Can a defendant waive his right to attend the restitution hearing?

The instant record is absolutely silent as to the waiver of defendant's presence at the restitution hearing, by either defendant or his attorney. At the sentencing hearing, the court seemed to presume that defendant did not need to be present at the "restitution pretrial" of October 6, 2010. According to the October 6, 2010, minute order, defendant was not present at that particular hearing, so he obviously could not have waived his own presence for the subsequent restitution hearing. In addition, there is no reporter's transcript for the October 6, 2010, hearing, and no evidence as to whether defense counsel attempted to waive defendant's presence at the subsequent restitution hearing. Thus, there is no evidence that defendant knowingly and intelligently waived his right to be present at the October 26, 2010, restitution hearing. (People v. Davis, supra, 36 Cal.4th at p. 532.)

Even assuming error, however, we find no prejudice arising from defendant's absence at the restitution hearing. "Defendant's absence, even without waiver, may be declared nonprejudicial in situations where his presence does not bear a 'reasonably substantial relation to the fullness of his opportunity to defend against the charge.' [Citations.]" (People v. Garrison (1989) 47 Cal.3d 746, 782.) Defendant has the burden to demonstrate that his absence prejudiced his case or denied him a fair trial. (Id. at p. 783.)