Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. SA067494, Katherine Mader, Judge.
Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
ALDRICH, J.
Michael Kaszubowski appeals from the judgment entered following his plea of no contest to knowingly making a false financial statement intending that it would be relied upon (Pen. Code, § 532a, subd. (1)). The trial court granted Kaszubowski probation under various terms and conditions, including that he serve 138 days in county jail and pay $81,342.07 in restitution. We affirm.
FACTUAL AND PROCEDURAL HISTORY
The facts have been taken from the probation report.
According to the police and probation reports, between April 11, 2007 and December 3, 2007, Kaszubowski used his father’s, Pawell Kaszubowski’s, social security number and address to open American Express and Chase Visa accounts. Kaszubowski then leased a BMW automobile and two motorcycles. A review of the credit card bills indicates that the fraudulent accounts were opened on the internet.
2. Procedural history.
In count 1 of an information filed on October 30, 2008, it was alleged that between April 11, 2007 and December 3, 2007, Kaszubowski willfully obtained personal identifying information from the victim, his father, Pawell Kaszubowski, and used that information to obtain credit, attempt to obtain credit, obtain goods and purchase services in violation of Penal Code section 530.5, subdivision (a).
In counts 2 and 3 of the information, it was alleged that, between approximately April 11, 2007 and May 22, 2007, Kaszubowski knowingly and designedly made false financial statements “by using a fictitious name, social security number, business name, [or] business address” and by representing himself to be another person or business in violation of Penal Code section 532a, subdivision (1).
In counts 4 and 5, it was alleged that, on or between April 1, 2007 and December 3, 2007, Kaszubowski committed grand theft of personal property in the amount of $30,450 from American Express and $31,266 from Chase Bank in violation of Penal Code section 487, subdivision (a).
At proceedings held on December 17, 2008, Kaszubowski agreed to plead to “one count of his choice for three years probation.” In addition, it was agreed that he would make a Harvey waiver, which meant that he would have to make restitution on all counts. The prosecutor indicated that a hearing would be held at a later date to determine the total amount of restitution owed.
People v. Harvey (1979) 25 Cal.3d 754.
Kaszubowski waived his right to a “public and speedy jury trial, ” his “right to confront and cross-examine [the] witnesses against [him], ” his right to use the subpoena power of the court to present witnesses in his defense, “the right to remain silent, ” and acknowledged that, although he was only pleading guilty or no contest to one count, “part of the agreement... [was] that [he would be making] restitution on all counts, even those which [were] dismissed.” He then, after consulting with his counsel, chose to enter a plea to count 2, making a “false financial statement.”
The prosecutor asked: “Sir, to count 2 of the information charging you with a felony crime of false financial statement, in violation of 532[a, ] [subdivision] (1) of the Penal Code, how do you now plead?” Kaszubowski responded: “No contest.”
After Kaszubowski entered his plea, the trial court stated: “Having heard you questioned about your constitutional rights and having heard you answer those questions, the court finds that you have expressly, knowingly, understandingly and intelligently waived your constitutional rights. [¶] I find that your plea was freely and voluntarily made with a full understanding of its nature and consequences, and I find a factual basis for the plea in the arrest reports. [¶] The court accepts your plea, and you are convicted on it.” The court continued, “As to count 2, a violation of Penal Code section 532[a, ] [subdivision] (1), imposition of sentence is suspended. [¶] [You are] granted probation for 36 months.”
When defense counsel indicated that Kaszubowski had served 92 days in county jail and was entitled to 46 days of good time/work time, the trial court ordered that he serve 138 days, “which [amounted to] time served.”
The trial court indicated that, as a condition of probation, Kaszubowski was “not to open, possess, use or attempt[] to open, use or obtain any bank account, loan, check, draft, order of withdrawal, debit card, ATM card or other account access card except in [his] true name and with [his] true identifying information.” The trial court then dismissed all remaining counts and ordered that Kaszubowski was to appear for a restitution hearing on March 17, 2009.
A restitution hearing was held on June 17, 2010. Defense counsel indicated that there was at least one amount in question. She stated: “There is $36,000 plus from [the] BMW. And then there’s another amount from the credit cards that we’re submitting on, even submitting on part of the BMW amount. [¶] The only outstanding issue that’s been outstanding for the last period of time is my client had insurance on a BMW that he leased. The question is whether the insurance––the insurance covered liability [for the damage incurred during an accident suffered in the car]. The question is whether it covered collision on the BMW. [¶] According to the contract for the car, he needed that coverage. But nowhere in any of the documents does it show that he actually had the collision coverage on the BMW at issue. If he had it, then I think that [the insurance company] would be required to be responsible for the cost of that. That’s the only issue.” Counsel continued, “We’re conceding on the $12,700. The issue is the $23,900 amount.” Counsel then noted, “[$]12, 795 is one amount for the BMW....”
The trial court determined that a hearing should be held with regard to the disputed $23,946. Accordingly, the matter was continued to June 28, 2010.
At the hearing held on August 19, 2010, Scott Montenaro testified that he had been a sales and marketing manager for BMW financial services for the last six years. Montenaro had provided “some documents to various parties in this action over the past few months” relating to an account ending in the numbers 806. Montenaro had a letter which was “kind of a breakdown” of the losses for the car at issue. The letter was dated November 13 and it showed “a deficiency balance due of [$]23, 000 and change.” The balance at the time that BMW recovered the vehicle was $38,932. The vehicle was then sold at auction for $17,500, leaving a deficiency balance of $23,946.53.
The required insurance for any leased BMW is set forth in the customer’s agreement. In general, one is required to have “personal liability for bodily injury or death and for any one person for not less than [$]100, 000 and for any one occurrence for not less than [$]300, 000; property damage liability for not less than $50,000; comprehensive liability, including fire, theft of the vehicle, actual value payable in cash and not by replacement vehicle, with a maximum deductible of $1,000.”
Montenaro was aware of the fact that, in 2007, Kaszubowski leased a particular vehicle and that, when he drove the car off of the lot, he was covered by a particular kind of insurance issued by Granite State Insurance Company. Before Kaszubowski took possession of the car, “Granite State was contacted with a phone number” and the dealership was given “a policy number.” Granite, however, has since been taken over by 21st Century Insurance Company.
At the time of the hearing, Montenaro indicated that BMW was asking Kaszubowski “to be held responsible for the deficient balance of somewhere close to $24,000.” That amount is based on the fact that “BMW did not believe that Mr. Kaszubowski[, ] at the time that [the] car was taken off the lot[, ] had the sufficient collision coverage.” When he then became involved in an accident, he did not have sufficient insurance to cover the damage.
In addition, BMW incurred approximately $2,200 in fees for “collection of the vehicle [and] storage at a lot.” According to Montenaro, “[i]t could [have been] a number of different items.”
Montenaro testified that BMW Financial “has never received any insurance proceed[s] from Granite State or 21st Century” and that, “[t]ypically, if a car were insured and crashed, [BMW] would..., in fact, receive insurance proceed[s.]” Moreover, Montenaro did not believe that Granite Insurance or 21st Century Insurance would “pay off claims on a car which [had been] leased fraudulently.”
After Montenaro completed his testimony, the prosecutor commented: “[H]owever you slice it, BMW is out... $23,000 and change on this particular car....”
After hearing the evidence, the trial court indicated that Kaszubowski “achieved the car through fraudulent means. And as a result of them turning over the car, BMW end[ed] up being out a certain amount of money because of an accident that [Kaszubowski] got into. [¶]... [¶]... I think the whole insurance thing is a red herring. To me, it’s not relevant. I mean, that’s, unfortunately, how I see it.” “[Accordingly, ] I am going to award BMW the [$23,946].” The trial court then indicated that it was “finished with the restitution hearing” and that Kaszubowski was to continue on probation.
On August 25, 2010, Kaszubowski filed a timely notice of appeal from the trial court’s order.
This court appointed counsel to represent Kaszubowski on appeal on December 7, 2010.
CONTENTIONS
After examination of the record, counsel filed an opening brief which raised no issues and requested this court to conduct an independent review of the record.
By notice filed April 13, 2011, the clerk of this court advised Kaszubowski to submit within 30 days any contentions, grounds of appeal or arguments he wished this court to consider. No response has been received to date.
REVIEW ON APPEAL
We have examined the entire record and are satisfied counsel has complied fully with counsel’s responsibilities. (Smith v. Robbins (2000) 528 U.S. 259, 278-284; People v. Wende (1979) 25 Cal.3d 436, 443.)
DISPOSITION
The judgment is affirmed.
We concur: CROSKEY, Acting P. J., KITCHING, J.