Opinion
A147259
09-27-2017
THE PEOPLE, Plaintiff and Respondent, v. BILLIE LATRICE POINDEXTER, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. H57092F)
This case comes before us for review under the procedures prescribed in People v. Wende (1979) 25 Cal.3d 436, 441-442 (Wende). Billie Latrice Poindexter appeals from her convictions by no contest plea of conspiracy (count 1) (Pen. Code, § 182, subd. (a)(1)), grand theft (count 3) (§ 487, subd. (a)), and two counts of offering false or forged instruments to be filed, registered, or recorded in a public office (counts 14 and 15) (§ 115, subd. (a)). Finding no issues that merit briefing, we affirm.
Further undesignated statutory references are to the Penal Code.
I. FACTUAL AND PROCEDURAL BACKGROUND
The charges were filed against a group of individuals affiliated with the Black Muslim Temple in Oakland, who operated a security firm and a janitorial service, and who 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, licenses and job references they did not have.
Poindexter and five codefendants 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, under its various names, operated out of 818 27th Street in Oakland. The offenses arose from successful bids by BMT on public contracts for security services with Alameda County and the Housing Authority of Los Angeles (HACLA), 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 Poindexter's codefendants—Rory Vermal Parker, Dahood Sharieff Bey, Qadirah Bey, Jameelah Bey and Basheer Fard Muhammad—were resolved separately. The codefendants are not parties to this appeal.
"BMT" stood for "Black Muslim Temple," a religious organization which operated at 818 27th Street in Oakland, the same address used for BMT. The individuals and business entities involved in this case were related to the Black Muslim Temple. BMT also operated by the names BMT Security Solutions and BMT International Services.
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 filed 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 insurance, disability insurance and income tax, failure to file tax returns, and false statements in bankruptcy.
Following a joint preliminary hearing, Poindexter was charged with 16 of the 42 counts, including two counts of conspiracy, ten counts of offering false or forged instruments, three counts of grand theft, and one count of insurance fraud. The information also alleged a special aggravated white collar crime enhancement based on losses exceeding $500,000 in connection with the crimes involving the conspiracy to submit false documents to procure public contracts (counts 1-10) (§ 186.11, subd. (a)), and an excessive loss enhancement for aggregate losses exceeding $200,000 for the conspiracy alleged in count 42, namely conspiracy to conduct business as a private patrol operator without a license (§ 12022.6, subd. (a)(2).)
On March 12, 2015, Poindexter became the first of the codefendants to enter a negotiated plea of no contest to the four counts listed above (counts 1, 3, 14 & 15). The court dismissed or struck all the remaining counts, special allegations, and enhancements as provided in the plea agreement. The facts relating to the charges of conviction were as follows:
A. Count 1 - Conspiracy
The conspiracy charged in count 1 of the information occurred between February 2011 and July 2014, and involved the submission of false documents as part of a successful bid by BMT on a contract with the County of Alameda for countywide security guard and patrol services, as well as successful bids submitted to HACLA and the Los Angeles Department of Water and Power, and unsuccessful bids submitted to the City of Oakland, Port of Oakland, and City of Newport Beach, as well as falsified insurance binders submitted to Alameda County, the Port of Oakland, HACLA, and the City of Vallejo. Poindexter was an office manager of BMT who was involved in bid processing. The documents accompanying BMT's bid included false and forged documents, false statements regarding insurance coverage and references, and false statements regarding the licensure status of the company and individual guards.
B. Count 3 - Grand Theft
Count 3 alleged grand theft in that between May and December 2012, Poindexter and her codefendants unlawfully took money from Alameda County, whose records showed it paid BMT $113,350.25 for security and patrol services before its contract was terminated.
C. Counts 14 and 15 - Offering False and Forged Instruments
Count 14 alleged between September 17, 2009 and October 20, 2009, Poindexter offered false and forged documents on behalf of BMT's janitorial services company called Back on Track to the East Bay Interagency Alliance, including a common application for local certification and supporting documents. Back on Track was also operated out of 818 27th Street in Oakland. (See fn. 3, ante.) Poindexter performed duties as office manager of Back on Track in 2009 and 2010.
Count 15 alleged between September 28, 2010 and November 15, 2010, Poindexter offered false and forged documents on behalf of Back on Track to the Alameda County Auditor-Controller, including an Alameda County Small, Local, and Emerging Business Program Renewal Certification Application and supporting documents. A fraudulent tax return signed by Poindexter was included in documents submitted.
Before entering her pleas, the court informed Poindexter of the direct and indirect consequences of her plea. Poindexter 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, Poindexter gave up her right to appeal her conviction including the denial of any pretrial motions. In accepting her plea, the court found it was freely and intelligently entered.
On December 1, 2015, the court suspended imposition of sentence and, in accordance with the plea agreement, placed Poindexter on formal probation for five years under various terms and conditions, including that she stay away from her codefendants; not engage in the security guard business; not possess any identification, checks, credit cards or other instruments of credit, rental agreements, or other contracts other than her own; and not leave the state without the permission of her probation officer.
Poindexter filed a timely notice of appeal, requesting a certificate of probable cause. She appealed based on the "sentence or other matters occurring after the plea that do not affect the validity of the plea," but further claimed her First, Sixth and Fourteenth Amendment rights had been violated, she had been discriminated against on the basis of her religion, ordered to stay away from her "religious family" and move from her home, had not been informed of her appellate rights, and had been coerced into entering her no contest pleas. She was granted a certificate of probable cause. Having been granted a certificate of probable cause, Poindexter could have challenged her plea based on constitutional, jurisdictional or other grounds going to the legality of the proceedings leading to the plea. (§ 1237.5, subd. (a); People v. Voit (2011) 200 Cal.App.4th 1353, 1364.)
II. DISCUSSION
Poindexter's appointed attorney filed a brief on appeal without raising any specific issues, asking us to review the entire record to determine if any issues warrant briefing, as provided in Wende, supra, 25 Cal.3d 436. We conducted a full-record review and found no potentially meritorious issues. (Id. at pp. 441-442.) Poindexter was advised by her attorney that she could file a supplemental brief on her own behalf within 30 days after the Wende brief was filed. She did not file such a brief.
Responding to the primary issue noted in Poindexter's request for a certificate of probable cause, "discriminatory enforcement of the laws may be a valid defense in a case in which the [defense] can establish deliberate invidious discrimination by prosecutorial authorities." (Griffin v. Municipal Court (1977) 20 Cal.3d 300, 306.) If, as Poindexter alleged in her request for a certificate of probable cause, the district attorney prosecuted her based on deliberate invidious religious discrimination, clearly there would be a legitimate issue to be raised. But even to obtain discovery on the issue, a defendant must "produce some evidence that similarly situated defendants of other races [or religions] could have been prosecuted, but were not." (United States v. Armstrong (1996) 517 U.S. 456, 469; People v. Superior Court (Baez) (2000) 79 Cal.App.4th 1177, 1187-1190 [threshold showing is "a credible showing of different treatment of similarly situated persons"; "plausible justification" standard of Griffin, at p. 306 no longer applies]; see also, People v. Montes (2014) 58 Cal.4th 809, 828-829 (Montes) [assuming motion under Murgia v. Municipal Court (1975) 15 Cal.3d 286 was constitutionally-based and survived codification of criminal discovery].) Poindexter filed no Murgia motion in this case, nor did we see any evidence in the record to support a claim of discriminatory enforcement.
Poindexter's claim of discriminatory enforcement cannot successfully be raised for the first time on appeal. We are aware Montes "assum[ed] for the sake of argument that defendant is entitled to raise his constitutional [discriminatory enforcement] defense for the first time on appeal" (Montes, supra, 58 Cal.4th 809 at p. 832), but that is a far cry from authorizing such a course. In Montes, the Supreme Court nonetheless concluded "defendant failed to show he actually was subjected to a discriminatory prosecution." (Ibid.) Similarly, even if we assumed Poindexter could raise such an issue for the first time on appeal, our review of the record disclosed no evidence to support the argument.
Poindexter suggested in her notice of appeal that the condition of probation prohibiting her from associating with her codefendants impinged on her First Amendment right of religious association, presumably because all the defendants were affiliated with the Black Muslim Temple. Poindexter also shared a duplex with two of her codefendants and claimed to be in the process of moving at the time she entered her plea. The condition of probation did not restrict Poindexter's ability to practice her faith at a different temple. Nor did it restrict her association with other members of the Black Muslim Temple who were not involved in the crimes of which Poindexter was convicted.
"A condition of probation will not be held invalid unless it '(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality . . . .' [Citation.] Conversely, a condition of probation which requires or forbids conduct which is not itself criminal is valid if that conduct is reasonably related to the crime of which the defendant was convicted or to future criminality." (People v. Lent (1975) 15 Cal.3d 481, 486, fn. omitted.) However, "[a] probation condition that imposes limitations on a person's constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad." (In re Sheena K. (2007) 40 Cal.4th 875, 890.) As described above, the condition in this case was narrowly-tailored to Poindexter's criminally-involved codefendants and coconspirators in a complex illegal operation.
Probation is a privilege and not a right (In re York (1995) 9 Cal.4th 1133, 1150); if a probation condition serves to rehabilitate the defendant and protect public safety, the condition may infringe upon constitutional rights otherwise enjoyed by the probationer, who is "not entitled to the same degree of constitutional protection as other citizens." (People v. Peck (1996) 52 Cal.App.4th 351, 362.) In Peck, the defendant was prohibited from using marijuana, though it was part of his religious practice, and prohibited from associating with other users outside his family. Thus, "[t]he right to associate . . . 'may be restricted if reasonably necessary to accomplish the essential needs of the state and public order.' [Citations.]" (People v. Lopez (1998) 66 Cal.App.4th 615, 627-628.)
Codefendants are routinely required to disassociate from one another as a condition of probation. "[C]onditions of probation prohibiting an individual from associating with other persons including spouses and close relatives, who have been involved in criminal activity have generally been upheld when reasonably related to rehabilitation or reducing future criminality." (People v. Wardlow (1991) 227 Cal.App.3d 360, 367 [no contact with defendant's brothers]; In re Peeler (1968) 266 Cal.App.2d 483, 484 [no contact with defendant's spouse].) Significantly, too, Poindexter failed to object to this condition when it was imposed. Had she done so, the court could have made factual findings and modified the probation condition if warranted. Against a claim of facial constitutional error, however, the condition as imposed was valid and provided no basis for appeal.
Poindexter also claimed she was coerced into accepting her plea bargain. But when she entered her plea, Poindexter said no promises other than those stated in open court and in the plea agreement had been made and no threats had been made to induce her to enter into the plea agreement. Because no evidence of state coercion appears in the record, this is not an appropriate issue for direct appeal. Poindexter appears to argue life's circumstances (her mother's ill health and her need to take care of her children) "coerced" her into entering her plea. Such allegations do not amount to coercion as a matter of law, for some type of coercive action by the state is required. (State v. Nath (Idaho Ct.App. 2005) 141 Idaho 584, 586 [114 P.3d 142, 144] [rejecting argument that defendant was coerced into pleading guilty because it was the only way for him to be released to care for his mother and wife because the pressure stemmed from family circumstances and not from state action]; cf. Colorado v. Connelly (1986) 479 U.S. 157, 167 ["Coercive police activity is a necessary predicate to the finding that a confession is not " 'voluntary' "].)
Poindexter also alleged a "Brady violation" in her notice of appeal, without specifying what exculpatory evidence was withheld. (Brady v. Maryland (1963) 373 U.S. 83.) No Brady issue was raised by Poindexter's counsel below, and nothing in the record elucidates Poindexter's claim. Counsel for a codefendant did request Brady material at the preliminary hearing, but the prosecutor promised full compliance and nothing in the record suggests the material was not later provided. We see no basis for a Brady argument on appeal.
And though Poindexter claimed she had not been informed of her appellate rights , this was no doubt because she pled guilty and waived her right to appeal. In any case, she could not show prejudice from any complained-of error because she did, in fact, file a timely notice of appeal and was granted a certificate of probable cause.
Finally, we note counts 14 and 15 (filing false instruments under § 115 on behalf of Back on Track) were alleged to have occurred some four-and-a-half to five-and-a-half years prior to the filing of the information. The statute of limitations for section 115 is three years. (People v. Garfield (1985) 40 Cal.3d 192, 198; accord, § 801.) But section 115 is subject to tolling until discovery of the crime. (People v. Bell (1996) 45 Cal.App.4th 1030, 1060-1061; § 803, subd. (c); see also, Garfield, at p. 199, fn. 7.) The information alleged that the facts underlying counts 14 and 15 were not discovered until after February 2014. Had the allegations under counts 14 and 15 not been accompanied by a tolling allegation, we might have asked the parties to brief the statute of limitations issue. (See People v. Williams (1999) 21 Cal.4th 335, 341 ["when the charging document indicates on its face that the action is time-barred, a person convicted of a charged offense may raise the statute of limitations at any time"]; People v. Zamora (1976) 18 Cal.3d 538, 547 [conviction based on guilty plea subject to collateral attack if originally barred by the statute of limitations].) When the charging instrument contains a tolling allegation, however, the rule of nonforfeiture does not apply. (People v. Thomas (2007) 146 Cal.App.4th 1278, 1287-1289, disapproved on other grounds in People v. Shockley (2013) 58 Cal.4th 400, 405-406; see also, People v. Martinez (2017) 10 Cal.App.5th 686, 715; Williams, at p. 344.) We therefore find no occasion to request briefing on this issue.
We take judicial notice that similar false documents submitted during the same time frame to the same public agencies, which formed the basis of charges against four of Poindexter's codefendants in counts 11 and 12, were dismissed on a section 995 motion filed by counsel for Rory Parker, joined by the other affected codefendants.
Finally, Poindexter noted a possible claim of ineffective assistance of counsel. The record sheds no light on her basis for such an argument. The record demonstrates that Poindexter's attorney was aware of the statute of limitations issue. If a claim of ineffective assistance of counsel were to be asserted based on counsel's failure to raise the statute of limitations below, or any other reason wherein counsel had not been given an opportunity to explain his action or inaction, that issue would have to be raised by a petition for writ of habeas corpus. (See People v. Johnson (2016) 62 Cal.4th 600, 653.)
We have reviewed the whole record and find no arguable issues.
III. DISPOSITION
The judgment is affirmed.
/s/_________
Streeter, J. We concur: /s/_________
Ruvolo, P.J. /s/_________
Reardon, J.