People v. Avignone, D070012

Background

Susan and William Avignone operated "SABA Investments" and solicited investments from five victims (church and personal contacts) in a Georgia real‑estate scheme, obtaining over $700,000.
Victims received promissory notes and some interim payments; payments later stopped and no liens or property ownership consistent with promises were documented; funds were traced to SABA and personal accounts and used for personal expenses.
The Avignones pleaded guilty to multiple counts: three securities‑fraud counts (Corp. Code §§ 25401, 25540) and two counts of grand theft (Pen. Code § 487), and admitted white‑collar enhancement allegations (§ 186.11(a)(2)) and other enhancements; other charges were dismissed.
At sentencing the court struck the § 186.11 enhancements, denied probation, and imposed an aggregate split county‑custody sentence (five years four months) with mandatory supervision for part of the term.
Defendants appealed arguing (inter alia) abuse of discretion in denying probation, challenge to an electronic‑search supervision condition, and error in restitution calculation for one victim; the People argued the sentence was unauthorized because § 186.11 disqualifies county‑jail sentencing under Realignment.
The Court of Appeal (published in part) reversed: concluded the trial court lacked authority to strike the § 186.11 enhancement and therefore the split county jail sentence was unauthorized; remanded to allow defendants to withdraw pleas or be resentenced; corrected restitution math for one victim (Otilia) to $82,200.

Issues

Issue	People’s Argument	Avignones’ Argument	Held
Whether denial of probation was an abuse of discretion	Trial court acted within discretion given seriousness and facts	Denial was irrational; defendants cited mitigating circumstances and unequal culpability	Denial affirmed — court did not abuse discretion; defendants were presumptively ineligible and case not "unusual" under rule 4.413
Whether trial court could strike § 186.11 white‑collar enhancements and impose county split sentence	Enhancements cannot be struck to avoid state‑prison commitment under § 1170(h)(3) and § 1170(f); thus county jail split was unauthorized	Striking punishment valid; court retained authority to impose local custody after dismissal	Held for People — striking § 186.11 and imposing a split county sentence was unauthorized; sentence invalid
Remedy for unauthorized sentence (withdraw plea vs. remand for lawful sentencing)	Court may remand to impose lawful state‑prison sentence consistent with indicated sentence or permit plea withdrawal	Defendants sought right to withdraw pleas because indicated sentence relied on local custody benefit	Court ordered conditional relief: defendants may withdraw pleas; if not, judgments reinstated and defendants resentenced lawfully; plea withdrawal option required due to ambiguity about judicial plea inducement
Restitution calculation for victim Otilia	Trial court mis‑added payments; People conceded error	Defendants agreed with corrected computation	Held: correct restitution to Otilia is $82,200; modify order if pleas stand

Key Cases Cited

People v. Clancey, 56 Cal.4th 562 (clarifies limits on judicial plea bargaining and indicated sentences)
People v. Lynch, 209 Cal.App.4th 353 (interpreting § 1170(h) and Realignment impact on custody placement)
People v. Sheehy, 225 Cal.App.4th 445 (section 186.11 enhancement as disqualifier for county jail under Realignment)
People v. Camp, 233 Cal.App.4th 461 (explaining split sentences and mandatory supervision under Realignment)
In re Varnell, 30 Cal.4th 1132 (use of § 1385 and authority to dismiss counts/enhancements)
People v. Warner, 20 Cal.3d 678 (standard of review for probation decisions)
People v. Bolton, 23 Cal.3d 208 (definition of judicial discretion)
People v. Buttram, 30 Cal.4th 773 (indicated sentence context in plea negotiation)
People v. Ramos, 235 Cal.App.3d 1261 (court‑stated indicated sentences without prosecutor agreement)