67 Cal.App.5th 1073
Cal. Ct. App.2021Background
- In July 2016 a bulldozer owned by appellant Ian Czirban, operating under a multi-year Emergency Equipment Rental Agreement (EERA) with Cal Fire, was involved in an accident that killed an operator; an investigation revealed gaps and rescission of workers’ compensation coverage.
- In May 2018 the DA charged Czirban with multiple regulatory offenses; after a bench trial the court convicted him of one count of procuring/ offering a false instrument, tax evasion (Unemp. Ins. Code § 2117.5), failure to collect/account/pay payroll taxes (§ 2118.5), and misdemeanor failure to secure workers’ compensation insurance (Lab. Code § 3700.5).
- The trial court suspended imposition of sentence and placed Czirban on three years’ felony probation, including a $10,000 fine under Labor Code § 3700.5 as a probation condition.
- On appeal Czirban argued (1) the convictions for counts 5–7 required proof the bulldozer drivers were his employees and the evidence showed they were independent contractors; (2) Assembly Bill 1950’s two-year probation cap applies retroactively and requires resentencing; and (3) the $10,000 fine was imposed without the court having exercised discretion.
- The Court of Appeal applied the Borello multifactor test (agreed by parties for pre‑2020 conduct), reviewed the employment‑status challenge under the substantial‑evidence standard, affirmed the convictions, ordered remand to reduce probation to two years under AB 1950, and directed issuance of a corrected sentencing minute order; it rejected the claim that the court failed to exercise discretion on the fine.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether bulldozer drivers were employees (element of counts 5–7) | People: substantial evidence supports employer/employee relationship — Czirban controlled assignments, supplied equipment, signed EERA and integrated drivers into his business | Czirban: drivers were independent contractors under Borello (and under any test) so elements not met | Applied Borello; reviewed for substantial evidence; affirmed — record permits a reasonable trier of fact to find drivers were employees |
| Whether AB 1950 (two‑year felony probation cap) applies and requires resentencing | People/AG: AB 1950 is ameliorative and applies to nonfinal cases; remand appropriate | Czirban: requested remand to reduce probation to two years | AB 1950 applies retroactively to nonfinal cases; reversed probation order and remanded for resentencing to modify probation to two years |
| Whether trial court failed to exercise discretion in imposing $10,000 Lab. Code § 3700.5 fine | People: claim forfeited and, in any event, record does not show court misunderstood its discretion | Czirban: sentencing record shows court thought it lacked discretion and thus abused discretion | Court rejected Czirban’s claim — record silent on any misunderstanding; no remand required on this ground; directed corrected minute order to reflect terms |
Key Cases Cited
- S.G. Borello & Sons, Inc. v. Department of Industrial Relations, 48 Cal.3d 341 (Cal. 1989) (multifactor test for employee v. independent contractor)
- Dynamex Operations W., Inc. v. Superior Court, 4 Cal.5th 903 (Cal. 2018) (adopted ABC test for wage‑order misclassification; discussed as background)
- Jackson v. Virginia, 443 U.S. 307 (U.S. 1979) (standard for sufficiency of the evidence review in criminal convictions)
- People v. Cuevas, 12 Cal.4th 252 (Cal. 1995) (applying substantial‑evidence test for criminal convictions)
- People v. Quinn, 59 Cal.App.5th 874 (Cal. Ct. App. 2021) (AB 1950 probation‑term reduction applies retroactively)
- People v. Sims, 59 Cal.App.5th 943 (Cal. Ct. App. 2021) (remand for resentencing under AB 1950)
- Vendor Surveillance Corp. v. Henning, 62 Cal.App.5th 59 (Cal. Ct. App. 2021) (Borello governs unemployment‑insurance tax determinations for work before 2020)