Filed 8/4/21 P. v. Crawley CA1/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A162244
v.
MARC DELANEY CRAWLEY, (Solano County
Super. Ct. No. FCR323242)
Defendant and Appellant.
Defendant Marc Delaney Crawley appeals from a postconviction order
granting the People’s motion to modify his sentence to require him to pay
victim restitution. Crawley’s appellate counsel has filed a brief raising no
legal issues and asking this court to independently review the record
pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). Counsel informed
Crawley of his right to file a supplemental brief, and he has not filed one.
Upon our Wende review, we conclude there are no arguable appellate issues
requiring further briefing and affirm.
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BACKGROUND1
In 2016, Crawley drank beer and then crashed his car on a freeway,
killing one victim and injuring two others. In 2019, Crawley pleaded no
contest to charges for gross vehicular manslaughter while intoxicated
(Pen. Code, § 191.5, subd. (a)),2 driving under the influence causing injury
(Veh. Code, § 23153, subd. (a)), and driving with at least a 0.08 percent blood
alcohol content causing injury (id., § 23153, subd. (b)), as well as
enhancement allegations that Crawley personally inflicted great bodily injury
(§ 12022.7, subd. (a)), and caused great bodily injury or death (Veh. Code,
§ 23558).
The trial court sentenced Crawley to a term of 11 years in state prison.
The sentence neglected to make any provision for direct victim restitution as
required under section 1202.4, subdivision (f).
In June 2020, we affirmed the judgment and denied Crawley’s petition
for writ of habeas corpus. (People v. Crawley, supra, A157317.)
In July 2020, the People filed a motion pursuant to section 1202.46
requesting that the trial court modify Crawley’s sentence to require him to
pay restitution in the amount of $8,775.00 to the California Victim
Compensation Board (Board) as reimbursement for expenses for funeral and
mental health services it had paid for on behalf of the deceased victim’s
family and one of the other victims—plus an additional $1,290.27 to the
mother of the deceased victim for funeral expenses she had paid for out of
pocket. The People submitted a receipt of payment to Civic Center Chapel
made on behalf of the deceased victim’s mother in the amount of $1,290.27.
1 We draw our facts pertaining to the underlying offenses from our
prior opinion in People v. Crawley (June 25, 2020, A157317 [nonpub. opn.]),
which is also part of the record of Crawley’s present appeal.
2 Further undesignated statutory references are to the Penal Code.
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The People also provided documentation from the Board noting that
restitution in the amount of $8,775.00 had been requested by the victims and
paid for by the Board. Crawley did not file an opposition.
On March 5, 2021, the trial court conducted a restitution hearing,
where counsel for Crawley appeared on his behalf.3 The prosecutor informed
the trial court that Crawley was objecting to the $1,290.27 claimed to have
been paid by the deceased victim’s mother to Civic Center Chapel for funeral
expenses, and not to the $8,775.00 requested by the Board. With respect to
the $1,290.27, Crawley’s counsel stated: “There’s no documentation, and . . .
the victim’s surviving family was paid for funeral expenses. . . . And I asked
for documentation, and all I got was documentation on the state board. And
that’s pretty much pro forma of, you know, they say they paid it Mr. Crawley
is unfortunately stuck with whatever they paid, if presumed to be reasonable,
and it doesn’t look unreasonable to me. But I am concerned about Mr.
Crawley the other amount of money. [Sic.] I don’t see sufficient
documentation.”
The prosecutor responded: “[T]his is a receipt for funeral related
services and expenses provided by the victim, and under the current state of
law, . . . once a receipt is provided, the burden shifts to the defense to
challenge that. And I can represent here that this was a receipt provided by
the victim for funeral related expenses. It was a separate expense from that
paid out from [the Board].”
The trial court then asked the parties if they were submitting the
matter, and counsel for Crawley replied, “Yes.”
3 Crawley did not personally appear at the hearing. Approximately two
months before the hearing, his counsel advised the trial court in a letter
stating, “[m]y client would like to waive his appearance on March 5, 2021 at
10:00 a.m. for his Restitution Hearing.”
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The trial court granted the People’s motion to modify Crawley’s
sentence and ordered him to pay victim restitution in the amounts requested.
Crawley appeals. His appointed counsel filed a Wende brief and
informed him he had a right to file a supplemental brief on his own behalf
within 30 days. Crawley did not do so.
DISCUSSION
Preliminarily, we note that whether the protections afforded by Wende
or its federal constitutional counterpart, Anders v. California (1967) 386 U.S.
738 (Anders), apply to an appeal from a postconviction order, such as the
restitution order here, remains an open question. Our Supreme Court has
not spoken. The Anders/Wende procedures address appointed counsel’s
representation of an indigent criminal defendant in the first appeal as a
matter of right, and courts have been reluctant to expand their application to
other proceedings or appeals. (See People v. Serrano (2012) 211 Cal.App.4th
496, 500–501, 503 [Anders/Wende review not available to defendant facing
deportation and challenging postjudgment motion to vacate judgment];
Conservatorship of Ben C. (2007) 40 Cal.4th 529, 536–537 [Anders/Wende
review not required in conservatorship proceedings]; People v. Thurman
(2007) 157 Cal.App.4th 36, 44–45, 47 [Anders/Wende not applicable in
postconviction motions for a new trial]; In re Sade C. (1996) 13 Cal.4th 952,
981–984 [Anders review not required in cases affecting parental rights];
Pennsylvania v. Finley (1987) 481 U.S. 551, 555, 557 [Anders review not
available in postconviction proceedings].)
Moreover, appellate courts are not in unison with respect to whether
we should exercise our discretion to conduct an independent review of the
record in an appeal from the denial of postconviction relief if a defendant does
not respond to an invitation to file a supplemental brief. (E.g., People v. Cole
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(2020) 52 Cal.App.5th 1023, 1038–1039, review granted Oct. 14, 2020,
S264278 [holding appellate courts are not required to independently review
record when no supplemental brief filed and may dismiss the appeal as
abandoned]; People v. Flores (2020) 54 Cal.App.5th 266, 269, 273–274
[although not required, a reviewing court “can and should . . . in the interests
of justice” independently review the record even if defendant did not file a
supplemental brief]; People v. Scott (2020) 58 Cal.App.5th 1127, 1130–1132,
review granted Mar. 17, 2021, S266853 [following Cole]; People v. Gallo
(2020) 57 Cal.App.5th 594, 598–599 [following Flores]; People v. Allison
(2020) 55 Cal.App.5th 449, 456 [same].) We need not wade into this debate,
which is currently pending review by our Supreme Court. (See People v.
Scott, supra, 58 Cal.App.5th 1127, review granted Mar. 17, 2021, S266853.)
In the absence of Supreme Court authority, we believe it prudent to
adhere to Wende in the present case, where counsel has undertaken to
comply with Wende requirements. Upon conducting an independent review
of the record here, we conclude there are no arguable appellate issues
requiring further briefing.
Except in circumstances not relevant here, “in every case in which a
victim has suffered economic loss as a result of the defendant’s conduct, the
court shall require that the defendant make restitution to the victim or
victims in an amount established by court order, based on the amount of loss
claimed by the victim or victims or any other showing to the court. . . .”
(§ 1202.4, subd. (f).) “Victim” includes “[t]he immediate surviving family of
the actual victim.” (§ 1202.4, subd. (k)(1).) Mental health counseling
expenses are considered economic loss for purposes of restitution. (§ 1202.4,
subd. (f)(3)(C).) So are funeral expenses, which are recoverable by the family
of the deceased victim. (See § 1202.4, subd. (f)(4)(B); People v. Rubics (2006)
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136 Cal.App.4th 452, 461, disapproved on another ground as stated in
People v. Martinez (2017) 2 Cal.5th 1093, 1107, fn. 3.)
Furthermore, appellate courts have declined to extend the rule of
People v. Dueñas (2019) 30 Cal.App.5th 1157—holding due process requires a
determination of a defendant’s present ability to pay before imposing a
restitution fine under section 1202.4, subdivision (b)—to victim restitution
under section 1202.4, subdivision (f). (See People v. Evans (2019)
39 Cal.App.5th 771, 776–778; accord, People v. Pack-Ramirez (2020)
56 Cal.App.5th 851, 859; People v. Abrahamian (2020) 45 Cal.App.5th 314,
338; People v. Allen (2019) 41 Cal.App.5th 312, 326.)
“The standard of proof at a restitution hearing is preponderance of the
evidence, not reasonable doubt.” (People v. Holmberg (2011) 195 Cal.App.4th
1310, 1319.) The victim must make “a prima facie showing of economic losses
incurred as a result of the defendant’s criminal acts,” and once the victim
does so, “the burden shifts to the defendant to disprove the amount of losses
claimed by the victim.” (People v. Taylor (2011) 197 Cal.App.4th 757, 761.)
We review a restitution order for abuse of discretion, broadly and
liberally construing a victim’s restitution right. (People v. Taylor, supra,
197 Cal.App.4th at p. 761.) “ ‘ “When there is a factual and rational basis for
the amount of restitution ordered by the trial court, no abuse of discretion
will be found by the reviewing court.” ’ ” (In re Johnny M. (2002)
100 Cal.App.4th 1128, 1132.)
Under these legal standards, there is no question that the prosecution’s
presentation of documentation showing the costs of the items claimed by the
mother of the deceased victim and the Board constituted a prima facie
showing for the amount of restitution ordered by the trial court, and that
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Crawley submitted nothing to rebut these stated losses. Thus, the restitution
award was reasonable.
We further conclude that Crawley’s absence from the restitution
hearing does not warrant disturbance of the restitution award. Because
restitution hearings held pursuant to section 1202.4 are sentencing hearings,
they are “hearings which are a significant part of a criminal prosecution.”
(People v. Dehle (2008) 166 Cal.App.4th 1380, 1386.) A defendant may waive
his or her right to be present at a critical stage of a criminal proceeding.
(People v. Mendoza (2016) 62 Cal.4th 856, 898–899.) Defense counsel may
waive the defendant’s presence at a critical stage of criminal prosecution,
“but only if there is evidence that the defendant consented to the waiver.
[Citations.] At a minimum, there must be some evidence that the defendant
understood the right he was waiving and the consequences of doing so.”
(People v. Davis (2005) 36 Cal.4th 510, 532 (Davis).) Here, the record shows
that defense counsel represented to the court that Crawley informed counsel
he “would like to waive his appearance” at the restitution hearing.
Assuming this was insufficient to establish Crawley knowingly and
intelligently waived his right to presence at the hearing, we would conclude
his absence from the hearing was harmless beyond a reasonable doubt. (See
Davis, supra, 36 Cal.4th at p. 532.) Here, Crawley’s interests were
represented by counsel at the restitution hearing. Further, as discussed,
there is no dispute that the victims were entitled to restitution, the amounts
sought by the Board and the mother of the deceased victim were
substantiated by documentation, and Crawley did not come forward with any
evidence to show that the claimed losses were unreasonable. Thus, the
record contains no evidence that his presence at the restitution hearing
would have had any impact at all on the amounts of restitution awarded. We
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are therefore persuaded that any error in excluding Crawley from the
restitution hearing is harmless beyond a reasonable doubt.
In sum and in short, there was nothing arguable about the trial court’s
victim restitution order.
DISPOSITION
The order appealed from is affirmed.
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_________________________
Richman, J.
We concur:
_________________________
Kline, P.J.
_________________________
Stewart, J.
People v. Crawley (A162244)
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