Opinion
C081495
12-23-2016
THE PEOPLE, Plaintiff and Respondent, v. GEORGE DEMETRI PAPPADOPOULOS, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 14F00250)
Defendant George Demetri Pappadopoulos pleaded no contest to uttering 12 checks from the same bank account with insufficient funds to 11 retailers in amounts ranging between $800 to $13,064.04 between May 8, 2013, and January 23, 2014. (Pen. Code, § 476a, subd. (a).) Defendant challenges his sentence as unauthorized, contending the People failed to plead and prove the section 12022.6 enhancement, which he admitted. We disagree and shall affirm.
Undesignated statutory references are to the Penal Code. --------
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged with 51 counts of fraudulently uttering checks with insufficient funds (§ 476a, subd. (a), counts one to eleven, thirteen to fourteen, sixteen to thirty, & thirty-two to fifty-four), unlawfully taking money and personal property exceeding $950 in value (§ 487, subd. (a), counts twelve & thirty-one), and committing theft from an elder or dependent adult (§ 368, subd. (d), count fifteen). The information further alleged the total taking was more than $65,000, within the meaning of section 12022.6, subdivision (a)(1) and more than $100,000, within the meaning of section 186.11, subdivision (a). A prior strike was also alleged. (§§ 667, subd. (b), 1170.12.)
Defendant pleaded no contest to 11 counts of section 476a, subdivision (a) (counts five, eleven, thirteen, fourteen, twenty-two, thirty-three, thirty-seven, thirty-nine, forty-five, forty-six, & forty-eight). He also admitted a prior serious felony (§§ 667, subds. (b)-(i), 1170.12) and the section 12022.6, subdivision (a) allegation.
The parties provided the following factual basis for the plea: on May 8, 2013, defendant uttered a check for $7,000 at Hobrecht Lighting (count forty-eight). On July 5, 2013, defendant uttered a check for $5,713.77 at De Soto Sales (count five). On July 24, 2013, defendant uttered a check for $5,536.49 at Pacific Flooring (count eleven). On August 15, 2013, defendant uttered a check for $8,428.48 at S&G Carpet (count thirteen). On September 9 and 16, 2013, defendant uttered two checks for $800 and $3,944.55, respectively, at Van's Carpet (count fourteen). On December 4, 2013, defendant uttered a check for $4,343 at Merchant's Carpet (count twenty-two). On December 23, 2013, defendant uttered a check for $9,722 at PPG Paints (count thirty-three). On December 27, 2013, defendant uttered a check for $4,268 at Precisions Cleaning Systems (count thirty-seven). On January 2, 2014, defendant uttered a check for $7,340.76 at Acme Power Saw (count thirty-nine). On January 23, 2014, defendant uttered a check for $12,711 at Marsh's Carpet (count forty-five). On January 29, 2014, defendant uttered a check for $13,064.04 at Dunn Edwards Paints (count forty-six). Each check was drawn on defendant's Wells Fargo account, which he knew was either closed or had insufficient funds to cover the checks. He failed to tell the recipient and intended to defraud each of the victims. During the offenses, defendant took property exceeding an aggregate of $65,000 from the victims within the meaning of section 12022.6, subdivision (a)(1).
Per the parties' agreement, the trial court sentenced defendant to an aggregate prison term of 20 years 4 months, as follows: for count five the upper term of three years, doubled to six years due to the prior strike; for counts eleven, thirteen, fourteen, twenty-two, thirty-three, thirty-seven, thirty-nine, forty-five, forty-six, and forty-eight, one-third the midterm of two years (eight months) each, doubled to 16 months each due to the prior strike (totaling 13 years 4 months), and one year for the section 12022.6, subdivision (a)(1) enhancement. (§§ 476a, subd. (a), 667, subds. (b)-(i), 1170.12, 12022.6.)
Defendant obtained a certificate of probable cause and timely filed his appeal.
DISCUSSION
Defendant contends on appeal the sentence was unauthorized, despite agreeing to a stipulated sentence and admitting the section 12022.6 enhancement. Relying on People v. Green (2011) 197 Cal.App.4th 1485, 1502 (Green), defendant contends the People failed to plead and prove the aggregated losses were the result of a common scheme or plan for purposes of section 12022.6. We disagree.
When a no contest plea arises from a negotiated resolution of the charges, a trial court must determine if there is a factual basis for that plea. (§ 1192.5; see People v. Hoffard (1995) 10 Cal.4th 1170, 1182.) "The trial court need not obtain an element-by-element factual basis but need only obtain a prima facie factual basis for the plea." (People v. Marlin (2004) 124 Cal.App.4th 559, 572.) The trial court has "wide discretion in determining whether a sufficient factual basis exists for a guilty plea," and we will reverse only for abuse of discretion. (People v. Holmes (2004) 32 Cal.4th 432, 443.)
Under section 12022.6, subdivision (a)(1) a one-year enhancement may be imposed when a defendant "takes . . . any property in the commission or attempted commission of a felony, with the intent to cause that taking," and the loss exceeds $65,000. Since none of defendant's individual checks exceeded $65,000, the enhancement only applies "if the aggregate losses to the victims from all felonies exceed[ed] the amounts specified in this section and ar[ose] from a common scheme or plan." (§ 12022.6, subd. (b).)
"To prove 'common scheme or plan' for purposes of [section 12022.6], we compare the losses from [the counts at issue] and determine whether there are a ' "concurrence of common features that the various [losses] are naturally to be explained as caused by a general plan of which they are the individual manifestations." ' [Citation.] Further, the 'common features' 'must indicate the existence of a plan rather than a series of similar spontaneous acts, but the plan thus revealed need not be distinctive or unusual.' [Citation.]" (Green, supra, 197 Cal.App.4th at pp. 1502, 1504, italics omitted [reversing § 12022.6 enhancement where aggregate losses did not arise from a common plan or scheme].)
Defendant's reliance on Green is misplaced. Similar to defendant, in Green the defendant was convicted of two counts of grand theft by embezzlement (§§ 487, subd. (b), 503) with a section 12022.6 enhancement since the aggregate losses exceeded $65,000. (Green, supra, 197 Cal.App.4th at p. 1487.) Unlike defendant, however, the defendant in Green had distinct methods of embezzling funds from her two victims. (Id. at p. 1503.) She embezzled funds from her homeowners' association (HOA) by controlling the HOA's books and records and forging signatures on checks drawn from the HOA account. (Ibid.) The defendant also embezzled her employer's funds by manipulating customer invoices, underreporting the amount of cash generated by her employer, and delaying the deposit of customer checks to offset the money she took. (Ibid.) In addition, the defendant pocketed money from fake transactions and checks payable to her employer. (Ibid.) The appellate court reversed the section 12022.6 enhancement because there was no common scheme or plan for the aggregate losses because the victims were not connected, the crimes were not intertwined, the methods of theft were dissimilar, and the schemes were separate and distinct and not contingent on each other. (Green, at pp. 1503-1504.)
Unlike Green, defendant's methods of theft over the course of seven months were identical. He wrote checks drawn on the same bank account and presented them to various retailers. Each time, he did so knowing the checks would not be honored and failed to tell the recipient, indicating the aggregate losses arose from a common scheme or plan. Because defendant's plea was supported by a sufficient factual basis, we find no abuse of discretion.
With respect to defendant's contentions regarding the pleadings, he failed to object to their adequacy at the trial court and has therefore waived the issue. (People v. Bright (1996) 12 Cal.4th 652, 671, overruled on another ground by People v. Seel (2004) 34 Cal.4th 535, 543-544; People v. Ramirez (2003) 109 Cal.App.4th 992, 997.) Regardless, we find no error. A count in a charging document is "sufficient if it contains in substance, a statement that the accused has committed some public offense therein specified. . . . It may be . . . in any words sufficient to give the accused notice of the offense of which he is accused." (§ 952.) Here, the allegation read: "It is further alleged that in the commission of the above offense(s) the said defendant . . . , with the intent to do so, took, damaged and destroyed property of a value exceeding $65,000, within the meaning of Penal Code Section 12022.6(a)(1)." This was sufficient to put defendant on notice he was being accused of violating section 12022.6.
DISPOSITION
The judgment is affirmed.
/s/_________
Blease, Acting P. J. We concur: /s/_________
Butz, J. /s/_________
Mauro, J.