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Orly v. Matthews

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO
May 8, 2012
A131606 (Cal. Ct. App. May. 8, 2012)

Opinion

A131606

05-08-2012

ELVIRA J. ORLY, as Administrator etc., Plaintiff and Respondent, v. RICKY D. MATTHEWS, Objector and Appellant; VICTIM COMPENSATION AND GOVERNMENT CLAIMS BOARD, Real Party in Interest.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Alameda County Super. Ct. No. RP09441460)

Ricky D. Matthews appeals a probate court order distributing to real party in interest the Victim Compensation and Government Claims Board (board) $12,167.15 he inherited from an estate administered by respondent Elvira J. Orly (Orly). The amount goes to partially satisfy a $15,000 lien by the board for victim restitution fines against Matthews in two criminal cases. Acting as his own attorney while serving a life term in state prison for one of those cases, Matthews claims that the distribution was unauthorized, like a restitution order in People v. Willie (2005) 133 Cal.App.4th 43, 52 (Willie). We disagree and affirm the order.

The caption of the March 1, 2011, order is "ORDER ON SECOND AMENDED FIRST AND FINAL ACCOUNT AND REPORT OF ADMINISTRATOR AND PETITION FOR ITS SETTLEMENT, FOR ALLOWANCE OF COMPENSATION FOR ORDINARY AND EXTRAORDINARY SERVICES AND FOR FINAL DISTRIBUTION," but Matthews disputes only the distribution of the $12,167.15 to the board.

DISCUSSION


Scope of the Issues

Matthews does not attack the validity of the underlying restitution fines, each imposed under Penal Code section 1202.4. At the board's request, we have taken judicial notice of documents showing a fine of $10,000 imposed in 2005 (People v. Matthews (Super. Ct. Sacramento County, 2005, No. 03F04350)), a fine of $5,000 imposed in 2009 (People v. Matthews (Super. Ct. Solano County, 2008, No. VCR1557380)), and this court's limited reversal and remand on appeal in the latter action not affecting the restitution (People v. Matthews (June 3, 2011, A123754) [nonpub. opn.]). Nothing before us shows an appeal or reversal of the fine in the other action. Thus, and without implying that challenges could be raised this late, there is simply no dispute about authorization for the fines themselves.

Matthews variously attacks the distribution order as an abuse of discretion, excess of jurisdiction, failure to apply applicable law, violation of Government and Penal Code sections, and a denial of his "constitutional rights to due process and property." But the crux of his argument rests on passages from Willie.

The "Willie" Decision and Statutory Authority

Willie was an unusual case. A local police department possessed funds seized from the defendant at the time of his arrest and refused to turn them over to the district attorney for payment of a restitution fine. The district attorney eventually secured the funds not through the usual procedures for enforcing a money judgment, but by moving the sentencing court to order a release of the funds to the board; and the court purported to do this through a nunc pro tunc order modifying its judgment of sentence. (Willie, supra, 133 Cal.App.4th at pp. 46-47.) This presented Division Five of our District with a thicket of issues. It held that the motion for release of funds was not a code-authorized method of enforcement, and that the court in any event had no jurisdiction to modify its judgment after 120 days. It also observed that the order "had the unfortunate effect of aborting [] enforcement proceedings that were underway by writ of execution." (Id. at p. 49.) The remedy was: "[T]he order made by the sentencing judge releasing the funds from the police department nunc pro tunc to the date of sentencing was unauthorized and must be set aside. However, we will remand the matter for proceedings on enforcement of the restitution fine as a money judgment." (Id. at p. 52, fn. omitted.) That disposition, and the need to provide guidance on remand, entailed discussion of the common law, the available code provisions, and how those provisions applied to the unusual facts of the case, including that the funds were held in trust by a third party, the police department.

Matthews relies on that broader discussion to fuel his claim that the distribution here was unauthorized. He stresses that "it is the State Controller who collects debts owed to the state" (citing Gov. Code, § 12418), that there was no indication in Willie "that the district attorney was acting at the request of the Controller pursuant to Penal Code section 1202.43" (Willie, supra, 133 Cal.App.4th at p. 52, fn. 9), and that while "the Controller is one member of the three-member [board] (Gov. Code, § 13901), the [board] cannot be equated with the Controller." (Ibid.) He believes that the same is true here and also quotes from Willie: "The [board] is separately given authority to enforce an unpaid portion of a restitution fine—but only after the defendant is released and is no longer on probation or parole. (Pen. Code, § 1214, subd. (a).) Because defendant remains in prison, enforcement by the [board] seems to be premature." (Ibid.) Matthew believes that this helps him because he is still serving a life term in prison.

He also reasons that, while a restitution fine may be enforced in the same manner as money judgments generally, with or without imprisonment (Pen. Code, § 1214, subd. (a)), and by payment out of a prisoner's earnings (§ 1202.42), this requires a hearing on ability to pay and allows for execution on an order already entered, not for entry of a civil judgment in the first place. As will be seen in the ensuing discussion, there is no need to explore the correctness of his position.

The Law Governing Our Facts

The case before is very different from Willie. It was triggered not by prison earnings, ability to pay, or action against a third-party trustee, but by the appointment of Orly as administrator of Matthews's grandmother's estate. Orly was not only authorized but required by statute, as a personal representative or estate attorney, to notify the board of the grandmother's death within 90 days if Orly knew or had reason to believe that an heir was confined in prison. (Prob. Code, §§ 9202, subd. (b), 216 [contents of notice].) Orly did so on August 11, 2009, well within the 90 days from her appointment on June 10 of that year, and receipt of that notice by the board triggered a four-month period in which it was not only authorized but required "to pursue collection of any outstanding restitution fines or orders." (Ibid.) The board filed its notice of lien for Matthews's restitution fines on September 9, less than one month after Orly's notice.

Matthews raises no argument that the Probate Code provisions were violated. Willie did not consider or apply those provisions. The case did not involve an estate, and even if it had, the Legislature first added the board-notification and claim provisions of Probate Code section 9202, subdivision (b) (Stats. 2005, ch. 238, § 4, p. 2489), after the 2004 events at issue in Willie (Willie, supra, 133 Cal.App.4th at pp. 46-47).

DISPOSITION

The challenged order is affirmed.

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Kline, P.J.

We concur:

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Haerle, J.

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Lambden, J.


Summaries of

Orly v. Matthews

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO
May 8, 2012
A131606 (Cal. Ct. App. May. 8, 2012)
Case details for

Orly v. Matthews

Case Details

Full title:ELVIRA J. ORLY, as Administrator etc., Plaintiff and Respondent, v. RICKY…

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

Date published: May 8, 2012

Citations

A131606 (Cal. Ct. App. May. 8, 2012)