California Court of Appeal Mar 15, 2013 No. D060747Unpublished
Filed 3/15/13 P. v. Swain CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D060747
Plaintiff and Respondent,
v. (Super. Ct. No. SCD199072)
THEODORE SWAIN,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Charles R.
Gill, Judge. Affirmed.
Theodore Swain appeals from a posttrial order in which the trial court confirmed
the terms of an order appointing a receiver, authorizing the receiver's second distribution
to victims of Swain's crimes, approving the receiver's fourth report and accounting, and
approving the receiver's fee application. Swain contends that because he was not
personally present at the hearing on the challenged order, the order should be reversed
and we should remand the matter for a new hearing. We conclude that Swain's
contention is without merit, and we affirm the order.
I
FACTUAL AND PROCEDURAL BACKGROUND
Swain was convicted in 2008 on several counts of securities fraud and other
Cal.App.4th at p. 87.) We reject this argument. The September 16, 2011 hearing was not
a hearing at which restitution was ordered and thus did not concern the imposition of
sentence as covered in Penal Code section 977, subdivision (b)(1). Instead, as we have
explained, the issue at the September 16, 2011 hearing concerned approval for Seaman to
take certain steps to carry out the restitution order that the trial court made during the
2008 sentencing hearing, at which Swain was physically present as required by statute.
6
DISPOSITION
The order is affirmed.
IRION, J.
WE CONCUR:
MCCONNELL, P. J.
NARES, J.
7
AI Brief
AI-generated · verify before citing
Holding. The court held that a defendant does not have a constitutional or statutory right to be physically present at a post-judgment hearing concerning the administration of a court-appointed receiver for restitution assets, as such a proceeding does not constitute the imposition of sentence.
Issues
Whether a defendant has a constitutional or statutory right to be physically present at a post-trial hearing regarding the administration of a receivership for restitution.
Whether the defendant met his burden of demonstrating that his physical presence at the hearing would have substantially benefited his defense.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“The September 16, 2011 hearing was not a hearing at which restitution was ordered and thus did not concern the imposition of sentence as covered in Penal Code section 977, subdivision (b)(1).”
“Swain has not met his burden to establish that his presence at the September 16, 2011 hearing would have made a reasonable and substantial difference to his right to defend himself.”