P. v. Swain
Filed 3/15/13 P. v. Swain CA4/1
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and parties from citing or relying on opinions not certified for publication or
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
THEODORE SWAIN,
Defendant and Appellant.
D060747
(Super. Ct.
No. SCD199072)
APPEAL from
an order of the Superior Court
of
County, Charles R. Gill, Judge. Affirmed.
Theodore
Swain appeals from a posttrial order
in which the trial court confirmed the terms of an order appointing a receiver,
authorizing the receiver's second distribution to victims of Swain's crimes,
approving the receiver's fourth report and accounting, and approving the
receiver's fee application. Swain
contends that because he was not personally present at the hearing on the
challenged order, the order should be reversed and we should remand the matter
for a new hearing. We conclude that
Swain's contention is without merit, and we affirm the order.
I
FACTUAL
AND PROCEDURAL BACKGROUND
Swain was
convicted in 2008 on several counts of securities fraud and other financial
crimes and sentenced to a 24-year prison term.
The trial court ordered Swain to pay $6,775,213.82 in restitution to his
victims, as recommended in the probation report, and appointed Thomas Seaman as
receiver to take possession and control of Swain's assets for the purpose of
effectuating the restitution order.
On August 22, 2011, Seaman filed a
pleading containing (1) a petition for instructions from the trial court,
confirming that Seaman should proceed with making a distribution to the
victims; (2) an accounting and status report; (3) a request to establish a cash
reserve; and (4) a request for approval of Seaman's fee application. The matter was set for hearing on September 16, 2011, and the pleading
was served on Swain in prison.
name="_ftnref1" title="">[1] Swain filed an opposition to Seaman's
petition, which was received by the court prior to the hearing.
Swain's
opposition argued, among other things, that Seaman's appointment as receiver
was "fraudulent and not legally sufficient" and that Seaman was
improperly disposing of assets that belonged to corporations, not to
Seaman. Swain took the position that
Seaman should be removed as receiver and should not have his fee application
approved, and that the trial court should not accept the accounting statement
presented by Seaman nor approve the creation of a reserve. Swain stated that he did not, however, oppose
the distribution of the presently available funds to the crime victims,
although he wanted Seaman removed from any further involvement in the
case. Swain made no request in his
written opposition to appear at the hearing, either by telephone or in person.
At the September 16, 2011 hearing, the trial
court granted the relief requested by Seaman, and on September 21, 2011 it issued a written order
setting forth its ruling. Although Swain
was not present at the hearing, the trial court specifically stated in its
order that it had considered Swain's opposition.
Swain filed
a notice of appeal from what he
identified as a September 16, 2011
"ex parte order to proceed with distribution."
II
DISCUSSION
Swain's appellate brief raises a
single issue. Swain argues that he had a
constitutional and statutory right to be physically present at the September 16, 2011 hearing. He contends that because he was not present
at the hearing, the trial court's order should be reversed and this matter
should be remanded for the trial court to hold a new hearing with Swain in
attendance.
Well-established
principles apply to a defendant's right to be physically present during
proceedings in a criminal case. "It
is established that a defendant has a federal
confrontation clause of the Sixth Amendment and the due process clause of the
Fourteenth Amendment, to be present at any stage of the criminal proceedings
'that is critical to its outcome if his presence would contribute to the
fairness of the procedure.' [Citations.] In addition, a defendant has the right to be
personally present at critical proceedings, pursuant to the state Constitution
[citations], as well as pursuant to statute ([Pen. Code,] §§ 977,
1043)." (People v. Bradford (1997) 15 Cal.4th 1229, 1356-1357 (
Under the
applicable federal constitutional standard, a defendant's presence is required
if it " ' " 'bears a reasonable and
substantial relation to his full opportunity to defend against the
charges.' [Citation.] The defendant must show that any violation of
this right resulted in prejudice or violated the defendant's right to a fair
and impartial trial." ' " (People
v. Virgil (2011) 51 Cal.4th 1210, 1234 (Virgil).) "The same analysis applies under
article I, section 15 of the California Constitution. [Citations.]
'The standard under sections 977 and 1043 is similar. " '[T]he accused is not entitled to be personally
present during proceedings which bear no reasonable, substantial relation to
his opportunity to defend the charges against him . . . .' " ' "
(Virgil, at p. 1235.) Further, with respect to the
sentencing, Penal Code section 977, subdivision (b)(1) identifies "the
imposition of sentence" in a felony case as a proceeding at which the defendant's
presence is required. (
A proceeding at which restitution is ordered is part of the trial
court's imposition of sentence. (See People
v. Cain (2000) 82 Cal.App.4th 81, 87 (Cain).)
Under these
standards, our fundamental inquiry is whether Swain has carried his burden to
establish prejudice in that his physical presence at the September 16, 2011
hearing bore " ' " 'a reasonable and
substantial relation to his full opportunity to defend against the charges.' " ' "
(Virgil, supra, 51 Cal.4th at p. 1234.)
When this standard is not met, "a defendant is not entitled to be
personally present either in chambers or at bench discussions that occur
outside of the jury's presence on questions of law or other matters." (Bradford,
supra, 15 Cal.4th at
p. 1357.) A defendant has no right
to be present " ' "when presence would
be useless, or the benefit but a shadow." ' " (People
v. Ochoa (2001) 26 Cal.4th 398, 433.)
It is not enough for the defendant to offer speculation that his presence would have contributed to his
defense. (People v. Waidla (2000) 22 Cal.4th 690, 742 [with respect to
whether presence at certain proceedings would have made a difference to the
defense, court concluded that "[t]he only possible basis for a conclusion
favorable to [defendant] in this regard would be speculation. Such a basis, however, is
inadequate"].) A defendant " 'bears the burden of
demonstrating that personal presence could have substantially benefited the
defense.' " (People
v. Price (1991) 1 Cal.4th 324, 408.)
Here, Swain
has not met his burden to establish that his presence at the September 16,
2011 hearing would have made a reasonable and substantial difference to his
right to defend himself. Swain submitted
a lengthy written opposition to the trial court, which the trial court
indicated that it considered before making its ruling. Swain failed to articulate any way in which
he would have had a stronger chance of prevailing in opposing the relief sought
by Seaman had he been physically present at the hearing to supplement his
written opposition. Further, Swain has
not established that the issues presented at the September 16, 2011
hearing had any relationship whatsoever to his defense. Swain disputed whether Seaman should continue
to serve as receiver and should obtain a payment of fees. While those issues may be of substantial
importance to Seaman and to Swain's victims, who seek to obtain a timely
distribution of the funds available for restitution, they have nothing to do
with Swain's defense of the criminal charges against him.
Swain
argues that because the September 16, 2011 hearing "pertain[ed]"
to a proceeding ordering restitution, he had a right to be present under the
statute requiring a defendant's presence at the imposition of a felony sentence,
which encompasses the ordering of victim restitution. (Pen. Code, § 977, subd. (b)(1); Cain,
supra, 82 Cal.App.4th at
p. 87.) We reject this
argument. The September 16, 2011
hearing was not a hearing at which restitution was ordered and thus did not
concern the imposition of sentence as covered in Penal Code section 977,
subdivision (b)(1). Instead, as we have
explained, the issue at the September 16, 2011 hearing concerned approval
for Seaman to take certain steps to carry out the restitution order that the
trial court made during the 2008 sentencing hearing, at which Swain was
physically present as required by statute.
DISPOSITION
The order is affirmed.
IRION, J.
WE CONCUR:
McCONNELL, P. J.
NARES,
J.
name="_ftn1" title="">[1] At his request, Swain has apparently represented himself in
the trial court proceedings in this matter since entry of judgment in April
2008.
