Opinion
NOT TO BE PUBLISHED
Superior Court County of Santa Barbara No. 1255795 Brian E. Hill, Judge
Laura Rose Tibbin, in pro. per.; California Appellate Project, Jonathan B. Steiner, Executive Director, and Richard B. Lennon, Staff Attorney, under appointment by the Court of Appeal, for Appellant.
No appearance for Respondent.
PERREN, J.
Laura Rose Tibbin appeals the judgment following her no contest plea to grand theft by embezzlement (Pen. Code, § 487, subd. (a)) and failing to file an income tax return (Rev. & Tax. Code, § 19706), and her admission that the amount of money stolen exceeded $150,000 (§ 12022.6, former subd. (a)(2)). In exchange for appellant's plea, three additional counts of failing to file an income tax return and three counts of filing a false income tax return (Rev. & Tax. Code, § 19705, subd. (a)) were dismissed. Appellant was sentenced to four years eight months in state prison and was ordered to pay victim restitution.
All further undesignated statutory references are to the Penal Code.
Because appellant entered her plea after waiving her right to a preliminary hearing, the relevant facts are derived from the probation report. For approximately 13 years, appellant was the office manager for a Santa Barbara law firm. In 2007, it was discovered that appellant had embezzled over $400,000 from the firm over the course of her employment. Appellant had also failed to pay all of the law firm's payroll taxes for several years, which caused the firm to incur over $100,000 in penalties. The law firm spent almost $100,000 in discovering and rectifying appellant's fraud. Appellant also failed to report the money she stole as taxable income.
Appellant's plea agreement, which was executed on November 9, 2009, provided that she would be sentenced to jail and placed on probation if she presented the victims with a $150,000 cashier's check on or before the date of the sentencing hearing on May 11, 2010. The agreement further provided that if the condition of payment was not met by that date, "then this is an open plea to the court with either State Prison or Probation as a possibility." Appellant also attested to her understanding that she would be ordered to pay $339,614 in victim restitution, with further restitution to be determined at a later date. Appellant waived the right to appeal her sentence.
At the continued hearing on May 25, 2010, appellant's attorney notified the court that appellant had failed to present the $150,000 cashier's check as promised. Counsel requested a three-month continuance on the representation that it would give appellant enough time to pay the entire $339,614 in victim restitution that had been assessed thus far. The court denied the request, but continued the matter for three days on defense counsel's representation that he needed additional time to prepare for sentencing.
On May 28, 2010, the court denied appellant's request to be placed on probation and sentenced her to four years eight months in state prison, consisting of the midterm of two years for the grand theft charge, enhanced by two years for the excessive taking allegation, plus a consecutive eight-month sentence for the charge of failing to file a tax return. Appellant was also ordered to pay $721,600.33 in restitution to the victims, $79,851 to the California Franchise Tax Board, a $200 restitution fine, and a $43 court security fee.
Appellant filed a timely notice of appeal, alleging among other things that (1) she did not fully understand the consequences of her plea; (2) the victims improperly prevented her from complying with the payment condition of her plea; and (3) ineffective assistance of counsel. Her application for a certificate of probable cause was denied.
We appointed counsel to represent appellant in this appeal. After counsel's examination of the record, he filed an opening brief in which no issues were raised.
On December 3, 2010, we advised appellant that she had 30 days within which to personally submit any contentions or issues she wished us to consider. We subsequently granted appellant's request for additional time to file a supplemental brief. On February 15, 2011, appellant filed a supplemental brief contending (1) her first trial attorney had a conflict of interest; (2) her first trial attorney should have filed a change of venue motion; (3) she was forced to waive a preliminary hearing; (4) her second trial attorney failed to conduct discovery; (5) trial counsel failed to file a timely answer to the civil complaint that the victims brought against appellant and her domestic partner and failed to appear in the case on appellant's behalf as promised; (6) her second trial attorney had a conflict of interest and failed to adequately prepare for her case; (7) counsel failed to inform the court that appellant wanted to withdraw her no contest plea; (8) she was induced to enter the plea agreement through misrepresentation; (9) counsel failed to explain the terms of the plea agreement; (10) the agreement appellant actually entered was not the one she had bargained for; (11) the victims prevented her from complying with the terms of the plea agreement; (12) counsel failed to seek an updated probation report prior to sentencing; (13) counsel failed to represent her interests at the sentencing hearing; and (14) counsel failed to oppose the order of restitution. None of these claims has merit.
All of appellant's claims essentially attack the validity of her plea, and thus are not cognizable without a certificate of probable cause. Pursuant to her plea agreement, appellant also waived the right to appeal her conviction and sentence. Even if we were to construe the appeal as a petition for a writ of habeas corpus, appellant's claims would fail because the record does not demonstrate any of the alleged errors of which she complains. Her brief is in the form of an unsworn declaration and is devoid of any citations to the record. Moreover, the record amply demonstrates that appellant entered her plea knowingly, voluntarily and intelligently. The plea agreement, rather than being the usual form waiver, was drafted specifically for the case. Appellant initialed each provision that applied to her, and by signing the agreement acknowledged that counsel had discussed all terms with her. Appellant's complaint that counsel failed to object to the amount of restitution is fatally undermined by the fact that she expressly agreed to the amount of the restitution order in executing her plea, and also waived her right to a restitution hearing as to that amount.
Appellant's claim that the victims prevented her from complying with the plea agreement is based on the unsubstantiated allegation that they refused to lift their liens on her residence. Appellant also fails to allege, much less establish, that the plea agreement expressly contemplated she would make the $150,000 payment with proceeds from a loan secured by her residence. Appellant also fails to demonstrate that she had no other available means of making the payment. On the contrary, a relative who submitted a character reference in favor of appellant represented that she "stood ready and willing to convert" the substantial equity in her own residence "to support and provide security for [appellant's] proposed escrow."
Appellant's claims regarding a conflict of interest and change of venue are largely based on the unsupported allegation that the Santa Barbara County Superior Court was biased in favor of the victims. Instead of proving any evidence substantiating the claim, appellant denigrates the victims and accuses them of "willfully abus[ing] the legal process solely for pecuniary gain...."
Appellant's attempt to paint herself as the victim is unavailing. The record demonstrates that she abused her position of trust by stealing large sums of money from her employer over the course of several years. Even though her theft amounted to several hundred thousand dollars, she could have avoided prison by returning a fraction of that amount. Moreover, she was given over six months to do so. Appellant entered the agreement freely and with full knowledge of the consequences of her failure to comply.
We have reviewed the entire record and are satisfied that appellant's attorney has fully complied with his responsibilities and that no arguable issues exist. (People v. Wende (1979) 25 Cal.3d 436, 443; People v. Kelly (2006) 40 Cal.4th 106, 126.)
The judgment is affirmed.
We concur: GILBERT, P.J., COFFEE, J.