Filed 11/26/18 P. v. Lopez CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Defendant Michael W. Lopez entered a plea of no contest to charges of mayhem (Pen. Code,[1] § 203), assault with force likely to cause great bodily injury (§ 245, subd. (a)(4)) and battery with serious bodily injury (§ 243, subd. (d)). Thereafter, the court suspended execution of a four-year prison term, placed defendant on probation, and ordered defendant to pay restitution in the amount of $74,990.

On appeal, defendant contends that the trial court abused its discretion in denying his request to continue the restitution hearing and that the court’s refusal to continue the hearing deprived him of his constitutional rights to counsel and to due process. We find no abuse of discretion or deprivation of defendant’s constitutional rights and therefore shall affirm the judgment.

Background

At the preliminary hearing, the victim testified that during the course of the assault and battery, defendant repeatedly punched him in the face. On June 29, 2017, before defendant entered his plea, the victim addressed the court, indicating that as a result of the assault he needed ten stiches in his face, he had six teeth replaced and five more teeth still needed to be replaced, his nasal valve collapsed, he has vision problems in his left eye, and he has seen his doctor 30 times. He estimated that his medical expenses exceeded $90,000. Thereafter, the victim submitted a claim for restitution in the amount of $91,358. Due to some inadvertent duplication in medical expenses, at the time of the hearing, the request was reduced to $74,990.

The restitution hearing was initially set for December 1, 2017. On December 1, the case was continued to January 19, 2018, because defense counsel was not available for the hearing. On January 19, the hearing was continued to January 26 so that defendant could appear.

On January 26, defense counsel requested another continuance because he was “not prepared to go forward.” Counsel explained that the case involved a significant amount of money and counsel needed time to review the documents and consult with his expert. The prosecution opposed the continuance on the grounds that the request was untimely and that there was no good cause to continue since defendant had been aware of the restitution estimate since before he entered his plea more than six months before and had received all the relevant documents at the time of sentencing in August. The trial court denied the continuance and awarded $74,990 in restitution.

Discussion

A party seeking a continuance is required to give written notice to the opposing party “at least two court days before the hearing sought to be continued.”(§ 1050, subd. (B).) A party may seek a continuance without complying with that notice requirement, and the court may grant the request if the party first shows good cause for failure to so comply. (Id., subds. (c)-(d).) In no event can a continuance be granted without a showing of good cause. (Id., subd. (e).) “Thus, where a party seeking a continuance fails to comply with the notice requirements, the trial court must make a two-step decision. It must first determine whether there was good cause for failure to comply with those requirements. If there was not good cause, the court must deny the motion. [Citation.] If the court finds there was good cause for failure to comply, it must then decide whether there is good cause for granting a continuance.” (People v. Harvey (1987) 193 Cal.App.3d 767, 771.) We review the trial court’s ruling for an abuse of discretion. (People v. Fudge (1994) 7 Cal.4th 1075, 1105.)

In this case, it is undisputed that defendant did not comply with the statutory notice requirements. Nor did counsel offer a justification for the failure to do so. The trial court would have been within its discretion to summarily deny the motion on that basis. Even assuming the failure to provide notice were excused, the trial court did not abuse its discretion in denying the continuance.

In ruling on a motion to continue, the court may consider, among other things, “the defendant’s diligence in light of previous opportunities to obtain the necessary evidence” (People v. Jenkins (2000) 22 Cal.4th 900, 1037) and “the burden on other witnesses, jurors and the court and, above all, whether substantial justice will be accomplished or defeated by a granting of the motion.” (People v. Fudge, supra, 7 Cal.4th at p. 1105.) The court is entitled to ensure that the matter proceeds in a timely fashion. (Id. at p. 1107.)

Here, defendant was aware of the amount of and basis for the requested restitution for approximately six months and thus had adequate time to review the documents and consult an expert prior to the hearing. Indeed, it appears that the hearing was continued on January 19 only to allow defendant to be present. As the prosecutor explained, “When this was on last Friday, the sole reason that [defense counsel] asked for the continuance to today and the sole reason the court granted it was because [defense counsel] asked that [defendant] be present . . . . [¶] We had a strong objection last Friday to continue it to today at all . . . and at that point, [the judge] inquired of counsel about the causation issue here. [¶] And counsel conceded that they were not contesting that and that the sole question would be [that] there were two pages submitted that were asking for about six months apart that were for essentially identical estimates. So we removed those from the original request.” The record reflects that the victim had appeared at every court hearing, including status conferences, and was eager to have the matter resolved. While defendant asserted generally that certain expenses “seem[] to be counterintuitive,” the prosecution argued and the Attorney General agrees that if defendant’s speculation regarding the requested expenses prove to have merit, defendant can petition to have the award modified under sections 1202.4, subdivision (f)(1), and 1203.3, subdivisions (b)(4) and (5). On this record, the trial court did not abuse its discretion in denying the continuance.

Contrary to defendant’s argument, the denial of a continuance did not deprive him of his constitutional rights to counsel and to due process. While the trial court’s broad discretion to grant or deny continuances may not be exercised in such a manner as to “deprive the defendant of a reasonable opportunity to prepare the defense” or to impair a criminal defendant’s constitutional right to due process, the court’s ruling in this case had no such effect. (People v. Snow (2003) 30 Cal.4th 43, 70, 73 [denial of a continuance did not “deprive counsel of a reasonable opportunity to prepare the defense” where the “case had been pending in the superior court for 26 months” and the “court had already granted numerous and lengthy continuances at defense request”].) Defendant had ample time to review the documentation in support of the restitution request and, as noted above, effectively reduced the award by approximately $15,000. Moreover, unlike at trial, the “scope of a criminal defendant’s due process rights at a hearing to determine the amount of restitution is very limited: ‘ “A defendant's due process rights are protected when the probation report gives notice of the amount of restitution claimed . . . , and the defendant has an opportunity to challenge the figures in the probation report at the sentencing hearing.” ’ ” (People v. Cain (2000) 82 Cal.App.4th 81, 86.) Accordingly, we find no error and we shall affirm the judgment.

Disposition

The order awarding restitution is affirmed.

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Pollak, J.

We concur:

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Siggins, P.J.

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Jenkins, J.

A153528