 1       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2 STATE OF NEW MEXICO,

 3         Plaintiff-Appellee,

 4 v.                                                                     No. 28,759

 5 ISAAC MONTOYA,

 6         Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
 8 Charles W. Brown, District Judge

 9 Gary K. King, Attorney General
10 Santa Fe, NM

11 for Appellee

12   Hugh W. Dangler, Chief Public Defender
13   Santa Fe, NM
14   Lisa Bozone, Assistant Appellate Defender
15   Albuquerque, NM

16 for Appellant

17                               MEMORANDUM OPINION

18 SUTIN, Judge.

19         Defendant appeals his conviction for leaving the scene of an accident. We

20 issued a notice of proposed summary disposition, proposing to uphold the conviction

21 and sentence. Defendant filed a memorandum in opposition that we duly considered.

22 Because we remain unpersuaded, we affirm.
 1        In his memorandum in opposition, Defendant renews all of the issues advanced

 2 in his docketing statement. We address each in turn.

 3        First, Defendant contends that he was improperly denied presentence

 4 confinement credit. [MIO 8-12] Presentence confinement credit is only awarded

 5 if the confinement is a direct result of the felony for which credit is sought. See State

 6 v. Facteau, 109 N.M. 748, 750, 790 P.2d 1029, 1031 (1990) (discussing precedent for

 7 the proposition that credit may properly be awarded only if the confinement was a

 8 direct result of the offense). As described in our notice of proposed summary

 9 disposition, Defendant was not confined as a direct result of leaving the scene of an

10 accident. To the contrary, the record reflects that he was confined for an unrelated

11 offense committed in Valencia County. [DS 2; RP 152-53] Because the confinement

12 was not actually related to the felony conviction at issue in this case, Defendant is not

13 entitled to presentence confinement credit. See generally State v. Miranda, 108 N.M.

14 789, 794, 779 P.2d 976, 981 (Ct. App. 1989) (“The determinative issue for

15 presentence confinement credit is whether the basis for the confinement was actually

16 related to the charge upon which the final conviction and sentence are based.”).

17        In his memorandum in opposition, Defendant suggests that the confinement was

18 related to the underlying conviction, on grounds that he was “released third party on


                                               2
 1 the Valencia County charges” but he remained in custody as a consequence of the

 2 pendency of the charges in this case. [MIO 2, 10] However, Defendant provides no

 3 support for this assertion. Although we generally accept representations contained in

 4 memoranda in opposition, in this case, Defendant’s assertion conflicts with his

 5 statements to the district court. Below, Defendant indicated that he was arrested on

 6 the Valencia County charges and booked into the Valencia County detention center

 7 on March 9, 2007, before the Bernalillo County warrant at issue was issued in relation

 8 to this case around March 13 or 14, 2007, and he remained in custody on the Valencia

 9 County charges until July 5, 2007, which was subsequent to the cancellation of the

10 warrant on June 29, 2007. [RP 152-53] Defendant acknowledged that his counsel

11 was informed by the Valencia County records supervisor that the County had no

12 written record showing that Defendant was being held there on the Bernalillo County

13 warrant. [RP 152-53] As a consequence, we are unable to entertain Defendant’s

14 recent assertion that he was released from custody in relation to the Valencia County

15 charges but remained in custody because the charges at hand were pending. See

16 generally State v. Salazar, 2006-NMCA-066, ¶ 9, 139 N.M. 603, 136 P.3d 1013

17 (“[P]arties cannot change their arguments on appeal.”); State v. Vincent,

18 2005-NMCA-064, ¶ 9, 137 N.M. 462, 112 P.3d 1119 (“[U]nless the facts necessary


                                             3
 1 to consider a contention are in the record on appeal, we cannot consider the claim.”);

 2 Campos Enters., Inc. v. Edwin K. Williams & Co., 1998-NMCA-131, ¶ 12, 125 N.M.

 3 691, 964 P.2d 855 (“As a court of review, we cannot review [a party’s] allegations

 4 which were not before the district court.”).

 5        Alternatively, we understand Defendant to take the position that the

 6 confinement was related to both the Valencia County charges and the offense at issue

 7 in this case. [MIO 9-11] See State v. Ruiz, 120 N.M. 420, 420, 902 P.2d 575, 575 (Ct.

 8 App. 1995) (“[A]s long as the confinement is related to the charges for which the

 9 defendant is ultimately sentenced, credit must be given, even if the confinement is not

10 exclusively related to those charges.”). However, in light of Defendant’s continuous

11 custody in relation to the Valencia County charges, we perceive no relationship

12 between Defendant’s confinement and the charge of leaving the scene of an accident.

13        Therefore, we conclude that Defendant’s request for presentence confinement

14 credit was properly denied. See Miranda, 108 N.M. at 792, 779 P.2d at 979 (“[I]f the

15 confinement is not related to the charges for which defendant seeks credit, he is not

16 entitled to credit.”).   This, in turn, eliminates any basis for Defendant’s related

17 challenge to the scope of the district court’s sentencing authority. [MIO 11-12]




                                              4
 1        Next, Defendant renews his challenge to the reinstatement of the metropolitan

 2 court’s sentence, contending that restitution should not have been ordered without a

 3 hearing to determine the reasonableness of restitution. [MIO 12-14]

 4         As we explained in our notice of proposed disposition, formal restitution

 5 hearings are not required. See generally NMSA 1978, § 31-17-1 (2005); see also

 6 State v. Lack, 98 N.M. 500, 506, 650 P.2d 22, 28 (Ct. App. 1982) (“Under [Section]

 7 31-17-1, . . . a full evidentiary hearing . . . is not contemplated as a prerequisite for the

 8 trial judge to require restitution.”). Rather, the courts are merely required to consider

 9 previously prepared restitution plans in light of a variety of pertinent factors. See §

10 31-17-1(B), (E).      In this case, the record reflects that a restitution plan was

11 incorporated in a presentence report, which was submitted to the metropolitan court

12 for its consideration. [RP 78, 105] This was a permissible approach. See, e.g., State

13 v. Palmer, 1998-NMCA-052, ¶¶ 15-16, 125 N.M. 86, 957 P.2d 71 (upholding the

14 imposition of restitution, based upon information submitted to the court in the form

15 of a presentencing report).

16        In his memorandum in opposition, Defendant contends that the metropolitan

17 court proceedings cannot be relied upon to support the award of restitution because

18 the appeal to the district court was conducted de novo. [MIO 13-14] However, the


                                                 5
 1 district courts lack statutory authority to alter sentences imposed in metropolitan court.

 2 See State v. Lyon, 103 N.M. 305, 310, 706 P.2d 516, 521 (Ct. App. 1985) (observing

 3 that the district courts lack authority to impose greater or lesser sentences in de novo

 4 appeals from metropolitan court convictions). As a result, the district court was not

 5 at liberty to reopen the restitution issue. Thus, no hearing was required.

 6        Finally, Defendant renews his challenge to the sufficiency of the evidence to

 7 support his conviction for leaving the scene of an accident. [MIO 14-16]

 8        As we outlined in our notice of proposed summary disposition, the State

 9 presented the testimony of a series of witnesses. The first among them was an

10 eyewitness to the underlying events. [DS 2] He described an accident caused by a

11 pickup truck that ran a red light. [DS 2] After the crash, he testified that he saw two

12 individuals fleeing the scene, both of whom were promptly apprehended by police

13 officers. [DS 3] The second witness was the passenger in the vehicle with which the

14 pickup truck collided. [DS 3] She testified that she saw the pickup truck run the red

15 light. [DS 3] She further explained that she saw the driver of the pickup truck in

16 profile, and she identified Defendant in open court as the driver. [DS 3] The third

17 witness was a police officer who happened to be at the scene of the accident when it

18 occurred. [DS 4] He testified that he saw the driver and that Defendant’s physical


                                               6
 1 characteristics were consistent with the characteristics of the individual he saw in the

 2 driver’s seat of the pickup. [DS 4-5] The officer then identified Defendant in open

 3 court. [DS 5] The officer further stated that he and another officer pursued the fleeing

 4 occupants of the pickup truck and apprehended them. [DS 5] Finally, the officer

 5 testified that Defendant made a statement to the effect that he was merely giving the

 6 other individual a ride. [DS 5]

 7        As we observed in our notice of proposed disposition, the testimony of the

 8 second and third witnesses was sufficient to establish Defendant’s identity as the

 9 driver of the pickup that was involved in an accident. The testimony of the first and

10 third witnesses was sufficient to establish that Defendant fled the scene of the

11 accident. This provided ample support for Defendant’s conviction. See generally

12 NMSA 1978, § 66-7-202 (1978).

13        In his memorandum in opposition, Defendant contends that his conviction

14 should be overturned because the evidence is equally consistent with innocence.

15 [MIO 15-16] However, this specific standard of reviewing the evidence has been

16 disavowed by our Supreme Court. See State v. Garcia, 2005-NMSC-017, ¶ 18, 138

17 N.M. 1, 116 P.3d 72.




                                              7
 1         Defendant also continues to attack the credibility of the State’s witnesses, to

 2 dispute the weight of their testimony, and to rely on countervailing evidence. [MIO

 3 15-16] However, as we explained in our notice, none of these considerations are

 4 capable of undermining the conviction.             See generally State v. Foxen,

 5 2001-NMCA-061, ¶ 17, 130 N.M. 670, 29 P.3d 1071 (observing that a defendant’s

 6 attack on the sufficiency of the evidence provided no reasonable basis for reversal

 7 given that his arguments were based upon his particular view of the credibility of the

 8 prosecution’s witnesses and based upon his view of the weight of the evidence against

 9 him).

10         For the reasons stated in this opinion and in our notice of proposed summary

11 disposition, we affirm.

12         IT IS SO ORDERED.


13                                         __________________________________
14                                         JONATHAN B. SUTIN, Judge




                                              8
1 WE CONCUR:



2 _________________________________
3 MICHAEL D. BUSTAMANTE, Judge



4 _________________________________
5 ROBERT E. ROBLES, Judge




                                  9
