Filed 1/14/20 P. v. Duque CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

LESTER ALFREDO DUQUE,

Defendant and Appellant.

A155929, A157168

(Contra Costa County

Super. Ct. No. 5-160789-4)

Lester Alfredo Duque challenges the trial court’s order that he pay $4,100.26 as victim restitution, which was issued without a hearing even though Duque had explicitly requested one to contest the proposed restitution amount. On appeal, the Attorney General agrees the matter should be remanded for a restitution hearing. We agree and vacate the restitution order and remand for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

In November 2016, Duque pleaded no contest to one count of voluntary manslaughter (Pen. Code, § 192, subd. (a)) and one count of attempted robbery (§§ 211/664), and admitted multiple firearm enhancements (§§ 12022.5, 12022.53, subd. (b)). The trial court sentenced him to 25 years in state prison and reserved jurisdiction to impose victim restitution at a later date.

The Contra Costa County Probation Department (Department) sent Duque an Amended Restitution Supplemental Report (Report) dated November 16, 2018, along with a letter dated November 20, 2018. According to the Report, Duque’s underlying offense resulted in the shooting death of Peter Otten, whose next of kin was referred to the victim assistance program, which paid for Otten’s funeral and burial costs in the amount of $4,100.26. On that basis, the Department recommended that restitution be set in the amount of $4,100.26. The letter advised Duque that he had 60 days from the date of the letter to request a hearing to contest the proposed amount of restitution. On January 7, 2019, within the 60-day period, the trial court received a pro per request from Duque for a court hearing to contest the amount of restitution proposed in the November 20, 2018 notice.

On February 7, 2019, without holding a hearing, the trial court signed an order setting restitution at $4,100.26, payable to the Victim Compensation Board. The order was filed on February 15, 2019. Duque timely appealed (A157168).

DISCUSSION

The Penal Code and the California Constitution require trial courts to order restitution in every case in which a victim suffers an economic loss as a result of the defendant’s criminal conduct. (§ 1202.4, subd. (f); Cal. Const., art I, § 28, subd. (b)(13).) Section 1202.4, subdivision (f)(1), however, provides that a “defendant has the right to a hearing before a judge to dispute the determination of the amount of restitution.”

Moreover, the California and federal constitutions protect the right of a defendant “to be present at critical stages of a criminal prosecution,” which include sentencing. (People v. Wilen (2008) 165 Cal.App.4th 270, 286-287.) Because “[r]estitution hearings held pursuant to section 1202.4 are sentencing hearings,” they are “hearings which are a significant part of a criminal prosecution” (People v. Dehle (2008) 166 Cal.App.4th 1380, 1386) and therefore a defendant has a due process right to be present at a hearing on restitution. A defendant may waive the right to be present at a critical stage (People v. Mendoza (2016) 62 Cal.4th 856, 898), but, as the Attorney General concedes, there is no evidence of waiver here. To the contrary, Duque submitted a written request to the trial court for a hearing to contest the amount of restitution proposed by the Department.

The trial court’s failure to hold a restitution hearing thus violated Duque’s statutory right to a hearing to contest the amount of restitution and his due process right to be present at that hearing. Duque argues that the lack of a hearing in these circumstances constitutes a structural error in sentencing that requires reversal and remand for a contested restitution hearing. The Attorney General does not argue otherwise and agrees that Duque is entitled to a restitution hearing. Accordingly, we vacate the restitution order and remand the matter to the trial court for further proceedings.

DISPOSITION

The trial court’s February 15, 2019 order setting victim restitution is vacated, and the matter is remanded to the trial court for further proceedings consistent with this opinion.

 

_________________________

Miller, J.

We concur:

_________________________

Kline, P.J.

_________________________

Stewart, J.

A155929, A157168, People v. Duque