SIMONS, J. —
Defendant Eugene Martin Hannon (appellant) appeals from the trial court's restitution award. He contends the court abused its discretion in awarding restitution for attorney's fees, lost wages, and travel expenses incurred by the victim, and claims trial counsel was ineffective during the restitution hearing. This court granted the victim's request to file an impact statement on appeal. In the unpublished portion of this opinion, we reject appellant's challenges to the trial court's restitution award. In the published portion, we conclude the victim is entitled to file a victim impact statement on appeal, pursuant to article I, section 28 of the California Constitution, as amended by the Victims' Bill of Rights Act of 2008, also known as Marsy's Law, adopted by voter initiative Proposition 9 in 2008. We also decide the victim's right to file this impact statement does not permit her to present legal issues not raised by appellant or facts not in the record below.
On August 27, 2012, a felony complaint charged appellant with grand theft by embezzlement by a fiduciary (Pen. Code, §§ 487, subd. (a), 506). Appellant, an attorney, represented Tyrone Barber in family court and civil court matters against the victim, Barber's former domestic partner, Dr. Rose Magno. On December 13, 2006, the parties settled some of their outstanding disputes, and agreed that Barber would fund a college trust for their three children. Barber paid a total of $27,500.32 to appellant as the trustee of the children's funds and authorized appellant to open a trust account with Union Bank of California for the children.
In February 2011, the victim became aware that the funds for her children had been misappropriated and appellant may have used the money to reimburse himself to cover legal fees owed by Barber. In August 2012, the criminal complaint was filed, and, in September 2013, appellant pled no contest to misdemeanor theft by embezzlement. The trial court placed appellant on probation for two years, ordered him to perform 240 hours of community service, and ordered him to pay restitution in an amount to be determined.
I. Appellant's Challenges to the Restitution Award
II. Dr. Magno's Victim Impact Statement
During the pendency of the present appeal, this court was informed by the Attorney General's victims' services unit that the victim, Dr. Rose Magno, desired to submit a victim impact statement to this court on the restitution issue. This court granted the request and the victim subsequently submitted a statement with attachments (the Statement). As explained below, the victim had the right to submit the Statement for our consideration, but it was not proper for the victim to raise new legal issues or rely on facts not in the record below.
A. Summary of the Victim's Statement
In the Statement submitted to this court, the victim begins by summarizing the factual and procedural background, explaining how appellant misappropriated funds given to him by her former domestic partner for the benefit of her children, and how she aided in efforts to disbar appellant. On the issue of restitution, the victim argues appellant was not ordered to pay enough. Most prominently, she argues the trial court failed to order appellant to pay the full amount of interest due from the date of loss in 2007. (See Pen. Code § 1202.4, subd. (f)(3)(G) [restitution order shall include "[i]nterest, at the rate of 10 percent per annum, that accrues as of the date of sentencing or loss, as determined by the court."].) She asserts she was paid $10,000 in interest in a
The victim also suggests the restitution award did not sufficiently compensate her for the amount she spent in attorney's fees and for lost work time as a dentist. An attachment to the Statement asserts she incurred approximately $80,000 in attorney's fees, approximately $5,500 in court costs, and $162,867 in "loss of production." She also asserts her mileage costs were $1,381.39, rather than the $800 awarded by the court.
The victim urges that appellant be ordered to produce a lien signed by her former domestic partner at appellant's direction "because it may show that he stole more than $27,500."
Finally, the Statement contains, among other things, factual assertions about how the victim was treated by appellant during the various proceedings, descriptions of the emotional toll caused by appellant's actions, and unfavorable characterizations of appellant.
B. Overview of Marsy's Law
The Victims' Bill of Rights Act of 2008, also known as Marsy's Law, was adopted by a voter initiative Proposition 9 in 2008. The measure was named after a young woman who was murdered in 1983; it sought to address a number of ways in which the criminal justice system inadequately protected the victims of crime. (In re Vicks (2013) 56 Cal.4th 274, 281-282 [153 Cal.Rptr.3d 471, 295 P.3d 863] (Vicks).) Marsy's Law "find[s] and declare[s]" that "[v]ictims of crime are entitled to have the criminal justice system view criminal acts as serious threats to the safety and welfare of the people of California. The enactment of comprehensive provisions and laws ensuring a bill of rights for victims of crime, including safeguards in the criminal justice system fully protecting those rights and ensuring that crime victims are treated with respect and dignity, is a matter of high public importance. California's victims of crime are largely dependent upon the proper functioning of government, upon the criminal justice system and upon the expeditious enforcement of the rights of victims of crime described herein, in order to protect the public safety and to secure justice...." (Cal. Const., art. I, § 28, subd. (a)(2); see also Vicks, at p. 282.)
Among other amendments, Marsy's Law amended article I, section 28 of the California Constitution (hereafter "Section 28"). Section 28, known as the "Victims' Bill of Rights," was originally added to the California Constitution by a 1982 initiative, Proposition 8. (People v. Birkett (1999) 21 Cal.4th 226,
Also, and specifically at issue in the present case, the expanded list of rights added by Marsy's Law includes a victim's right "[t]o be heard, upon request, at any proceeding, including any delinquency proceeding, involving a post-arrest release decision, plea, sentencing, post-conviction release decision, or any proceeding in which a right of the victim is at issue." (§ 28, subd. (b)(8).)
Marsy's Law also amended Section 28 to provide that a victim may independently seek to enforce his or her rights. Thus, Section 28, subdivision (c)(1) provides, "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. The court shall act promptly on such a request." (See also § 28, subd. (f) [referring to the "enumerated rights provided in subdivision (b) that are personally enforceable by victims as provided in subdivision (c)"].)
C. Guidelines for Interpreting Voter Initiatives
Finally, "[t]here is a presumption, though not conclusive, that voters are aware of existing laws at the time a voter initiative is adopted." (Santos v. Brown (2015) 238 Cal.App.4th 398, 410 [189 Cal.Rptr.3d 234] (Santos).)
D. Marsy's Law Entitles a Victim to File an Impact Statement on Appeal But Does Not Obligate This Court to Consider New Issues and Facts in Such a Statement
In arguing the victim did not have the right to file an impact statement, appellant focuses on Section 28, subdivision (c)(1), which states, "A victim,
However, it remains unclear what it means for a victim to have the right to be "heard" on appeal. Appellant takes the position that, if the victim has the right to submit a victim impact statement, this court "may give no consideration to any new information or claims" therein. Respondent takes the position that the victim may not present facts outside the record below and may only raise matters presented to the trial court. As explained below, we hold a victim may neither raise new issues nor rely on new facts in a victim impact statement submitted on appeal.
1. Prior Legal Interpretation of a Right to be "Heard"
An analysis of what it means to provide an opportunity to be "heard" appears in Lewis v. Superior Court (1999) 19 Cal.4th 1232 [82 Cal.Rptr.2d 85, 970 P.2d 872] (Lewis). That case arose in the context of petitions for writ of mandate or prohibition, where in certain circumstances an appellate court may issue a peremptory writ without having issued an alternative writ or order to show cause. (Id. at p. 1236.) In a prior case, Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171 [203 Cal.Rptr. 626, 681 P.2d 893], the Court had held that, prior to issuance of such a peremptory writ, the adverse parties must receive notice and an opportunity to present opposition. (Lewis, at p. 1236.) In Lewis, the court was confronted with the question of "whether, in those limited situations where the accelerated Palma procedure is appropriate, a court must provide an opportunity for oral argument before issuing a peremptory writ in the first instance." (Lewis, at p. 1236.)
As relevant in the present case, Lewis analyzed section 1088 of the Code of Civil Procedure, which authorizes a court to issue a peremptory writ without prior issuance of an alternative writ or order to show cause. (Lewis, supra, 19 Cal.4th at pp. 1240, 1245.) The statute states, "The writ cannot be granted by default. The case must be heard by the court, whether the adverse party
2. Appellate Rules Regarding the Presentation of New Issues and Facts
The context in the present case is a victim's right "to be heard" in this appellate proceeding in which the victim's right to restitution is "at issue."
The question whether a victim may rely on facts not in the record on appeal is also straightforward. In order to effectuate the trial court's principal responsibility over questions of fact, it is well established that on appeal we generally consider only evidence presented to the court below. As explained by the California Supreme Court, "[i]t has long been the general rule and understanding that `an appeal reviews the correctness of a judgment as of the time of its rendition, upon a record of matters which were before the trial court for its consideration.' [Citation.] This rule reflects an `essential distinction between the trial and the appellate court ... that it is the province of the trial court to decide questions of fact and of the appellate court to decide questions of law....' [Citation.] The rule promotes the orderly settling of factual questions and disputes in the trial court, provides a meaningful record for review, and serves to avoid prolonged delays on appeal. `Although appellate courts are authorized to make findings of fact on appeal ..., the authority should be exercised sparingly. [Citation] Absent exceptional circumstances, no such findings should be made.'" (In re Zeth S. (2003) 31 Cal.4th 396, 405 [2 Cal.Rptr.3d 683, 73 P.3d 541].) Given that victims are given an opportunity to present facts to the trial court to support requests for restitution, there is no compelling reason to deviate from the normal rule prohibiting reliance on facts not in the record.
The question of whether a victim may raise new issues on appeal requires more analysis. Generally speaking, the scope of the issues on appeal is determined by the appellant's opening brief; that is, the issues presented through reasoned argument in an appellant's opening brief are normally the only bases upon which we will reverse the judgment or order challenged on appeal. (People v. Duff (2014) 58 Cal.4th 527, 550, fn. 9 [167 Cal.Rptr.3d 615, 317 P.3d 1148]; WA Southwest 2, LLC v. First American Title Ins. Co. (2015) 240 Cal.App.4th 148, 155 [192 Cal.Rptr.3d 423]; Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6 [76 Cal.Rptr.2d 457].) In criminal appeals, Penal Code section 1252 provides, "On an appeal by a defendant, the appellate court shall, in addition to the issues raised by the defendant, consider and pass upon all rulings of the trial court adverse to the State which it may be requested to pass upon by the Attorney General." It appears that, despite its broad wording, Penal Code section 1252 only permits the People to seek review of errors to avoid a reversal. (See People v. Braeseke (1979) 25 Cal.3d 691, 701 [159 Cal.Rptr. 684, 602 P.2d 384] ["the People may, on an appeal
We also observe that a victim who presents an impact statement on appeal occupies a position somewhat analogous to that of an amicus curiae, except permission is required to file an amicus curiae brief (Cal. Rules of Court, rule 8.882(d)), while a victim may submit an impact statement as a matter of right. An amicus curiae is "one (as a professional person or organization) that is not a party to a particular litigation but that is permitted by the court to advise it in respect to some matter of law that directly affects the case in question." (Merriam-Webster's Collegiate Dictionary (10th ed. 2001) p. 37.) "Amicus curiae presentations assist the court by broadening its perspective on the issues raised by the parties. Among other services, they facilitate informed judicial consideration of a wide variety of information and points of view that may bear on important legal questions." (Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370, 405, fn. 14 [11 Cal.Rptr.2d 51, 834 P.2d 745].) Similarly, a victim impact statement may assist a reviewing court by providing an informed perspective different than that of the parties, and by alerting the court to arguments or aspects of the record overlooked by the parties.
Courts generally do not consider new issues raised in amicus briefs. Instead, "[i]t is a general rule that an amicus curiae accepts a case as he or she finds it," and "[a]micus curiae may not `launch out upon a juridical expedition of its own unrelated to the actual appellate record.'" (California Assn. for Safety Education v. Brown (1994) 30 Cal.App.4th 1264, 1274 [36 Cal.Rptr.2d 404].) "California courts refuse to consider arguments raised by amicus curiae when those arguments are not presented in the trial court, and are not urged by the parties on appeal. `"Amicus curiae must accept the issues made and propositions urged by the appealing parties, and any additional questions presented in a brief filed by an amicus curie will not be considered."'" (Id. at p. 1275; see also Younger v. State of California (1982) 137 Cal.App.3d 806, 813 [187 Cal.Rptr. 310] ["`"[T]he rule is universally recognized that an appellate court will consider only those questions properly raised by the appealing parties."'"]; accord, Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2015) ¶ 9:210.1, p. 9-60.) That practice promotes judicial efficiency and an orderly appellate process,
In summary, normally an appellant determines the issues on appeal and normally this court will consider only evidence presented to the trial court. As described previously, the victim's Statement in the present case attempts to insert at least one new issue on appeal (that the trial court failed to make an adequate award of interest) and it relies on facts not in the record. The plain meaning of the phrase "to be heard" as used in Section 28 does not compel this court to consider the victim's new issues and facts. That is particularly true given that we presume the voters were aware of the well-established rules of appellate procedure when they enacted Marsy's Law. (Santos, supra, 238 Cal.App.4th at p. 410.)
3. Our Interpretation Provides the Victim Due Process With Respect to Her Right to be "Heard" in This Appeal
The record in the present case reflects that the victim provided a substantial amount of documentation in support of her restitution claim, her Statement acknowledges she worked with the prosecutor in crafting the claim, and she made a detailed oral presentation at the restitution hearing. (See People v.
We acknowledge our interpretation of Section 28 means the victim's claims of error will remain unresolved. That is because, absent those circumstances where writ proceedings are appropriate, the mechanism by which claims of error are properly brought to this court's attention is through the filing of an appeal. In the present case, the victim did not attempt to appeal the trial court's restitution order, and there is no indication she asked the prosecutor to do so. We recognize there is some uncertainty whether the victim would have had standing to appeal the restitution award, but we do not have occasion in the present case to decide that issue. (See People v. Subramanyan (2016) 246 Cal.App.4th Supp. 1 [201 Cal.Rptr.3d 443] (Subramanyan) [no victim standing to appeal restitution order in misdemeanor case].) We also recognize that, by deciding that a victim may not present new issues in a victim impact statement, we may make more difficult the question of whether a victim has standing to appeal an adverse ruling, because a conclusion a victim does not have such standing might in some circumstances diminish a victim's right to enforce her rights under Marsy's Law.
The trial court's orders are affirmed.
Jones, P. J., and Needham, J., concurred.