Opinion
H037075
02-16-2012
THE PEOPLE, Plaintiff and Respondent, v. STACEY GREENLEE, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Clara County Super. Ct. Nos. F1034252, F1035255)
Following a negotiated disposition in Santa Clara County Superior Court Case Nos. F1034252 and F1035255, Stacey Greenlee (defendant) appeals from the judgments in both cases.
Defendant's counsel has filed an opening brief in which no issues are raised and asks this court for an independent review of the record as required by People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738. Counsel has declared that defendant was notified that no issues were being raised by counsel on appeal and that an independent review under Wende/Anders was being requested.
On November 18, 2011, we notified defendant of her right to submit written argument on her own behalf within 30 days. That time has passed and we have not received a response from defendant.
Pursuant to People v. Wende, supra, 25 Cal.3d 436 and Anders v. California, supra, 386 U.S. 738, we have reviewed the entire record and have concluded there are no arguable issues on appeal, including the two issues that counsel raised to guide our review. Counsel has provided the following two issues to guide our review:1) The order that defendant sign over a check from her 401(k) account as restitution violated the terms of the plea bargain and 2) The court was not authorized to order transfer of these funds from defendant's 401(k) account.
Pursuant to People v. Kelly (2006) 40 Cal.4th 106, we provide "a brief description of the facts and procedural history of the case, the crimes of which the defendant was convicted, and the punishment imposed." (Id. at p. 110.)
Facts and Proceedings Below
Since there is no transcript of the preliminary examination in F1035255, and there was no testimony adduced in the preliminary examination in F1034252 the facts are taken from the probation officer's report.
F1034252
According to the probation officer's report, defendant was hired to be a bookkeeper by Ochoa Seeds Company. Defendant paid the bills and payroll, and handled the cash. Eventually, it was discovered that defendant had embezzled $382,317.64. Defendant admitted to her employer that she had taken the money. She promised to repay it, but she provided false bank statements and continued to embezzle money.
F1035255
Defendant's parents, who are both in their 70's, reported to police that the defendant had taken one of their credit cards; defendant's father was in the hospital at the time. Defendant made unauthorized charges amounting $12,484.60.
The Santa Clara County District Attorney charged defendant with one felony count of embezzlement (Pen. Code, §§ 504, 487) in F1034252 and in F1035255 with 25 counts of fraudulent use of a credit card (Pen. Code, §§ 484g subd. (a) & 487) - 23 misdemeanor counts, two felony counts, and 26 felony counts of second degree burglary (Pen. Code, §§ 459-460, subd. (b).) As to some of the counts in F1035255, it was alleged that defendant was out on bail at the time of the commission of the offenses.
On April 6, 2011, after she brought an unsuccessful Marsden motion, defendant entered a no contest plea in F1034252 to the embezzlement charge, on the understanding that she would receive a 16-month prison sentence that would run consecutive to the sentence in F1035255. In F1035255, defendant entered no contest pleas to 20 misdemeanor counts of fraudulent use of a credit card, 23 felony counts of second degree burglary, and two felony counts of fraudulent use of a credit card. Defendant's pleas were entered on the understanding that she would receive a two-year prison sentence and some of the felony charges would be reduced to misdemeanors.
People v. Marsden (1970) 2 Cal.3d 118.
It appears that before defendant entered her pleas, the prosecutor had dismissed three second degree burglary counts.
Before she entered her pleas defendant executed a written "ADVISEMENT OF RIGHTS, WAIVER, AND PLEA FORM" in both cases. In each case, defendant was advised of her constitutional rights, the terms of the plea agreement, and the consequences of her pleas, including the immigration consequences of her plea. Defendant was advised that she would have to pay victim restitution. Defendant initialed the boxes on the form and signed and dated the form for each case. In open court, Judge Flint confirmed with defendant that she had read, understood, initialed and signed the form for each case. Counsel stipulated to a factual basis for the plea.
In F1034252, the amount of restitution was stipulated to be $382,317.64. This amount was reflected on the waiver form.
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Subsequently, on June 20, 2011, the court sentenced defendant to three years four months in state prison. Specifically, for the embezzlement count the court imposed the lower term of 16 months consecutive to three consecutive terms of eight months for three of the burglary counts. The remaining burglary counts and the two felony fraudulent use of a credit card counts were reduced to misdemeanors. The court imposed 90 day concurrent terms on these counts, with credit for time served. The court struck the on bail enhancement in the interests of justice and awarded defendant 608 days of credit for time served. The court ordered defendant to pay restitution to the Ochoa Seed Company in the amount of $382,317.64 and $12,484.60 to her parents Carl and Donna Greenlee. The court found that defendant did not have the ability to pay any fines or fees.
Before the court sentenced defendant, the prosecutor informed the court that the Ochoa Seed Company was in possession of the check that was a disbursement from defendant's 401(k) plan, which had been mailed to them from the Penn Mutual Company at defendant's request. The prosecutor requested that the court order defendant to sign-over the check to Ochoa as part of the restitution that defendant owed. Defense counsel objected on the ground that signing over the check was not a part of the plea bargain. The court asked defense counsel if the defendant wanted to "bust the plea." Counsel said that was his client's position. The court asked defense counsel if it was part of the negotiated disposition that the funds would not be used to satisfy the restitution amount. Defense counsel conceded that was not part of the disposition; it was "not addressed as far as the plea bargain one way or the other."
Accordingly, over defendant's objection, the court ordered that the check in the amount of $6961.41, which defendant had requested be disbursed from her 401(k) account, be signed-over to the Ochoa Seed Company as part of restitution.
Discussion
As to the first issue that appellate counsel has suggested to assist the court in conducting our independent review, we point out that there was no mention in the plea bargain of defendant's assets not being used to satisfy restitution. Defendant was advised that the court would order restitution as a consequence of her convictions in both cases.
As to the second issue that appellate counsel has suggested to assist the court, the court did not order transfer of the funds directly from defendant's 401(k) account. Rather, the court ordered that a check, which defendant had requested, be signed over to the Ochoa Seed Company. The Federal Employee Retirement Income Security Act's anti-alienation provision, 29 United States Code section 1056(d)(1), does not restrict assignment of pension benefits that have already been distributed to plan beneficiaries. (Hoult v. Hoult (1st Cir. 2004) 373 F.3d 47, 50; Wright v. Riveland (9th Cir.2000) 219 F.3d 905, 919-921; Robbins v. DeBuono (2d Cir.2000) 218 F.3d 197, 203, overruled on other grounds by Wojchowski v. Daines (2d Cir.2007) 498 F.3d 99, 101; Guidry v. Sheet Metal Workers Nat'l Pension Fund (10th Cir.1994) (en banc) 39 F.3d 1078, 1081-83; Trucking Employees of North Jersey Welfare Fund, Inc. v. Colville (3d Cir.1994) 16 F.3d 52, 54-56.)
In conclusion, our review of the record satisfies this court that defendant's attorney has fully complied with his responsibilities and that no arguable issues exist. (People v. Wende, supra, 25 Cal.3d at p. 441.) The sentence imposed was supported by the law and the facts and was consistent with the plea bargain.
Disposition
The judgment is affirmed.
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ELIA, J.
WE CONCUR:
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PREMO, Acting P. J.
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MIHARA, J.