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People v. Hernandez

Court of Appeals of Colorado, Third Division

July 25, 2019

The People of the State of Colorado, Plaintiff-Appellee,
v.
Joey Ray Hernandez, Defendant-Appellant.

          Weld County District Court No. 14CR2052 Honorable Thomas J. Quammen, Judge

          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

          WEBB JUDGE

         ¶ 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. And "Crim. P. 43(a) also requires as much, subject to a few exceptions." People v. Janis, 2018 CO 89, ¶ 16 n.2.

         ¶ 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. If the error is unpreserved - but not waived - plain error review applies. See Hagos v. People, 2012 CO 63, ¶ 14. 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. 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.

         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.

         ¶ 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 ...


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