THE PEOPLE, Plаintiff and Respondent, v. EUGENE MARTIN HANNON, Defendant and Appellant.
No. A145945
First Dist., Div. Five
Nov. 3, 2016
94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109
COUNSEL
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, Assistant Attorney General, Masha A. Dabiza and Sara Turner, Deputy Attorneys General, for Plaintiff and Respondent.
SIMONS, J.—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 In the unpublished portion of this opinion, we reject appellant‘s challenges to the trial court‘s restitution award.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 reсord below.
BACKGROUND1
On August 27, 2012, a felony complaint charged appellant with grand theft by embezzlement by a fiduciary (
In February 2011, the victim became aware that the funds fоr 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
DISCUSSION
I. Appellant‘s Challenges to the Restitution Award*
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 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
* See footnote, ante, page 94.
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 $1,381.39, 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.”
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. . . .” (
Among other amendments, Marsy‘s Law amended
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.” (
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.” (
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
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.” (
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.” (
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,
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 issuе a peremptory writ without having issued an alternative writ or 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
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” versus a сourt‘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.”
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, “[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 cоnsideration.’ [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 judgmеnt 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,
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 Cоurt, 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.” (Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370, 405, fn. 14.) Similarly, a victim impact statement may assist a reviewing court by providing an informed perspective different from 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 curiae briefs. Instead, “[i]t is a general rule that an amicus curiae accepts the 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 curiaе 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 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 and Writs (The Rutter Group 2015) ¶ 9:210.1, p. 9-60.) That practice promotes judicial efficiency and an orderly aрpellate process,
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 Sеction 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 prоtect important dignitary values, or, in other words, “to ensure 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 respondent. Thesе 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 circumstаnces 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 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 (Subramanyan) [no victim standing to appeal restitution order in misdemeanor case].) 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
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 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.
could then participate pursuant to Marsy‘s Law.” (Subramanyan, at p. Supp. 8.) 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, supra, 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
DISPOSITION
The trial court‘s orders are affirmed.
Jones, P. J., and Needham, J., concurred.