Opinion
NOT TO BE PUBLISHED
Marin County Super. Ct. No. SC150328
Richman, J.
Defendant Christopher O’Kelley appeals from a judgment sentencing him to three years in state prison following a plea of guilty to a charge of embezzlement. He asserts two ineffective assistance of counsel claims: (1) failing to request a restitution hearing and (2) failing to request that the trial court strike an enhancement that added one year to his sentence. We affirm.
BACKGROUND
In May 2005, an employee of Century Theatres contacted the San Rafael police department to report that defendant, who was in charge of the general manager training program for Century Theatres, was embezzling from the company. Defendant had established a fraudulent system under which he kept for himself money that was intended to reimburse new employees for relocation, meals, and out-of-pocket expenses they incurred while participating in the training program. It was subsequently discovered that defendant had been embezzling from the company for over one and a half years.
Because defendant entered a guilty plea pursuant to a negotiated plea agreement, the facts are derived from the presentencing report.
On June 3, 2005, Patrick Burns, the company’s vice president of loss prevention, confronted defendant, who admitted embezzling the funds and was terminated. Although he claimed he wanted to repay the stolen funds, and the company was willing to accept repayment in exchange for not pressing charges, no money was forthcoming, and in July 2005, the company pressed charges.
Defendant was charged with one count of embezzlement in violation of Penal Code section 508. The complaint contained two additional allegations: that defendant took funds in excess of $100,000 within the meaning of section 1203.045, subdivision (a) (presumptive ineligibility for probation), and that he took funds in excess of $50,000 within the meaning of section 12022.6, subdivision (a)(1) (one-year enhancement).
All statutory references are to the Penal Code.
Section 12022.6, subdivision (a)(1) was amended in 2007 to establish a $65,000 threshold. (Stats. 2007, ch. 420, § 2.)
On April 20, 2007, pursuant to a negotiated plea agreement, defendant pleaded guilty to the embezzlement charge and admitted the special allegations, pursuant to People v. West (1970) 3 Cal.3d 595. In exchange for his plea, the court agreed to grant him probation. Defendant was released on his own recognizance, subject to the advisement that if he failed to appear for sentencing or any other appearance, the court could rescind the agreement for probation pursuant to People v. Cruz (1988) 44 Cal.3d 1247 and sentence defendant to up to four years in state prison.
Sentencing was scheduled for October 19, 2007, but defendant failed to appear. A warrant was issued, and defendant was arrested in Nevada four months later. A new sentencing hearing was set for April 2, 2008 and subsequently continued, first to April 16, 2008 and then to April 23, 2008.
In anticipation of the sentencing hearing, the probation department prepared a presentencing report in which it recommended that defendant be sentenced to the midterm of two years in state prison and that the one-year enhancement be stayed. A supplemental report appended a restitution claim form submitted on behalf of Century Theatres indicating that the company’s loss as a result of defendant’s embezzlement was $105,005.00.
On April 23, 2008, the court denied probation and sentenced defendant to three years in state prison, comprised of the two-year midterm on the embezzlement charge and the one-year section 12022.6 enhancement. Defendant was also ordered to pay restitution in the amount of $105,000, along with other fees and fines not relevant here.
This timely appeal followed.
DISCUSSION
A. Ineffective Assistance of Counsel
In People v. Ledesma (1987) 43 Cal.3d 171, our Supreme Court outlined the showing necessary to order to prevail on a claim for ineffective assistance of counsel. It explained that such a showing has two components: “ ‘First, the defendant must show that counsel’s performance was deficient.’ [Citations.] Specifically, he must establish that ‘counsel’s representation fell below an objective standard of reasonableness . . . under prevailing professional norms.’ [Citations.] [¶] In determining whether counsel’s performance was deficient, a court must in general exercise deferential scrutiny.” (Id. at p. 216.) The court then explained the second component: “[A] criminal defendant must also establish prejudice before he can obtain relief on an ineffective-assistance claim.” (Id. at p. 217.) “ ‘The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ [Citations.]” (Id. at pp. 217-218.)
B. Restitution Hearing
It is undisputed that if requested, defendant was entitled to a restitution hearing to determine the amount of money he would be ordered to repay Century Theatres. (§ 1202.4, subd. (f)(1).) Indeed, at the time of defendant’s guilty plea, his trial counsel told the court that “we intend to fully litigate the amounts of restitution owed.” His sentencing counsel failed to request a restitution hearing, however, conduct that fell below an objective standard of reasonableness. This is so because, as defendant puts it, “[t]he amount of loss in this case had serious implications for [defendant’s] sentence as he was subject to two separate allegations based on the amount of loss.” He therefore had everything to gain and nothing to lose by challenging the amount of restitution.
Defendant was represented by two different attorneys during the relevant time period. Attorney Coffino represented defendant at the time he entered his guilty plea. Attorney Schroettner represented defendant at the time of sentencing. They will be referred to as “trial counsel” and “sentencing counsel,” respectively.
The People do not dispute that a reasonably competent attorney would have requested a hearing. Instead, they contend that defendant was in fact afforded such a hearing. In their words: “[T]he court held a full and fair restitution hearing at the start of the sentencing hearing on April 23, 2008. During the restitution hearing, the victim made a lengthy statement detailing the theater’s losses, defense counsel had [defendant’s] ex-wife ask the court to order probation so that [defendant] could repay the debt, and [defendant] promised to repay the debt in full. At the conclusion of the hearing, the court made a formal order of restitution. Nothing further was required.” What the People attempt to portray as a “restitution hearing” was in fact no such thing.
At the commencement of defendant’s sentencing hearing, the court invited Patrick Burns, the vice president of loss prevention for Century Theatres, “to make some comments on behalf of the victim . . . .” Burns began by detailing the human toll defendant’s conduct took, not only on the company but also on the individual employees, some of whom were forced to live paycheck-to-paycheck and incur credit card debt because they were not reimbursed for expenses as a result of defendant’s embezzlement scheme. Others who had gone through the training programs defendant was running were not properly trained and ended up in the field ill-prepared for their jobs, requiring that they be retrained.
Burns also told the court that when the embezzlement was discovered, defendant was given the opportunity to pay back the loss in exchange for which the company would forego pressing charges. Defendant initially agreed but later informed the company that he was choosing not to take that option. Burns stated that the company supported the district attorney’s request for jail time and that recovering the lost money was the company’s primary goal. The court then asked Burns how much loss the company suffered:
“THE COURT: What do you think the number is?
“MR. BURNS: Well, there were two aspects. I think about 110 something, in that neighbor. [sic] I don’t remember. There were two aspects. There was money that was due to employees that was not paid. So I think about 90 something. The other part might have been 75 altogether, but I don’t remember exactly what those were. It’s been a while.
“THE COURT: So you think it is $145,000?
“MR. BURNS: About 165, yes. That’s where we were. Now, again, some of the—we understood was a little more difficult to be certain about because we were asking trainees to offer up memory. Some kept good records. Some did not, which is why when we turned it over to the DA, it was—there were ones that were—clearly reports were never supposed to be submitted. Those were our primary concern because those were all false. The other part was the secondary part.
“THE COURT: So the hard number you think at the moment is 90?
“MR. BURNS: It is 90 something. I don’t remember exactly what it was.”
Defendant’s ex-wife then addressed the court to, as defendant’s sentencing counsel put it, “express her support for her ex-husband and also her feeling as to why [defendant] would be better off if allowed a chance to repay and get back in the work force and better his life, which will ultimately better her life.” She urged the court to grant defendant probation because their three children would be better off having him in their life and he would be able to re-enter the work force so he could make restitution to Century Theatres and help her support their children.
Responding to defendant’s ex-wife’s comments, the court pointed out that it had given defendant a considerable amount of time between his guilty plea and the original sentencing date with the hope that he would demonstrate his sincerity in making restitution to Century Theatres. Instead, the court noted, that effort proved fruitless. And, the court noted, the laws do not serve any deterrent purpose if the courts do not respond significantly to substantial thefts, because people know they are not going to get punished for taking somebody else’s money.
Turning to arguments, the prosecutor observed that defendant had been given two opportunities to make restitution, first when Century Theatres agreed to forego pressing charges if defendant repaid the company, and second when the court afforded him significant time between his guilty plea and original sentencing date to demonstrate his good faith intention to make restitution payments. Instead, he absconded to Nevada without ever making payments. Noting that defendant was presumptively ineligible for probation because of the section 1203.045 enhancement, the prosecutor requested a three-year prison sentence, comprised of the two-year midterm for the embezzlement charge plus an additional year for the section 12022.6 enhancement.
After the prosecutor concluded, the court observed that “[t]here are circumstances articulable consistent with the rules of court that would justify an aggravated term independent of the amount such as the sophistication and impact upon a multitude of victims.” The court then turned to defendant’s sentencing counsel, expressing particular interest in what defendant had been doing since he absconded.
Sentencing counsel explained that after defendant was released following his guilty plea, he attempted to get his life back on track but ran into financial troubles as well as personal issues with his ex-wife. He also caught another case in Napa County for grand theft and fraud. While it was a “very wrong decision,” defendant responded to these pressures by fleeing to Las Vegas, where he was working very hard to turn his life around when he was apprehended.
Defendant addressed the court next, acknowledging he committed a “heinous . . . act” and was “horribly wrong” for disappointing his friends and family as well as Century Theatres, which was like a second family to him. According to defendant, after being released in April 2007, he immediately found employment but because it was commission-based, he fell behind on his bills and borrowed money “from an individual [he] shouldn’t have borrowed money from,” which ultimately resulted in the fraud case in Napa County. Despite appreciating what the court had done for him, he “made a bad decision” and, feeling like he did not have any other options, left the area. Defendant again acknowledged he was wrong and reiterated his commitment to making things right, repeatedly expressing his intent to repay Century Theatres.
The court then, consistent with the district attorney’s recommendation, imposed the two-year midterm, commenting that it had been contemplating the three-year upper term. It also imposed a consecutive one-year enhancement for the loss in excess of $100,000, for an aggregate sentence of three years. As pertinent here, the court also ordered restitution in the amount of $105,000.
It is based on the foregoing that the People claim “a full and fair restitution hearing” transpired. We disagree. The comments presented to the court that day from Burns, defendant’s ex-wife, and defendant himself, as well as arguments of counsel, were focused primarily on the issue of whether defendant should be granted probation—which would afford him the opportunity to find employment and begin making restitution to Century Theatres—or be committed to prison. The specific amount of loss suffered by Century Theatres was discussed, but it cannot be the case that any time the amount of restitution is discussed prior to sentencing, such an exchange somehow becomes a restitution hearing. Nothing suggested that the purpose of the hearing was to afford defendant the opportunity to challenge the amount of restitution, particularly given that the court had not even established the restitution amount. A reasonable reading of the record simply does not support the People’s claim that the purpose of the exchanges prior to sentencing was to allow defendant to challenge the amount of restitution.
Alternatively, as defendant rightly argues in reply, if in fact the exchange before the court leading up to sentencing could be construed to be a restitution hearing, then his counsel was deficient in failing to challenge the amount of loss that Burns, on behalf of Century Theatres, asserted, since his statements regarding the amount of loss were ambiguous.
Assuming that sentencing counsel’s representation was in fact deficient, we turn to the second prong of People v. Ledesma, supra, 43 Cal.3d at p. 217, that is, whether defendant was prejudiced by the lack of a restitution hearing. This question we answer in the negative.
To prevail on his claim, defendant must show a reasonable probability that the restitution order would have been different but for his counsel’s failure to request a restitution hearing. But nowhere does defendant even assert that he can demonstrate a loss less than $105,000. It is insufficient to simply assert that his counsel failed to request a restitution hearing.
People v. Foster (1993) 14 Cal.App.4th 939 is on point. There, following a conviction of residential burglary, Foster was ordered to pay a specific restitution amount to the burglary victim. As is pertinent here, Foster claimed on appeal that he received ineffective assistance of counsel because his trial counsel failed to object to the valuation of the victim’s loss. (Id. at p. 943.) Rejecting this argument, the court of appeal stated, “When a defendant alleges that his counsel failed to take a particular action, he must show a reasonable probability that the attorney’s omission affected the outcome of the case. [Citation.] Thus, it is not enough for Foster merely to assert that his counsel should have requested a hearing on the amount of restitution. Rather, he had the burden of demonstrating that the value recommended in the probation report was excessive. In other words, he had to make a sufficient showing that but for his counsel’s conduct, the court was reasonably likely to have ordered a lesser amount or no restitution. [Citation.] However, Foster has given no hint of the nature of any showing he might have made at a valuation hearing to contest the victim’s figure. Thus, he has failed to meet his burden of demonstrating that a more favorable outcome was probable, had his counsel objected to the restitution amount and requested a hearing on the amount.” (Id. at p. 947.) Likewise here.
Further, defendant has failed to demonstrate a reasonable probability that his sentence would have been different even if he could establish that the amount he embezzled was less than $105,000. Assuming arguendo that the loss was less than $100,000 such that the court would have stricken the section 1203.045 enhancement, the record is devoid of any suggestion that the court would have granted defendant probation instead of sentencing him to prison. On the contrary, the record clearly demonstrates that the court ordered a prison sentence because defendant had been given multiple opportunities—by both Century Theatres and the court—to make restitution, but instead of doing so, he incurred grand theft and fraud charges in another county and then fled out of state rather then appear for sentencing. Moreover, the court indicated that it was inclined to impose the three-year upper term on the embezzlement charge, but agreed to the two-year midterm as recommended by probation and requested by the prosecutor. There is simply nothing to suggest that the court would have granted probation but for the section 1203.045 enhancement.
The court previously indicated that if the actual amount of restitution was less than the $50,000 and $100,000 thresholds of sections 12022.6, subdivision (a)(1) and 1203.045, respectively, then it would strike the enhancements.
Likewise, the court added one year to defendant’s sentence for the section 12022.6 enhancement, imposed for a loss exceeding $50,000. Defendant makes no argument that he could have demonstrated a loss less than $50,000, and nothing in the record suggests this could have been the case.
C. Motion to Strike the Section 12022.6 Enhancement
In his second argument, defendant contends that sentencing counsel was deficient for failing to move to strike the section 12022.6 enhancement pursuant to section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 504. Under this authority, the court can exercise its discretion to strike an enhancement or to strike the additional punishment for that enhancement in the furtherance of justice. (§ 1385, subd. (c)(1).)
It was suggested by the district attorney at the sentencing hearing that the section 12022.6 enhancement was mandatory and not subject to the “interest of justice” exception. The People here do not argue this point, and we need not decide it, since we conclude that there was no reasonable probability that the trial court would have granted a motion to strike the enhancement.
It cannot be said that striking the section 12022.6 enhancement would have been in the furtherance of justice. Regardless of the specific amount of restitution, defendant unquestionably stole a large sum of money from Century Theatres, a company that was, according to defendant, like family. After his crime was uncovered, the company offered to forego pressing charges if defendant repaid what he stole. Defendant declined. After defendant pleaded guilty to embezzlement, he was given yet another chance to make good on his crime. The court afforded him a lengthy period of time between his plea and sentencing so that he could find employment and demonstrate his commitment to paying back the loss Century Theatres suffered. Rather than doing so, however, defendant caught grand theft and fraud charges in another county, and then fled the state altogether. Despite defendant’s claimed commitment to getting his act together and repaying Century Theatres, at no point prior to his April 23, 2008 sentencing did he in fact make any payments. This record does not support a conclusion that a shorter sentence would be in furtherance of justice.
Likewise, nothing in the record suggests that the trial court would have been inclined to strike the enhancement. In fact, the record is to the contrary, that the court was inclined to impose a longer sentence but nonetheless accepted the prosecutor’s recommendation of the two-year midterm plus the one-year enhancement. In doing so, the court rejected the probation department’s recommendation that the enhancement be stayed. And just prior to imposing sentence, the trial court summed up, “Deterrence and the community’s belief that the system is going to do something about substantial bad behavior are important parts of the consideration in this process. If people who lose large quantities of money don’t have any confidence that the state is going to do something about it, then we will have all kinds of anarchy and self-helpers that are inconsistent with maintaining a decent society.” These are not the words of a judge inclined to impose a shorter sentence.
In light of the foregoing, there is no reasonable probability the trial court would have granted a motion to strike the enhancement, and counsel does not render ineffective assistance by failing to make motions or objections that counsel reasonably determines would be futile. (People v. Price (1991) 1 Cal.4th 324, 386-387; People v. Anderson (2001) 25 Cal.4th 543, 587.)
III. Disposition
The abstract of judgment is affirmed.
We concur: Kline, P.J. Lambden, J.