Filed 2/29/16 (Opinion modified and certified for publication 3/30/16. Modified opinion below.)

                                CERTIFIED FOR PUBLICATION
                             IN THE APPELLATE DIVISION OF THE
                               SUPERIOR COURT OF CALIFORNIA
                                          COUNTY OF ORANGE


THE PEOPLE,                                                     CASE NO. 30-2014-00752821

    Plaintiff and Respondent,                                   (Super. Ct. No. 12NM00343)

        v.                                                      OPINION

GANESH SUBRAMANYAN,

    Defendant and Respondent,


CRAIG ODEN,

     Real Party in Interest and Appellant.



        Appeal from a judgment of the Superior Court of Orange County, North Justice
Center, James H. Poole, Judge. Dismissed.
                                      *                 *                *
        Victim and Appellant Craig Oden appeals the trial court‟s order denying him
further restitution. On appeal, Oden argues that the trial court erred by denying him
restitution for the attorney‟s fees he paid his civil lawyer. As explained below, Oden, as
a crime victim, lacks standing to bring this appeal on his own. For this reason, we
dismiss the appeal.




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                            Factual and Procedural Background
       On January 11, 2012, the District Attorney on behalf of Plaintiff, the People, filed
a complaint against Defendant and Respondent Ganesh Subramanyan alleging that he
was driving under the influence of alcohol with a blood alcohol concentration of .20
percent or more and caused a collision resulting in bodily injury to Oden. (Veh. Code, §§
23153, subds. (a), (b), 23538, subd. (b)(2).) Subramanyan pled not guilty. On August
23, 2012, the People amended the complaint to add counts 3 and 4 for driving under the
influence of alcohol and driving with a blood alcohol concentration of .08 percent or
more (Veh. Code, § 23152, subds. (a), (b)), and dismissed counts 1 and 2. Subramanyan
then pled guilty to the newly added charges. The trial court sentenced Subramanyan to
three years of informal probation, payment of a fine of $390 (with a $50 credit for time
served), service of time in jail (stayed pending completion of community service and
CALTRANS), and payment of restitution on all counts, including the dismissed ones, as
determined by Victim Witness. The trial court awarded Oden restitution of $12,800 at
sentencing for lost wages between the date of the collision and sentencing.
       On September 26, 2014, the trial court heard Oden‟s motion for additional
restitution. Oden was seeking an additional $109,803.84, to pay for Oden‟s attorney‟s
fees incurred in Oden‟s civil action against Subramanyan. The amount sought was in
addition to the $12,800 restitution Oden had already received. After a hearing and the
admission of multiple exhibits, the trial court denied the motion. On October 22, 2014,
Oden timely filed his notice of appeal.


                         Oden Does Not Have Standing to Appeal
       Defendant argues that Oden does not have standing to appeal because Oden
appealed the order through his private counsel and the People are not a party to the
appeal. Oden cites to California Constitution, Article I, section 28(b)(13) as authority for
his standing to bring this appeal.


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       We are not aware of any case authority that specifically indicates whether the
People are required to be a party to the appeal of a restitution order. There are, however,
two cases discussing whether the People must be a party and make an appearance in a
restitution hearing in the trial court. The first case is People v. Dehle (2008) 166
Cal.App.4th 1380. In Dehle, the defendant was convicted of vehicular manslaughter and
ordered to make restitution to the decedent‟s surviving spouse. (Id. at p. 1383.) The
prosecutor requested that the trial court allow counsel for the victim to conduct the
restitution hearing on her behalf. (Id. at p. 1385.) The defendant objected. (Ibid.) When
the restitution hearing took place, neither the district attorney nor his deputies appeared;
only the victim‟s attorney did. (Ibid.) Over the defendant‟s objection the hearing went
forward, concluding with a restitution award of approximately $920,000, less amounts
paid in settlement of a civil lawsuit. (Id. at pp. 1385-1386.)
       The defendant appealed arguing, among other things, that the restitution order was
void because it was prosecuted by the victim‟s private counsel rather than the district
attorney‟s office. The Third District Court of Appeal agreed. (Dehle, supra, 166
Cal.App.4th at p. 1386.) The Dehle court noted that private prosecutions are not allowed
in California, and the role of the district attorney is to exercise prosecutorial discretion
and act on behalf of the public at large. (Id. at pp. 1387-1388.) The Dehle court
indicated that the People are required to be a part of a restitution hearing so that they may
be heard on issues that affect “a fair and just result on the question of victim restitution.”
(Id. at pp. 1388-1389.) Further, “[t]he goals of a restitution hearing” are different from
those of a civil action and “are matters that the People expect will be achieved in a fair
and just manner which can only be accomplished with the participation of the district
attorney acting in accordance with his responsibilities to the criminal justice system.”
(Id. at p. 1389.)
       Shortly after Dehle was decided, the electorate passed Proposition 9, the Victims‟
Bill of Rights Act of 2008 (hereafter referred to as Marsy‟s Law), which added to the
California Constitution a number of rights which may be exercised by crime victims,
including the right to recover restitution from convicted criminals. (See Cal. Const., Art.

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I, § 28(b)(13).) It further provided that “A victim, the retained attorney of a victim, a
lawful representative of the victim, or the prosecuting attorney upon request of the
victim, may enforce the rights enumerated in subdivision (b) in any trial or appellate
court with jurisdiction over the case as a matter of right.” (Cal. Const., Art. I, § 28(c)(1)
[italics added].)
       The Third District Court of Appeal considered another appeal of a restitution order
after Marsy‟s Law was passed, People v. Smith (2011) 198 Cal.App.4th 415. In Smith,
the victim‟s attorney filed a memorandum in support of restitution. (Id. at pp. 431-432.)
At the hearing, attorneys for the victim and defendant argued to the trial court; a deputy
district attorney was in attendance, but did not participate in the presentation of evidence.
(Id. at p. 432.) The deputy district attorney advised the trial court that the People‟s
interests were consistent with those of the victim. (Id. at p. 437.) Further, upon
questioning by the trial court, the People agreed it was their desire for the victim‟s
attorney to “assist in the presentation at the restitution hearing.” (Ibid.) The defendant
objected to the participation by the victim‟s attorney, but the trial court overruled the
objection because the prosecutor was present at the hearing, distinguishing Dehle. (Id., at
p. 432.)
       On appeal, the defendant, relying on Dehle, contended the restitution hearing was
invalid because the victim‟s attorney conducted the hearing even though a deputy district
attorney was present but did not participate. (Id. at pp. 437-438.) The Court of Appeal
asked the parties to explain how the passage of Marsy‟s Law affected the validity of the
restitution hearing. (Id. at p. 438.) The Smith court concluded that the trial court did not
err because, unlike Dehle, the prosecutor was present and represented the People‟s
interests at the restitution hearing. (Id. at p. 438.) The Smith court further decided that
Marsy‟s Law provided that the victim‟s counsel could appear and present evidence at the
restitution hearing. (Ibid.) The court stated, “We need not reach the question
characterized by defendant because, although Doe‟s attorney presented the evidence and
was allowed to argue at defendant‟s restitution hearing, the prosecutor was also present,
representing the People‟s interests.” (Id. at p. 439.)

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       In this appeal, the court docket reflects that the People are not a party to this
appeal and they have not made any appearance. The People were not served with the
notice of appeal, although they were served with Oden‟s opening brief. The People have
not filed any briefs and did not appear at oral argument. The People have not expressed
any opinion on the appeal. Thus, we must determine whether Dehle remains applicable
and its holdings survive the enactment of Marsy‟s Law.
       “In interpreting a voter initiative, including one amending the state Constitution,
we apply the same principles governing statutory construction. „We first consider the
initiative‟s language, giving the words their ordinary meaning and construing this
language in the context of the statute and initiative as a whole. If the language is not
ambiguous, we presume the voters intended the meaning apparent from that language,
and we may not add to the statute or rewrite it to conform to some assumed intent not
apparent from that language. If the language is ambiguous, courts may consider ballot
summaries and arguments in determining the voters‟ intent and understanding of a ballot
measure. [Citation.]‟ [Citation.] Our job is to ascertain and declare what is in terms or in
substance contained in the provision, not to insert what has been omitted or omit what has
been inserted. [Citation.] We adopt a construction „that will effectuate the voters‟ intent,
giv[ing] meaning to each word and phrase, and avoid absurd results. [Citations.]‟
[Citation.]” (Santos v. Brown (2015) 238 Cal.App.4th 398, 409.)
       As written, Marsy‟s Law indicates that a victim, his or her attorney or
representative, or the district attorney “may enforce the rights enumerated in subdivision
(b) . . . .” and that these rights “are personally enforceable by victims . . . .” (Cal. Const.,
Art. I, § 28 (c)(1), (f).) The rights Marsy‟s Law created with respect to restitution are (1)
“the right to seek and secure restitution . . . ,” (2) to an order of restitution “in every case
. . . in which a crime victim suffers a loss,” and (3) first priority of payment to the victim
when the defendant receives money or property. (Cal. Const., Art. I, § 28(b), subd. (13).)
Although Marsy‟s law permits a victim to enforce these rights personally, nothing in
Marsy‟s law undermines Dehle‟s requirement that the prosecutor be present to represent


                                                5
the interests of the People before the court when the court determines the amount of
restitution.
       More importantly, Marsy‟s Law does not permit a victim to stand in the role of the
prosecutor and initiate a criminal prosecution or criminal appeal. The instant appeal
draws a stark distinction between two important, yet vastly different interpretations of the
constitutional amendment. Oden advocates for an interpretation that an appeal can be
initiated by a victim or victim‟s attorney. In contrast, Subramanyan contends that the
victim may participate in an appeal, but only if the appeal has been initiated by the
People or the defendant. For the reasons explained below, we adopt the latter
interpretation.
       There is no provision in Marsy‟s Law that specifically permits a victim to appeal a
restitution order. The Penal Code specifically directs that appeals are limited to the
People or the defendant. (Pen. Code, § 1466.) Penal Code section 1202.4 does not
authorize an appeal by the victim after a restitution hearing.
       Nothing in the legislative intent or the amendment itself allows the victim to
substitute in and replace the role of the prosecutor. “ „In California, all criminal
prosecutions are conducted in the name of the People of the State of California and by
their authority. (Gov. Code, § 100, subd. (b).) California law does not authorize private
prosecutions. Instead, “[t]he prosecution of criminal offenses on behalf of the People is
the sole responsibility of the public prosecutor . . . . [¶][who] ordinarily has sole
discretion to determine whom to charge, what charges to file and pursue, and what
punishment to seek. [Citation.] No private citizen, however personally aggrieved, may
institute criminal proceedings independently [citation], and the prosecutor‟s own
discretion is not subject to judicial control at the behest of persons other than the
accused.” [Citation.]‟
       “ „The district attorney of each county is the public prosecutor, vested with the
power to conduct on behalf of the People all prosecutions for public offenses within the
county. [Citations.] . . . . [¶] . . . . [¶] . . . . “The prosecutor speaks not solely for the
victim, or the police, or those who support them, but for all the People. That body of

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„The People‟ includes the defendant and his family and those who care about him. It also
includes the vast majority of citizens who know nothing about a particular case, but who
give over to the prosecutor the authority to seek a just result in their name.” [Citation.]
Thus the district attorney is expected to exercise his or her discretionary functions in the
interests of the People at large, and not under the influence or control of an interested
individual. [Citation.]‟ ” (Dehle, supra, 166 Cal.App.4th at 1387-1388.)
       Nothing in Marsy‟s Law established a private vehicle for victims to initiate
criminal proceedings. “The prosecution of criminal offenses on behalf of the People is
the sole responsibility of the public prosecutor. (Gov. Code, §§ 26500, 26501; see Cal.
Const., art. V, § 13.)” (Dix v. Superior Court (1991) 53 Cal.3d 442, 451.) By the same
reasoning, once the judgment was entered at the trial court, only the prosecutor, acting on
behalf of the People, or the defendant could initiate the appeal. If such an appeal were
initiated the victim could then participate pursuant to Marsy‟s Law. Similar to the
situation in Dehle, the prosecutor‟s absence from this appeal is inconsistent with the
prosecutor‟s obligation “to exercise his or her discretionary functions in the interest of the
People at large, and not under the influence or control of an interested individual.
[Citation.]” (Dehle, supra, 166 Cal.App.4th at p. 1388.)
       Because the District Attorney did not file this appeal and has not appeared in this
appeal, this appeal must be dismissed for lack of standing.


                                         Disposition
       The appeal is dismissed.




        Ronald Bauer                  Walter Schwarm                    Richard Lee
       Presiding Judge                     Judge                           Judge
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Trial Court: Orange County Superior Court

Trial Judge: Hon. James H. Poole


Counsel:

Scolinos, Sheldon & Nevell, Todd F. Nevell, for Real Party in Interest and Appellant

The Law Office of Brian Gurwitz, Brian N. Gurwitz, for Defendant and Respondent

No appearance for Plaintiff and Respondent




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