People v. Avignone
16 Cal. App. 5th 1233
| Cal. Ct. App. 5th | 2017Background
- Susan and William Avignone ran SABA Investments and solicited funds from five investors for purported Georgia real‑estate projects; investors lost over $700,000 and received promissory notes and periodic payments that later stopped.
- The Avignones pleaded guilty to multiple counts: three counts under Corporations Code §§ 25401 & 25540 (fraud in connection with securities) and two counts of grand theft (Pen. Code § 487).
- They admitted additional allegations under Penal Code § 186.11 (white collar enhancement) and various sentencing enhancement provisions (§ 12022.6 variants).
- At sentencing the trial court struck the § 186.11 white collar enhancements and imposed a split county‑jail sentence (aggregate 5 years 4 months, with 1 year 4 months mandatory supervision), rather than state prison.
- The People appealed, arguing the sentence was unauthorized under California’s Realignment Act (2011) because § 186.11 enhancements disqualify defendants from county‑jail/realigned sentences.
- The trial court denied probation; the People conceded one restitution calculation was incorrect; William also challenged an electronic search condition (later rendered moot by the sentencing issue).
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument (Avignone(s)) | Held |
|---|---|---|---|
| Whether trial court abused discretion in denying probation | Denial was proper | Avignones argued abuse of discretion | Denial upheld (unpublished portion) |
| Whether court could strike § 186.11 white collar enhancements and impose county split sentence under Realignment Act (§ 1170(h)) | § 1170(f) and (h)(3) bar dismissal of enhancements that trigger state prison; sentencing to county jail was unauthorized | Avignones argued court could dismiss punishments and law permits local custody if enhancement punishment is struck | Court held sentence unauthorized: § 186.11 is a disqualifier under Realignment; court lacked authority to strike enhancement under § 1385 and thus could not impose split county sentence |
| Remedy for unauthorized sentence / plea consequences | People argued remand for lawful sentencing consistent with court’s indicated sentence; alternatively allow motion to withdraw pleas | Avignones sought opportunity to withdraw pleas | Court ordered defendants be allowed opportunity to withdraw pleas; if not withdrawn, resentencing to lawful term; conditional reversal required due to ambiguous indicated‑sentence context |
| Restitution calculation to victim Otilia | People conceded miscalculation | Avignones sought correction | Restitution modified on remand: Otilia entitled to $82,200 |
Key Cases Cited
- People v. Camp, 233 Cal.App.4th 461 (Cal. Ct. App.) (discusses split sentences under Realignment Act)
- People v. Lynch, 209 Cal.App.4th 353 (Cal. Ct. App.) (Realignment changed felony definition and county sentencing scheme)
- People v. Griffis, 212 Cal.App.4th 956 (Cal. Ct. App.) (defendants sentenced under Realignment generally committed to county jail)
- People v. Sheehy, 225 Cal.App.4th 445 (Cal. Ct. App.) (§ 186.11 enhancement requires state prison under § 1170(h)(3))
- People v. Clancey, 56 Cal.4th 562 (Cal.) (limits on judicial plea bargaining and proper indicated sentences)
- People v. Buttram, 30 Cal.4th 773 (Cal.) (indicated sentence may be part of plea agreement)
- People v. Superior Court (Ramos), 235 Cal.App.3d 1261 (Cal. Ct. App.) (judicial indicated sentence without prosecutor consent)
- People v. Superior Court (Smith), 82 Cal.App.3d 909 (Cal. Ct. App.) (nature of indicated sentence explained)
- In re Williams, 83 Cal.App.4th 936 (Cal. Ct. App.) (remedy where agreed sentence exceeds court's jurisdiction)
- People v. Chavez, 5 Cal.App.5th 110 (Cal. Ct. App.) (statutory withdrawal of § 1385 authority may be implied by Legislature)