Filed 8/31/15 P. v. Paswaters 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
THE PEOPLE,
Plaintiff and Respondent, E062545
v. (Super.Ct.No. FSB1203891)
GREGG PASWATERS, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Annemarie G.
Pace, Judge. Affirmed.
David K. Rankin, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
Defendant and appellant Gregg Paswaters pled guilty to grand theft of personal
property (count 1, Pen. Code § 487, subd. (a))1 and admitted he had suffered a prior strike
1 All further statutory references are to the Penal Code unless otherwise indicated.
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conviction (§§ 667, subds. (b)-(i) & 1170.12, subds. (a)-(d)). The court sentenced
defendant to an aggregate term of six years’ incarceration as stipulated in his plea
agreement.
After defendant filed the notice of appeal, this court appointed counsel to represent
him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d
436, and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the case
and identifying six potentially arguable issues: (1) whether defendant was advised of his
trial rights and the consequences of his plea; (2) whether there was a factual basis for the
plea; (3) whether defendant received the agreed upon sentence; (4) whether defendant
received the correct amount of custody credits; (5) whether the court imposed the proper
fines; and (6) whether the victim restitution award is supported by substantial evidence.
We affirm.
FACTUAL AND PROCEDURAL HISTORY
In March 2011, defendant and his wife attended funeral services at a Hispanic
church. Defendant’s wife told the congregation she was an immigration attorney whom
God had told to help her people. She stated she decided to do so by helping the
congregation members obtain legal citizenship. Defendant’s wife requested the
congregation members complete a form and send her copies of personal documents, such
as tax information, residency cards, drivers’ licenses, passports, marriage licenses, Social
Security cards, photographs, and their children’s birth certificates. She also requested
payments of between $125. and $3,900. for each case to pay what she said were
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immigration fees and/or reduced work rates. The victims sent forms and blank money
orders or cash, on defendant’s wife’s instructions, to a post office box.
Defendant sat next to his wife when she would speak about the immigration
process to some of the victims. One victim also received text messages from defendant
on behalf of defendant’s wife. Defendant’s wife had two victims deposit money directly
into defendant’s bank account. In October 2011, none of the victims had received any
immigration papers and defendant’s wife could no longer be reached at the telephone
number she had provided.
A Sheriff’s Deputy met with members of the church on November 23, 2011, and
identified 42 total victims. The total calculated loss was $43,000. The deputy ran several
versions of defendant’s wife’s name and came up with a driver’s license and address. He
took photographic lineups of defendant and his wife and showed them to the victims.
Nineteen victims positively identified defendant’s wife. Seventeen victims positively
identified defendant. Defendant’s wife was not a licensed attorney.
The People charged defendant and his wife by felony complaint with four counts
of grand theft of the personal property of four specified victims (count 1, § 487,
subd. (a).2 The People further alleged defendant had sustained four prior strike
convictions (§§ 667, subds. (b)-(i) & 1170.12, subds. (a)-(d)) and two prior prison terms
after which he had failed to remain free from custody for five years (§ 667.5, subd. (b)).
2Defendant’s wife is not a party to this appeal. The People also charged
defendant’s wife with misdemeanor unauthorized practice of law (count 5, Bus. & Prof.
Code § 6126, subd. (a)).
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On October 28, 2014, defendant signed a plea agreement providing that he would
plead guilty to the count 1 offense and admit one prior strike conviction allegation in
return for a sentence consisting of the upper term of three years on the count 1 offense
doubled pursuant to the prior strike conviction. Defendant agreed to waive his presence
at a restitution hearing to be held in the future. The agreement reflects defendant would
receive a total of 1532 days of custody credits. Defendant initialed the provisions of his
plea agreement, which advised him of his trial rights and the consequences of his plea.
Defendant initialed a provision in the agreement reflecting that he waived his rights to
dispute the court’s consideration of any facts regarding cases the People agreed not to file
when the court ordered restitution.
Defendant signed the agreement indicating he had read the agreement, discussed it
with his counsel, and understood its provisions. Defense counsel signed the agreement
reflecting he had explained the contents of the agreement to defendant.
On the same date, the court took defendant’s plea. The court asked defendant if he
had personally initialed the boxes on his plea form “after reading, understanding and
discussing, each paragraph with your attorney?” Defendant responded he had. The court
asked if defendant understood everything on the form. Defendant responded he did. The
court asked defendant if he understood that “by pleading you are giving up certain rights.
You are giving up your right to a preliminary hearing and your Constitutional rights to a
speedy public trial by jury, to have your attorney cross-examin[e] witnesses testifying
against you, to bring in witnesses or evidence on your behalf and to remain silent?”
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Defendant responded he understood and was willing to give up those rights in order to
enter his plea.
The court explained that the plea agreement provided defendant would plea to one
count of grand theft and admit one prior strike conviction. In return, he would receive a
sentence of six years’ imprisonment with a total credit for time served of 1532 days.
Defendant indicated he understood. The court informed him that restitution would be
reserved for a future hearing at which defendant would waive his presence. Defendant
stated he understood. The court asked if defendant understood he would be limited to 20
percent good time credits. Defendant responded he understood.
The court asked if anyone had made any other promises to defendant to get him to
enter a plea. Defendant responded that no one had. The court asked if anyone had made
any threats to get him to plead guilty. Defendant answered that no one had. The court
asked if defendant was under the influence of anything that would affect his ability to
understand the plea agreement. Defendant responded that he was not. The court asked if
defendant had sufficient time to discuss the case with his attorney. He responded that he
had.
The court asked if defendant understood “all of your rights, penalties,
punishments, future consequences[,] and potential defenses?” Defendant responded that
he did. The court asked him whether he understood the possible immigration
consequences of his plea. Defendant stated he did. The court asked defendant’s counsel
if he felt he had sufficient time to discuss the plea agreement with defendant and whether
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he was satisfied defendant understood everything in the plea agreement. Defendant’s
counsel responded he had sufficient time to discuss the agreement with defendant and
was satisfied defendant understood it.
The court expressly found defendant had read and understood the plea agreement,
the nature of the charge and allegation to which defendant was pleading and admitting,
the consequences and punishments of the plea and admission, and his Constitutional
rights. The court expressly found defendant had “knowingly, intelligently, freely and
voluntarily, waived each of his . . . Constitutional rights.”
Defendant entered a plea of guilty and admitted a prior strike conviction for first
degree residential burglary in 1988. Defense counsel stipulated the police reports would
provide a factual basis for the plea. On the People’s motion, the remaining counts and
allegations were dismissed. The court further found defendant had entered his plea “in
open court. The plea[ was] entered freely, voluntarily, knowingly[,] and intelligently . . .
and there is a factual basis for the plea, which the Court will accept and confirm.”
The court imposed sentence and awarded custody credits as stipulated in the plea
agreement. With respect to fines and fees, the court ordered the following: “there are no
appointed counsel fees; no ability to pay for court costs; . . . $60 court security fee; $300
[sections] 1202.4 and 1202.45 fine, the latter is stayed pending successful completion of
supervision; [and] $10 plus [penalties] and [assessments] pursuant to [section] 1202.45
. . . .” The court reserved an award of restitution for preparation of a memorandum due
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before the restitution hearing scheduled for December 16, 2014. Defendant orally waived
his appearance at the restitution hearing.
The restitution memorandum dated December 8, 2014, listed 50 different amounts
of restitution to be awarded to 62 victims totaling $59,869.40.3 The probation officer
also recommended an additional award of $600.00 to the church, should its pastor so
request as “the church reimbursed the defendants for mileage, meals[,] and overnight
stays at the local hotel when they worked on cases . . . . On December 16, 2014, the court
indicated receipt of the restitution memorandum and referred the matter back to the
probation department to provide further documentation containing statements by the
“numerous” victims as to how they suffered their losses. On the same date, defendant’s
counsel filed the instant appeal challenging the “sentence or other matters occurring after
the plea that do not affect the validity of the plea.”
On January 21, 2015, the probation officer compiled an additional restitution
memorandum after obtaining and attaching copies of receipts and money orders totaling
66 pages. The probation officer recommended a total restitution award of $66,266.84
noting “that some of the victims have a higher restitution amount due to the fact that they
turned over their copies . . . .” The probation officer additionally recommended the court
retain jurisdiction over restitution for what appears to be additional victims and victims
already listed, but who had yet to fully document their purported loses.
3 The probation officer listed one amount for each family regardless of the number
of victims within each family.
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At the restitution hearing on February 10, 2015, defense counsel indicated “we’ve
had an opportunity to look over the memo regarding [defendant]. The numbers appear to
be correct, and we’re going to submit on the memo.” The court ruled that, “Rather than
reading he approximately 30 to 40 [sic] orders, I will simply adopt the amounts listed on
Pages 2 and 3 of the memo [filed] today’s date if that’s okay with all of the parties.” The
parties agreed and the court so ordered restitution.
DISCUSSION
We offered defendant an opportunity to file a personal supplemental brief, which
he has not done. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we
have independently reviewed the record for potential error and find no arguable issues.
(People v. Garcia (2010) 185 Cal.App.4th 1203, 1218 [Fourth Dist., Div. Two] [Failure
to object to the amount of restitution forfeits the issue on appeal]; accord People v.
Nelson (2011) 51 Cal.4th 198, 227; People v. Goulart (1990) 224 Cal.App.3d 71, 79-82
[Execution of Harvey waiver waives the defendant’s right to challenge restitution with
respect to charges not filed by the People].)
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J.
We concur:
KING
J.
MILLER
J.
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