P. v. Meyers

Filed 10/30/07 P. v. Meyers CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from a judgment of the Superior Court of Los Angeles County. John Fisher, Judge. Affirmed.

Lynette Gladd Moore, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and Herbert S. Tetef, Deputy Attorneys General, for Plaintiff and Respondent.

__________________________

Cliff Edward Meyers appeals from the judgment entered after he pleaded no contest to individual counts of carjacking, robbery, assault, and grand theft. Meyers contends that a $21,000 restitution award to his grand theft victim (Pen. Code,  1202.4, subd. (f)) was not supported by substantial evidence and was obtained in violation of his due process rights to attend the hearing and present evidence.^[1] We affirm.

FACTS AND PROCEDURAL HISTORY

As part of a plea agreement, Cliff Edward Meyers pleaded no contest on July 11, 2006, to one count each of carjacking, second degree robbery, assault by means likely to produce great bodily injury, and grand theft. Based on that and his admission to certain prior conviction enhancements, Meyers was sentenced to a prison term of 28 years and 4 months. In exchange, counts of attempted robbery, firearm possession by a felon, and grand theft of a firearm were dropped. The grand theft and firearm grand theft counts both involved one victim the Marins.^[2]

After finding that Meyers had waived his various trial-related rights, the court accepted the plea agreement and told Meyers that pursuant to People v. Harvey (1979) 25 Cal.3d 754, he was still liable to make direct restitution, under section 1202.4, subdivision (f), even as to the victims of the three dismissed counts. When the court asked defense counsel to suggest a date for the restitution hearing, defense counsel said, August the 17th, Your Honor. [] And Mr. Meyers will waive his appearance. Meyers answered yes when the court asked him to confirm that he agreed not to be present at that hearing. The court then said, August 17th. Non-appearance for just the restitution amount to be calculated. The court also ordered the probation department to prepare a post-sentencing report for the restitution hearing.

On July 21, 2006, a probation officer submitted the restitution report, and on July 25 the court read and considered that report. The report recounted the facts of the robbery charge but did not list the amount of money taken from that victim, and quoted the carjacking victim as claiming a loss of $250 to $300 for towing and impound fees. The report said nothing about the grand thefts from the Marins. The probation officer concluded by noting that the report was requested one day after it was due, suggesting that he did not have enough time to complete the report.

The scheduled August 17 restitution hearing was continued to August 18, 2006. When the hearing started, the court asked whether the prosecutor was ready to present an amount. The prosecutor said that even though the Marins had obtained a partial recovery, they were still missing $21,000 worth of property. The prosecutor said the robbery victim had lost $200, and that the carjacking victim incurred $388 in towing and storage fees. The court asked defense counsel if she had any comments, prompting her to say: Just, Your Honor, first I would like to make for the record that my client did contact me prior to the restitution hearing date and stated that he desired to waive or to withdraw his formal former waiver of appearance and stated that he did want to be present for the restitution hearing. [] He also advised me that he wanted to withdraw the guilty plea that he had previously entered into the case. [] I did inform him that I would notify the court of his request and that is why I did make a request to continue the matter so that he could be ordered out he has been sent to prison so that he could be out in appearance for the restitution hearing and gave him advice on what he needs to do if he did so desire to withdraw his guilty plea. [] So for that reason I would be requesting that the restitution hearing be continued so that he could have his right to be present and address the court himself on the issues that he raised to me.

Defense counsel said she had only a few comments to make if the court were inclined to proceed: First, the carjack victim told the probation officer that her costs were between $250 and $300; second, the robbery victim said nothing about the amount of his loss; and third, with respect to the Marins, [W]e havent seen any documentation to substantiate the $21,000 loss. Asked by the court about that, the prosecutor replied that defense counsel had copies of the theft reports the Marins filed with the police. According to the prosecutor, the original theft report listed a loss of $10,000, a supplemental report brought the amount taken to $31,000, and a later recovery of some of those items, including the gun, brought the total back down to $21,000. The court then denied the motion to continue and ordered Meyers to pay restitution in the amounts requested by the prosecutor. Defense counsel did not object or otherwise contest the prosecutors statements.

On appeal, Meyers challenges the $21,000 restitution award to the Marins on the following grounds: (1) the court violated his due process rights by not allowing him to attend and present evidence, and because he was never notified ahead of time of the amount of the Marinss loss or the evidentiary basis for their claim; and (2) there was insufficient evidence to substantiate the restitution award.^[3]

DISCUSSION

1. Meyers Received Due Process

A. The Continuance and Appearance Waiver Withdrawal Motions

A continuance may be granted for good cause. ( 1050, subd. (e).) We review a trial courts order denying a requested continuance under the abuse of discretion standard. In determining whether a denial was so arbitrary that it denied the defendant due process, we look to the circumstances of the case and to the reasons given for the request. Among the factors we consider is whether a continuance would have been useful. (People v. Frye (1998) 18 Cal.4th 894, 1012-1013 (Frye).) No reported California decisions have considered the standard of review for the denial of a motion to withdraw a defendants appearance waiver. Analogizing to decisions concerning a defendants attempt to withdraw an earlier waiver of the right to jury trial, respondent contends that a similar standard applies. (See People v. Chambers (1972) 7 Cal.3d 666, 670-671 (Chambers) [abuse of discretion standard applies to order denying motion to rescind jury trial waiver; reviewing court considers factors such as timeliness of motion, the reasons given, and any potential delay or inconvenience].) We agree and will apply that standard here: if the court has discretion to grant or deny a defendants request to reinstate his waived jury trial a most fundamental right we see no reason why the court should have any less discretion regarding an appearance at a restitution hearing.^[4]

Meyers does not dispute that he validly waived his right to attend the restitution hearing. (Frye, supra, 18 Cal.4th at p. 1010 [defendant may waive right to be present at trial].) He contends in his opening appellate brief that when the court denied his motions to withdraw his earlier waiver of appearance and to continue the restitution hearing, his lawyer objected at that time that there was no documentary evidence to support the $21,000 loss claimed by the Marins. According to Meyers, the prosecutor referred to police reports filed by the Marins and the trial court awarded the full amount without considering any additional evidence. As a result, he contends, the restitution award violated his constitutional due process rights because he was not allowed to be present or offer evidence to contradict the amount, was never advised he had a right to do so, and had no notice of the prosecutors supporting evidence or the amount that would be sought.

While Meyers does not say so directly, it appears that he wants us to believe that the continuance and appearance waiver withdrawal motions were based on the evidentiary deficiency and due process notions that he now makes on appeal. He is wrong. When his lawyer made those motions, she made no mention of the issues Meyers raises on appeal: that he had received no notice of the amount of restitution sought by the prosecutor or the evidence supporting that amount; that he was unaware of his right to contest the prosecutors evidence; and that he was otherwise deprived of his opportunity to challenge the prosecutions case. ( 1202.4, subd. (f)(1) [defendant has right to a hearing in order to dispute restitution amount].) Instead, she asked the court to grant those motions without offering any reasons at all. As a result, we hold that the trial court did not abuse its discretion by denying those motions.^[5] (See Frye, supra, 18 Cal.4th at pp. 1012-1013, and Chambers, supra, 7 Cal.3d at pp. 670-671 [we examine reasons offered for continuance motion and motion to withdraw jury waiver when reviewing orders denying such motions].)

B. Notice of The Amount Sought

As Meyers points out in his appellate brief, he was statutorily entitled to a hearing where he could dispute the evidence offered by the prosecution to support the restitution award. ( 1202.4, subd. (f)(1).) As part of that hearing, Meyers was entitled to notice of the amount sought and to a reasonable opportunity to challenge that figure at a hearing. (People v. Thygesen (1999) 69 Cal.App.4th 988, 993.) Meyers contends he was denied his right to notice of the amount sought because the probation report prepared for the restitution hearing did not say anything about the Marinss loss.

Assuming for discussions sake only that Meyers is correct, we will still affirm. First, Meyers made no objection on this ground (or any other) at the hearing and therefore waived his objections. (People v. Whisenand (1995) 37 Cal.App.4th 1383, 1395-1396 [objections to notice not raised at a restitution hearing are waived]; see People v. Gonzalez (2003) 31 Cal.4th 745, 752, 754-755 [even if notice of intended sentence and restitution fine were not given, sentencing objections are waived if not made during the hearing so long as the defendant was notified of the amount sought during the hearing and was given a meaningful opportunity to object before the sentence was imposed].)Meyers relies on decisions such as People v. Resendez (1993) 12 Cal.App.4th 98 and People v. Sandoval (1989) 206 Cal.App.3d 1544, for the proposition that no waiver occurred because he had no meaningful opportunity to object. His reliance is misplaced. In those cases, the trial court rejected the restitution award recommended in a probation report and awarded much higher sums, all without warning and without affording the defendant any meaningful opportunity to object. Unlike those cases, the prosecutor here asked for $21,000 during the hearing and reminded defense counsel that counsel had already seen copies of the police reports that supported the Marinss loss statements. The record does not show that defense counsel was deprived of an opportunity to object, but that she simply did not do so.

Second, the supposed error was harmless beyond a reasonable doubt under Chapman v. California (1967) 386 U.S. 18. The police reports referred to by the prosecutor are in the record and contain in detail the Marinss list of items stolen and their fair dollar values.^[6] Meyers has never disputed that his lawyer saw those reports well before the restitution hearing. Meyers and his lawyer were also present at the preliminary hearing, where a police officer testified that the Marins were claiming a loss of $31,000. Even without the probation report, Meyers therefore knew the amounts being claimed and their evidentiary basis. Because Meyers has never contended either below or on appeal that he has evidence to rebut that amount, we conclude beyond a reasonable doubt that no different result was probable.

C. The Hearing

Meyers also contends that he was denied the right to a hearing, including notice of his right to present his own evidence. We disagree. All the record shows is that Meyers simply chose not to attend the restitution hearing. Instead, he left the matter to his lawyer, who was told that the next hearing was designed to determine the amount of restitution, and that a probation report concerning the restitution claims would be prepared. After the hearing began, defense counsel questioned the amounts sought by the prosecutor and mentioned that the report said nothing about the Marinss loss. It is therefore obvious that Meyerss lawyer was aware of her right to dispute the amounts sought. When the prosecutor said that the evidence of the Marinss loss was contained in police reports that were in defense counsels possession, defense counsel did not dispute that fact, make any objections, or offer to introduce any evidence to challenge the amount sought. Nothing in the record shows that Meyers was prevented from introducing his own evidence. Nor does Meyers contend on appeal that he had any evidence to present. When Meyers waived his presence he did not indicate that he had any evidence to offer or that he disputed restitution. We alternatively hold that Meyers waived any notice defect claims by failing to object on that ground during the hearing. (People v. Whisenand, supra, 37 Cal.App.4th at pp. 1395-1396.)

2. Sufficient Evidence Supported the Restitution Award

Victim restitution shall be ordered in an amount established by the court based on the amount of loss claimed by the victim or victims or any other showing to the court. . . . ( 1202.4, subd. (f).) The value of stolen property shall be the replacement cost of like property. ( 1202.4, subd. (f)(3)(A).) A trial judge is given wide discretion in making a restitution award, and we will affirm so long as there is a factual and rational basis for the amount of the award. (People v. Thygesen, supra, 69 Cal.App.4th at p. 992; People v. Dalvito (1997) 56 Cal.App.4th 557, 562.)

Relying on People v. Vournazos (1988) 198 Cal.App.3d 948 (Vournazos) and People v. Hartley (1984) 163 Cal.App.3d 126 (Hartley), Meyers contends insufficient evidence supports the restitution award because there was no evidence that the amounts listed by the Marins were in fact the replacement cost of the stolen items. Later decisions have declined to follow Vournazos and Hartley because they place too high a burden on the prosecution, the court, and the victim. (People v. Foster (1993) 14 Cal.App.4th 939, 946 [declining to follow Vournazos and Hartley; holding instead that property owners statement in probation report about value of stolen property is prima facie evidence of value for restitution purposes]; see In re S. S. (1995) 37 Cal.App.4th 543, 546-547 [applying Foster rule and declining to follow Vournazos and Hartley].) We agree with the reasoning of Foster and S.S. and hold that the Marinss loss statements, which itemized and described in detail each piece of stolen property and listed its fair dollar value, were sufficient evidence to support the restitution award.^[7]

Finally, Meyers contends that the Marinss uncorroborated loss statement was insufficient evidence to show that he had stolen the specific items the Marins listed as missing. This contention is not supported by citation to authority and merits little discussion. Meyers pleaded no contest to grand theft of the Marins, and the Marinss statements concerning the items taken during that crime is sufficient evidence that Meyers in fact stole those items.

DISPOSITION

For the reasons set forth above, the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

RUBIN, J.

WE CONCUR:

COOPER, P. J.

FLIER, J.

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^[1] All further undesignated section references are to the Penal Code.

^[2] The facts surrounding those crimes are of no relevance to the issues on appeal. Stated briefly, Meyers was dating the Marinss daughter and, with her unwilling assistance, he stole cash, jewelry, and a handgun from their home.

^[3] Meyerss notice of appeal did not mention the restitution award and was limited solely to the validity of his no contest plea. We nevertheless address all issues he has raised in his briefs on appeal.

^[4] One New York case People v. Williams (1998) 92 N.Y.2d 993, 995-996 holds that an abuse of discretion standard applies to such rulings.

^[5] In his opening appellate brief, Meyers states that because he was not present at the restitution hearing, he was unable to present evidence to refute the victims claim. In his reply brief, he states that because the evidence to support the restitution award came solely from the victims, he was the only person [] who could state with certainty what was taken in the burglary. That is as close as Meyers has ever come to explaining why he might have wanted to attend the restitution hearing. Even so, he has not framed such an argument on appeal and the two statements just mentioned do not offer even a glimpse of what evidence Meyers might seek to introduce to rebut the prosecutions showing. At no time did the court preclude defendant, through counsel, from offering any evidence to rebut the amounts claimed by the prosecution.

During oral argument, Meyerss counsel argued that granting a continuance would have caused the prosecution little or no prejudice. That may well be, but, as discussed below, Meyers failed to show below and on appeal that he suffered any prejudice from the trial courts orders.

^[6] The Marinss supplemental loss report listed $2,000 in stolen cash, 700 silver dollars, and 19 stolen items of jewelry, then described each piece of jewelry in detail and assigned it a fair dollar value. Examples included: 14k gold ladys ring with center stone 1-3/4 ct diamonds with round diamonds on the side shape like butterfly; Pearl necklace white color 8mm 18 inches; and elephant ivory necklace.

^[7] We also note that Hartley did not bar the use of a victims loss statement as the sole evidentiary basis of a restitution award. Although a probation report that includes a victims statements and the amount of any insurance payments to the victim is a better reflection of the replacement value of stolen property, the court said if a victims statement cannot be obtained, then existing evidence of the value of the property, such as a police report, may then be utilized so long as the source of the information is clearly identified. (Hartley, supra, 163 Cal.App.3d at p. 130, fn. 3, italics added.) In short, a victims loss statement may be sufficient evidence of replacement value.