P. v. Ratnaweera

Filed 3/15/07 P. v. Ratnaweera CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from an order of the Superior Court of Los Angeles County, Mark V. Mooney, Judge. Affirmed.

Law Offices of John F. Schuck and John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

_________________________

Following remand for recalculation of restitution owed, the trial court ordered as a condition of probation that Danasiri Ratnaweera (Ratnaweera) pay a total of $59,589.74 in restitution. Ratnaweera appeals from the trial courts order.^[1]

FACTUAL AND PROCEDURAL BACKGROUND

In February, 2004, a jury found Ratnaweera guilty of fraudulently obtaining more that $50,000 in aid to which he was not entitled (Welf. & Inst. Code,  10980, subd. (c)(2), Pen. Code,  12022.6, subd. (a)), and four counts of perjury (Pen. Code,  118).^[2] The trial court granted Ratnaweera probation and ordered him to pay $59,589.74 in restitution. On appeal, it was determined that, due to problems of proof, Ratnaweera could not be held liable for a portion of the restitution ordered; it could not be shown he had unlawfully received aid due to misstatements made with regard to the county in which he lived prior to November, 1996. Accordingly, in its February 9, 2005 opinion in case number B174285, this court vacated the trial courts order requiring Ratnaweera to pay to the Los Angeles County Department of Public Social Services (DPSS) and the State of California, Department of Health Services restitution in the amount of $59,589.74 and remanded the matter to the trial court for recalculation of the restitution owed.

A hearing was held in the trial court on May 18, 2006.^[3] At those proceedings, Los Angeles Police Officer Maria Diaz, a fraud investigator assigned to the State of California, Department of Health Services, testified that as a result of her investigation she had determined Ratnaweeras fraudulent conduct had caused the State of California to overpay certain health care providers $16,260.69 between June of 1998 and September of 2000.

Karmen Karerre, a welfare computation clerk, is responsible for computing Cal-Works and food stamp[] overpayment[s]. She testified she reviewed general relief usage documents to determine the amount of loss to the DPSS due to Ratnaweeras fraudulent conduct from November 1, 1996 to September 23, 2003. According to her calculations, the Department overpaid Ratnaweera $27,241.55 in general relief. In addition, Ratnaweera fraudulently obtained $18,458.00 worth of food stamps.

In addition to the witnesses testimony, the People presented, and the trial court admitted into evidence, one 11 page document and one 14 page document in support of the Peoples calculations of the monies owed.

Based on the evidence presented at the hearing, the prosecutor indicated the People were seeking $16,260.69 for the Medi-Cal overpayment payable to the State of California, Department of Health Services, $27,241.55 for the general relief overpayment payable to DPSS and $18,458 for the food stamp over issuance payable to DPSS. The prosecutor argued the People had proven . . . or at least documented [that Ratnaweera] . . . owe[d] at least $59,589 for monies paid based on his false representations as to [his] need of aid when [he] in fact [was] living in [a] county other than Los Angeles.

It was determined that some of the figures included some monies paid, not just to Ratnaweera, but to both Ratnaweera and his wife. The trial court, however, indicated that, since the appellate courts opinion pertained only to Ratnaweera, the court could not make [Ratnaweeras wife] legally liable for anything further. The revised restitution figure could apply only to Ratnaweera.

Following a discussion between the court and the parties, the trial court indicated it was satisfied that the People ha[d] established that the appropriate amount of restitution to DPSS [was] in the sum of $45,609.55 and the appropriate amount in the Medi-Cal overpayment [was] the sum of $16,260.69. The court continued, That exceeds the amount that [Ratnaweeras wife] had originally agreed upon in terms of her plea agreement . . . . [However,] as [the court] stated previously, [it] will not increase the amount as to her. [] Likewise, the amount that the Court of Appeal[] had considered to be restitution was a total of $59,589.74[,] to be reduced for any payments during [the period prior to November, 1996]. Doing the recalculations[,] it seems that Mr. Ratnaweera does in fact owe more than that sum. However, for due process reasons[,] I dont think its appropriate for me to assess a greater sum than that. So, Mr. Ratnaweera, I am not going to basically punish you for having appealed the judgment in this matter. So you are going to get a little bit of a break here, [and] the court is going to award restitution in the sum of $59,589.7[4]. . . . That is . . . [$]45,699.55 to the Department of Social Service[s], L. A. County[,] and then the balance [of] $13,890.19 to the State of California, Department of Health Services for a total of $59,589.74.

The trial court indicated that each defendant was to be jointly and severally liable for payment of the restitution ordered, then stated, So, [as to Ratnaweeras wife], basically nothing has changed . . . . [She] will stay on probation [with] the same terms and conditions [as originally ordered]. And, Mr. Ratnaweera, the amount of restitution is really what it was before, but now we had a hearing to determine that.

Ratnaweera filed a timely notice of appeal from the trial courts order on May 25, 2006. In an order filed September 21, 2006, this court appointed counsel to represent Ratnaweera on appeal.

CONTENTIONS

After examination of the record, Ratnaweeras appellate counsel filed an opening brief which raised no issues and requested this court to conduct an independent review of the record.

By notice dated November 21, 2006, the clerk of this court advised Ratnaweera to submit within 30 days any contention, ground of appeal or argument he wished this court to consider. On December 28, 2006, Ratnaweera filed with this court 177 pages of briefing and exhibits, presented in eight different documents. He initially argues the new restitution order should be stayed or stricken as it is (1) not consistent with the appellate courts opinion in case number B174285, (2) there is no rational basis for the order, (3) the joint and several liability portion of the order is unlawful, (4) the restitution order violates the Eighth Amendment prohibition against cruel and unusual punishment as it is grossly disproportionate to the severity of the crime committed, (5) no fraudulent activity occurred with regard to the issuance of food stamps to Ratnaweeras household, (6) residence in a particular county is not required for receipt of Medi-Cal benefits, (7) absolutely no fraud was committed by [Ratnaweera] or [his] wife, and (8) Ratnaweera and his family do not have the financial ability to pay the restitution ordered. Ratnaweera further asserts the opening brief filed by his appointed appellate counsel should be stricken and he should be allowed to proceed on appeal in propria persona.

DISCUSSION

Ratnaweeras assertion the restitution order should be stayed or stricken as it is not consistent with the appellate courts opinion is without merit. In its disposition in People v. Ratnaweera, case number B174285, this court directed the trial court to recalculate and order restitution from the period beginning November 1, 1996. That is exactly what the trial court did. After holding a hearing with regard to the amount of restitution Ratnaweera owed from that date forward, the trial court made its order of restitution in accordance with the evidence presented.

Ratnaweeras contention there is no rational basis for the amount of restitution imposed is also without merit. The testimonial and documentary evidence presented at the May 18, 2006 hearing supports the trial courts order of $59,589.74 in restitution.

Ratnaweeras remaining contentions regarding why the new restitution order should be stayed or stricken are unavailing. The only issue considered at the hearing held after remand was whether the amount of restitution Ratnaweera owed as of November 1, 1996 had been correctly calculated. Accordingly, the only issues which may be considered on appeal from the order of restitution are those that directly question that calculation. (See People v. Murtha (1993) 14 Cal.App.4th 1112, 1123 [Claims which may be raised on appeal are limited to those which were raised in the trial court.]; People v. Sparks (1967) 257 Cal.App.2d 306, 310 [An issue not raised in the trial court may not be considered on appeal.].)

Finally, Ratnaweeras assertion his appointed counsels brief should be stricken and Ratnaweera should be allowed to proceed in propria persona is moot. Initially, a criminal defendant does not have a right to appear before this court in propria persona. (People v. Scott (1998) 64 Cal.App.4th 550, 579; In re Walker (1976) 56 Cal.App.3d 225, 227-229.) In any event, after appellate counsel filed his brief, Ratnaweera was given the opportunity to submit to the court a brief or letter raising any grounds of appeal, contentions or arguments he wished this court to consider. Ratnaweera responded by submitting documents raising numerous issues. He has thus already complied with the procedures set forth in People v. Wende (1979) 25 Cal.3d 436, 439 and has had his opportunity to be heard.

REVIEW ON APPEAL

We have examined the entire record submitted by Ratnaweera and are satisfied that Ratnaweeras appellate counsel has complied fully with counsels responsibilities. (Smith v. Robbins (2000) 528 U.S. 259, 278-284 [145 L.Ed.2d 756]; People v. Wende, supra, 25 Cal.3d at p. 443.)

DISPOSITION

The order of restitution is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ALDRICH, J.

We concur:

CROSKEY, Acting P. J.

KITCHING, J.

Publication courtesy of San Diego pro bono legal advice.

Analysis and review provided by Poway Property line attorney.

^[1] The order is appealable as an order made after judgment, affecting the substantial rights of the party. (Pen. Code, 1237, subd. (b); see People v. Zimmerman (1979) 100 Cal.App.3d 673, 674 [An order modifying probation is appealable.].)

^[2] Portions of the statement of facts are taken from this courts February 9, 2005 opinion in People v. Danasiri Ratnaweera, case number B174285. Accordingly, and pursuant to Ratnaweeras appellate counsels request, we hereby take judicial notice of the opinion in that matter. (Evid. Code, 452, subd. (d), 459.)

^[3] Ratnaweera acted in propria persona during those proceedings. Prior to the hearing, Ratnaweera filed with the trial court a Notice of/and Pre-emptive Motion to Strike Any & All Restitution Computations and a 270 page Defendants Brief. On more than one occasion during the proceedings, the trial court reminded Ratnaweera that the Court of Appeal[] already determined that [he was] liable for [the restitution] payments and that the only issue being considered was the proper time frame and the appropriate amount of restitution owed.