Opinion
D074667
09-04-2019
THE PEOPLE, Plaintiff and Respondent, v. YAIR ZILBERMAN, Defendant and Appellant.
Kent D. Young, 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, Charles C. Ragland and James H. Flaherty III, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCN360657) APPEAL from a judgment of the Superior Court of San Diego County, Sim von Kalinowski, Judge. Affirmed. Kent D. Young, 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, Charles C. Ragland and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Yair Zilberman pleaded guilty to one count of burglary of an inhabited dwelling (Pen. Code, §§ 459, 460, subd. (a); count 1) and admitted he had a prior residential burglary conviction, which qualified as a strike prior (§§ 667, subd. (b)-(i), 1170.12, and 668) and a serious felony prior (§§ 667, subd. (a)(1), 668, and 1192.7, subd. (c)). Although Zilberman stipulated to a sentence of 13 years, the court imposed a term of 17 years in prison, the maximum sentence available based on the plea.
Further statutory references are to the Penal Code unless otherwise stated.
Shortly after the sentencing hearing, but before Zilberman filed his appeal, the Governor signed Senate Bill No. 1393 which amended sections 667, subdivision (a) and 1385, subdivision (b) to give trial courts discretion to strike or dismiss a prior serious felony conviction for sentencing purposes. (Stats. 2018, ch. 1013, §§ 1-2.)
Zilberman contends we should reverse and remand this matter to allow the trial court to consider whether to strike the serious prior felony under amended sections 667, subdivision (a) and 1385, subdivision (b). The People agree the amended statutes apply retroactively because Zilberman's judgment is not final, but contend either the appeal should be dismissed for failure to obtain a certificate of probable cause or remand is not necessary because the record indicates the court would not have exercised its discretion to strike the serious felony prior. Assuming, without deciding, a certificate of probable cause is not necessary, we agree remand is not necessary because the record clearly shows the court would not strike the serious felony prior. We, therefore, affirm the judgment.
BACKGROUND
Although the detailed facts of the case are not necessary for the issue on appeal, we provide a general description of the charged crimes drawn from the probation report. --------
Over the course of several months in 2016, Zilberman represented himself as a contractor and gained access to several elderly victims' homes under the guise of cleaning or replacing air ducts. He sought multiple payments for the work and for purported mold remediation. The payments from the victims ranged from more than $1,000 to more than $27,000. Later investigation of the victims' attics showed little to no work was done. In one case, Zilberman drove a victim to the bank more than once to withdraw large sums of money. After a complaint, Zilberman issued a refund check, drawn on a closed account. In another case, he allegedly used a credit card number acquired from another victim to make fraudulent purchases.
For conduct related to three separate victims on separate dates in 2016, Zilberman was charged with three counts of burglary of an inhabited dwelling (§§ 459, 460, subd. (a), 667.5, subd. (c)(21), 667.9, subd. (a); counts 1, 5, and 7), three counts of theft of more than $950 from an elder (§ 368, subd. (d); counts 2, 6, and 8), one count of fraudulent use of a contractor's license (Bus. & Prof. Code, § 7027.3; count 3), and one count of passing a nonsufficient fund check in the amount of $15,000 (§ 476a, subd. (a); count 4). He was also charged with special allegations of having a prison prior (§§ 667.5, subd. (b) and 668), a serious felony prior (§§ 667, subd. (a)(1), 668, and 1192.7, subd. (c)), and a strike prior (§§ 667, subd. (b)-(i), 1170.12, and 668) based on a February 2015 conviction in Los Angeles County for residential burglary.
Zilberman pleaded guilty to count 1 and admitted he had a prior residential burglary conviction, which qualified as a strike prior and a serious felony or "nickel" prior meaning any sentence is doubled for the strike and five years would be added for the serious felony. In exchange for his plea, the People agreed to dismiss the balance of the charges. Zilberman admitted he knowingly and unlawfully entered the residence of another with the intent to commit a felony. Zilberman stipulated to a sentence of 13 years based upon the midterm of four years, doubled for the strike plus five years for the nickel prior. Zilberman agreed to pay restitution in the amount of $43,363.
Zilberman stated at the plea hearing that he understood he could receive a maximum sentence of 17 years in prison based on the plea and the court could consider his criminal history, including dismissed counts, in imposing a sentence. The court also advised Zilberman if he failed to appear for the sentencing hearing or if he committed a crime when he was out of custody prior to the sentencing hearing, the court could disregard the stipulated sentence and impose the maximum sentence.
Zilberman failed to appear for sentencing, despite telling his counsel he was on his way. He did not pay the stipulated restitution. He was ultimately found months later in Las Vegas, where he was arrested for new crimes against another elderly victim.
Zilberman moved to withdraw his plea based on ineffective assistance of counsel for failing to seek mental health diversion under section 1001.36 for an alleged gambling addiction, although that section was enacted after the plea deal. In denying Zilberman's motion and request, the court noted Zilberman's prior felony convictions involving elderly victims occurred after he purportedly had treatment for gambling. The court stated Zilberman's pattern of committing crimes while on probation, his failure to appear for sentencing, and the lack of remorse he showed in this case made it unlikely he would benefit from diversion or abide by the terms of diversion. The court found defense counsel's representation was competent and denied the motion to withdraw the plea.
The court stated it was no longer bound by the stipulated sentence due to Zilberman's failure to appear and the subsequent arrest for new crimes. The court sentenced Zilberman to 17 years in prison based on the upper term of six years doubled for the strike prior plus five years for the serious felony prior. The court ordered Zilberman to pay the stipulated restitution under section 1202.4, subdivision (f) to the three victims of the charged crimes.
Zilberman filed a notice of appeal on October 5, 2018. The notice stated the appeal was both based on the sentence or other matters not affecting the plea and challenged the validity of the plea. The form requested the issuance of a certificate of probable cause to challenge the plea based on ineffective assistance of counsel for failure to investigate mental health diversion before advising him to plead guilty. The court denied the request.
DISCUSSION
"On September 30, 2018, the Governor signed Senate Bill [No.] 1393 which, effective January 1, 2019, amend[ed] sections 667(a) and 1385(b) to allow a court to exercise its discretion to strike or dismiss a prior serious felony conviction for sentencing purposes. (Stats. 2018, ch. 1013, §§ 1-2.) Under the [previous] versions of these statutes, the court [was] required to impose a five-year consecutive term for 'any person convicted of a serious felony who previously has been convicted of a serious felony' (§ 667(a)), and the court [had] no discretion 'to strike any prior conviction of a serious felony for purposes of enhancement of a sentence under [s]ection 667.' (§ 1385(b).)" (People v. Garcia (2018) 28 Cal.App.5th 961, 971.) The parties agree the amendments apply because the judgment in this case is not final. (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 307-308 & fn. 5; In re Estrada (1965) 63 Cal.2d 740, 744-745.)
Appellate courts have divided over whether a defendant sentenced before the enactment of Senate Bill No. 1393 must obtain a certificate of probable cause before seeking remand for resentencing under the new law. (Compare People v. Galindo (2019) 35 Cal.App.5th 658, petn. for review pending, petn. filed June 26, 2019, S256568 [appeal dismissed for failure to obtain certificate of probable cause] and People v. Kelly (2019) 32 Cal.App.5th 1013, review granted June 12, 2019, S255145 [appeal dismissed for failure to obtain certificate of probable cause] with People v. Stamps (2019) 34 Cal.App.5th 117, review granted June 12, 2019, S255843 [matter remanded for resentencing] and People v. Alexander (2019) 36 Cal.App.5th 827, petn. for review pending, petn. filed July 31, 2019, S257190 [matter remanded for resentencing].) Courts have similarly split regarding Senate Bill No. 620 (2017-2018 Reg. Sess.), which provided trial courts discretion to strike or dismiss firearm sentencing enhancements. (Compare People v. Fox (2019) 34 Cal.App.5th 1124 [appeal dismissed for failure to obtain certificate of probable cause] with People v. Hurlic (2018) 25 Cal.App.5th 50 [matter remanded for resentencing] and People v. Baldivia (2018) 28 Cal.App.5th 1071 [matter remanded for resentencing].)
We need not enter this fray. Even if a certificate of probable cause is not necessary, remand would be futile in this case because the record clearly indicates the court would not have exercised discretion to strike the serious felony prior. (People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896.)
When denying the motion to withdraw the plea, the court stated, "[d]efendant chooses to victimize the elderly. All of his three prior convictions as well as the current case involve the defendant victimizing the elderly." The court was "struck" by Zilberman's "complete lack of remorse towards his victims." Zilberman tried to diminish his conduct, but the court observed, "nowhere does he acknowledge how his conduct affected his elderly victims, with losses in the tens of thousands of dollars."
In imposing the upper term for sentencing, the court considered several factors in aggravation and found no factors in mitigation. The court stated Zilberman preyed on vulnerable elderly victims by using a fraudulent scheme to obtain large amounts of money by seeking higher and higher payments. Zilberman had three prior felony convictions involving theft from elderly victims and he was on probation for a conviction of theft from an elderly person at the time he committed the crime for which he was sentenced. The court rejected the claim of a gambling addiction as a mitigating factor noting it "has no impact on his choice to victimize the elderly." The court concluded the hearing by saying, "Mr. Zilberman, you're full of excuses. You're an ultimate con man, and you prey on the elderly. There are really no excuses for that." The court commented it hoped Zilberman would learn from his time in prison, but was skeptical based on Zilberman's history of recidivism.
Another panel of our court recently remanded a matter "out of an abundance of caution" for the court to consider whether a firearm enhancement for one defendant and a serious prior felony enhancement should be stricken even though the trial court made comments that were not sympathetic to either defendant because the court did not have discretion to strike the enhancements at the time of sentencing. (People v. Johnson (2019) 32 Cal.App.5th 26, 69.) However, based on the trial court's extensive comments in this case regarding Zilberman's pattern of repeatedly preying on elderly victims to obtain large sums of money, his lack of remorse, and the lack of any mitigating circumstances, we see no circumstances under which the court would strike the serious felony enhancement.
DISPOSITION
The judgment is affirmed.
McCONNELL, P. J. WE CONCUR: BENKE, J. O'ROURKE, J.