Summary
upholding burglary conviction of a defendant who falsely claimed to be a contractor, then entered his victims' homes by invitation, signed contracts, and received payments for contract work he did not intend to perform
Summary of this case from United States v. MaldonadoOpinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tuolumne County. No. CRF22381, Eric L. DuTemple, Judge.
Barbara A. Smith, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lloyd G. Carter and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Kane, J.
Appellant Brent Leland Segars contends the trial court abused its discretion when it denied his Romero motion to strike a prior conviction. Respondent counters that appellant waived his right to appeal as part of his plea bargain and that in any case the trial court did not abuse its discretion. We will affirm.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
FACTS AND PROCEDURAL HISTORY
The following facts are taken from the probation officer’s report, which was filed with the trial court on September 22, 2009.
Appellant was the owner of a company called Green Energy Consulting that installed home solar panels. Between 2004 and 2006, many homeowners signed contracts with appellant and paid deposits of several thousand dollars for the installation of solar panels, but appellant failed to do the work. The victimized homeowners (some of whom were elderly) called appellant, but appellant failed to respond or put them off with empty promises. A number of these homeowners contacted law enforcement agencies, while others filed civil lawsuits. Additionally, although appellant had no electrical contractor’s license, he signed agreements with customers using the letterhead and signature of Matthew Anderson (who was licensed) without Anderson’s consent. Before formal charges were filed against appellant in Tuolumne County in 2007, he made full restitution plus interest to the six victims named in the criminal allegations, and was apparently paying the civil judgments against him. Appellant received other complaints of a similar nature from customers in 2006, and told the sheriff’s investigator that he intended to send letters to them offering to refund their deposits as well.
When investigators asked appellant about his own conduct, he maintained that the problems and delays arose solely because of a global shortage of solar panels and the embezzlement of funds by other people in his company.
On September 14, 2007, the Tuolumne County District Attorney filed a first amended criminal complaint against appellant, which pleading the trial court deemed to be an information. The charges against appellant for which he was bound over for trial included multiple counts of the following offenses: first degree residential burglary (Pen.Code, § 459), theft from an elder or dependent adult (§ 368, subd. (d)), diversion of construction funds (§ 484, subd. (b)) and grand theft of personal property (§ 487, subd. (a)). The information further alleged that appellant had a prior felony conviction in 2003 for violation of section 422 (making a criminal threat), which constituted a “strike” conviction within the meaning of section 667, subdivisions (b) through (i) of the Three Strikes law.
Unless otherwise indicated, all further statutory references are to the Penal Code.
Appellant was not bound over for trial on the forgery counts.
At a pretrial conference held on September 29, 2008, pursuant to a negotiated plea bargain, appellant withdrew his previous plea of not guilty and entered a new plea of guilty to three discrete counts-namely, count V (§ 368, subd. (d)), theft from an elder or dependent person), count XVI (§ 484, subd. (b)), diversion of construction funds) and count XX (§ 459, first degree residential burglary). Appellant also admitted the truth of the alleged prior strike conviction. Although the maximum sentence under the terms of the plea agreement was eight years, the trial court indicated it would not impose a sentence of more than four years, and it was further agreed that appellant would be entitled to argue for a term of less than four years (i.e., by seeking dismissal of the prior strike). On September 29, 2008, in connection with the plea bargain, appellant read, initialed and signed an Advisement and Waiver of Rights form that included a waiver of his appeal rights. In consideration for appellant’s plea of guilty to the three counts and his admission of the prior strike conviction, the prosecutor moved to dismiss all the other charges, which was so ordered by the trial court.
On September 22, 2009, the trial court denied appellant’s Romero motion to strike his prior “strike” conviction. Appellant was then sentenced by the trial court to a total of four years in state prison and probation was denied. The sentenced was comprised of the following: As to count XX (§ 459), the lower term of two years was doubled to four years pursuant to section 667, subdivisions (b) through (i); as to count XVI (§ 484, subd. (b)), a 16-month term was doubled to 32 months, to be served concurrently with the term in count XX; and as to count V (§ 368, subd. (d)), a two-year term was doubled to four years, to be served concurrently with the term in count XX. Appellant timely filed a notice of appeal.
DISCUSSION
I. Waiver
A defendant’s express waiver of the right to appeal made pursuant to a negotiated plea agreement is valid provided that the waiver is knowing, intelligent and voluntary. (People v. Panizzon (1996) 13 Cal.4th 68, 80.) Here, in connection with his plea bargain in this case, appellant entered a written waiver of his right to appeal wherein he stated as follows: “I understand that I will be waiving my right to appeal and I will not be able to appeal from this Court’s sentence based on the plea that I enter into in this matter.” Respondent argues this express waiver by appellant of his right to appeal “from this Court’s sentence” clearly applies to the matters raised in appellant’s present appeal. Appellant responds that his waiver did not extend to the trial court’s exercise of discretion in ruling on the Romero motion because the parties agreed that he would be entitled to argue for a sentence of less than the four-year cap indicated by the trial court-i.e., by seeking to strike the prior conviction pursuant to Romero. Appellant argues the Romero motion was a reserved issue that was intended to be outside the scope of the waiver.
Appellant does not argue his waiver was not knowing, intelligent or voluntary, and in any case the record clearly demonstrates these requirements were met.
It is clear from the above summary of the parties’ arguments that the key issue before us is the scope of appellant’s waiver. The scope of a defendant’s express waiver of appeal rights, entered as part of a plea agreement, is approached like a question of contract interpretation-“to what did the parties expressly or by reasonable implication agree?” (People v. Uriah R. (1999) 70 Cal.App.4th 1152, 1157.) Using the paradigm of contract law, we consider the specific language of the plea agreement to ascertain the expressed intent of the parties, and we seek to carry out the parties’ reasonable expectations under the circumstances. (People v. Nguyen (1993) 13 Cal.App.4th 114, 120.)
Some basic principles have emerged from the case law in this area. Because a waiver is an intentional relinquishment of a known right (People v. Panizzon, supra, 13 Cal.4th at p. 85), a defendant’s general waiver of appeal rights (i.e., “I waive my right to appeal”) in connection with a negotiated plea agreement does not apply to future error that was outside of the defendant’s contemplation and knowledge at the time the waiver was made. (People v. Mumm (2002) 98 Cal.App.4th 812, 815; People v. Panizzon, supra, at p. 85; People v. Vargas (1993) 13 Cal.App.4th 1653, 1661-1663.) Similarly, a general waiver of appellate rights does not apply to future sentencing matters that were unaddressed or left open by the plea bargain if those matters were outside of the defendant’s contemplation at the time of the express waiver. (See People v. Panizzon, supra, at pp. 85-86; People v. Uriah R., supra, 70 Cal.App.4th at p. 1159.)
A “general” or nonspecific waiver of appeal rights is so defined in People v. Panizzon, supra, 13 Cal.4th at page 85, footnote 11.
Appellant notes that in People v. Buttram (2003) 30 Cal.4th 773, the Supreme Court held that “[a]n appellate challenge to the exercise of the discretion reserved under the bargain is … a postplea sentencing matter extraneous to the plea agreement.” (Id. at pp. 777, 785-786.) That holding is clearly distinguishable because it was made in the context of a plea agreement in which there was no express waiver and, further, the precise issue before the court was the necessity of obtaining a certificate of probable cause. (Id. at pp. 777-778, 787.)
If, however, a defendant agrees to a plea bargain that includes a specified or indicated sentence, and that sentence is actually imposed, the defendant’s waiver of the right to appeal from the sentence will foreclose appellate review thereof. (People v. Panizzon, supra, 13 Cal.4th at pp. 85-86.) In People v. Panizzon, the Supreme Court explained why the defendant’s specific waiver applied to the appeal in that case: “Not only did the plea agreement in this case specify the sentence to be imposed, but by its very terms the waiver of appellate rights also specifically extended to any right to appeal such sentence. Thus, what [the] defendant seeks here is appellate review of an integral element of the negotiated plea agreement, as opposed to a matter left open or unaddressed by the deal. Since both the length of the sentence and the right to appeal the sentence are issues that cannot fairly be characterized as falling outside of [the] defendant’s contemplation and knowledge when the waiver was made, the reasoning [of other cases] is inapposite.” (Id. at pp. 85-86, italics added.)
The defendant’s waiver in that case stated: “‘I hereby waive and give up my right to appeal from the sentence I will receive in this case.’” (People v. Panizzon, supra, 13 Cal.4th at p. 82.)
We now turn to the particular waiver at issue in the present case. Although the plea agreement provided a maximum sentence of eight years, the trial court indicated it would not impose a sentence of greater than four years. It was agreed that appellant would be entitled to argue for a sentence of less than four years, presumably by means of a Romero motion to ask the trial court to strike his prior strike conviction. In entering his guilty plea on these terms, appellant expressly gave up his right to appeal the sentence, stating “I will be waiving my right to appeal and I will not be able to appeal from this Court’s sentence based on the plea that I enter into in this matter.” (Italics added.)
Respondent argues that because the indicated sentence was the one actually imposed, and because appellant specifically waived his right to appeal “from this Court’s sentence, ” his right to maintain the present appeal was waived. (See People v. Panizzon, supra, 13 Cal.4th at pp. 82, 85-86 [substantially the same waiver language; appeal found waived].) Respondent further notes that appellant’s appeal is in substance an attack on the sentence-he seeks to gain a more favorable sentence by challenging the Romero ruling. We agree with each of these points. In light of appellant’s definite and express waiver of the right to appeal from the trial court’s sentence, it was reasonably contemplated that the trial court’s future decision on the Romero motion was within the scope of the waiver. Once appellant expressly and specifically surrendered his right to appeal from the sentence, he thereby waived his right to challenge exercises of judicial discretion that were (or would be) integral to the sentencing outcome, including the Romero ruling.
Because this case is readily disposed of based on appellant’s waiver, we have not considered whether appellant’s appeal was precluded on the further ground of failure to obtain a certificate of probable cause.
Appellant waived his right to appeal. But even assuming the right to appeal was not waived, we reject appellant’s claim that the Romero motion was erroneously denied, as we briefly explain below.
II. Romero Motion
Appellant contends the trial court abused its discretion in refusing to strike or dismiss his prior “strike” offense. We disagree.
In Romero, supra, 13 Cal.4th 497, the California Supreme Court explained that under section 1385, subdivision (a), a trial court may, in the furtherance of justice, strike or vacate an allegation or finding under the Three Strikes law that a defendant has previously been convicted of a serious and/or violent felony. (Romero, supra, at p. 504.) The court’s exercise of discretion in the furtherance of justice “‘“requires consideration both of the constitutional rights of the defendant, and the interests of society represented by the People ….”’” (Id. at p. 530.)
In People v. Williams (1998) 17 Cal.4th 148, the Supreme Court articulated the standard for striking prior convictions under the Three Strikes law, as follows:
“We therefore believe that, in ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, on its own motion, ‘in furtherance of justice’ pursuant to Penal Code section 1385(a), or in reviewing such a ruling, the court in question must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies. If it is striking or vacating an allegation or finding, it must set forth its reasons in an order entered on the minutes, and if it is reviewing the striking or vacating of such allegation or finding, it must pass on the reasons so set forth.” (Id. at p. 161, italics added.)
A trial court’s decision whether or not to strike a prior conviction for purposes of the Three Strikes law is subject to review under the deferential abuse of discretion standard. (People v. Romero (2002) 99 Cal.App.4th 1418, 1433-1434.) Under this standard, the ruling will be upheld unless it “‘falls outside the bounds of reason’ under the applicable law and the relevant facts.” (People v. Williams, supra, 17 Cal.4th at p. 162.) As explained in People v. Carmony (2004) 33 Cal.4th 367 at pages 376-377:
“In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, ‘“[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.”’ [Citations.] Second, a ‘“decision will not be reversed merely because reasonable people might disagree. ‘An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.’”’ [Citations.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.”
Here, in appellant’s Romero motion, he asked the trial court to strike his 2003 conviction for making a criminal threat against his ex-wife in violation of section 422. The grounds for the motion were, in essence, that this matter should be deemed outside the spirit of Three Strikes law because (i) the prior strike was an isolated incident, (ii) there were allegedly extenuating circumstances involved in regard to appellant’s current offenses (i.e., solar panel shortages and other partners taking company funds), and (iii) appellant made restitution to victims totaling $97,632.
The trial court considered appellant’s claim that “none of this is his fault, ” and although the court did not directly express its evaluation thereof, it did say that “[this] Court assumes these offenses occurred because there are, albeit it was a [People v.] West [(1970) 3 Cal.3d 595] plea, but for the Court’s purposes, he pled guilty to it.” (Italics added.) We note the probation report stated as follows regarding appellant’s blame-shifting: “[Appellant] said the reason the installations were not done was a global shortage of solar equipment. However, in speaking with this officer, he refused to answer and/or dodged questions about when he knew the equipment was not available and when or if he notified the customers of the problem. It appears he did not do so until after complaints reached law enforcement agencies. And, although he had already missed at least one installation date, with Breta Weber-Sturm, in May of 2005, he continued to enter into contracts with the remaining victims in this matter.”
In opposition to the motion, respondent pointed out that in 1998, appellant was convicted of conspiracy to commit bank fraud and was sentenced to 15 months in a federal prison. Thus, the current offenses and the prior strike offense were not his only criminal convictions, and bank fraud is (as the current offenses) a felony involving money. Additionally, respondent pointed out the current offenses were committed while appellant was on probation for his strike offense. Respondent further noted appellant’s apparent lack of concern or remorse evidenced by his initial failure to appear at a probation department appointment and certain statements he made to the probation officer. With regard to the payment of restitution, respondent argued that the court should not give that factor much weight because the people who were paid back were those named on the criminal complaint, but there were other, more recent victims who appellant failed to pay back. Thus, according to respondent, appellant’s payment of restitution was merely a manipulative attempt to gain a more lenient sentence, not to undo all of the harm.
The trial court read and carefully considered the probation report, appellant’s written motion to strike and attached documents, numerous declarations and the parties’ oral argument presented in support of and in opposition to the motion at the time of the hearing. In denying the motion to strike, the trial court discussed a number of factors relevant to its decision. First, the trial court stated it could not ignore appellant’s criminal record, including the 1998 conviction for felony conspiracy to commit bank fraud, for which he served prison time, followed by the 2003 strike felony, for which he spent one year in county jail and probation. Second, the trial court found it significant that appellant committed the current offenses in 2005 and 2006 while he was on probation for the strike offense, and that he had been on such probation only for a year or two when “he engaged in this activity which resulted in felony charges.” Third, while the trial court acknowledged that appellant paid restitution to persons named in the accusatory complaint, it also noted that appellant had failed to pay others who were not named therein, and the restitution apparently occurred only after law enforcement was notified and a criminal investigation was underway. These circumstances led the trial court to question appellant’s motivation, and the court was concerned about what appeared to be a manipulative aspect behind appellant’s actions. In the final analysis, notwithstanding appellant’s payment of restitution, the motion was denied.
The probation report included the following assessment by the probation officer of appellant’s conduct: “[Appellant’s] actions speak louder than his denial of responsibility. It is apparent he was caught up in a ‘rob Peter to pay Paul’ loop of his own making. Rather than approach his customers on his own and offer to make good, he avoided their calls and letters and might continue to do so had not several complained to authorities. [¶] The amounts of money involved-almost $90,000 accepted from those named in the complaint alone-make [appellant’s] actions quite serious. That [appellant] would also take advantage of older persons and enter their homes to do so bespeaks an arrogance that is likely born of much experience [in] doing as he pleases.” It appears to us the trial court agreed with this assessment.
In commenting further on the issue of appellant’s attitude concerning the offenses, the trial court noted that appellant failed to appear for the original date of sentencing, and he was not found until a bail bondsmen brought him in.
Appellant has failed to establish that the trial court’s denial of the motion to strike was outside the bounds of reason under the facts and law. Appellant apparently believes that because he paid restitution and did not have a lengthy history of prior felony convictions, the trial court was bound to strike the prior conviction. That is not the law. As noted above, we may not substitute our own judgment for that of the trial court, nor may we find an abuse of discretion unless the decision was so irrational or arbitrary that no reasonable person could agree with it. The trial court’s decision, although arguably a close call, was carefully reasoned based on the court’s evaluation of the circumstances and information before it. The trial court considered relevant criteria such as appellant’s criminal history and his commission of the current offenses while on probation, and then chose, on balance, to deny the motion. We find no abuse of discretion.
We agree with appellant that restitution is a factor weighing in favor of a mitigation of sentence in the trial court’s discretion (see, e.g., Cal. Rules of Court, rule 4.423(b)(5); see also Pen. Code, § 513), but it was only one factor in this case and did not require the trial court to exercise its discretion on the Romero motion in a particular manner.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Wiseman, Acting P.J., Poochigian, J.