THE PEOPLE v. JOSE MARIA OROZCO IV (2011)

Making a Restitution Order During Orozco's Absence

Orozco contends that the trial court erred by proceeding with the May 3rd restitution hearing and making a restitution order in his absence.   The Attorney General claims that the court properly proceeded and had the authority to make the order, because after attending the first restitution hearing, Orozco was voluntarily absent from the second hearing.   The Attorney General is correct.

“A criminal defendant's right to be present at trial is protected under both the federal and state Constitutions.”  (People v. Gutierrez (2003) 29 Cal.4th 1196, 1202.)   But Orozco's contention that the trial court lacked the constitutional authority to proceed in his absence in this case is not correct.

In Gutierrez, our Supreme Court rejected the claim that a trial court could never proceed with a trial in the absence of the defendant.   The court said, “[A] trial court may continue a trial in a custodial defendant's absence after the trial has commenced in the defendant's presence—without first obtaining the defendant's written or oral waiver of the right to presence—if other evidence indicates the defendant has chosen to be absent voluntarily.”   (People v. Gutierrez, supra, 29 Cal.4th at p. 1206.)   This rule is “ ‘designed to prevent the defendant from intentionally frustrating the orderly processes of his trial by voluntarily absenting himself.’ ”  (Id., at pp. 1204–1205.)

Orozco claims that he was deprived of his right to be present at the second hearing.   But the record reflects that after attending the first hearing, Orozco voluntarily decided not to attend the second hearing.   He had notice that it was scheduled for May 3. The April 7th minute order reflects that at the first hearing the trial court set the date and time for the second restitution hearing.   He had an additional reminder that there was a second hearing.   The VCGCB sent Orozco a packet of documents entitled “certification of records for restitution hearing” on April 29.

Moreover, there is nothing in the record to show that anyone prevented Orozco from attending.   In his May 14th letter to the trial court, Orozco admitted that he did not go to the hearing because he decided to visit his mother.   He claimed she was in poor health in a nursing home, but he provided no details and did not claim that there was any emergency.   The court could reasonably infer that his absence was not excusable.   Orozco was not in custody.   There was almost a month between the two hearings.   He never moved for a continuance.   He did not call the clerk's office on May 3 to inform the court he was unable to attend.   Orozco had no right to frustrate “ ‘the orderly processes of his trial by voluntarily absenting himself.’ ”  (People v. Gutierrez, supra, 29 Cal.4th at p. 1205.)   He has not shown that the court abused its discretion by deciding to proceed in his absence.

But even if the trial court had erred, the result does not change because there was no prejudice.   Orozco requested and received another hearing on May 24 on the restitution issue.   He has not shown that at that hearing the court prevented him from challenging the amount of restitution or that there was any constitutional deficiency in that proceeding.   Moreover, the restitution order is consistent with the documentary evidence in the record.   Orozco makes no showing on appeal that the amount the court ordered was excessive and has not demonstrated what evidence he could have produced to support a different result.   The court held three hearings on the restitution issue.

Orozco claims that when he went to the two restitution hearings, the trial court ruled that he was not entitled to appointed counsel.   But the record that Orozco has provided of the April 7th and May 24th hearings contains nothing to reflect that the court ever made such rulings.   Orozco did not request a settled statement.   We cannot presume error on a silent or incomplete record.   (See People v. Malabag (1997) 51 Cal.App.4th 1419, 1427 [“The orders of the trial court are presumed to be valid and defendant has the burden of providing a record adequate to support his arguments on appeal”].)

We have reviewed Orozco's remaining contentions and conclude that he has not shown any error.

NOT TO BE PUBLISHED.

GILBERT, P.J.

We concur:

YEGAN, J.

COFFEE, J.

Martin J. Tangeman, Judge

Superior Court County of San Luis Obispo

Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Kenneth C. Byrne, Supervising Deputy Attorney General, David C. Cook, Deputy Attorney General, for Plaintiff and Respondent.