P. v. Dorsey

Filed 12/19/08 P. v. Dorsey CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Janice M. McIntyre, Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, 6 of the Cal. Const.) Affirmed.

Peter Dodd, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Steve T. Oetting and Barry Carlton, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant and appellant Karyn Jeanne Dorsey appeals following a guilty plea.^[1] She contends the trial court abused its discretion when it denied probation and sentenced her to prison for two years. She also argues she received ineffective assistance of counsel because her attorney did not file a motion to enforce a plea bargain after the prosecutor withdrew an offer.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant was charged with 11 felony offenses in two separate cases. The first case arose out of a fraud report filed by a homeowner who had advertised her home for rent. According to the homeowner, defendant completed a rental application and agreed to rent the home beginning at the end of March 2006 for $4,000 a month. As a deposit, defendant gave the homeowner two cashiers checks; one in the amount of $1,500 and the other in the amount of $2,500. The homeowner took the checks to the Riverside County Sheriffs Department to file a report after her bank advised her the checks did not appear to be valid. A deputy sheriff was able to confirm that the checks were not legitimate. Defendant was therefore charged on June 22, 2006, in case No. RIF130838 (the home rental case) with burglary (Pen. Code, 459)^[2]and forgery ( 475, subd. (c)).

The second case arose when a bank representative telephoned an officer of a high school football teams booster club to verify a check written against the booster clubs account in the sum of $16,674.65. Defendant was a vice president of the booster club and the unauthorized check was made payable to a timeshare in Las Vegas on behalf of K. Dorsey. Upon further investigation, a number of other checks were discovered that had been written by defendant to herself against the booster clubs account without authority. Most of the checks were deposited into defendants personal bank account. Evidence developed during the investigation included video surveillance showing defendant passing fraudulent checks at the bank.

After a detailed accounting of checks paid on the booster clubs account, the loss appeared to be about $35,275.53. Investigators suspected some of the checks were counterfeited on a home computer, so a search warrant was executed at defendants home. The search uncovered a laptop computer with check writing capabilities, some blank check stock paper, and some printed checks. Based on the evidence uncovered in the investigation, defendant was charged on August 23, 2006, in a nine-count felony complaint in case No. RIF132017 (the booster club case) with embezzlement ( 503) (count 1); five counts of forgery ( 470, subd. (d)) (counts 2-6); and three counts of burglary ( 459) (counts 7-9).

Following failed plea negotiations with the prosecutor and a conference with the trial judge, defendant pled guilty to all charges in both cases in exchange for an agreement by the court to consider the possibility of probation and to impose no more than a maximum of two years in state prison on each case to be served concurrently. In separate reports filed in each case on October 12, 2007, the probation officer recommended a prison sentence and the denial of probation.

At the sentencing hearing on October 12, 2007, the trial court found defendant was ineligible for probation under section 462 unless unusual circumstances could be shown. The court concluded there were no unusual circumstances and denied probation in both cases. In the home rental case, the court imposed a term of two years in state prison on each count to be served concurrently. In the booster club case, the court imposed two years in state prison on each count to be served concurrently with each other and concurrent to the sentence imposed in the home rental case.

DISCUSSION

Denial of Probation

Section 462, subdivision (a), states in pertinent part as follows: Except in unusual cases where the interests of justice would best be served if the person is granted probation, probation shall not be granted to any person who is convicted of a burglary of an inhabited dwelling house. . . . Rule 4.413 of the California Rules of Court sets forth the factors to be considered to determine whether a case is unusual. Defendant argues the trial court abused its discretion because it did not apply the factors set forth in California Rules of Court, rule 4.413 to reach its conclusion that her case did not qualify as unusual under section 462, subdivision (a).

The decision to grant or deny probation rests within the broad discretion of the trial court, and that decision will not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Jordan (1986) 42 Cal.3d 308, 316.) A defendant bears a heavy burden when attempting to show an abuse of discretion. (People v. Aubrey (1998) 65 Cal.App.4th 279, 282.)  In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review. [Citation.] (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.) A sentence will not be reversed  merely because reasonable people might disagree  with the trial courts decision. (Id. at p. 978.)

When a defendant is presumptively ineligible for probation under statutes such as section 462, subdivision (a), the trial court is required to use the criteria set forth in California Rules of Court, rule 413.^[[3]] If the court finds the case to be an unusual one, it must then decide whether to grant probation, utilizing the statutory criteria set forth in California Rules of Court, rule 414.^[[4]] (People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 830, fns. omitted.) [M]ere suitability for probation does not overcome the presumptive bar . . . . [I]f the statutory limitations on probation are to have any substantial scope and effect, unusual cases and interests of justice must be narrowly construed and, as rule [4.413] provides, limited to those matters in which the crime is either atypical or the offenders moral blameworthiness is reduced. (People v. Superior Court (Dorsey) (1996) 50 Cal.App.4th 1216, 1229.)

Citing California Rules of Court, rule 4.413(c)(1)(A), defendant claims there was overwhelming evidence indicating the residential burglary charged in the home rental case was substantially less serious than the typical first degree burglary, because there was no threat of a violent encounter. According to defendant, the typical first degree burglary case involves a perpetrator breaking and entering into an occupied dwelling in order to steal property, and as a result, a violent confrontation is likely when the homeowner comes across the burglar. Here, the homeowner reported defendant went to her home to deliver two checks as a deposit to rent the home; the homeowner knew defendant was coming to the home to deliver the checks and there was no threat of a violent confrontation.

California Rules of Court, rule 4.413(c)(1)(A) states that an unusual case may be found where, [t]he fact or circumstance giving rise to the limitation on probation is, in this case, substantially less serious than the circumstances typically present in other cases involving the same probation limitation, and the defendant has no recent record of committing similar crimes or crimes of violence. (Italics added.) Defendants argument disregards the express language of rule 4.413(c)(1)(A). At the same time defendant pled guilty to the burglary in the home rental case, she also pled guilty to nine felony counts arising from separate but similar conduct in the booster club case. This included three burglary charges alleging she entered a bank with the intent to commit theft and a felony. Therefore, defendant was not eligible for probation under rule 4.413(c)(1)(A).

Even if defendant did not have a recent record of similar crimes, a trial court could reasonably conclude the residential burglary offense was not substantially less serious than the circumstances present in other residential burglary offenses. Although it is true defendant did not stand accused of forcibly breaking into the residence or even entering without consent, these facts, as defendant acknowledges, are not necessary elements of the offense of burglary. Nor must the threat of a violent confrontation be shown to prove a burglary. Under section 459, Every person who enters any house . . . with intent to commit grand or petit larceny or any felony is guilty of burglary. More importantly, defendants conduct of giving the homeowner fraudulent checks totaling $4,000 to rent the home, placed people and property at a considerable risk.

During her sentencing hearing, defendant presented testimony by a clinical psychologist who testified defendant committed the charged offenses because she suffered from long-term depression, serious health issues, and very difficult and stressful financial circumstances. She contends the trial court paid no heed to this unrebutted evidence of a mental condition. We disagree.

Under California Rules of Court, rule 4.413(c)(2)(B), an unusual case may also be found where [t]he crime was committed because of a mental condition not amounting to a defense, and there is a high likelihood that the defendant would respond favorably to mental health care and treatment that would be required as a condition of probation. Prior to denying probation and imposing a prison term, the trial court mentioned section 462 and the rules of court and stated it considered not only the probation officers report, but the parties sentencing memoranda, letters by counsel, and the testimony of defendants psychological expert. A trial court is not required to find the case is unusual even if one or more of the criteria are met. Rather, the language of California Rules of Court, rule 4.413 is permissive in nature. (People v. Stuart (2007) 156 Cal.App.4th 165, 187.) Therefore, the question is not whether the trial court could have granted probation based on the psychologists testimony, it is whether the trial court abused its discretion in not doing so.

Based on the record as a whole, the trial court could reasonably reject defendants contention that she committed her offenses as a result of a mental condition. First, depression and financial stress do not necessarily amount to a mental condition that would reduce a defendants culpability for the charged offenses and overcome the presumption of ineligibility in section 462, subdivision (a). We do not intend to minimize the difficult circumstances defendant faced during the time in question, but common experience tells us many people in our community face analogous challenges and financial stress every day. There are no facts indicating defendant suffered from diminished capacity. Defendant was, in fact, well educated and capable. She knew what she was doing, and she knew it was wrong.

Second, there was conflicting evidence suggesting that depression and financial stress were not the only motivating factors. A large portion of the funds involved were for what most people would consider luxury itemsto rent a home for $4,000 a month and to save a vacation timeshare for $16,674.65 from foreclosure. Given the amount of money involved, the number and seriousness of the offenses, and the damaging impact of defendants conduct on others, the court could reasonably reach the decision that the case was not an unusual one and required prison time to protect the community from the probability of additional offenses.

We also note that prior to her guilty plea, the trial court advised defendant that her sentencing exposure for both cases was a total of ten years in the state prison. As a result, we have no doubt that the trial court considered the particular facts of the charged offenses, the relative seriousness of the conduct involved, as well as any other relevant mitigating factors, in agreeing to sentence defendant to no more than two years in state prison. In other words, based on all of the circumstances, we cannot say the court abused its discretion in ruling defendant had not overcome the statutory limitation on probation.

Ineffective Assistance of Counsel

Citing the Supreme Courts decision in Strickland v. Washington (1984) 466 U.S. 668, defendant contends she received ineffective assistance of counsel because her attorney did not file a motion to enforce a plea bargain when the prosecutor withdrew an offer. Defendant claims the plea bargain was enforceable because she detrimentally relied on the prosecutors promise by securing funds to pay restitution and bringing checks to a hearing on January 24, 2007. As a result, she seeks a reversal and remand with directions for the trial court to specifically perform the plea bargain.

A cognizable claim of ineffective assistance of counsel requires a showing counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment. (Strickland, supra, 466 U.S. at p. 687.) [T]he performance inquiry must be whether counsels assistance was reasonable considering all the circumstances. (Id. at p. 688.) To prevail on an ineffective assistance of counsel claim, a defendant must also establish counsels performance prejudiced his defense. (Id. at p. 687.) To establish prejudice, a defendant must demonstrate there is a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. A reasonable probability is probability sufficient to undermine confidence in the outcome. (Id. at p. 694.) Because a defendant must prove both elements of the Strickland test in order to prevail, courts may reject an ineffective assistance of counsel claim if it finds counsels performance was reasonable or the claimed error was not prejudicial. (Id. at p. 687.)

When a defendants claim of ineffective assistance of counsel is based on the failure to bring a motion, the defendant must be able to show the motion had merit. (People v. Frye (1998) 18 Cal.4th 894, 989.) Here, defendant cannot show deficient performance or prejudice. [A] prosecutor may withdraw from a plea bargain before a defendant pleads guilty or otherwise detrimentally relies on that bargain. (People v. Rhoden (1999) 75 Cal.App.4th 1346, 1354 (Rhoden).)  A defendant relies upon a [prosecutors] plea offer by taking some substantial step or accepting serious risk of an adverse result following acceptance of the plea offer. [Citation.] Detrimental reliance may be demonstrated where the defendant performed some part of the bargain. [Citation.] For example, a defendant who provides beneficial information to law enforcement can be said to have relied to his detriment.  (Id. at p. 1355, quoting Reed v. Becka (1999) 333 S.C. 676, 689 [511 S.E.2d 396, 403].) Absent detrimental reliance on the bargain, the defendant has an adequate remedy by being restored to the position he occupied before he entered into the agreement. (Rhoden, at p. 1356, quoting State v. Beckes (1980) 100 Wis.2d 1, 4-8 [300 N.W.2d 871, 874].) This is because the defendant retains his constitutional right to present his case to the jury. (Rhoden, at p. 1356.)

Defendants trial counsel represented in a declaration that defendant originally rejected an offer by the prosecutor for two years in state prison. After further negotiations, the prosecutor agreed to probation, but only if defendant paid restitution in full. Defense counsel then received a total of $20,000 from defendants mother to be used to pay restitution. On January 24, 2007, defense counsel showed the prosecutor two trust account checks equal to the total amount of restitution originally requested. However, the prosecutor then advised her that the deal is off the table and that the prosecution was reverting to the previous offer of 2 years in state prison. Defense counsel then had a conference with the trial judge and was able to reach an agreement. The trial judge agreed to consider placing defendant on probation, and if probation was not granted, to impose no more than a maximum of two years in state prison. Defendant thereafter pled guilty to all charges in both cases.

Under these facts, we cannot conclude defendant detrimentally relied on the prosecutors offer because there is nothing to show she actually paid any amount of restitution to the victims. In other words, she did not actually perform part of the bargain. She merely showed the prosecutor checks, and after the prosecutor withdrew the offer, defendant still had control of the funds. Because defendant cannot show a motion to enforce the plea agreement had merit, she is unable to establish deficient performance by counsel or prejudice. We therefore reject defendants ineffective assistance of counsel claim.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J.

We concur:

HOLLENHORST

J.

GAUT

J.

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^[1] Defendant requested and was granted a certificate of probable cause for an appeal pursuant to Penal Code section 1237.5.

^[2] All further statutory references are to the Penal Code unless otherwise indicated.

^[3] Renumbered to be California Rules of Court, rule 4.413 effective January 1, 2001.

^[4] Renumbered to be California Rules of Court, rule 4.414 effective January 1, 2001.