People v. Denegal CA3 ( 2021 )

Filed 10/29/21 P. v. Denegal CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(San Joaquin)
----
THE PEOPLE, C092869
Plaintiff and Respondent, (Super. Ct. No.
STKCRFECOD20140007388)
v.
KEITH DARNELL DENEGAL,
Defendant and Appellant.
Defendant Keith Darnell Denegal pled no contest to voluntary manslaughter and
personally using a firearm. At the sentencing hearing, defendant requested a continuance
to allow his family to attend the hearing. The trial court denied the request and also
imposed direct victim restitution at the sentencing hearing. On appeal, defendant claims
the trial court erred by (1) denying his request to continue the sentencing hearing, and (2)
imposing victim restitution without holding a hearing on the proper amount. We affirm.
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I. BACKGROUND
In 2014, defendant shot and killed Jesus Mendoza. Defendant was charged with
voluntary manslaughter (Pen. Code, § 192, subd. (a)),1 shooting at an inhabited vehicle
(§ 246), and possession of a firearm by a minor (§ 29610). For the first two counts it was
also alleged defendant personally used a firearm (§ 12022.5, subd. (a)), and for the
second count that he personally discharged a firearm and caused death or great bodily
injury (§ 12022.53, subd. (b)-(e)).
On April 24, 2020, defendant pled no contest to voluntary manslaughter and
admitted the allegation he personally used a firearm. The remaining allegations were
dismissed.
The probation report dated July 8, 2020, stated defendant “was advised that he is
welcome to have family and friends submit letters regarding his character to be included
with this report,” but no letters were included. The report also recommended defendant
pay fines and fees, including “restitution to the Victim’s family, in an amount to be
established by the Court after a recommendation by the Probation Officer. The
restitution matter is continued for 90 days pending the recommendation of the Probation
Officer.”
The sentencing hearing was held on August 10, 2020. At the hearing, defendant’s
counsel requested a continuation of sentencing because defendant wanted family to
attend and address the court to express support for defendant. The trial court denied the
request because it was “not aware of a defense right to have individuals testify at a
sentencing hearing.” The court also noted the case was six years old.
The prosecutor asked at the sentencing hearing for victim restitution totaling
$12,417.41 for funeral and burial related costs, comprised of $7,580 to the Victim
1 Undesignated statutory references are to the Penal Code.
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Compensation Board and $4,837.41 to the victim’s wife. The prosecutor provided
information supporting the restitution amount to the defense at the sentencing hearing.
Defense counsel told the court he was just getting the itemized information right then, so
requested that defendant be “able to contest this if we do find a basis to contest it.” The
trial court agreed, and then had a conversation with defendant:
“THE COURT: [Y]ou do have a right to have a restitution hearing. At some
point if you do disagree with the amount of restitution, at that hearing you would have the
right to be represented by your attorney. And the district attorney would have to prove
the amount of restitution owing. Do you understand that?
“THE DEFENDANT: No. So basically what you [are] saying is that today I will
be receiving no restitution?
“THE COURT: I’m going to order restitution payable in these amounts.
“THE DEFENDANT: When do I have the court date to come back for?
“THE COURT: After you look at the paperwork, if you want to set a future court
date you can to contest it. But right now I have the paperwork that’s been provided, and
I’m going to be ordering restitution in these amounts.
“THE DEFENDANT: Am I allowed to object to it where I can pay when I get out
of custody?
“THE COURT: You can make that objection. I’m going to order it. And if you
have the opportunity to work in prison, part of the proceeds will go to pay this restitution.
“THE DEFENDANT: Right. But I want to—I’d like to do it after I get out of
custody.
“THE COURT: That’s not going to happen.
“THE DEFENDANT: But I can always object to it.
“THE COURT: You can object, but I’m going to order it.
“THE DEFENDANT: That’s all I want to do.
“[DEFENSE COUNSEL]: Objection for the record, Your Honor.
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“THE COURT: Understand.”
The court then imposed, pursuant to the negotiated plea, the midterm of six years
for voluntary manslaughter and the upper term of 10 years for the firearm enhancement
for a total term of 16 years. The trial court also imposed fines and fees, including
$12,417.41 in actual restitution.
II. DISCUSSION
A. Sentencing Hearing Continuance
Defendant first contends the trial court erred in not granting his request to continue
the sentencing hearing because defendants have a right for family members to make
statements at sentencing hearings. Defendant also contends his counsel was ineffective
by not collecting supportive documents prior to sentencing.
Continuances of any criminal proceeding “shall be granted only upon a showing of
good cause.” (§ 1050, subd. (e).) “Whether good cause exists is a question for the trial
court’s discretion but requires at a minimum that the party seeking continuance
demonstrate it has prepared for the hearing with due diligence.” (People v. Johnson
(2013) 218 Cal.App.4th 938, 942.) “The party challenging a ruling on a continuance
bears the burden of establishing an abuse of discretion, and an order denying a
continuance is seldom successfully attacked.” (People v. Beames (2007) 40 Cal.4th 907,
920.) Discretion is only abused “when the court exceeds the bounds of reason,” which
must be analyzed on the particular “ ‘circumstances present in every case, particularly in
the reasons presented to the trial judge at the time the request is denied.’ ” (Id. at pp. 920,
921.)
Defendant cannot establish good cause for a continuance of the sentencing hearing
when the parties agreed to a negotiated term before sentencing, which the trial court
accepted. The trial court was therefore bound by the terms of the plea bargain and had no
discretion to deviate from the 16-year sentence. (People v. Stamps (2020) 9 Cal.5th 685,
701 [“ ‘ “Once the court has accepted the terms of the negotiated plea, ‘[it] lacks
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jurisdiction to alter the terms of a plea bargain so that it becomes more favorable to a
defendant unless, of course, the parties agree’ ” ’ ”].) A continuance could have no
bearing on the hearing’s eventual outcome because additional testimony could not have
changed defendant’s sentence.2
Defendant also did not act diligently in pursuing the continuance. He had four
months between the plea and sentencing. The probation officer also advised defendant of
his ability to collect letters of support. Yet, even with this notice and time, he did not ask
for continuance until the day of the hearing. Defendant has therefore failed to establish
the trial court’s denial exceeded the bounds of reason.
Defendant’s ineffective assistance of counsel claim must also fail. Assuming it
was his counsel’s duty to collect supportive documents, these documents also could not
have impacted the agreed upon term, so any ineffective assistance would be harmless.
(In re N.M. (2008) 161 Cal.App.4th 253, 270 [for an ineffective assistance of counsel
claim, the appealing party must demonstrate that it is “ ‘ “reasonably probable that a
result more favorable to the appealing party would have been reached in the absence of
the error” ’ ”].)
B. Restitution Hearing
Defendant next argues the trial court erred in not holding a hearing on the victim
restitution before ordering the restitution.
Under section 1202.4, subdivision (f): “in 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
2 Defendant also claims the testimony could be relevant at a later parole hearing. But, as
pointed out by the People, defendant was sentenced to a determinate term, so parole will
be mandatory. (In re Bush (2008) 161 Cal.App.4th 133, 140 [“our Supreme Court has
stated that the Board ‘has no discretion to grant or withhold parole to a prisoner who has
served a determinate term’ ”].)
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order, 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.” (§ 1202.4, subd. (f).) A
defendant “has the right to a hearing before a judge to dispute the determination of the
amount of restitution. The court may modify the amount, on its own motion or on the
motion of the district attorney, the victim or victims, or the defendant.” (§ 1202.4, subd.
(f)(1).)
Defendant does not challenge the amount ordered, but instead the lack of a
hearing. But a hearing is not required to initially impose victim restitution. The statute
only mandates courts to establish “by court order” the restitution amount, and courts must
order “full restitution.” (§ 1202.4, subd. (f).) Defendants do, however, have an
opportunity to challenge any restitution amount imposed at a hearing under subdivision
(f)(1) “to dispute the determination of the amount of restitution.” This provision assumes
restitution has already been imposed by court order, otherwise there would be nothing to
dispute.
Defendant’s appeal is premature as he is asking for relief he is still entitled to
obtain with the trial court. Defendant and his counsel articulated a desire to conditionally
object to the amount of restitution should they find an issue with the calculation. But
they did not object outright to the amount, nor did they request a hearing to dispute the
amount. The trial court acknowledged this tentative objection and retained jurisdiction to
hold a future hearing should defendant request one, telling defendant “if you want to set a
future court date you can to contest it.” Defendant can therefore still seek a hearing
under section 1202.4, subdivision (f)(1) to dispute the amount of restitution ordered.
Until defendant requests a hearing with the trial court, his appeal is untimely. (See
People v. Weaver (2007) 149 Cal.App.4th 1301, 1337-1338, disapproved of on another
ground in People v. Cook (2015) 60 Cal.4th 922 [where “the trial court expressly retained
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jurisdiction to modify the amount” of victim restitution, the court found the defendant’s
appeal “premature” because “she must first follow the appropriate procedures set forth in
section 1202.4 by requesting a modification hearing and obtaining an order of the trial
court on that request”].)3
Defendant secondarily asserts due process was violated because the probation
report did not state the amount of restitution to be imposed. He relies on People v.
Resendez (1993) 12 Cal.App.4th 98, where the probation report recommended a $9,000
restitution fine but the court instead ordered the defendant to pay $100,000 in direct
victim restitution. (Id. at p. 111.) Quoting another case, the appellate court stated: “ ‘A
defendant’s due process rights are protected when the probation report gives notice of
the amount of restitution claimed and expected to be ordered under [former section
1202.4], and the defendant has an opportunity to challenge the figures in the probation
report at the sentencing hearing.’ ” (Id. at p. 113.) The court found the defendant’s
constitutional right to due process of law was violated because the court refused to accept
the probation report’s restitution recommendations, its restitution order was “totally at
odds with the recommendations,” and the defendant was not afforded “a reasonable
opportunity to challenge the accuracy/validity of the restitution order.” (Id. at p. 114.)
Resendez does not support defendant’s position. Though this case confirms due
process rights are protected with notice in the probation report and an opportunity to be
heard, it did not conclude due process is necessarily violated when the probation report
does not state the actual victim restitution imposed. Finding otherwise would conflict
3 Section 1202.4 does not include a deadline for a defendant to seek modification of a
restitution order. (Cf. People v. Ford (2015) 61 Cal.4th 282, 284 [finding trial courts
retain jurisdiction to issue restitution orders after a defendant’s probation period has
expired where the defendant was estopped from objecting to the hearing].) We presume
defendant may not indefinitely delay availing himself of his right to seek modification of
the restitution amount, but as this issue is not before us on this appeal, we do not
determine in the first instance the applicable deadline for defendant to exercise this right.
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with section 1202.4, subdivision (f), which permits courts to order the restitution amount
to “be determined at the direction of the court” should the amount of loss not be
calculable at the time of sentencing. (See People v. Lunsford (1998) 67 Cal.App.4th 901,
903 [“The restitution order in this case complies with [section 1202.4, subdivision (f)] in
that it ‘directs’ the Office of Revenue Reimbursement to ‘determine’ the amount of
victim restitution because the proper amount could not be ascertained at the time of
sentencing”].) In these cases, the probation report will necessarily fail to provide notice
of the amount later imposed.
Resendez instead confirms that what matters for due process is a reasonable
opportunity to challenge the amount imposed. (People v. Resendez, supra,
12 Cal.App.4th at p. 113 [“ ‘ “ ‘[w]hatever the specific procedural safeguards required at
a sentencing hearing concerning restitution, fundamental fairness must be assured
. . . [and the] . . . defendant must be afforded a reasonable opportunity to be heard on the
issue of restitution’ ” ’ ”].) As discussed above, defendant can still dispute the restitution
amount ordered, so there has been no due process violation yet.
III. DISPOSITION
The judgment is affirmed.
/S/
RENNER, J.
We concur:
/S/
RAYE, P. J.
/S/
ROBIE, J.
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