge Kearney stated that the prosecution had presented an adequate "description, valuation, and list of the property that was taken," and asked whether counsel for either Hernandez or Chavez had any evidence to offer in rebuttal. Hernandez and Chavez's counsel both responded in the negative. The court indicated that it was inclined to order restitution in the amount of $579,000.
Hernandez's counsel stated that he objected to the order "as being without sufficient foundation." Counsel argued in part:
"The court has already referenced the exhibit is sort of a spreadsheet that includes a list of items, a description, a maker, and a dollar amount. Theoretically, a dollar amount that corresponds to what was paid for the item. We don't have any receipts or any testimony from the people who have lost these items that that is the amount that was paid."
Thereafter, Judge Kearney ruled as follows:
"All right. I do believe the People have proffered a specific list with a specific description of what the victims paid for the property. Having been previously given to the defense, there being no additional evidence presented on behalf of the defense calling into question these amounts, the court does believe it's appropriate to make an order for restitution in the amount of $578,015, as to both Mr. Hernandez and Mr. Chavez, which would be joint and several as to both of them."
3. Application
Hernandez claims that there is insufficient evidence in the record to support the trial court's determination that all of the Consoles losses were attributable to his conduct. Hernandez argues:
"Given the extent of the Consoles' losses . . . [Hernandez] concedes that his guilty plea and admission support an inference that he entered the Console home once and committed a theft after he
entered the home. But they do not support an inference that [Hernandez] vandalized any property, entered the home multiple times to commit multiple thefts, or stayed in the home long enough to loot the home of $578,015 in property."
In support of this claim, Hernandez argues that the record contains evidence supporting a finding that Chavez and Mejia, and not Hernandez, were responsible for the bulk of the Consoles' losses. For example, Hernandez argues that the probation report "shows that [Hernandez] participated in a single unlawful entry into the house," there was evidence that suggested that Chavez and Mejia had been living in the home for an extended period of time, and the amount and type of items stolen indicated that the losses "could not have occurred in one day or even several days." Hernandez also contends that while he pled guilty to burglary with an intent to commit theft, the Consoles' spreadsheet indicated that they were seeking restitution for items " 'stolen or damaged,' " and there is no evidence in the record that Hernandez vandalized the Consoles' home.
We are not persuaded. To begin with, the fact that the record contains evidence from which the trial court could have found that Chavez and Mejia were solely responsible for a portion of the Consoles' damages does not require reversal. (See Millard, supra, 175 Cal.App.4th at p. 26 [restitution order may not be " 'overturned when the circumstances might also reasonably support a contrary finding' "].) Further, in light of Hernandez's guilty plea, the probation report, and Exhibit 2, the trial court could have reasonably found that the People presented a "prima facie case for restitution," by presenting evidence of "the amount of [the victims'] economic loss." (Ibid.) In addition to supporting an inference that Hernandez and Chavez jointly stole items from the Consoles' home, the probation report referred to evidence that Hernandez had jointly engaged in another theft, specifically, that Hernandez's DNA and Chavez's DNA were discovered in Rhinehart's burglarized storage unit (Counts 11 & 12). This evidence supported the inference that Hernandez and Chavez had acted in concert in causing the Consoles' losses. With respect to Hernandez's contention that there is no evidence that he vandalized the Consoles' home, the trial court could have reasonably relied on the photographs of the Consoles' ransacked house and the probation report in determining that the People had carried their prima facie burden of establishing that the damaged items were the result of Hernandez and Chavez's conduct. In short, the People presented sufficient evidence to support an inference that Hernandez and Chavez jointly caused the Consoles' losses. (Leon, supra, 124 Cal.App.4th at p. 622 [defendants who jointly cause a loss may each be held liable for the "full amount of the economic loss"].)
In light of the People's presentation of a prima facie case for restitution, it was Hernandez's burden to present evidence " 'to demonstrate that the amount of the loss is other than that claimed by the victim.' " (Millard, supra, 175 Cal.App.4th at p. 26.) Hernandez presented no such evidence.
Accordingly, we conclude that there is sufficient evidence in the record to support the trial court's order holding Hernandez jointly and severally liable with Chavez for restitution in the amount of $578,015 to the Consoles. B. The trial court did not err in holding the restitution hearing without Hernandez being present at the hearing because the record reflects that Hernandez voluntarily elected to be absent from the proceeding
In his brief, Hernandez contends, "[I]f this court determines that appellant's [sufficiency] claim has been forfeited, then defense counsel rendered ineffective assistance." (Italics added.) We address Hernandez's sufficiency claim on the merits in the text above. Thus, we have no occasion to address Hernandez's claim that defense counsel rendered ineffective assistance by failing to "object to the restitution award on the grounds that insufficient evidence supported the inference that appellant caused [the Consoles' economic] losses."
Hernandez claims that the trial court violated his constitutional and statutory rights to be present at the restitution hearing.
1. Standard of review
We assume for purposes of this decision that the independent or de novo standard of review applies to our determination of whether the trial court erred in conducting the restitution hearing in Hernandez's absence. (See People v. Waidla (2000) 22 Cal.4th 690, 741 ["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"].)
2. Factual and procedural background
On February 6, 2015, the probation officer filed the probation report in this case. The report states in relevant part:
"The probation officer spoke with Rosanna Console (Count 01) by phone on [October 2, 2014] during the preparation of the codefendants' reports. . . . She submitted a claim to her insurance company for about $579,000 for stolen property, damage to the home, and other related expenses. She said that many of the stolen or damaged items were made by her father. He passed away two years ago and the items are irreplaceable. [¶] Ms. Console emailed the probation officer the same documentation of her losses she sent to her insurance company. It has been attached to this report.
"[¶] . . . [¶]
"The probation officer spoke with Stanley Thorp (Counts 17 & 18) by phone on [February 4, 2015]. . . . He said that the loss was devastating to him. The theft occurred shortly after his mother died. At the time, he was consumed with dealing with her death and handling her estate. He filed a claim with his insurance company, but did not follow up with an itemized list of losses because he has not been able to face it. He said it is 'just depressing' to open the containers and see all that was taken.
"[¶] . . . [¶]
"Mr. Thorp does not believe that the $14,000 estimate of stolen property in the incident report even comes close to covering his total loss."
At the outset of Hernandez's February 17 sentencing hearing, Hernandez's counsel stated, "I have just been handed a handful of documents[] indicating a restitution request of nearly $700,000. To that end I'm going [to] ask for a restitution hearing." After clarifying that Hernandez's counsel was willing to set the matter for a restitution review hearing (see fn. 4, ante), Judge Popkins ordered restitution in favor of the Consoles and Thorpe in an amount to be determined. The following colloquy then occurred:
Hernandez's counsel did not indicate the nature of the documents that he had received.
"The court: All right. So we'll set a restitution review for [March 16], 1:30 in this department.
"[Hernandez's counsel]: And he would be willing to waive his presence for that.
"The court: All right. 977[] waiver is noted for the record."
In referring to "977," Judge Popkins was referring to section 977, a statute governing a defendant's presence at various criminal proceedings, and the defendant's wavier of his or her presence. (See pt. III.B.3.b, post.)
The record indicates that Hernandez was present at the sentencing hearing.
On March 16, Judge Popkins held a restitution review hearing. At the outset of the hearing, the following colloquy occurred:
"[Hernandez's counsel]: Good afternoon, your honor. Kenneth Elliot. He's not out yet.
"The court: He's not?
"The clerk: He's 977.
"[Hernandez's counsel]: We're already 977? Oh, all right. 'Cause I believe he's still in local custody.
"The bailiff: He's on the way.
"The court: He's being -
"The bailiff: He's being brought out as we speak.
"The court: Okay. I don't see 977 here though.
"[Hernandez's counsel]: Ultimately, your honor, just for the court's information - well, I'm think [sic] I'm going to go ahead and set a hearing. And I am going to ask to waive his appearance for that so he can get up to state prison and get going. In terms of the restitution hearing, I'm going to ask to set a hearing and ask for 977.
"The court: Okay. Do we need him to do that? Is he minutes away?
"The bailiff: He should be here any second.
"The court: Let's hold off until he's here, if he's coming.
"[Hernandez's counsel]: Sure."
Judge Popkins took a recess. Upon the resumption of the proceedings, the following colloquy occurred:
"[Hernandez's counsel]: Good afternoon again, your honor. Kenneth Elliot with Mr. Hernandez, who's present in custody. [¶] As I mentioned to the court during the brief informal chambers conference, this is going to be my request to set a restitution hearing. And for that hearing Mr. Hernandez would ask the court if he could waive his appearance so he be [sic] sent on his way to state prison to begin his time, please.
"The court: All right."
Thereafter, Judge Popkins set a restitution hearing for the following month, stating:
"The court: We'll set this for a restitution hearing on April 15th, 1:30 p.m. in Department 5. 977 waiver is noted for the record."
In April 2015, Judge Kearney held the restitution hearing. At the outset of the hearing, Hernandez's counsel stated, "Good afternoon, your honor. Kenneth Elliot on behalf of Mr. Hernandez, who has waived his presence for this hearing."
3. Governing law
a. Restitution hearing
As discussed in part III.A, ante, section 1202.4, subdivision (f) provides that a trial court shall require that the defendant pay victim restitution in all cases in which a victim has suffered an economic loss as a result of the defendant's conduct. Section 1202.4, subdivision (f) also provides that if the amount of the victim's loss cannot be ascertained at sentencing, the restitution order shall provide that the amount of restitution "shall be determined at the direction of the court."
Section 1202.4, subdivision (f)(1) provides that a defendant "has the right to a hearing before a judge to dispute the determination of the amount of restitution."
b. A defendant's federal and state constitutional rights to be present at the critical stages of a criminal prosecution and a defendant's waiver of those rights
"A defendant has a right to be present at critical stages of a criminal prosecution, a right protected by both the federal constitution and the state constitution." (People v. Wilen (2008) 165 Cal.App.4th 270, 286.) Sentencing and pronouncement of judgment is a critical stage of a criminal prosecution (id. a p. 287), and a restitution hearing is part of the sentencing process. (See People v. Dehle (2008) 166 Cal.App.4th 1380, 1386 (Dehle) ["Restitution hearings held pursuant to section 1202.4 are sentencing hearings and are thus hearings which are a significant part of a criminal prosecution"].)
A defendant may waive his federal and constitutional right to be present at a critical stage of a criminal prosecution. (People v. Mendoza (2016) 62 Cal.4th 856, 898 (Mendoza).) The touchstone for determining the validity of such a waiver is whether the "waiver is voluntary, knowing and intelligent." (Ibid.) A defendant may waive his constitutional right to presence either expressly or impliedly. (People v. Concepcion (2008) 45 Cal.4th 77, 82 (Concepcion).) Defense counsel may waive a defendant's right to attend a criminal proceeding where there is evidence that the defendant consents to the waiver. (See People v. Davis (2005) 36 Cal.4th 510, 532 (Davis).)
c. A defendant's statutory rights to be present during criminal proceedings and the waiver of such rights
i. The relevant statutes
Sections 977, 1043, and 1193 outline a defendant's right to be present during various criminal proceedings. (People v Gutierrez (2003) 29 Cal.4th 1196, 1202 (Gutierrez) [discussing §§ 977 and 1043]; In re Jimenez (1969) 269 Cal.App.2d 621, 623 [discussing § 1193].)
Section 977 provides in relevant part:
"(b)(1) . . . [I]n all cases in which a felony is charged, the accused shall be personally 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. The accused shall be personally present 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, as provided by paragraph (2).[]"
Section 977, subdivision (b)(2) outlines the contents of a written wavier form.
Section 1043 provides in relevant part:
"(a) Except as otherwise provided in this section, the defendant in a felony case shall be personally present at the trial.
"(b) The absence of the defendant in a felony case after the trial has commenced in his presence shall not prevent continuing the trial to, and including, the return of the verdict in any of the following cases:
"[¶] . . . [¶]
"(2) Any prosecution for an offense which is not punishable by death in which the defendant is voluntarily absent.
"[¶] . . . [¶]
"(d) Subdivisions (a) and (b) shall not limit the right of a defendant to waive his right to be present in accordance with Section 977."
Section 1193 provides in relevant part:
"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."
ii. Case law
California law is clear that a defendant may waive his right to be present at sentencing pursuant to section 1193. (See People v. Robertson (1989) 48 Cal.3d 18, 62 (Robertson) ["defendant could waive his right to be present at [the imposition of] sentence," citing § 1193]; In re Jimenez, supra, 269 Cal.App.2d at p. 623 [defendant's right to be present at sentencing hearing under § 1193 "can be waived," and stating that the right is waived if a defendant voluntarily absents himself after the trial has begun].)
In Robertson, supra, 48 Cal.3d 18, after announcing its decision that the penalty in the case would be death, the court set the matter for a penalty reduction hearing and sentencing. (Id. at p. 59.) Defense counsel informed the court that defendant wished to waive his presence at the penalty reduction hearing. (Ibid.) The court declined to accept the waiver, but asked counsel to prepare a written waiver. (Ibid.) Counsel later filed an adaptation of the form set out in section 977 signed by the defendant and the prosecutor in which the defendant agreed to waive his right " 'to be present at the hearing of any motion or other proceeding on this cause, . . . [including] when a motion to reduce sentence is heard.' " (Robertson, at p. 59.)
The defendant and the People waived having the penalty phase of the capital trial decided by a jury. (Robertson, supra, 48 Cal.3d at p. 28.)
The Robertson court referred to the underlying motion as an "automatic motion for modification of penalty" under former § 190.4, subdivision (e). (Robertson, supra, 48 Cal.3d at p. 34.)
The Robertson court first concluded that a capital defendant may waive his right to be present at sentencing. (Robertson, supra, 48 Cal.3d at pp. 61-62.) The court then concluded that the defendant had validly waived his presence at the penalty reduction hearing. (Id. at p. 62.) The court reasoned:
"In compliance with section 977, defendant's written waiver form, filed with leave of court, expressly stated he had been advised of and waived his right to be present when a motion to reduce sentence is heard. Although the form was not executed in open court as the statute requires, counsel earlier and in defendant's presence had orally informed the court of defendant's wish to be absent at the sentence-modification hearing (referred to by counsel as the 'motion for new trial'), and the court had asked counsel to prepare and submit a written waiver. We believe defendant's waiver substantially complied with section 977 so as to constitute a valid waiver of his right to be present at the sentence-modification hearing." (Ibid.)
However, the Robertson court concluded, without explanation, that "defendant's waiver form cannot reasonably be construed to embrace a knowing and intelligent waiver of his presence at the time of sentence." (Robertson, supra, 48 Cal.3d at p. 62.)
In Gutierrez, supra, 29 Cal.4th 1196, the Supreme Court explained the relationship between sections 977 and 1043 by stating that although section 977, subdivision (b)(1) provides a list of proceedings in which a felony defendant "cannot waive his right to be present," (Gutierrez, supra, at p. 1203, italics added), "section 977, subdivision (b)(1)'s presence requirement does not preclude a defendant from being 'voluntarily absent' . . . under section 1043, subdivision (b)(2)." (Ibid.) The Gutierrez court explained the difference between the statutes as follows:
"Section 977, subdivision (b)(1), provides that under certain circumstances, a defendant may execute a written waiver of the right to presence. Under that provision, a trial may commence even in the defendant's absence if the defendant executes a written waiver. (§ 977, subd. (b).) For example, a defendant may be absent when the jury is selected, but he cannot be absent from the entire trial without ever appearing. But when a trial has commenced in a defendant's presence, section 1043 applies. As relevant here, section 1043, subdivision (b)(2), provides that a defendant's voluntary absence does not prevent the trial from continuing. We perceive that these statutes address different concerns and do not conflict; rather, executing a written waiver and being voluntarily absent are treated as different events under these two statutes." (Id. at pp. 1203-1204.)
Further, the Gutierrez court explained that where a defendant is present when a trial begins, "section 1043, subdivision (b)(2), governs, notwithstanding section 977, subdivision (b)(1)'s presence requirement." (Gutierrez, supra, 29 Cal.4th at p. 1204.) The Gutierrez court also explained that the manner by which a court may determine whether a defendant is voluntarily absent under section 1043, subdivision (b)(2):
"In short, under section 1043, subdivision (b)(2), 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. While a defendant's express waiver in front of the judge might be the surest way of ascertaining the defendant's choice, it is not the only way. A defendant's 'consent need not be explicit. It may be implicit and turn, at least in part, on the actions of the defendant.' " (Gutierrez, supra, at p. 1206.)
In reaching this conclusion, the Gutierrez court rejected the argument that a trial court "must personally confront a defendant to determine whether the defendant desires to be voluntarily absent from court proceedings." (Gutierrez, supra, 29 Cal.4th at p. 1205.) Instead, a court "may rely on reliable information, such as statements from jail or court personnel, to determine whether a defendant has waived the right to presence." (Ibid.) Applying this law, the Gutierrez court concluded that the defendant had voluntarily absented himself when he made out-court-statements to his attorney, in the presence of a bailiff and a court reporter, that he did not want to attend the trial. (Id. at p. 1206.)
4. Application
a. Hernandez validly waived his federal and state constitutional rights to attend the restitution hearing
In light of the law discussed in part III.B.3.b, ante, we assume for purposes of this decision that both the federal and state constitutions guarantee the right of a defendant to be present at a restitution hearing held pursuant to section 1202.4, subdivision (f). Accordingly, we must determine whether Hernandez expressly or implicitly waived those rights. (Concepcion, supra, 45 Cal.4th at p. 82.)
The record indicates that prior to the imposition of sentence, the restitution review hearing, and the restitution hearing, Hernandez was informed that the victims of his crimes were claiming to have suffered hundreds of thousands of dollars in losses. Indeed, Hernandez's counsel expressly stated, in Hernandez's presence, that he had been informed that the People would be seeking nearly $700,000 in restitution. Further, with full knowledge that the People were seeking a large restitution award, Hernandez's counsel, in Hernandez's presence, in open court expressly stated that Hernandez wished to waive his presence both at the restitution review hearing and at the restitution hearing. Hernandez did not contradict his counsel on this point, and the court manifested its acceptance of the waivers. In addition, there is nothing in the record to indicate that Hernandez's waiver was anything other than "voluntary, knowing and intelligent." (Mendoza, supra, 62 Cal.4th at p. 898.) Under these circumstances, Hernandez consented to his counsel's waiver of his presence at the restitution hearing, and thereby effectuated a valid waiver of any constitutional rights to attend the restitution hearing. (See Davis, supra, 36 Cal.4th at p. 532 [defense counsel may waive defendant's presence where defendant consents to waiver]; Gutierrez, supra, 29 Cal.4th at p. 1206 [defendant's waiver of right to presence may be " 'implicit and turn, at least in part, on the actions of the defendant' "].)
Accordingly, we conclude that Hernandez validly waived any constitutional rights to attend the restitution hearing.
b. Hernandez validly waived his statutory right to attend the restitution hearing
Citing section 977, subdivision (b)(1), Hernandez contends that he could not validly waive his right to be present at his restitution hearing because it was a part of his sentencing hearing. (See § 977, subdivision (b)(1) [an "accused shall be personally present at . . . the imposition of sentence"].) Hernandez fails to cite either section 1193 or Robertson, both of which clearly state that a defendant may waive his right to be present at sentencing. (§ 1193; Robertson, supra, 48 Cal.3d at pp. 61-62, citing § 1193.) Thus, we reject Hernandez's contention that he could not have waived his statutory right to be present at his restitution hearing.
Hernandez also claims that his waiver did not comply with section 977, subdivision (b)(1), because it was not a written waiver. (See § 977, subd. (b)(1) [specifying certain presence requirements unless the accused "shall, with leave of court, execute in open court, a written waiver of his or her right to be personally present," italics added].) We conclude that section 977 does not apply. A restitution hearing is part of the sentencing hearing. (Dehle, supra, 166 Cal.App.4th at p. 1386.) Section 1193 provides the statutory law governing a defendant's presence at a sentencing hearing and the waiver of such presence. Further, section 1193 provides that a court may approve a defendant's request "in open court and on the record," to be absent from a sentencing hearing. (§ 1193.)
In addition, section 977, subdivision (b)(1) states that an "accused shall be personally present at . . . the imposition of sentence," but permits a defendant to execute a written waiver of his right to be present at "other proceedings." (Italics added.) Thus, section 977, subdivision (b)(1) does not authorize a defendant to waive his presence at a sentencing proceeding. However, we conclude that section 977, subdivision (b)(1) may not reasonably be interpreted to preclude a defendant's waiver of his presence at "the imposition of sentence," (§ 977, subd. (b)(1)), since section 1193 and Robertson expressly authorize such a waiver.
Rather, we interpret the relationship between section 977, subdivision (b)(1) and 1193 in a manner consistent with the Gutierrez court's interpretation of the relationship between section 977 and 1043. That is, we conclude that section 977 subdivision (b)(1) governs the manner by which a defendant may waive his right to attend criminal proceedings before trial, while section 1193 governs once a trial has commenced with the defendant present. (See Gutierrez, supra, 29 Cal.4th at p. 1204 ["because defendant here was present when the trial began, section 1043, subdivision (b)(2), governs, notwithstanding section 977, subdivision (b)(1)'s presence requirement"].)
Although the Robertson court relied on section 977 in determining the adequacy of a defendant's waiver of his right to be present at a penalty modification hearing (Robertson, supra, 48 Cal.3d at p. 62), despite the fact that the trial in Robertson had commenced in the defendant's presence (id. at p. 59), Robertson predated Gutierrez. In addition, Robertson was a capital case and section 1043, subdivision (b)(2) applies only where the offense "is not punishable by death." (§ 1043, subd. (b)(2).)
Applying this interpretation of the law to the present case, we conclude that Hernandez validly waived his right to be present at the restitution hearing. As discussed above, Hernandez's counsel, in Hernandez's presence, expressly stated to the court that Hernandez wished to waive his presence at the restitution hearing. For the reasons discussed above in connection with our rejection of Hernandez's constitutional claim, we also conclude that Hernandez and his counsel validly waived his statutory right to attend the restitution hearing pursuant to section 1193. (§ 1193 [requiring a defendant's presence at sentencing unless defendant "in open court and on the record . . . requests that judgment be pronounced against him or her in his or her absence"].) Further, since Hernandez was present when the court accepted his guilty plea, at sentencing, and at the restitution review hearing when he requested that he be allowed to waive his presence at the restitution hearing, we conclude that the pretrial waiver requirements of section 977 had no applicability.
Accordingly, we conclude that Hernandez validly waived his statutory right to attend the restitution hearing.
IV.
DISPOSITION
The restitution orders are affirmed.
AARON, J. WE CONCUR: HALLER, Acting P. J. IRION, J.