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

This appeal is by a criminal defendant from a postjudgment order directing him to pay $2,631.04. The amount is small, and the odds of collecting it problematic. But the two issues raised by the appeal are, on the surface, as important as any we can confront: (1) Does a defendant who has pleaded guilty to controlled substance crimes and who is subject of a petition for recovery of hazardous clean-up expenses have a right under Health and Safety Code section 11470.2 to have liability for those expenses decided by a jury? and (2) Does the defendant have a right to be present at the hearing when that liability is decided? We conclude that the plain and unambiguous statutory language compels the conclusion that the answer to each question is Yes. The trial court answered otherwise, refusing a timely demand for a jury, and ruling that the defendant had no right to be personally present when the amount of clean-up expenses was determined. In short, the trial court erred on both counts. Nevertheless, given the very limited scope, and impersonal nature, of the issue that would have been put before a jury, we conclude the errors do not qualify as prejudicial. We thus affirm.

BACKGROUND

In July 2004, police discovered defendant Michael Wilen and Thomas Bonnetta operating a methamphetamine laboratory. The salient events with which we are concerned, all of which occurred in 2006, are easily recounted.

On July 28, both defendants entered open pleas of guilty to numerous charges and admitted a number of enhancement allegations. Among the charges admitted were manufacturing methamphetamine (Health & Saf. Code,  11379.6, subd. (a)) and possessing precursors to that substance (id.,  11383, subd. (c)(1)).

On August 9, the District Attorney of Contra Costa County filed a petition pursuant to Health and Safety Code section 11470.2 for recovery of $6,500 incurred in seizing, eradicating, or destroying the methamphetamine defendants had been manufacturing.

On September 15, the trial court sentenced defendant to state prison for a total term of six years and eight months; Bonnettas total term was eight years.[1] The court imposed a restitution fine of $1,200 on defendant, and $1,600 on Bonnetta. The reasons for defendant being treated slightly more leniently than Bonnetta were explained by the court as follows:

[T]he Court has viewed Mr. Wilen in a different light than his codefendant, Mr. Bonnetta. Upon my review of the preliminary hearing testimony and the other documents that were submitted, I find that his culpability in this offense is less[] than that of Mr. Bonnetta[]. [] There was manufacturing equipment not located in his [defendants] locked bedroom. He was living with his girlfriend at the time of the offense, although he had a bedroom in Mr. Bonnettas house for five months, while Mr. Bonnetta had lived in the house for two years.[2] The house belonged to Mr. Bonnetta. His criminal history, while extensive, is less extensive than Mr. Bonnettas.

Before defendant was sentenced, the matter of the petition was brought up. While codefendant Bonnetta was being arraigned for sentence, counsel for defendant advised the court We want to contest it . . .  I believe Mr. Wilen is entitled to a jury trial on the amount per the statute, so we would ask for a jury trial. The prosecutor responded, Set it forthwith, please. A moment later, the prosecutor added, Actually . . . becauseI think this is a civil matter under Health and Safety Code section 11470.2(b), I dont think their presence is required. The court stated, I dont believe its required.

After Bonnetta was sentenced, but before defendant was sentenced, there was some discussion about the absence of supporting documentation.[3] During this discussion, the prosecutor stated: My issue is are we going to have a court hearing or are they going to insist on a jury trial . . . ? If were going to insist on a jury trial, I want it set at the earliest possible date so that this can be resolved. The court put the matter over for a week, to September 22, the time before the abstract of judgment would be prepared, and on that date you make your decision. You want a jury trial, you want a court trial, whatever it is that you want.

The hearing on September 22 opened with the district attorney advising the court that the amount sought by the petition was reduced to $4,552.10. Counsel for Bonnetta complained that $2,600 of this amount was supported by nothing more than a footnote in the prosecutors supporting papers, but that his client was nevertheless willing to have the matter heard at that time by the court and deal with the amount that we just got in court today. The court asked defendants counsel are you planning on setting a hearing or not? Counsel replied Yeah. [] . . . [] Are we going to agree to this amount today? No. The court then set a restitution hearing for October 13.

But there remained the petition as against codefendant Bonnetta. The prosecutor told the court, I need a jury trial waiver, [] . . . [] Judge, I need a jury trial waiver. This is what followed:

THE COURT: You want to take it?

[THE PROSECUTOR]: Yes. [] Mr. Bonnetta, you have a statutory right to a jury trial on the petition in this matter. [] Do you understand that right?

DEFENDANT BONNETTA: Yes.

[THE PROSECUTOR]: And do you agree to give that right up so that only a court will decide the restitution amount?

DEFENDANT BONNETTA: Yes.

[THE PROSECUTOR]: Counsel, join and concur?

[COUNSEL FOR BONNETTA]: Yes.

[THE PROSECUTOR]: The People also waive jury trial.

There followed an extensive discussion among the court and counsel for the three parties concerning the nature of the proceeding and whether it could be conducted in the absence of the defendants. The court and the prosecutor believed that it could, and should not in any event delay the start of defendants prison commitments.[4] The hearing ended with the prosecutor stating, I need a jury trial waiver from Mr. Wilen. Defendants counsel replied that I want[] to see whether hes going to have the right to be here or not before he decides whether hes going to be waiving jury trial or not.

At the hearing the court gave defendants counsel 72 hours to produce a letter brief with authority showing that defendant had a right to be present at the next hearing on October 13. On September 25, counsel for defendant submitted a memorandum to the court, arguing that defendant was entitled to be present at the hearing by virtue of Penal Code section 977, and that such right was also inherent in the concept of the jury trial promised by Health & Safety Code section 11470.2.

That same day the prosecutor submitted a letter brief that disputed both of defendants points. First, citing People v. Brach (2002) 95 Cal.App.4th 571 (Brach), the prosecutor contended that the constitutionalright to jury trial is inapplicable to any restitution hearing, including the hearing in such a case as this one. Second, There is no provision within section 11470.2 for the personal presence of the defendant. Accordingly, defendant has no constitutional or statutory right to be present at the restitution hearing in this case.

Neither defendant nor Bonnetta was present on October 13. The hearing opened with their counsel again maintaining that their clients had a right to be present. Reversing the course she had taken earlier, the prosecutor now argued that neither defendant had a right to a jury trial: Its the Peoples position that where the defendant has waived jury trial in order to admit or plead no contest to the charges underlying the restitution petition, then a new [sic] jury to decide the issues for restitution lies in the discretion of the trial court.

Counsel for defendant responded this petition wasnt filed until after his waiver of a jury trial had already been entered and accepted by the Court, so he clearly was not told or informed or even knew that the People were going for . . . restitution under 11470.2. Then, addressing the language of Health and Safety Code section 11470.2,[5] counsel continued: I think when it talks about in the discretion of the judge, thats saying whether its the same jury or whether it should be . . . a new jury in the discretion of the Court comma unless waived by the consent of all parties. [] I really believe that the way thats written is that its up to the Court to decide whether it should be the same jury or a different jury. Thats something theyre leaving to the discretion of the Court. [] But in whether the defendant gets a jury trial, I dont believe the Court has any discretion on that. And he has not personally waived that. And they specifically add that at the end, that this is all unless waived.

Apparently agreeing with the prosecutor about the impact of Brach, supra, 95 Cal.App.4th 571, the trial court ruled that defendant does not have [a] right to be present, and therefore Im going to deny the request to have him present. [] Now the second issue, . . . is whether . . . he does have a right to the jury trial when there has not been a jury impaneled for the purposes of the guilt proceedings. [] Under Brach it seems to state in its discussion that he is not entitled to a jury trial. [] . . . [] . . . There is no constitutional right to a jury trial on issues of restitution, and there is no such right under Health and Safety Code section 11470.2 to determine that restitution amount for eradication expenses. [] So under my reading of Brach . . . the issue of whether or not its the guilt phase jury versus the restitution phase jury is in the discretion of the Court . . . . [] But I dont read that case to say that there is an absolute right to a jury trial where theres been a waiver of his right to trial and he has pled guilty . . . . []  So I am going to deny that as well, and that is under People v. Brach.

The prosecutor then called three witnesses. The first was an account clerk for the crime lab for the Sheriffs Department, who testified from the invoice she prepared for $2,689.50 (16.3 hours at $165 per hour), and that it represented the total amount of expenditures for the crime lab in this case in seizing, eradicating, and destroying the methamphetamine laboratory.[6] The second witness worked for the Hazardous Materials Program in the Contra Costa County Health Department, and testified about the $782 cost of cleanup efforts by him and another county employee for red phosphorus. The third witness, employed by the California Department of Toxic Substances Control, testified his agency paid $504.29 towards disposal costs of the red phosphorus.[7] The hearing was continued to November 3.

On November 3, a fourth witness testified to $1,080.6020 hours at $54.03 per hourincurred by the drug investigation unit of the Sheriffs Department.[8] After hearing extensive argument from counsel, the court set this over for decision to November 17.

On November 17, the court ruled that the total recovery against defendant would be $2,631.04, and against Bonnetta $1,344.75. Five days later the court filed a Decision Regarding Defendants Restitution, directing defendant to pay $2,631.04. On December 7, defendant filed a timely notice of appeal from the written order.

DISCUSSION

The Statutes Governing Reimbursement Of

Illegal Drug Manufacturing Cleanup Costs

On his appeal, defendant contends that the evidentiary hearing held on the prosecutions petition was deficient in two respects. First, that it was conducted by the trial court acting as the trier of fact, when the trier of fact should have been a jury, as statutorily provided, and as defendant demanded in a timely fashion. Second, and without regard to who was acting as the trier of fact, defendant was entitled to be present when the merits of the petition were decided.

Before addressing the first of these contentions, it is useful to repeat the brief survey of the relevant statutes and their history, set out in a recent decision by our Supreme Court:

On June 8, 1982, the voters of California adopted Proposition 8, an initiative amending our Constitution (Cal. Const., art. I,  28, subd. (b)) to grant victims of crime a constitutional right to receive restitution from defendants convicted of crimes that caused the victims economic loss. [Citations.] In response, the Legislature enacted an array of statutes covering restitution or recovery of expenses by crime victims. Among those statutes are Health and Safety Code section 11470.1 and 11470.2, as well as Penal Code section 1202.4.

In March 1983, at the urging of the Attorney General, state Senator Barry Keene introduced Senate Bill No. 1121 . . . to add sections 11470.1 and 11470.2 to the Health and Safety Code. The purpose of the bill was to require those who engage in illegal drug activities to repay the costs incurred in seizing and destroying unlawful substances akin to the charges imposed under existing law for abating other nuisances. [Citation.] The bill sought to alleviate the financial burden on law enforcement agenciesespecially those in small rural areasof eradicating marijuana plants and closing clandestine drug labs. [Citation.] By permitting law enforcement to recover its cleanup costs, the legislation sought to ensure that those who engage in illegal drug activities would bear the costs of eliminating their abuses. [Citation.] The new legislation took effect on January 1, 1984. (People v. Martinez (2005) 36 Cal.4th 384, 388-389 (Martinez).)

Health and Safety Code sections 11470.1 and 11470.2 established a two-track approach for recovering the costs incurred in cleaning up illegal substance operations.

The expenses of seizing, eradicating, destroying, or taking remedial action with respect to, any controlled substance or its precursors shall be recoverable from: [] (1) Any person who manufactures or cultivates a controlled substance or its precursors . . . . (Health & Saf. Code,  11470.1, subd. (a)(1).) A civil action to recover these expenses may be brought by the district attorney, county counsel, city attorney, the State Department of Health Services, or Attorney General. (Id.subd. (d).) It shall not be necessary to seek or obtain a criminal conviction prior to the entry of judgment for the recovery of expenses. However, if criminal charges are pending against the defendant for the unlawful manufacture or cultivation of any controlled substance or its precursors, an action brought pursuant to this section shall, upon a defendants request, be continued while the criminal charges are pending. (Id., subd. (c).) Testimony or admissions made by the defendant in a civil action shall not be admitted or otherwise used in any criminal proceeding arising out of the same conduct. (Id., subd. (k).) An acquittal in the criminal proceeding will bar the civil action only if there was a factual finding of innocence by the court in the criminal case. (Id., subd. (l).)

Health and Safety Code section 11470.2 specifies an alternate procedure for recovering those expenses. In parallel language it provides that In lieu of a civil action for the recovery of expenses as provided in Section 11470.1, the prosecuting attorney in a criminal proceeding may, upon conviction of the underlying offense, seek the recovery of all expenses recoverable under Section 11470.1 from: [] (1) Any person who manufactures or cultivates a controlled substance or its precursors . . . . (Id., subd. (a)(1).)

The prosecuting attorney may, in conjunction with the criminal proceeding, file a petition for recovery of expenses with the superior court of the county in which the defendant has been charged with the underlying offense. The petition shall allege that the defendant had manufactured or cultivated a controlled substance . . . and that expenses were incurred in seizing, eradicating, or destroying the controlled substance or its precursors. The petition shall also state the amount to be assessed. (Health & Saf. Code,  11470.2, subd. (b).)

The defendant may admit to or deny the petition for recovery of expenses. If the defendant admits the allegations of the petition, the court shall rule for the prosecuting attorney and enter a judgment for recovery of the expenses incurred. (Health & Saf. Code,  11470.2, subd. (c).) However, If the defendant denies the petition or declines to admit to it, the petition shall be heard in the superior court in which the underlying offense will be tried and shall be promptly heard following the defendants conviction on the underlying offense. The hearing shall be held either before the same jury or before a new jury in the discretion of the court, unless waived by the consent of all parties. (Id., subd. (d).)

According to our Supreme Court, these provisions 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 or hazardous substances resulting from controlled substance crimes.[9] (Martinez, supra, 36 Cal.4th 384, 394.)

The concept of a direct victim derives from Penal Code section 1202.4, which is the primary statute implementing the constitutional right of a crime victim to restitution. In accordance with the constitutional command, section 1202.4 opens by declaring that a victim of crime who incurs any economic loss as a result of the commission of a crime shall receive restitution directly from any defendant convicted of that crime. (Pen. Code,  1202.4, subd. (a)(1).) Upon conviction, the sentencing court must order the defendant to pay a restitution fine and restitution to the victim. (Id., subd. (a)(3).) The amount of the restitution fine is, within minimum and maximum amounts, dependent upon the nature of the offense and the sentencing courts discretion; only in compelling and extraordinary cases may a restitution fine not be imposed. (Id., subds. (b)-(c).)

Victim restitution compensates for economic loss suffered as a result of the defendants conduct. (Pen. Code,  1202.4 (a)(1), (f) & (f)(3).) The defendant has a right to a hearing . . . to dispute the determination of the amount of restitution. (Id., subd. (f)(1).) The amount is fixed by the sentencing court, based on the amount of loss claimed by the victim or victims or any other showing to the court. If the amount of loss cannot be ascertained at the time of sentencing, the restitution order shall include a provision that the amount shall be determined at the direction of the court. The court shall order full restitution unless it finds compelling sand extraordinary reasons for not doing so . . . . (Id., subd. (f).)

Victim is statutorily defined to include specified classes of persons, and Any corporation, business trust, estate, trust, partnership, association, joint venture, government, governmental subdivision, agency, or instrumentality, or any other legal or commercial entity when that entity is a direct victim of a crime. (Pen. Code, 1202.4, subd. (k).)

Defendant Did Not Waive The Opportunity

Story Continue As Part II ..

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[1] The sentencing occurred over the vehement protests of the district attorney. His disagreement was so strong that he appealed for the purpose of overturning what he believed to be an excessively lenient sentence. One of the grounds on which the district attorney attacked the sentence was that various dismissals made by the trial court did not comply with Penal Code section 1385. We reluctantly agreed, holding that Supreme Court precedent required us to reverse without undertaking to inquire whether the trial courts noncompliance was subject to harmless error analysis. The Supreme Court recently granted review to examine the issue. (People v. Bonnetta (2007) 156 Cal.App.4th 1315, review granted March 12, 2008, S159133.)

[2] At a later point in the sentencing hearing, the prosecutor made a point of noting that The People would also dispute the Courts finding about who lived at the residence based on the preliminary hearing transcript, for the record.

[3] Although the amount specified in the petition was $6,500, Bonnettas counsel observed that the supporting documents dont come close to 6500. In fact, theyre in the 3,000 range. And theres no underlying documents even for that. The prosecutor advised the court that she was still waiting for documentation from Hasmat (i.e., persons responsible for disposing of hazardous materials) and the Sheriffs Department. At a later point in the hearing, the court gently chided the prosecutor for this delay: frankly, it seems that they had plenty of time to figure out what their costs are. Its two years old.

[4] [THE PROSECUTOR]: [T]he defendants dont have a constitutional right to be present at a trial where the only provision for it to exist is by statute. Theres no constitutional right to a trial on the restitution amount, so the defendants need not be present. Nothing should hold them up from being sent to the Department of Corrections.

At one point in the hearing the court addressed defendants counsel: The Court has entered judgment. For all intents and purposes hes done. He can be shipped off tomorrow. [] . . . [] He has no right to be present. This is strictly a monetary issue. He has no right to be present. So unless you can give me something that says theres a reason under the Constitution that he has a right to be present here, hes going to be shipped out.

At another point the prosecutor stated that while Health & Safety Code section 11470.2 creates a statutory right to a jury trial . . . [t]he statute itself does not contain a right for the defendant to be present.

[5] Specifically, subdivision (d), which provides: If the defendant denies the petition or declines to admit to it, the petition shall be heard in the superior court in which the underlying criminal offense will be tried and shall be promptly heard following the defendants conviction on the underlying offense. The hearing shall be held either before the same jury or before a new jury in the discretion of the court, unless waived by the consent of all parties. (Health & Saf. Code,  11470.2, subd. (d).)

[6] This testimony was received over objection by defense counsel that the witness had no personal knowledge of the cleanup operations, and thus had no foundation for expressing hearsay conclusions about the costs incurred during the cleanup operations.

[7] It appears that local authorities collect and package the chemicals and materials, which are transmitted to the state agency, which in turn sends it out of state for incineration. In this case, the agents were dealing with approximately two ounces of red phosphorus residue in a large bucket. There was no dispute that the red phosphorus was seized at a location that defendant was using as his residence, i.e., not the location of the actual manufacturing site that was owned by Bonnetta.

[8] Defendant attacked this testimony on the ground that it came from an officer who was not present, was not even in the drug suppression unit at the time, and who thus did not know how much of the time claimed was actually devoted to cleanup efforts, as opposed to general detective duties.

[9] The court was here quoting the characterization of Division Three of this District in People v. Narron (1987) 192 Cal.App.3d 724, 729 (Narron), that Health and Safety Code section 11470.1 . . . along with section 11470.2, provides the exclusive remedy for reimbursement of the expenses recoverable under these statutes. The Narron characterization was also accepted in Brach, supra, 95 Cal.App.4th 571, 576. Both Narron and Brach figured prominently, and favorably so, in the Martinez opinion.