P. v. Finau CA1/2 filed

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Filed 3/28/11 P. v. Finau CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO THE PEOPLE, Plaintiff and Respondent, A128816 v. (Solano County Super. Ct. No. FCR265886) TALAIASI FINAU, Defendant and Appellant. It appears that defendant Talaiasi Finau was a home improvement scam artist who, when eventually apprehended, was charged with 30 felony and misdemeanor counts. He agreed to plead no contest to 19 of those counts: five felony counts of obtaining money by false pretenses (Pen. Code, § 532, subd. (a)); three felony counts of fraudulently using a contractor s license number (Bus. & Prof. Code, § 7027.3); one felony count of diverting construction funds (Pen. Code, § 484b); seven misdemeanor counts of charging an excessive down payment for a home improvement (Bus. & Prof. Code, § 7159, subd. (a)(3)); and two misdemeanor counts of operating without a contractor s license (Bus. & Prof. Code, § 7028). The pleas were part of a negotiated disposition whereby in exchange the remaining counts would be dismissed some with Harvey1 waivers and defendant would receive a stipulated sentence of 16 months in state prison. This much is undisputed. The sole point of contention on this appeal is the matter of the amount of fines imposed at the time of sentencing. 1 People v. Harvey (1979) 25 Cal.3d 754. 1 There were only two brief mentions of fines at the hearing when defendant changed his pleas. The first occurred when the court inquired of defendant whether he understood that there will be associated with this certain statutory fines that will be imposed and restitution will be reserved according to proof. Defendant replied, Yes, I do. In the Waiver of Rights form executed by defendant and ordered incorporated by reference, the sole mention of fines was the following: In addition to other penalties that may be ordered by the Court, I will be subjected to fines that may vary in amount from $10.00 to $20,000.00. The other mention of fines occurred after defendant changed his pleas, when the court and counsel were discussing the scheduling of the sentencing hearing, and the scope of report that would be requested from the probation officer. The court advised both counsel that if there are some math calculations or some specific issues that you want to alert me to before the day for the J and S [judgment and sentence], I welcome you submitting something in writing to me ahead of time . . . so that we are not sitting here arguing about what fines are and we have to brief it and what not . . . . With concurrence of both counsel, the court stated that the sentence report would be confined to sentence, fine calculation and credits only. The trial court did not, as required by Penal Code section 1192.5, advise defendant that he would have the right to withdraw his no contest pleas should the court decide withdraw its approval. The probation officer recommended imposition of $39,000 worth of fines according to the following reasoning: Pursuant to section 7027.3 B&P, the defendant is subject to a maximum $10,000 fine on each of counts 10-12. The defendant thereby owes a total of no more than $30,000 for the aforementioned convictions. 2 Pursuant to section 7028(c) B&P, as counts 22-23 account for the defendant s third and subsequent convictions for said charge, he is accountable for no less than $9,000 ($4,500 per count) and no more than $20,000 ($10,000) per count. 2 At sentencing, the court followed the recommendations of the probation officer: I m going to impose a restitution fund fine of $400 pursuant to Penal Code 1202.4. [A probation revocation restitution fine of] $400 pursuant to Penal Code 1202.44, stayed pending successful completion of parole [sic]. . . . [¶] On Count 10, I am imposing a fine of $10,000 pursuant to Business and Professions Code 7027.3. [¶] On Count 11, I m imposing a fine of $10,000. [¶] On Count 12, imposing a fine of $10,000. [¶] On Count 22, I m imposing a fine of $4,500. [¶] And on Count 23, I m imposing a fine of $4,500. [¶] There will be penalty assessments of $7,800 pursuant to 1465.7 of the Penal Code, and $1,900 pursuant to 1464(a). 3 2 The two statutes cited by the probation officer provide in pertinent part: Any person, licensed or unlicensed, who willfully and intentionally uses, with intent to defraud, a contractor s license number that does not correspond to the number on a currently valid contractor s license held by that person, is punishable by a fine not exceeding ten thousand dollars ($10,000) . . . . The penalty provided by this section is cumulative to the penalties available under all other laws of this state. . . . (Bus. & Prof. Code, § 7027.3.) If a person has been previously convicted of the offense described in this section . . . the court shall impose a fine of 20 percent of the contract price, or 20 percent of the aggregate payments made to, or at the direction of, the unlicensed contractor, or five thousand dollars ($5,000), whichever is greater . . . . (Bus. & Prof. Code, § 7028, subd. (c).) 3 The last two provisions of the Penal Code cited by the trial court deal with a state surcharge and a state penalty computed according to this language: A state surcharge of 20 percent shall be levied on the base fine used to calculate the state penalty assessment as specified in subdivision (a) of Section 1464. (Pen. Code, § 1465.7, subd. (a).) . . . [T]here shall be levied a state penalty in the amount of ten dollars ($10), or part of ten dollars ($10), upon every fine, penalty, or forfeiture imposed and collected by the courts for all criminal offenses . . . . (Pen. Code, § 1464, subd. (a)(1).) 3 Defendant does not challenge the applicability of these statutes, the fact that they are mandatory, or the amount of the fines imposed by reason of them. Defendant s sole contention is that, as evidenced by the Waiver of Rights memorializing the plea agreement, he agreed to imposition of no more than $20,000, he was not advised that a greater sum was possible, and $39,000 of fines therefore exceeded the agreement, and must be reduced to $20,000. Conversely, because defendant secured a certificate of probable cause, the Attorney General makes no argument that the merits of defendant s claim are not properly here. The implicit predicate of defendant s argument is that the Waiver of Rights form constitutes the entirety of the agreement. As he would have it, the $20,000 figure in that document constitutes a binding cap on the entirety of fines that the trial court could impose. His solution is to reconfigure the fines to bring the total within this limit: Business and Professions Code section 7028 mandates a $4,500 fine for each offense, so the Court cannot reduce the $9,000 in fines imposed for counts 22 and 23. [¶] But Business and Professions Code section 7027.3 does not mandate a $10,000; it merely allows a fine not exceeding $10,000. Accordingly, the Court can reduce the aggregate fines for counts 10, 11 and 12 to $11,000, which would bring the total fines imposed to $20,000, the amount set as a maximum by the plea agreement. The penalty assessments under [Penal Code] sections 1464 and 1465.7 should be reduced correspondingly. Defendant cites no authority for his predicate.4 We know of no authority that requires our inquiry to be so constricted. On the contrary, the waiver form has no The trial court had made reference to these assessments at an early stage of the sentencing hearing: [T]he fines are a maximum fine. In terms of collectability, the fines, I would presume, are collected secondary to victim restitution. So when I m imposing the fines plus the 20 percent state penalty plus the $10 for every $10, I m mindful of the fact that I really want the victims to get their restitution, although as a person whose check is paid by taxes, I understand there is a need to collect their fines and fees, et cetera. I m not disregarding that. 4 Which, in any event, is not self-evident and incontestable. The actual language of the form In addition to other penalties that may be ordered by the Court, I will be subjected to fines that may vary in amount from $10.00 to $20,000.00 uses the plural 4 mention of the myriad considerations that would be considered in determining whether the totality of circumstances establishes the validity of defendant s change of pleas. (See People v. Mosby (2004) 33 Cal.4th 353, 361; People v. Howard (1992) 1 Cal.4th 1132, 1177-1179.) There is no way the form could memorialize the statutory command that the trial court shall . . . cause an inquiry to be made of the defendant to satisfy itself that the plea is freely and voluntarily made, and that there is a factual basis for the plea. (Pen. Code, § 1192.5, italics added.) Thus, we cannot close our eyes to the reporter s transcript of defendant s change of pleas. And it is the reporter s transcripts that prove dispositive. They show, as the Attorney General summarizes, that Nothing was said as to any negotiated limit on the amount of fines the court could impose. We think it significant that at the time defendant changed his pleas there was no mention, by either the court, the prosecutor, defendant, or, most significantly, defendant s counsel, of a $20,000 cap or ceiling on the amount of fines that could be imposed. The $20,000 thus is not established as a term that was actually negotiated and made a part of the plea agreement. (People v. Crandall (2007) 40 Cal.4th 1301, 1309.) On the contrary, the subsequent actions of all concerned demonstrates that the parties that the parties intended to leave the amount[s] of defendant s . . . fine[s] to the discretion of the court. (Ibid.) In these circumstances defendant is not entitled to relief. (Ibid.) The judgment of conviction is affirmed. fines. The additional language that may vary in amount from makes sense only if addressing more than one fine. The form s language could therefore be read as admonishing defendant that no single fine would exceed $20,000, with no limit on the ultimate aggregate of fines imposed. Moreover, such a reading is entirely consistent with the fact that the probation officer s subsequent recommendation of almost double $39,000 in fines, and the trial court s imposition of more than $39,000 in fines, elicited no protest from defendant s counsel at the time of sentencing. Even defendant s appellate counsel appears perhaps subconsciously to accept as much: using her proffered formula, the inclusion of any amounts pursuant to Penal Code sections 1464 and 1465.7 would put the total amount above $20,000, not to mention the amounts pursuant to Penal Code sections 1202.4 and 1202.44. 5 _________________________ Richman, J. We concur: _________________________ Kline, P.J. _________________________ Lambden, J. 6

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