People v. AvignonePeople v. Avignone
Donna L. Harris, under appointment by the Court of Appeal, for Defendant and Appellant Susan Joy Avignone.
Heather L. Beugen, under appointment by the Court of Appeal, for Defendant and Appellant William Alan Avignone.
Susan Joy Avignone and William Alan Avignone (together the Avignones) defrauded five investors out of more than $700,000 in a real estate scheme. In exchange for dismissal of some of the charges, the Avignones pleaded guilty to three counts of fraud in connection with the offer, sale, and purchase of a security (
Susan admitted a
We reject the Avignones’ argument that the trial court abused its discretion in denying probation. We agree that the trial court imposed an unauthorized sentence. This conclusion renders William‘s argument regarding the electronic search condition moot. We reverse the judgments and remand with directions tо allow the Avignones an opportunity to withdraw their guilty pleas.
GENERAL FACTUAL BACKGROUND
Because the parties are familiar with the facts, we summarize only the general facts concerning the underlying crimes at issue in this appeal. We present additional facts concerning the issues on appeal in our discussion post.
Eric — Count 2
Eric spoke to his pastor about his plan to borrow against the equity in his home to obtain funds he needed to start a new drywall business. The pastor referred Eric to Susan, his sister, for financial advice. Susan told Eric that she and her husband, William,
In April 2009, William contacted Eric by telephone to suggest borrowing against the life insuranсe policies to invest in real estate in Georgia to obtain a greater return than what the life insurance policies provided. Eric sent a check to SABA for $27,000. He received a promissory note indicating that he and his wife would receive quarterly payments for five years and a 50 percent share of the equity in the property when it was sold in five years. The investment was to be secured by a first lien on the property. The quarterly payments stopped in October 2010. In January 2011, William told Eric that he did not have the money to pay him back. Eric never received paperwork indicating the investment was used to purchase real property and never received any lien paperwork for property in Georgia.
Otilia — Count 3
Otilia met the Avignones through a friend and purchased a life insurance policy from them. In 2009, Otilia met with the Avignones. They suggested that she borrow against her life insurance policy and use the money to invest in real estate in Georgia. They told her they would purchase a block of properties from the government, turn them around in three to five years, triple the money, and she would get half. In June 2009, Otilia invested $70,000. She received a promissory note for that amount and was promised quarterly payments of $2,100. In February 2010, Otilia made a $245,000 investment with the Avignones. At some point, she made another $38,760 investment.
Monroe — Count 5
After meeting William through a mutual friend, Monroe purchased a life insurance investment from William. In June 2009, William told Monroe that his company, SABA, used investor funds to purchase distressed properties in Georgia, fix them up, and rent them out. William promised Monroe that if he invested in the plan, Monroe would receive first lien status on the title of each property purchased. William promised quarterly payments on the investment and 50 percent of the profit when the properties were sold. Monroe invested a total of $150,000. Monroe initially received some payments, but the payments stopped. In July 2011, William told Monroe that the payments would resume soon, but Monroe never received any more payments.
Carlos — Count 8
Carlos met the Avignones through Otilia. In 2010, Carlos met with the Avignones and gave his $217,000 rеtirement sum to the Avignones. The Avignones used $200,000 to invest in property located in Georgia and returned the balance so Carlos could pay off creditors. In return, Carlos received a promissory note that guaranteed him $2,000 per month. He received several months of payments, but the payments were then cut in half and ultimately stopped. William never returned Carlos‘s telephone calls and Carlos discovered that the SABA office had been vacated.
Frank met the Avignones at church and considered them his “best church friends.” In early 2010, Frank sought financial advice from the Avignones as he was facing foreclosure of his home. In May 2010, Frank gave the Avignones $54,000 to invest in real estate in a southern state. In return, he received a promissory note for $54,000 and was promised quarterly interest payments. Frank received payments for about eight months when the payments stopped.
Investigation
Investigators found real estate in Georgia in the name of Susan and SABA. There were no liens in favor of any of the victims. SABA was registered to Susan and she signed most of the checks that depleted the victims’ investment funds. Investigators traced the victims’ investments to a SABA account, other accounts connected to the Avignones, or Susan‘s personal account. The Avignones used the investment funds for utilities, car payments, entertainment, and restaurants.
DISCUSSION
I. PROBATION DENIAL
A. Background Facts
The probation department prepared reports noting that the Avignones were presumptively ineligible for probation because they took funds exceeding $100,000 and finding that the case was not unusual so as to warrant probation. The probаtion reports recommended prison terms for William and Susan, respectively, of 11 and eight years. At sentencing the trial court indicated that it had read and considered the probation
William‘s defense counsel admitted that William used the funds for personal use, but argued that the scheme was “a legitimate effort” with a flawed execution. Counsel noted that the Avignones “lost everything.” Counsel argued that William‘s offenses did not rise to the level of conduct requiring imprisonment and that a custodial sentence would negatively affect William‘s recent medical issues. Susan‘s defense counsel argued that Susan was less culpable because she did not personally make any promises to thе victims. Counsel noted that the entire case turned on the Avignones’ original intent, arguing that Susan did not intend to defraud the victims; rather, the plan “fell apart.”
The trial court noted that it had given the case “significant thought” and, in reading all the documents, found that the Avignones “behaved in a highly narcissistic fashion. I think their conduct was self-centered.” The trial court recognized it was possible that the Avignones did not initially intend to outright steal money from the investors, but that they decided to make risky investments because it was not their money. The court rejected the notion that the Avignones were “well-intended entrepreneurs.” The court found the Avignones to be “opportunists” who continued to steal from the victims even when the investments started to fail.
The trial court noted that the Avignones had no significant records, werе church-going people, had many fine qualities, and that the conduct of other people may have contributed to the victims’ losses, but stated, “I don‘t think [that] goes very far in terms of mitigation.” The court concluded that Susan and William were equally culpable, because
B. Analysis
The Avignones assert that the trial court abused its discretion in denying probation. Susan claims the trial court abused its discretion in denying probation based on its mistaken belief that she was equally culpable. William separately contends that the court‘s implicit finding that the case was not unusual under
Probation is an act of clemency, not a matter of right. (People v. Wardlow (1991) 227 Cal.App.3d 360, 365.) Under the determinate sentencing law, the trial court‘s decision to grant or deny probation is to be guided by criteria concerning the offense and the offender, such as those laid out in
The trial court has broad discretion to grant or deny probation and we will not set aside a decision to deny probation absent a clear showing that the trial court abused its discretion. (People v. Warner (1978) 20 Cal.3d 678, 683, superseded by statute on another ground in People v. Douglas (1999) 20 Cal.4th 85, 92, fn. 6.) Discretion, as defined in the pertinent case law, is ” ‘controlled by sound principles of law, . . . free from partiality, not swayed by sympathy or warped by prejudice . . . .’ ” (People v. Bolton (1979) 23 Cal.3d 208, 216.) A court abuses its discretion when its order ” ’ “exceeds the bounds of reason, all of the circumstances being considered.” ’ ” (People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 831.) The burden is on the defendant to clearly show that the denial of probation was irrational or arbitrary. (Ibid.)
Susan contends she did not actively participate in either setting up the investment plan or convincing the investors to invest in the plan. Accordingly, she claims the record does not support the trial court‘s conclusion that she was equally culpable. The People assert that Susan forfeited this claim by failing to object on the asserted ground below. Susan responds that any objection would have been futile because the position the trial court took on the factors in mitigation and aggravation was the opposite of the position defense counsel took in arguing for probation. We agree that any objection would have been futile as the record supports Susan‘s argument. Nonetheless, we find no abuse of discretion.
Frank and Otilia could not recall any specifics about their respective meetings with the Avignones, but each concluded that William did most of the talking. Frank believed that Susan “was an integral part of everything.” Susan typed up the agreement and participated at the meeting. Otilia stated that Susan conducted some of the negotiations and she remembered “one session where . . . we were talking about a return on some monies and she berated, belittled [William] in front of me and I thought wow, and he just sat there and took it. So that sort of gave me a clue that she was behind it.”
Carlos and Monroe indicated that William did the talking, but that Susan was present at the meetings. Monroe “normally” spoke to Susan about checks and when his payments stopped, he spoke with Susan who set up an appointment with William. William met with Monroe and told him that the money was “tied up in the courts or something like that.”
While this evidence shows that William was primarily responsible for obtaining investors, it does not support a conclusion that Susan did not actively participate in the scheme. Rather, Susan attended and took part in meetings. SABA was registered in Susan‘s name and she signed most of the checks that depleted the victims’ investment
William contends the trial court failed to consider many of the unusual circumstances presented by the defense and thus mistakenly found the case was not unusual under
The Penal Code sets forth certain classifications of offenders to whom probation may not be granted except in unusual circumstances where the interests of justice would best be served if the person is granted probation. (
In the third category a court may consider whether the “defendant is youthful or aged” and whether he or she “has no significant record of prior criminal offenses.” (
The Avignones both contend that the record does not support the court‘s conclusion that they continued to bring in investors when it was clear to them the investment scheme was not going well. The People respond that the Avignones forfeited this claim by failing to object on this ground below. For purposes of analysis, we assume that the issue is not forfeited and address the merits because the evidence supports the trial court‘s conclusion.
Eric and his wife invested $27,000 in April 2009, until payments slowed and then stopped in May 2010. During the time when the Avignones’ payments to Eric and his wife had slowed, they convinced Carlos to invest $200,000 (January 2010) and Otilia to invest an additional $245,000 (February 2010). During the time when the Avignones had stopped making payments to Eric and his wife, Frank invested $54,000 (May 2010) and $20,000 (April 2011). These facts amply support the trial court‘s finding that the Avignones continued to bring in new investors even after they knew their investment plan was beginning to fail.
First, it is clear from the court‘s comments that it considered the factors listed in
II. UNAUTHORIZED SENTENCE
A. Background Facts
The information alleged white collar crime sentencing enhancements under
” . . . I will not impose a sentence of more than six years of imprisonment if I impose a term of imprisonment.
“Under these counts and allegations as you are admitting them, any term of imprisonment that would be imposed would normally have to be served in the California Department of Corrections and Rehabilitation, as opposed to the local San Diego County Jail.
“I have told all counsel and I will tell you folks that I believe that I have the authority to strike the punishment on the allegation that require[s] this term of imprisonment to be served in the state prison.
“If I do that, that means that any term of imprisonment that I do impose would be served in the custody of the San Diego County Sheriff, rather than in the Department of Corrections and Rehabilitation.
“This is I think regarded by most people who are defendants as a material benefit, because it means that any term of imprisоnment that does get imposed will be served here locally, rather than going into the state prison.” (Italics added.)
The court then stated that if it gave “a term of imprisonment, [it would] not send [them] to the Department of Corrections and Rehabilitation. Any sentence would be served in the custody of the San Diego County Sheriff.” The court summarized as follows: “The bottom line is, folks, we‘re going to have a sentencing hearing and your sentence could be anywhere between probation, local time anywhere between zero and one year up to a term of imprisonment for six years, which could at first be [a] straight six-year term of local imprisonment or it could be a term where I split it and order a
Thereafter, the Avignones did not plea to the sheet. Rather, William admitted to counts 2, 3, 5, 8, and 10 and the
B. Analysis
“A split sentence is a hybrid sentence in which a trial court suspends execution of a portion of the term and releases the defendant into the community under the mandatory supervision of the county probation department. Such sentences are imposed pursuant to . . .
The People assert that the trial court imposed an unauthorized sentence as it lacked discretion to strike the white collar enhancements under
Nonetheless, “[t]he judicial authority to dismiss a criminal action or allegation in furtherance of justice is statutory and may be withdrawn by the Legislature. [Citation.] A court may exercise such authority unless, in a given context, the Legislature has clearly evidenced a contrary intent. [Citations.] Courts will not interpret another statute as
The Realignment Act changed the definition of a felony to an offense punishable by death, imprisonment in state prison, or by ” ‘imprisonment in a county jail under the provisions of subdivision (h) of Section 1170.’ ” (People v. Lynch (2012) 209 Cal.App.4th 353, 357 (Lynch), citing
“(1) Except as provided in paragraph (3), a felony punishable pursuant to this subdivision where the term is not specified in the underlying offense shall be punishable by a term of imprisonment in a county jail for 16 months, or two or three years.
“(2) Except as provided in paragraph (3), a felony punishable pursuant to this subdivision shall be punishable by imprisonment in a county jail for the term described in the underlying offense.
“(3) Notwithstanding paragraphs (1) and (2), where the defendant (A) has a prior or current felony conviction for a serious felony described in subdivision (c) of Section 1192.7 or a prior or current conviction for a violent felony described in subdivision (c) of Section 667.5, (B) has a prior felony conviction in another jurisdiction for an offense that has all the elements of a serious felony described in subdivision (c) of Section 1192.7 or a violent felony described in subdivision (c) of Section 667.5, (C) is required to register as a sex offender pursuant to Chapter 5.5 (commencing with Section 290) of Title 9 of Part 1, or (D) is convicted of a crime and as part of the sentence an enhancement pursuant to Section 186.11 is imposed, an executed sentence for a felony punishable pursuant to this subdivision shall be served in state prison.” (Italics added, boldface omitted.)
“Notwithstanding any other provision of this section, for рurposes of paragraph (3) of subdivision (h), any allegation that a defendant is eligible for state prison due to a prior or current conviction, sentence enhancement, or because he or she is required to register as a sex offender shall not be subject to dismissal pursuant to Section 1385.” (Italics added, boldface omitted.)
The white collar enhancements that the Avignones admitted require an additional term of punishment of two, three, or five years “in the state prison” for a pattern of related felony conduct involving the taking of, or resulting in the loss of more than $500,000. (
William seeks to avoid this result arguing that “the Legislature did not mean to send every defendant who admits a section 186.11 enhancement to state prison” claiming this interpretation renders the language provided in
The Avignones argue in their reply briefs that, if we conclude that they received unauthorized sentences, they should be allowed the opportunity to withdraw their pleas. We invited the Attorney General to file a supplemental letter brief addressing this issue. The People responded, noting that the Avignones did not plead guilty in exchange for a specific sentence. Rather, the trial court gave an indicated sentence which contained an unauthorized sentencing choice. The People argue that the Avignones should not be allowed to withdraw their guilty pleas because they сan properly be sentenced to a prison term of no less than six years in accordance with the court‘s indicated sentence. Thus, the proper remedy is to remand the matter for the trial court to impose a lawful sentence in accordance with the indicated sentence. Alternatively, the People assert we should remand the matter with leave for the Avignones to file a motion to withdraw their pleas
An indicated sentence may be part of a plea agreement with the district attorney (see, e.g., People v. Buttram (2003) 30 Cal.4th 773, 777, fn. 2) or may be stated by the court without the prosecutor‘s agreement (People v. Superior Court (Ramos) (1991) 235 Cal.App.3d 1261, 1271). In the latter circumstance, the trial сourt informs a defendant “what sentence he [or she] will impose if a given set of facts is confirmed, irrespective of whether guilt is adjudicated at trial or admitted by plea.” (People v. Superior Court (Smith) (1978) 82 Cal.App.3d 909, 915-916.) An indicated sentence falls “within the boundaries of the court‘s inherent sentencing powers and, in contrast to plea bargains, prosecutorial consent is not required.” (Ramos, at p. 1271.)
The trial court here did not expressly state that its “indicated sentence represent[ed] the court‘s best judgment as to the appropriate punishment for [these] defendant[s] and [these] offense[s], regardless of whether guilt is established by plea or at trial.” (People v. Clancey (2013) 56 Cal.4th 562, 576 (Clancey).) Accordingly, the record is ambiguous as to whether the trial court gave a proper indicated sentence or engaged in unlawful judicial plea bargaining by offering the Avignones more lenient treatment or another inducement to enter a guilty plea. (Id., at p. 575.) In Clancey, our high court concluded that a conditional reversal was the appropriate remedy to resolve the ambiguity. (Id., at p. 578.)
As we discussed, the trial court lacked the authority to impose its indicated sentence. Additionally, the record suggests that the trial court may have engaged in
Under these circumstances, the Avignones must be allowed the opportunity to withdraw their pleas and admissions. (See In re Williams (2000) 83 Cal.App.4th 936, 944-945 [where agreed-upon sentence exceeds court‘s jurisdiction, the court lacks power to effectuate the bargain, and defendant‘s remedy is to withdraw the plea].) If the Avignones withdraw their pleas, all original charges and allegations will be reinstated.
III. ELECTRONIC SEARCH CONDITION
The Avignones contend that the mandatory supervision condition requiring them to submit to a Fourth Amendment search of their computers and recordable media is unreasonable under People v. Lent (1975) 15 Cal.3d 481, and unconstitutionally overbroad. This argument has been rendered moot by our determination that the
IV. RESTITUTION TO OTILIA
At the restitution hearing, the trial court determined that the losses of each victim should be calculated by subtracting the amount of money each victim recеived in quarterly principal and interest payments from the total amount of their investment. As to Otilia, the parties agreed that she invested a total of $355,000 with the Avignones. It was undisputed that Otilia received six principal and interest payments of $8,400 ($50,400) plus nine payments of $2,100 dollars ($18,900), for a total of $69,300. The parties also agreed that the Avignones transferred a number of properties to Otilia with a stipulated value of $203,500. Using the trial court‘s formula, Otilia was entitled to restitution as follows: $355,000 – ($69,300 + $203,500) = $82,200.
At the restitution hearing the parties and the trial court erroneously concluded that Otilia had received principal and interest payments totaling $63,026. The court then made a math error to conclude that Otilia was not owed any restitution. The parties brought the math error to the court‘s attention and it recalculated the restitution owed to Otilia as follows: $355,000 – ($63,026 + $203,500) = $89,474. The parties agree, and we concur, that the trial court‘s finding that Otilia was paid back $63,026 is not factually supported by the record and that the correct amount is $69,300.
This argument is not moot in light of our reversal of the judgments as the Avignones may decide to not withdraw their guilty pleas. Should the Avignones decide to not withdraw their guilty pleas, the judgments shall be reinstated and the restitution
DISPOSITION
For the reasons stated ante, the judgments are reversed and the case remanded so that defendants may decide whether to withdraw their guilty pleas. If defendants withdraw their pleas, all original charges and enhancements shall be reinstated and trial or other appropriate disposition shall proceеd.
If defendants choose to not withdraw their pleas, then the judgments shall be reinstated and defendants resentenced. The restitution order must be modified to reflect that Otilia is entitled to a restitution award in the amount of $82,200.
NARES, J.
WE CONCUR:
McCONNELL, P. J.
O‘ROURKE, J.
It is ordered that the opinion filed herein on October 13, 2017, be modified as follows:
1. Beginning on page 2, the four introductory paragraphs located between the counsel listing and the General Factual Background on page 3 are deleted, along with footnotes 1 and 2, and the following inserted in their place:
Susan Joy Avignone and William Alan Avignone (together the Avignones) defrauded five investors out of more than $700,000 in a real estate scheme. In exchangе for dismissal of some of the charges, the Avignones pleaded guilty to three counts of fraud in connection with the offer, sale, and purchase of a security (
Corp. Code, §§ 25401 &25540, subd. (b) ; counts 2, 8, 10) and two counts of grand theft of personal property with a value of more than $950 (Pen. Code, § 487, subd. (a) ; counts 3, 5). Susan admitted asection 186.11, subdivision (a)(2) allegation attached to count 10 and asection 12022.6, subdivision (a)(1) allegation attached to count 5. William admitted asection 186.11, subdivision (a)(2) allegation attached to count 2, asection 12022.6, subdivision (a)(2) allegation attached to count 3, and asection 12022.6, subdivision (a)(1) allegation attached to count 5. At sentencing, the trial court struck thesection 186.11 enhancements and denied probation. It sentenced the Avignones to an aggregate term of five years four months to be served in the custody of the sheriff. The court imposed a split sentence, ordering that one year four months of the imposed sentence would be served in the community under mandatory supervision.The Avignones separately appealed, contending the trial court abused its discretion in denying probation. William also contеnds (1) the electronic search condition was unreasonable and unconstitutionally overbroad, and (2) the trial court improperly calculated a restitution order as to one of the victims. The People assert that the Avignones’ sentences are unauthorized because the trial court did not have discretion to sentence them to county jail, rather than prison.
In the published portion of this opinion, we agree that the trial court imposed an unauthorized sentence because a white collar crime enhancement is a disqualifying factor under the Criminal Justice Realignment Act of 2011 (operative Oct. 1, 2011, as added by Stats. 2011, 1st Ex. Sess. 2011–2012, ch. 12, § 1). Accordingly, the trial court imposed an unauthorized sentence as it lacked discretion to strike the white collar enhancements under
section 1385 , and thus could not impose a split sentence.
In the unpublished portion of this opinion, we reject the Avignones’ argument that the trial court abused its discretion in denying probation. The People concede that the trial court improperly calculated the restitution for one of the victims. Finally, William‘s argument regarding the electronic search condition is moot based on our conclusion that he received an unauthorized sentence. We reverse the judgments and remand with directions to allow the Avignones an opportunity to withdraw their guilty pleas.
2. On line 7 of the first new paragraph following the parenthetical reference to “(Pen. Code,)” insert a new footnote 1 to read:
Undesignated statutory references are to the Penal Code.
3. Following the first sentence, ending “in denying probation,” of the second new paragraph, insert a new footnote 2 to read:
We granted Susan‘s unopposed motion to consolidate the appeals.
There is no change in the judgment.
The opinion in the above-entitled matter filed October 13, 2017, was not certified for publication. It appearing the opinion meets the standards for partial publication specified in
IT IS HEREBY CERTIFIED that the opinion meets the standards for partial publication specified in
ORDERED that the words “Not to Be Published in the Official Reports” appearing on page 1 of said opinion be deleted and the opinion herein be published in part in the Official Reports.
McCONNELL, P. J.
Copies to: All parties