P. v. Au

Filed 10/17/06 P. v. Au CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a postjudgment of the Superior Court of Orange County, Richard F. Toohey, Judge. Reversed and remanded.

John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Douglas P. Danzig and Charles C. Ragland, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

This case is related to defendant Renee Taiyean Au’s appeal from her conviction for two counts of stalking. (People v. Au (Oct. 17, 2006, G034978) [nonpub. opn.]). In the related case, we affirm the judgment of conviction in its entirety. In this appeal, defendant challenges a postjudgment order directing her to pay nearly $24,000 in restitution to one of the stalking victims. Because the trial court failed to afford defendant an opportunity to challenge the amount of the award, we reverse the restitution order and remand the case for further proceedings.

FACTS

After defendant’s conviction, a probation officer prepared a probation and sentencing report. It contained an itemized list of expenses exceeding $59,000 for which Jon Grazer, one of defendant’s victims, sought restitution as a result of defendant’s criminal activity. One item sought $1,075 for Grazer’s reimbursement of Ann Ciulla, the other stalking victim. However, the report noted Grazer had failed to provide supporting documentation for several other categories of expenses.

At a January 2005 sentencing hearing, the prosecutor acknowledged “[t]here was no documentation for a . . . substantial portion” of the restitution request, and endorsed the probation officer’s recommendation that she conduct a financial investigation of the amount of restitution owed and defendant’s ability to pay it. Subsequently the court directed “the People [to] submit a proposed restitution order to this court by March the 4th . . . . And if either side objects to that proposed order, the defendant would have a right to a hearing in relation to that.”

The record reflects that on March 25, the court signed a preprinted order submitted by the prosecution directing defendant to pay $23,955.47 in restitution to Grazer. Nothing in the record indicates a copy of the order had been served on defendant or her trial attorney. The court’s minutes for March 25 reflect there were no appearances by the parties.

In May, the trial court received a handwritten letter from defendant stating that she “was not informed of a court hearing, if any, pertaining to the” restitution order and indicating her desire to appeal the court’s ruling. The court treated defendant’s letter as a notice of appeal.

DISCUSSION

Defendant contends the trial court violated both her statutory and constitutional rights to due process by entering a restitution order without first affording her notice of the amount sought or a hearing to contest the award. Respondent argues the trial court had no obligation to set a restitution hearing and defendant never requested one. We conclude defendant has the better of this argument.

“[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. . . .

(1) 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).)

Case law recognizes “[t]he scope of a criminal defendant’s due process rights at a hearing to determine the amount of restitution is very limited[.]” (People v. Cain (2000) 82 Cal.App.4th 81, 86.) Nonetheless, the minimal due process afforded in this context includes both ‘”notice of the amount of restitution claimed . . . and . . . an opportunity to challenge the figures . . . .’ [Citations.]” (Ibid.) In In re Brittany L. (2002) 99 Cal.App.4th 1381, 1390-1391, the appellate court construed Welfare and Institutions Code section 730.6 which, like Penal Code section 1202.4, subdivision (f)(1), provides a minor the right to contest the amount of a restitution award: “This statutory directive is meant to afford the minor a reasonable opportunity to challenge the accuracy or validity of the victims’ claimed losses. It is a crucial part of the overall statutory scheme, necessary to satisfy due process, and ensure fundamental fairness in the determination of the restitution ultimately ordered.” (Id. at p. 1391, fn. omitted.)

For example, in People v. Resendez (1993) 12 Cal.App.4th 98, the court found a due process violation where the probation officer recommended imposing only a $9,000 restitution fine, but at sentencing the court summarily awarded $100,000 in direct victim restitution. “[T]he trial/sentencing court’s absolute refusal to accept the restitution recommendations . . ., coupled with that court’s peremptory imposition of a restitution order totally at odds with the recommendations of the probation report, all without affording defendant a reasonable opportunity to challenge the accuracy/validity of the restitution order which was made, denied defendant his constitutional right to the due process of law.” (Id. at p. 114.)

In this case, the probation officer’s report reflects Grazer sought over $59,000 in restitution. This amount included nearly $1,100 in reimbursement to Ciulla, defendant’s second stalking victim. The approximately $24,000 that the court eventually approved was substantially less than the previously requested sum. Thus, defendant was afforded adequate notice of her potential exposure for victim restitution.

But Penal Code section 1202.4, subdivision (f)(1) entitles a defendant to a hearing on the determination of the amount of restitution. Here, both the probation officer and the prosecutor conceded Grazer had only documented slightly over $17,000 of the expenses he claimed. Acknowledging defendant would be entitled to a hearing if she disputed the amount of restitution, the trial court ordered the prosecutor to submit a “proposed” restitution order. This order impliedly required the prosecution to serve a copy of the proposed order on defendant so that she could exercise the statutory right to a hearing. However, the record reflects the prosecution merely submitted an order to the court for nearly $24,000 in restitution without either previously or concurrently serving it on defendant or her counsel.

Admittedly, the court did not have an obligation to set a hearing without a request for one by defendant. But defendant was entitled to know the amount being sought so that she could request a hearing challenging the proposed award. The record reflects the court proceeded to sign and enter the restitution order without a hearing. There is no indication in the court’s minutes suggesting defendant had been informed of the amount sought or that she was offered an opportunity to challenge it and declined to do so. We conclude this procedure violated defendant’s minimal due process rights.

DISPOSITION

The postjudgment order awarding $23,955.47 in restitution is reversed and the matter is remanded to the superior court with directions that it conduct a restitution hearing in accordance with law and consistent with the views expressed in this opinion.

RYLAARSDAM, J.

WE CONCUR:

SILLS, P. J.

ARONSON, J.

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