IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 STATE OF NEW MEXICO, 2 Plaintiff-Appellee, 3 v. No. 28,759 4 ISAAC MONTOYA, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 7 Charles W. Brown, District Judge 8 Gary K. King, Attorney General 9 Santa Fe, NM 10 for Appellee 11 Hugh W. Dangler, Chief Public Defender 12 Santa Fe, NM 13 Lisa Bozone, Assistant Appellate Defender 14 Albuquerque, NM 15 for Appellant 16 MEMORANDUM OPINION 17 SUTIN, Judge. 18 Defendant appeals his conviction for leaving the scene of an accident. We 19 issued a notice of proposed summary dis position, proposing to uphold the conviction 20 and sentence. Defendant filed a memorandum in opposition that we duly considered. 21 Because we remain unpersuaded, we affirm. 222 In his memorandum in opposition, Defendant renews all of the issues advanced 1 in his docketing statement. We address each in turn. 2 First, Defendant contends that he was improperly denied presentence 3 confinement credit. [MIO 8-12] Presentence confinement credit is only awarded 4 if the confinement is a direct result of the felony for which credit is sought. See State 5 v. Facteau , 109 N.M. 748, 750, 790 P.2d 1029, 1031 (1990) (discussing precedent for 6 the proposition that credit may properly beawarded only if the confinement was a 7 direct result of the offense). As desc ribed in our notice of proposed summary 8 disposition, Defendant was not confined as a direct result of l eaving the scene of an 9 accident. To the contrary, the record refl ects that he was confined for an unrelated 10 offense committed in Valencia County. [DS 2; RP 152-53] Because the confinement 11 was not actually related to th e felony conviction at issue inthis case, Defendant is not 12 entitled to presentence confinement credit. See generally State v. Miranda , 108 N.M. 13 789, 794, 779 P.2d 976, 981 (C t. App. 1989) (“The determinative issue for 14 presentence confinement credit is whether the basis for the c onfinement was actually 15 related to the charge upon which the final conviction and sentence are based.”). 16 In his memorandum in opposition, Defendant suggests that the confinement was 17 related to the underlying convi ction, on grounds that he was “released third party on 183 the Valencia County charges” but he remained in custody as a consequence of the 1 pendency of the charges in this case. [M IO 2, 10] However, Defendant provides no 2 support for this assertion. Although we generally accept representations contained in 3 memoranda in opposition, in this case, De fendant’s assertion conflicts with his 4 statements to the district court. Below, Defendant indicated that he was arrested on 5 the Valencia County charge s and booked into the Valenc ia County detention center 6 on March 9, 2007, before the Bernalillo County warrant at i ssue was issued in relation 7 to this case around March 13 or 14, 2007, and he remained in custody on the Valencia 8 County charges until July 5, 2007, which wa s subsequent to the cancellation of the 9 warrant on June 29, 2007. [RP 152-53] Defendant acknowledged that his counsel 10 was informed by the Valencia County records supervisor that the County had no 11 written record showing that Defendant wa s being held there on the Bernalillo County 12 warrant. [RP 152-53] As a consequence, we are unable to entertain Defendant’s 13 recent assertion that he was released from custody in relation to the Valencia County 14 charges but remained in custody becausethe charges at hand were pending. See 15 generally State v. Salazar , 2006-NMCA-066, ¶ 9, 139 N.M. 603, 136 P.3d 1013 16 (“[P]arties cannot change their arguments on appeal.”); State v. Vincent , 17 2005-NMCA-064, ¶ 9, 137 N.M. 462, 112 P. 3d 1119 (“[U]nless the facts necessary 184 to consider a contention are in the record on appeal, we cannot consider the claim.”); 1 Campos Enters., Inc. v. Edwin K. Williams & Co. , 1998-NMCA-131, ¶ 12, 125 N.M. 2 691, 964 P.2d 855 (“As a court of review, wecannot review [a party’s] allegations 3 which were not before the district court.”). 4 Alternatively, we unders tand Defendant to takethe position that the 5 confinement was related to both the Valencia County charges and the offense at issue 6 in this case. [MIO 9-11] See State v. Ruiz , 120 N.M. 420, 420, 902 P.2d 575, 575 (Ct. 7 App. 1995) (“[A]s long as the confinement is related to the ch arges for which the 8 defendant is ultimately sentenced, credit must be given, even if the confinement is not 9 exclusively related to those charges.”). However, in light of Defendant’s continuous 10 custody in relation to the Valencia Countycharges, we perceive no relationship 11 between Defendant’s confinement and the charge of leaving the s cene of an accident. 12 Therefore, we conclude that Defendant ’s request for presentence confinement 13 credit was properly denied. See Miranda , 108 N.M. at 792, 779 P.2d at 979 (“[I]f the 14 confinement is not related to the charges for which defendant s eeks credit, he is not 15 entitled to credit.”). This, in turn, eliminates any basis for Defendant’s related 16 challenge to the scope of the district court’s sentencing authority. [MIO 11-12] 175 Next, Defendant renews hi s challenge to the reinstatement of the metropolitan 1 court’s sentence, contending that restituti on should not have been ordered without a 2 hearing to determine the reasonableness of restitution. [MIO 12-14] 3 As we explained in our notice of proposed disposition, formal restitution 4 hearings are not required. See generallyNMSA 1978, § 31-17-1 (2005); see also 5 State v. Lack , 98 N.M. 500, 506, 650 P.2d 22, 28 (C t. App. 1982) (“Under [Section] 6 31-17-1, . . . a full evidentiary hearing . . . is not contemplated as a prerequisite for the 7 trial judge to require restitution.”). Rather, the courts are merely required to consider 8 previously prepared restitution plans in li ght of a variety of pertinent factors. See § 9 31-17-1(B), (E). In this case, the reco rd reflects that a restitution plan was 10 incorporated in a presentence report, wh ich was submitted to the metropolitan court 11 for its consideration. [RP 78, 105] This was a permissible approach. See, e.g. , State 12 v. Palmer , 1998-NMCA-052, ¶¶ 15-16, 125 N.M . 86, 957 P.2d 71 (upholding the 13 imposition of restitution, based upon information submitted to the court in the form 14 of a presentencing report). 15 In his memorandum in opposition, Defendant contends that the metropolitan 16 court proceedings cannot be relied upon to support the award of restitution because 17 the appeal to the district court was conduc ted de novo. [MIO 13- 14] However, the 186 district courts lack statutory authority toalter sentences imposed in metropolitan court. 1 See State v. Lyon , 103 N.M. 305, 310, 706 P.2d 516, 521 (Ct. App. 1985) (observing 2 that the district courts lack authority toimpose greater or lesser sentences in de novo 3 appeals from metropolitan court convictions). As a result, the district court was not 4 at liberty to reopen the restitution issue. Thus, no hearing was required. 5 Finally, Defendant renews his challenge to the suffi ciency of the evidence to 6 support his conviction for leaving the scene of an accident. [MIO 14-16] 7 As we outlined in our notice of proposed summary disposition, the State 8 presented the testimony of a series of witnesses. The first among them was an 9 eyewitness to the underlying events. [DS 2] He described an accident caused by a 10 pickup truck that ran a red light . [DS 2] After the crash, he testified that he saw two 11 individuals fleeing the scene, both of w hom were promptly apprehended by police 12 officers. [DS 3] The second witness was the passenger in the vehicle with which the 13 pickup truck collided. [DS 3] She testifie d that she saw the pickup truck run the red 14 light. [DS 3] She further explained that she saw the driver of the pickup truck in 15 profile, and she identified Defendant in open c ourt as the driver. [DS 3] The third 16 witness was a police officer who happened to be at the scene of the accident when it 17 occurred. [DS 4] He testified that he saw the driver and that Defendant’s physical 187 characteristics were consistent with the char acteristics of the individual he saw in the 1 driver’s seat of the pickup. [DS 4-5] The officer then identified Defendant in open 2 court. [DS 5] The officer further stated that he and another officer pursued the fleeing 3 occupants of the pickup truck and apprehended them. [DS 5] Finally, the officer 4 testified that Defendant made a statement tothe effect that he was merely giving the 5 other individual a ride. [DS 5] 6 As we observed in our notice of proposed disposition, the testimony of the 7 second and third witnesses was sufficient toestablish Defendant’s identity as the 8 driver of the pickup that was involved in an accident. The testimony of the first and 9 third witnesses was sufficient to establis h that Defendant fled the scene of the 10 accident. This provided ample support for Defendant’s conviction. See generally 11 NMSA 1978, § 66-7-202 (1978). 12 In his memorandum in opposition, Defendant contends that his conviction 13 should be overturned because the evidence is equally consistent with innocence. 14 [MIO 15-16] However, this specific standard of reviewing the evidence has been 15 disavowed by our Supreme Court. See State v. Garcia , 2005-NMSC-017, ¶ 18, 138 16 N.M. 1, 116 P.3d 72. 178 Defendant also continues to attack the credibility of the State’s witnesses, to 1 dispute the weight of their testimony, and to rely on countervailing evidence. [MIO 2 15-16] However, as we explained in our notice, none of these considerations are 3 capable of undermining the conviction. See generally State v. Foxen , 4 2001-NMCA-061, ¶ 17, 130 N.M. 670, 29 P.3d 1071 (observing that a defendant’s 5 attack on the sufficiency of the eviden ce provided no reasonable basis for reversal 6 given that his arguments werebased upon his particular view of the credibility of the 7 prosecution’s witnesses and ba sed upon his view of the wei ght of the evidence against 8 him). 9 For the reasons stated in this opini on and in our notice of proposed summary 10 disposition, we affirm. 11 IT IS SO ORDERED. 12

__________________________________ 13 JONATHAN B. SUTIN, Judge 149 WE CONCUR: 1

_________________________________ 2 MICHAEL D. BUSTAMANTE, Judge 3

_________________________________ 4 ROBERT E. ROBLES, Judge 5