Victim of embezzlement may submit an impact statement to the Court of Appeal but may not present legal issues that were not raised by appellant or facts that are not in the record. Hannon, a former lawyer, was convicted of grand theft by embezzlement by a fiduciary (Pen. Code, §§ 487, subd. (a), 506) for stealing money from a trust account established for a client’s children. He appealed the trial court’s victim restitution order. One of the victims filed an impact statement in the Court of Appeal, asserting a claim for additional restitution. Hannon challenged the right of the victim to file an impact statement on appeal. Held: Victim impact statement may be filed on appeal. In 2008, Proposition 9, the Victim’s Bill of Rights Act (also known as “Marsy’s Law”), was passed. Among other change, the Act amended article I, section 28 of the California Constitution to list a number of victim’s rights, including the right to full restitution for losses caused by a defendant’s crime. It also provides that a victim must be heard at any proceeding in which a right of the victim is at issue (Cal. Const., art. I, § 28, subd. (b)(8)) and may seek to enforce his/her rights in any trial or appellate court having jurisdiction over the case (Cal. Const., art. I, § 28, subd. (c)(1)). This entitled Hannon’s victim to file an impact statement on appeal. However, it is the province of the trial court to decide questions of facts and of the appellate court to decide issues of law. This means that on appeal, the reviewing court may generally consider only evidence presented to the court below. Thus, the victim impact statement may not present facts that are outside the appellate record. With respect to issues, the appellant generally determines the legal issues on appeal. When Marsy’s Law was enacted, no provision was added to the Penal Code permitting victims to assert claims of error other than those raised by the appellant. Therefore, although the victim impact statement was properly filed on appeal, that did not compel the Court of Appeal to permit the victim to present new facts or issues. [Editor’s Note: In an unpublished portion of the opinion, the Court of Appeal affirmed the restitution award.]

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/A145945.PDF