Opinion
D070304
05-25-2017
THE PEOPLE, Plaintiff and Respondent, v. CARMEN PROVENCIO, Defendant and Appellant.
Jared G. Coleman, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD255741) APPEAL from a judgment of the Superior Court of San Diego County, Michael T. Smyth, Judge. Dismissed. Jared G. Coleman, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
Carmen Provencio entered into a plea bargain under which she pleaded guilty to two securities-related offenses in exchange for dismissal of 126 other counts. She initialed a provision on her change of plea form acknowledging that "[t]he sentencing judge may consider . . . dismissed or stricken charges . . . when . . . ordering restitution"—a provision known as a Harvey waiver. The trial court later ordered her to pay nearly $4 million in restitution, which consisted primarily of losses incurred in connection with the dismissed counts. Defendant contends this was error because her Harvey waiver was invalid and, without it, the court lacked the authority to order restitution on the dismissed counts. The Attorney General contends this constitutes a challenge to the validity of defendant's guilty plea that required her to obtain a certificate of probable cause (Pen. Code, § 1237.5), which she admittedly did not do. We agree, and dismiss the appeal as inoperative.
People v. Harvey (1979) 25 Cal.3d 754 (Harvey).
Undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL SUMMARY
In 2015, the People filed an amended information that alleged 128 counts against defendant for her role in an investment scheme that obtained $3,870,597.92 from 50 victims. Defendant's husband pleaded guilty for his role in the scheme. Two other alleged participants were also charged, but neither they nor defendant's husband are parties to this appeal.
The information alleged numerous counts of the following offenses: theft from an elder or dependent adult (§ 368, subd. (d)); sale of an unqualified security (Corp. Code, §§ 25110, 25540, subd. (a)); making false statements in connection with the sale of a security (Corp. Code, §§ 25401, 25540); burglary of an occupied residence (§§ 459, 460, 667.5, subd. (c)(21); conspiracy to commit a crime (§ 182, subd. (a)(1); Corp. Code, § 25401); grand theft of personal property by fraud (§ 487, subd. (a)); and use of a device, scheme, or artifice to defraud (Corp. Code, § 25541). The information also alleged an "aggravated white collar crime" enhancement. (Capitalization omitted.)
Defendant initially pleaded not guilty, but later entered into a plea bargain. She agreed to (1) plead guilty to two counts relating to a single victim who invested $102,697.78, and (2) serve three years in prison. In exchange, the prosecutor agreed to dismiss the remaining 126 counts alleged against defendant.
Defendant pleaded guilty to count 55 (sale of an unqualified security; Corp. Code, §§ 25110, 25540, subd. (a)) and count 56 (false statement in connection with the sale of a security; Corp. Code, §§ 25401, 25540).
On defendant's change of plea form, under the heading "CONSEQUENCES OF PLEA OF GUILTY OR NO CONTEST," defendant initialed boxes next to the following entries:
"7b. I understand that I must pay a restitution fine ($200-$10,000), that I will also be subject to a suspended fine in the same amount, and that I must pay full restitution to all victims.Defendant also signed her name below Paragraph 16.
[¶] . . . [¶]
"( Harvey Waiver) The sentencing judge may consider my prior criminal history and the entire factual background of the case, including any unfiled, dismissed or stricken charges or allegations or cases when granting probation, ordering restitution or imposing sentence." (Italics added.)
" 16. I declare under penalty of perjury that I have read, understood, and initialed each item above and any addendum, and everything on the form and any attached addendum is true and correct."
On the same form, defendant's counsel signed a statement representing he had "personally read and explained to the defendant the entire contents of [the] plea form," and "discussed all charges and possible defenses with the defendant, and the consequences of [the] plea . . . ." (Italics added.)
At the hearing on defendant's change of plea, the court confirmed defendant's understanding of the form: "I . . . understand that with the assistance of your attorney, you went over this change of plea form, initialed the appropriate boxes and signed the form. [¶] By doing so, you indicated to me that you understood everything on the form and that you want to plead guilty to those two charges. Is all of that true?" Defendant responded, "Yes."
Defendant then pleaded guilty to counts 55 and 56, and stipulated to the preliminary hearing transcript as the factual basis for the plea. Defendant's counsel concurred. The trial court then stated, "I do find a satisfactory factual basis; a knowing, intelligent and voluntary waiver of your constitutional rights. I'll accept your plea and dismiss the balance with a Harvey waiver." (Italics added.) The court sentenced defendant to concurrent three-year terms on each count (which she had already satisfied with time served and custody credits), and "order[ed] restitution to the victims as named and set forth in the information," in an amount to be determined at a later hearing. Defendant responded, "I'm very unclear about this whole restitution, Your Honor. That was not discussed with me as far as like—he's telling me about this. I know we talked about it a long time ago. But I was unaware that—." The court explained the purposes of restitution, generally, and set a hearing date. The following colloquy then occurred:
"THE DEFENDANT: What's required of me?"
"THE COURT: To show up, talk to your attorney before then."
"THE DEFENDANT: But, I mean, what's required in terms of finances or what? I mean, I'm clueless as to what's going on here."
"THE COURT: Well, I'm not making any orders right now regarding . . . any amounts of restitution to any particular victim."
"THE DEFENDANT: I thought everything was over with."
"THE COURT: Did you think that you were going to do your time and then that's just it?"
"THE DEFENDANT: Yeah, that's what I thought. That's what I was signing."
"THE COURT: Okay. That's not—."
"THE DEFENDANT: I signed 20 months of my life, that's what I thought I was signing."
"THE COURT: Okay that's not all, okay. So you can talk to your attorney between now and the restitution review. [¶] And in the unlikely event you actually thought all the victims would be just left unwhole, regardless of your circumstances, an unfortunate perception; but to the extent that anything needs to be done about that, you can talk to your attorney before [the restitution hearing] about that."
[¶] . . . [¶]
" [The Prosecutor]: If I can just mention that when—on the form that the Court went through with the defendant, there is a section that has her initials on it that says that restitution to the victims will be required. So it's not like this is something that just came out."
"THE COURT: Well—"
"THE DEFENDANT: I'm just trying to understand this right now."
"THE COURT: Strange to think there wouldn't be any addressing of restitution when so many people have been devastated."
"THE DEFENDANT: Well, nobody talked to me about it."
"THE COURT: I'll order you to appear in this court at 9 o'clock on March 11th. And we'll deal with restitution to the victims on that date. [¶] And I trust, [defense counsel], that you and [defendant] will be meeting before that. All right."
"[Defense Counsel]: I am available, Your Honor."
As of the restitution hearing about six weeks later, defendant had not sought to set aside her plea. Nor did she argue at the hearing that her plea or Harvey waiver were not knowing and voluntary. To the contrary, defense counsel twice acknowledged the existence of the Harvey waiver, but argued the court should limit restitution to the losses incurred in connection with counts 55 and 56 ($102,697.78) due to defendant's limited role in the investment scheme relative to the other participants.
The trial court ordered restitution in the amount of $3,870,597.92, explaining:
"The issue of pleading to just the two counts—I think one of the reasons it was two counts is that it was necessary to, one, resolve the case but also to . . . allow the sentence to be such a number that allowed her to get out of custody after having served her time. I think that was one of the considerations."
"But there's a Harvey waiver and I do also think it's fair to say that from the People's perspective they weren't agreeing to two counts with any idea that her financial culpability would be limited to whatever directly related to those counts. I don't think that's arguable. So you have this situation where legally, not morally I think, that her conduct in this case was one of a person who, I believe, knew what was going on, and certainly, in a broad general sense, and was reining in the benefits of that but also taking an active role by being a managing member or director or both—an officer—of the various companies involved and having, one, a
knowledge of the scheme but also an intent to assist in carrying it out. The evidence strongly supports that."
[¶] . . . [¶]
"But under the circumstances of the case I'm finding that the losses are attributed to this criminal scheme, one member of which was [defendant]. I'm legally compelled to order the restitution joint and several. I haven't addressed all of the defendants yet, but the amount—the agreed amount of $3,870,597.92 will be ordered and it will be joint and several with the other defendants."
Defendant appeals.
DISCUSSION
I. Defendant Was Required to Obtain a Certificate of Probable Cause
The Attorney General argues defendant's appeal is inoperative because her attack on the Harvey waiver is, in substance, a challenge to the validity of the plea, which required her to obtain a certificate of probable cause, which she did not do. We agree.
A. Relevant Legal Principles
1. Harvey Waivers
Under Harvey, supra, 25 Cal.3d 754, a negotiated plea that includes the dismissal of a count also includes "the understanding (in the absence of any contrary agreement) that defendant will suffer no adverse sentencing consequences by reason of the facts underlying, and solely pertaining to, the dismissed count." (Id. at p. 758, italics added.) "To avoid the Harvey restriction, prosecutors often 'condition[ ] their plea bargains upon the defendant agreeing that the sentencing court may consider the facts underlying the not-proved or dismissed counts when sentencing on the remainder.' " (People v. Munoz (2007) 155 Cal.App.4th 160, 167.) This agreement, known as a "Harvey waiver," "permits a trial court to consider facts underlying dismissed counts in determining the appropriate disposition for the offense of which the defendant was convicted." (People v. Moser (1996) 50 Cal.App.4th 130, 132-133.) Harvey waivers also apply to restitution orders. (People v. Baumann (1985) 176 Cal.App.3d 67, 74-75; People v. Weatherton (2015) 238 Cal.App.4th 676, 678; § 1192.3, subd. (b).)
2. Certificate of Probable Cause
Section 1237.5 and California Rules of Court, rule 8.304(b) "allow an appeal from a judgment entered on a guilty plea only if (1) the defendant obtains a certificate of probable cause from the trial court or (2) the appeal falls within the two categories of grounds that do not require a certificate. One 'noncertificate' category involves postplea claims, including sentencing issues, that do not attack the validity of the plea." (People v. Buttram (2003) 30 Cal.4th 773, 776 (Buttram).) An appeal that "attacks an integral part of the plea" is, "in substance, a challenge to the validity of the plea" that requires a certificate of probable cause. (People v. Panizzon (1996) 13 Cal.4th 68, 73 (Panizzon).) "In determining whether section 1237.5 applies to a challenge of a sentence imposed after a plea of guilty or no contest, courts must look to the substance of the appeal: 'the crucial issue is what the defendant is challenging, not the time or manner in which the challenge is made.' [Citation.] Hence, the critical inquiry is whether a challenge to the sentence is in substance a challenge to the validity of the plea, thus rendering the appeal subject to the requirements of section 1237.5." (Id. at p. 76.)
Section 1237.5 provides: "No appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere, or a revocation of probation following an admission of violation, except where both of the following are met: [¶] (a) The defendant has filed with the trial court a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings. [¶] (b) The trial court has executed and filed a certificate of probable cause for such appeal with the clerk of the court."
California Rules of Court, rule 8.304(b) limits the scope of section 1237.5 by allowing, without a certificate of probable cause, an appeal from a guilty or nolo contendere plea that is based on "[g]rounds that arose after entry of the plea and do not affect the plea's validity." (Italics added.)
"In the absence of full compliance and a certificate of probable cause, the reviewing court may not reach the merits of any issue challenging the validity of the plea, but must order dismissal of the appeal." (People v. Puente (2008) 165 Cal.App.4th 1143, 1149; see People v. Shelton (2006) 37 Cal.4th 759, 769 (Shelton) ["Absent a certificate of probable cause, the Court of Appeal could not entertain [defendant']s sentence challenge, which was the only issue defendant raised on appeal, and it had no alternative but to dismiss the appeal."].)
B. Analysis
Defendant argues she did not need to obtain a certificate of probable cause because "her appeal does not attack the validity of the plea itself" inasmuch as "the Harvey waiver was not a necessary part of the agreed upon plea." (Bold font omitted.) We disagree.
Defendant was charged with 128 counts. She was allowed to plead guilty to just two. The trial court found it was not "arguable" that the People were "agreeing to two counts with any idea that [defendant's] financial culpability would be limited to whatever directly related to those two counts." In other words, the trial court found the Harvey waiver was integral to the plea bargain. We, too, find it inarguable that this term was not integral to the plea bargain. Because defendant's Harvey waiver was a material term of the parties' plea bargain, defendant was required to obtain a certificate of probable cause before challenging the validity of her guilty plea on appeal.
Defendant's reliance on Buttram, supra, 30 Cal.4th 773 does not persuade us otherwise. There, the Supreme Court explained that a plea bargain that provides for "an agreed maximum sentence, or 'lid' " (id. at p. 776) necessarily contemplates that the trial court will have discretion to determine the appropriate sentence up to the agreed maximum (id. at p. 786). An appeal from the trial court's selected sentence is, therefore, not an attack on the plea, but on the court's subsequent exercise of the very discretion the parties contemplated the court would exercise. (Ibid.)
Buttram is inapt because defendant is not challenging the trial court's exercise of discretion reserved to it by the plea bargain. That is, she does not contend the court was authorized to consider the dismissed counts in determining the amount of restitution, but abused its discretion in doing so by (for example) finding defendant was just as culpable as her coconspirators. Rather, she contends the trial court lacked the authority to consider the dismissed counts at all because the Harvey waiver—which would have allowed the court to do so—is invalid.
In this regard, we find the Supreme Court's post-Buttram decision in Shelton, supra, 37 Cal.4th 759 more applicable. The plea bargain in Shelton included an agreed maximum sentence, but allowed the defendant to " 'argue for something less.' " (Id. at p. 764.) After the trial court selected the agreed maximum sentence, the defendant appealed on the ground the sentence was unauthorized because it violated section 654's prohibition on double-punishment. (Shelton, at p. 765.) The Supreme Court concluded a certificate of probable cause was required. (Id. at p. 769.) By agreeing in the plea bargain to a maximum sentence, the defendant implicitly acknowledged the trial court had the authority to impose the maximum. (Id. at p. 767.) But by arguing the sentence was barred by section 654, the defendant contradicted a term to which he had agreed in the plea. (Shelton, at pp. 768-769.) This "was in substance a challenge to the plea's validity . . . ." (Id. at p. 769.) In reaching this conclusion, the court distinguished its "carefully circumscribed holding" in Buttram: the challenge in Buttram was to the trial court's exercise of discretion specifically reserved to it, whereas the challenge in Shelton was to the existence of the trial court's sentencing authority, which was established by the plea. (Id. at p. 770.)
Defendant also relies on People v. Amin (2000) 85 Cal.App.4th 58, which recognizes a similar distinction. (Id. at p. 62 ["what was 'reserved' was a decision on the amount appellant would be required to pay. The fact that appellant would be required to pay restitution was an express element of the plea bargain."].) Amin is of limited use to defendant because it was decided on waiver principles and did not address certificates of probable cause. (Ibid.) --------
The distinction recognized in Shelton is dispositive here. Defendant's argument is not (as in Buttram) that the trial court abused its reserved discretion in determining the amount of the restitution award. Rather, she contends—contrary to the import of the Harvey waiver—the court lacked authority to award restitution based on the dismissed counts because she contends the Harvey waiver is invalid. This is a direct challenge to the validity of an integral part of the plea. Consequently, defendant was required to obtain a certificate of probable cause before pursuing this appeal. Because she did not, we must dismiss the appeal without considering its merits.
II. Defendant's Harvey Waiver
Even if we were to reach the merits of defendant's appeal, we would likely find her Harvey waiver was valid.
Defendant initialed a paragraph on her change of plea form indicating she understood she "must pay full restitution to all victims." (Italics added.) She also initialed a paragraph labeled "( Harvey waiver)," which advised that the court could consider "any . . . dismissed . . . charges . . . when . . . ordering restitution . . . ." She initialed and signed (under penalty of perjury) a paragraph declaring she had read and understood these provisions. And she represented to the trial court at the outset of the plea hearing that she understood these provisions. Based on this, the trial court made an express finding of "a knowing, intelligent and voluntary waiver" of defendant's rights and consent to a Harvey waiver.
Defendant contends her Harvey waiver was nevertheless not knowing and voluntary because she said during the plea hearing that she was "clueless" about whether she had to pay any restitution at all. We are not persuaded. First, the trial court implicitly questioned defendant's credibility by stating it was "unlikely" and "[s]trange to think there wouldn't be any addressing of restitution when so many people have been devastated." Second, defendant acknowledged she had spoken to her attorney about it (but claimed it was "a long time ago"). Finally, the court advised defendant to further discuss the issue with her attorney before the restitution hearing. She evidently did, because she never complained to the trial court again about the Harvey waiver, nor did she move to withdraw her plea.
DISPOSITION
The appeal is dismissed.
HALLER, J. WE CONCUR: BENKE, Acting P. J. HUFFMAN, J.