P. v. Jones
Filed 1/27/14
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NOT TO BE PUBLISHED IN
OFFICIAL REPORTS
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face="Times New Roman">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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.
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IN THE COURT OF APPEAL OF
THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
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THE PEOPLE,
Plaintiff
and Respondent,
v.
NICOLE RENEE JONES,
Defendant
and Appellant.
E057659
(Super.Ct.No. RIF1102953)
OPINION
APPEAL from the Superior Court of
Riverside County. Jean P. Leonard,
Judge. Affirmed.
Daniel J. Kessler, under appointment by the
Appellant.
Kamala D. Harris, Attorney
General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland,
Assistant Attorney General, Peter Quon, Jr. and Seth M. Friedman, Deputy
Attorneys General, for Plaintiff and Respondent.
Defendant
and appellant Nicole Renee Jones pled guilty to one count of felony fraud in
obtaining government aid in an amount more than $400.00 (Count 1—former Welf.
& Inst. Code § 10980, subd. (c)(2)).
agreement, the court reduced count 1 to a misdemeanor upon the People’s
subdivision (b).
name="_ftnref2" title="">face="Times New Roman">[2] After a later, contested
victim restitution hearing, the court ordered defendant pay $56,952 to the County of Riverside Housing Authority (Housing Authority). On
appeal, defendant contends the court was unaware it could grant restitution in
less than a full amount if it found compelling and extraordinary reasons for
doing so. The People contend the trial
court knew it had discretion to impose less than full restitution and did
so. We affirm.
face="Times New Roman">FACTS AND
PROCEDURAL HISTORY
Rental Assistance (section 8) subsidies from the Housing Authority beginning on
July
26, 1999.
Once approved, the government issues vouchers which subsidize the
individual’s rental payments. Every year
thereafter, recipients must sign a personal declaration wherein they certify
their household income and family composition under penalty of perjury. In a declaration filed by defendant on June 12, 2007, defendant listed her minor son, Winston B., as a resident with
income from social security of $742.00
a month.
from the District Attorney’s Office shared information with Roberto Chavez, a
Senior Development Specialist
at the Housing Authority, regarding defendant.
Chavez began investigating defendant’s receipt of benefits in the period
between June 2007, and January 2011. The
Housing Authority made subsidy payments of $1,205 a month on behalf of
defendant between July 1, 2007, and September 31, 2007. It made subsidy payments of
$1,199 a month through February 28, 2008. It continued to make subsidy payments between
March 1, 2008, and June 30, 2011, in unspecified
monthly amounts. The total payments made
on behalf of defendant between July 1, 2007, and June 30, 2011, amounted to $56,952.
Chavez reviewed all defendant’s personal declarations to determine “if
there [were] any omissions or false information included on the annual personal
declarations.†He also examined
documents submitted to him from the District Attorney’s Investigator regarding
Winston B.’s criminal history. Those
documents reflected Winston B. had been arrested on five occasions between September 27, 2003, and May 22, 2007.
B.’s “name on the personal declaration forms every year she submitted
them.†In her declarations beginning in
June 2007, she omitted any reference to the multiple arrests and criminal
activity conducted by Winston B.
Chavez testified that any commission of a violent or drug related
criminal offense by an individual residing in the subsidized unit disqualifies
the applicant for the subsidy.
a payment on behalf of the entire household based on the certification that
[defendant] submitted every year.â€
Providing false information in the annual declarations is grounds for
termination from the program. “It is the
Housing Authority’s policy that if one member is – if the family commits fraud,
the entire family is terminated from the program.†Thus, any amount of subsidy issued on behalf
of defendant after July 1, 2007, was an overpayment
because defendant had not been forthcoming regarding Winston B’s criminal
history.
A letter dated April 6, 2011, from the
Department of Health to the Housing Authority on behalf of defendant, reflected
Winston B. participated in a Wraparound program from September 2007, to January
2009. “‘Wraparound consists of a team of
mental health professionals who work with families, such as [defendant’s], to
enable a child who is at risk of out-of-the –home placement to be able to stay
living with his family. [¶] In [defendant’s] case, her son, Winston, was
at risk of being placed in a group home through Riverside County Probation due
to law violations, and his probation officer was actively involved on the
Wraparound team.’â€
The People charged defendant with felony fraud in obtaining government
aid in an amount more than $400.00 (Count 1 – former Welf. & Inst. Code, §
10980, subd. (c)(2)), felony fraud of a housing program in an amount exceeding
$400.00 (Count 2 – former § 487, subd. (i)), and four counts of fraud (Counts
3-6 -- § 118). The latter four counts
were based on defendant’s annual declarations filed on June 12, 2007, February
4, 2008, April 13, 2009,
and April 5,
2010.
Pursuant to a plea agreement, defendant pled guilty to Count 1, in
return for which Count 1 was reduced to a misdemeanor, the remaining counts
were dismissed, and defendant was granted summary probation.
Chavez also reviewed information regarding Pamela Jones, defendant’s
mother, whom he contended was an unauthorized tenant of defendant’s home. Defendant had never listed Jones as a
resident in any of defendant’s annual declarations. Police reports reflected Jones had called to
report a ring stolen from her bedroom in defendant’s residence. Pay stubs and insurance documents located in
the bedroom reflected Jones resided in the household. Chavez testified that if defendant’s only
omission had been her failure to report her mother’s residence in the home and
her mother’s income, defendant would have received only $577.00 a month in
subsidies between February 1, 2009, and May 31, 2009. However, Jones’s residence
in the home was a moot point because defendant’s failure to report Winston B.’s
criminal activity eliminated entitlement to any subsidies during the entire
period investigated.
Jones testified she had always owned her own home and never lived with
defendant. She visited defendant’s home
and babysat the children, sometimes staying for up to 10 days. She had once had an item of mail addressed to
her sent to defendant’s residence.
The court indicated that it was interested in having Chavez calculate
the amount of subsidy defendant would have received if Winston B. had not been
residing in the home. The court
expressed concern that requiring defendant to kick Winston B. out of the home
prior to or after he engaged in criminal activity so that defendant would not
have to declare such offenses, put her in an untenable position since everyone
else in the house apparently was obeying the law. “What I would like to do is I would like to
find out if we could extract Winston [B.] from the final figure, from this
$56,952. . . . If we could somehow see what would – what
would [defendant] and her four children have received if they were living
there, and they were properly living there.
And it sounds to me like there will be some overage. There’s going to be some overpayment.â€
Nevertheless, the court also noted that “Before I let [defense counsel]
speak, although I have these concerns, I don’t think that the Court can just
step in and change the rules. Do I think
the rules are right? No. I think that this puts a family in a very difficult
position, and I’ve already voiced that.â€
“[T]his is a restitution hearing.
I don’t think I can insert my own rules for the rules of the Housing
[Authority], whether I like it or not.
So I think, at this point, I don’t see any law that tells me that I
could override the rules of the Housing [Authority] and go forward and just
come up with another scenario and another set of rules and another
calculation.â€
The court found overpayment of $56,952 for the period between July 1, 2007, and June 30, 2011, and ordered
restitution in that amount. The court
subtracted the administrative fee finding “that there was some evidence in the
testimony today that she was trying to be forthcoming with the issues of the
Wraparound Program, and the fact that she was forthcoming with the amounts of
social security received by Winston [B.] . . . .â€
Defense counsel requested the recalculation of subsidies to account for
the award of payments specific only to Winston B. during the pertinent
period. The court noted, “I don’t think
that the Court has the ability to rewrite the rules and to come to any other
decision in this case without the stipulation of the parties. . . .
Do I like it? No. Do I think it’s fair? Probably not.
But I think under the circumstances, I have no other choice but to make
this finding.†“I don’t know of any law
that would allow me to do that. I mean,
rewriting the Housing Authority’s rules and regulations, and I don’t see –
you’ve not given me any.†“And I can
indicate on the record, again, I don’t like it, but I don’t see that I have any
authority to just willy-nilly come up with my own numbers. I have – I don’t know that I have any
authority to do that.â€
DISCUSSION
because it was unaware it had discretion to award less than full restitution if
it found compelling and extraordinary circumstances pursuant to section 1202.4,
subdivision (f). Defendant maintains the
court’s initial request for recalculation of the subsidies and repeated
statements it did not believe the Housing Authority’s rule was fair reflected
that, had it been aware of its discretion, it would have awarded restitution in
an amount less than it did. We
disagree.
“A sentence without an award of victim restitution is invalid.
issuance of the award itself [citation]
and ‘really very little discretion’ over the amount of the award [citation]. ‘The statute requires the award be set in an
amount which will fully reimburse the victim for his or her losses unless there
are clear and compelling reasons not to do so.’ [Citation.]
A court’s reasons for awarding less than
full restitution must be stated on the record. [Citation.] Thus, just as a sentence lacking a victim
invalid, a sentence awarding less than full victim restitution is similarly
unauthorized when the court fails to state clear and compelling reasons for its
decision.†(People v.
Brown (2007) 147 Cal.App.4th 1213, 1225-1226 (Brown),
fn. omitted.)
“In addition to compensating the victim, a restitution order is
intended to rehabilitate the defendant and to deter the defendant and others
from future crimes. [Citations.]†(People v. Vasquez
(2010) 190 Cal.App.4th 1126, 1133) “A
victim’s restitution right is to be broadly and liberally construed.†(People v. Williams
(2010) 184 Cal.App.4th 142, 147.) “In
reviewing a trial court’s restitution order, we will not overturn its decision
unless it constitutes an abuse of discretion.â€
(People v. Fortune (2005) 129 Cal.App.4th
790, 794.)
“Generally, when the record shows that the trial court proceeded with
sentencing on the erroneous assumption it lacked discretion, remand is
necessary so that the trial
court may have the opportunity to exercise its sentencing discretion at a new
sentencing hearing.†(
however, if the record demonstrates the trial court was aware of its sentencing
discretion. [Citations.] Further, remand is unnecessary if the record
is silent concerning whether the trial court misunderstood its sentencing
discretion. Error may not be presumed
from a silent record. [Citation.] ‘“[A] trial court is presumed to have been
aware of and followed the applicable law.†[Citations.]’
[Citation.]†(
Here, the record does not reflect the court misunderstood its
discretion to order less than full restitution.
The Housing Authority requested victim restitution in an amount totaling
$71,190.00, which included administrative fees in the amount of
$14,238.00. The court exercised its
discretion in ordering less than full restitution when it declined to award the
administrative fees as part of the victim restitution. It did so because it believed there were
compelling circumstances due to what it considered as defendant’s attempts to
comply with the Housing Authority’s regulations regarding reporting her son’s
criminal activity and income. Thus, the
court acted in proper exercise of its discretion to reduce the amount of victim
restitution from a full amount where it found compelling and extraordinary
circumstances.
Defendant contends the reduction of administrative fees was not
commensurate with the court’s consciousness of its discretion to reduce full
victim restitution for the losses actually incurred by the Housing
Authority. The court in
defrauded government agency “‘should be calculated by subtracting the amount
the government would have paid had no acts
of fraud occurred from the amount the government actually paid.†(Id. at p. 928,
quoting People v. Crow (1993) 6 Cal.4th 952, 962
(Crow).)
However, in both Crow and
defendant would have been entitled to retain some of the government payments
regardless of the fraud. (
955; Hudson, supra,
at pp. 928-930; People v. Akins (2005) 128
Cal.App.4th 1376, 1380, 1382-1385 (Akins).) Here, it is undisputed defendant would not
have been entitled to receive any of the benefits
due to her fraud.
Although the court empathized with defendant and her family and
believed the result was not fair, this did not justify denying the Housing
Authority its mandatory, broadly and liberally construed, full
restitution. Moreover, although
used by a government agency in determining victim restitution, it did not hold
the contrary, i.e., that the court must reject
such a calculation. (
pp. 1386-1389 [Court’s discretion to adopt or reject government agency’s method
of calculating victim restitution extends to restitution for “purposes of
administrative recoupment . . . .â€]; See also
[Private attorney fees and private investigator’s fees expended by victim in
investigating embezzlement by employee recoverable as victim
restitution].) The court’s disallowance
of permissible administrative fees in its restitutionary award reflect its
cognizance of its discretion to allow less than full victim restitution in
compelling and extraordinary cases. The
court acted within its discretion.
DISPOSITION
REPORTS
face="Times New Roman">CODRINGTON
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We concur:
RAMIREZ
P. J.
RICHLI
J.
title=""> face="Times New Roman">face="Times New Roman">[1] The court neglected to take an oral, factual basis for the
plea. The sole factual basis for the
plea is a statement contained within the plea agreement initialed, presumably,
by defendant reading “I agree that I did the things that are stated in the
charges that I am admitting.†Although
not required, “the trial court can satisfy this requirement by inquiring of
defense counsel regarding the factual
basis of
the plea . . . [by]
‘request[ing] that defense counsel stipulate to a particular document that
provides an adequate factual basis, such as a complaint, police report, preliminary hearing transcript,
probation report,
(People v. Palmer (2013) 58 Cal.4th 110,
112.) Here, because the parties did not
stipulate the preliminary hearing was a factual basis for the plea, the court
which presided over the restitution hearing was not the court which presided
over the preliminary hearing, and no party below sought to admit the evidence
adduced at the preliminary hearing at the restitution hearing, we do not rely
on the preliminary hearing for our factual recitation or analysis.
name="_ftn2" title=""> face="Times New Roman">face="Times New Roman">[2] All further statutory references are to the Penal Code unless
otherwise indicated.
