Filed 3/12/15 P. v. Cota CA4/1 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS 

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT 

DIVISION ONE 

STATE OF CALIFORNIA 

THE PEOPLE, 

 Plaintiff and Respondent, 

 v. 

FRANK FLORES COTA, JR., 

 Defendant and Appellant. 

 D065529 

 (Super. Ct. No. SCS248950) 

 APPEAL from an order of the Superior Court of San Diego County, Dwayne K. 

Moring, Judge. Affirmed. 

 Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for 

Defendant and Appellant. 

 Kamala D. Harris, Attorney General, Julie L. Garland, Senior Assistant Attorney 

General, Charles C. Ragland, Scott C. Taylor and Stephanie H. Chow, Deputy Attorneys 

General, for Plaintiff and Respondent. 
2 

I. 

INTRODUCTION 

 In June 2011, the People filed a complaint charging Frank Flores Cota, Jr., with 

fraudulent use of a contractor's license number (Bus. & Prof. Code, § 7027.3) (count 1), 

making misrepresentations and false promises likely to induce a person to enter into a 

contract (Bus. & Prof. Code, § 7161, subd. (b)) (count 2), obtaining money or property by 

false pretenses (Pen. Code, § 532, subd. (a)) (count 3), and grand theft (Pen. Code, § 487, 

subd. (a)) (count 4). 

 Cota pleaded guilty to fraudulent use of a contractor's license number (Bus. & Prof. 

Code, § 7027.3) (count 1). At sentencing, the trial court suspended imposition of 

sentence and placed Cota on three years of probation. The court reserved jurisdiction on 

the issue of victim restitution and set a hearing on this issue. After a hearing, the trial 

court entered a restitution order directing Cota to pay $197,824.15 in restitution to Juan 

and Maria Zarza (Maria) (collectively, the Zarzas), the victims of Cota's criminal 

conduct. 

 On appeal, Cota claims that the trial court erred in awarding this amount of 

restitution. Specifically, Cota argues that the trial court erred in awarding the Zarzas 

$30,551.95 to compensate them for attorney fees that they incurred related to Cota's 

criminal conduct. Cota contends that the Zarzas provided insufficient documentation to 

demonstrate that they in fact incurred attorney fees in this amount. We conclude that 
3 

Cota has failed to present an adequate record to review this claim, and we therefore 

affirm. 

II. 

FACTUAL AND PROCEDURAL BACKGROUND 

Cota willfully and unlawfully used a contractor's license number that did not 

correspond to him with the intent to defraud.1 

 At a restitution hearing, Maria testified that she and her husband signed an 

agreement with Cota to remodel their house. The Zarzas gave Cota a total of 

$187,272.20 toward the project. Cota performed little of the work necessary to complete 

the remodel. The Zarzas also incurred $30,551.95 in attorney fees pursuing a lawsuit 

against Cota related to his criminal conduct. The prosecutor requested that the court 

enter a restitution order in favor of the Zarzas for $217,824.15, the sum of these two 

amounts. 

 The court awarded the Zarzas $197,824.15 in restitution. The court explained that 

it was awarding the Zarzas the amount that they were requesting amount, less $20,000, in 

light of work that Cota performed on the project. 

 

1 There was no trial in this matter, and thus we state the facts that formed the basis 

of Cota's guilty plea. 
4 

III. 

DISCUSSION 

Cota forfeited his contention that the trial court erred in awarding $30,551.95 

in its restitution order to compensate the victims for attorney fees 

that they incurred related to Cota's criminal conduct 

 Cota claims that the trial court erred in awarding $30,551.95 in its restitution order 

to compensate the Zarzas for attorney fees incurred to prosecute a civil action against him 

related to his criminal conduct. Cota contends that the "record does not support the trial 

court's conclusion as to the amount owed the victims in restitution for attorneys fees." 

A. Governing law 

 In criminal appeals, "[e]xhibits admitted in evidence, refused, or lodged are 

deemed part of the record, but may be transmitted to the reviewing court only as provided 

in rule 8.224." (Cal. Rules of Court, rule 8.320(e).)2 Rule 8.224 requires that a request 

for transmittal of an exhibit be made "[w]ithin 10 days after the last respondent's brief is 

filed or could be filed under rule 8.220 . . . ." 

 An appellant has a responsibility to put before this court every part of the record 

necessary to review claims asserted on appeal. (See, e.g., People v. Whalen (2013) 

56 Cal.4th 1, 85 ["it is appellant's burden to present a record adequate for review and to 

affirmatively demonstrate error"].) 

 

2 All subsequent rule references are to the California Rules of Court. 
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B. Application

 At the restitution hearing, the following colloquy occurred: 

"[The prosecutor]: And showing you what has been marked a 32-

page document . . . that has been marked as court's [exhibit] 8 for 

identification. 

"[¶] . . . . [¶] 

"Are those documents concerning the amount of money that you 

paid for the legal services and the lawsuit against Mr. Cota? 

"[Maria]: Yes. 

"[The prosecutor]: And specifically referring you to the last page 

numbered 32, in the bottom right-hand corner of court's [exhibit] 8. 

This shows, these documents show that you paid the amount of 

$30,551.95 to your lawyer, correct? 

"[Maria]: Yes, that is correct. 

"[The prosecutor]: And is that the total sum of money that you paid 

your lawyer for this lawsuit? 

"[Maria]: Yes." 

 Exhibit 8 was received in evidence. 

 Despite citing to this portion of Maria's testimony, and raising the contention that 

the record does not contain evidence supporting the attorney fees component of the trial 

court's restitution order,3 Cota failed to mention exhibit 8 in his briefing in this court and 

has failed to request that the exhibit be transmitted to this court, as is required. (See rules 

 

3 Cota contends "there was not submitted to any party or the court any 

documentation supporting her claim." 
6 

8.320 & 8.224.) Without exhibit 8, the record is plainly inadequate to review Cota's 

appeal.4 

 Accordingly, we conclude that Cota has forfeited his contention that the record 

does not support the trial court's conclusion as to the amount owed the Zarzas in 

restitution for attorneys fees.5 

IV. 

DISPOSITION 

 The restitution order is affirmed. 

 

AARON, J. 

WE CONCUR: 

 

 HUFFMAN, Acting P. J. 

 

 McINTYRE, J. 

 

4 Appellate counsel's failure to cite exhibit 8 in his brief and his failure to request 

the transmittal of the exhibit 8 to this court is, frankly, inexcusable, and renders this 

appeal wholly without merit. 

5 Even assuming that Cota had not forfeited this claim, Maria's unrebutted 

testimony as to the amount of money expended on legal services related to Cota's 

criminal conduct clearly provided an adequate evidentiary basis for the trial court's 

restitution order. (People v. Taylor (2011) 197 Cal.App.4th 757, 761 ["Once the victim 

makes a prima facie showing of economic losses incurred as a result of the defendant's 

criminal acts, the burden shifts to the defendant to disprove the amount of losses claimed 

by the victim.")