P. v. Roman CA2/5

Filed 5/28/13 P. v. Roman CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, B241040

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. VA122367) v.

EDIBALDO ROMAN,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Lori Ann Fournier, Judge. Affirmed. Nancy Mazza for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Kenneth C. Byrne, Supervising Deputy Attorney General, Colleen M. Tiedemann, Deputy Attorney General, for Plaintiff and Respondent.

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The issue presented in this appeal is whether defendant and appellant Edibaldo Roman had a right to a jury trial under the Sixth and Fourteenth Amendments on the issue of victim restitution under the holding in Southern Union Co. v. United States (2012) 567 U.S.__ [132 S.Ct. 2344, 183 L.Ed.2d 318] (Southern Union).) We hold defendant waived the constitutional claim by his express request that restitution be entered in specified amounts by the trial court, and in any event, victim restitution is not punishment and is beyond the reach of the constitutional right to a jury trial. Defendant entered a plea of no contest on March 5, 2012, to a charge of carjacking in violation of Penal Code section 215, subdivision (a). Defendant agreed to an upper term sentence of nine years in state prison. As part of the agreement, the prosecution dismissed two additional felony charges and firearm and recidivist allegations. Defendant was advised that a restitution hearing would take place on a future date. He expressly waived his right to be present at that hearing. The restitution hearing was held on April 12, 2012. Pursuant to defendant’s request, he appeared through counsel. Defendant’s counsel advised the trial court he had met with defendant the previous day and “provided him with the documentation to support our request that the court enter” restitution in the amount of $23,238.80 as to one victim and $699.89 as to a second victim. The court ordered restitution as requested by the defense. 1 Defendant’s only contention on appeal is that he was entitled to a jury trial under the reasoning of Southern Union. The claim is not cognizable on appeal, as the restitution order was entered at defendant’s request. Under the Sixth Amendment, the state may proceed without a jury trial “so long as the defendant either stipulates to the relevant facts or consents to judicial factfinding.” (Blakely v. Washington (2004) 542 U.S. 296, 310.) Here defendant stipulated to the amount of restitution, and the Sixth Amendment is therefore not implicated in the restitution order.