People v. Wilen, A115861.

• Decision Date: 25 July 2008
• Docket Number: No. A115861.,A115861.
• Citation: 165 Cal.App.4th 270,80 Cal. Rptr. 3d 895
• Court: California Court of Appeals Court of Appeals
• Parties: THE PEOPLE, Plaintiff and Respondent, v. MICHAEL CLAUDE WILEN, Defendant and Appellant.

165 Cal.App.4th 270

80 Cal. Rptr. 3d 895

THE PEOPLE, Plaintiff and Respondent, v. MICHAEL CLAUDE WILEN, Defendant and Appellant.

No. A115861.

Court of Appeals of California, First District, Division Two.

July 25, 2008.

Violet Elizabeth Grayson for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Dorian Jung and Jill M. Thayer, Deputy Attorney General, for Plaintiff and Respondent.

OPINION

RICHMAN, J.

This appeal is by a criminal defendant from a postjudgment order directing him to pay $2,631.04. The amount is small, and the odds of collecting it problematic. But the two issues raised by the appeal are, on the surface, as important as any we can confront: (1) Does a defendant who has pleaded guilty to controlled substance crimes and who is subject of a petition for recovery of hazardous cleanup expenses have a right under Health and Safety Code section 11470.2 to have liability for those expenses decided by a jury? and (2) Does the defendant have a right to be present at the hearing when that liability is decided? We conclude that the plain and unambiguous statutory language compels the conclusion that the answer to each question is "Yes." The trial court answered otherwise, refusing a timely demand for a jury, and ruling that defendant had no right to be personally present when the amount of cleanup expenses was determined. In short, the trial court erred on both counts. Nevertheless, given the very limited scope, and impersonal nature, of the issue that would have been put before a jury, we conclude the errors do not qualify as prejudicial. We thus affirm.

BACKGROUND

In July 2004, police discovered defendant Michael Claude Wilen and Thomas Bonnetta operating a methamphetamine laboratory. The salient events with which we are concerned, all of which occurred in 2006, are easily recounted.

On July 28, both defendants entered open pleas of guilty to numerous charges and admitted a number of enhancement allegations. Among the charges admitted were manufacturing methamphetamine (Health & Saf. Code, § 11379.6, subd. (a)) and possessing precursors to that substance (id., § 11383, subd. (c)(1)).

On August 9, the District Attorney of Contra Costa County filed a petition pursuant to Health and Safety Code section 11470.2 for recovery of $6,500 incurred in "seizing, eradicating, or destroying" the methamphetamine defendants had been manufacturing.

On September 15, the trial court sentenced defendant to state prison for a total term of six years eight months; Bonnetta's total term was eight years.¹ The court imposed a "restitution fine" of $1,200 on defendant, and $1,600 on Bonnetta. The reasons for defendant being treated slightly more leniently than Bonnetta were explained by the court as follows: "[T]he Court has viewed Mr. Wilen in a different light than his codefendant, Mr. Bonnetta. Upon my review of the preliminary hearing testimony and the other documents that were submitted, I find that his culpability in this offense is less[] than that of Mr. Bonnetta[]. [¶] There was manufacturing equipment not located in his [defendant's] locked bedroom. He was living with his girlfriend at the time of the offense, although he had a bedroom in Mr. Bonnetta's house for five months, while Mr. Bonnetta had lived in the house for two years.² The house belonged to Mr. Bonnetta. His criminal history, while extensive, is less extensive than Mr. Bonnetta's."

Before defendant was sentenced, the matter of the petition was brought up. While codefendant Bonnetta was being arraigned for sentence, counsel for defendant advised the court "We want to contest it ... I believe Mr. Wilen is entitled to a jury trial on the amount per the statute, so we would ask for a jury trial." The prosecutor responded, "Set it forthwith, please." A moment later, the prosecutor added, "Actually ... because—I think this is a civil matter under Health and Safety Code section 11470.2(b), I don't think their presence is required." The court stated, "I don't believe it's required."

After Bonnetta was sentenced, but before defendant was sentenced, there was some discussion about the absence of supporting documentation.³ During this discussion, the prosecutor stated: "My issue is are we going to have a court hearing or are they going to insist on a jury trial...? If we're going to insist on a jury trial, I want it set at the earliest possible date so that this can be resolved." The court put the matter over for a week, to September 22, the time before the abstract of judgment would be prepared, "and on that date you make your decision. You want a jury trial, you want a court trial, whatever it is that you want."

The hearing on September 22 opened with the district attorney advising the court that the amount sought by the petition was reduced to $4,552.10. Counsel for Bonnetta complained that $2,600 of this amount was "supported by nothing more than a footnote" in the prosecutor's supporting papers, but that his client was nevertheless willing to have the matter heard at that time by the court "and deal with the amount that we just got in court today." The court asked defendant's counsel "are you planning on setting a hearing or not?" Counsel replied "Yeah. [¶] ... [¶] Are we going to agree to this amount today? No." The court then set a "restitution hearing" for October 13.

But there remained the petition as against codefendant Bonnetta. The prosecutor told the court, "I need a jury trial waiver, [¶] ... [¶] Judge, I need a jury trial waiver." This is what followed:

"THE COURT: You want to take it?

"[THE PROSECUTOR]: Yes. [¶] Mr. Bonnetta, you have a statutory right to a jury trial on the petition in this matter. [¶] Do you understand that right?

"DEFENDANT BONNETTA: Yes.

"[THE PROSECUTOR]: And do you agree to give that right up so that only a court will decide the restitution amount?

"DEFENDANT BONNETTA: Yes.

"[THE PROSECUTOR]: Counsel, join and concur?

"[COUNSEL FOR BONNETTA]: Yes.

"[THE PROSECUTOR]: The People also waive jury trial."

There followed an extensive discussion among the court and counsel for the three parties concerning the nature of the proceeding and whether it could be conducted in the absence of defendants. The court and the prosecutor believed that it could, and should not in any event delay the start of defendants' prison commitments.⁴ The hearing ended with the prosecutor stating, "I need a jury trial waiver from Mr. Wilen." Defendant's counsel replied that "I want[] to see whether he's going to have the right to be here or not before he decides whether he's going to be waiving jury trial or not."

At the hearing the court gave defendant's counsel 72 hours to produce a letter brief with authority showing that defendant had a right to be present at the next hearing on October 13. On September 25, counsel for defendant submitted a memorandum to the court, arguing that defendant was entitled to be present at the hearing by virtue of Penal Code section 977, and that such right was also inherent in the concept of the jury trial promised by Health and Safety Code section 11470.2.

That same day the prosecutor submitted a letter brief that disputed both of defendant's points. First, citing People v. Brach (2002) 95 Cal.App.4th 571 (Brach), the prosecutor contended that "the constitutional right to jury trial is inapplicable to any restitution hearing, including the hearing in such a case as this one." Second, "There is no provision within section 11470.2 for the personal presence of the defendant. Accordingly, defendant has no constitutional or statutory right to be present at the restitution hearing in this case."

Neither defendant nor Bonnetta was present on October 13. The hearing opened with their counsel again maintaining that their clients had a right to be present. Reversing the course she had taken earlier, the prosecutor now argued that neither defendant had a right to a jury trial: "It's the People's position that where the defendant has waived jury trial in order to admit or plead no contest to the charges underlying the restitution petition, then a new [sic] jury to decide the issues for restitution lies in the discretion of the trial court."

Counsel for defendant responded "this petition wasn't filed until after his waiver of a jury trial had already been entered and accepted by the Court, so he clearly was not told or informed or even knew that the People were going for ... restitution under 11470.2." Then, addressing the language of Health and Safety Code section 11470.2,⁵ counsel continued: "I think when it talks about in the discretion of the judge, that's saying whether it's the same jury or whether it should be ... a new jury in the discretion of the Court comma unless waived by the consent of all parties. [¶] I really believe that the way that's written is that it's up to the Court to decide whether it should be the same jury or a different jury. That's something they're leaving to the discretion of the Court. [¶] But in whether the defendant gets a jury trial, I don't believe the Court has any discretion on that. And he has not personally waived that. And they specifically add that at the end, that this is all unless waived."

Apparently agreeing with the prosecutor about the impact of Brach, supra, 95 Cal.App.4th 571, the trial court ruled that defendant "does not have [a] right to be present, and therefore I'm going to deny the request to have him present. [¶] Now the second issue, ... is whether ... he does have a right to the jury trial when there has not been a jury impaneled for the purposes of the guilt proceedings. [¶] Under Brach it seems to state in its discussion that he is not entitled to a jury trial. [¶] ... [¶] ... There is no constitutional right to a jury trial on issues of restitution, and there is no such right under Health and Safety Code section 11470.2 to determine...