The opinion
Filed 11/3/16
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
A145945
v.
EUGENE MARTIN HANNON, (Contra Costa County
Super. Ct. No. 05-130435-1)
Defendant and Appellant.
Defendant Eugene Martin Hannon (appellant) appeals from the trial court’s
restitution award. He contends the court abused its discretion in awarding restitution for
attorney’s fees, lost wages, and travel expenses incurred by the victim, and claims trial
counsel was ineffective during the restitution hearing. This court granted the victim’s
request to file an impact statement on appeal. In the unpublished portion of this opinion,
we reject appellant’s challenges to the trial court’s restitution award. In the published
portion, we conclude the victim is entitled to file a victim impact statement on appeal,
pursuant to article I, section 28 of the California Constitution, as amended by The
Victims’ Bill of Rights Act of 2008, also known as Marsy’s Law, adopted by voter
initiative Proposition 9 in 2008. We also decide the victim’s right to file this impact
statement does not permit her to present legal issues not raised by appellant or facts not in
the record below.
*
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of part I.
1
BACKGROUND1
On August 27, 2012 a felony complaint charged appellant with grand theft by
embezzlement by a fiduciary (Pen. Code, §§ 487, subd. (a), 506). Appellant, an attorney,
represented Tyrone Barber in family court and civil court matters against the victim,
Barber’s former domestic partner, Dr. Rose Magno. On December 13, 2006, the parties
settled some of their outstanding disputes, and agreed that Barber would fund a college
trust for their three children. Barber paid a total of $27,500.32 to appellant as the trustee
of the children’s funds and authorized appellant to open a trust account with Union Bank
of California for the children.
In February 2011, the victim became aware that the funds for her children had
been misappropriated and appellant may have used the money to reimburse himself to
cover legal fees owed by Barber. In August 2012, the criminal complaint was filed, and,
in September 2013, appellant pled no contest to misdemeanor theft by embezzlement.
The trial court placed appellant on probation for two years, ordered him to perform 240
hours of community service, and ordered him to pay restitution in an amount to be
determined.2
On July 10, 2015, the trial court ordered appellant to pay $40,800 in restitution to
the victim, consisting of $25,000 in attorney’s fees, $15,000 in lost wages, and $800 in
mileage resulting from the embezzlement.3 This appeal followed.
DISCUSSION
I. Appellant’s Challenges to the Restitution Award
Under Penal Code section 1202.4, subdivision (f), a trial court must order victim
restitution “in every case in which a victim has suffered economic loss as a result of the
defendant’s conduct.” The court “shall require” the defendant to make restitution “based
on the amount of loss claimed by the victim . . . or any other showing to the court.” (Pen.
1
As there was no preliminary hearing or trial, the background facts herein have been
drawn from the Probation Report.
2
Previously, appellant was disbarred.
3
The funds appellant misappropriated had previously been recovered in a settlement with
appellant’s insurer.
2
Code, § 1202.4, subd. (f); see also Pen. Code, § 1202.4, subd. (f)(3).) Appellant contends
the trial court abused its discretion in awarding restitution in the amount of $25,000 for
attorney fees, $15,000 for lost wages, and $800 for mileage. We reject the claim.
“At a victim restitution hearing, a prima facie case for restitution is made by the
People based in part on a victim’s testimony on, or other claim or statement of, the
amount of his or her economic loss. [Citations.] ‘Once the victim has [i.e., the People
have] made a prima facie showing of his or her loss, the burden shifts to the defendant to
demonstrate that the amount of the loss is other than that claimed by the victim.’ ”
(People v. Millard (2009) 175 Cal.App.4th 7, 26 (Millard); accord People v. Santori
(2015) 243 Cal.App.4th 122, 126.) The preponderance of the evidence standard of proof
applies. (People v. Keichler (2005) 129 Cal.App.4th 1039, 1045.) This court reviews the
trial court’s restitution award for an abuse of discretion. (Ibid.) “When there is a factual
and rational basis for the amount of restitution ordered by the trial court, no abuse of
discretion will be found by the reviewing court.” (People v. Dalvito (1997) 56
Cal.App.4th 557, 562 (Dalvito).)
A. The $25,000 Attorney’s Fee Award
Appellant contends the $25,000 restitution award for attorney’s fees is
unsupported by the evidence. He also argues that, pursuant to Millard, supra, 175
Cal.App.4th at p. 33, the lodestar method is the proper method for calculating the fees,
and there is nothing in the record indicating the court relied on the lodestar factors.
The Attorney General contends appellant never argued in the trial court that the
lodestar method calculation was required and, therefore, has forfeited this issue. No
forfeiture has occurred. Generally, if a defendant does not raise an objection in the trial
court he has waived the objection and may not appeal on that ground. (People v. Partida
(2005) 37 Cal.4th 428, 434.) This rule is designed to ensure the lower court and the
opposing party know the specific reasons for the objection so the court may make a fully
informed ruling. (Id. at p. 435.) “A party cannot argue the court erred in failing to
conduct an analysis it was not asked to conduct.” (Ibid.)
3
Appellant personally presented his arguments about restitution at the hearing.
Although he never used the term “lodestar” or referenced Millard when he addressed the
trial court, he clearly argued that the information in the record lacked specificity
regarding the number of hours devoted to the trust account issue by the victim and her
attorneys. He argued the record was deficient because it did not separate the billings
from more than nine years of litigation in a separate family law matter from the billings
related to the trust account issue. Further, appellant pointed out the victim had failed to
provide itemized, unredacted dates, times, and amounts for attorney’s fees, as the trial
court had ordered her to do. He argued her failure to do so made it impossible to
determine which attorney hours were related to the trust account issue, particularly
because the victim had multiple attorneys working on different legal matters
simultaneously. Thus, appellant has not forfeited his claim that an award of attorney’s
fees as restitution must be based on the lodestar method calculation.
Nevertheless, we reject appellant’s claim of error. He relies on Millard, supra,
175 Cal.App.4th 7, in which the defendant drove under the influence of alcohol and
killed another driver. In calculating restitution for attorney’s fees incurred by the
decedent’s wife, Millard held the trial court could not calculate the fees based solely on a
contingency agreement. (Millard, at p. 33.) Instead, the “court must begin with the
lodestar calculation and then make adjustment upward or downward.” (Ibid.) However,
in Ketchum v. Moses (2001) 24 Cal. 4th 1122, 1136, the California Supreme Court
indicated there is no established preference for the lodestar method. There, the Court
concluded the lodestar method was appropriate for calculating an award of attorney’s fees
following a defendant’s successful anti-SLAPP motion, but the Court also emphasized,
“we are not mandating a blanket ‘lodestar only’ approach; every fee shifting statute must
be construed on its own merits.” (Ibid.)
In People v. Taylor (2011) 197 Cal.App.4th 757, 762–763, another case involving
a restitution award for attorney’s fees resulting from an automobile injury, the court
criticized Millard. Taylor concluded that Millard ignored the “essential point” of
Ketchum’s qualified support for the lodestar method, and improperly imposed a “lodestar
4
only” approach. (Taylor, at pp. 762–763.) Taylor explained, “the lodestar method is a
fee shifting mechanism applied in contexts such as civil litigation which confers a
‘ “significant benefit” ’ to the public [citation], or to bring about attorney fee shifting to
discourage SLAPP suits.” (Id. at p. 763.) However, the primary purpose for awarding
attorney’s fees as victim restitution in a criminal case is to make the victim whole. (Ibid.)
Thus, although the lodestar method is certainly one appropriate method that the trial court
could have adopted to calculate compensable attorney’s fees in this case, it was not
required to do so.
Neither did the court abuse its discretion when it awarded $25,000 in attorney’s
fees. A victim is entitled to receive “actual and reasonable attorney’s fees and other costs
of collection accrued by a private entity on [her] behalf. . . .” (Pen. Code § 1202.4, subd.
(f)(3)(H).) The trial court has broad discretion to choose a method for calculating the
amount of restitution, but it must employ a method that is rationally designed to
determine the … victim’s economic loss. (People v. Giordano (2007) 42 Cal.4th 644,
663-664 (Giordano).) “[T]he trial court must take care to make a record of the restitution
hearing, analyze the evidence presented, and make a clear statement of the calculation
method used and how that method justifies the amount ordered.” (Id. at p. 664.) In
Giordano, the defendant appealed an order to pay restitution to the victim’s wife,
claiming the court abused its discretion in calculating her loss of economic support by
awarding her the decedent’s full annual salary for five years. (Id. at p. 650.) Although
the Supreme Court acknowledged “the trial court’s method of calculation was not
carefully designed to establish [the victim’s] loss of support,” it held there was no abuse
of discretion because the defendant had failed to prove the amount awarded exceeded
what the victim was eligible to receive. (Id. at p. 666.)
In the present case, the parties submitted hundreds of pages of documents that they
argued related to appellant’s restitution. The trial court reviewed the documents. At the
outset of the restitution hearing, the court stated, “[c]ounsel and I have spent a substantial
amount of time in chambers trying to narrow the issues . . . for this restitution hearing.”
In announcing its ruling, the court explained, “[i]n discussing this with [c]ounsel, who are
5
much more familiar with these proceedings than I am, we came out with” 19 different
court appearances and three days of State Bar hearings “all attributable to just this
conduct having to do with that initial trust account that was set up for the benefit of [the
victim’s] children.” Based on the in-chambers discussion with counsel, the court
awarded the victim $25,000 in attorney’s fees, in addition to the $15,000 for attorney’s
fees the victim had already received in a civil settlement from appellant and his insurance
company.
Appellant has not shown the amount of restitution awarded for attorney’s fees was
an abuse of discretion. “On appeal, we presume that a judgment or order of the trial court
is correct, ‘ “ [a]ll intendments and presumptions are indulged to support it on matters as
to which the record is silent, and error must be affirmatively shown.” ’ ” (Giordano,
supra, 42 Cal.4th at p. 666.) The in-chambers discussion, which was crucial to the trial
court’s ruling, was unreported. Appellant has not demonstrated the trial court erred in
relying upon its consultation with counsel in determining which proceedings related to
the trust account issue. And, although the trial court did not specify the number of hours
and hourly rate as would be typical in a lodestar method calculation, appellant has not
demonstrated the court erred in finding that $40,000 in fees were attributable to preparing
for and appearing at 19 court dates and 3 days of State Bar hearings. (See ibid.
[affirming restitution award because, “[d]espite the trial court’s methodological
imprecision,” the defendant had failed to show the victim’s loss was “less than the
amount of restitution ordered”].)
B. The $15,000 Award for Lost Wages
Appellant argues the $15,000 restitution award for lost wages is unsupported by
the record. We reject the claim. A victim must be compensated for wages or profits lost
due to injury resulting from a defendant’s criminal conduct. (Pen. Code § 1202.4, subd.
(f)(3)(D).) The trial court “is not required to make an order in keeping with the exact
amount of loss,” but it “must use a rational method that could reasonably be said to make
the victim whole, and may not make an order which is arbitrary or capricious.” (People
v. Thygesen (1999) 69 Cal.App.4th 988, 992.)
6
In fashioning a restitution award for the victim’s lost wages, the trial court
considered the evidence submitted by the parties, and relied upon the in-chambers
discussion with counsel. The court rejected as excessive the victim’s request for
$162,867 in lost wages. Instead, the court calculated an hourly work rate of $150 based
on the victim’s 2012 tax return and testimony regarding the victim’s work schedule. In
order to calculate the total number of work hours lost by the victim as a result of her
attendance at court proceedings and State Bar hearings, the trial court once again relied
on the number of proceedings that counsel had agreed related to the trust account issue.
The court determined the victim lost a total of 74 hours of work.
The amount awarded, $15,000, exceeds the amount produced by multiplying the
hourly rate by the number of hours of lost work.4 But this does not establish an abuse of
discretion. The $150 hourly rate was a reasonable approximation based on the victim’s
tax return. The 74 hours of lost work was also an approximate number of hours. Simply
multiplying those two numbers failed to take into account other considerations in
calculating lost wages—for example, additional hours the victim spent preparing for the
hearings she attended and the reasonable possibility she blocked off more time in her
schedule than necessary, given that she could not predict how long the court proceedings
would take. Thus, it was neither arbitrary nor capricious for the trial court to increase the
award from $11,100 to $15,000.
Appellant argues the trial court erred in calculating the hourly rate based on the
gross revenues of the victim’s dental business, rather than based on her actual income
(profit remaining after expenses). However, the victim’s gross business revenues
reflected what she was able to produce by her labor over the course of the year. The trial
court could have reasoned that the victim’s annual expenses were largely fixed and each
additional work hour lost therefore approximately translated into corresponding lost
profits. Thus, the hourly rate used by the court in its calculation was not arbitrary.
Appellant also challenges the basis for the trial court’s determination of which hearings
4
74 hours x $150 = $11,100.
7
were relevant to the trust account issue. However, as discussed above, the court’s finding
was based on an in-chambers consultation with counsel. Appellant has not shown the
trial court erred in relying on that discussion with counsel. We reject appellant’s
challenge to the amount awarded for lost wages.
C. The $800 Award for Travel Expenses
Appellant contends the trial court erred when it awarded $800 in restitution for
mileage to attend court proceedings. We disagree. Penal Code section 1202.4,
subdivision (f)(3)(D), allows for recovery of a broad variety of economic losses that are
incurred as a result of the defendant’s criminal conduct. The legislature intended for a
“loss” under Penal Code section 1202.4 to be construed broadly, and “ [b]ecause the
statute uses the language ‘including but not limited to’ these enumerated losses, a trial
court may compensate a victim for any economic loss which is proved to be the direct
result of the defendant’s criminal behavior, even if not specifically enumerated in the
statute.” (People v. Keichler, supra, 129 Cal.App.4th at p. 1046.)
In awarding $800 for mileage, the trial court stated it relied on its finding, made in
consultation with counsel in chambers, as to the number of hearings the victim attended
“related solely” to the trust account issue. Appellant faults the court for not specifically
identifying those hearings, but appellant was presumably aware which hearings the court
had in mind, given that the court arrived at the list through a discussion with counsel.
Appellant has not demonstrated error. (See Giordano, supra, 42 Cal.4th at p. 666.)
D. Appellant Has Not Demonstrated Ineffective Assistance of Counsel
Appellant argues his trial counsel provided ineffective assistance by failing to
argue against the trial court’s restitution award. We reject the claim.
In order to establish ineffective assistance of counsel, appellant must show
counsel’s performance was deficient and the deficient performance was prejudicial.
(Strickland v. Washington (1984) 466 U.S. 668, 688.) To demonstrate deficient
performance, appellant must show counsel’s “representation fell below an objective
standard of reasonableness.” (Ibid.) “A fair assessment of attorney performance requires
that every effort be made to eliminate the distorting effects of hindsight, to reconstruct
8
the circumstances of counsel’s challenged conduct, and to evaluate the conduct from
counsel’s perspective at the time. Because of the difficulties inherent in making the
evaluation, a court must indulge a strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance; that is, the defendant must
overcome the presumption that, under the circumstances, the challenged action ‘might be
considered sound trial strategy.’ ” (Id. at p. 689.) The test for prejudice requires a
showing of “a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” (Id. at p. 695.)
Appellant argues, “trial counsel was deficient [for failing] to argue that the court
should make a finding as to the specific [court and state bar hearings related] to the
misappropriated funds, when they occurred, how long they lasted, and how much
preparation time was involved.” However, appellant acknowledges that counsel “met
with the court in chambers and discussed the hearings which the court should use in
calculating attorney’s fees, lost wages and transportation restitution.” As previously
noted, the in-chambers discussion was unreported. On a silent record we presume trial
counsel had a rational tactical ground for not objecting to the trial court’s findings or
requesting more specificity: that the number of hearings identified by the trial court as
relating to the trust account issue, and the court’s estimate of the time spent by counsel
and the parties in connection with those hearings, were consistent with the consensus
reached in the unreported in-chambers conference. Similarly, counsel may have declined
to object to the trial court’s hourly wage rate calculation because the court’s estimate was
reasonable. (See People v. Wilson (1992) 3 Cal.4th 926, 936 [“ ‘unless there simply
could be no satisfactory explanation,’ the claim on appeal must be rejected”].)
II. Dr. Magno’s Victim Impact Statement
During the pendency of the present appeal, this court was informed by the
Attorney General’s Victims’ Services Unit that the victim, Dr. Rose Magno, desired to
submit a victim impact statement to this court on the restitution issue. This court granted
the request and the victim subsequently submitted a statement with attachments (the
Statement). As explained below, the victim had the right to submit the Statement for our
9
consideration, but it was not proper for the victim to raise new legal issues or rely on
facts not in the record below.5
A. Summary of the Victim’s Statement
In the Statement submitted to this court, the victim begins by summarizing the
factual and procedural background, explaining how appellant misappropriated funds
given to him by her former domestic partner for the benefit of her children, and how she
aided in efforts to disbar appellant. On the issue of restitution, the victim argues
appellant was not ordered to pay enough. Most prominently, she argues the trial court
failed to order appellant to pay the full amount of interest due from the date of loss in
2007. (See Pen. Code § 1202.4, subd. (f)(3)(g) [restitution order shall include “[i]nterest,
at the rate of 10 percent per annum, that accrues as of the date of sentencing or loss, as
determined by the court.”].) She asserts she was paid $10,000 in interest in a settlement
with appellant’s insurer, but claims appellant still owes over $11,000 more in interest.
An attachment to the Statement lays out her calculations.
The victim also suggests the restitution award did not sufficiently compensate her
for the amount she spent in attorney’s fees and for lost work time as a dentist. An
attachment to the Statement asserts she incurred approximately $80,000 in attorney’s
fees, approximately $5,500 in court costs, and $162,867 in “loss of production.” She also
asserts her mileage costs were $1381.39, rather than the $800 awarded by the court.
The victim urges that appellant be ordered to produce a lien signed by her former
domestic partner at appellant’s direction “because it may show that he stole more than
$27,500.”
5
We requested supplemental letter briefs from the parties regarding the victim’s request
to file an impact statement on appeal. Appellant argued the victim did not have the right
to file such a statement. Respondent took the position the victim had “limited standing”
to present a statement, but the statement could “not raise matters that were not presented
in the trial court.” We also provided the victim an opportunity to address the proper
scope of a victim impact statement on appeal and respond to the parties’ submissions on
that issue. The victim did not file a supplemental letter brief.
10
Finally, the Statement contains, among other things, factual assertions about how
the victim was treated by appellant during the various proceedings, descriptions of the
emotional toll caused by appellant’s actions, and unfavorable characterizations of
appellant.
B. Overview of Marsy’s Law
The Victims’ Bill of Rights Act of 2008, also known as Marsy’s Law, was adopted
by a voter initiative, Proposition 9 in 2008. The measure was named after a young
woman who was murdered in 1983; it sought to address a number of ways in which the
criminal justice system inadequately protected the victims of crime. (In re Vicks (2013)
56 Cal.4th 274, 281–282 (Vicks).) Marsy’s Law “find[s] and declare[s]” that “[v]ictims
of crime are entitled to have the criminal justice system view criminal acts as serious
threats to the safety and welfare of the people of California. The enactment of
comprehensive provisions and laws ensuring a bill of rights for victims of crime,
including safeguards in the criminal justice system fully protecting those rights and
ensuring that crime victims are treated with respect and dignity, is a matter of high public
importance. California’s victims of crime are largely dependent upon the proper
functioning of government, upon the criminal justice system and upon the expeditious
enforcement of the rights of victims of crime described herein, in order to protect the
public safety and to secure justice. . . .” (Cal. Const., art. I, § 28, subd. (a)(2)–(3); see
also Vicks, at p. 282.)
Among other amendments, Marsy’s Law amended article I, section 28 of the
California Constitution (hereafter “Section 28”). Section 28, known as “The Victims’
Bill of Rights,” was originally added to the California Constitution by a 1982 initiative,
Proposition 8. (People v. Birkett (1999) 21 Cal.4th 226, 230; In re David (2012) 202
Cal.App.4th 675, 682, fn. 5.) As originally enacted, Section 28 articulated a number of
rights, including the right to restitution. As amended by Marsy’s Law, Section 28,
subdivision (b) lists 17 specific and expansive rights to which a victim is entitled “[i]n
order to preserve and protect [the] victim’s rights to justice and due process.” (§ 28,
subd. (b).) Section 28, subdivision (b)(13)(A), describes the right to restitution in
11
language similar to the 1982 enactment, stating “It is the unequivocal intention of the
People of the State of California that all persons who suffer losses as a result of criminal
activity shall have the right to seek and secure restitution from the persons convicted of
the crimes causing the losses they suffer.” Most significantly, the original enactment
referred to a victim’s “right to restitution,” rather than the “right to seek and secure
restitution.” (See former § 28, subd. (b).)
Also, and specifically at issue in the present case, the expanded list of rights added
by Marsy’s Law includes a victim’s right “[t]o be heard, upon request, at any proceeding,
including any delinquency proceeding, involving a post-arrest release decision, plea,
sentencing, post-conviction release decision, or any proceeding in which a right of the
victim is at issue.” (§ 28, subd. (b)(8).)
Marsy’s Law also amended Section 28 to provide that a victim may independently
seek to enforce his or her rights. Thus, Section 28, subdivision (c)(1) provides, “A
victim, the retained attorney of a victim, a lawful representative of the victim, or the
prosecuting attorney upon request of the victim, may enforce the rights enumerated in
subdivision (b) in any trial or appellate court with jurisdiction over the case as a matter of
right. The court shall act promptly on such a request.” (See also § 28, subd. (f) [referring
to the “enumerated rights provided in subdivision (b) that are personally enforceable by
victims as provided in subdivision (c)”].)
C. Guidelines for Interpreting Voter Initiatives
“Under our constitutional system the Legislature is not the exclusive source of
legislative power.” (Professional Engineers in California Government v. Kempton
(2007) 40 Cal.4th 1016, 1042 (Professional Engineers).) “The legislative power of this
State is vested in the California Legislature which consists of the Senate and the
Assembly, but the people reserve to themselves the powers of initiative and referendum.”
(Cal. Const., art. IV, § 1.) “The initiative is the power of the electors to propose statutes
and amendments to the Constitution and to adopt or reject them.” (Cal. Const., art. II,
§ 8, subd. (a).)
12
“ ‘The principles of constitutional interpretation are similar to those governing
statutory construction. In interpreting a constitution’s provisions, our paramount task is
to ascertain the intent of those who enacted it. [Citation.] To determine that intent, we
“look first to the language of the constitutional text, giving the words their ordinary
meaning.” [Citation.] If the language is clear, there is no need for construction.
[Citation.] If the language is ambiguous, however, we consider extrinsic evidence of the
enacting body’s intent.’ ” (Professional Engineers, supra, 40 Cal.4th at p. 1037.)
“Similarly, ‘[i]n interpreting a voter initiative . . . , we apply the same principles that
govern statutory construction. [Citation.] Thus, “we turn first to the language of the
[initiative], giving the words their ordinary meaning.” [Citation.] The [initiative’s]
language must also be construed in the context of the statute as a whole and the
[initiative’s] overall . . . scheme.’ [Citation.] ‘Absent ambiguity, we presume that the
voters intend the meaning apparent on the face of an initiative measure [citation] and the
court may not add to the statute or rewrite it to conform to an assumed intent that is not
apparent in its language.’ [Citation.] Where there is ambiguity in the language of the
measure, ‘[b]allot summaries and arguments may be considered when determining the
voters’ intent and understanding of a ballot measure.’ ” (Ibid.)
Finally, “[t]here is a presumption, though not conclusive, that voters are aware of
existing laws at the time a voter initiative is adopted.” (Santos v. Brown (2015) 238
Cal.App.4th 398, 410 (Santos).)
D. Marsy’s Law Entitles a Victim to File an Impact Statement on Appeal But
Does Not Obligate This Court to Consider New Issues and Facts in Such a
Statement
At the outset, we can easily resolve the question of whether the victim had the
right to file a victim impact statement in the present appeal. Section 28, subdivision
(b)(13)(A), provides the victim “the right to seek and secure restitution” from appellant.
Section 28, subdivision (b)(8) provides the victim the right “[t]o be heard, upon request,
at . . . any proceeding in which a right of the victim is at issue.” (§ 28, subd. (b)(8).)
This is plainly a “proceeding” in which the victim’s right to restitution is “at issue.” (See
13
Santos, supra, 238 Cal.App.4th at p. 416 [listing definitions of the term “proceeding”].)
The only reasonable interpretation of Section 28, subdivision (b)(8) is that it obligated
this court to grant the victim’s request to file a victim impact statement, such a written
submission being an appropriate way for the victim to be heard on appeal.
In arguing the victim did not have the right to file an impact statement, appellant
focuses on Section 28, subdivision (c)(1), which states, “A victim, the retained attorney
of a victim, a lawful representative of the victim, or the prosecuting attorney upon request
of the victim, may enforce the rights enumerated in subdivision (b) in any trial or
appellate court. . . .” Appellant argues, “The use of the disjunctive ‘or’ clearly
communicates that one person or entity will undertake enforcement of the victim’s
enumerated rights.” We reject that interpretation, which conflicts with the plain language
of Section 28, subdivision (b)(8) permitting a victim the right to be heard upon request.
(Shaw v. People ex rel. Chiang (2009) 175 Cal.App.4th 577, 598 [in construing an
initiative, courts seek to “ ‘harmonize the various parts of the enactment’ ”].) Moreover,
appellant points to nothing indicating the victim requested respondent to enforce her
rights on appeal. To the contrary, the victim’s request to file an impact statement
indicates her desire to speak on her own behalf.
However, it remains unclear what it means for a victim to have the right to be
“heard” on appeal. Appellant takes the position that, if the victim has the right to submit
a victim impact statement, this court “may give no consideration to any new information
or claims” therein. Respondent takes the position that the victim may not present facts
outside the record below and may only raise matters presented to the trial court. As
explained below, we hold a victim may neither raise new issues nor rely on new facts in a
victim impact statement submitted on appeal.
1. Prior Legal Interpretation of a Right to be “Heard”
An analysis of what it means to provide an opportunity to be “heard” appears in
Lewis v. Superior Court (1999) 19 Cal.4th 1232 (Lewis). That case arose in the context
of petitions for writ of mandate or prohibition, where in certain circumstances an
appellate court may issue a peremptory writ without having issued an alternative writ or
14
order to show cause. (Id. at p. 1236.) In a prior case, Palma v. U.S. Industrial Fasteners,
Inc. (1984) 36 Cal.3d 171, the Court had held that, prior to issuance of such a peremptory
writ, the adverse parties must receive notice and an opportunity to present opposition.
(Lewis, at p. 1236.) In Lewis, the court was confronted with the question of “whether, in
those limited situations where the accelerated Palma procedure is appropriate, a court
must provide an opportunity for oral argument before issuing a peremptory writ in the
first instance.” (Lewis, at p. 1236.)
As relevant in the present case, Lewis analyzed section 1088 of the Code of Civil
Procedure, which authorizes a court to issue a peremptory writ without prior issuance of
an alternative writ or order to show cause. (Lewis, supra, 19 Cal.4th at pp. 1240, 1245.)
The statute states, “The writ cannot be granted by default. The case must be heard by the
court, whether the adverse party appears or not.” (Code Civ. Proc., § 1088 [italics
added].) Lewis stated that language “may be interpreted to require a ‘hearing’ before the
issuance of a peremptory writ of mandate or prohibition,” but the language left unclear
whether such a hearing must include an opportunity for oral argument. (Lewis, at pp.
1246–1247.) The court considered dictionary definitions of the terms “hear” and
“hearing,” but the definitions were inconclusive on the question before the court. (Id. at
p. 1247 & fn. 9.) Lewis noted “[t]he word ‘hear’ is defined as follows: ‘to be made aware
of by the ear [or] apprehend by the ear,’ ‘to be informed or gain knowledge of by
hearing,’ ‘to listen to with favor or compliance,’ ‘to listen to with care or attention,’ ‘to
attend and listen to,’ ‘to listen to the recitation of,’ ‘to give a legal hearing to,’ or ‘to take
testimony from.’ ” (Id. at p. 1247, fn. 9.) Lewis also surveyed prior case law, observing
“California courts have concluded that use of the terms ‘heard’ or ‘hearing’ does not
require an opportunity for an oral presentation, unless the context or other language
indicates a contrary intent.” (Id. at p. 1247.) The court ultimately concluded that “the
statutes and rules governing peremptory writs of mandate and prohibition” did not require
an opportunity for oral argument before issuance of a peremptory writ in the first
instance. (Id. at p. 1236.) “In context, the requirement that the case ‘must be heard’
means that the court cannot issue the writ by default, but rather must consider and
15
evaluate the petition before granting the relief requested, even if the adverse party does
not respond to the petition.” (Id. at p. 1250.)
Lewis is of only limited assistance in the present case. Section 28 uses the term
“heard” in the sense of an opportunity to make a presentation to a court, while the
provision in Lewis used the term in the sense of a court’s determination of an issue (i.e., a
person’s right to be “heard” vs. a court’s “hearing” of a matter). (See Niles v. Edwards
(1892) 95 Cal. 41, 43 [“The term ‘heard,’ as here used, . . . .signifies the consideration
and determination of a cause by the court or by a judge, as distinguished from a trial of a
cause.”]; see also Lewis, supra, 19 Cal.4th at p. 1248 [discussing Niles].) And, of course,
the issue in the present case is not whether a victim has the right to make an oral
presentation,6 but whether, in presenting a victim impact statement to a court of appeal, a
victim may introduce new issues or facts. Nevertheless, Lewis does support the
proposition that the term “heard” does not have a set meaning and the meaning instead
depends on context.
2. Appellate Rules Regarding the Presentation of New Issues and Facts
The context in the present case is a victim’s right “to be heard” in this appellate
proceeding in which the victim’s right to restitution is “at issue.” (§ 28, subd. (b)(8).)
The victim’s right is at issue because the appellant has filed an appeal in which he argues
the trial court’s restitution award lacks support in the record. In order for the victim to be
heard on that issue, a victim must, on request, be permitted to make a presentation for this
court to “consider and evaluate” in deciding the appeal. (Lewis, supra, 19 Cal.4th at p.
1250.) It is clear such a statement may properly seek to persuade the court by providing a
victim’s perspective on the issues on appeal in light of the facts in the record.
The question whether a victim may rely on facts not in the record on appeal is also
straightforward. In order to effectuate the trial court’s principal responsibility over
questions of fact, it is well-established that on appeal we generally consider only
evidence presented to the court below. As explained by the California Supreme Court,
6
The victim did not request an opportunity to make an oral presentation to this court.
16
“[i]t has long been the general rule and understanding that ‘an appeal reviews the
correctness of a judgment as of the time of its rendition, upon a record of matters which
were before the trial court for its consideration.’ [Citation.] This rule reflects an
‘essential distinction between the trial and the appellate court . . . that it is the province of
the trial court to decide questions of fact and of the appellate court to decide questions of
law. . . .’ [Citation.] The rule promotes the orderly settling of factual questions and
disputes in the trial court, provides a meaningful record for review, and serves to avoid
prolonged delays on appeal. ‘Although appellate courts are authorized to make findings
of fact on appeal . . . , the authority should be exercised sparingly. [Citation] Absent
exceptional circumstances, no such findings should be made.’ ” (In re Zeth S. (2003) 31
Cal.4th 396, 405.) Given that victims are given an opportunity to present facts to the trial
court to support requests for restitution, there is no compelling reason to deviate from the
normal rule prohibiting reliance on facts not in the record.
The question of whether a victim may raise new issues on appeal requires more
analysis. Generally speaking, the scope of the issues on appeal is determined by the
appellant’s opening brief; that is, the issues presented through reasoned argument in an
appellant’s opening brief are normally the only bases upon which we will reverse the
judgment or order challenged on appeal. (People v. Duff (2014) 58 Cal.4th 527, 550, fn.
9; WA Southwest 2, LLC v. First American Title Ins. Co. (2015) 240 Cal.App.4th 148,
155; Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6.) In criminal appeals, Penal
Code section 1252 provides, “On an appeal by a defendant, the appellate court shall, in
addition to the issues raised by the defendant, consider and pass upon all rulings of the
trial court adverse to the State which it may be requested to pass upon by the Attorney
General.” It appears that, despite its broad wording, Penal Code section 1252 only
permits the People to seek review of errors to avoid a reversal. (See People v. Braeseke
(1979) 25 Cal.3d 691, 701 [“ ‘the People may, on an appeal by the defendant and
pursuant to the provisions of Penal Code section 1252, obtain review of allegedly
erroneous rulings by the trial court in order to secure an affirmance of the judgment of
conviction’ ”]; see also People v. Mendoza (2011) 52 Cal.4th 1056, 1076–1077
17
[following Braeseke and stating “there is some merit to the contention that section 1252
should be subject to reasonable limitations”].) In any event, regardless of the scope of
section 1252, when Marsy’s Law was enacted, no provision was added to the Penal Code
permitting victims to assert claims of error other than those raised by the appellant.
(Santos, supra, 238 Cal.App.4th at p. 410 [presumption that voters are aware of existing
laws].)
We also observe that a victim who presents an impact statement on appeal
occupies a position somewhat analogous to that of an amicus curiae, except permission is
required to file an amicus curiae brief (Cal. Rules of Court, Rule 8.882(d)), while a
victim may submit an impact statement as a matter of right. An amicus curiae is “one (as
a professional person or organization) that is not a party to a particular litigation but that
is permitted by the court to advise it in respect to some matter of law that directly affects
the case in question.” (Merriam-Webster’s Collegiate Dictionary (10th ed. 2001) p. 37.)
“Amicus curiae presentations assist the court by broadening its perspective on the issues
raised by the parties. Among other services, they facilitate informed judicial
consideration of a wide variety of information and points of view that may bear on
important legal questions.” (See Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370, 405.)
Similarly, a victim impact statement may assist a reviewing court by providing an
informed perspective different than that of the parties, and by alerting the court to
arguments or aspects of the record overlooked by the parties.
Courts generally do not consider new issues raised in amicus briefs. Instead, “[i]t
is a general rule that an amicus curiae accepts a case as he or she finds it,” and “[a]micus
curiae may not ‘launch out upon a juridical expedition of its own unrelated to the actual
appellate record.’ ” (California Assn. for Safety Education v. Brown (1994) 30
Cal.App.4th 1264, 1274.) “California courts refuse to consider arguments raised by
amicus curiae when those arguments are not presented in the trial court, and are not urged
by the parties on appeal. ‘ “Amicus curiae must accept the issues made and propositions
urged by the appealing parties, and any additional questions presented in a brief filed by
an amicus curie will not be considered.” ’ ” (Id. at p. 1275; see also Younger v. State of
18
California (1982) 137 Cal.App.3d 806, 813 [“ ‘ “[T]he rule is universally recognized that
an appellate court will consider only those questions properly raised by the appealing
parties.” ’ ”]; accord, Eisenberg et al., Cal. Practice Guide: Civil Appeals & Writs (The
Rutter Group 2015) ¶ 9:210.1.) That practice promotes judicial efficiency and an orderly
appellate process, and absent a compelling reason the same rule should apply to a victim
impact statement presented on appeal.
In summary, normally an appellant determines the issues on appeal and normally
this court will consider only evidence presented to the trial court. As described
previously, the victim’s Statement in the present case attempts to insert at least one new
issue on appeal (that the trial court failed to make an adequate award of interest) and it
relies on facts not in the record. The plain meaning of the phrase “to be heard” as used in
Section 28 does not compel this court to consider the victim’s new issues and facts. That
is particularly true given that we presume the voters were aware of the well-established
rules of appellate procedure when they enacted Marsy’s Law. (Santos, supra, 238
Cal.App.4th at p. 410.)
3. Our Interpretation Provides the Victim Due Process With Respect
to Her Right to be “Heard” in This Appeal
As relevant here, the intent of Marsy’s Law is to “provide victims ‘due process’ by
affording them an opportunity to be heard in proceedings concerning the prosecution,
punishment, and release of those who victimized them.” (Vicks, supra, 56 Cal.4th at pp.
309–310.) Vicks considered the rights granted to a victim by Section 28 to be “similar”
to “an individual’s due process liberty interest in being free from arbitrary adjudicative
procedures.” (Vicks, at p. 310.) The court previously explained regarding such
individual interests that, “ ‘ “For government to dispose of a person’s significant interests
without offering him a chance to be heard is to risk treating him as a nonperson, an
object, rather than a respected, participating citizen.” [Citation.] Thus, even in cases in
which the decision-making procedure will not alter the outcome of governmental action,
due process may nevertheless require that certain procedural protections be granted the
individual in order to protect important dignitary values, or, in other words, “to ensure
19
that the method of interaction itself is fair in terms of what are perceived as minimum
standards of political accountability—of modes of interaction which express a collective
judgment that human beings are important in their own right, and that they must be
treated with understanding, respect, and even compassion.” ’ ” (Ibid., quoting People v.
Ramirez (1979) 25 Cal.3d 260, 267–268.) Vicks observed, “The same sentiments are
evident in the provisions of Marsy’s Law that seek to ensure that crime victims are
treated with dignity.” (Vicks, at p. 310.)
The record in the present case reflects that the victim provided a substantial
amount of documentation in support of her restitution claim, her Statement acknowledges
she worked with the prosecutor in crafting the claim, and she made a detailed oral
presentation at the restitution hearing. (See People v. Smith (2011) 198 Cal.App.4th 415,
439 [victim “had the right to have her attorney appear at the restitution hearing and to be
heard on the issue of restitution”].) We granted the victim permission to file her
Statement before this court. This provided her the opportunity to provide her perspective
on the issues on appeal, as determined by appellant, including by pointing out facts in the
record or legal authorities or arguments that may have been overlooked by the
respondent. These procedures protected the due process interests described in Vicks,
supra, 56 Cal.4th at page 310, by ensuring the victim had the opportunity to articulate
and provide evidentiary support for her restitution claim below and to be “heard” on
appellant’s challenge to the restitution award. Our interpretation of Section 28 provided
the victim an “opportunity to be heard . . . ‘at a meaningful time and in a meaningful
manner.’ ” (Today’s Fresh Start, Inc. v. Los Angeles County Office of Education (2013)
57 Cal.4th 197, 212.)
We acknowledge our interpretation of Section 28 means the victim’s claims of
error will remain unresolved. That is because, absent those circumstances where writ
proceedings are appropriate, the mechanism by which claims of error are properly
brought to this court’s attention is through the filing of an appeal. In the present case, the
victim did not attempt to appeal the trial court’s restitution order, and there is no
indication she asked the prosecutor to do so. We recognize there is some uncertainty
20
whether the victim would have had standing to appeal the restitution award, but we do
not have occasion in the present case to decide that issue. (See People v. Subramanyan
(2016) 246 Cal.App.4th Supp. 1 [no victim standing to appeal restitution order in
misdemeanor case] (Subramanyan).) We also recognize that, by deciding that a victim
may not present new issues in a victim impact statement, we may make more difficult the
question of whether a victim has standing to appeal an adverse ruling, because a
conclusion a victim does not have such standing might in some circumstances diminish a
victim’s right to enforce her rights under Marsy’s Law.7
Nevertheless, that question—whether the voters intended to authorize independent
appeals by victims—is not determinative in the present case. As explained above, the
victim’s Section 28, subdivision (b)(8) right to be heard in this proceeding is the right to
be heard on the issues on appeal, which are framed by the appellant. If the voters
intended to authorize victims to present their claims of error on appeal, it was through
7
If a victim does not have a right to appeal an inadequate restitution award, and the
People decline to appeal, then the victim’s claims of error may go unheard. Arguably, a
victim has a right to appeal under Section 28, subdivision (c)(1), which states that “[a]
victim, the retained attorney of a victim, a lawful representative of the victim, or the
prosecuting attorney upon request of the victim, may enforce the rights enumerated in
subdivision (b) in any trial or appellate court with jurisdiction over the case as a matter of
right.” (See also § 28, subd. (f) [referring to the “enumerated rights provided in
subdivision (b) that are personally enforceable by victims as provided in subdivision
(c)”].) In Subramanyan, the Appellate Division for the Superior Court of Orange County
relied on the prosecutor’s responsibility for prosecuting criminal offenses in holding a
victim did not have standing to appeal a restitution order in a misdemeanor case.
(Subramanyan, supra, 246 Cal.App.4th Supp. 1 at p. 448.) The court concluded, “once
the judgment was entered at the trial court, only the prosecutor, acting on behalf of the
People, or the defendant could initiate the appeal. If such an appeal were initiated the
victim could then participate pursuant to Marsy’s Law.” (Subramanyan, at p. 448.) The
decision reflects a concern that permitting victims to file appeals in criminal cases would
“invade the exclusive province of the district attorney’s prosecutorial authority.” (People
v. Smith (2011) 198 Cal.App.4th 415, 440) Nevertheless, Subramanyan did not explain
how its result was consistent with the language of Section 28, subdivision (c)(1) and did
not explain how, consistent with due process, a victim could enforce the right to
restitution without the ability to appeal an erroneous restitution award. Those issues,
including any conflict between the rights given victims under Marsy’s Law and the
People’s prosecutorial authority, are for future courts to address.
21
Section 28, subdivision (c)(1), and the mechanism of an independent appeal. There is no
indication that in giving victims the right to be “heard” the voters intended to create an
exception to the well-established rules of appellate procedure, and allow victims to assert
their claims of error in the context of a defendant’s appeal.
4. Conclusion
Section 28, subdivision (b)(8) plainly requires a court of appeal to grant a victim’s
request to file a victim impact statement addressing a defendant’s appeal from a trial
court’s restitution award. However, because that right to be heard in an appeal does not
require this court to permit a victim to present new facts or issues, and because nothing in
the language of Section 28 indicates the voters intended that a victim should be able to
assert his or her separate claims of error when being heard regarding a defendant’s
appeal, the normal rules of appellate procedure apply to such a victim impact statement.
Such procedural rules governing appeals may be imposed on parties without violating
due process and there is no basis to conclude the conclusion should be otherwise where a
victim’s interests are at stake. (See San Bernardino Community Hospital v. Workers’
Comp. Appeals Bd. (1999) 74 Cal.App.4th 928, 936–937 [“The constitutional right to due
process does not prohibit the enactment of reasonable rules of procedure or restrictions
on evidence. . . . There is nothing fundamentally inequitable in requiring a party to
comply with established procedural rules which are designed to improve the overall
fairness and efficiency of an adjudicatory procedure.”].) Thus, in deciding the present
appeal, this court has not considered the new issues and facts presented in the victim’s
Statement.
DISPOSITION
The trial court’s orders are affirmed.
22
SIMONS, J.
We concur.
JONES, P.J.
NEEDHAM, J.
(A145945)
23
Superior Court of Contra Costa County, No. 05-130435-1, Hon. Clare M. Maier, Judge.
Sidney S. Hollar, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Jeffrey M. Laurence, Senior Assistant Attorney General, Masha A. Dabiza and
Sara Turner, Deputy Attorneys General, for Plaintiff and Respondent.
24