P. v. Briceno
Filed 7/12/13
P. v. Briceno CA2/1
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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 ONE
THE
PEOPLE,
Plaintiff and Respondent,
v.
RAUL
BRICENO,
Defendant and Appellant.
B242110
(Los Angeles County
Super. Ct. No. LA034110)
APPEAL from a postjudgment order of the Superior Court of
County, Gregory A. Dohi, Judge. Affirmed.
Law Office of Anthony D. Zinnanti and Anthony D. Zinnanti
for Defendant and Appellant.
Kamala D. Harris, Attorney General,
Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior
Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney
General, and Michael C. Keller, Deputy Attorney General, for Plaintiff and
Respondent.
——————————
Appellant
Raul Briceno appeals from a postjudgment
order denying his motion to vacate a victim restitution order. We conclude that Briceno has failed to
present a justiciable controversy.
BACKGROUND
In May 2000 Briceno entered a plea of no contest and was
convicted of one count each of kidnapping
and robbery, with an admission that a principal was armed during the
commission of the robbery. Briceno was
sentenced to 7 years, 8 months in state prison, and ordered to pay restitution
“pursuant to Penal Code section 1202.4[, subdivision] (f),
with all co-defendant’s [sic] to the victim, Armored Transport.â€
In October 2003, the victim of the crime, AT Systems
West, Inc. (AT Systems), filed a civil action against Briceno and his
codefendants for unspecified damages for, among other things, theft,
embezzlement and misappropriation. AT
Systems claimed the defendants had stolen $1,000,672.11. AT Systems alleged that, “[a]lthough an
insurance claim was made and much of the outstanding loss was paid with
insurance proceeds, [AT Systems] was required to pay a $100,000[ ]
deductible.†Purportedly, AT Systems’s
civil action against Briceno and his codefendants was subsequently settled on
terms not disclosed in the appellate record, and dismissed.
In February 2012, after his release from prison and
discharge from parole, Briceno filed a motion “for an order modifying
restitution†pursuant to civil settlement.
Briceno asked the court to discharge the entire 2000 restitution order,
which had grown to over $905,000 with accumulated interest.
the motion began on February 16, 2012, but was continued to March 16, 2012 after the trial court requested supplemental
briefing.
In a supplemental brief, Briceno argued, among other
things, that the restitution order should be discharged absent proof that AT
Systems was an extant corporate entity.
In a declaration accompanying his supplemental points and authorities,
Briceno’s attorney, Anthony Zinnanti, claimed to have undertaken “extensive due
diligence†and had “concluded that victim AT
Systems . . . no longer exists.†Zinnanti’s due diligence consisted of his
having looked at the California Secretary of State’s website, where he was
unable to find AT Systems listed as a corporation, and phone calls to the
office of the California Secretary of State seeking to determine if AT Systems
still existed, none of which yielded any information.
not present any documentation from the Secretary of State to confirm the
results of his inquiries. Zinnanti also
submitted a document reflecting that, on the day before the motion was to be
heard, he contacted David Calderon, an attorney at the firm that represented AT
Systems in the civil action against Briceno and others, seeking “clarification
as to why the suit was dismissed . . . .â€
In his March 16, 2012 response, Calderon informed Zinnanti that his
recollection of the aged matter was vague, but he “believe[d] the matter was
dismissed after AT Systems decided to pursue the restitution order as a
judgment under the Penal Code . . . .â€
Calderon also said that “AT Systems [had] not been a client of [his]
firm for quite some time and [he] believe[d] . . . that
they were purchased by another armored car company called Garda,†although he
acknowledged that he “could be wrong.â€
Zinnanti made several attempts to contact Garda but was
unable to speak with the company’s chief legal counsel. He did speak with a “‘Legal Department
Coordinator’†at Garda who did not explicitly confirm the transaction and who
“refused to relate whether AT Systems . . . still existed
despite acquisition by Garda.†The Garda
representative informed Zinnanti that the information he sought was
“‘sensitive,’†but gave him an email address for correspondence with which he
said Garda would “deal with ‘in due course.’â€
Based on his attorney’s unsuccessful efforts over the
course of about a month to confirm Garda’s acquisition of AT Systems, Briceno
surmised that Garda expresses zero interest in the pursuit of the restitution
order. Briceno argued that Garda’s “rife
indifference†toward the restitution order, coupled with the fact that it was
not a direct victim of the robbery, militated in favor of nullifying the
restitution order.
The trial court denied the motion. The court agreed, however, to permit Briceno
belatedly to submit a certified document from the Secretary of State—of which
the court would take judicial notice—reflecting “that AT [Systems] had been
acquired for the sake of just putting that factual issue to rest.â€
noted it would not change the victim’s name on the restitution order. That way, in the event Garda sought to
collect on the restitution order, it would first have to establish that it was,
in fact, AT Systems.
DISCUSSION
Briceno maintains that the trial court erred and that the
restitution order must be vacated because AT Systems, the direct corporate
victim of his crimes has purportedly been acquired by another entity and cannot
collect on the order.
Absent extraordinary and compelling reasons, “‘a victim
of [a] crime who incurs [any] economic loss as a result of the commission of a
crime [is entitled to] receive restitution directly from any defendant
convicted of that crime.’†(
856; § 1202.4, subd. (a)(1).) For
restitution purposes, a victim includes any “corporation, business trust,
estate, trust, partnership, association, joint venture, . . . or any other
legal or commercial entity when that entity is a direct victim of a
crime.†(§ 1202.4, subd. (k)(2).) A direct victim is an “‘entity that [is] the
“immediate object[ ]†of the [defendant’s] offense[ ].’†(Runyan,
at p. 856.) “In addition to compensating
victims, the restitution mandate serves rehabilitative and deterrent
purposes.†(People v. Hume (2011) 196 Cal.App.4th 990, 995.)
Section 1214, subdivision (b), provides that an order for
a defendant to pay restitution to a victim “shall be fully enforceable by a
victim as if the restitution order were a civil judgment, and enforceable in
the same manner as is provided for the enforcement of any other money
judgment.†And “[a]ny portion of a
restitution order that remains unsatisfied after a defendant is no longer on
probation [or] parole is enforceable by the victim . . . .†(§ 1214, subd. (b); see also § 1202.4, subd.
(m).) Although it originates in a
criminal forum, a victim restitution order is “enforceable as if [it] were a
civil judgment.â€
name="_ftnref5" title="">[5] (§ 1202.4,
subds. (a)(3)(B), (f) & (i); People
v. Willie (2005) 133 Cal.App.4th 43, 47, fn. 2.) No separate judgment is necessary, nor is one
authorized. (People v. Hart (1998) 65 Cal.App.4th 902, 906.) However, the 10–year period of enforceability
for money judgments does not apply to victim restitution orders. (§ 1214, subd. (d)(2).)
Briceno does not contest that AT Systems was entitled to
restitution as the direct victim of his crimes, nor does he take issue with the
amount of the original restitution order.
He argues only that the entire amount should be deemed discharged
because the victim of his crimes allegedly no longer exists and is unable to
collect upon the order.
But Briceno has not established that AT Systems no longer
exists. Briceno candidly admits that
“the fate of A.T. Systems . . . is unclear and neither
Garda nor the California Secretary of State provided information.†The only evidence in the record regarding AT
Systems’s nonexistence are representations by Briceno’s counsel that he could
not find AT Systems listed on the Secretary of State’s website, and was unable
to obtain information telephonically from the Secretary of State’s office to
confirm AT Systems’s continued existence.
points to hearsay in correspondence from an attorney who once represented AT
Systems. Freely admitting that his
recollection “could be wrong,†that attorney told Briceno’s counsel only that
he “believe[d AT Systems was] purchased by . . . Garda.†There is no evidence that Garda has ever confirmed
to Briceno (1) that it actually did acquire all or part of AT Systems or, (2)
if it did, whether AT Systems still existed notwithstanding its
acquisition. The most Briceno got out of
Garda was a statement by an employee whose authority is unknown that
information about AT Systems’s existence was “‘sensitive.’†Finally, even if Garda did acquire AT
Systems, the record is bereft of evidence that an assignment of the right to
enforce the restitution order was among the specific assets Garda acquired.
As the party seeking to modify the restitution order,
Briceno bears “the burden of proof as to each fact the existence or
nonexistence of which is essential to the claim for relief or defense that he
is asserting.†(Evid. Code, § 500;
Cal.App.4th at p. 1137.) The abstract
posture of Briceno’s claim left the trial court with only one reasonable
option: to deny the motion.
Briceno
will suffer no hardship from our affirmance.
Even if Garda acquired AT Systems, and the assets it acquired included
the restitution order, Garda has taken no steps to enforce that 13-year-old
order against Briceno and may never do so.
Briceno may at any time pursue relief on his own upon proper evidentiary
showing and authority. Further, if victim
restitution is ever sought against him, Briceno has the additional right to a
hearing at that time and will have an opportunity to raise these issues
supported by the appropriate factual record and legal arguments. (§ 1202.4, subd. (i); People v. Hume, supra,
196 Cal.App.4th at p. 1001; see also People
v. Harvest (2000) 84 Cal.App.4th 641, 652 [“there is no express statute of
limitation on the matter of victim restitutionâ€].)
The order is affirmed.
NOT TO BE PUBLISHED.
JOHNSON,
J.
We
concur:
MALLANO, P. J.
ROTHSCHILD, J.
name="_ftn1" title="">[1] Unless otherwise stated, statutory references will be
to the Penal Code.
name="_ftn2" title="">[2] The Penal Code does not provide for accrual of
interest on restitution fines, attorney fees and probation costs. The Penal Code only permits enforcement of
the order for such amounts in the manner provided for enforcement of money
judgments.
