Monday, February 07, 2011

DUI Appeal of the Day (DAD) - The Right to Contest Restitution

In People v. Smith, Not Reported in Cal.Rptr.3d, 2011 WL 288457 (Cal.App. 6 Dist.), the defendant claimed on appeal that he was deprived of his right to due process when, after pleading guilty to DUI and Inflicting Great Bodily harm, the court ordered defendant to pay $285,525.65 in restitution for the medical bills of the boy who defendant's vehicle had struck and seriously injured. At a subsequent hearing, the court modified the restitution order, again over defendant's objection, so that, instead of the restitution being payable to the boy, the bulk of the money would go to “Healthy Families” and the remaining amount would be paid to the boy's mother. Defendant was never afforded a hearing on the amount of restitution. Defendant's trial counsel objected to the court setting the amount of restitution. The defendant on appeal cited to an earlier case in support of his right to a hearing:

“The defendant has the right to a hearing before a judge to dispute the determination of the amount of restitution.” (Pen.Code, § 1202.4, subd. (f)(1).) “A defendant must be afforded a reasonable opportunity to be heard on the issue of restitution.” ( People v. Sandoval (1989) 206 Cal.App.3d 1544, 1550 ( Sandoval ).) In Sandoval, the probation report noted the amount of damage but did not recommend that restitution be ordered in that amount. At the sentencing hearing, the court imposed restitution in that amount. Because this order was “unexpected,” the Court of Appeal found that the defendant had been deprived of an opportunity to dispute the amount of restitution. ( Sandoval, at p. 1550.)

The appellate court in the instant case agreed with the defendant:

Here, the probation report did not recommend that the court set the amount of restitution, and defendant's trial counsel had apparently just received the documentation regarding the amount of restitution on the day of the sentencing hearing. Defendant objected and sought the opportunity to contest the amount, but the court did not afford him that opportunity. Hence, as in Sandoval, defendant was deprived of his statutory right to contest the amount of restitution. A remand for a restitution hearing is the appropriate disposition.

Editor's note: This case is helpful in those circumstances where a prosecutor or court feel the need to pressure a defense counsel. Additionally, during these hearings, it may turn out that some of the bills were reduced by medicare, medicaid, or duplicates, etc. It remains the obligation of the defense attorney to verify that all amounts are accurate, and that a defendant's rights are not violated in all aspects of a case.

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