Opinion
E071136
09-12-2019
THE PEOPLE, Plaintiff and Appellant, v. MICHAEL ANGEL TUOSTO, JR., Defendant and Respondent.
Michael A. Hestrin, District Attorney, W. Matthew Murray, Deputy District Attorney for Plaintiff and Appellant. Eric Multhaup, under appointment by the Court of Appeal, for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIF1409778) OPINION APPEAL from the Superior Court of Riverside County. Mac R. Fisher, Judge. Affirmed. Michael A. Hestrin, District Attorney, W. Matthew Murray, Deputy District Attorney for Plaintiff and Appellant. Eric Multhaup, under appointment by the Court of Appeal, for Defendant and Respondent.
FACTUAL AND PROCEDURAL HISTORY
Between 2009 and 2014 defendant and respondent Michael Angel Tuosto, Jr., codefendant Peyman Heidary (a chiropractor), codefendant Cary Abramowitz (an attorney), and others, operated a massive, fully integrated worker's compensation insurance fraud scheme. Heidary exerted control over a law firm owned by Abramowitz, and numerous health clinics throughout Southern California. Heidary used the law firm to funnel worker's compensation patients to his clinics. Once at the clinics, Heidary ordered identical unnecessary medical procedures for the patients, such as MRIs, nerve conduction studies, and referrals to other providers. The scheme created millions of dollars in losses for the insurance companies involved. Defendant owned an attorney service; he was a "capper." When an individual would contact the law firm defendant would be dispatched to meet the client at their home for a consultation and to sign them up for medical treatment. He would take prepared forms for the client to fill in their injuries and insurance carrier; at times the date of injury and the nature of the injury were missing from the forms. Heidary paid defendant on a per-patient basis but only if they agreed to go to Heidary's clinics.
On July 25, 2014, plaintiff and appellant the People filed a felony complaint charging defendant and his codefendants with 24 counts of violating Penal Code section 550, fraudulent submission for payment of a healthcare benefit in excess of $950 (counts 1-24), and one count of conspiracy to violate Penal Code section 550 (count 25).
On June 26, 2015, a first amended felony complaint charged defendant and his codefendants with 29 counts of violating Penal Code section 550 (counts 1-29); one count of conspiracy to violate Penal Code section 550 (count 32); and 36 counts of violating Penal Code section 186.10, subdivision (a), money laundering (counts 33-69).
Counts 30 and 31 for violations of Business and Professions Code sections 2052 and 6126, were filed against codefendants Heidary and Abramowitz only.
On April 26, 2016, defendant entered into a plea agreement wherein he agreed to plead guilty to an amended count 70 under Penal Code section 549, solicitation of a fraudulent insurance claim, accompanied by an enhancement under Penal Code section 12022.6, taking property in excess of $65,000 (repealed effective January 1, 2019). In exchange, the parties agreed that defendant would be granted probation for three years with 270 days to be served in county jail. At the sentencing hearing on November 4, 2016, the court sentenced defendant in accordance with the plea agreement.
On June 13, 2018, defendant filed a motion for early termination of probation under Penal Code section 1203.3, and dismissal of the case under Penal Code section 1203.4. Defendant argued that he had complied with all conditions of probation and that he was hampered in obtaining gainful employment because of his probationary status. The People opposed the motion because defendant was a conspirator in a large insurance fraud case and had agreed to the disposition in the plea agreement.
On July 6, 2018, the trial court held a hearing on defendant's motion. After hearing argument from both parties, the court granted defendant's motion to terminate probation, set aside the guilty plea, and dismissed the case.
On August 15, 2018, the People filed a timely notice of appeal. For the reasons set forth below, we shall affirm the judgment.
DISCUSSION
The People contend that "the trial court's order prematurely terminating probation was unlawful because it deprived the People of the material benefits of the bargain." (All caps. omitted.) We disagree.
A. BACKGROUND
At the November 4, 2016, sentencing hearing, the People informed the court that defendant entered into an agreement to assist in the prosecution of Heidary, the chiropractor. The court asked if that was correct; defense counsel agreed and the following exchange occurred:
"[Prosecutor]: I do believe that in the—this comes to my mind at this time that [defendant] pled guilty when there was a plea agreement saying that he would cooperate with future prosecution on the other case involving . . . Heidary. But there was no—he was not—it was not the place to determine probation because he wasn't sentenced yet. But I do believe that I must make sure that that is a term of probation, that if he does not come and cooperate from New York, that that would be a violation of his probation.
"[Court]: All right. That appears not to be reflected in the document—the sentencing memorandum given to me, but that comports with my prior understanding of the circumstances of the plea agreement being reached. [¶] Is there anything you disagree with in that regard, [defense counsel]?
"[Defense Counsel]: No, Your Honor. . . . [¶] . . . [¶]
"[Court]: . . . Do you understand that, sir?
"[Defendant]: Absolutely."
Thereafter, the trial court imposed the agreed-upon terms, including 36 months formal probation and an order to cooperate with the People.
On June 13, 2018, defendant filed a motion for early termination of probation and dismissal, approximately 18 months after sentencing. The People opposed the motion, arguing that "[t]his is a bargained for disposition and should not be modified."
At the hearing on July 6, 2018, the trial court noted that defendant was granted a three-year probationary term pursuant to a plea agreement. Subsequently, defendant had suffered health issues, his family members had suffered health issues, and defendant had been unable to obtain employment because of his probationary status. Defense counsel reiterated that "the purpose of [defendant] staying on probation was so that he would come to trial when they wanted him to come. He's willing to do that . . . he's ready, willing, and able to come to court if they want him to come. [¶] So the only purpose in keeping him on probation is to have a hammer over his head or a—a leash on him to drag him to the trial, which he's willing to come to."
After hearing the People's argument opposing the early termination of defendant's probation, the court asked Deputy District Attorney (DDA) Murray: "So what I'm asking you is this: If I were to grant this, is there a way that I could assist you in going after the remaining defendants by securing in some fashion [defendant's] attendance in any future proceedings?" The court also noted: "I recognize full well [defendant's] particular circumstance. His individual, in particular, circumstances versus the People's right to go after these other folks. As a subset to that is that you're arguing that he made the bargain, he took the three years probation,, he accepted terms of probation offered to him. And you knew all these things were in your life that, you know, you could have continued to take this mater to trial, you didn't have to accept probation. And in so doing, you—there was a factual basis that was taken. You're involved, and you can't undo the deal you made. I understand that. Okay. I'm past that. I'm past that part. But what I'm interested in is trying to help you go forward with the best case possible."
DDA Murray stated that defendant's probationary status gave the People "at least a little bit of a—a big stick to carry as far as getting [defendant] to show up to court. [But,] if you put him on misdemeanor probation or if you reduce the case and dismiss it, we lose that. So the only—the only tool the Court would have would be to order [defendant] to personally appear, you know, every month, every six weeks." In response, the trial court suggested that defendant be placed under subpoena "with the power of the court at this open hearing saying, 'You're under subpoena, which means an order of the court."
After further discussion between counsel and the court, a second deputy district attorney Mulhere, proposed a solution wherein the court could order defendant present at the trial date for Heidary, and "should he not appear, issue a warrant at that time." In the interim, "the defendant could waive extradition should he choose to leave the state between now and then," so that "if a warrant was issued he's already waived extradition on that and somebody can go pick him up." DDA Mulhere concluded, "If you're going to grant [the motion], your Honor, I'd just ask that you ask for a waiver of extradition from the defendant and order him present" for Heidary's trial, which the trial court did. Defendant waived extradition and the court granted defendant's motion.
B. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN GRANTING DEFENDANT'S MOTION
"A plea agreement 'is a tripartite agreement which requires the consent of the defendant, the People and the court.' " (People v. Feyrer (2010) 48 Cal.4th 426, 436-437, quoting People v. Yu (1983) 143 Cal.App.3d 358, 371.) "Acceptance of the agreement binds the court and the parties to the agreement." (People v. Segura (2008) 44 Cal.4th 921, 930 (Segura).) "Thereafter, material terms of the agreement cannot be modified without the parties' consent." (People v. Martin (2010) 51 Cal.4th 75, 80, italics added, citing Segura, at p. 935.)
Here, defendant surrendered as required under the terms of the plea agreement and served the specified jail term of 270 days, prior to filing his motion for early termination of probation. In Segura, the Supreme Court held that "the term of incarceration is in the nature of a condition precedent to, and constitutes a material term of, the parties' agreement [such that] the jail terms is not subject to subsequent modification without the consent of both parties, and cannot be altered solely on the basis of the trial court's general statutory authority to modify probation during the probationary period." (Segura, supra, 44 Cal.4th at p. 935, fn. omitted.) In Segura, pursuant to a negotiated plea agreement, the defendant pled no contest to one count of inflicting corporal injury upon a spouse. "The prosecutor agreed that the prior conviction allegation would be dismissed, that defendant's present conviction would not be utilized as a 'strike' conviction in a future case, and that defendant would be placed on five years' probation, subject to the condition he serve the first 365 days in county jail." (Id. at p. 926.) Thereafter, the defendant moved to shorten the jail term to 360 days. The trial court denied the motion, finding that the 365-day sentence was an integral part of the plea agreement and thus not subject to subsequent modification by the court. (Id. at pp. 927-928.) The Supreme Court agreed. It concluded that "following entry of the judgment, the trial court retained its authority pursuant to [Penal Code] section 1203.3 to revoke, modify, or change probation or modify conditions that were not made a part of the parties' plea agreement. Nonetheless, as the trial court recognized, it was not at liberty to modify a condition integral to the granting of probation in the first place—a negotiated condition included within the plea agreement entered into by the parties, accepted by the court, and incorporated into the judgment." (Id. at p. 936.)
The issue, therefore, is whether the premature termination of defendant's probation deprived the People of material terms of the plea bargain. As will be explained post, we find that it did not.
In this case, the prosecutor at the sentencing hearing acknowledged that when defendant pled guilty, "there was a plea agreement saying that he would cooperate with future prosecution on the other case involving . . . Heidary," such that the prosecutor felt obligated to "make sure that that is a term of probation, that if [defendant] does not come and cooperate from New York, that that would be a violation of his probation." The trial court noted that term appeared "not to be reflected in the document—the sentencing memorandum," but that comported with the court's prior "understanding of the circumstances of the plea agreement being reached." The People focused on and emphasized that the only other "material term" of the bargain to them was the assurance of defendant's presence at the subsequent trial of Heidary.
At the hearing for early termination of probation, defense counsel reiterated that "[t]he purpose of [defendant] staying on probation was so that he would come to trial when they wanted him to come," and that "[h]e's willing to do that," "he's ready, willing, and able to come to court if they want him to come."
Thereafter, DDAs Murray and Mulhere confirmed that their only actual concern about the modification was to secure defendant's attendance at the subsequent trial. DDAs Murray and Mulhere expressed no claim that the three-year term was in itself any way material to the plea agreement other than as a means to assure defendant's presence at the Heidary trial. DDA Murray stated, "Right now, we have at least a little bit of a—a big stick to carry as far as getting [defendant] to show up to court," and "if you reduce the case and dismiss it, we lose that." DDA Murray acknowledged that the trial court had jurisdiction over defendant to issue an order to personally appear, but questioned that as an efficient solution. DDA Mulhere interjected that the district attorney's "handy dandy appellate attorney who happens to be in the courtroom" suggested a viable alternative procedure to secure defendant's presence at the Heidary trial: "[Y]ou could order him present in February for the trial date. And then should he not appear, issue a warrant at that time. And that, in kind, the defendant could waive extradition should he choose to leave the state between now and then. So that if a warrant was issued, he's already waived extradition on that and somebody can go pick him up."
Based on the suggestion from DDA Mulhere, the trial court implemented precisely the arrangement proposed by the prosecution. In so doing, the court provided the People with an improved means to secure defendant's presence at trial than was provided by the original probation order. Under the original terms of probation, defendant was permitted to go to New York to live and work. If a prosecutor called defendant and requested that he appear at the Heidary trial to testify as a witness and defendant refused, the People would have had to do the following to secure his presence: (1) file a motion to revoke probation; (2) obtain a ruling that defendant violated probation; (3) obtain a bench warrant for defendant's arrest; (5) apply for an out-of-state warrant in New York under Penal Code section 1334 et seq.; and (6) potentially incur extended delays if defendant contested extradition. However, under the court's modified arrangement, the trial court issued an order for defendant's appearance at the trial and defendant agreed to waive extradition.
In sum, we find that the premature termination of defendant's probation did not deprive the People of material terms of the plea bargain. Instead, the early termination made it more beneficial to the People. As the court stated, "I'm trying to protect [the prosecution's] right to proceed in a fashion that would be consistent with obtaining justice from the People's perspective."
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: RAMIREZ
P. J. SLOUGH
J.