Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Los Angeles County Super. Ct. No. BA296454 James Bianco, Commissioner.
Linn Davis, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
ALDRICH, J.
John Rodriguez (Rodriguez) appeals from the judgment entered following his plea of no contest to three counts of grand theft (Pen. Code, § 487, subd. (a)). The trial court granted Rodriguez five years probation with numerous terms and conditions. We affirm the judgment.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
The facts have been taken from the probation report.
Rodriguez sold wireless accounts for Nextel through his independent business, Mobilnet. Rodriguez’s brother-in-law and codefendant, Oscar Flores (Flores), worked for Rodriguez selling cell phone accounts. Between December 3, 2004, and April 13, 2005, Rodriguez and Flores opened approximately 50 fraudulent accounts under the names of actual businesses. Each account was assigned 50 cell phones. Rodriguez and Flores had the cell phones sent to addresses where they would receive them, then sold the phones on Ebay. When the accounts opened by Rodriguez and Flores became delinquent, Nextel discovered the fraud. The actual loss to Nextel amounted to approximately $155,000.
2. Procedural History.
On January 18, 2006, Rodriguez and Flores were charged by felony complaint with 25 counts of grand theft of personal property of a value exceeding $400, “to wit[,] NEXTEL WIRELESS TELEPHONES[,] the property of NEXTEL WIRELESS.” It was further alleged as to counts one through 25 that Rodriguez and Flores, with the intent to do so, “took, damaged and destroyed property of a value exceeding $150,000, within the meaning of” section 12022.6, subdivision (a)(2). Finally, it was alleged as to counts one to 25 that the charged substantive offenses involved a theft of over $100,000 within the meaning of section 1203.045, subdivision (a).
At proceedings held on June 14, 2006, counsel for Rodriguez and the People indicated they had reached a disposition in the matter. The prosecutor explained: “As to Mr. Rodriguez, he is going to be pleading no contest to counts 1, 2 and 3. He will be required to come up with substantial restitution at the time of [the probation and sentencing hearing]. In the event he does come up with substantial restitution, he will be looking at a county-jail lid, which means he can receive up to a year in county jail. It may be no more immediate time, but that is going to be up to the court at the time of [the probation and sentencing hearing]. If he fails to come up with substantial restitution at the time of the sentencing, he will be receiving a 16-month state prison commitment. If he does not appear for [the probation and sentencing hearing], then it will become an open plea. He can get up to the maximum time that would be allowable as to the plea as to those three counts.” The following then occurred: “The Court: Okay. I also then understand the maximum amount of restitution that Mr. Rodriguez is agreeing to pay is . . . $155,000. [¶] [The Prosecutor]: That is correct. That is actually the restitution for all 25 counts. He’s going to agree to pay . . . for restitution for all dismissed counts as well as the counts that he would be pleading to.” Counsel for Rodriguez verified that the prosecutor had accurately stated the terms of the plea bargain. However, counsel noted that whether restitution was to be joint and several or “apportioned in some manner” between Rodriguez and Flores had not yet been agreed upon.
Rodriguez waived his right to a preliminary hearing, his right to a court or jury trial, his right to confront and cross-examine the witnesses against him, his right to subpoena witnesses and put on a defense, and his right against self-incrimination. The trial court then inquired of Rodriguez whether he understood that “if he were just pleading to counts 1, 2 and 3, [in general he] could only be required to pay [restitution] connected to those counts, but because of [his] plea agreement, [he was] agreeing to give up that limitation and to agree to pay . . . restitution for the entire amount for all 25 count[s], which [was] $155,000 . . . .” After Rodriguez indicated he understood that term of the plea agreement, he entered a plea of no contest to counts 1, 2, and 3 of the complaint.
On March 8, 2007, counsel for Rodriguez indicated Rodriguez had come to court prepared to make a payment of $17,000 toward the $155,000 in restitution ordered. Rodriguez had apparently borrowed the money from a family member.
At proceedings held on April 18, 2007, the trial court indicated it wished to have Rodriguez prepare a financial statement for the court. The court indicated it needed more information regarding Rodriguez’s finances in order to “have a sense of whether or not Mr. Rodriguez really [was] doing everything he [could] to pay substantial restitution.” The court continued, “If I think that he is doing everything he can and I think the amount in that context is substantial, then I am inclined to put Mr. Rodriguez on probation. If not, then I think it makes a lot more sense to sentence Mr. Rodriguez to prison at this time because, if he is not trying, I don’t have much confidence that he is going to . . . continue to make restitution during the course of probation . . . .” Accordingly, sentencing was continued for 30 days to enable Rodriguez to prepare and submit to the court a financial statement.
At proceedings held on May 31, 2007, following a lengthy discussion between the court and the parties, the trial court determined liability for the restitution owed should be joint and several between Rodriguez and Flores. The court stated: “[T]his was really one scheme. And although we don’t really know how Mr. Rodriguez and [Flores] divided up the money or whether they were each just taking the money from the phones that they put their names on or that were shipped . . . to the address that they had control of, it seems to me they were both in control of the operation per se. And it seems like it would be not only impossible to try to apportion restitution as to the two defendants, I don’t think it would be appropriate. It does seem like Mr. Rodriguez and Mr. Flores were working in conjunction with each other. It was Mr. Rodriguez’[s] business. Mr. Flores worked for him. [¶] And . . . to the extent that they each took on different tasks at different times, it does seem at a minimum they were working in concert with each other and certainly aiding and abetting each other in the course of the scheme. [¶] I think joint and several liability is appropriate.”
At the same proceedings, Rodriguez brought to court a check in the amount of $275. The court directed Rodriguez to, from that time forward, pay to Nextel a minimum of $200 per month. The trial court determined that, in its view, “given [Rodriguez’s] somewhat limited means,” he had made substantial restitution and was therefore eligible for probation. However, as a condition of probation, in addition to the monthly payments to Nextel, the trial court ordered Rodriguez to serve “300 hours of Caltrans.” The trial court then suspended imposition of sentence and placed Rodriguez on five years probation under, among others, the following terms and conditions: serve 25 days in the Los Angeles County jail, with credit given for 17 days actually served and 8 days of good time/work time; “perform 300 hours of Caltrans as directed by the probation officer;” “make restitution to . . . Sprint Nextel” in the remaining amount due of $131,725. The trial court then dismissed all remaining counts and allegations.
Rodriguez filed a timely notice of appeal on June 4, 2007.
This court appointed counsel to represent Rodriguez on appeal on September 20, 2007.
CONTENTIONS
Counsel filed an opening brief which raised no issues and requested this court to conduct an independent review of the record.
By notice dated October 18, 2007, the clerk of this court advised Rodriguez 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 Rodriguez’s 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 (order granting probation) is affirmed.
We concur: KLEIN, P. J., CROSKEY, J.