P. v. Roman CA2/5

Filed 5/28/13 P. v. Roman CA2/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B241040
Plaintiff and Respondent, (Los Angeles County Super. Ct.
No. VA122367)
v.
EDIBALDO ROMAN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County, Lori Ann
Fournier, Judge. Affirmed.
Nancy Mazza for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Kenneth C. Byrne, Supervising
Deputy Attorney General, Colleen M. Tiedemann, Deputy Attorney General, for Plaintiff
and Respondent.
_______________________________
The issue presented in this appeal is whether defendant and appellant Edibaldo
Roman had a right to a jury trial under the Sixth and Fourteenth Amendments on the
issue of victim restitution under the holding in Southern Union Co. v. United States
(2012) 567 U.S.__ [132 S. Ct. 2344, 183 L. Ed. 2d 318] (Southern Union).) We hold
defendant waived the constitutional claim by his express request that restitution be
entered in specified amounts by the trial court, and in any event, victim restitution is not
punishment and is beyond the reach of the constitutional right to a jury trial.
Defendant entered a plea of no contest on March 5, 2012, to a charge of carjacking
in violation of Penal Code section 215, subdivision (a). Defendant agreed to an upper
term sentence of nine years in state prison. As part of the agreement, the prosecution
dismissed two additional felony charges and firearm and recidivist allegations.
Defendant was advised that a restitution hearing would take place on a future date. He
expressly waived his right to be present at that hearing.
The restitution hearing was held on April 12, 2012. Pursuant to defendant’s
request, he appeared through counsel. Defendant’s counsel advised the trial court he had
met with defendant the previous day and “provided him with the documentation to
support our request that the court enter” restitution in the amount of $23,238.80 as to one
victim and $699.89 as to a second victim. The court ordered restitution as requested by
the defense. 1
Defendant’s only contention on appeal is that he was entitled to a jury trial under
the reasoning of Southern Union. The claim is not cognizable on appeal, as the
restitution order was entered at defendant’s request. Under the Sixth Amendment, the
state may proceed without a jury trial “so long as the defendant either stipulates to the
relevant facts or consents to judicial factfinding.” (Blakely v. Washington (2004) 542
U.S. 296, 310.) Here defendant stipulated to the amount of restitution, and the Sixth
Amendment is therefore not implicated in the restitution order.
1 The restitution order was made joint and several as to a codefendant who is not a
party to this appeal.
2
Moreover, as our colleagues in the Fourth District, Division Three, have recently
held, Southern Union does not require a jury trial on an award of victim restitution.
(People v. Pangan (2013) 213 Cal. App. 4th 574, 584-586 (Pangan).) “Southern Union
involved a restitution fine of $50,000 a day for each day of a putative 762-day-long
environmental law violation. The United States Supreme Court struck the fine down
because the very fact which determined the ‘maximum fine’ the corporate defendant
faced—the number of days the violation continued—was not determined by the jury.
(See Southern Union, supra, [567] U.S. at p. ___ [132 S.Ct. at p. 2356] [‘the fact that will
ultimately determine the maximum fine Southern Union faces is the number of days the
company violated the statute’].)” (Pangan, supra, at p. 585.)
Pangan held that Southern Union has no “application to direct victim restitution,
because direct victim restitution is not a criminal penalty. As explained in U.S. v.
Behrman (7th Cir. 2000) 235 F.3d 1049, 1054, direct victim restitution is a substitute for
a civil remedy so that victims of crime do not need to file separate civil suits. It is not
increased ‘punishment.’ The Millard decision makes the same point in regard to
California law. ([People v.] Millard [(2009)] 175 Cal.App.4th [7,] 35; accord People v.
Harvest (2000) 84 Cal. App. 4th 641, 645, 650.) Chappelone has collected the numerous
federal cases also holding victim restitution does not constitute increased punishment for
crime. (See [People v.] Chappelone [(2010)] 183 Cal.App.4th [1159,] 1184.) And we
would note the restitution statute itself characterizes victim restitution awards as civil.
(See Pen. Code, § 1202.4, subd. (a)(3)(B) [victim restitution ‘shall be enforceable as if
the order were a civil judgment’.)” (Pangan, supra, 213 Cal.App.4th at p. 585.) We
agree with the holding in Pangan and reject defendant’s contention.
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DISPOSITION
The judgment is affirmed.
KRIEGLER, J.
We concur:
ARMSTRONG, Acting, P. J.
O’NEILL, J.*
* Judge of the Ventura County Superior Court assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
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