People v. Hernandez

• Citation: 487 P.3d 1095
• Decision Date: 25 July 2019
• Docket Number: Court of Appeals No. 17CA0775
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Joey Ray HERNANDEZ, Defendant-Appellant.
• Court: Colorado Court of Appeals

487 P.3d 1095

The PEOPLE of the State of Colorado, Plaintiff-Appellee,

v.Joey Ray HERNANDEZ, Defendant-Appellant.

Court of Appeals No. 17CA0775

Colorado Court of Appeals, Division III.

Announced July 25, 2019

Rehearing Denied August 22, 2019

Philip J. Weiser, Attorney General, Frank R. Lawson, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Julia Chamberlin, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

Opinion by JUDGE WEBB

¶ 1 In this appeal of a restitution order, defendant, Joey Ray Hernandez, presents a novel question in Colorado — does a defendant have a right to be present at a restitution hearing? We conclude that the answer is "yes." Turning to the particular facts presented, next we conclude that the trial court plainly erred by holding the restitution hearing in Hernandez's absence, despite his attorney's attempted but ineffective waiver of his presence. So, the restitution order must be vacated and the case remanded for further proceedings. But if on remand the trial court determines that Hernandez had authorized his attorney to waive his presence, a new restitution hearing need not be held.

I. Background

¶ 2 A jury convicted Hernandez of first degree assault for having stabbed the victim. The trial court imposed a sentence to the custody of the Department of Corrections and gave the prosecutor sixty days to file a notice of restitution. The prosecutor timely sought restitution of $2518.82 to compensate the Crime Victim Compensation Fund.

¶ 3 Defense counsel filed a general objection. But neither counsel nor Hernandez appeared at two scheduled status conferences. Counsel did not respond to the trial court's direction to file a clarification of his objection. Nor did counsel request the court to perform an in camera review of any information related to the claim.

¶ 4 Eventually, defense counsel — but not Hernandez — appeared at the restitution hearing. Counsel explained, "I was going to writ him here. I didn't do that. But given all the circumstances in this case, I'm prepared to proceed to [sic] restitution hearing without his presence." The court did not reply to this statement and the hearing went forward.

¶ 5 The prosecutor called the Crime Victim Compensation Coordinator for the Nineteenth Judicial District as the sole witness. The coordinator described how the Crime Victim Compensation Board (CVCB) evaluates restitution applications. Where medical expenses are involved, the review includes looking at the nature of the services provided in light of the offense and at the dates of those services compared to the date of the offense. Next, the coordinator identified the victim's application. Then she explained that the process for determining proximate cause of the medical expenses had been followed in this case. Defense counsel neither cross-examined her nor presented any evidence.

¶ 6 The trial court found that the prosecutor had proved by a preponderance of the evidence that the medical expenses described in the restitution notice had been proximately caused by Hernandez's criminal conduct. The court awarded the amount requested.

II. Issues Presented, Preservation, and Standard of Review

¶ 7 Hernandez raises three contentions.

• Despite the statements of defense counsel, the trial court erred by proceeding with the restitution hearing in his absence.

• Applying the post-assault amendment to section 18-1.3-603, C.R.S. 2018, which lessens the prosecution's burden of proving causation, violated the Ex Post Facto Clauses of the United States and Colorado Constitutions.

• Applying section 18-1.3-603(10) also violated Hernandez's due process rights by creating a rebuttable presumption of causation that he cannot overcome because of limitations on information held by a CVCB.

¶ 8 The Attorney General asserts that Hernandez waived the first contention and challenges preservation of the second and third contentions. Hernandez disputes waiver, concedes that he did not preserve the first or second contentions, and argues that he preserved the third contention. In any event, he urges us to exercise our discretion and take up his statutory contentions in the interest of judicial economy.

¶ 9 We reject the Attorney General's waiver assertion but agree that Hernandez did not preserve the third contention. We exercise our discretion in the interest of judicial economy, but only to a point.

¶ 10 Alleged violation of a defendant's due process right to be present at all critical stages of a criminal proceeding is a constitutional question reviewed de novo. People v. Wingfield , 2014 COA 173, ¶ 13, 411 P.3d 869. And " Crim. P. 43(a) also requires as much, subject to a few exceptions." People v. Janis , 2018 CO 89, ¶ 16 n.2, 429 P.3d 1198.

¶ 11 Where this due process right has been violated and the error preserved, reversal is required unless the Attorney General proves that the error was harmless beyond a reasonable doubt. Zoll v. People , 2018 CO 70, ¶ 17, 425 P.3d 1120. If the error is unpreserved — but not waived — plain error review applies. See Hagos v. People , 2012 CO 63, ¶ 14, 288 P.3d 116. Under that test, reversal occurs only if the error was obvious and so undermined the fundamental fairness of the proceeding that it casts serious doubt on the reliability of the outcome. Id.

¶ 12 No Colorado case has addressed whether violation of a defendant's right to be present under Crim. P. 43 is also reviewed de novo. However, we discern no reason to apply a different standard of review to the same right merely because the right is guaranteed by rule rather than by statute. But reversal for failure to follow a court rule is subject to the harmless error limitation in Crim. P. 52(a) rather than to the constitutional harmless error standard. See Dawson v. People , 30 P.3d 213, 220 (Colo. 2001) ( Crim. P. 11 ).

¶ 13 The constitutionality of a statute is also subject to de novo review. See, e.g. , Coffman v. Williamson , 2015 CO 35, ¶ 13, 348 P.3d 929. The reviewing court presumes the statute is constitutional. Morris-Schindler, LLC v. City & Cty. of Denver , 251 P.3d 1076, 1084 (Colo. App. 2010). And "[i]n both facial and as-applied challenges, the challenging party must prove that a statute is unconstitutional beyond a reasonable doubt." Heotis v. Colo. State Bd. of Educ. , 2019 COA 35, ¶ 17, 457 P.3d 691.

III. The Law of Restitution

¶ 14 Criminal defendants must "make full restitution to those harmed by their misconduct." § 18-1.3-601, C.R.S. 2018. " ‘Restitution’ means any pecuniary loss suffered by a victim and includes but is not limited to all out-of-pocket expenses ...." § 18-1.3-602(3)(a), C.R.S. 2018. "The prosecution bears the burden of proving, by a preponderance of the evidence, the amount of restitution owed and, generally, that the defendant's conduct was the proximate cause of the victim's loss." People v. Henry , 2018 COA 48M, ¶ 15, 439 P.3d 33.

¶ 15 A CVCB exists in each judicial district. § 24-4.1-103(1), C.R.S. 2018. The restitution statute's definition of "victim" includes these boards. § 18-1.3-602(4)(a)(IV). Losses compensable by a CVCB include "[r]easonable medical and hospital expenses." § 24-4.1-109(1)(a), C.R.S. 2018.

¶ 16 Documents submitted to a CVCB for purposes of receiving compensation are "confidential" under section 24-4.1-107.5(2), C.R.S. 2018. As a result, "a defendant generally cannot obtain access to them." Henry , ¶ 28.

¶ 17 But in restitution proceedings, section 24-4.1-107.5(3) creates a two-step process through which a defendant can obtain information in CVCB records. First, the defendant may make a request that "is not speculative and is based on an evidentiary hypothesis that warrants an in camera review." Id. Second, after conducting such a review, the court may release information if it finds that the information:

(a) Is necessary for the defendant to dispute the amount claimed for restitution; and

(b) Will not pose any threat to the safety or welfare of the victim, or any other person whose identity may appear in the board's records, or violate any other privilege or confidentiality right.

Id.

¶ 18 After a CVCB determines that compensation should be awarded, it submits a statement to the court administrator, "who shall remit payment in accordance with the statement of award." § 24-4.1-108(3), C.R.S. 2018. Then under section 18-1.3-603(10)(a), "[i]f, as a result of the defendant's conduct," a CVCB has "provided assistance to or on behalf of a victim," a trial court must "presume[ ]" that the amount of the assistance that the CVCB paid out was "a direct result of the defendant's criminal conduct," which the court "must ... consider[ ] ... in determining the amount of restitution ordered."

IV. The Trial Court Plainly Erred by Proceeding with the Restitution Hearing in Hernandez's Absence

¶ 19 First, we consider whether a restitution hearing is a proceeding at which a defendant has a right to be present. Because we conclude that it is, we next consider whether counsel can unilaterally waive a defendant's presence. We conclude that counsel cannot do so. Last, because Hernandez did not preserve this issue, we consider whether the trial court committed plain error by proceeding in Hernandez's absence. We conclude that because plain error occurred, the restitution order must be vacated.

A. The Restitution Hearing Is a Proceeding at which a Defendant Has a Right to be Present

¶ 20 Everyone would agree that as a matter of due process, both the United States and Colorado Constitutions "guarantee the right of a criminal defendant to be present at all critical stages of the prosecution." People v. White , 870 P.2d 424, 458 (Colo. 1994). Still, because not every step in a criminal proceeding is a critical stage, "[t]he right to be present is not absolute." Id.

¶ 21 Rather, a "critical stage of criminal proceedings is one where there exists more than a minimal risk that the absence of the defendant might impair his...