IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
December 28, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
LONG PHI LE, DEFENDANT AND APPELLANT.
(Super. Ct. No. 92F11292)
The opinion of the court was delivered by: Mauro , J.
P. v. Le
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendant Long Phi Le of first degree premeditated murder and found that he personally used a firearm to commit the offense. This court previously remanded the case and directed the trial court to redetermine victim restitution and the restitution fine. Applying the law in effect at the time of defendant's crime, this court specified that "[f]or any restitution fine imposed, the trial court must consider defendant's ability to pay, which may include defendant's 'future financial prospects.'" This court also said that "[i]f the trial court makes a determination of the amount of victim restitution, defendant shall have the right to a hearing before the judge to dispute the determination made."
Despite these instructions, the trial court redetermined restitution and the restitution fine in defendant's absence and without considering defendant's ability to pay. Defendant now contends that the trial court failed to follow this court's directions and that he had a right to be present at the restitution hearing. The People agree, and so do we.
We will remand the matter again.
Given defendant's narrow contentions on appeal, it is not necessary to provide a detailed recitation of the facts leading to defendant's conviction. Defendant shot and killed the victim during a dispute between defendant's friends and the victim's friends. A jury convicted him of first degree premeditated murder and found that he personally used a firearm to commit the offense.
In defendant's first appeal, this court reversed the judgment due to instructional error. (People v. Le (Dec. 29, 2005, C047537) 2005 WL 3549439 [nonpub. opn.].) On retrial a jury convicted defendant again of the same offense. At sentencing, defense counsel contested defendant's ability to pay the restitution fine and victim restitution as recommended in the probation report. But the trial court observed that the recommended amounts were the same as those imposed following the first trial. The trial court said that because this court did not identify any error regarding those amounts, it would "impose the same fines that were imposed previously." The trial court ordered defendant to pay a restitution fine of $10,000, and restitution of $3,500 to the victims of violent crime program pursuant to Penal Code section 1202.4.*fn1 The trial court also ordered defendant to pay restitution to the victim's family in an amount to be determined.
Defendant appealed, contending, among other things, that the combined amount of the restitution fine and victim restitution could not exceed $10,000, and that the trial court erred in failing to consider his ability to pay.
This court applied the restitution statutes in effect at the time of defendant's crime in 1992. This court observed that "'[i]n imposing a restitution fine, the trial court must consider a defendant's ability to pay. However, the trial court is not limited to a consideration of a defendant's present ability to pay but may consider defendant's ability to pay in the future.' [Citation.]" This court concluded that "the restitution fines of $10,000 and $3,500, as well as the victim restitution in the undetermined amount, must be stricken, and the matter remanded for the trial court to determine an appropriate restitution fine and/or victim restitution. If the victim restitution is determined to be $10,000 or more, the 'in lieu of' language of former Government Code section 13967, subdivision (c), will reduce the maximum allowable restitution fine of $10,000 to zero. [Citation.] If the victim restitution is determined to be under $10,000, the trial court may impose a restitution fine and victim restitution that does not exceed the sum of $10,000. [Citation.] For any restitution fine imposed, the trial court must consider defendant's ability to pay, which may include defendant's 'future financial prospects.' [Citation.] If the trial court makes a determination of the amount of victim restitution, defendant shall have the right to a hearing before the judge to dispute the determination made." We remanded the case with directions to redetermine the restitution fine and/or the victim restitution in accord with these statements in our opinion. (People v. Le (Sept. 10, 2009, C057628) [nonpub. opn.] 2009 WL 2902078.)
Defendant was not present at the new restitution hearing but was represented by counsel. The trial court stated that "[t]he only question is the actual restitution. The probation report indicated that the probation officer was unable to successfully make contact with the [victim's] family, so the only restitution they noted was the previously mentioned $3,500. So I'm prepared just to order that restitution." The trial court said "that would leave $6,500 that I can impose as the restitution fine, so that together they do not exceed the sum of $10,000." The trial court did not mention defendant's ability to pay, and defense counsel (who was covering for the attorney of record) did not object.
Defendant contends the trial court erred in redetermining the restitution fine without considering his ability to pay as we directed. We agree. This court remanded the case to the trial court with directions to consider defendant's ability to pay the restitution fine, but there is no indication in the record that the trial court considered defendant's ability to pay.
Defendant also contends the trial court abused its discretion in determining the amount of restitution in defendant's absence. Defendant says there is no indication in the record that he received notice of the hearing or that he waived the right to be present.
The People agree that the trial court erred in holding the restitution hearing without defendant present or without a waiver of his presence. Citing section 1193,*fn2 the People assert that defendant had the right to be present when judgment was pronounced against him, and that his absence tended to prejudice a substantial right because he was in the best position to provide evidence regarding his ability to pay.
We agree that defendant has a right to be present at the restitution hearing unless he waives that right. In felony cases the defendant must be present "at the arraignment, at the time of plea, during the preliminary hearing, during those portions of the trial when evidence is taken before the trier of fact, and at the time of the imposition of sentence." (§ 977, subd. (b)(1).)*fn3 The defendant is also to be present at all other proceedings, "unless he or she shall, with leave of court, execute in open court, a written waiver of his or her right to be personally present . . . ." (Ibid.)
A defendant has the right to be present at his or her sentencing hearing, and a restitution hearing is part of the sentencing process. (People v. Robertson (1989) 48 Cal.3d 18, 60 [defendant has constitutional and statutory right to be present at sentence modification hearing and imposition of sentence]; People v. Wilen (2008) 165 Cal.App.4th 270, 287 [right to be present "includes the defendant's presence at 'critical stage[s] of the criminal prosecution,' which includes 'sentencing and pronouncement of judgment.' [Citations.]"]; cf. People v. Cain (2000) 82 Cal.App.4th 81, 87 [restitution hearing under section 273.5 is "part and parcel of the sentencing process"].)
The trial court held the restitution hearing in defendant's absence and without a waiver of defendant's right to be present. Because there is no evidence that the trial court exercised discretion regarding defendant's ability to pay, we cannot say that defendant's absence was harmless, i.e., we cannot say that it is not reasonably probable the trial court would have exercised its discretion differently if defendant had been present. Accordingly, we will remand the matter again.
The portions of the judgment ordering defendant to pay $3,500 in victim restitution and a $6,500 restitution fine are stricken. The matter is remanded for a new hearing. At the new hearing, the trial court shall (1) determine the amount of victim restitution, if any, and shall recognize defendant's right to be present at the hearing unless defendant waives this right; and (2) determine the amount of the restitution fine, if any, considering defendant's ability to pay, including his future financial prospects, and based on former Government Code section 13967, subdivision (c), which provides that restitution is in lieu of the restitution fine and the total ordered for
restitution and the restitution fine cannot exceed $10,000. In all other respects, the judgment is affirmed.
We concur: RAYE , P. J. NICHOLSON , J.