Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CM020579
BUTZ, J.This is a People’s appeal from an order after judgment (Pen. Code, § 1238, subd. (a)(5)) limiting the means of recovery of restitution. The restitution was awarded as a condition of an order of probation following a plea of nolo contendere to a charge of welfare fraud. (Welf. & Inst. Code, § 10980, subd. (c)(2).) The trial court limited recovery of the award for the value of food stamps overissued to defendant Pahoua Lo based on a determination by the California Department of Social Services (DSS) that the overpayment under food stamp regulations was caused by administrative error. The Attorney General contends the trial court erred because: (1) there is no evidence to support a finding that the overissuance of food stamps was determined by DSS to have been due to administrative error; and (2) defendant’s plea precludes such a finding being legally correct. We shall affirm the order limiting the means of recovery of restitution.
Undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
From December of 1998 through July of 2002 defendant received food stamps under the former federal Food Stamp Program. (Welf. & Inst. Code, § 18900; 7 U.S.C. § 2011 et seq.) She received $15,129 in food stamps during this period, to which she was not entitled, based upon income that she had received. From December of 1998 through October 2001 defendant also received a cash grant under the California Work Opportunity and Responsibility to Kids Act (CalWORKS). (§ 11200.) She received a cash overpayment of $15,136 during this period, to which she was not entitled, based upon income that she had received.
Effective October 1, 2008, the Food Stamp Act of 1977 has been renamed “The Food and Nutrition Act of 2008” and the terms “supplemental nutrition assistance program” have been substituted for the “food stamp program.” (7 U.S.C. § 2011 et seq.)
In August of 2002, the Butte County Welfare Department (CWD) sent defendant a written notice that she had been overpaid and that the overpayment was caused by her error in failing to properly report income. She requested a state hearing (§ 10950), contending in part that the cash overpayment and the overissuance of food stamps were attributable to administrative error rather than her error. The contention rested on the claim that the CWD failed to assist her in understanding and discharging her responsibilities.
The hearing decision, adopted by DSS on May 19, 2003, contains the following statement of facts pertaining to this contention.
“[Defendant] first applied for assistance in November 1992. She was 18 years old and pregnant. Food stamps were denied because she was a member of her mother’s household. [Defendant] was not a citizen of the United States. Hmong was her primary language. However, her rights and responsibilities have always been written and explained in English as she requested. (Indeed, in 2001 she requested that English, not Hmong, be considered her ‘primary language’ by the county welfare department). In August 1998, [defendant] advised her Welfare to Work case worker that she would start working part-time for the Chico Unified School District ([CUSD]) in the fall. She would be paid to provide interpretive services. Child care and work clothing were provided as supportive services in the Welfare to Work program. In September 1998, she reported working for CUSD three hours daily in the morning commencing August 21, 1998. In November 1998, three official Welfare to Work records indicate [defendant] was working [15] hours weekly for CUSD. In December 1998, official records indicate she earned $9.60 per hour at CUSD. In January 1999, she reported that her Welfare to Work activity assignment was ‘unsubsidized employment at 15 hours a week.’ Not only did the Welfare to Work case worker know [defendant] was working at CUSD, her social services case worker was advised in July 1998 that she intended to start work in August and wanted child care assistance. The eligibility worker’s notes indicate [defendant] was told that she would get child care assistance only for ‘the amount of hours that she is actually working.’ In late August 1998, the eligibility worker’s notes indicate [defendant] informed the case worker that she started working ‘a few weeks ago.’ [Defendant] indicated she could not make Welfare to Work enrollment in September 1998 because she worked from nine until noon five days a week. Later that month, she reported she worked three hours five days a week and would be paid at the end of the month. [Defendant’s] timely September 1998 SAWS-7 reported that she started working at CUSD. Attached to the monthly income report was a payroll check stub. However, she was not paid until October 1, 1998 and the reporting was premature. This error apparently was not explained to [defendant]. The SAWS-7 was processed without correction. No discontinuance notice was mailed.
CalWORKS and food stamp recipients are required to submit a monthly “Statement of Eligibility” (SAWS-7) in addition to an annual reassessment. Failure to do so in a timely manner may result in an immediate termination of benefits.
“In November 1998, the case worker processed the first of nine IEVS/New Hire alerts indicating [defendant] was working at CUSD. None of the alerts was determined to be accurate. The alerts were dismissed as inaccurate from November 1998 to December 2001. Supposedly, there was no income reporting ‘discrepancy’ because the social services case worker incorrectly considered [defendant] to be working at ‘Butte Works’ or some Welfare to Work subsidized work program. Subsidized income would have [been] treated as earnings[,] which are exempt from reportable and countable income status. The case worker failed to confirm her determination with the Welfare to Work case worker.
“The Welfare to Work case worker and social services case worker exchanged information about [defendant’s] employment in February 1999 when the social worker observed that [defendant] failed to report income on the SAWS-7 for November and December 1998. No action was taken other than a letter mailed in February 1999 about reporting income in the wrong month instead of not reporting income at all. No action was taken when [defendant] failed to report income on the 1999 February or March SAWS-7 forms. On June 30, 1999, the Welfare to Work case worker asked [defendant] about her failure to report earned income. [Defendant] responded that she thought she had to report income only once since her hours and earnings were constant. The Welfare to Work case worker’s notes indicate she spoke to the social services case worker about two weeks later and was informed the matter had been referred to the fraud unit. About three years later, the county welfare department requested [defendant] permit release of employment information from her employers.
“[Defendant’s] major source of income was IHSS [In-Home Supportive Services] earnings as care provider for her mother and two disabled children. In December 1999, she signed up as a potential provider of IHSS care for her son. In the process, she signed a consent form for release of social, financial, and medical information. The form enables the county welfare department to ascertain her social, financial, medical status and special needs, if any. A home visit was conducted. During the assessment, the social worker observed [defendant] had emotional problems (panic, anxiety and depression) arising from domestic violence. A couple of years later, her ‘husband’ was prosecuted for domestic violence.”
On the basis of this history, the hearing decision found that the CWD failed to meet its obligation. “On account of the county welfare department’s nonfeasance, as a matter of public policy, the entire overpayment and overissuance are treated as being caused by administrative error.”
However, the hearing decision found that repayment of the overpayment and overissuance was not subject to equitable estoppel. Even though “the county welfare department was aware of [defendant’s] employment income from the inception” and the defendant “reasonably believed the grant and allotment she received were correct,” the decision found she had “unclean hands” because she “undisputedly failed to fulfill her responsibility of timely and accurately reporting.” The decision concluded: “Public policy strongly demands repayment of the excess benefits when they are caused by failure to report income.”
On March 11, 2004, the criminal complaint was filed in this case, charging defendant with one count of welfare fraud (§ 10980, subd. (c)(2)) and one count of perjury (Pen. Code, § 118) on her income reports to CWD authorities.
On May 24, 2004, defendant petitioned, in the Superior Court of San Francisco County, for a writ of administrative mandamus to overturn the DSS hearing decision insofar as it denied equitable estoppel.
On September 22, 2004, this case came on for criminal trial before a jury. On September 28, 2004, after two days of jury trial, defendant pleaded no contest to the welfare fraud count, as a felony, and the perjury count was dismissed. On November 8, 2004, the court granted defendant probation. It imposed a restitution obligation of the full aggregate amount of the overpayment and overissuance, $30,265. However, noting that “there are equities at play in this case,” the court stayed the imposition of the restitution obligation, beyond the amount presently being collected, until there was a final termination of the civil writ proceedings.
On January 19, 2006, the San Francisco County Superior Court granted the writ of administrative mandamus. The court explained the basis for its decision essentially as follows:
The court denied the motion of DSS to take judicial notice of defendant’s nolo contendere plea in this case on the ground that such a plea is inadmissible in an administrative proceeding absent statutory authorization. (See Cartwright v. Board of Chiropractic Examiners (1976) 16 Cal.3d 762, 773.)
“Here, the CWD was extremely and repeatedly negligent. It possessed the information it needed to stop any overpayment and correct [defendant’s] grant. And, in violation of its obligations to assist [defendant] and act humanely, if not in bad faith, the CWD chose to pursue fraud instead of explaining to [defendant] how to report. Based on the above, this Court finds that [defendant] did not understand how to report her income correctly.
“The record also demonstrates that [defendant] did not hide her income. [Defendant] repeated[ly] reported her employment by Chico Unified School District. The CWD knew her hours, and schedule, and when she would be on break. The agency knew this was paid employment and knew, from the first month of the overpayment, that there was an error [on defendant’s] status report form. The CWD also knew [defendant’s] family was on CalWORKs cash aid when she applied for IHSS for her household members. It further received regular reporting of [defendant’s] hours of IHSS services, and was her employer, and is in privity to the CalWORKs department. This Court concurs with the ALJ’s finding that the agency therefore had imputed knowledge of [defendant’s] IHSS income. This Court finds that [defendant’s] failure to list this income was an aspect of her misunderstanding of how to report. When [defendant] thought she no longer needed cash assistance, she requested that the CWD discontinue her aid. As such, and because the CWD had the information that [defendant] had income and failed to correct it, the record does not support the finding that [defendant] had unclean hands.
“Next, the Court needs to determine whether granting equitable estoppel would undermine a strong rule of public policy. City of Long Beach v. Mansell, 3 Cal.3d 462, 493 (1970). Respondent argues that granting estoppel would undermine the public policy of paying out only funds to which recipients are entitled. [Defendant] asserts that denying estoppel would undermine the same policy, as the CWD in this case knew it was paying excess benefits and decided to continue doing so in order to pursue a fraud case. [Defendant] further asserts that estoppel ‘may provide an impetus for [the welfare department] to more adequately monitor and control such payments’ and to follow the law. Kramarevcky v. Dept. of Social and Health Services, 122 Wash.2d 738, 749 (1993).
“This Court agrees with [defendant]. The [CWD’s] agents must recognize that it is not in the business of allowing overpayments to rack up, and then dismiss the overpayment as an ‘interest free loan’ to the recipient. This is neither humane to recipients, who, like [defendant], could be criminally prosecuted instead of having a relatively small overpayment of less than $400, nor responsible caretaking of the public funds. Granting estoppel will not undermine an important public policy, and instead may well help to enforce several important policies.”
Thereafter, on May 16, 2006, DSS issued an amended hearing decision directing the CWD to cease collection of the cash grant overpayment and return any monies collected thereon.
On July 26, 2006, the district attorney filed a motion to lift the stay in the criminal case and determine the amount of restitution and the manner of recovery, in light of the civil administrative proceedings. At the first hearing on the motion the parties agreed to: (1) credit the amount of the cash overpayment against the earlier restitution order’s aggregate amount of the overpayment and overissuance, $30,265, leaving a balance of $15,129, attributable to the overissuance of food stamps and (2) credit against the balance the amount of money collected to recover the cash overpayment.
Before the second hearing on the prosecution’s motion, defendant filed a brief asserting that because the May 19, 2003 DSS hearing decision found that the overissuance was to be treated as caused by administrative error, the recovery of restitution should be limited as provided by DSS directives pertaining to such an overissuance. The directives were engendered by a settlement, in July of 2000, of a Sacramento County Superior Court lawsuit brought against DSS, Lomeli v. Saenz (No. 98CS01747), concerning settling or compromising claims “resulting from an administrative error overissuance.”
At the second hearing defendant argued that, under Lomeli and the ensuing regulations, if an administrative decision is made that an overissuance was caused by administrative error, recovery of the overissuance is limited to the means prescribed in those regulations. The regulations became effective August 1, 2001.
The prosecutor agreed that the regulations issued under Lomeli applied. However, he argued that there had been no determination in the administrative proceedings in this case that the overissuance of food stamps was caused by administrative error. In his view, the original hearing decision, “was taken up, and half of the balance was challenged. The other half of the balance was not challenged.” Thus, “As I see this, there was no error on the half [i.e., the overissuance of food stamps] that we’re demanding restitution on.” He argued the Lomeli limitations should not apply, “Because that requires the antecedent decision that it was county error on that balance. And my assessment is that that has never been the case.”
Defendant replied that both the overpayment and the overissuance had been deemed administrative error, but that only an overpayment is subject to the doctrine of collateral estoppel. (See generally Vang v. Healy (E.D.Cal. 1992) 804 F.Supp. 79.) That was why the writ was taken only with respect to the overpayment.
The matter was submitted and the court made an order, in pertinent part, that the amount of restitution was $15,129, that the payments already made would be subtracted from that, and the balance shall be collected in accordance with the Lomeli limitations.
DISCUSSION
The Attorney General contends that the trial court erred in limiting restitution in accordance with the Lomeli regulation limitations. He argues that: (1) the record contains no basis for a finding that DSS determined the overissuance of food stamps was due to administrative error; (2) the settlement in the Lomeli case has no application to a case where the overissuance is due to recipient fraud, with or without administrative error; and (3) the trial court failed to state on the record any “compelling and extraordinary reasons” not to grant “full restitution” as required by Penal Code section 1202.4, subdivision (f).
The only claim that was tendered to the trial court was that there had been no determination in the administrative proceedings in this case that the overissuance of food stamps was caused by “administrative error.” There is ample support in the record for a finding that DSS determined in the 2003 fair hearing decision in this case that the overissuance of food stamps was due to administrative error. As related, the decision expressly found: “On account of the county welfare department’s nonfeasance, as a matter of public policy, the entire . . . overissuance [is] treated as being caused by administrative error.” The CWD did not appeal that determination. Thus, the contention that the trial court erred in impliedly finding that DSS determined the overissuance of food stamps was due to administrative error for want of sufficient evidence has no merit.
There was no claim in the trial court that restitution could not be limited to that allowed for administrative error cases under the Lomeli case, or, more pertinently, under the post-Lomeli food stamp regulations, in case of welfare fraud even if there had been a DSS determination that the overissuance was caused by administrative error. Nor was there any complaint of lack of special findings on the limitation on restitution. “[C]omplaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal.” (People v. Scott (1994) 9 Cal.4th 331, 356.) This doctrine applies to failure to make findings on the record. (See People v. Velasquez (2007) 152 Cal.App.4th 1503, 1511.) It applies to the prosecution when it fails to raise an issue concerning restitution. (See, e.g., People v. Fortune (2005) 129 Cal.App.4th 790, 793-794.) On this record we cannot fault the trial court’s ruling limiting recovery of restitution to the CWD to the means provided for cases caused by administrative error.
Indeed, the food stamp regulations, necessary to examine their application to a case such as this and the merits of a claim of error in the administrative decision, were not provided to the trial court.
DISPOSITION
The order limiting the means of restitution is affirmed.
We concur: SIMS, Acting P. J. ROBIE, J.