Opinion
A148896
05-03-2017
THE PEOPLE, Plaintiff and Respondent, v. WENSHI NI, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. 175606A)
INTRODUCTION
Pursuant to People v. Wende (1979) 25 Cal.3d 436, appellate counsel asks this court to conduct an independent review of the record. She has advised us she reviewed the record in this case before filing her Wende brief. Appellate counsel has advised her client of this determination. She told appellant the client may file a supplemental brief in the matter, but must do so within 30 days of the date counsel's brief was filed. Appellant has filed a two-page memorandum regarding an issue in the case. The issue concerns an order of restitution imposed by the trial court for the particular count appellant entered her no contest plea. Appellant was given a grant of probation and the order of restitution was imposed after she was sentenced. The appeal is authorized pursuant to Penal Code section 1237, subdivision (b).
Unless otherwise stated all statutory references are to the Penal Code.
STATEMENT OF THE CASE
On January 30, 2015, appellant was charged in an indictment filed by the District Attorney of the County of Alameda with several offenses: Count 1 alleged a conspiracy to commit the crime of pimping (§§ 182, subd. (a)(1)/266h); count 2 alleged conspiracy to commit the crime of pandering (§ 182, subd. (a)(1) /266i); count 3 alleged pimping (§ 266h, subd. (a)); count 4 alleged pandering (§ 266i, subd. (a)(4)); count 10 alleged failure to secure payment of workers' compensation (a violation of Lab. Code, § 3700.5); counts 11 and 13 alleged the failure to file a tax return with the intent to evade taxes (a violation of Unemp. Ins. Code, § 2117.5); counts 12 and 14 alleged the failure to collect, account for, and pay unemployment insurance tax (a violation of Unemp. Ins. Code, § 2118.5); and Counts 15 through 32 alleged counts of money laundering (17 violations of § 186.10, subds. (a)(1) & (a)(2).)
On June 9, 2015, after plea discussions, appellant pleaded no contest to count 11, failure to file a tax return with the intent to evade taxes, a felony violation of section 2117.5 of the Unemployment Insurance Code. The remaining counts of the indictment were dismissed. It was agreed appellant would be placed on probation. Included in the disposition was a stipulation appellant would forfeit $289,231 in cash and a commercial property located in Hayward. The prosecution agreed to return to appellant the sum of $305,801, foreign currency seized by law enforcement, and two commercial properties in Oakland and Hayward.
On July 31, 2015, appellant was sentenced by the court. She was placed on formal probation for five years and received credit for time served. The terms of probation included several fines and fees, and a search condition. There was a requirement she submit to DNA testing. The trial court signed the forfeiture agreement indicated above. The court made no mention of restitution. Additionally, appellant made no oral or written waiver regarding restitution pursuant to People v. Harvey (1979) 25 Cal.3d 754 (Harvey).
On April 6, 2016, the district attorney filed a written motion for an order of restitution. She sought the sum of $24,324.51 for appellant's unpaid tax liability during the year 2013 and the first quarter of 2014. She sought this amount on behalf of the California Employment Development Department (EDD). To support this request, the district attorney presented the results of an EDD criminal audit identifying appellant's unpaid tax liability of $20,180.97 during the year 2013, and $4,143.54 for the first quarter of 2014.
Appellant was pro. per. in this matter. She filed written opposition to the restitution motion. Among her contentions was that at the time she entered her no contest plea, she believed the forfeiture order entered covered any future restitution matters, including tax liability to the EDD. She claimed the order of restitution was not a term of the plea agreement or probation, there was no Harvey waiver, and the restitution ordered was the product of miscalculation by the prosecution.
A restitution hearing was held on April 13, 2016, and completed on April 27. At the hearing, the government affirmed the plea agreement was silent on the issue of restitution. Additionally, the prosecution conceded there was no Harvey waiver. The court agreed there was no Harvey waiver. It believed restitution was limited to the unpaid taxes arising during the fourth quarter of 2013, the specific dates alleged in count 11 to which appellant pleaded. The court then calculated the amount due during the fourth quarter of 2013 by dividing her tax liability of the entire year of 2013 by four. This set the sum of restitution at $5,045.24.
Appellant filed a timely notice of appeal on May 5, 2016.
STATEMENT OF FACTS
During 2013, the Alameda Sheriff's Department conducted an investigation of massage parlors owned by appellant. Following undercover operations that year and into 2014, law enforcement determined appellant was engaging in pimping and pandering violations and that she was conspiring with other persons in this endeavor. At the same time, EDD was also engaged in an investigation. EDD determined the masseuses and receptionists at the parlors were working as employees of appellant and not as independent contractors. Based on the audit by EDD, appellant did not file tax returns for her massage businesses, and had not posted the necessary unemployment taxes between October 1, 2013, and December 31, 2013.
DISCUSSION
In this case, appellant entered her no contest plea to a violation of Unemployment Insurance Code section 2117.5, alleged as count 11 of the indictment. In this count, appellant was charged with the failure to file a tax return for the period of October 1, 2013 through December 31, 2013, with the intent to evade tax. A review of the form generated at sentencing on July 31, 2015, indicates she was granted probation for five years with several conditions, including a restitution fine of $300 and a probation violation revocation restitution fine of $300. The form CRM-021 does not indicate any order of victim restitution imposed at sentencing.
In April 2016, the district attorney filed a motion seeking restitution to the victim, EDD, for the criminal conduct of appellant. Appellant appeared at the hearing and challenged the authority of the prosecution to seek restitution after sentence was previously imposed in July 2015. Appellant appeared pro. per., and did not ask for appointed counsel. She was previously represented by retained counsel during the postindictment period up to and including her sentencing.
At the restitution hearing, the prosecution argued appellant owed EDD the sum of $24,324.51 for the taxes due. However, count 11 only alleged a violation during the period of October-December 2013, or the last quarter of the year.
Under the California Constitution, as amended by Marsy's Law, restitution to the victim of a crime "shall be ordered from the convicted wrongdoer in every case." (Cal. Const., art. I, § 28, subd. (b)(13); see People v. Nichols (2017) 8 Cal.App.5th 330, 349, fn. 14; Pen. Code, § 1202.4, subds. (a)(1), (f); Gov. Code, §§ 13950-13960.) The failure of the sentencing court to specify an amount of restitution or even the fact of restitution to the victim of appellant's acknowledged criminal conduct does not preclude a trial court from imposing an amount of restitution after sentence has been imposed. This omission in the plea colloquy does not preclude the later imposition of a restitution order or condition of probation because direct victim restitution is mandatory. There is no requirement the sentencing court inform the defendant of this condition or order at the time of her change of plea. (People v. Goulart (1990) 224 Cal.App.3d 71, 80-81.)
Even substantial delay between the imposition of sentence and the actual execution of the restitution obligation does not preclude the trial court order. In People v. Young (1995) 38 Cal.App.4th 560, the defendant was convicted of auto theft in March 1993 and placed on probation with execution of sentence suspended. No order of restitution was initially imposed as part of the suspended sentence. It was imposed as a condition of probation. He was unsuccessful in complying with probation. In May 1994, he was found in violation of probation and his probation was revoked. After revoking probation and imposing the suspended sentence, the court also imposed a restitution order directly to compensate the victim of the theft in the amount of $19,507.53. (Id. at pp. 563-564.) This was upheld on appeal. "Victim restitution is required by the California Constitution and by statute. In 1982, Proposition 8 was passed which added article I, section 28 to the California Constitution. Subdivision (b) of this section provides, 'It is the unequivocal intention of the People of the State of California that all persons who suffer losses as a result of criminal activity shall have the right to restitution from the persons convicted of the crimes for losses they suffer. [¶] Restitution shall be ordered from the convicted persons in every case, regardless of the sentence or disposition imposed, in which a crime victim suffers a loss . . . .' " (People v. Young, at p. 565.)
Recently the Supreme Court has addressed the subsequent imposition of a restitution fine at sentencing that was not discussed in the plea colloquy. Restitution fines are mandatory under section 1202.4, subdivision (b) unless the court finds and states compelling and extraordinary reasons for not imposing them. (People v. Villalobos (2012) 54 Cal.4th 177, 180-181.) The omission of the fine and its amount at the taking of the plea does not prevent the court from imposing it at sentencing. "In sum, failure to address the amount of a restitution fine in plea negotiations or during the plea colloquy does not transform imposition of such a fine into a violation of the plea agreement. Instead, where neither the parties nor the trial court has specified the fine amount in the context of the plea bargain, '[t]he restitution fine shall be set at the discretion of the court . . . .' " (Id. at pp. 185-186.) Indeed, neither the prosecution nor the sentencing court has the authority to alter the applicable terms of sentencing mandated by the Legislature. (Id. at p. 184.) Certainly, if restitution fines can be omitted in the plea colloquy but later properly imposed, then restitution itself authorized by the Constitution, as well as statutory mandate, can be validly required though unaddressed in the plea or sentencing phase of the criminal proceedings.
We acknowledge here the rights of appellant were fully protected at the restitution hearing. The hearing itself began on April 13, 2016. The court continued the hearing to April 27, 2016, to allow the court to fully review the record. While the prosecution had asked for more than $24,000 in restitution for unpaid taxes, the court reviewed the actual pleading of the count pleaded to. Since it indicated a period from October 1, 2013 to December 31, 2013, the court reduced the restitution to a quarter of the amount desired by the government. Furthermore, since there was no Harvey waiver, the court did not impose further amounts for other periods alleged in the remaining counts of the indictment.
Besides the Wende filing by appellate counsel, appellant has filed a two-page statement dealing with her case. She discusses a claim for restitution by EDD for the sum of $139,614.89. The claim discussed in the papers filed by the district attorney after the sentencing, which we review on this record, involves approximately $24,000 and is based on the no contest plea to count 11, the lone count to which appellant pleaded. Our review of the record discloses no other amount of restitution. We have discussed the validity of the postsentence order of restitution above. We have also pointed out the trial court expressly denied any additional restitution application because the plea colloquy and the sentencing proceedings make no reference to Harvey-like arrangements applicable to this case. The trial court only awarded restitution to EDD confined to the proper amount available based on the count for which appellant was sentenced. The amount of $24,324.51 was not appropriate as restitution for count 11; the sum of $139,614.89 also is not a correct restitution award under the facts of this case. Therefore, the claim by appellant in her "supplemental brief" that she has to pay EDD in criminal restitution is false. The record is devoid of any restitution award for the criminal conviction in this case other than the order she pay $5,045.24 to EDD.
We naturally express no opinion on this record regarding any civil or administrative consequences for appellant based on the conduct described in the indictment in this matter. --------
We have attempted to address the issue raised by appellant as best we can on this record. We believe she is challenging the validity of the restitution order. We have answered that complaint in this opinion.
DISPOSITION
The judgment is affirmed.
/s/_________
Dondero, J. We concur: /s/_________
Humes, P. J. /s/_________
Banke, J.