Filed 10/16/17 In R.O. CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
| In re R.O., a Person Coming Under the Juvenile Court Law. |
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| THE PEOPLE, Plaintiff and Respondent, v. R.O., Defendant and Appellant. |
A149822
(Contra Costa County Super. Ct. No. J11-00488)
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Defendant R.O. was adjudged a ward of the juvenile court after pleading no contest to attempted premediated murder (Pen. Code, §§ 664, subd. (a), 187, subd. (a)) and second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)) and admitting various enhancements, including that the crimes were committed for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b)(1)). The juvenile court committed defendant to the Division of Juvenile Justice (DJJ) for a maximum term of life plus 19 years and eight months.[1]
Some years later, the juvenile court terminated DJJ jurisdiction and placed defendant on probation subject to various terms and conditions. Several months later, and after several continuances, the court ordered $321,788 in restitution to the victim of the attempted murder, who was stabbed and had extensive medical bills.
Defendant appeals from the restitution order on the ground he was not in attendance at the hearing (due to his being in the custody of ICE[2]), in violation of his statutory and constitutional rights to be present. We need not, and do not, definitively decide whether defendant’s statutory and constitutional rights were both abridged, as we conclude any error was harmless beyond a reasonable doubt, and therefore affirm.
Restitution Procedural Background
The issue of restitution for the stabbing victim was raised at the March 7, 2016, re-entry, dispositional hearing, at which defendant was present. Apparently, the defense had just received the restitution paperwork, and counsel asked for a continuance to review it. The probation department apprised the court and counsel that there was an “ICE detainer.” The court and counsel then agreed on a continued date for the restitution hearing, with defense counsel observing defendant would attend if he was not in custody. The court observed: “Oh, if he is in custody, you can waive his appearance. If he is not in custody, he is to be here.” Counsel responded: “Right. Understood.”
Defendant did not appear at the continued hearing, on April 27. With respect to the stabbing victim, probation reported he had sustained very serious injures and had been referred to the Victim Compensation Board, and that restitution had been ordered as to the co-defendant in May 2015, in the amount of $321,788.88. Probation recommended the same amount be ordered as to defendant. Defense counsel then stated he was having “a very difficult time” finding defendant, that defendant had been “taken” from Martinez, and counsel had not been able to get any information as to defendant’s locale from ICE. He asked for a continuance “to track him down,” which the court granted.
At the next continued hearing, on June 1, defense counsel stated probation had located defendant in ICE custody and counsel had asked for a removal order, which the court had declined to sign on the ground it had no authority over the federal government. Counsel indicated he felt he could not go forward “without having a conversation with” defendant. “[U]nderstand[ing]” the court’s refusal to issue a removal order, counsel asked for a date for a contested hearing, acknowledging that he might have “the same problem” in contacting defendant.
Defense counsel then observed: “The restitution amount, I believe, has been around and fixed for awhile. [¶] . . . [¶] . . . [T]he amount has been––I think fairly certainly set for at least a few years, but this . . . is not my case, but that’s my understanding, that this is not a new amount. And I believe that––well, the co-responsible was assigned this––the amount that Probation department is requesting, some time in the past.” Confirming that restitution had been imposed as to the co-defendant, the court commented that restitution “was to be determined” when defendant had been sentenced to DJJ but “t looks like it just never was determined . . . and never ordered . . . .” Defense counsel responded: “That’s right.”
Defendant also was not present at the restitution hearing, on July 6. Defense counsel indicated defendant was in the custody of the Sacramento County Sheriff’s Department. The court observed it did not believe it had the authority to issue a removal order to ICE. Counsel and the court then discussed at length a $5,000 discrepancy between the stabbing victim restitution ordered as to the co-defendant ($321,788), and the restitution amount defense counsel had referenced at the prior hearings ($326,788.96). When the court indicated it was inclined to impose the lesser amount, the prosecutor urged the court to impose the greater amount if it was determined there had simply been a typographical or addition error as to the co-defendant. Ultimately, the court continued the hearing again in the hope that the same defense counsel who had appeared earlier could attend—observing counsel had “researched this pretty carefully” and “was pretty firm . . . that it should be 321,788”—and so the co-defendant’s file could be reviewed. At the end of the hearing, defense counsel again asked for a removal order from ICE custody, and the trial court again declined to issue one.
At the continued hearing on August 15, defendant did not appear and defense counsel was the same lawyer who had appeared at the July hearing. Counsel reiterated that the defense had sought, but the court had declined, to issue a removal order as to ICE. The court then confirmed that $321,788 in restitution to the stabbing victim had been ordered as to the co-defendant and asked if there was any objection to the court ordering the same as to defendant. The prosecutor objected on the ground that figure reflected a $5,000 mistake by probation (which probation confirmed), and the proper amount was $326,788.83. Defense counsel was of the view the amounts imposed against the two defendants should be the same. The court agreed and ordered $321,788 in restitution as to the stabbing victim.
Discussion
While juvenile court proceedings are not classified as criminal proceedings (Welf. & Inst. Code, § 203) and victim restitution orders are not considered penal in nature ([i]In re I.M. (2005) 125 Cal.App.4th 1195, 1210), a minor is, at a minimum, statutorily entitled to be present at the restitution hearing. (Cal. Rules of Court, rule 5.530(b)(1); Welf. & Inst. Code, §§ 679, 730.6, subd. (h).) There is also no apparent reason, when it comes to due process rights, to treat juvenile court restitution hearings differently from adult criminal restitution hearings, and it is well-established in the adult context that due process and fundamental fairness require an adult defendant’s presence, unless waived. (People v. Wilen (2008) 165 Cal.App.4th 270, 287 [defendant has a right to be present at all critical stages of a criminal prosecution, including sentencing and pronouncement of judgment]; People v. Cain (2000) 82 Cal.App.4th 81, 87 [a victim restitution hearing is “part and parcel of the sentencing process”].)
Relying on People v. Roldan (2012) 205 Cal.App.4th 969, defendant contends the trial court was mistaken that it had no authority to require ICE to produce defendant for the restitution hearing. Defendant does not contend the court could have compelled ICE to act, but asserts issuing a removal order would have been “a first step, which might have produced the desired result” of securing defendant’s presence.
The People urge that defendant should not be heard to complain because he made no effort to defer his deportation under 8 Code of Federal Regulations part 215.2 (a) (2016). They further contend defendant’s presence would not have contributed to the fairness of the restitution hearing and, accordingly, there was no infringement of his constitutional due process rights. (See Kentucky v. Stincer (1987) 482 U.S. 730, 745 [defendant’s right to be present depends on existence of two circumstances: (1) the proceeding is critical to the outcome of the case, and (2) the defendant’s presence would contribute to the fairness of the proceeding].)
We need not, and do not, decide whether the trial court should have issued a removal order, or whether defendant could have and should have communicated with defense counsel and attempted to arrange for his appearance. Even assuming a constitutional right was implicated and the heightened harmless-error standard of Chapman v. California (1967) 386 U.S. 18, 20–21, applies, any alleged error was not prejudicial.
As we have recited in detail, the restitution amount for the stabbing victim the court ordered had been determined and ordered as to the co-defendant more than a year earlier. Moreover, at no time, over the course of the five hearing dates held here, did defendant or defense counsel ever challenge or object to this restitution amount. Rather, the only objection was by the prosecutor, who wanted another $5,000 added to the restitution amount, in light of an apparent computational error by probation. The court rejected the prosecutor’s position and, instead, ordered exactly the same restitution amount that had been ordered as to the co-defendant.
Pointing out that under Welfare and Institutions Code section 730.6, subdivision (h), the court could have imposed a lesser amount on finding “compelling and extraordinary reasons,” defendant asserts that had he appeared “he might have brought such extraordinary circumstances to the attention of his counsel and the court, and obtained a more favorable result.” To begin with, had this been even a remote possibility, defense counsel certainly would have said so on the record. Instead, defense counsel firmly took the position the proper amount of restitution was as ordered in connection with the co-defendant. Furthermore, even on appeal, defendant has not identified what these “extraordinary circumstances” might have been. In short, defendant offers nothing more than vacuous speculation, which is insufficient to establish prejudicial error. (See People v. Bradford (1997) 15 Cal.4th 1229, 1357 [“Defendant has the burden of demonstrating that his absence prejudiced his case or denied him a fair trial.”]; People v. Bloyd (1987) 43 Cal.3d 333, 360 [same].)
Disposition
The restitution order is affirmed.
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Banke, J.
We concur:
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Margulies, Acting P.J.
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Dondero, J.
