P. v. Haneline

Filed 1/19/07  P. v. Haneline CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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 TWO

            APPEAL from the Superior Court of San Bernardino County.  Marsha Slough, Judge.  Affirmed.

            Janice R. Mazur, 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, Senior Assistant Attorney General, and Scott C. Taylor, Supervising Deputy Attorney General, for Plaintiff and Respondent.

            In 2002, defendant pled no contest to the misdemeanors of assault by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1))^[1] and brandishing a deadly weapon (Pen. Code, § 417, subd. (a)(1)).  At the time his pleas were accepted, the trial court noted that one of the terms of probation was that defendant be returned to court for a restitution hearing, which was scheduled for June 17, 2002.  On that date, the trial court ordered defendant to make restitution to the Victims Compensation & Government Claims Board in an amount the Board determined, plus 10 percent.  By December, 2003, the victim had made a claim to and been paid by the Board in the amount of $7,226, which the People requested the defendant be ordered to pay to the Board.  The matter was continued until July 27, 2005.  At a hearing on that date, defendant claimed, inter alia, that admission of redacted copies of two bills for dental work performed on the victim and a letter from the custodian of records at the Board, signed under penalty of perjury, certifying that these bills were submitted to and paid by the Board, violated his right to confrontation under Crawford v. Washington (2004) 541 U.S. 36.(Crawford)  The trial court found there was no violation of Crawford and ordered defendant to pay the Board $7,226.  Defendant appealed from this ruling.

Issue and Discussion

            Defendant acknowledges that the Sixth Amendment right to confrontation in all

criminal prosecutions has been held not to extend to sentencing.  (People v. Arbuckle (1978) 22 Cal.3d 749, 754; People v. Cain (2000) 82 Cal.App.4th 81, 86 [opinion of this court].)  However, he urges that these holdings must be re-examined in light of language in Crawford.  All the language in Crawford, however, dealt with the trial or prosecution of a defendant--not with sentencing or any particular aspect of it, including restitution.^[2]  Defendant's assertion that Crawford applies to more than trials misconstrues the language and obvious meaning of the opinion.  Crawford's holding that testimonial statements, to which the right to confrontation applied, included statements made during police interrogations and testimony at a grand jury hearing, at a preliminary hearing and at a former trial does not, as defendant contends, mean that the confrontation clause applies to matters outside a criminal trial.  Rather, it means that statements made during police interrogations and grand jury hearings, preliminary hearings and former trials may not be introduced at a criminal trial unless the opportunity to cross-examine the declarant has been provided to the defendant.  (See People v. Johnson (2004) 121 Cal.App.4th 1409, 1411 [Because probation revocation proceedings are not criminal prosecutions, to which the Sixth Amendment applies, Crawford is inapplicable.].)  In People v. Cain, supra, 82 Cal.App.4th at page 87, we held that a defendant's due process rights at a restitution hearing are violated only if the procedures are fundamentally unfair.  Defendant provides no authority or persuasive argument for extending these due process rights to include the Sixth Amendment right to confrontation at trial.

            Defendant concedes that the copies of the dental bills submitted to the Board are business records which were not specifically prepared for the restitution hearing; therefore, presumably, Crawford does not apply to them.  However, he contends the contrary is true as to the custodian's letter of certification, citing language in Crawford that involvement of government officers in the production of testimony with an eye toward trial presents unique opportunities for abuse.  First, a restitution hearing is not a trial.  Additionally, logic does not support the leap defendant proposes that this should be construed to reach the Board's record custodian as she certified that the copies of dental charges provided to the trial court were genuine and served as the basis for the Board paying the victim's claim.  We are aware of no abuses that have resulted from the Board representing to trial courts that it paid the claims of crime victims, nor has defendant even alleged that such abuses occur.^[3]  We note that the Board requires all providers to verify that the services provided the victim directly resulted from the commission of the crime before it pays a claim for those services submitted by the victim.  (Gov. Code, § 13955, et. seq.; Cal. Code Regs., tit. 2, § 649.9, subd. (a).)  In People v. Cain, supra, 82 Cal.App 4th at page 88, this court held that the Board's certification of claims is inherently reliable as a statement made as part of the Board's official business.

Disposition

            The restitution order is affirmed.

            NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ                             

                                                P.J.

We concur:

RICHLI                                  

                                             J.

KING                                     

                                             J.

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Analysis and review provided by Poway Property line Lawyers.

^[1] The People's motion to reduce this crime to a misdemeanor was granted by the trial court.

^[2] Defendant concedes in his reply brief that recent federal cases discussing the applicability of Crawford in non-trial contexts note that Crawford does not address sentencing.  Although as defendant points out, the scope of Crawford is currently pending in a number of cases before the California Supreme Court, none of them involve a restitution hearing.  (See, e.g., People v. Cage S127344)

^[3] Defendant claims specifically that he was denied the right to confront the providers of dental services to the victim as their names were redacted from the records submitted to the trial court.  However, not once below did defendant object to this nor seek disclosure of the provider's names.