People v. Alcaraz, A152156

THE PEOPLE, Plaintiff and Respondent, v. MAXIMINO ALCARAZ, Defendant and Appellant.

A152156

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO

November 22, 2019

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Solano County Super. Ct. No. VCR219837)

This is an appeal from an order directing that restitution ordered in a criminal matter be converted to a civil judgment. We find no error and affirm.

In 2012, in Santa Clara Superior Court, defendant entered a plea of no contest to a charge of felony assault and was admitted to probation upon specified conditions. One of those conditions was that he make restitution to the victim in the amount of $1,541.60.¹ In 2014, defendant's probation (which was set to expire in June 2017), and the victim restitution account, were transferred to Solano County.²

In the summer of 2017, with the expiration of defendant's probation looming, questions arose concerning the amount of the restitution that had not been paid. Kendra Craver, defendant's probation officer, testified from records that the codefendant paid $291.06, but defendant had paid nothing. Defendant maintained that he had made anumber of $30 payments. The probation department advised the court that defendant had "made payments . . . totaling $30.00," and recommended that "the remaining restitution balance of $1220.00 be converted to a civil judgment." The same probation report indicated that the victim recalled receiving approximately $200 in restitution.

At the final hearing, counsel for defendant told the court:

"[T]here were a lot of documents that were presented from Santa Clara, and I think that to say that it is unclear is not only accurate, but I mean it's even more than unclear.

"The reason I say that is because some of the documents [from Santa Clara] that we received indicate that there is no restitution owing. And I was just speaking earlier today with Ms. Craver, who is here from the Probation Department, and I showed her one of the documents that I received from her, and which she received in turn from Santa Clara, and I'll show that to Ms. Ignacio,³ which indicates that for Mr. Alcaraz there is a line on that document which states that the victim restitution is zero.⁴

"Now, Ms. Craver believes it is inaccurate, that that line which is showing that restitution is zero is inaccurate."

"[T]hat document that I just presented to the Court for Mr. Alcaraz, and it indicates that restitution is zero.

"I don't think that with the state of the facts that are before the Court at present there is sufficient information for you to order that restitution be converted into a civiljudgment because I don't believe that the facts that have been established to date indicate that restitution is owing."

The court then stated:

"I think we are still in the same place. So, here is what I think, and again, if, in fact, restitution is fully paid, and the Court somehow becomes an accessory to double dipping or something like that, then [that] would be wrong, . . . and that would be wrong on the double dipper's part.

"Having said that, if I do nothing, then I end it with the possibility of denying the victim restitution. If I allow it to continue, then this doesn't guarantee that the thing will be paid, but what it does is it puts it in a different courtroom in this building. And someone, when someone seeks to enter a judgment, one can always assert a credit. So, again, the issue here is not whether or not restitution in that amount was owed. It's whether there are certain credits against it. And in allowing the victim to convert it to a civil judgment, I'm not guaranteeing that he'll collect it. And I'm not denying Mr. Alcaraz's right to claim proper offsets for any reason. But given the state—and finally what I do think is I think the burden, once the restitution order is made, I think the burden shifts to the payer, meaning I do not think in these circumstances that actually the burden rests on Probation to rebut the presumption, I think the burden rests with the defendant to assert his credits. And that's a very semi-technical analysis. But I think that would be the analysis in this case as well.

"So, here is what I'm going to do, I'm going to grant the request and allow that amount of 1,220 be converted to a civil judgment.

"Again, by operation of law, and I'll put it even on the minute order, Mr. Alcaraz is—I'm not limiting in anyway his ability or right to assert credits against that, against that joint and several determination should someone go to the Court to collect it. That's what they have to do. They can't collect it unless they go back to court.

"So, anyway, I'm doing so without a thousand percent confidence in all of this. But . . . I think that's the best I can do today."

In his opening brief, appointed counsel for defendant distills his argument as follows:

"After a prima facie showing of economic loss incurred as a result of the defendant's criminal acts, the burden shifts to the defendant to disprove the amount claimed. [Citation.] The restitution order and the transfer order constituted a prima facie [showing] that appellant owed restitution of $1,541.06. The burden then shifted to appellant to disprove that amount. [Citation.]

"Appellant met his burden. A document from the Santa Clara County Department of Revenue showed appellant's co-defendant had a balance of zero for restitution after she made a payment of $291.06 on January 8, 2013. . . . Another document from Santa Clara County showed that appellant also had a balance of zero for victim restitution. . . . Evidence Code section 664 required it [the trial court] to presume that these documents were accurate . . . . This presumption shifted the burden back to respondent to prove 'the nonexistence of the proved [sic: presumed] fact.' (Evid. Code, § 606 . . . .)

"Respondent failed to meet its burden."

But defendant undercuts his position by then noting, "the January 10, 2014 [transfer] order must have been incorrect; it did not credit appellant for his co-defendant's payment of $291.06 on January 8, 2013. The order may have also missed other payments." He further notes that the probation department "also reported that the victim said he recalled receiving about $200 in restitution," without noting that this sum also is not mentioned in either of the Santa Clara documents. Finally, defendant does not mention probation officer Craver testified that defendant said he had paid at least $30, another sum not found on the Santa Clara documents. Thus, there were sufficient material omissions from the Santa Clara documents that the trial court could find that the presumption of Evidence Code section 664 had been rebutted.

Defendant then argues: "Under Penal Code section 1214, subdivision (b), a restitution order 'is deemed a money judgment' and is 'enforceable in the same manneras is provided for the...