P. v. Guth
Filed 9/19/13 P. v. Guth CA2/6
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opinion has not been certified for publication or ordered published for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
SECOND
APPELLATE DISTRICT
DIVISION
SIX
THE PEOPLE,
Plaintiff and Respondent,
v.
KAREN ROXANNA GUTH,
Defendant and Appellant.
2d
Crim. No. B244419
(Super.
Ct. No. F423908)
(San
Luis Obispo County)
Karen Roxanna Guth
appeals the denial of a $175,000 homestead exemption following the court-ordered
sale of her $3.2 million residence to pay victim restitution. (Pen. Code, §§ 1202.4, subd. (f); 186.11,
subds. (h) & (i).)
name="_ftnref1" title="">[1] The property was assigned and transferred
to the San Luis Obispo County District Attorney pursuant to a negotiated plea
in which appellant pled guilty to 26 counts of securities fraud (Corp. Code,
§§ 25110, 25401, 25541) and admitted various enhancements including an
aggravated white collar crime enhancement (§ 186.11, subd. (a)(2).) In exchange for a 12-year
ordered to pay approximately $200,000,000 victim restitution to more than 900
victims. The plea agreement provided
that the property would be sold by a court-appointed receiver and the sale
proceeds distributed to appellant's victims and creditors pursuant to section
186.11.
Appellant contends that
the disbursement of all the sale proceeds to the victims violates her right to
a $175,000 homestead exemption. (Code
Civ. Proc., §§ 704.720; 704.730, subd. (a)(3).)
We dismiss the appeal on the ground that it attacks a key component of
the plea agreement and is barred by appellant's failure to obtain a
required by section 1237.5.
Procedural History
Appellant entered a
change of plea on October 5, 2009,
after her personal and real property was seized pursuant to section 186.11,
commonly known as the "Freeze and Seize Law." (People v. Semaan (2007) 42 Cal.4th 79,
82.) Section 186.11 provides that in
aggravated white collar criminal cases, the superior court may take possession
of assets under the criminal defendant's control and preserve the assets for
the payment of victim restitution. (
assets be connected to or with criminal
activity. (Id., at pp. 86-87.) "Where a defendant is
of
a section 186.11 offense, the trial court is required to make a finding at that
time as to what portion of the frozen property or assets, if any, may be levied
upon to pay fines or victim restitution.
[Citation.]" (Q-Soft,
Inc. v. Superior Court (2007) 157 Cal.App.4th 441, 447.)
On December 7, 2009,
appellant was sentenced to 12 years state prison and ordered to pay victim
restitution in an amount to be determined by the trial court. At the conclusion of the hearing, appellant
said that she had some personal property of no monetary value (clothes, pots
and pans in the house) that should be returned.
The trial court directed counsel to file a motion listing the
property.
On January 12, 2010,
appellant filed a motion for the return of personal property (clothing, pots
and pans, cookbooks, etc.) that was exempt from execution and sought a $150,000
homestead exemption on her residence at 8530 Vineyard Drive, Templeton,
California. The motion noted that the
trial court "has not yet entered an order as part of the judgment and sentence
[to] make the order imposing restitution enforceable pursuant to Title 9
(commencing with Section 680.020 of Part 2 of the Code of Civil
Procedure." Appellant argued that
such an order, when made, would be subject to the exemptions listed in Code of
Civil Procedure section 703.010 et seq. for the enforcement of a money
judgment. The district attorney opposed
the motion on the ground that appellant, as a term of the plea, made an
unequivocal assignment and transfer of the Vineyard Drive property to pay victim
restitution. (See § 186.11, subd.
(h)(1)(A).)
title="">[2] The victim restitution amount would not be
known until all the victims (estimated to be 3,000) submitted claims.
On April 21, 2011, the
trial court ordered appellant to pay $202,003,233.73 victim restitution. Appellant appealed the order which was
affirmed in an unpublished opinion.
(B237956.) We take judicial
notice of the opinion and the record on appeal in B237956. (Evid. Code, §§ 452, subd. (d); 459.)
On August 24, 2012, the
trial court ordered that certain personal property (cosmetics, clothing, etc.)
be returned to appellant but that appellant receive no money from the sale of
the Vineyard Drive property. The court
found that the sale proceeds only slightly mitigated the victims' losses and "there is no homestead exemption available
to a defendant under [section] 186.11 . . . .
[I]t would [be] unreasonable in light of [appellant's] debts to her
victims for the Court to release to Defendant Guth any portion of the proceeds
of the sale of the home."
Pursuant to appellant's request, the receiver
was ordered to set aside $150,000 from the sale proceeds to permit appellate
review of the homestead exemption claim.
On September 10, 2012, the withholding amount was increased by
stipulation to $175,000 to reflect the current homestead exemption cap. (Code Civ. Proc., § 704.730, subd.
(a)(3).) Appellant filed a notice of
appeal on November 2, 2012.
Certificate of Probable Cause
The Attorney General
contends, and we agree, that the appeal must be dismissed because appellant did
not obtain a certificate of probable cause.
(§ 1237.5; People v. Panizzon (1996) 13 Cal.4th 68, 74-76. (Panizzon).) Under section 1237.5 and California Rules of
Court, rule 8.304(b), a defendant seeking to appeal an order on a guilty plea
generally must first obtain a certificate of probable cause. (Id., at pp. 76-79.)
Appellant argues that a
certificate of probable cause is not required if the appeal is based on the
sentence or matters occurring after entry of the plea that do not affect the
validity of the plea. (Cal. Rules of
Court, rule 8.304(b)(4)(B).) In
determining whether an appeal may proceed without a certificate of probable
cause, courts "look to the substance of the appeal: 'the crucial issue is what the defendant is
challenging, not the time or manner in which the challenge is made.'
[Citation.] Hence, the critical inquiry
is whether a challenge to the sentence is in substance a challenge to
the validity of the plea, thus rendering the appeal subject to the requirements
of section 1237.5. [Citation.]" (Panizzon,
supra, 13 Cal.4th at p. 76.)
Appellant argues that
distribution of all the sale proceeds to the victims contravenes the homestead
exemption law which is recognized by our State Constitution. (Cal. Const. art. XX, § 1.5; Kono v.
Meeker (2011) 196 Cal.App.4th 81, 86.)
The disbursement order, however, is part and parcel of the plea
agreement. Appellant is, in substance,
attacking the validity of the plea. (Panizzon,
supra, 13 Cal.4th at p. 78; People v. Shelton (2006) 37 Cal.4th 759, 768-771 [probable
cause certificate required where defendant challenges trial court's authority
to impose negotiated sentence lid].) In
exchange for a 12 year sentence, appellant agreed to assign and transfer all
her real and personal property to the district attorney with the understanding
that the property or proceeds from the sale of the property would be
distributed to appellant's victims in accordance with section 186.11. Appellant waived her right to object to
"the disposition of any an all assets frozen or seized" and waived
the right to object to "the disposition of any proceedings from the sale
of assets frozen or seized."
Appellant's homestead
exemption claim is a new found issue and affects a key component of the plea
bargain: the
restitution and how it will be paid.
(Cal. Const., art. I, § 28, subd. (b)(13)(A).) Although the trial court set aside $175,000
of the sale proceeds so that appellant could seek review of the order,
appellant was required to timely comply with section 1237.5 and obtain a
certificate of probable cause before appealing.
(See People v. Mendez (1999) 19 Cal.4th 1084, 1098-1099; People
v. Brown (2010) 181 Cal.App.4th 356, 361-362.) Absent full compliance and a certificate of
probable cause, a reviewing court may not reach the merits of any issue
challenging the validity of the plea. (People
v. Mendez, supra, 19 Cal.4th at p. 1099.)
The appeal is dismissed.
NOT TO BE PUBLISHED.
YEGAN,
J.
We
concur:
GILBERT, P.J.
PERREN, J.
>
Jac A. Crawford, Judge
Superior Court County of San Luis Obispo
______________________________
Richard
E. Holly, under appointment by the Court of Appeal, for Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Victoria B.
Wilson, Supervising Deputy Attorney General, Mark E. Weber, Deputy Attorney
General, for Plaintiff and Respondent.
name="_ftn1" title="">[1] All statutory references are to the Penal Code
unless otherwise stated.
name="_ftn2" title="">[2] Section 186.11, subdivision (h)(1)(A)
provides: "The court may order the
immediate transfer of the property or assets to satisfy any judgment and
sentence made pursuant to this section.
Additionally, upon motion of the prosecution, the court may enter an
order as part of the judgment and sentence making the order imposing fines and
restitution pursuant to this action enforceable pursuant to Title 9 (commencing
with Section 680.010) of Part 2 of the Code of Civil Procedure."
