Opinion
A147295
02-23-2018
THE PEOPLE, Plaintiff and Respondent, v. RORY V. PARKER, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. H57902A) MEMORANDUM OPINION
We resolve this case by a memorandum opinion pursuant to California Standards of Judicial Administration, section 8.1(2).
Rory V. Parker appeals from her convictions by plea of no contest to one count of conspiracy (Pen. Code, § 182), two counts of grand theft (§ 487, subd. (a)), one count of nonpayment of contributions under the Unemployment Insurance Code (Unemp. Ins. Code, § 2108), and one count of tax evasion (Rev. & Tax. Code, § 19706), together with an aggravated white collar crime enhancement (§ 186.11, subd. (a)). As a consequence of her plea, she was placed on five years' formal probation. She raises a single issue on appeal, claiming a probation condition prohibiting her from owning, using or possessing any deadly or dangerous weapons while on probation must be modified to include an express knowledge requirement. Because the Supreme Court has definitively rejected that argument since Parker's opening brief was filed, we affirm.
Further undesignated statutory references are to the Penal Code, unless otherwise indicated.
I. FACTUAL AND PROCEDURAL BACKGROUND
Parker and five codefendants affiliated with the Black Muslim Temple in Oakland were charged with a series of crimes committed between 2009 and 2014 while doing business under the name BMT International Security Services (BMT) or Back on Track janitorial services. BMT submitted false paperwork to obtain public contracts. The paperwork falsely stated that certain principals of the firms had educational backgrounds they did not have, experience with law enforcement and the military they did not have, and insurance and licenses they did not have. The charges were based on successful bids by BMT on public contracts for security services with Alameda County and the Housing Authority of Los Angeles, and for other bids submitted for public contracts with the Port of Oakland, the City of Oakland, the City of Vallejo, the City of Newport Beach, and the Los Angeles Department of Water and Power.
The charges against Parker's codefendants—Dahood Bey, Qadirah Bey, Jameelah Bey, Basheer Muhammad and Billie Poindexter—were resolved separately. The codefendants are not parties to this appeal.
Alameda County's investigation into BMT's contracts and contract bids in both Northern and Southern California led to the filing of a 42-count information on February 4, 2015, including allegations of conspiracy, offering false or forged instruments, grand theft, real estate fraud, insurance fraud, failure to pay or withhold unemployment and disability insurance, failure to file tax returns, and false statements in bankruptcy.
Following a preliminary hearing, Parker was charged with 31 of the 42 counts. The information also alleged special aggravated white collar crime enhancements based on losses exceeding $100,000 in connection with the crimes involving the conspiracy to submit false documents to procure public contracts (counts 1-10) (§ 186.11, subd. (a)) and losses exceeding $200,000 for counts 1, 3 and 7 (conspiracy and grand theft) (§ 12022.6, subds. (a)(2), (b)). At some point an amended information was prepared, although it is not clear when or whether it was filed. However, it appears the amended information served as the basis for Parker's pleas.
Parker was charged with two counts of conspiracy: conspiracy to submit false documents to obtain public contracts (count 1) and conspiracy to operate an unlicensed security service (count 42). She was also charged with 16 counts of offering false or forged instruments (§ 115) (counts 2, 4-6, 8-13, and 17-22), three counts of grand theft (§ 487) (counts 3, 7 & 23), one count of nonpayment of unemployment insurance contributions (Unemp. Ins. Code, § 2108) (count 24), one count of failure to withhold disability insurance payments (Unemp. Ins. Code, § 2110.3) (count 25), one count of failure to collect or pay over unemployment insurance tax (Unemp. Ins. Code, § 2118.5) (count 26), two counts of insurance fraud (§ 550) (counts 27 & 28), two counts of tax evasion (Rev. & Tax. Code, § 19706) (counts 29 & 30), and three counts of making false statements regarding workers' compensation insurance (Ins. Code, § 11880, subd. (a)) (counts 37-39). In July 2015, counts 11 and 12 were dismissed on a motion under section 995 because the statute of limitations had run on those counts.
On October 6, 2015, as part of a negotiated disposition, Parker pled no contest to counts 1, 3, 7, 24 and 30: one count of conspiracy to commit grand theft (§ 182), two counts of grand theft (§ 487, subd. (a)), one count of nonpayment of contributions under the Unemployment Insurance Code (Unemp. Ins. Code, § 2108), and one count of tax evasion (Rev. & Tax. Code, § 19706). Additionally, Parker admitted the allegation of an aggravated white collar crime enhancement for taking an aggregate of more than $100,000 through multiple crimes of grand theft. (§ 186.11, subd. (a).)
By the time of her plea, the conspiracy charged in count one had been amended from a charge of conspiracy to submit false or forged documents to a charge of conspiracy to commit grand theft.
Before entering her plea, Parker was informed of and waived her rights to trial by jury, to confront and cross-examine witnesses, to subpoena witnesses for her defense, to testify in her own defense, and her privilege against self-incrimination. In the written waiver of rights and orally in open court, Parker gave up her right to appeal her convictions.
We agree with Parker that this waiver did not prevent her from raising on appeal an issue related only to sentencing that did not affect the validity of the plea. (In re Uriah R. (1999) 70 Cal.App.4th 1152, 1157-1158; People v. Vargas (1993) 13 Cal.App.4th 1653, 1661-1662.) --------
In accordance with the negotiated plea agreement, on November 5, 2015, the court suspended imposition of sentence and granted Parker formal probation for five years, with various terms and conditions, including a condition "not to own, use or possess any deadly or dangerous weapons" while on probation.
Parker filed two timely notices of appeal. In the second notice she requested a certificate of probable cause, alleging violation of her Sixth and Fourteenth Amendment rights through religious discrimination in her prosecution, ineffective assistance of counsel, an unspecified jurisdictional violation, a Brady violation (Brady v. Maryland (1963) 373 U.S. 83), collusion between the district attorney and her attorney, and coercion of her plea. Her request for a certificate of probable cause was granted with respect to ineffective assistance of counsel only, and otherwise was denied.
II. DISCUSSION
Citing In re Sheena K. (2007) 40 Cal.4th 875, Parker claims the weapons prohibition requires modification to include an express knowledge requirement. At the time her opening brief was filed, there was potential merit to her argument. (See In re Kevin F. (2015) 239 Cal.App.4th 351, 365 (Kevin F.).) Shortly after Parker's opening brief was filed, however, the Supreme Court closed the door on that argument in People v. Hall (2017) 2 Cal.5th 494, 503, footnote 2 (Hall), which expressly disapproved Kevin F. on this point.
In Hall, the Supreme Court held it was not necessary to modify a condition of probation prohibiting the possession or use of various specified weapons because the limitation of the condition to knowing possession was already implied in the condition. "Given the relevant case law, the firearms condition is properly construed as prohibiting defendant from knowingly owning, possessing, or having in his custody or control" any of the specified weapons. (Hall, supra, 2 Cal.5th at p. 503.) "Because no change to the substance of either condition would be wrought by adding the word 'knowingly,' we decline defendant's invitation to modify those conditions simply to make explicit what the law already makes implicit." (Ibid.)
This disposes of Parker's claim on appeal. She did argue in passing that she could be found in violation of probation "if she possesses an object she does not know to be a weapon." (Cf. Kevin F., supra, 239 Cal.App.4th at p. 360, fn. 4.) The only relief she requested, however, was the insertion of a knowledge requirement. She did not contend the phrase "deadly or dangerous weapon" was itself unconstitutionally vague, nor did she request a modification of the probation condition to more clearly define the prohibited objects.
Even if she had raised such an argument, it would not have been successful. In re R.P. (2009) 176 Cal.App.4th 562, 567-568, rejected a vagueness challenge and upheld a probation condition that prohibited a minor from possessing any " 'dangerous or deadly weapon.' " In R.P., the court concluded the phrase "dangerous or deadly weapon" plainly "prohibited possession of items specifically designed as weapons, and other items not specifically designed as weapons that the probationer intended to use to inflict, or threaten to inflict, great bodily injury or death." (People v. Moore (2012) 211 Cal.App.4th 1179, 1186, citing R.P., at p. 570; accord, In re I.S. (2016) 6 Cal.App.5th 517, 525.) Likewise, the foregoing cases compel the conclusion that the condition of probation challenged by Parker must be upheld.
III. DISPOSITION
The judgment is affirmed.
/s/_________
Streeter, J. We concur: /s/_________
Ruvolo, P.J. /s/_________
Reardon, J.