Filed 8/23/16 P. v. Suade CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F072637
         Plaintiff and Respondent,
                                                                              (Super. Ct. No. SUF30038)
                   v.

DAVID SUADE,                                                                             OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Merced County. Ronald W.
Hansen, Judge.
         Sylvia W. Beckham, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Lewis A.
Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-

*        Before Gomes, Acting P.J., Franson, J. and Peña, J.
                                      INTRODUCTION
       Appellant David Suade pled no contest to one count of attempted murder, in
exchange for dismissal of other counts and enhancements and an agreed upon five-year
prison term. Suade challenges the trial court’s restitution order, contending the award
was an abuse of discretion and he was denied due process because he was not present at
the restitution hearing. We affirm.
                    FACTUAL AND PROCEDURAL SUMMARY
       On June 21, 2005, Suade, a Norteno gang member, approached a Sureno gang
member on the street and stabbed him four times. Suade then left the scene. On
September 21, 2005, Suade assaulted a student traveling home from school by first
knocking the student to the ground and then kicking the student in the head multiple
times. After the assault on the student, Suade left the scene.
       On April 19, 2006, Suade was charged with attempted murder (count 1) and
assault by means of force like to produce great bodily injury (count 2) of victim 1; assault
by means of force likely to produce great bodily injury (count 3) of victim 2; and active
participation in a criminal street gang (count 4). With respect to counts 1 and 3, it also
was alleged that Suade personally inflicted great bodily injury on both victims and that
each offense was committed for the benefit of a criminal street gang.
       On July 17, 2006, Suade pled no contest to count 1, attempted murder, and
stipulated to a five-year prison term. In exchange for his plea, all remaining counts and
enhancements would be dismissed. Suade also entered a waiver pursuant to People v.
Harvey (1979) 25 Cal.3d 754, for victim restitution.
       Suade was sentenced on August 14, 2006 to a term of five years in prison and was
awarded 325 days of custody credits. A restitution fine of $1,000 was imposed pursuant




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to Penal Code1 section 1202.4, subdivision (b) and a $1,000 fine pursuant to section
1202.45 was stayed.
       On July 24, 2015, the Merced County District Attorney filed a notice of motion
and motion to order restitution payments of $10,455.34 to the California Victim
Compensation and Government Claims Board (hereafter Board) as reimbursement for
payments made to the victim from the Restitution Fund. The amount was specified to be
reimbursement for victim medical expenses.
       A hearing on the motion was held on August 18, 2015. At that time, the trial court
noted that the motion asked for $10,455.34 in medical bills and asked if defense counsel
wanted to “write Suade a letter.” Defense counsel responded, “Sure …. ” The matter
was continued to September 14, 2015.
       At the September 14, 2015 hearing, the transcript notes “All parties being present
…. ” It is unclear whether Suade was personally present, but defense counsel appeared
and stated the matter was “submitted.” The trial court ordered Suade to pay restitution in
the sum of $10,455.34 to the “Victim Compensation Board.”
       An abstract of judgment for the restitution amount was filed September 21, 2015.
On October 29, 2015, Suade filed a notice of appeal of the restitution judgment.
                                        DISCUSSION
       Suade contends the trial court abused its discretion in awarding restitution because
“a specific kind of documentary evidence” is required to establish a restitution award
under section 1202.4 and the People did not provide that specific evidence. He also
contends his due process rights were violated because restitution was awarded at a
hearing at which he was not personally present. We will briefly address Suade’s
contentions; however, because he failed to raise these issues in the trial court the issues
are forfeited for purposes of appeal.

1      References to code sections are to the Penal Code unless otherwise specified.


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       I.      RESTITUTION AWARD
       Suade contends “a specific kind of documentary evidence” is required to establish
a restitution award under section 1202.4 and absent that specific type of evidence, an
award of restitution is an abuse of discretion. Section 1202.4, subdivision (f)(4)
addresses restitution when assistance payments have been made by the Restitution Fund
on behalf of a victim and provides a method by which these amounts are to be
established.
       Failure to object in the trial court to the sufficiency of the evidence to support a
restitution award constitutes a waiver of the issue. (People v. Gibson (1994) 27
Cal.App.4th 1466, 1468-1470.) A failure to object in the trial court to the amount of a
restitution award likewise constitutes a waiver of the issue on appeal. (People v.
Anderson (2010) 50 Cal.4th 19, 26 & fn. 6.)
       At the initial restitution hearing, the trial court stated on the record the amount of
restitution requested, $10,455.34, and that the amount was for “medical bills.” Defense
counsel apparently was going to “write Suade a letter” about the restitution claim and the
hearing was continued to allow for this communication. At the continued hearing on
restitution, no objection was made in the trial court to the type of evidence used to
establish the restitution amount, or the amount of restitution awarded. Consequently,
Suade has forfeited this contention.
       Regardless, the People are required only to make a prima facie case for restitution,
which can be established by a victim’s testimony, or a claim, or a statement of the
amount of economic loss. (People v. Sy (2014) 223 Cal.App.4th 44, 63.) Here, the
People presented the request for restitution submitted by the Board, which provided an
itemized detail of the amount requested and the basis for the claim. Because the Board is
a state agency and claims reports are prepared as part of the official duties of the Board,
these claims reports have been deemed inherently reliable. (People v. Cain (2000) 82
Cal.App.4th 81, 87; Gov. Code, § 13901.) The amount of restitution is not affected by

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any indemnification or subrogation rights of a third party. (People v. Garcia (2010) 185
Cal.App.4th 1203, 1216; § 1202.4, subd. (f)(2).) The amount requested was
reimbursement for medical expenses paid, which is a proper basis for restitution.
(§ 1202.4, subd. (f)(3)(B).)
        Once the People made a prima facie case, the burden shifted to Suade to provide
evidence that would contradict the amount claimed. (People v. Sy, supra, 223
Cal.App.4th at p. 63.) No such evidence was presented; defense counsel submitted on the
evidence presented by the People.
        The trial court did not abuse its discretion in ordering $10,455.34 in restitution, the
amount claimed by the Board. (People v. Giordano (2007) 42 Cal.4th 644, 663.)
        II.    DUE PROCESS
        Suade claims he was denied due process because he was not present at the
restitution hearing. We disagree.
        Suade failed to assert his due process right in the trial court. The failure to raise a
due process issue in the trial court constitutes a forfeiture of the issue on appeal. (People
v. McKinnon (2011) 52 Cal.4th 610, 638; In re Sheena K. (2007) 40 Cal.4th 875, 880-
881.)
        Regardless, restitution hearings require fewer due process protections than
criminal hearings determining guilt. (People v. Giordano, supra, 42 Cal.4th at p. 662, fn.
6.) When a restitution hearing is held after sentencing, as it was here, there is no
possibility that the restitution hearing could expose a defendant to a greater sentence.
(People v. Millard (2009) 175 Cal.App.4th 7, 36, fn. 11.) A defendant’s due process
rights regarding restitution are protected when the defendant has notice of the amount of
restitution claimed and is afforded an opportunity to challenge the claimed amount.
(People v. Cain, supra, 82 Cal.App.4th at p. 86.)
        Suade was aware, through defense counsel, of the amount of the claim for
restitution as of the initial hearing on August 18, 2015. We presume defense counsel

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communicated with his client and that Suade had actual notice of the claimed amount
well before the continued hearing on September 14, 2015, because Suade has raised no
issue of ineffective assistance of counsel. This nearly one-month delay, which was to
allow Suade to be notified of the exact amount of the claim, afforded ample opportunity
for Suade to object to the claim, if he so desired. (People v. Amor (1974) 12 Cal.3d 20,
29.)
                                     DISPOSITION
       The judgment is affirmed.




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