Opinion
NOT TO BE PUBLISHED
APPEAL from judgments of the Superior Court of Los Angeles County, No. MA031230 Charles A. Chung, Judge.
Seymour I. Amster; and Robert K. Steinberg for Defendants and Appellants.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.
KLEIN, P. J.
Manuel Fernandez and Carey Lee Moisan appeal the judgments (orders granting probation) entered following their convictions based on pleas of no contest to six counts of grand theft and one count of conspiracy. (Pen. Code, §§ 487, subd. (a), 182, subd. (a)(1).) Appellants contend the imposition of felony convictions violated the terms of their plea agreement.
Subsequent statutory references are to the Penal Code.
The record reflects appellants entered open pleas and the trial court advised them it would dismiss all but one count and reduce that count to a misdemeanor if appellants paid restitution in full within six months. However, appellants failed to satisfy this condition. Thus, the trial court properly convicted appellants of felonies. We therefore affirm the judgments.
FACTUAL AND PROCEDURAL BACKGROUND
1. Evidence adduced at the preliminary hearing.
SPV Water Company (SPV) is a mutual water company incorporated in the state of California whose purpose is to provide water to its shareholders, who predominantly are the residents of the homes in Sierra Colony, a residential development in Agua Dulce. Appellants Fernandez and Moisan were elected to the Board of Directors of SPV in July of 2002. A codefendant, Dennis Tomlinson, was appointed to the board of directors in 2003. These three directors were removed following a special election in April of 2004.
During their tenure as directors, appellants and Tomlinson incorporated a water delivery company, American Water Supply, in Nevada. Appellants and Tomlinson used SPV funds to purchase two water trucks and caused SPV to purchase water from American Water Supply at a cost of one cent per gallon higher than SPV previously had paid for water.
Appellants and Tomlinson also caused SPV to pay them compensation in the amounts of $35,000 to Fernandez, $20,000 to Moisan, and $10,000 to Tomlinson, even though the SPV bylaws prohibited such payment. Appellants used SPV funds to drill a well on Fernandez’s property and intended to require SPV to pay $300,000 for an easement to access the well. Appellants and Tomlinson caused SPV to pay $2,650 in attorney fees Moisan had been ordered to pay in a civil action for an injunction prohibiting harassment between Moisan and a resident of Sierra Colony.
2. The allegations of the information.
An information filed June 3, 2005, charged appellants and Tomlinson with six counts of grand theft and one count of conspiracy. Count 1 alleged the unlawful taking of $172,480 from SPV to purchase water trucks and in overcharging SPV for water. Count 2 alleged the theft of $23,934 from SPV to drill the well on Fernandez’s property. Counts 3, 4 and 5 alleged the theft of $35,000, $20,000, and $10,000, respectively, the amounts appellants and Tomlinson paid themselves in compensation. Count 6 alleged the theft of $2,650, the amount of the attorney fees Moisan had been ordered to pay in the restraining order matter.
The count of conspiracy alleged as overt acts the formation of American Water Supply, the use of SPV funds to purchase water trucks, the decision to deliver water to SPV at a price one cent higher per gallon than SPV had been paying for delivered water, and the inappropriate payment of compensation and various other expenses, including the attorneys fees Moisan had been ordered to pay.
The case against Tomlinson was resolved by plea agreement in January of 2006.
3. Appellants enter no contest pleas.
On September 10, 2008, after a jury had been selected to try the matter, Fernandez and Moisan agreed to plead no contest as charged and to pay restitution in the sum of $81,584 by March 5, 2009. The trial court advised appellants that if they paid restitution in full by that date, the conviction on count two would be reduced to a misdemeanor and the remaining counts would be dismissed. The trial court further indicated it would sentence appellants on the misdemeanor to one day in county jail on a “book and release” which would not require appellants to spend a night in jail. “[Y]ou will end up with a misdemeanor and a misdemeanor only if you abide by all the terms and conditions.”
The trial court further indicated it would terminate probation and appellants would be eligible to have their records expunged. The trial court told appellants, “that’s about as good as I can do. I have undercut the D.A. at this point.”
The trial court made several references to appellants’ expectation they would be able to recover and sell the water trucks, which were the subject of civil litigation between appellants and SPV, in order to fund the restitution payment. However, if appellants were unable to sell the trucks or were unable for any other reason to pay the entire restitution amount by March 5, 2009, “you [will] have a felony stuck on your record and I will sentence you as felons.” Fernandez and Moisan each indicated they understood.
After further discussions, the trial court again explained that if sale of the trucks resulted in less than appellants anticipated, they would “still have to come up with the [$]81, 000 by the six months.... Whether that means a second mortgage or selling assets, I don’t know. [¶]... You need to come up with the amount of monies somehow, whether, again, it’s selling assets or whatever it may be.”
After appellants waived their rights to jury trial, to confront and cross-examine witnesses and to produce evidence, the trial court engaged in an off the record discussion regarding appellants’ renewal of a section 995 motion regarding an allegation appellants took property of a value exceeding $150,000 associated with count 1. (Former § 12022.6, subd. (a)(2).) The trial court dismissed the allegation and then accepted appellants’ no contest pleas.
After the trial court continued the matter for sentencing to March 5, 2009, defense counsel asked the trial court to release appellants on their own recognizance. The trial court indicated it preferred to exonerate the existing bond and to release appellants on their own recognizance with a Cruz waiver. (People v. Cruz (1988) 44 Cal.3d 1247, 1254, fn. 5.) The trial court explained: “That means you don’t have to reapply for [the bond] but you have to abide by two conditions. One, you promise to report back on that future March date. Two, you can’t pick up any new cases. [¶] If you do, ... [e]verything negotiated is off the table and you now have the seven felony counts and I can sentence you however... I want.... And, quite frankly, because I have now undercut the D.A., ... [if] you violate [either] of those two [conditions], I seriously doubt I would let you off the hook on any of the felonies.” Fernandez and Moisan indicated they understood and accepted the terms as explained to them by the trial court.
A “Cruz waiver” gives a trial court the power to withdraw its approval of a plea bargain and impose sentence in excess of the negotiated term if the defendant willfully fails to appear for sentencing. (People v. Cruz, supra, 44 Cal.3d at p. 1254, fn. 5.)
4. Proceedings of March 5 and 12, 2009.
A minute order prepared for March 5, 2009, indicates defense counsel advised the trial court appellants had failed to appear due to a calendaring error. The trial court issued a no bail bench warrant which it held until March 12, 2009.
The record on appeal does not include a reporter’s transcript of the proceedings of March 5 or March 12, 2009.
A minute order prepared for the morning session of March 12, 2009, states: “[D]efendants having failed to pay victim restitution in full as ordered by this date, the defendants are ordered remanded forthwith at no bail.”
A minute order of the proceedings on the afternoon of March 12, 2009, indicates the trial court recalled the matter on its own motion and, over the People’s objection, ordered appellants released on their own recognizance pending sentencing on March 20, 2009. The minute order states appellants “no longer can obtain a misdemeanor as they have failed to pay victim restitution in full as of this date. [¶] The [appellants] are strongly advised to have all victim restitution by the next court date”
5. The sentencing hearing.
At the outset of the sentencing hearing on March 20, 2009, the trial court indicated it had received two cashier’s checks, which, combined with $20,000 paid at the previous hearing, completed payment of restitution in the full amount.
Counsel for SPV in the matter of Fernandez v. SPV Water Company, addressed the trial court on behalf of the residents of Sierra Colony and indicated that, in addition to leaving SPV “bereft of funds” and approximately $100,000 in debt, appellants were also “judgment debtors to SPV and the individual members of the community for over $275,000 in costs and attorney’s fees. They have steadfastly refused to comply with court orders requiring the [production] of asset information in... judgment collection procedures.” Further, each appellant refuses to pay water assessments in excess of $15,000 on their respective property in Sierra Colony.
Defense counsel asked the trial court to give appellants the benefits of their plea bargain, noting they had gone to great lengths to pay the restitution in full, and Moisan had borrowed from a stepson to fund the restitution.
The trial court advised appellants, “[Y]ou lost out on your opportunity to have it reduced [to] a misdemeanor.... I am not going to give you jail time except for one day book and release. That was the heart of the deal. You were about a week late in paying off the [restitution] amount and you are punished for that by having felonies on your criminal history as opposed to misdemeanors.” The trial court indicated it believed appellants had attempted to take advantage of the trial court after it had “undercut the D.A....” to make appellants a misdemeanor offer. The trial court cautioned appellants: “The games I feel you are playing in civil court, you are playing in criminal court. In civil court you don’t pay the financial judgment and there is more litigation. In criminal court you don’t do what I tell you, I can send you to prison.”
The trial court granted Fernandez and Moisan probation on various conditions including serve one day in the county jail with credit for time served, comply with discovery orders in the judgment debtor proceedings, and perform 65 and 30 days, respectively, of Caltrans work.
CONTENTIONS
Appellants contend the felony sentence imposed by the trial court violated the terms of their plea bargain and the trial court improperly incarcerated appellants prior to sentencing.
DISCUSSION
1. Appellants’ failure to pay restitution in a timely manner permitted the trial court to sentence them as felons.
Appellants contend the imposition of a felony sentence violated the terms of the plea agreement they entered into with the trial court and the prosecutor. They note they paid restitution in the full amount of $81,584, albeit a week late. Appellants claim this was not a material breach of the agreement because the trial court accepted partial payment of $20,000 on March 12, 2009, and continued the hearing to the next week at which time it accepted payment in full. Appellants argue the trial court acted in bad faith and abused its discretion in refusing to abide by the plea agreement and imposing a felony sentence. They assert the trial court’s conduct in jailing them on March 12, 2009, demonstrates the trial court was not utilizing reasoned judgment.
Appellants ask this court to enforce the plea bargain pursuant to contract principles and remand the case with directions to impose a misdemeanor sentence on count two, dismiss the remaining counts and permit appellants to request expungement of the misdemeanor. Alternatively, appellants requests rescission of the plea bargain and reinstatement of their not guilty pleas.
In the reply brief, appellants assert the trial court lacked authority to sentence them as felons without first permitting them an opportunity to withdraw their no contest pleas, citing People v. Cruz, supra, 44 Cal.3d 1247 and People v. Vargas (1990) 223 Cal.App.3d 1107.
People v. Cruz, supra, 44 Cal.3d 1247, held that when a defendant who has entered into a plea bargain fails to appear for sentencing, the trial court may not sentence the defendant more harshly than permitted by the plea bargain without first giving the defendant an opportunity to withdraw the plea, as required by section 1192.5. People v. Vargas, supra, 223 Cal.App.3d 1107, distinguished Cruz and held that a plea agreement validly could provide for a specified greater term to be imposed in the event the defendant failed to appear for sentencing, and to a specified lesser term if the defendant did appear.
Section 1192.5 provides, in relevant part: “Where the plea is accepted by the prosecuting attorney in open court and is approved by the court, the defendant, except as otherwise provided in this section, cannot be sentenced on the plea to a punishment more severe than that specified in the plea and the court may not proceed as to the plea other than as specified in the plea. [¶] If the court approves of the plea, it shall inform the defendant prior to the making of the plea that (1) its approval is not binding, (2) it may, at the time set for the hearing on the application for probation or pronouncement of judgment, withdraw its approval in the light of further consideration of the matter, and (3) in that case, the defendant shall be permitted to withdraw his or her plea if he or she desires to do so.”
The flaw in appellants’ argument lies in their assumption they entered into a plea agreement. They did not.
The reporter’s transcript in this case reveals appellants entered open pleas to the court, pleading no contest to each count, and the trial court gave appellants an indicated sentence. (People v. Allan (1996) 49 Cal.App.4th 1507, 1516; People v. Superior Court (Ramos) (1991) 235 Cal.App.3d 1261, 1271.) The prosecutor was not involved in the entry of the plea. Consequently, there was no plea bargain.
The trial court advised appellants that, if they paid restitution in full by March 5, 2009, it would dismiss all counts except count two which it would reduce to a misdemeanor. However, appellants failed to satisfy this condition. Further, the trial court’s remarks at the sentencing hearing reveal its belief appellants were “playing games” with the trial court in not making payment in full at the hearing on March 12, 2009. Thus, the trial court found appellants willfully had failed to pay restitution by the agreed-upon date. Consequently, the trial court properly could sentence appellants as felons, as it indicated it would if they failed timely to pay restitution in full.
Because there was no plea bargain, neither section 1192.5 nor the plea bargain cases cited by appellants are applicable to the facts presented.
2. Assuming error in the premature jailing of appellants, the order caused appellants no prejudice.
Appellants contend the trial court had no cause to order their bail forfeited and incarcerate them on March 12, 2009. They argue the order to incarcerate them was made without cause and was unjustified given that they had negotiated a one day book and release, which would not require an overnight stay in jail. They assert that, because they appeared in court on March 12, 2009, the trial court was not required automatically to forfeit their bail. Appellants argue the trial court should have imposed sentence or continued the hearing. Appellants conclude the trial court’s order placing them in custody after the hearing on March 12, 2009, constituted an abuse of the trial court’s discretion and violated their right to due process of law. In the reply brief, appellants suggest the remedy for this abuse of discretion is specific performance of their plea bargain.
This claim is meritless. At the time appellants entered no contest pleas, the trial court exonerated their bail and released them on their own recognizance. Upon appellants’ failure to appear on March 5, 2009, the trial court properly issued a no bail bench warrant for their arrest, which it held until March 12, 2009. On that date, Fernandez and Moisan appeared but failed to pay restitution in full and the trial court ordered them remanded into custody. However, the trial court ordered them released that afternoon. When the trial court sentenced appellants one week later, they received credit for the time served.
Based on the foregoing, even assuming error in the premature jailing of appellants on March 12, 2009, they are unable to demonstrate any prejudice. We therefore reject the suggestion the error entitles appellants to specific performance of the asserted plea bargain.
DISPOSITION
The judgments (orders granting probation) are affirmed.
We concur: CROSKEY, J., ALDRICH, J.