PEOPLE v. WILEN

Filed 7/25/08

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

Story Continued From Part I ..

To Contend That He was Deprived Of His

Statutory Right To A Jury Trial

As a threshold matter, the Attorney General contends that the merits of the jury trial issue are not properly before us because any jury trial right conferred by section 11470.2 was surrendered by defendant when he entered his pleas of guilty to the substantive offenses. The Attorney General is referring to a provision of the written change of plea form, where defendant initialed the following: I understand that conviction of the charge(s) will require me to pay appropriate restitution to the victim(s) of my crimes and/or to pay a restitution fine of not less than $200 and not more than $10,000 [for a felony conviction] or not less than $100 and not more than $1,000 [for a misdemeanor conviction]. As the Attorney General reasons, even if it assumed that defendant had a purely statutory right to have a jury determine the prosecutors petition, that right was encompassed within defendants broader waiver of jury trial when he pleaded guilty. We cannot agree, because Martinez puts a large hole in the Attorney Generals waiver argument.

Martinez considered the propriety of an order, made under the authority of Penal Code section 1202.4, of more than $5,400 for drug laboratory clean-up expenses incurred by the same Department of Toxic Substances Control that helped remediate the laboratory run by defendant and Bonnetta. The Supreme Court held that the state department did not qualify as a direct victim entitled to restitution under the Penal Code provision because defendants attempt to manufacture methamphetamine was not an offense committed against the Department, nor was the Department the immediate object of his crime. (Martinez, supra, 36 Cal.4th 384, 392-394.) Expressly agreeing with Narron, the court held that, for a governmental entity which does not qualify as a direct victim of crime, Health and Safety Code sections 11470.1 and 11470.2 are the exclusive means by which a government entity that is not a direct victim of a crime may recoup its costs of eradicating or cleaning up toxic hazardous substances resulting from controlled substance crimes. (Id. at p. 394.)

Restitution fines are a very different animal. They are virtually mandatory upon conviction, even in the absence of a victim, except when the sentencing court finds compelling and extraordinary reasons for not imposing a restitution fine. (Pen. Code,  1202.4, subd. (c).) Collected restitution fines do not go directly to a victim, but are deposited in the Restitution Fund in the State Treasury. (Id., subd. (e).) And restitution fines are statutorily defined as punishment imposed within the context of a criminal proceeding. By contrast, victim restitution is discretionary, dependent upon the existence of a victim, and enforceable in civil courts. (See People v. Hanson (2000) 23 Cal.4th 355, 361-362; People v. Harvest (2000) 84 Cal.App.4th 641, 647-648.)

There can be no doubt that the concepts of restitution and restitution fine as those terms were used in defendants change of plea form derive from Penal Code section 1202.4; this can be verified with a quick glance at the statutes language.[1] At the time defendant changed his pleas, both terms had established meanings. Equally established was the exclusive remedy of Health and Safety Code sections 11470.1 and 11470.2, certainly in this Appellate District since Narron in 1987, and statewide since Martinez, which was decided in July 2005, more than a year before defendant changed his pleas.

Here, none of the agencies compensated by the trial courts order qualifies as a direct victim entitled to restitution. The Attorney General does not argue otherwise. The reporters transcript of the hearing at which defendant changed his pleas is silent on the matter of restitution or cleanup costs. Thus, we cannot conclude that this was an instance where the parties intended to leave the amount of defendants restitution . . . to the discretion of the court. (People v. Crandell (2007) 40 Cal.4th 1301, 1309.) Moreover, it is only common sense that defendant cannot be held to have knowingly and intelligently waived a right which up to then had never been mentionedand which might never become an issue. (See People v. Davis (2005) 36 Cal.4th 510, 531-532; People v. Dorado (1965) 62 Cal.2d 338, 353 [Obviously, defendant could not waive the right . . . unless he knew of that right.].)

In light of the foregoing, we conclude that defendant did not waive his right to invoke the procedural protections of Health and Safety Code section 11470.2 when he acknowledged at the time he changed his pleas that he would be subject to pay restitution to the victim and a restitution fine.[2]

The Trial Court Erred In Denying Defendants

Demand For Jury Trial

Much before us is undisputed. There is no doubt that the prosecuting attorney invoked Health and Safety Code section 11470.2 as the basis for his petition. And no doubt that defendant did not admit the allegations of the petition. Most significantly, defendant did not waive his right to a jury deciding the allegations of the petitionindeed, he repeatedly demanded that a jury be empanelled.

Subdivision (d) of Health and Safety Code section 11470.2 could hardly be more clear: If the defendant denies the petition or declines to admit it, the petition shall be heard . . . and shall be promptly heard following the defendants conviction on the underlying offense. The hearing shall be heard either before the same jury or before a new jury in the discretion of the court, unless waived by the consent of all parties. Not surprisingly, all of the reported decisions take the defendants right to jury trial as self‑evident from the statutory language. (See Martinez, supra, 36 Cal.4th 384, 390 [a criminal defendant who contests a petition for recovery filed in the prosecution for a drug offense is entitled to a jury trial before recovery can be granted]; Brach, supra, 95 Cal.App.4th 571, 577 [there is no showing defendants expressly consented to forego their right to have the jury decide the issue]; Narron, supra, 192 Cal.App.3d 734, 737 [Section 11470.2 affords the defendant the opportunity to have the restitution issue decided by a jury], 738-739 [the formal procedures, including the right to a jury trial, required by section 11470.2].)

 [T]o seek the meaning of a statute is not simply to look up the dictionary definitions and then stitch together the results. Rather, it is to discern the sense of a statute, and therefore its words, in the legal and broader culture . . . .  (Hodges v. Superior Court (1999) 21 Cal.4th 109, 114.) That is not hard here. We think it noteworthy that, apart from arguing that defendant has waived the point, the Attorney General makes no effort to argue that the words of subdivision (d) of Health and Welfare Code section 11470.2 have a meaning that differs from that argued by defendantand recognized by Martinez, Brach, and Narron. However, out of respect for the trial court, we consider whether Brach demonstrates that denial of defendants demand for a jury trial was proper.

Brach involved a defendant who pleaded guilty to cultivating marijuana. Repayment of the cleanup expenses was made a condition of her probation. On appeal, she attacked the condition as invalid because it was not imposed in compliance with Health and Safety Code section 11470.2. The Court of Appeal heldand this is all it held that the objection was waived because it was not first raised before the trial court. (Brach, supra, 95 Cal.App.4th 571, 577-580.) The situation in Brach is obviously distinguishable. We are not dealing with cleanup expenses imposed as a condition of probation, and we certainly do not have the defendant failing to assert his rights under section 11470.2, Thus, we conclude that the trial courts ruling cannot be upheld under authority of Brach.

If the issue of defendants guilt or innocence had been submitted to a jury, subdivision (d) of Health and Safety Code section 11470.2 gives the trial court the discretion to submit the contested factual issue of his liability for cleanup expenses to the same jury, or to empanel a new jury to determine that more limited issue. Because defendant pleaded guilty to the underlying charges, the former course was not an option. But the absence of a formal trial on the substantive offenses does not mean that the statute then became a dead letter. The language of the statute clearly contemplates that a separate jury may be empanelled, after the underlying charges have been resolved, and solely for the purpose of determining liability for cleanup expenses, if the defendant does not forego or waive that option. That is what defendant sought. The trial courts discretion under the statute did not extend to a complete denial of what the statute provided. Courts cannot give or withhold at pleasure. If the claim is enforced or recognized it is because the claim is a right . . . . (Southern Pacific Co. v. Jensen (1917) 244 U.S. 205, 220 (dis. opn. of Holmes, J.).)

The statute means what it says. Because the statutory language is plain and its meaning unambiguous, it is to be enforced according to the usual and ordinary meaning of its terms. (People v. Lawrence (2000) 24 Cal.4th 219, 230-231; People v. Coronado (1995) 12 Cal.4th 145, 151; Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735.)[3] We therefore conclude that the trial court erred when it denied defendants request for the jury trial guaranteed him by subdivision (d) of Health and Welfare Code section 11470.2. We defer assessing the impact of this error until after we address defendants second contention.

The Trial Court Erred In Denying Defendants Demand

To Be Present At The Hearing On The Petition

A defendant has a right to be present at critical stages of a criminal prosecution, a right protected by both the federal constitution and the state constitution. (U.S. Const., 6th & 14th Amends.; Kentucky v. Stincer (1987) 482 U.S. 730, 745; Cal. Const., art. I,  15, 16; People v. Perry (2006) 38 Cal.4th 302, 311.) California has also guaranteed the right by statute: In all cases in which a felony is charged, the accused shall be present at the arraignment, at the time of plea, during the preliminary hearing, during those portions of the trial when evidence is taken before the trier of fact, and at the time of imposition of sentence. The accused shall be personally present at all other proceedings unless he or she shall, with leave of court, execute in open court, a written waiver of his or her right to be personally present . . . . (Pen. Code,  977, subd. (b)(1); see id.,  1043, subd. (a) [the defendant in a felony trial shall be personally present at the trial].)

The right includes the defendants presence at critical stage[s] of the criminal prosecution, which includes sentencing and pronouncement of judgment. (People v.Rodriguez (1998) 17 Cal.4th 253, 257; People v. Robertson (1989) 48 Cal.3d 18, 60; People v. Dial (2004) 123 Cal.App.4th 1116, 1122.)

We are unable to follow the logic of the Attorney Generals efforts to argue that denying defendant the opportunity to be present at the trial guaranteed by subdivision (d) of Health and Welfare Code section 11470.2 was not error. The argument that A criminal defendant does not have the right to confrontation at the sentencing stage of a criminal prosecution is clearly predicated on the idea that a trial held pursuant to section 11470.2 would constitute a part of sentencing. Yet by integrating that hearing into the sentencing process, the Attorney General inadvertently backs into the right of personal presence guaranteed by Penal Code sections 977 and 1043, as well as section 1193.[4]

None of the reported decisions considering these provisions has held that it is harmless for a trial court to exclude a defendant who wishes to be present at the time judgment is pronounced. On the contrary, the defendants absence has by itself been treated as error, frequently prejudicial. (See In re Perez (1966) 65 Cal.2d 224, 229 [Pronouncement of judgment . . . is a critical stage in the criminal prosecution when the constitutional rights to appear and defend, in person and with counsel [citation] apply, and judgment pronounced in violation of these rights can be attacked by habeas corpus] (Opn. of Traynor, C.J.), italics added; In re Levi (1952) 39 Cal.2d 41, 45 [With certain exceptions not applicable here [citations], judgment and sentence in felony cases may be imposed only in the presence of the accused. If judgment is pronounced in his absence, and no justifying circumstances are shown, the judgment must be set aside. [Citations.] (Opn. of Traynor J.), italics added.] Even one of the decisions cited by the Attorney General finds the Court of Appeal stating that a hearing on an amount of restitution . . . is part and parcel of the sentencing process. (People v. Cain (2000) 82 Cal.App.4th 81, 87.)

Nor are we persuaded by the Attorney General using the quotation from People v. Waidla (2000) 22 Cal.4th 690, 742, to the effect that under sections 977 and 1043 of the Penal Code, a criminal defendant does not have a right to be personally present where he does not have a right to be personally present under section 15 of article I of the California Constitution. The exclusion in Waidla involved a defendant in a capital case who was not present at 16 conferences at bench, outside the presence of the jury, that related essentially to procedural, evidentiary, and housekeeping and other matters, plus a single conference in chambers, outside the presence of the jury, that related to instructions. (Id. at p. 741.) We cannot conclude that Waidla, fairly read, stands for the proposition that a defendant may be categorically excluded from a proceeding where the Legislature has provided the right to have a jury determine a matter of contested fact. Thus, we conclude that defendant did have at least a statutory right to be present at the hearing to determine his liability under Health and Safety Code section 11470.2.

We now address whether this error, and the denial of defendants jury trial right, qualify as prejudicial, requiring reversal.

The Errors Were Not Prejudicial

Defendant argues in his brief that the denial of his statutory right to jury trial was structural error of federal constitutional dimension and requires a rule of per se reversal. We disagree, given that restitution in criminal cases is hardly a novel concept. Indeed, neither in his briefs nor at oral argument was defendant able to muster a single explicit decision sustaining his position. And the federal authorities are decisively to the contrary. (See United States v. Milkiewicz (1st Cir. 2006) 470 F.3d 390, 403, fn. 24 [courts have concluded that restitution is not the sort of punishment to which the Sixth Amendment applies]; United States v. Rostoff (1st Cir. 1999) 164 F.3d 63, 71 [All circuits that have decided the issue have held that . . . the Seventh Amendment simply does not apply to a determination of the amount of a restitution order]; cf. United States v. Carruth (8th Cir. 2005) 418 F.3d 900, 904 [Those circuits which have considered the question anew in light of Blakely are in agreement that it did not alter the analysis or lead to a different result.].)

In any event, we are not required to deliver an authoritative answer. For present purposes we shall proceed in the belief that the jury trial right provided by subdivision (d) of Health and Safety Code section 11470.2 is governed by state standard of People v.Watson (1956) 46 Cal.2d 818, 836, because our Supreme Court has held in an analogous context when the right to a jury trial . . . is purely a creature of state statutory law, denial of that right is governed by Watson. (People v. Epps (2001) 25 Cal.4th 19, 29.)[5] The same standard governs error under state statutes guaranteeing defendants presence: reversal is required only if  it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.   (People v. Davis, supra, 36 Cal.4th 510, 532-533, quoting Watson.)

A criminal defendant is entitled to be in court if his presence will have a reasonably substantial relation to the opportunity to defend against the charges. (People v. Ochoa (2001) 26 Cal.4th 398, 433; People v. Waidla, supra, 22 Cal.4th 690, 742; People v. Ervin (2000) 22 Cal.4th 48, 74.)

At first blush, it seems one can hardly talk about harmless error when considering a criminal hearing where the defendant is excluded, and his lawful demand for a jury spurned. But the hearing was not a full-blown trial, and the issue of guilt or innocence had already been settled by defendants pleas of guilty. The subject of the hearing was infinitely more modest, namely, whether, and in what amount, defendant would be adjudged liable to pay for the costs of cleaning up the detritus of the criminal acts he had already admitted. The inquiry was actually even more restricted than that. By reason of his guilty pleas, there was no chance defendant would get off scot-free and Bonnetta would be stuck with the entire bill. In short, the only issue was the amount defendant would be ordered to pay.

And that issue would be decided on the most desiccated of grounds. The need for the cleanup would not be denied. The fact that it had actually occurred was never challenged. All that could be contested was the bottom line of what it cost. Defendant was not a percipient witness to the cleanup operation, so he could not offer personal input that would impeach any testimony concerning the operations.

People v. Epps, supra, 25 Cal.4th 19 is unusually apposite to the inquiry, because it too involved a denial of a statutory right to have a jury decide an issue collateral to guilt in a criminal proceeding, i.e., whether the defendant had as alleged suffered prior felony convictions. (See Pen. Code,  1025, 1158.) The issue here, the amount only of cleanup costs, is only abstractly wider. Both were, in essence, decided on the basis of documents, here via witnesses who in effect authenticated the documents on which the matter was decided by the court.

Finally, the Attorney General draws our attention, and correctly so, to People v. Bradford (1997) 15 Cal.4th 1229, 1357, where our Supreme Court held that a defendant whose right of personal presence was denied bears the burden of demonstrating prejudice. This is significant because defendant in his briefs does not identify how his presence would have sharpened the questions his counsel asked at the hearing beyond asserting he knew what chemicals and equipment belonged where . . . and what belonged to him versus what belonged to his codefendant. But none of the witnesses called at the hearing had any personal knowledge of the layout of the drug laboratory. There thus appears to have been no lines of cross-examination, and certainly no real impeachment, that defendant could have suggested to his counsel had he been present.

On the other hand, the approach adopted by defendants counsel at the hearing was that the bills submitted were in effect padded with improper factors such as bureaucratic overhead that would have been incurred in any event. This approach appears to have enjoyed some success. Of the total of $5,056.39 sought by the prosecutor, the court assessed defendant a little over half that amount, $2,631.04. There is no dispute that the $782 and $504.29 figures were correctly assessed only against defendant because they were attributable to disposing of the red phosphorus: as the prosecutor told the court, Mr. Wilen was found in possession of the red phosphorus and Mr. Bonnetta had already been arrested. Defendant did not challenge them in the trial court, nor does he now on this appeal. The rest of the award was comprised of $1,344.75, that is, exactly half of the $2,689.50 of the claimed expenses of the Sheriffs Department crime laboratory. Not one cent from the claim for the $1,080.60 purportedly incurred by the drug investigation unit of the Sheriffs Department was included. Nothing in defendants briefs argues that his presence would have contributed to substantiating this approach, or increasing the potency of its delivery.

We do not think there is a reasonable probability that a jury would have returned a more lenient verdict to defendants face. The errors may thus be treated as nonprejudicial. (Cal. Const., art. V,  13; People v. Watson, supra, 46 Cal.2d 818, 836.)

DISPOSITION

The order is affirmed.

_________________________

Richman, J.

We concur:

_________________________

Haerle, Acting P.J.

_________________________

Lambden, J.

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A115861, People v. Wilen

[1] Upon a person being convicted of any crime in the State of California, the court . . . [] . . . shall order the defendant to pay both of the following: [] (A) A restitution fine in accordance with subdivision (b). [] (B) Restitution to the victim or victims . . . . (Pen. Code,  1202.4, subds. (a)(2)-(3).) The restitution fine . . . shall not be less than two hundred dollars ($200), and not more than ten thousand dollars ($10,000), if the person is convicted of a felony, and shall not be less than one hundred dollars ($100), and not more than one thousand dollars ($1,000), if the person is convicted of a misdemeanor. (Id., subd. (b)(1).) The actual language of the plea provision language is obviously taken from subdivision (b)(1).

[2] We also note an anomaly in the Attorney Generals logic. Suppose that the clean-up costs exceeded $10,000. Following the Attorney Generals reasoning, defendants purported waiver would limit recovery of expenses to the $10,000 specified in the change of plea form. In light of the number of personnel and agencies required to clean up the site in this case, it is easy to imagine that remediation expenses for a major illegal laboratory could easily surpass that figure. It would follow that, if recovery in excess of that amount was sought, the waiver would not be effective, and section 11470.2 would have to be used for the excess. This would merely return matters to where we began. Such a result would, to say the least, be peculiar.

It should be borne in mind that while there is no limit on direct victim restitution (see People v. Giordano (2007) 42 Cal.4th 644 [$167,711.65]; People v. Hove (1999) 76 Cal.App.4th 1266 [$286,565.92]), restitution fines are statutorily capped at $10,000. (People v. Crandell, supra, 40 Cal.4th 1301, 1310; People v. Blackburn (1999) 72 Cal.App.4th 1520, 1534.)

[3] Moreover, in the event there are any doubts or statutory ambiguities, they would have to be resolved in favor of securing the right to trial by jury. (Grafton Partners v. Superior Court (2005) 36 Cal.4th 944, 956, 958; Maldonado v. Superior Court (1984) 162 Cal.App.3d 1259, 1266-1267; Byram v. Superior Court (1977) 74 Cal.App.3d 648, 654.)

[4] The last cited statute provides in pertinent part:

Judgment upon persons convicted of commission of crime shall be pronounced as follows: [] (a) If the conviction is for a felony, the defendant shall be personally present when judgment is pronounced against him or her, unless the defendant, in open court and on the record, or in a notarized writing, requests that judgment be pronounced against him or her in his or her absence . . . and the court approves his or her absence during the pronouncement of judgment, or unless, after the exercise of reasonable diligence to procure the presence of the defendant, the court shall find that it will be in the interest of justice that judgment be pronounced in his or her absence . . . . (Pen. Code,  1193, subd. (a), italics added.)

[5] In his reply brief, defendant appears to realize that Epps dooms his structural error argument, but he nonetheless respectfully asserts that Epps was wrongly decided, in violation off the United States Constitution, and explicitly preserves the issue for federal review.