Filed 11/30/18 P. v. Malke CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from an order of the Superior Court of San Diego County, Michael S. Groch, Judge. Affirmed.

Law Offices of Kent D. Young and Kent Darroch Young, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Julie L. Garland, Senior Assistant Attorney General, Michael Pulos, Nora S. Weyl and Michael D. Butera, Deputy Attorneys General, for Plaintiff and Respondent.

The People charged Kenneth George Malke with felony vandalism (Pen. Code,[1]

§ 594, subd. (a)(b)(1)) but he pleaded guilty to the lesser included offense of misdemeanor vandalism (§17, subd. (b)), admitting he had "intentionally damaged property owned by another and the damage was $400 or more." He agreed to pay restitution. The court sentenced Malke to three years summary probation and imposed a $16,202.30 restitution fine.

Malke appeals the restitution order, contending: (1) the court reversibly erred by holding a restitution hearing in his absence and without his knowing and intelligent waiver; (2) in ordering him to pay $9,138 in restitution for additional security officers, the court erroneously failed to apply tort principles of proximate causation and foreseeability; and (3) in ruling on the issue of additional security officers, the court erroneously relied on its own personal experience. We affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

According to testimony at Malke's preliminary hearing, after a police detective received an incident report, he viewed surveillance video showing Malke's vandalism. Specifically, a few minutes past midnight, Malke went to retrieve his car from a parking garage located underneath the central library in downtown San Diego. The garage's metal rollup gate was closed. Malke looked around for several minutes, seemingly seeking help. Minutes later, he ripped the gate off its hinges and broke a toll booth arm. He then exited the garage in his car. The detective contacted Malke, a 59-year-old semi-retired businessman and Escondido resident, who has no criminal record. Malke told the detective that no parking attendant had informed him the garage would close at midnight, otherwise he would have removed his vehicle earlier.

A security officer testified that parking attendants orally informed the patrons about the midnight closing time. Malke caused at least $7,000 in physical damage plus costs incurred in hiring extra security officers.

Restitution Proceedings

The People moved for restitution under section 1202.4, subdivision (f)(1) and as a condition of probation under section 1203.1, subdivision (j), attaching several documents to their motion including photographs of the damaged property as well as invoices for the repair of the gate ($4,936) the parking arm ($1,943.50), security guard services ($9,138.74), and a collection fee ($1,000).

Malke did not attend the restitution hearing. At its outset, defense counsel announced he was appearing on Malke's behalf under section 977.[2] The court stated it had read the moving papers and the preliminary hearing transcript.

The court asked the prosecutor why the garage gate and parking arm repairs took two and a half weeks to be completed. The prosecutor responded that the City of San Diego first had to generate a purchase order and, although that process alone ordinarily takes two to three weeks, in this case it was expedited. Further, the manufacturer of the custom-made rollup gate required several days to measure, repair and install it.

The court also asked why there was "potentially a duplication of effort" in that extra security personnel were hired to patrol both the entrance and inside of the parking garage. The prosecutor explained that while the parking arm was being repaired, the garage patrons ignored posted signs to take tickets and therefore they exited without paying. The extra staff ensured compliance with the signs. Separately, when the garage attendants left for the day, extra staff was needed to prevent homeless people from staying in the garage overnight.

Defense counsel in his opening statement challenged the $9,138 incurred for extra security: "I think the issue here is it's unclear to what extent and the reason for how long this extra security was needed." Counsel argued in closing that Malke had no serious criminal history, had suffered "a lapse in judgment," and on the night of the incident Malke had a sick dog at home. Malke had offered to reimburse the repair costs but considered the extra security costs excessive. Counsel argued, "I don't think that's a direct result of Mr. Malke's conduct here."

The court concluded the garage was repaired as expeditiously and thriftily as possible. It sympathized with Malke's situation: "This is an unfortunate situation, to say the least. I can't help but feel a certain human understanding, at least initially, for how Mr. and Mrs. Malke probably felt when they got there a few minutes after 12:00. [The garage is] locked up. They tried to raise somebody and they can't and then he resorts to self-help. . . . [¶] I do have a certain sympathy and I acknowledge and recognize . . . [Malke is] a responsible tax-paying citizen with no criminal history. Well, that's why he got a misdemeanor out of all of this."

The court commented on the evidence supporting the library's need for extra security officers: "I also would just observe independently of what we've been talking about here the security issues at the library are huge. I mean that is a magnet for homeless people. And I have personally presided over at least one felony case where multiple people were stabbed and attacked at that library that were homeless people and another member of the homeless population came and just did this random knife attack and three people were prosecuted and four people went to the hospital. [¶] And so the security concerns are very real, and I don't doubt for a second what [a witness] tells us that if that gate is up, the homeless people—God bless them—are going to be in there in a tidal wave. And if there any cars that are in there overnight, those cars are vulnerable. If there happen to be—and I don't know if there ever is—but if there happened to be someone who was parked there late at night afterhours working in the library and going out to his or her car, then that's a security risk too."

The court found Malke caused the injury: "The act was a criminal act and to the extent that there was really no need to break that articulating arm, that's what the Defense would call a bad fact. . . . it's clear [Malke] caused the damage." It granted the People's motion and ordered Malke to pay $16,202.32 in restitution at a rate of $100 monthly.

DISCUSSION

I. No Error in Holding the Restitution Proceedings in Malke's Absence

Malke contends he never orally or in writing waived his right to attend the restitution hearing. He argues the court committed structural error because under section 977, a written waiver was required as he was charged with a felony; therefore, no harmless error analysis is needed.

The People counter that Malke invited any error by orally waiving his right to attend the hearing. They point to this minute order entry: "The People request to take the restitution hearing off calendar and set a status conference/follow up hearing to allow the victims time to gather information regarding loss. The defendant does not oppose. [¶] The defendant enters a waiver of presence in open court for the future hearing." The People alternatively argue that any violation of section 977 was not prejudicial because Malke's attorney made the same arguments at the hearing that Malke claims he would have made in person: "Thus the trial court was well aware of [Malke's] belief that he should be held accountable solely for the cost of the repair to the gate and lift arm, but not for the cost of extra security and employees. [¶] [Malke] has not shown what additional arguments defense counsel would have proffered had [Malke] been present." Malke asserts in reply that his oral waiver applied to one particular status conference but not to the actual restitution hearing, which was held six months later.

Relying on the recent United States Supreme Court decision in McCoy v. Louisiana (2018) ___ U.S. ___ [138 S.Ct. 1500] (McCoy), Malke argues the trial court's decision to hold the restitution proceeding in his absence was a structural error that violated his due process rights and therefore we must reverse the restitution order. McCoy does not affect our view that the court did not commit structural error. There, the defendant, McCoy, claimed he was not present at the charged killings, but over his objections, his trial attorney—trying to avoid the death penalty for McCoy—conceded that McCoy killed the victims. (Id. at pp. 1506-1507.) McCoy held that under the Sixth Amendment of the federal Constitution, the defendant—not the attorney—controlled the decision whether to press a claim of factual innocence: "Autonomy to decide that the objective of the defense is to assert innocence" fell in the same category of client-controlled decisions as "whether to plead guilty, waive the right to a jury trial, testify in one's own behalf, and forgo an appeal." (McCoy, supra, at p. 1508.) The McCoy court found the trial court had committed structural error, not subject to a harmless error analysis, by violating the defendant's constitutional right: "The violation of McCoy's protected autonomy right was complete when the court allowed counsel to usurp control of an issue within McCoy's sole prerogative." (McCoy, supra, at p. 1511.)

The McCoy court summarized its jurisprudence regarding structural error and the criteria used for deciding which errors so qualified: (1) the right at issue is not designed to protect the defendant from conviction but instead protects some other interest (e.g., the fundamental legal principle that a defendant must be allowed to make his own choices about the proper way to protect his own liberty); (2) its effects are too hard to measure (right to counsel of choice) or (3) where the error will inevitably signal fundamental unfairness (such as a judge's failure to instruct the jury regarding guilt beyond a reasonable doubt). (McCoy, supra, ___ U.S. ___ [138 S.Ct. at p. 1511.)

Under the federal and state Constitutions and California statute, a defendant has a right to be present at critical stages of a criminal prosecution, including sentencing and pronouncement of judgment. (People v. Wilen (2008) 165 Cal.App.4th 270, 286-287.) We conclude that because the record here includes a waiver notice, and defense counsel announced he was appearing at the restitution hearing under section 977, " 'the court can rely upon the representations of defense counsel that the accused was knowingly absent from the proceedings.' " (People v. Fedalizo (2016) 246 Cal.App.4th 98, 110.)

Malke alternatively argues the higher standard of harmless error under Chapman v. California (1967) 386 U.S. 18 applies here. He reasons he was prejudicially denied "the right to allocute" or speak for himself, and he "could have been a powerful advocate on his own behalf. His story was a compelling one: he had no criminal history, was semi-retired, and was simply trying to retrieve his car. . . . It is reasonable to believe that a short statement by [him] in mitigation could have caused the trial court to reduce the restitution award."

Relying on the harmless error standard set forth in People v. Watson (1956) 46 Cal.2d 818, 836, the California Supreme Court concluded in a case presenting a similar issue: "Although the trial court committed statutory error by failing to obtain a written waiver from [the defendant] before allowing selection and empaneling of the jury to proceed in his absence, it is not reasonably probable that a result more favorable to [him] would have been reached in the absence of the error." (People v. Wall (2017) 3 Cal.5th 1048, 1061.)

We conclude that although the court erred by failing to obtain Malke's written waiver in violation of section 977, the error was harmless under either standard. It is clear beyond a reasonable doubt that Malke would not have obtained a different outcome if he had personally attended the restitution hearing. The trial court expressed sympathy for Malke, pointing out he had no criminal record. Further, it questioned the prosecutor at length regarding the justifications for the extra security costs. Moreover, Malke's counsel at the hearing made the precise arguments that Malke makes on appeal, and there is no basis for believing the court would have evaluated those arguments more favorably if Malke had made them in person.

II. The Court Did Not Err in Ordering Restitution for Extra Security Costs

Malke contends the court erroneously ordered him to pay $9,138 that the library incurred in hiring extra security officers. He argues that by opining about its experience of crime involving homeless individuals at the library, the court overlooked the material issue of "whether it was reasonably foreseeable from [Malke's] act of opening the exterior gate that: (1) it would take the City of San Diego two-and-a-half weeks to repair the exterior gate; (2) 'transients or other people who are not supposed to be in the garage' would enter during closed hours during the repairs; and, (3) additional personal [sic], beyond the '24-hour roving security' would be necessary." Malke adds that the court failed to apply the correct standard of foreseeability, which is from the standpoint of a reasonable person in Malke's position. Malke argues in reply: "At no point during the restitution hearing did the trial court address the issue of proximate cause, whether the alleged homeless population in the area was an independent intervening cause, or whether it was reasonably foreseeable to a reasonably prudent person in Mr. Malke's circumstance that homeless persons would wander into the parking garage. [Citation.] Indeed, the words 'proximate cause,' and 'reasonable foreseeability,' were never mentioned by the trial court."

A. Legal Principles Regarding Restitution and Standard of Review

Restitution is constitutionally and statutorily mandated in California. (Cal. Const., art I., § 28, subd. (b).) Section 1202.4, subdivision (a)(1) authorizes restitution for the "victim of a crime who incurs an economic loss as a result of the commission of a crime." Section 1202.4 subdivision (f) states: "[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. "[T]he court shall order full restitution unless it finds compelling and extraordinary reasons for not doing so and states those on the record." (§ 1202.4, subd. (b).) "Section 1202.4, subdivision (f)(3) further provides: "To the extent possible, the restitution order . . . shall be of a dollar amount that is sufficient to fully reimburse the victim or victims for every determined economic loss incurred as the result of the defendant's criminal conduct."

"A restitution order is intended to compensate the victim for its actual loss and is not intended to provide the victim with a windfall." (People v. Chappelone (2010) 183 Cal.App.4th 1159, 1172.) But, "[t]here is no requirement the restitution order be limited to the exact amount of the loss in which the defendant is actually found culpable." (People v. Carbajal (1995) 10 Cal.4th 1114, 1121; Chappelone, at p. 1172.) The court need only use a rational method that is reasonably calculated to make the victim whole. (Chappelone, at p. 1172.)

In cases dealing with victim restitution in criminal cases, California has "adopted the 'substantial factor' test in analyzing proximate cause." (People v. Holmberg (2011) 195 Cal.App.4th 1310, 1321.) This broad standard requires only that the contribution of any individual cause is more than negligible or theoretical, and that no independent, intervening, superseding cause exists to relieve the defendant of liability. (Id. at p. 1321; People v. Jones (2010) 187 Cal.App.4th 418, 427.) " 'However, in order to be "independent" the intervening cause must be "unforeseeable . . . an extraordinary and abnormal occurrence, which rises to the level of an exonerating, superseding cause." [Citation.] On the other hand, a "dependent" intervening cause will not relieve the defendant of criminal liability. "A defendant may be criminally liable for a result directly caused by his act even if there is another contributing cause. If an intervening cause is a normal and reasonably foreseeable result of defendant's original act the intervening act is 'dependent' and not a superseding cause, and will not relieve defendant of liability. [Citation.]" . . . The consequence need not have been a strong probability; a possible consequence which might reasonably have been contemplated is enough. . . . The precise consequence need not have been foreseen; it is enough that the defendant should have foreseen the possibility of some harm of the kind which might result from his act.' " ' " (People v. Cervantes (2001) 26 Cal.4th 860, 871.)

We evaluate the court's restitution order for abuse of discretion. (People v. Giordano (2007) 42 Cal.4th 644, 663; People v. Millard (2009) 175 Cal.App.4th 7, 26.) " ' "A victim's restitution right is to be broadly and liberally construed." [Citation.]

" 'When there is a factual and rational basis for the amount of restitution ordered by the trial court, no abuse of discretion will be found by the reviewing court.' " [Citations.]' [Citation.] However, a restitution order 'resting upon a " 'demonstrable error of law' " constitutes an abuse of the court's discretion. [Citation.]' [Citation.] 'In reviewing the sufficiency of the evidence [to support a factual finding], the " 'power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted,' to support the trial court's findings." [Citations.] . . . "If the circumstances reasonably justify the [trial court's] findings," the judgment may not be overturned when the circumstances might also reasonably support a contrary finding.' " (Millard, supra, 175 Cal.App.4th at p. 26.)

B. Analysis

We preliminarily reject Malke's claim the trial court erred by commenting about crime among the homeless people at the library. The court has authority to comment on the evidence: "The trial judge's privilege not only to summarize the evidence, but to analyze it critically, is rooted in English common law." (People v. Rodriguez (1986) 42 Cal.3d 730, 766.) Moreover, the court's comment merely validated that of a witness, Raul Gudino, the supervising analyst for the City of San Diego and the library, whose testimony on the same point provided a basis for the court's ruling. Finally, as noted, the court discussed the issue of causation and concluded that the library acted expeditiously and thriftily in repairing the gate, thus implicitly concluding the time it took for the library to complete the repairs and its hiring of the extra security in the interim were not intervening causes that absolved Malke of his obligation to pay those costs.

Applying the above principles, we reject Malke's appellate contentions regarding proximate cause and foreseeability. Defense counsel had raised those same issues below, and we can infer the trial court took them into account in its ruling. The court did not abuse its discretion; rather, it reasonably could find that absent Malke's destruction of the parking arm and the garage's pulldown gate, the library would not have needed to hire extra security officers to ensure both that the parking garage did not lose revenue from those who parked without paying, and that homeless people did not spend the night in the garage. Consequently, the record supports a finding that Malke's acts of vandalism were more than a negligible or theoretical cause of the library's losses. No other person caused the losses. No intervening conduct on the city's part relieved him of responsibility to pay those extra security costs, which were not unforeseeable or " 'an extraordinary and abnormal occurrence, which rises to the level of an exonerating, superseding cause.' " (People v. Jones, supra, 187 Cal.App.4th at p. 427.) Accordingly, we uphold the restitution order because the court used a rational method reasonably calculated to make the injured party whole. (People v. Chappelone, supra, 183 Cal.App.4th at p. 1172.)

DISPOSITION

The order is affirmed.

O'ROURKE, J.

WE CONCUR:

McCONNELL, P. J.

IRION, J.