P. v. Laiwala
Filed 9/5/12 P.
v. Laiwala CA2/8
TO BE PUBLISHED IN THE 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opinion has not been certified for publication or ordered published for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
SECOND
APPELLATE DISTRICT
DIVISION
EIGHT
THE PEOPLE,
Plaintiff
and Respondent,
v.
SHAMSHA N. LAIWALA,
Defendant
and Appellant.
B233045
(Los Angeles County
Super. Ct. No. BA359014)
P
APPEAL
from the judgment of the Superior Court of
County. Craig Richman, Judge. Affirmed.
Thien
Huong Tran, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Paul M. Roadarmel
and Colleen M. Tiedemann, Deputy Attorneys General, for Plaintiff and
Respondent.
* *
* * * * * * * *
Defendant
and appellant Shamsha N. Laiwala contends the court abused its discretion in
denying both her motion to withdraw her guilty plea and her subsequent motion
for reconsideration. We affirm.
BACKGROUND
Following
a lengthy undercover operation by the Federal Bureau of Investigation and local
law enforcement, a felony complaint was filed in state court on July 16, 2009,
charging defendant with 11 felonies: two
counts of false government documents activity (Pen. Code, § 113); one count of
attempted false government documents activity (§§ 113, 664); five counts of
filing false or forged instruments (§ 115, subd. (a)); and three counts of
fraudulent computer access (§ 502, subd. (c)).
Separate charges were filed in federal court (No. CR 08-1093 GHK).
The
charges against defendant, and her two codefendants, Darryl Maxwell and Andrea
Howard, stemmed from numerous contacts by an undercover agent with defendant at
her place of business during the time period from December 2007 through April
2008. On several different occasions,
defendant discussed with the undercover agent various options for buying
fictitious documents, including drivers’ licenses, Social Security numbers,
birth certificates, vehicle registrations, and traffic school completion
certificates. Defendant told the
undercover agent he could purchase a birth certificate and Social Security
number for $1500, and a traffic school completion certificate for $130. Codefendant Maxwell, an employee of the
Department of Motor Vehicles (DMV), assisted defendant by processing false DMV
test scores, and codefendant Howard assisted in obtaining false Social Security
numbers.
After
defendant’s arrest and booking, she was released on her own recognizance. Defendant was represented in both state and
federal court by Roger Rosen, a privately retained attorney. After initially pleading not guilty to all
charges, defendant agreed to enter a plea of guilty to counts 5, 6, 9 and 10,
in return for a dismissal of the remaining charges and a four-year prison term
to run concurrently with any federal sentence imposed on the guilty plea
entered in the federal case. The plea
agreement with the state prosecutor included a condition that defendant could
serve her time in a federal facility.
The
plea agreement was placed on the record before the court on January 21, 2010,
at the predisposition hearing. The court
questioned defendant thoroughly, made the requisite admonitions, and obtained
affirmative waivers from defendant.
Attorney Rosen stipulated to a factual basis for the plea. The court found defendant to have knowingly,
intelligently, and voluntarily entered her guilty plea.
Later
the same day, defendant returned to court without her lawyer and tried to speak
with the judge about withdrawing her guilty plea. Defendant was advised she should speak with
her attorney first. Upon contacting
Attorney Rosen, he advised defendant to obtain separate counsel to move to
withdraw her plea since he had handled the plea agreement she now sought to
withdraw. Attorney Dana Dorsett
substituted in as counsel for defendant on March 10, 2010. Attorney Dorsett filed a motion to withdraw
defendant’s guilty pleas in both the state and federal courts. The state court motion was based in large
part on the claim that the charges were legally defective. To the extent the motion purported to raise a
claim that defense counsel failed to
ask for an interpreter for the proceedings, that issue was unequivocally
withdrawn at the hearing on the motion.
The court held an evidentiary hearing over a period of several days at
which Attorney Rosen, defendant, and several other individuals testified. Following argument, the court denied the
motion.
Thereafter, Carol
Ojo, a bar panel attorney, was appointed as defendant’s new counsel. Attorney Ojo filed a motion for
reconsideration of the denial of defendant’s motion to withdraw her plea,
essentially based on the same grounds originally stated. After entertaining argument, the motion for
reconsideration was denied.
The
court imposed sentence in conformance with the
count 5, identified as the base term, plus consecutive eight-month terms
(one-third the midterm) on each of counts 6, 9 and 10, for a total of four
years in state prison. To account for
the day she was in custody being booked, the court awarded defendant one day of
custody credit, and also imposed various fines.
Defendant obtained a certificate of probable cause and timely filed this
appeal.
DISCUSSION
Defendant
contends the trial court abused its discretion by denying her motion to
withdraw her guilty plea and her motion for reconsideration of that
denial. The grant or denial of a motion
to withdraw a guilty plea “lies within the trial court’s sound discretion after
consideration of all factors necessary to effectuate a just result; a reviewing
court will not disturb its decision unless abuse is clearly demonstrated.” (People
v. Hunt (1985) 174 Cal.App.3d 95, 103; accord, People v. Huricks (1995) 32 Cal.App.4th 1201, 1208 (
Penal
Code section 1018 provides, in relevant part:
“On application of the defendant at any time before judgment
. . . the court may, . . . for a good cause shown,
permit the plea of guilty to be withdrawn and a plea of not guilty
substituted.” “Mistake, ignorance or any
other factor overcoming the exercise of free judgment is good cause for
withdrawal of a guilty plea.
[Citations.] But good cause must
be shown by clear and convincing evidence.”
(People v. Cruz (1974) 12
Cal.3d 562, 566; see also People v. Nance
(1991) 1 Cal.App.4th 1453, 1457.)
Defendant argues
she established good cause for withdrawal of her guilty plea based on her
counsel’s ineffective assistance during the plea process which prevented her
from making a knowing, intelligent and voluntary plea. Specifically, defendant contends that
Attorney Rosen provided ineffective assistance (1) in failing to research,
analyze or explain to defendant that the charges in counts 5 and 6 under Penal
Code section 502, subdivision (c) were defective as a matter of law; (2) in
failing to research, analyze or explain to defendant that the charges in counts
9 and 10 under Penal Code section 115, subdivision (a) were defective as a
matter of law; and (3) in failing to investigate and explain the availability
of an entrapment defense.
“It
is well settled that where ineffective assistance of counsel results in the
defendant’s decision to plead guilty, the defendant has suffered a
constitutional violation giving rise to a claim for relief from the guilty
plea.” (In re Alvernaz (1992) 2 Cal.4th 924, 934.) The criteria for evaluating a claim of
ineffective assistance of counsel set forth in Strickland v. Washington (1984) 466 U.S. 668 have been applied to
claims raised in connection with a request to withdraw a plea. (See Hill
v. Lockhart (1985) 474 U.S. 52, 58-59.)
Our Supreme Court has explained that “in order successfully to challenge
a guilty plea on the ground of ineffective assistance of counsel, a defendant
must establish not only incompetent performance by counsel, but also a
reasonable probability that, but for counsel’s incompetence, the defendant
would not have pleaded guilty and would have insisted on proceeding to trial.” (In re
Alvernaz, supra, 2 Cal.4th at p.
934.) An attorney’s performance is
“deficient if the representation fell below an objective standard of
reasonableness under prevailing professional norms.” (People
v. Benavides (2005) 35 Cal.4th 69, 93.)
We
conclude defendant has failed to show she was denied effective assistance of
counsel in entering her guilty plea, and that the trial court did not abuse its
discretion in denying her motions to withdraw.
Counts 5 and
6 (Pen. Code, § 502)
Defendant argues
that Attorney Rosen failed to act as a competent defense attorney in either
recognizing the legal defects of the charges in counts 5 and 6, or in failing
to explain to defendant the legal significance of the deficiencies in the
pleading so that defendant could make a reasoned decision whether to accept the
plea agreement.
Defendant was
convicted pursuant to her plea bargain in counts 5 and 6 of violating Penal
Code section 502, subdivision (c). That
statute provides in pertinent part:
“Except as provided in subdivision (h), any person who commits any of
the following acts is guilty of a public offense: [¶]
(1) Knowingly accesses and without permission alters, damages, deletes,
destroys, or otherwise uses any . . . computer . . . in
order to . . . devise or execute any scheme or artifice to defraud,
deceive, or extort.” Defendant was
charged in counts 5 and 6 as an aider and abettor of codefendant Maxwell who,
using his computer during working hours at the DMV, entered false test scores
into the DMV computer system to assist defendant in their scheme to facilitate
the issuance of fraudulent drivers’ licenses.
Exhibit B to
defendant’s motion for reconsideration is a copy of a court order authorizing
use of a pen register and other tracing devices in connection with the undercover
investigation of defendant and her codefendants. The summary of the undercover investigation
submitted in support of the order shows that the dates of computer fraud
identified in counts 5 and 6 (December 10 and 17, 2007) correspond to the dates
the undercover agent was at a DMV office, per defendant’s instruction,
attempting to process a false driver’s license application.
Defendant relies
on Chrisman v. City of Los Angeles
(2007) 155 Cal.App.4th 29 (Chrisman)
and Penal Code section 502, subdivision (h)(1) to argue both counts are
defective as a matter of law because
the computer use was performed by codefendant Maxwell, a DMV employee. Subdivision (h)(1) provides: “Subdivision (c) does not apply to punish any
acts which are committed by a person within the scope of his or her lawful
employment. For purposes of this section, a person acts within the scope of his or
her employment when he or she performs acts which are reasonably necessary to
the performance of his or her work assignment.” (Italics added.)
Defendant argues
that codefendant Maxwell was using his work computer to enter the fraudulent
DMV test scores, had not obtained access to the computer unlawfully, and
therefore under the holding in Chrisman
and the language of Penal Code section 502, subdivision (h)(1), his conduct was
not criminal since it was performed within the course and scope of his lawful
employment. As such, defendant could not
be liable for aiding and abetting a noncriminal act. The contention is without merit.
“ ‘Statutes
must be given a reasonable and common sense construction in accordance with the
apparent purpose and intention of the lawmakers—one that is practical rather
than technical, and that will lead to a wise policy rather than to mischief or
absurdity.’ [Citation.]” (Bush
v. Bright (1968) 264 Cal.App.2d 788, 792; see also Civ. Code, § 3542
[“Interpretation must be reasonable.”]; People
v. Weltsch (1978) 84 Cal.App.3d 959, 964.)
Penal Code section 502, subdivision (a) contains the following
expression of legislative intent: “It is
the intent of the Legislature in enacting this section to expand the degree of
protection afforded to . . . governmental agencies from tampering,
interference, damage, and unauthorized access to lawfully created computer data
and computer systems. . . .
[¶] The Legislature further finds
and declares that protection of the integrity of all types and forms of
lawfully created computers, computer systems, and computer data is vital to the
protection of the privacy of individuals as well as to the well-being of
. . . governmental agencies, and others within this state that
lawfully utilize those computers, computer systems, and data.”
It
cannot reasonably be argued that in enacting Penal Code section 502 (hereafter
section 502) for the purpose, in part, of protecting the integrity of
governmental databases and computers, the Legislature intended that public
employees and their cohorts be protected from criminal prosecution for using their
work computers to enter fraudulent data for private gain. Entering fraudulent DMV test scores in
furtherance of a criminal scheme to fabricate fraudulent drivers’ licenses
plainly is not an act “reasonably necessary to the performance” of
Nor
do we read Chrisman as condoning such
an interpretation of section 502, subdivision (h)(1). In Chrisman,
a police department filed administrative charges against one of its officers,
seeking his termination for misuse of the officer’s work computer, among other
charges. (Chrisman, supra, 155
Cal.App.4th at p. 32.) The “gist” of the
computer misuse charges, based on section 502, was that the officer, while on
duty, had searched department databases on his work computer for information
about friends and celebrities. (
work-related purpose for the computer searches.
Chrisman explained however
that “scope of employment” in section 502, subdivision (h)(1) cannot be read so
narrowly as to render an employee’s conduct criminal under section 502 merely
because the employer disapproved of it.
(Chrisman, at pp. 36-37.) The officer’s conduct was against department
policy and could be described as misconduct, but there were no allegations the
officer entered false information in furtherance of a larger scheme to create
fraudulent government documents. The
conduct at issue in Chrisman is not
remotely comparable to the computer fraud at issue here.
Counts 9 and
10 (Pen. Code, § 115)
Defendant also
contends Attorney Rosen failed to provide competent legal advice regarding the
legal defects in felony counts 9 and 10.
Defendant contends the conduct on which both counts were based could
only be charged as violations of Vehicle Code section 20, a misdemeanor, and
that the one-year statute of limitation on misdemeanors had expired at the time
the felony complaint in this matter was filed on July 16, 2009.
Defendant’s
argument is premised on the Williamson
rule, based on the Supreme Court’s decision in In re Williamson (1954) 43 Cal.2d 651. “Under the Williamson rule, if a general statute includes the same conduct as
a special statute, the court infers that the Legislature intended that conduct
to be prosecuted exclusively under the special statute.” (People
v. Murphy (2011) 52 Cal.4th 81, 86 (Murphy).) “ ‘Typically the issue whether a special
criminal statute supplants a more general criminal statute arises where the
special statute is a misdemeanor and the prosecution has charged a felony under
the general statute instead.
[Citations.] Such prosecutions
raise a genuine issue whether the defendant is being subjected to a greater
punishment than specified by the Legislature, and the basic question for the
court to determine is whether the Legislature intended that the more serious
felony provisions would remain available in appropriate cases.’ [Citation.]”
(Mitchell v. Superior Court
(1989) 49 Cal.3d 1230, 1250, fn. 14.)
The Supreme Court
has explained that “ ‘[t]he “special over the general” rule
. . . does not apply . . . unless “each element of the
‘general’ statute corresponds to an element on the face of the ‘specific’
. . . statute” or “it appears from the entire context that a
violation of the ‘special’ statute will necessarily or commonly result in a
violation of the ‘general’ statute.” ’
[Citations.] The rule is not one
of constitutional or statutory mandate, but serves as an aid to judicial
interpretation when two statutes conflict.”
(People v. Walker (2002) 29
Cal.4th 577, 585-586 (Walker); see
also Murphy, supra, 52 Cal.4th at pp. 86-87.)
In
counts 9 and 10, defendant was charged with violating Penal Code section 115,
subdivision (a), which provides: “(a)
Every person who knowingly procures or offers any false or forged instrument to
be filed, registered, or recorded in any public office within this state, which
instrument, if genuine, might be filed, registered, or recorded under any law
of this state or of the
States, is guilty of a felony.”
Count 9 was based on the procurement and offering of a fraudulent
driver’s license application, and count 10 was based on a false vehicle
transfer form and false smog, brake and lamp certificate.
Defendant
contends her conduct could only lawfully be charged as a misdemeanor under
Vehicle Code section 20, which reads:
“It is unlawful to use a false or fictitious name, or to knowingly make
any false statement or knowingly conceal any material fact in any document
filed with the Department of Motor Vehicles or the Department of the California
Highway Patrol.” A violation of section
20 is denominated a misdemeanor by Vehicle Code section 40000.5. Defendant argues the Williamson rule applies because the subject matter of the two
statutes overlap, with both statutes covering the filing of false documents at
the DMV.
Neither
test under the Williamson rule points
to a conclusion that Vehicle Code section 20 was intended to supplant Penal
Code section 115 in the prosecution of presenting forged documents to the
DMV. Under the first test, each element
of Penal Code section 115 does not correspond to an element of Vehicle Code
section 20. (Walker, supra, 29 Cal.4th
at p. 585.) Penal Code section 115
contains additional elements not contained in Vehicle Code section 20,
including the act of “procuring” a forged instrument for filing in a public
office.
The
second test under the Williamson rule
also does not point to a legislative intent to supplant Penal Code section
115. Viewing the entire context, it does
not appear that a “ ‘ “violation of the ‘special’ statute will
necessarily or commonly result in a violation of the ‘general’ statute.” ’ [Citations.]”
(Walker, supra, 29 Cal.4th at p. 585.)
Vehicle Code section 20 can be violated by the omission of a material
fact or the inclusion of a false fact in an otherwise genuine document. It can also be violated by the filing of a
document that includes a fictitious name.
None of these acts, without more, would result in the violation of Penal
Code section 115, which requires the filing or recordation of a “false or
forged instrument.” (§ 115, subd. (a).)
Defendant
cites People v. Wood (1958) 161
Cal.App.2d 24 (Wood) in support of her
argument. Wood held that former Vehicle Code section 131, subdivision (d),
the predecessor statute to Vehicle Code section 20, did supplant Penal Code
section 115 for the type of conduct at issue there. (161 Cal.App.2d at p. 27.) The defendant in Wood was an automobile dealer who had included false dates of sale
and false dates of nonoperation in forms filed with the DMV following vehicle
sales. The reviewing court explained
that such conduct clearly amounted to the filing of documents containing false
statements, but did not amount to the presentation of a forged instrument. (Id.
at pp. 27-28.)
In
contrast, defendant here was charged with procuring and offering counterfeit
driver’s license applications and related documents for filing with the DMV, as
part of a criminal enterprise fabricating false government identification
documents. Nothing in the statutory
schemes indicates a legislative intent
to limit the penalty for such conduct to a misdemeanor. Indeed, other sections of the Vehicle Code and
Penal Code provide for the filing of felony charges in connection with the
possession and use of counterfeit and forged vehicle registrations and drivers’
licenses. (E.g., Veh. Code, § 4463; Pen.
Code, § 470a; see also People v.
Molina (1992) 5 Cal.App.4th 221 [§ 20 of Veh. Code does not supplant
filing of felony charges pursuant to perjury statute at Pen. Code, § 118
because driver’s license application requires verification under oath].)
Finally, defendant
contends Attorney Rosen provided ineffective assistance by failing to
investigate the possibility of an entrapment defense, which was essential to
defendant making an intelligent decision as to whether she should accept a plea
bargain. Defendant’s argument hinges
primarily on the fact that Attorney Rosen did not pay for certified transcripts
of the undercover investigation tapes of conversations with defendant which
showed some of her statements could be viewed as exculpatory.
However, defendant
failed to establish, by clear and
convincing evidence, that Attorney Rosen’s investigation and explanation of
available defenses fell below “an objective standard of reasonableness under
prevailing professional norms.” (
defendant’s testimony at the evidentiary hearing on the motion, Attorney Rosen
and defendant listened to the tapes disclosed by the prosecutors, defendant was
allowed to take them home to review, and they discussed, on multiple occasions,
the discrepancies defendant noted in the uncertified transcription provided by
the prosecution. Attorney Rosen stated
he discussed an entrapment defense with defendant, including the problems with
securing an instruction on that defense from the trial judge. Defendant in no way explains or provides
authority for how such conduct is properly deemed ineffective assistance of counsel.
A defendant’s
change of heart about her decision to accept a plea bargain does not amount to
good cause to withdraw a plea. (
We conclude defendant failed to establish good cause, by clear and
convincing evidence, for withdrawal of her guilty plea. We see nothing more than a change of heart.
DISPOSITION
The judgment is affirmed.
NOT TO BE
PUBLISHED IN THE OFFICIAL REPORTS
GRIMES,
J.
WE CONCUR:
BIGELOW, P. J. SORTINO, J. *
_________________________________
* Judge
of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
