Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC643083.
Bamattre-Manoukian, ACTING P.J.
Defendant Ted Egbemhonkhaye submitted his case to the trial court, pursuant to Bunnell v. Superior Court (1975) 13 Cal.3d 592 (Bunnell), on the condition that, if he were convicted, his offenses would be reduced to misdemeanors if he paid restitution by the date of sentencing. The court found defendant guilty of two felony counts of violating Penal Code section 550, subdivision (b)(1). As defendant paid the restitution ordered in full before the date of sentencing, the court reduced the offenses to misdemeanors pursuant to section 17, suspended imposition of sentence, and placed defendant on court probation for two years with various terms and conditions.
All further statutory references are to the Penal Code.
On appeal, defendant contends that his conviction must be reversed because he was not properly informed of the constitutional rights he was waiving by agreeing to the Bunnell submission. As we find that, under the totality of the circumstances presented here, defendant voluntarily and intelligently waived his constitutional rights, we will affirm the judgment.
BACKGROUND
Defendant was charged by information filed December 20, 2007, with two counts of preparing a false insurance claim (§ 550, subd. (a)(5); counts 1 & 7), two counts of grand theft (§§ 484, 487, subd. (a); counts 2 & 5), and one count each of presenting multiple claims for the same loss (§ 550, subd. (a)(2); count 3), presenting a false or fraudulent claim (§ 550, subd. (a)(1); count 4), and forgery (§ 470, subd. (d); count 6). On July 17, 2008, he filed a motion to set aside the information. The prosecutor filed opposition to the motion on July 30, 2008. After the matter was continued several times, the court heard and denied the motion on July 31, 2009.
On May 12, 2010, the prosecutor amended the information to add as counts 8 and 9, felony violations of section 550, subdivision (b)(1) [presenting false information in support of an insurance claim], and moved to dismiss counts 1 through 7. Defendant entered a plea of not guilty to the new charges, and waived his right to a jury trial. Defendant submitted the matter based on “documents, recordings and other things, ” with the understanding that, if convicted, his offenses would be reduced to misdemeanors if he paid restitution by the date of sentencing. With the agreement of defense counsel, the prosecutor presented to the court three binders of materials which included a transcript of the preliminary examination. The court then took a recess to review the materials presented.
The judge who reviewed the materials was not the same judge who had denied defendant’s motion to set aside the information.
The Preliminary Examination Testimony
The First Claim
Jerome Wallace, a fraud investigator for Geico, testified that on September 27, 2004, Romy Avena-Mascareno (Romy) made a claim under her policy regarding her 2001 Honda Accord. The date of loss was September 7, 2004, the reported driver of Romy’s vehicle was defendant, and the nature of the claim was “vehicle versus vehicle.” Defendant called in the claim, identifying himself as Romy’s spouse, and said that the accident occurred in a parking lot. He said that the car had right side damage due to being hit while he was turning left out of the parking lot. Geico tried to obtain a recorded statement from defendant, but defendant refused to give one.
Geico paid Romy $4,876 by check for the damage to her car. The check was given to defendant because he was the person who brought the vehicle in for inspection. Geico paid Romy $275 by separate check for a rental vehicle for 11 days pursuant to the claim, after a paid receipt from the rental agency was sent by mail to Geico. A receipt for $428.53 for towing and storage was received by a Geico representative, but Geico did not reimburse that payment because the receipt showed a charge that is not customary, that being taxes. There is no tax on towing and storage. Wallace also determined that the tow company named on the receipt does not exist.
The Second Claim
Mary Reynolds, a claims representative for CSAA, testified that defendant made a third-party claim against CSAA’s insured for property damage and bodily injury as a result of a rear-end collision that occurred on January 18, 2005. Defendant reported his vehicle to be a 2003 Honda Accord, and he said that he had damage to his rear bumper and to the right side of the car. He said that Romy, the registered owner of the car, was his wife. CSAA inspected the car and found that it had body filler, sometimes called Bondo, on the right side of the car.
Reynolds met with defendant on May 12, 2005, and recorded his statement. Defendant said that he was struck from behind when he was stuck in heavy traffic while merging from southbound Interstate 880 onto southbound Highway 101. Defendant said that the impact pushed him forward into a concrete wall, causing him to have headaches and pain in both his shoulders and in his neck. Defendant admitted that he was in a prior accident, and he said that it was up to CSAA to determine whether this new accident caused any further damage to the right side of his car. Defendant said that somebody put the body filler on the car a few days after the accident. Defendant also said that Romy was his common law wife and that they were not actually married.
The repair estimate for the damage to the Honda as a result of CSAA’s insured rear-ending the Honda was $790.80. CSAA sent a check for $790 to Romy after receiving in the mail a completed property damage release apparently signed by her. Defendant made a demand through an attorney of $14,300 to cover his claims for bodily injury and $2,825 in lost earnings. Reynolds went to the scene of the reported collision and did not see a concrete wall in the area; it’s a grassy area with fairly wide shoulders. Reynolds also went to the address defendant gave her as his business address, but she could not locate any such business at the address. In addition, the document defendant sent CSAA to verify his lost earnings was dated January 3, 2005, which predated the reported accident. CSAA denied defendant’s claims for bodily injury and lost earnings as being without merit. CSAA also denied defendant’s claim for storage fees because the car was drivable and CSAA had paid for the property damage to the car.
Richard Obuchi, a district attorney investigator, spoke to Romy regarding the Geico insurance claim. Romy said that defendant had filed the claim for her with her consent, and that she had never received any checks or money from Geico. Defendant had been Romy’s boyfriend, and she had let him use her car. She did not get the damage to her car fixed. She broke up with defendant in January 2005, but was not able to get her car back from defendant until February 2005. It was at that time that defendant told her about the separate CSAA claim. Romy said that she did not receive any money from defendant for the damage to her car. Romy also said that she did not sign the CSAA release of liability to receive the $790 check from CSAA. Obuchi determined that all the checks sent to Romy were deposited into a business checking account for defendant. Although Romy’s name was also on the account, she said she never used it. And, the checks were not endorsed by Romy.
The Verdicts and Sentencing
After the recess and a review of the materials presented, the court found defendant guilty of the two felonies charged in counts 8 and 9. (§ 550, subd. (b)(1).) The court also stated that it would reduce the offenses to misdemeanors if defendant were to pay the full restitution amount of $5,941 by the date of sentencing. On June 4, 2010, defendant provided proof that he had paid the $5,941 in full, so defense counsel asked that the offenses be reduced to misdemeanors pursuant to section 17. The court granted the request, dismissed counts 1 through 7, suspended imposition of sentence, and placed defendant on court probation for two years with various terms and conditions. Defendant stated that he understood and accepted the terms and conditions of probation stated by the court.
“It is unlawful to do, or to knowingly assist or conspire with any person to do, any of the following: [¶] (1) Present or cause to be presented any written or oral statement as part of, or in support of or opposition to, a claim for payment or other benefit pursuant to an insurance policy, knowing that the statement contains any false or misleading information concerning any material fact.” (§ 550, subd. (b)(1).)
DISCUSSION
Defendant now contends that his conviction must be reversed because he was not properly informed of the constitutional rights he was waiving by agreeing to the Bunnell submission. “The record is clear that the court did not advise [defendant] that he would be waiving his constitutional rights, with the exception of his right to a jury trial. This is a clear violation of Bunnell and its progeny, as well as Boykin v. Alabama (1969) 395 U.S. 238 [(Boykin)] and In re Tahl (1969) 1 Cal.3d 122 [(Tahl)].”
The Attorney General contends that defendant’s submission of the matter to the court did not constitute “a slow plea, ” but was instead a court trial. The Attorney General further contends that, even if it did constitute a slow plea, the record shows that the plea was voluntary and intelligent under the totality of the circumstances.
Preliminarily, we find that the colloquy between the court, defense counsel, and defendant demonstrates that defendant entered into a “slow plea, ” also known as a Bunnell submission. (Bunnell, supra, 13 Cal.3d at p. 602.) “A slow plea is defined as a submission of the guilt phase to the court on the basis of the preliminary hearing transcripts that is tantamount to a plea of guilty because guilt is apparent on the face of the transcripts and conviction is a foregone conclusion if no defense is offered. [Citation.] Deciding whether a submission is a slow plea is often difficult, and courts generally review such pleas based on defendant’s willingness to contest guilt during the court trial. ‘Submissions that are not considered slow pleas include those in which (1) the preliminary hearing involves substantial cross-examination of the prosecution witnesses and the presentation of defense evidence or (2) the facts revealed at the preliminary examination are essentially undisputed but counsel makes an argument to the court as to the legal significance to be accorded them.’ [Citations.]” (People v. Sanchez (1995) 12 Cal.4th 1, 28, disapproved on another point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
In this case, defense counsel stated that defendant wished to “do a Bunnell plea and submit the matter on certain documents that [the prosecutor] and I would be in agreement to, one of course would be his recorded statement to CSAA, ” with the understanding that the court would thereafter order full restitution and entertain a section 17 motion. The court asked defendant, “do you want to do that?” Defendant responded, “Yes, Judge.” Then defendant, his counsel, and the court discussed some possible terms of probation, the section 17 motion, and the restitution order. As defendant preferred to “submit it on the Bunnell to two misdemeanors, ” the court took a recess to allow the parties to discuss the matter off the record. Following a brief recess, the court stated that it understood that the prosecutor would amend the information to add the section 550, subdivision (b) felonies, and that “defendant wishes to submit this as a court trial on a Bunnell matter, submitting documents, recordings and other things.” It stated that, if defendant were to be found guilty of the felonies, and defendant paid restitution by the date of sentencing, the court would reduce the felonies to misdemeanors. The court then stated, “With that, do you understand you have a right to a jury trial, 12 people come in and listen to the evidence, decide whether or not the DA has proved your guilt on each charge beyond a reasonable doubt?” When defendant responded, “Yes, Judge, ” the court found “a knowing, voluntary, freely made jury waiver.” The prosecutor presented the court with three binders of materials: the police report; the transcript of the preliminary examination; the transcript of defendant’s recorded statement to CSAA; and claim files from CSAA, Farmers Insurance, and Geico. After a recess, the court stated that it had read all the documents in the three binders, and it asked the parties if they wished to present argument. Defense counsel stated, “I’d submit the matter on the documents submitted to the court.” Defendant’s submission to the court was tantamount to a guilty plea, as conviction of two counts of violating section 550, subdivision (b)(1) was a foregone conclusion. His guilt was apparent on the face of the transcripts of the preliminary examination and defendant did not offer any defense.
In Bunnell, the California Supreme Court held that a stipulation to submit a case for decision on a preliminary hearing transcript must be accompanied by advice concerning, and the defendant’s personal waiver of, the constitutional rights to jury trial, to remain silent, and to confront and cross-examine witnesses, i.e., Boykin-Tahl advice and waivers. Express advisements and waivers had to appear in the record. In addition, if the defendant did not reserve the right to present additional evidence and did not advise the court that he or she would contest guilt in argument to the court, the defendant had to be advised of the probability that the submission would result in a conviction of the offense or offenses charged. (Bunnell, supra, 13 Cal.3d at p. 605.)
In People v. Howard (1992) 1 Cal.4th 1132, at page 1178, our Supreme Court concluded that “the Boykin-Tahl rule merely requires that ‘[t]he record must affirmatively demonstrate that the plea... was voluntary and intelligent under the totality of the circumstances.’ (Italics added.)... [¶]... [¶] After Howard, for an appellate court simply to determine the defendant had not been expressly told of his rights, nor expressly waived them, was no longer sufficient. If the record failed to disclose proper advisements and waivers, the appellate court was required to determine further, based on the totality of the circumstances, whether the defendant’s admission in any event was voluntarily and intelligently made. This determination required the appellate court to examine the entire proceeding. [Citations.] As in all appeals, however, this determination was limited to the trial record.” (People v. Allen (1999) 21 Cal.4th 424, 438-439, fn. omitted.)
Howard’s rule has been applied not only to the Boykin-Tahl advisements and waivers required before an admission of a prior (as in Howard), but also to the advisement and waiver of constitutional rights required before a guilty plea or a submission upon a preliminary hearing transcript that is tantamount to a guilty plea, i.e., a “slow plea.” (Allen, supra, 21 Cal.4th at p. 439, fn. 4 [direct appeal from a guilty plea]; People v. Knight (1992) 6 Cal.App.4th 1829, 1832 [submission on the transcript of the preliminary hearing].) Accordingly, we reject defendant’s contention that the absence of advisements and his personal waiver of his rights not to incriminate himself and to confront and cross-examine witnesses is reversible per se.
We have closely examined the trial court’s colloquy with defendant and his counsel and find that he was aware of, and voluntarily and intelligently waived, his rights not to incriminate himself and to confront and cross-examine witnesses. It was defendant who informed the court that he wanted to enter into a Bunnell submission on documents that would include defendant’s recorded statement. This offer appears to us to indicate that defendant knew he would be incriminating himself by submitting the case on the transcripts of the preliminary examination and defendant’s recorded statement. Then, when defendant stated that he would prefer to do the Bunnell submission as to two misdemeanors rather than to two felonies with the understanding that the court would entertain a section 17 motion, the court recessed the hearing so that the parties could discuss the matter. After the recess, the court stated the parties’ agreement, the prosecutor amended the information to include the two section 550, subdivision (b)(1) felony counts, and the court accepted defendant’s jury trial waiver. The prosecutor then presented the court with three binders of materials that included the transcripts of the preliminary examination and defendant’s recorded statement. After the court reviewed the binders, defendant offered no defense to the charges before submitting the matter on the materials presented. Under the totality of the circumstances presented here, we are convinced that, in addition to the right to a jury trial, defendant was aware of and voluntarily and intelligently waived his rights not to incriminate himself and to confront and cross-examine the witnesses against him when, at his request, he submitted the matter to the court. (Allen, supra, 21 Cal.4th at pp. 438-439; Knight, supra, 6 Cal.App.4th at pp. 1831-1832.)
DISPOSITION
The judgment (order of probation) is affirmed.
WE CONCUR: MIHARA, J., LUCAS, J.
Judge of the Santa Clara County Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.