Opinion
A118941
4-25-2008
THE PEOPLE, Plaintiff and Respondent, v. WADE BISHARA BAHU, Defendant and Appellant.
NOT TO BE PUBLISHED
I. INTRODUCTION
Pursuant to People v. Wende (1979) 25 Cal.3d 436, appellant appeals from the sentences imposed in three separate cases in which he had entered pleas of no contest consistent with a plea agreement negotiated with the prosecution. The trial court granted his request for a certificate of probable cause to contest the validity of his pleas, but appellant never filed a motion seeking to withdraw any of his pleas. We affirm the judgments rendered and sentences imposed in all three cases.
II. FACTUAL AND PROCEDURAL BACKGROUND
We will separately set forth the basic facts and lower court proceedings in each of the three cases.
Case No. CR052348S
On May 18, 2005, appellant was arrested by the Eureka police after leading one of their cars on a high speed chase through and beyond that city. He was found lying on his stomach outside the car, which had apparently skidded off the road into some brush.
On October 17, 2005, the district attorneys office filed an information charging appellant with one count of evading a police officer in violation of Vehicle Code section 2800.2, subdivision (a). The information also charged both a prior strike and a prior prison term enhancement. (Pen. Code, §§ 667, subd. (d)-(e) 1170.12, subd. (b)-(c), and 667.5, subd. (b).)
On December 15, 2005, appellant filed a motion to dismiss the prior strike allegation on the ground that, when entering a no contest plea in 1991 to a charge of commission of lewd and lascivious acts (§ 288, subd. (a)), he was never advised that a conviction of such a crime would require him to register as a sex offender. (§ 290.) After considering this motion, the prosecutions opposition to it, and holding a hearing on it on February 28, 2006, the trial court denied the motion on March 8, 2006.
On August 10, 2006, the trial court granted the prosecutions motion to amend its information to add three more prior prison term enhancements. (§ 667.5, subd. (b).)
Case No. CR064384S
On July 25, 2006, appellant was arrested at a motel in Phillipsville for failing to re-register as a sex offender. He had so registered in May 2006, but had failed to re-register until after this arrest.
On August 15, 2006, the district attorney filed a two-count criminal complaint charging appellant with one count of failing to register and one count of willfully failing to appear (in the first case noted above) while on bail. The complaint also alleged numerous enhancements pursuant to same sections alleged in that first case.
The court held a preliminary hearing on March 29, 2007, and held appellant to answer on both charges. It also noted that, in the first case, he had failed to appear for a jury trial set to be held on August 14, 2006.
Case No. CR064978
On April 27, 2006, a person posing as Victor Macias, with whom appellant and his wife were living at the time, purchased a Wells Fargo bank check in the amount of $ 5,000. About a week later, on May 4, 2006, the check was deposited in the account of appellants wife, who promptly withdrew $ 4,000 in cash from that account. On June 30, 2006, Macias discovered that someone had forged his signature to that check and had then endorsed it over to appellants wife. He reported this to the bank which, apparently, then reported it to the police. A police detective confirmed that the endorsement on the check did not match that of Macias. Macias also confirmed that appellant knew where Macias kept his checks.
On August 9, 2006, the bank charged the account of appellant and his wife the $5,000 for the allegedly forged check, thus overdrawing their account by $4,908.48.
On September 14, 2006, the prosecution filed a two-count complaint against appellants wife, but those charges were later dismissed and the complaint amended on April 2, 2007, to substitute appellant as the defendant.
On April 2, 2007, appellant entered into a plea agreement regarding all three of the foregoing charged offenses. In it, he agreed to plead no contest to certain counts in each case. In the first-noted case, it was to a felony count of evading a peace officer. (Veh. Code, § 2800.2, subd. (a).) In the second case, it was to one misdemeanor count of failing to register as a sex offender and one felony count of failing to appear in court while on bail. (§§ 290, subd. (a)(1)(A) & 1320.5.) In the final case, it was to one count of forgery. (§ 470, subd. (d).)
The plea agreement contemplated a three-year upper sentence on the Vehicle Code count in the first case, with the sentences on all other charges to run concurrently. All remaining charges and enhancement allegations were dismissed, albeit with waivers by appellant of rights under Boykin v. Alabama (1969) 395 U.S. 238, In re Tahl (1969) 1 Cal.3d 122, and Cunningham v. California (2007) 549 U.S. 270.
On or about April 25, 2007, the probation department submitted a report recommending that appellant should be ordered to pay restitution to Wells Fargo Bank in the amount of approximately $ 5,000.
On May 29, 2007, pursuant to this plea agreement, appellant was sentenced to the upper term of three years on the Vehicle Code count noted above.
On June 5, 2007, the court awarded appellant 766 days of credit for time served, imposed a restitution fine of $200 (§ 1202.4) and a suspended parole revocation fine in the same amount. (§ 1202.45.) At that hearing, appellant was apparently not present personally, but his deputy public defender was. The latter requested the court to set a hearing on the issue of restitution.
On July 18 and 19, 2007, the court held a hearing on restitution relevant to appellants forgery conviction in the third case noted above. On the second day of that hearing, appellant personally objected to the ordering of any restitution to Wells Fargo Bank on the basis that he had never been advised by the court or his counsel that he might be liable for such, and read a letter to the court setting forth his version of the relevant events. The letter was not admitted into evidence, but the court suggested that appellant discuss the matter with his attorney in order to determine if the absence of such advice might be grounds upon which to move to withdraw his plea. No such motion was made and, on July 19, 2007, the court issued its order directing appellant to pay $4,908.48 to Wells Fargo Bank.
Appellant filed a timely notice of appeal from the judgment and sentences in all three cases; the trial court granted his request for a certificate of probable cause.
III. DISCUSSION
At all relevant times during the prosecution of these three cases, appellant was represented by the same deputy public defender of Humboldt County. That counsel also represented appellant in the negotiation of the plea agreement and at the April 2, 2007, hearing at which that agreement was consummated. At that hearing, the court made all the usual and proper admonitions to, and secured all the necessary waivers from, appellant. Specifically included in the course of the courts remarks were references to the computation of the appropriate amounts of restitution, a calculation being referred to the probation department. The first such reference is perhaps the most relevant, because it occurred in a question directed by the court to appellant in which the court asked, and secured, appellants express agreement that he would be "waiving [his] right to have the matters referred to the Probation Department, except for the calculation of credits, and for the amount of restitution." Not only did appellant verbally agree that this was his understanding, but neither he nor his counsel asked any questions about what was meant by "restitution" in any of the three cases in which he was being sentenced.
Further, and as noted above, despite being specifically advised by the court several months later that he could still move to withdraw his plea if he felt, as he apparently did at the time, that he had been misadvised by his counsel regarding the issue of restitution, no such motion was ever filed. We conclude, therefore, that the issue of restitution as regards the third case, i.e., restitution to Wells Fargo Bank for the violation of section 470, subdivision (d), has been waived.
We have examined the records in the three cases, particularly as it pertains to the plea agreement and the advice given appellant by the court at the hearing it, and find no issues deserving of further briefing.
IV. DISPOSITION
The judgments and sentences imposed in all three cases are affirmed.
We concur:
Lambden, J.
Richman, J. --------------- Notes: All further statutory references are to the Penal Code, unless otherwise noted.