People v. Perez CA3

Filed 8/21/23 P. v. Perez CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C096462
Plaintiff and Respondent, (Super. Ct. No. 17FE022755)
v.
MAXAMINA PEREZ,
Defendant and Appellant.
Defendant Maxamina Perez, who worked as a manager at the recycling processor
Recycle Service Alliance, Inc. (RSA), pleaded guilty to charges related to falsifying
weight tickets for the materials RSA received from recycling centers. As a result of the
false weight tickets, RSA was overpaid by the Department of Resources Recycling and
Recovery (CalRecycle) for nearly three years. On appeal, she argues the trial court
erroneously ordered her to pay $312,945.67 in costs as part of her direct victim criminal
restitution order under Penal Code section 1202.4.1 She further argues her counsel was
1 Undesignated statutory references are to the Penal Code.
1
ineffective by failing to object to these costs. Finally, defendant argues she is entitled to
credit for any direct victim restitution payments made by RSA and asks us to modify the
judgment to reflect that the direct victim restitution is joint and several. We will modify
the judgment to reflect that the direct victim restitution is joint and several, and otherwise
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Relationship Between CalRecycle and Recycling Processors Like RSA
Under the California Beverage Container Recycling and Litter Reduction Act
(Pub. Resources Code, § 14500 et seq.), distributors of beverage containers pay a
refundable deposit (called a California refund value or CRV) to CalRecycle for each
beverage sold or offered for sale. (Tomra Pacific, Inc. v. Chiang (2011) 199 Cal.App.4th
463, 471 (Tomra Pacific, Inc.); see Pub. Resources Code, § 14560.) The redemption
payments are deposited into the Beverage Container Recycling Fund (Recycling Fund),
which is managed by CalRecycle and used to pay its operating costs and “various fees
and grants for curbside collection programs, recycling centers, material processors, and
other participants in the recycling stream.” (Tomra Pacific, Inc., at p. 471; see id. at
p. 474; Pub. Resources Code, § 14580, subd. (a).) The CRV is ultimately passed on to
the consumer, who can later recover this deposit by returning an empty beverage
container to a certified recycling center. (Pub. Resources Code, § 14572, subd. (a)(1);
Tomra Pacific Inc., at p. 471.)
Recycling centers, in turn, can then sell these empty containers to certified
recycling processors such as RSA, which reimburse centers for any CRV paid plus a
processing payment and an administrative fee. (Pub. Resources Code, §§ 14573.5 &
14518.) The payments to centers are based on its DR-6 shipping report (DR-6), which
lists the commodity type and redemption weight. The recycling processor then weighs
the load and issues a weight ticket, which is attached to the DR-6.
2
After paying the center, a recycling processor may obtain reimbursement plus an
administrative fee from CalRecycle, which pays the processor from the Recycling Fund.
(Pub. Resources Code, § 14573; Tomra Pacific, Inc., supra, 199 Cal.App.4th at pp. 471,
474.) The recycling processor’s DR-7 reimbursement form (DR-7) includes the relevant
DR-6 forms from the centers.
2. RSA’s and Defendant’s Actions to Defraud CalRecycle
From 2012 through 2015, RSA falsified weight tickets of material it received from
recycling centers. RSA did this by manually entering weight amounts, rather than relying
on the truck weight scale that automatically created a weight ticket. RSA also created
reprinted weight tickets, which were edited versions of a regular ticket. As a result of
submitting these invalid weight tickets, RSA received additional payments from
CalRecycle in the tens of millions of dollars.
In addition to personally falsifying weight tickets, defendant also trained and
instructed other employees to do the same. In exchange, defendant received
approximately $300,000 between January 2012 and August 2017.
In May 2015, CalRecycle employees conducted an onsite investigation of RSA.
Although no invalid weight tickets were recorded while the investigators were there,
multiple fraudulent tickets were created after the investigators left for the day.
The Department of Justice searched RSA’s offices in May 2016. Agents found
handwritten notes instructing employees on how to create manual weight tickets.
3. Plea and Sentencing
In September 2021, defendant pleaded guilty to five counts of committing fraud in
the recovery of recycling payments (Pub. Resources Code, § 14591, subd. (b)(1)), five
counts of forging and falsifying public records or documents (§ 115, subd. (a)), two
counts of offering a forged document as genuine (§ 132), two counts of falsifying
documents to be used as evidence (§ 134), and one count of perjury (§ 118). As part of
her plea, defendant agreed to a seven-year sentence in state prison, with execution
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suspended pending successful completion of probation. She also agreed to pay
CalRecycle restitution in an amount to be determined by the trial court. Additional
related charges against defendant were dismissed with a Harvey waiver.2
RSA also pleaded guilty to one count of committing fraud in the recovery of
recycling payments. (Pub. Resources Code, § 14591, subd. (b)(1).) Per the parties’
agreement, the trial court ordered RSA to pay a $1 million fine and $33 million in victim
restitution to CalRecycle.
Later that month, the trial court sentenced defendant to an aggregate term of seven
years in state prison, with the execution of the sentence suspended pending the successful
completion of five years of probation. The court also imposed a $10,000 restitution fine
(§ 1202.4, subd. (b)(1)) and a corresponding $10,000 probation revocation fine
(suspended unless probation is revoked) (§ 1202.44). The court also ordered defendant to
pay restitution to CalRecycle in an amount to be determined by the court and set a
hearing.
4. Victim Restitution Hearing and Order
The prosecution sought approximately $80 million in restitution for CalRecycle,
which it argued represented the total amount of the 44,501 fraudulent weight tickets
submitted to CalRecycle, even though the actual damages for the increased weight was
only $18.7 million. In support of its argument, the prosecution filed a declaration from
Jeffrey A. Diamond, a senior staff counsel employed by CalRecycle who represented
CalRecycle in the administrative enforcement case against RSA, defendant, and another
former RSA employee. Diamond detailed how CalRecycle had investigated 2,727
fraudulent DR-7s from RSA, which were based on 44,555 DR-6s and 44,555 fraudulent
weight tickets. Defendant typically added an additional 200 pounds to each fraudulent
2 People v. Harvey (1979) 25 Cal.3d 754.
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ticket, resulting in 21.6 million pounds of added weight. Per Diamond, this was the
largest fraud case ever prosecuted by CalRecycle. Diamond stated that, in addition to the
total damages, there was $1,488,331.35 in interest owed to the Recycling Fund and
$312,945.67 for costs and fees.
Defendant responded that the prosecution had failed to show the Recycling Fund
had suffered any damages because it could not establish that RSA (or defendant) received
any funds to which it was not entitled. Defendant cited an audit performed on behalf of
RSA that showed CalRecycle only paid RSA the amounts that RSA had paid to the
recycling centers.
During the April 2022 restitution hearing, the prosecution stated it did not contend
that RSA had received reimbursement above what it had paid to the recycling centers.
Still, the issue was irrelevant because RSA had submitted falsified records and was the
“intermediary” for the recycling centers to get paid for materials that were either not
submitted or were ineligible for reimbursement. Moreover, RSA was compensated for its
“middleman” efforts. Diamond testified that, even if a portion of the falsified weight
tickets were legitimate, the entire ticket was tainted by the crime of adding weight,
especially since it was at this point impossible for CalRecycle to try to ascertain which
portion of the weight ticket was valid. Diamond acknowledged CalRecycle would also
seek reimbursement in any administrative action, but there would be no double counting.
In May 2022, the trial court ordered defendant to pay CalRecycle direct victim
restitution as follows: (1) $18,713,554.06 for the actual economic harm caused by the
fraudulent weight alterations; (2) $1,871,355.40 in interest; and (3) $312,945.67 for costs
and fees. With respect to the costs and fees award, the court reasoned that, as a public
agency, CalRecycle had not been directly victimized for purposes of restitution for costs
pursuant to section 1202.4. Instead, CalRecycle was entitled to the award because costs
were recoverable pursuant to Public Resources Code sections 14591.3 and 14591.4. The
court further noted that defendant had not objected to the costs request.
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DISCUSSION
I
Defendant does not challenge the trial court’s $18.7 million restitution award for
CalRecycle’s economic harm or the $1.9 million interest award. Instead, defendant
contends the trial court erred in awarding $312,945.67 in costs and fees, arguing
CalRecycle was not entitled to such reimbursement for investigative costs under People
v. Ozkan (2004) 124 Cal.App.4th 1072 (Ozkan).3 Defendant further argues the trial court
erred in determining that CalRecycle was entitled to such costs pursuant to Public
Resources Code sections 14591.3 and 14591.4 because those sections limit recovery of
costs to administrative or civil actions, rather than criminal ones.
The People reply that defendant has forfeited the argument on appeal by failing to
object to restitution for costs in the trial court. Citing People v. Blackburn (1999)
72 Cal.App.4th 1520 (Blackburn), defendant argues the rule of forfeiture does not apply
where the sentence was unauthorized. (Id. at p. 1534.) In the alternative, defendant
argues her trial counsel was ineffective for failing to object. (See People v. Mai (2013)
57 Cal.4th 986, 1009-1010 [a defendant claiming ineffective assistance of counsel must
prove that their attorney’s representation was deficient and that they suffered prejudice as
a result].) Given that defendant is arguing a portion of the victim restitution was
unauthorized, we turn to defendant’s claims and find them meritless. (See Blackburn, at
pp. 1533-1534.)
3 Defendant correctly notes that public entities like CalRecycle are not entitled to
attorney fees under section 1202.4. (§ 1202.4, subd. (f)(3)(H) [permitting actual and
reasonable attorney fees accrued by “a private entity”].) However, given the general
presumption that a judgment is correct on appeal, we assume without deciding that the
trial court’s award was for investigative costs rather than attorney fees. (See People v.
Sanghera (2006) 139 Cal.App.4th 1567, 1573 [a judgment challenged on appeal is
presumed correct].)
6
As a preliminary matter, we note that Public Resources Code sections 14591.3 and
14591.4 only permit CalRecycle to recover investigative costs and fees in “any civil or
administrative action.” (Pub. Resources Code, § 14591.3; see also Pub. Resources Code,
§ 14591.4 [permitting CalRecycle to seek restitution for moneys illegally paid by the
Recycling Fund plus interest, but not addressing investigative costs].) As such, these
provisions are inapplicable in these criminal proceedings.
However, this does not end the inquiry, since section 1202.4, subdivision (f)
requires a court to order the defendant to make restitution where a victim has “suffered
economic loss as a result of the defendant’s conduct.” Section 1202.4 “requires victims
to be fully reimbursed ‘for every determined economic loss incurred as the result of the
defendant’s criminal conduct’ and contains an expressly nonexclusive list of
reimbursable losses, ‘including, but not limited to:’ economic loss such as
‘[w]ages . . . lost by the victim . . . due to time spent as a witness or in assisting the police
or prosecution.’ ” (People v. Clapp (2021) 62 Cal.App.5th 862, 867 (Clapp), quoting
§ 1202.4, subd. (f)(3), (f)(3)(E).) As courts have noted, “ ‘ “ ‘ “ ‘[a] victim’s restitution
right is to be broadly and liberally construed.’ ” ’ ” ’ ” (Clapp, at p. 868.) Section 1202.4
defines “ ‘victim’ ” to include governmental agencies “when that entity is a direct victim
of a crime.” (§ 1202.4, subd. (k)(2), italics added; see also People v. Torres (1997)
59 Cal.App.4th 1, 3 (Torres) [“a defrauded government agency can be a victim entitled to
restitution”].) We review for abuse of discretion a trial court’s order regarding restitution
for a governmental agency’s investigative costs. (Ozkan, supra, 124 Cal.App.4th at
p. 1075.)
Courts have made clear that, where a government entity is not a direct victim of
the crime, it is not entitled to restitution for investigative costs. For example, in Ozkan,
the defendant and his gas station business were involved in a scheme to sell regular
gasoline as higher priced midgrade and premium gasoline. In addition to overcharging
the public, the business failed to remit to the State Board of Equalization (SBE) the full
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amount of sales tax collected on gasoline sold at the defendant’s gas stations. The
defendant eventually pleaded guilty to grand theft and filing false sales tax returns.
(Ozkan, supra, 124 Cal.App.4th at p. 1074.) On appeal, the People argued the trial court
erred in refusing to order restitution for the investigative costs of SBE and the Division of
Measurement Standards, which enforces and certifies the quality of petroleum products.
(Id. at p. 1075.) Although the appellate court ultimately agreed the agencies’
investigative costs were recoverable pursuant to Business and Professions Code section
12015.5,4 the court noted that public agencies were not generally directly “ ‘victimized’ ”
for purposes of section 1202.4 “merely because they spend money to investigate crimes
or apprehend criminals.” (Ozkan, at p. 1077; see id. at pp. 1077-1078.)
Similarly, in Torres, the appellate court struck an award for restitution where
sheriff’s deputies investigating illegal drug trafficking had used county funds to buy
illegal drugs from the defendant. (Torres, supra, 59 Cal.App.4th at pp. 4-5.) The court
reasoned that law enforcement agencies investigating criminal activity were not direct
victims for purposes of section 1202.4. (Torres, at pp. 4-5.)
However, where a government entity is a direct victim of a crime, courts have
found the entity is entitled to restitution for investigative costs. For example, in Clapp,
the defendant, a California Highway Patrol (CHP) officer, began collecting disability
payments after being injured on the job. These payments came out of the budgets of
CHP and the State Compensation Insurance Fund (SCIF). (Clapp, supra, 62 Cal.App.5th
at p. 865.) After being investigated by CHP and SCIF, the defendant eventually pleaded
guilty to charges related to disability fraud. (Id. at p. 866.) The trial court awarded
restitution for (1) the payments the defendant fraudulently obtained and (2) CHP and
4 Business and Professions Code section 12015.5 provides that an order for recovery
of investigative costs “shall” be imposed when a defendant is convicted of violating any
of the portions of this division.
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SCIF’s investigative costs, which included over 1,800 hours in salary costs for both
entities. (Id. at pp. 865-866.) On appeal, the defendant only challenged the restitution for
investigative costs. (Id. at p. 865.) This court affirmed, reasoning that CHP and SCIF
were entitled to such restitution since they were “both direct victims of defendant’s
fraud” given that they had both paid the defendant money he had fraudulently obtained
from them. (Id. at p. 869; see id. at pp. 868-869, 873.)
We are persuaded this case is akin to Clapp rather than Torres or Ozkan. Unlike
the various enforcement agencies seeking reimbursement for investigative costs in Torres
and Ozkan, here CalRecycle did much more than merely investigate defendant’s crimes.
Similar to CHP and SCIF in Clapp, CalRecycle erroneously paid over $18.7 million from
its Recycling Fund directly to RSA based on fraudulent weight tickets prepared by
defendant and other employees. As previously noted, the Recycling Fund is managed by
CalRecycle and used to pay CalRecycle’s operating costs and various programs it runs,
meaning CalRecycle suffered direct economic harm due to defendant’s criminal actions.
Defendant appears to acknowledge this harm, since, just like the defendant in Clapp, she
fails to challenge on appeal the trial court’s award of $18.7 million in restitution for
economic harm. In sum, because CalRecycle is a direct victim of defendant’s fraud, it
was entitled to restitution for the investigative costs it incurred to uncover this fraud.
Although the trial court did not state this rationale in issuing its direct victim restitution
award, we will affirm because the trial court’s restitution award was correct. (See People
v. Zapien (1993) 4 Cal.4th 929, 976 [if the decision was correct on any theory of law
applicable to case, it must be upheld on appeal even though trial court gave the wrong
reason].)
Given our conclusions, we find no merit in defendant’s argument that her attorney
provided ineffective assistance in failing to object to the investigative costs award.
(People v. Ochoa (1998) 19 Cal.4th 353, 463 [trial counsel’s representation is not
deficient “for failing to make meritless objections”].)
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II
Defendant next argues she is entitled to credit for any direct victim restitution
payments made by RSA and asks that we modify the judgment to reflect that she and
RSA are jointly and severally liable for the direct victim restitution order. The People
state they have “no objection to any offset for restitution made by RSA,” but argue
defendant has forfeited the issue because she failed to raise it at the trial court during
sentencing.5 We will address the merits of defendant’s claim. (Blackburn, supra,
72 Cal.App.4th at pp. 1533-1534 [a defendant does not forfeit their contention that victim
restitution must be joint and several merely because they failed to object at the trial
court].)
In a criminal case with multiple defendants, the trial court has the authority to
order the codefendants to pay victim restitution jointly and severally. (Blackburn, supra,
72 Cal.App.4th at p. 1535.) Where a trial court is silent as to whether it has ordered joint
and several victim restitution, appellate courts can modify the judgment where it appears
this was what the trial court intended. For example, in Blackburn, one of the defendants
encouraged the other to shoot and kill two teenagers, and then drove the getaway car.
(Id. at p. 1524.) During sentencing, the trial court ordered each defendant to pay direct
5 The People further argue that the issue is not ripe because the record fails to
indicate that the trial court actually ordered RSA to pay restitution to CalRecycle, or that
RSA has made any payments. Although there is no evidence as to whether RSA has
made any payments, we disagree with the People’s suggestion that RSA was not ordered
to pay restitution. During the September 3, 2021, hearing, RSA’s counsel asked for
“Immediate sentencing for the corporate entity.” After explaining it was not going to
sentence defendant that day, the court stated, “And on the sentencing for the corporate
defendant . . . . [¶] . . . [¶] [RSA] will pay a fine of one million dollars. [¶] Will pay
restitution to CalRecycle in the amount of 33 million dollars. [¶] And I believe that
completes the conditions that the parties proposed to include at sentencing.” RSA’s
counsel agreed the sentence accurately reflected the plea deal. As such, we interpret the
record to mean that the trial court ordered RSA to pay restitution to CalRecycle and we
will consider defendant’s contentions.
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victim restitution of approximately $7,600. (Id. at p. 1533.) On appeal, the defendants
argued this was in error and would result in unjust enrichment. The appellate court
agreed and modified the judgment accordingly, noting that it was “glaringly obvious”
that the trial court was ordering the defendants to pay direct victim restitution jointly and
severally. (Id. at p. 1535.) The court further noted that each defendant was entitled to a
credit for any actual payments by the other. (Ibid.)
Although the amounts imposed on RSA and defendant were different, the losses
were a result of the same fraud. Defendant argues that just as in Blackburn, the court
must have intended the victim restitution to be joint and several and she asks us to make
it so. In an abundance of caution, we will modify the judgment against defendant to state
that the direct victim restitution ordered is joint and several. (See Blackburn, supra,
72 Cal.App.4th at pp. 1535-1536.)
DISPOSITION
The judgment is modified to state that defendant is jointly and severally liable for
the direct victim restitution. As modified, the judgment is affirmed. The trial court is
directed to prepare an amended abstract of judgment in accordance with this opinion and
to forward a certified copy to the Department of Corrections and Rehabilitation.
/s/
EARL, P. J.
We concur:
/s/
MAURO, J.
/s/
KRAUSE, J.
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