P. v. Cardinalli



























Filed 5/9/13 P. v. Cardinalli CA6

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>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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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opinion has not been certified for publication or ordered published for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.





IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



SIXTH
APPELLATE DISTRICT




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THE PEOPLE, Plaintiff and Respondent, v. VINCENT BRUCE CARDINALLI, Defendant and Appellant.

H036513 (Santa Clara County Super. Ct. No. FF721011)

Defendant
Vincent Bruce Cardinalli appeals a judgment of conviction entered following his
plea of no contest to 100 counts of theft
and fraud-related offenses.
Defendant and members of his family, including his son and daughter,
operated a tow truck business and a small claims law suit mill through which
they used fabricated car towing and storage fee bills to defraud people.

On appeal, defendant asserts he is
entitled to additional conduct credits under the amended provisions of Penal
Code section 4019.href="#_ftn1" name="_ftnref1"
title="">[1]> In addition, defendant argues the trial court
erred in failing to order his daughter, who is one of his codefendants, jointly
and severally liable for the restitution award to the victims in this case.

Statement of the Factshref="#_ftn2" name="_ftnref2" title="">[2] and Case

Defendant
and his son, Paul Greer, owned and operated a tow truck company, B & C
Towing. Greer also owned a collection
agency that operated out of the same address as the tow truck company.

Defendant
and Greer created a scheme in which defendant would target people he became
aware of through the towing business, and bring small claims actions against
them based on unpaid towing and storage fees that were fabricated. Defendant presented false evidence in small
claims court of the unpaid fees, and when he obtained a judgment, he assigned
it to Greer’s collection agency. Defendant
and Greer together extorted or attempted to extort payments from victims by
threatening to ruin their credit, put liens on their property, and garnish
their wages.

As a result
of filing over 800 actions in small claims court in three different counties,
defendant and Greer reaped hundreds of thousands of dollars in judgments.

Defendant
and Greer were the primary actors involved in this scheme. Also involved, however, were defendant’s
daughter, Rosemary Ball and his son-in-law, Michael Ball. Rosemary was the corporate secretary and an
employee of B & C Towing. Her name
and signature appear on some of the lien paperwork assigning small claims
judgments to the Greer collection agency.
Michael was the co-founder of the towing company. He filed papers initiating 25 of the small
claims lawsuits during 2003.

In 2009,
defendant, Greer and Rosemary and Michael Ball were all charged with crimes
related to the false small claims actions.
Defendant was charged with a total of 100 counts, including conspiracy
to defraud persons of property or to obtain money by false pretenses, and to
obstruct justice and due administration of the laws (§§ 182,
subds. (a)(4), (a)(5)); count 1), subornation of perjury by declaration (§
127; counts 2-38), recording a false instrument (§ 115; counts 39-45),
certification under penalty of perjury (§ 118; counts 46-51, 53, 56-90),
embezzlement by trustee, attorney or agent (§§ 506-487; count 52),
attempted grand theft of personal property of value over $400 (§§ 484-487, subd.
(a), 664; counts 54-55, 95, 97-99), attempted extortion (§ 524; counts 91-93),
extortion of property (§§ 518-520; count 94), offering forged or altered
document as genuine or true (§ 132; count 96), unauthorized practice of law
(Bus. & Prof. Code, § 6126, subd. (a)).
The information also alleged defendant had a strike prior (§§ 667,
subds. (b)-(i); 667.4, subd. (c)).

Rosemary
Ball was charged with conspiracy to defraud a person of property or obtain
money and property by false pretenses, and to obstruct justice and due
administration of the laws (§§ 182, subds. (a)(4), (a)(5)); count 1), attempted
grand theft of personal property of a value of over four hundred dollars (§§
484-487, subd. (a), 664; count 134), and certification under penalty of perjury
(§ 118; count 158).

Defendant
pleaded no contest to all of the allegations pursuant to a negotiated
disposition. On January 7, 2011, the
court dismissed defendant’s strike prior pursuant to People v. Romero (1996) 13 Cal.4th 497, and sentenced defendant to
14 years in state prison. The court
awarded defendant 1,645 days of custody credits, based on 1,097 actual days,
and 548 days of conduct credit pursuant to section 4019.

Rosemary Ball pleaded no contest to
the three charges alleged against her in exchange for an agreement that she
would not be sent to state prison. On January 7, 2011, the court
suspended imposition of sentence, and ordered Rosemary to serve six months in
county jail as a condition of probation.


During the sentencing hearing, the
court ordered defendant to pay restitution to the victims, most of which was
also ordered against Greer jointly and severally. Defendant requested that Rosemary also be
held jointly and severally liable for all of the victim restitution imposed
against him based on Rosemary’s plea of no contest to conspiracy in count
1. The court denied defendant’s request
to include Rosemary Ball, stating that the decision was “due to apportionment.”

Discussion

Defendant
argues on appeal that he is entitled to additional conduct credits pursuant to
the amendments to section 4019. In
addition, he asserts the trial court erred in apportioning zero liability for
victim restitution to his daughter, Rosemary Ball.

>Section
4019

In his
opening brief, defendant argued that he was entitled to additional conduct
credit under the current version of section 4019, and that the amendments to
the statute should be applied retroactively.
Defendant relied on two appellate court cases that subsequently were
reversed by the California Supreme Court.
(See, People v. Brown (2012)
54 Cal.4th 314 (Brown); >People v. Lara (2012) 54 Cal.4th 896 (>Lara).)

In his reply brief, defendant
acknowledges that these two opinions from our high court are controlling and
preclude his claim for additional conduct credit. However, in order to preserve his right to
federal review, he maintains his argument that his federal href="http://www.fearnotlaw.com/">constitutional rights to Equal Protection
have been violated by the prospective application of the amendments to section
4019.

The current
version of section 4019 generally provides that a defendant may earn conduct
credit at a rate of two days for every two-day period of actual custody. (§ 4019, subds. (b), (c) & (f).) However,
as defendant acknowledges, the current version of section 4019 states that the
conduct credit rate “shall apply prospectively and shall apply to prisoners who
are confined to a county jail [or other local facility] for a crime committed
on or after October 1, 2011. Any days earned by a prisoner prior to October 1,
2011, shall be calculated at the rate required by the prior law.” (§ 4019, subd. (h).) In this case, defendant committed his crimes
and was sentenced prior to October 1, 2011.
Thus the October 2011 version of section 4019, which provides for
prospective application, does not apply to defendant. (§ 4019, subd. (h); Brown, supra, 54 Cal.4th at p. 322, fn. 11) “The concept of equal protection recognizes that persons who
are similarly situated with respect
to a law’s legitimate purposes must be treated equally. [Citation.]
Accordingly, ‘ “[t]he first prerequisite to a meritorious claim under
the equal protection clause is a showing that the state has adopted a classification
that affects two or more similarly situated groups in an unequal manner.”
’ [Citation.] ‘This initial inquiry is not whether persons
are similarly situated for all purposes, but “whether they are similarly
situated for purposes of the law challenged.” ’
[Citation.]” (>Brown, supra, 54 Cal.4th at p. 328.)

The decision in >Brown is instructive on the href="http://www.mcmillanlaw.com/">equal protection issue raised by

defendant in this case. In >Brown, the California Supreme Court held
that a former version of section 4019, effective January 25, 2010, applied
prospectively, and that the equal protection clauses of the state and federal
Constitutions did not require retroactive application. (Brown,
supra, 54 Cal.4th at pp. 318, 328.)
In addressing the equal protection issue, the court explained that “the
important correctional purposes of a statute authorizing incentives for good
behavior [citation] are not served by rewarding prisoners who served time
before the incentives took effect and thus could not have modified their
behavior in response. That prisoners who served time before and after [the
January 2010 version of] section 4019 took effect are not similarly situated
necessarily follows.” (Brown, >supra, at pp. 328-329.)

Subsequently, in >Lara, supra, 54 Cal.4th 896, the
California Supreme Court rejected the contention that the prospective
application of the October 2011 version of section 4019 denied the defendant
equal protection under the state and federal Constitutions. (Lara,
supra, at p. 906, fn. 9.) Citing >Brown, the California Supreme Court in >Lara explained that prisoners who serve
their pretrial detention before the effective date of a law increasing conduct
credits, and those who serve their detention thereafter, “are not similarly
situated with respect to the law’s purpose.”
(Lara, supra, at p. 906, fn.
9.)

In this case, defendant is not
entitled to additional conduct credit under the October 2011 version of section
4019 by virtue of state or federal equal protection principles. (See
Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

>Restitution

Defendant
asserts the trial court erred when it failed to apportion any of the
responsibility for the restitution owed to the victims in this case to defendant’s
daughter, Rosemary Ball.

California Constitution, article I,
section 28, provides, in pertinent part:
“It is the unequivocal intention of the People of the State of
California that all persons who suffer losses as a result of href="http://www.fearnotlaw.com/">criminal activity shall have the right to
seek and secure restitution from the persons convicted of the crimes for losses
they suffer.” “ ‘In determining the
amount of restitution, all that is required is that the trial court “use a rational
method that could reasonably be said to make the victim whole, and may not make
an order which is arbitrary or capricious.” ’ ” (People
v. Prosser (2007) 157 Cal.App.4th 682, 690.)

Section 1202.4, subdivision
(a)(1) provides that “[i]t is the intent of the Legislature that a victim of
crime who incurs an economic loss as a result of the commission of a crime
shall receive restitution directly from a defendant convicted of that
crime.” Subdivision (f) of the same
section provides that “[t]he court shall order full restitution unless it finds
compelling and extraordinary reasons for not doing so, and states them on the
record.”

“ ‘The standard of review of a
restitution order is abuse of discretion.
“A victim’s restitution right is to be broadly and liberally
construed.” [Citation.] “ ‘When there is a factual and rational basis
for the amount of restitution ordered by the trial court, no abuse of
discretion will be found by the reviewing court.’ ” [Citations.]’
[Citation.]” (>People v. Baker (2005) 126 Cal.App.4th
463, 467.)

While the
trial court has the authority to order codefendants to share joint and several
liability for restitution to crime victims, it has no obligation to do so. (See, e.g., People v. Blackburn (1999) 72 Cal.App.4th 1520, 1535.) The court has discretion to apportion the
responsibility for restitution among multiple defendants, including ordering
joint and several liability or finding one defendant among several to be solely
responsible. (In re S.S. (1995) 37
Cal.App.4th 543, 548-550.) “Indeed,
joint and several liability may not be preferable in all cases involving
codefendants.” (People v. Arnold (1994) 27 Cal.App.4th 1096, 1100.)

Here, while defendant asserts
his daughter should be held jointly and severally liable for the restitution
owed to the victims, he does not demonstrate that the trial court abused its
discretion in making the restitution order in this case.

There is
ample evidence that defendant and his son, Greer were the driving force of the
towing and small claims operation, and that apportioning defendant 100 percent
liability for the restitution to the victims was a proper exercise of judicial
discretion. Defendant’s daughter,
Rosemary Ball was the corporate secretary and an employee of the towing
company, and her name appears on a small amount of paperwork that was used to
support the small claims mill. While she
did plead no contest to conspiracy as did defendant and Greer, her zero
apportionment of liability for restitution was well within the court’s
discretion based on the facts of this case.


We find based on the record that
there is a factual and rational basis for the restitution ordered by the trial
court, as well as the joint and several liability of defendant and Greer. The trial court did not abuse its discretion
in making the restitution order in
this case.



Disposition

The judgment is affirmed.





______________________________________

RUSHING, P.J.













WE CONCUR:













____________________________________

PREMO, J.













____________________________________

ELIA
J.