People v. Avignone

Filed 10/13/17; Certified for Publication 11/8/17 (order attached)

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D070012, D070388

Plaintiff and Respondent,
(Super. Ct. No. SCD250640)
v.

SUSAN JOY AVIGNONE et al.,

Defendants and Appellants.

CONSOLIDATED APPEALS from a judgment of the Superior Court of San

Diego County, Charles G. Rogers, Judge. Reversed and remanded.

Donna L. Harris, under appointment by the Court of Appeal, for Defendant and

Appellant Susan Joy Avignone.

Heather L. Beugen, under appointment by the Court of Appeal, for Defendant and

Appellant William Alan Avignone.
 Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Collette C. Cavalier and Joy

Utomi, Deputy Attorneys General, for Plaintiff and Respondent.

Susan Joy Avignone and William Alan Avignone (together the Avignones)

defrauded five investors out of more than $700,000 in a real estate scheme. In exchange

for dismissal of some of the charges, the Avignones pleaded guilty to three counts of

fraud in connection with the offer, sale, and purchase of a security (Corp. Code, §§ 25401

& 25540, subd. (b); counts 2, 8, 10) and two counts of grand theft of personal property

with a value of more than $950 (Pen. Code,1 § 487, subd. (a); counts 3, 5).

Susan admitted a section 186.11, subdivision (a)(2) allegation attached to count

10, and a section 12022.6, subdivision (a)(1) allegation attached to count 5. William

admitted a section 186.11, subdivision (a)(2) allegation attached to count 2, a section

12022.6, subdivision (a)(2) allegation attached to count 3, and a section 12022.6,

subdivision (a)(1) allegation attached to count 5. At sentencing, the trial court struck the

section 186.11 enhancements and denied probation. It sentenced the Avignones to an

aggregate term of five years four months to be served in the custody of the sheriff. The

court imposed a split sentence, ordering that one year four months of the imposed

sentence would be served in the community under mandatory supervision.

1 Undesignated statutory references are to the Penal Code.

2
 The Avignones separately appealed, contending the trial court abused its

discretion in denying probation.2 William also contends (1) the electronic search

condition was unreasonable and unconstitutionally overbroad, and (2) the trial court

improperly calculated a restitution order as to one of the victims. The People concede the

trial court improperly calculated the restitution for one of the victims. The People assert

that the Avignones' sentences are unauthorized because the trial court did not have

discretion to sentence them to county jail, rather than prison.

We reject the Avignones' argument that the trial court abused its discretion in

denying probation. We agree that the trial court imposed an unauthorized sentence. This

conclusion renders William's argument regarding the electronic search condition moot.

We reverse the judgments and remand with directions to allow the Avignones an

opportunity to withdraw their guilty pleas.

GENERAL FACTUAL BACKGROUND

Because the parties are familiar with the facts, we summarize only the general

facts concerning the underlying crimes at issue in this appeal. We present additional

facts concerning the issues on appeal in our discussion post.

Eric – Count 2

Eric spoke to his pastor about his plan to borrow against the equity in his home to

obtain funds he needed to start a new drywall business. The pastor referred Eric to

Susan, his sister, for financial advice. Susan told Eric that she and her husband, William,

2 We granted Susan's unopposed motion to consolidate the appeals.

3
were financial planners doing business as SABA Investments (SABA). In May 2006,

Susan helped Eric refinance his home, with part of the funds used to purchase life

insurance policies for Eric and his wife.

In April 2009, William contacted Eric by telephone to suggest borrowing against

the life insurance policies to invest in real estate in Georgia to obtain a greater return than

what the life insurance policies provided. Eric sent a check to SABA for $27,000. He

received a promissory note indicating that he and his wife would receive quarterly

payments for five years and a 50 percent share of the equity in the property when it was

sold in five years. The investment was to be secured by a first lien on the property. The

quarterly payments stopped in October 2010. In January 2011, William told Eric that he

did not have the money to pay him back. Eric never received paperwork indicating the

investment was used to purchase real property and never received any lien paperwork for

property in Georgia.

Otilia – Count 3

Otilia met the Avignones through a friend and purchased a life insurance policy

from them. In 2009, Otilia met with the Avignones. They suggested that she borrow

against her life insurance policy and use the money to invest in real estate in Georgia.

They told her they would purchase a block of properties from the government, turn them

around in three to five years, triple the money, and she would get half. In June 2009,

Otilia invested $70,000. She received a promissory note for that amount and was

promised quarterly payments of $2,100. In February 2010, Otilia made a $245,000

investment with the Avignones. At some point, she made another $38,760 investment.

4
Otilia initially received some payments, but in March 2011 all payments on her

investments stopped. Otilia never received any paperwork showing that property had

been purchased with her funds or paperwork showing that she was a first lien holder on

any property.

Monroe – Count 5

After meeting William through a mutual friend, Monroe purchased a life insurance

investment from William. In June 2009, William told Monroe that his company, SABA,

used investor funds to purchase distressed properties in Georgia, fix them up, and rent

them out. William promised Monroe that if he invested in the plan, Monroe would

receive first lien status on the title of each property purchased. William promised

quarterly payments on the investment and 50 percent of the profit when the properties

were sold. Monroe invested a total of $150,000. Monroe initially received some

payments, but the payments stopped. In July 2011, William told Monroe that the

payments would resume soon, but Monroe never received any more payments.

Carlos – Count 8

Carlos met the Avignones through Otilia. In 2010, Carlos met with the Avignones

and gave his $217,000 retirement sum to the Avignones. The Avignones used $200,000

to invest in property located in Georgia and returned the balance so Carlos could pay off

creditors. In return, Carlos received a promissory note that guaranteed him $2,000 per

month. He received several months of payments, but the payments were then cut in half

and ultimately stopped. William never returned Carlos's telephone calls and Carlos

discovered that the SABA office had been vacated.

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 Frank – Count 10

Frank met the Avignones at church and considered them his "best church friends."

In early 2010, Frank sought financial advice from the Avignones as he was facing

foreclosure of his home. In May 2010, Frank gave the Avignones $54,000 to invest in

real estate in a southern state. In return, he received a promissory note for $54,000 and

was promised quarterly interest payments. Frank received payments for about eight

months when the payments stopped.

Investigation

Investigators found real estate in Georgia in the name of Susan and SABA. There

were no liens in favor of any of the victims. SABA was registered to Susan and she

signed most of the checks that depleted the victims' investment funds. Investigators

traced the victims' investments to a SABA account, other accounts connected to the

Avignones, or Susan's personal account. The Avignones used the investment funds for

utilities, car payments, entertainment, and restaurants.

DISCUSSION

I. PROBATION DENIAL

A. Background Facts

The probation department prepared reports noting that the Avignones were

presumptively ineligible for probation because they took funds exceeding $100,000 and

finding that the case was not unusual so as to warrant probation. The probation reports

recommended prison terms for William and Susan, respectively, of 11 and eight years.

At sentencing the trial court indicated that it had read and considered the probation

6
reports, Susan's and William's statements in mitigation, the People's sentencing

memorandums, and victims' statements.

William's defense counsel admitted that William used the funds for personal use,

but argued that the scheme was "a legitimate effort" with a flawed execution. Counsel

noted that the Avignones "lost everything." Counsel argued that William's offenses did

not rise to the level of conduct requiring imprisonment and that a custodial sentence

would negatively affect William's recent medical issues. Susan's defense counsel argued

that Susan was less culpable because she did not personally make any promises to the

victims. Counsel noted that the entire case turned on the Avignones' original intent,

arguing that Susan did not intend to defraud the victims; rather, the plan "fell apart."

The trial court noted that it had given the case "significant thought" and, in reading

all the documents, found that the Avignones "behaved in a highly narcissistic fashion. I

think their conduct was self-centered." The trial court recognized it was possible that the

Avignones did not initially intend to outright steal money from the investors, but that

they decided to make risky investments because it was not their money. The court

rejected the notion that the Avignones were "well-intended entrepreneurs." The court

found the Avignones to be "opportunists" who continued to steal from the victims even

when the investments started to fail.

The trial court noted that the Avignones had no significant records, were church-

going people, had many fine qualities, and that the conduct of other people may have

contributed to the victims' losses, but stated, "I don't think [that] goes very far in terms of

mitigation." The court concluded that Susan and William were equally culpable, because

7
Susan "knew exactly what was going on. [William] did the talking [and Susan] brought

the people in, at least on some of these occasions." The court ultimately found the

Avignones eligible for probation, but denied probation, stating, "This is not a case for

probation."

B. Analysis

The Avignones assert that the trial court abused its discretion in denying

probation. Susan claims the trial court abused its discretion in denying probation based

on its mistaken belief that she was equally culpable. William separately contends that the

court's implicit finding that the case was not unusual under California Rules of Court,3

rule 4.413 is mistaken and that the court failed to consider many of the unusual

circumstances presented by the defense. They both contend that the record does not

support the court's conclusion that they continued to bring in investors when it was clear

to them the investment scheme was not going well. They also assert that the factors in

support of probation outweighed the factors favoring the denial of probation.

Probation is an act of clemency, not a matter of right. (People v. Wardlow (1991)

227 Cal.App.3d 360, 365.) Under the determinate sentencing law, the trial court's

decision to grant or deny probation is to be guided by criteria concerning the offense and

the offender, such as those laid out in rule 4.414. (See § 1203, subd. (b)(1), (3).) These

factors include the seriousness of this crime as compared to other instances of the same

offense, the degree of defendant's culpability as an active or passive participant, the

3 All rule references are to the California Rules of Court.

8
vulnerability of the victim, whether the defendant inflicted emotional or physical injury,

the defendant's prior criminal record, and the defendant's remorse and willingness to

comply with probation. (Rule 4.414(a) & (b).)

The trial court has broad discretion to grant or deny probation and we will not set

aside a decision to deny probation absent a clear showing that the trial court abused its

discretion. (People v. Warner (1978) 20 Cal.3d 678, 683, superseded by statute on

another ground in People v. Douglas (1999) 20 Cal.4th 85, 92, fn. 6.) Discretion, as

defined in the pertinent case law, is " 'controlled by sound principles of law, . . . free from

partiality, not swayed by sympathy or warped by prejudice . . . .' " (People v. Bolton

(1979) 23 Cal.3d 208, 216.) A court abuses its discretion when its order " ' "exceeds the

bounds of reason, all of the circumstances being considered." ' " (People v. Superior

Court (Du) (1992) 5 Cal.App.4th 822, 831.) The burden is on the defendant to clearly

show that the denial of probation was irrational or arbitrary. (Ibid.)

Susan contends she did not actively participate in either setting up the investment

plan or convincing the investors to invest in the plan. Accordingly, she claims the record

does not support the trial court's conclusion that she was equally culpable. The People

assert that Susan forfeited this claim by failing to object on the asserted ground below.

Susan responds that any objection would have been futile because the position the trial

court took on the factors in mitigation and aggravation was the opposite of the position

defense counsel took in arguing for probation. We agree that any objection would have

been futile as the record supports Susan's argument. Nonetheless, we find no abuse of

discretion.

9
 As a preliminary matter, Susan told the probation officer that "[w]e set up the

business in good faith." This statement shows that Susan participated in setting up the

business. Susan's interaction with each victim differed. Eric told an investigator that the

Avignones visited his home in Arizona and both spoke to him and his wife about the

investment and recommended that Eric and his wife refinance their home and invest in

life insurance policies with them.

Frank and Otilia could not recall any specifics about their respective meetings with

the Avignones, but each concluded that William did most of the talking. Frank believed

that Susan "was an integral part of everything." Susan typed up the agreement and

participated at the meeting. Otilia stated that Susan conducted some of the negotiations

and she remembered "one session where . . . we were talking about a return on some

monies and she berated, belittled [William] in front of me and I thought wow, and he just

sat there and took it. So that sort of gave me a clue that she was behind it."

Carlos and Monroe indicated that William did the talking, but that Susan was

present at the meetings. Monroe "normally" spoke to Susan about checks and when his

payments stopped, he spoke with Susan who set up an appointment with William.

William met with Monroe and told him that the money was "tied up in the courts or

something like that."

While this evidence shows that William was primarily responsible for obtaining

investors, it does not support a conclusion that Susan did not actively participate in the

scheme. Rather, Susan attended and took part in meetings. SABA was registered in

Susan's name and she signed most of the checks that depleted the victims' investment

10
funds. This evidence supports the trial court's conclusion that Susan was equally

culpable with William for the failed investment scheme.

William contends the trial court failed to consider many of the unusual

circumstances presented by the defense and thus mistakenly found the case was not

unusual under rule 4.413. The record does not support this assertion.

The Penal Code sets forth certain classifications of offenders to whom probation

may not be granted except in unusual circumstances where the interests of justice would

best be served if the person is granted probation. (§§ 1203, subd. (e), 1203.045-

1203.049.) As relevant here, probation shall not be granted to any person convicted of a

crime of theft of an amount exceeding $100,000. (§ 1203.045, subd. (a).) Where a

defendant comes under a statutory provision prohibiting probation except in unusual

circumstances, the court applies the criteria in rule 4.413(c) to evaluate whether the

statutory limitation on probation has been overcome. (Id., subd. (b).) Rule 4.413(c) is

divided into two subsections: (1) "Facts relating to basis for limitation on probation," and

(2) "Facts limiting defendant's culpability." (Boldface omitted.)

Rule 4.413(c)(1) provides that the court may consider facts or circumstances

indicating that the basis for the statutory limitation on probation, although technically

present, is not fully applicable to the case, such as the crime being less serious than other

cases involving the same probation limitation, the defendant has no recent record of

committing similar crimes or crimes of violence, the current offense is less serious than a

prior felony conviction that is the cause of the limitation on probation, and the defendant

has been free from incarceration and serious violation of the law for a substantial time

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before the current offense. Here, William committed serious offenses. He stole

significant sums of money from multiple victims using his friendship and position of

trust. As the trial court noted, "The monetary losses were significant. And the personal

losses were even bigger. That is, the grief and the pain and the feeling of betrayal that

one would get from trusting someone that you met at church with your life savings and

then being at that age in one's life . . . ." William was also on formal probation since

2013 for forgery, passing a nonsufficient fund check, burglary, grand theft of personal

property, and receiving stolen property in connection with passing a bad check at a bank.

Rule 4.413(c)(2) provides the court may consider facts or circumstances that did

not amount to a defense but reduce "the defendant's culpability for the offense . . . ." It

lists three possible circumstances. The first one concerns a defendant committing crimes

"under circumstances of great provocation, coercion, or duress . . . ." (Id., subd.

(c)(2)(A).) This category does not apply as there is no evidence suggesting William

committed the various offenses under any of these three scenarios. To the contrary,

William committed the offenses over the course of years and used his friendship with the

victims to commit the crimes and escape detection for as long as possible. The second

category relates to crimes "committed because of a mental condition not amounting to a

defense . . . ." (Id., subd. (c)(2)(B).) There is no evidence showing this category applies.

In the third category a court may consider whether the "defendant is youthful or

aged" and whether he or she "has no significant record of prior criminal offenses." (Rule

4.413(c)(2)(C).) Age 59 at the time of the sentencing hearing, William was not youthful

or significantly aged. Additionally, while William does have a prior conviction, his

12
criminal record is not significant. William points out that he feels terrible for what

happened, some of the invested funds were spent on real property in Georgia, and the

victims did receive some of the promised payments. William included these facts in his

statement of mitigation. The record shows the trial court appropriately exercised its

discretion after reviewing all submitted materials, listening to argument, and giving the

matter "significant thought." On balance, William has presented no persuasive argument

showing the trial court was required to find this was an unusual case overcoming the

statutory prohibition on probation.

The Avignones both contend that the record does not support the court's

conclusion that they continued to bring in investors when it was clear to them the

investment scheme was not going well. The People respond that the Avignones forfeited

this claim by failing to object on this ground below. For purposes of analysis, we assume

that the issue is not forfeited and address the merits because the evidence supports the

trial court's conclusion.

Eric and his wife invested $27,000 in April 2009, until payments slowed and then

stopped in May 2010. During the time when the Avignones' payments to Eric and his

wife had slowed, they convinced Carlos to invest $200,000 (January 2010) and Otilia to

invest an additional $245,000 (February 2010). During the time when the Avignones had

stopped making payments to Eric and his wife, Frank invested $54,000 (May 2010) and

$20,000 (April 2011). These facts amply support the trial court's finding that the

Avignones continued to bring in new investors even after they knew their investment

plan was beginning to fail.

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 Finally, the Avignones assert that the factors in support of probation outweighed

the factors favoring the denial of probation. The Avignones, however, were

presumptively ineligible for probation under section 1203.045, subdivision (a). As

discussed ante, the trial court did not abuse its discretion in finding the case was not

unusual. It is only after a trial court resolves the first test in favor of eligibility that it

must determine whether probation is appropriate under the circumstances. (See rules

4.413(b), 4.414; People v. Superior Court (Du), supra, 5 Cal.App.4th at p. 830.)

First, it is clear from the court's comments that it considered the factors listed in

rule 4.414 (as set forth in the probation reports) and did not find the case warranted a

grant of probation whether the Avignones were eligible or not. In any event, the

Avignones fail to convince us the trial court acted irrationally in denying probation.

II. UNAUTHORIZED SENTENCE

A. Background Facts

The information alleged white collar crime sentencing enhancements under

section 186.11, subdivision (a)(2) and (3) against the Avignones. It further alleged that

the Avignones were subject to mandatory state prison incarceration under section 1170,

subdivisions (f) and (h)(3). At the start of the change of plea hearing, the trial court

stated it had discussed its indicated sentence with counsel during "a series of unreported

14
chambers conferences" and when they met today, the court had given "an indicated

sentence . . . if there were a plea to the sheet."4 The trial court informed the Avignones:

" . . . I will not impose a sentence of more than six years of imprisonment if I
impose a term of imprisonment.

"Under these counts and allegations as you are admitting them, any term of
imprisonment that would be imposed would normally have to be served in the
California Department of Corrections and Rehabilitation, as opposed to the local
San Diego County Jail.

"I have told all counsel and I will tell you folks that I believe that I have the
authority to strike the punishment on the allegation that require[s] this term of
imprisonment to be served in the state prison.

"If I do that, that means that any term of imprisonment that I do impose would be
served in the custody of the San Diego County Sheriff, rather than in the
Department of Corrections and Rehabilitation.

"This is I think regarded by most people who are defendants as a material benefit,
because it means that any term of imprisonment that does get imposed will be
served here locally, rather than going into the state prison." (Italics added.)

The court then stated that if it gave "a term of imprisonment, [it would] not send

[them] to the Department of Corrections and Rehabilitation. Any sentence would be

served in the custody of the San Diego County Sheriff." The court summarized as

follows: "The bottom line is, folks, we're going to have a sentencing hearing and your

sentence could be anywhere between probation, local time anywhere between zero and

one year up to a term of imprisonment for six years, which could at first be [a] straight

six-year term of local imprisonment or it could be a term where I split it and order a

4 A " 'plea[] to the sheet' " represents a plea made "in the hope that the court will
show leniency," rather than "for a consideration which would support a contract."
(People v. Marsh (1984) 36 Cal.3d 134, 140.)

15
certain amount of time to be served in custody and a certain amount of time to be served

under supervision."

Thereafter, the Avignones did not plea to the sheet. Rather, William admitted to

counts 2, 3, 5, 8, and 10 and the section 186.11, subdivision (a)(2) allegation (the white

collar enhancement) attached to count 2. Susan admitted to the same counts and the same

allegation attached to count 10. The plea agreement stated that the balance of the charges

would be dismissed. At the sentencing hearing, the trial court struck the white collar

enhancements. It then sentenced the Avignones to an aggregate term of five years four

months to be served in the custody of the sheriff. The court imposed a split sentence,

ordering that one year four months of the imposed sentence would be served in the

community under mandatory supervision.

B. Analysis

"A split sentence is a hybrid sentence in which a trial court suspends execution of

a portion of the term and releases the defendant into the community under the mandatory

supervision of the county probation department. Such sentences are imposed pursuant

to . . . section 1170, subdivision (h)(5)(B)(i), a provision originally adopted as part of the

'2011 Realignment Legislation addressing public safety.' (Criminal Justice Realignment

Act of 2011 (Realignment Act), operative Oct. 1, 2011, as added by Stats. 2011, 1st Ex.

Sess. 2011-2012, ch. 12, § 1.)" (People v. Camp (2015) 233 Cal.App.4th 461, 464, fn. 1.)

" 'Under the Realignment Act, qualified persons convicted of nonserious and nonviolent

felonies are sentenced to county jail instead of state prison. [Citation.] Trial courts have

discretion to commit the defendant to county jail for a full term in custody, or to impose a

16
hybrid or split sentence consisting of county jail followed by a period of mandatory

supervision.' " (Id. at p. 467.)

The People assert that the trial court imposed an unauthorized sentence as it lacked

discretion to strike the white collar enhancements under section 1385, and thus could not

impose a split sentence. Susan concedes the error, while William argues that, based on

the language of the relevant statutes, because the court dismissed the punishment on the

white collar enhancements, its imposition of a local prison sentence was duly authorized

by the Penal Code. The Avignones both argue that, if we find the sentence to be

unauthorized, they should be allowed to withdraw their guilty pleas.

Section 1385, subdivision (a) provides in part: "The judge or magistrate may,

either of his or her own motion or upon the application of the prosecuting attorney, and in

furtherance of justice, order an action to be dismissed." Section 1385 may be used to

dismiss individual counts in accusatory pleadings, sentencing enhancements, allegations

that the defendant has suffered a prior conviction, and allegations that the defendant has

suffered a prior " 'strike' " within the meaning of the "Three Strikes" Law. (In re Varnell

(2003) 30 Cal.4th 1132, 1134.) Section 1385, subdivision (c)(1) authorizes the trial court

to strike or dismiss an enhancement, or to instead strike the additional punishment for

that enhancement in the furtherance of justice.

Nonetheless, "[t]he judicial authority to dismiss a criminal action or allegation in

furtherance of justice is statutory and may be withdrawn by the Legislature. [Citation.]

A court may exercise such authority unless, in a given context, the Legislature has clearly

evidenced a contrary intent. [Citations.] Courts will not interpret another statute as

17
eliminating the power to dismiss under section 1385 unless there is clear legislative

direction to that effect. [Citation.] But the Legislature can provide such clear direction

without expressly referring to section 1385." (People v. Chavez (2016) 5 Cal.App.5th

110, 117.)

The Realignment Act changed the definition of a felony to an offense punishable

by death, imprisonment in state prison, or by " 'imprisonment in a county jail under the

provisions of subdivision (h) of Section 1170.' " (People v. Lynch (2012) 209

Cal.App.4th 353, 357 (Lynch), citing § 17, subd. (a).) A defendant sentenced under the

Realignment Act is generally committed to county jail instead of state prison. (People v.

Griffis (2013) 212 Cal.App.4th 956, 961.) Section 1170, subdivision (h) provides:

"(1) Except as provided in paragraph (3), a felony punishable
pursuant to this subdivision where the term is not specified in the
underlying offense shall be punishable by a term of imprisonment in
a county jail for 16 months, or two or three years.

"(2) Except as provided in paragraph (3), a felony punishable
pursuant to this subdivision shall be punishable by imprisonment in
a county jail for the term described in the underlying offense.

"(3) Notwithstanding paragraphs (1) and (2), where the defendant
(A) has a prior or current felony conviction for a serious felony
described in subdivision (c) of Section 1192.7 or a prior or current
conviction for a violent felony described in subdivision (c) of
Section 667.5, (B) has a prior felony conviction in another
jurisdiction for an offense that has all the elements of a serious
felony described in subdivision (c) of Section 1192.7 or a violent
felony described in subdivision (c) of Section 667.5, (C) is required
to register as a sex offender pursuant to Chapter 5.5 (commencing
with Section 290) of Title 9 of Part 1, or (D) is convicted of a crime
and as part of the sentence an enhancement pursuant to Section
186.11 is imposed, an executed sentence for a felony punishable
pursuant to this subdivision shall be served in state prison." (Italics
added, boldface omitted.)

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 Subdivision (f) of section 1170 provides:

"Notwithstanding any other provision of this section, for purposes of
paragraph (3) of subdivision (h), any allegation that a defendant is
eligible for state prison due to a prior or current conviction, sentence
enhancement, or because he or she is required to register as a sex
offender shall not be subject to dismissal pursuant to Section 1385."
(Italics added, boldface omitted.)

The white collar enhancements that the Avignones admitted require an additional

term of punishment of two, three, or five years "in the state prison" for a pattern of related

felony conduct involving the taking of, or resulting in the loss of more than $500,000.

(§ 186.11, subd. (a)(2).) "The additional prison term provided in paragraph (2) of

subdivision (a) shall be in addition to any other punishment provided by law, including

Section 12022.6, and shall not be limited by any other provision of law." (Id., subd.

(b)(2), italics added.)

Section 1170, subdivision (h) makes suffering a white collar enhancement a

disqualifying factor for sentencing to county jail under that statute. (People v. Sheehy

(2014) 225 Cal.App.4th 445, 450 [section 1170 requires that a prison sentence be

imposed if a defendant, among other things, has sustained a section 186.11 aggravated

white collar crime enhancement]; Lynch, supra, 209 Cal.App.4th at p. 357 [same].)

Section 1170, subdivision (f) provides that the trial court's striking of the white collar

enhancement was unauthorized. Read together, the plain language of section 186.11 and

subdivisions (f) and (h)(3) of section 1170 provide that the trial court lacked the authority

to strike the white collar enhancements and that any sentence imposed on the

19
enhancements must be served in state prison, not local custody. Accordingly, the trial

court's split sentence was unauthorized.

William seeks to avoid this result arguing that "the Legislature did not mean to

send every defendant who admits a section 186.11 enhancement to state prison" claiming

this interpretation renders the language provided in section 1170, subdivision (h)(3)

meaningless. We disagree. As we indicated, subdivisions (f) and (h)(3) of section 1170

must be read together. Subdivision (f) of section 1170 provides that the trial court lacked

the authority to strike the white collar enhancement allegations. Subdivision (h)(3) of

section 1170 in turn provides that any sentence imposed on the white collar enhancement

allegations must be served in state prison.

The Avignones argue in their reply briefs that, if we conclude that they received

unauthorized sentences, they should be allowed the opportunity to withdraw their pleas.

We invited the Attorney General to file a supplemental letter brief addressing this issue.

The People responded, noting that the Avignones did not plead guilty in exchange for a

specific sentence. Rather, the trial court gave an indicated sentence which contained an

unauthorized sentencing choice. The People argue that the Avignones should not be

allowed to withdraw their guilty pleas because they can properly be sentenced to a prison

term of no less than six years in accordance with the court's indicated sentence. Thus, the

proper remedy is to remand the matter for the trial court to impose a lawful sentence in

accordance with the indicated sentence. Alternatively, the People assert we should

remand the matter with leave for the Avignones to file a motion to withdraw their pleas

20
whereby the trial court may determine whether the pleas were based on their belief that

they would serve any time in jail rather than prison.

An indicated sentence may be part of a plea agreement with the district attorney

(see, e.g., People v. Buttram (2003) 30 Cal.4th 773, 777, fn. 2) or may be stated by the

court without the prosecutor's agreement (People v. Superior Court (Ramos) (1991) 235

Cal.App.3d 1261, 1271). In the latter circumstance, the trial court informs a defendant

"what sentence he [or she] will impose if a given set of facts is confirmed, irrespective of

whether guilt is adjudicated at trial or admitted by plea." (People v. Superior Court

(Smith) (1978) 82 Cal.App.3d 909, 915-916.) An indicated sentence falls "within the

boundaries of the court's inherent sentencing powers and, in contrast to plea bargains,

prosecutorial consent is not required." (Ramos, at p. 1271.)

The trial court here did not expressly state that its "indicated sentence

represent[ed] the court's best judgment as to the appropriate punishment for [these]

defendant[s] and [these] offense[s], regardless of whether guilt is established by plea or at

trial." (People v. Clancey (2013) 56 Cal.4th 562, 576 (Clancey).) Accordingly, the

record is ambiguous as to whether the trial court gave a proper indicated sentence or

engaged in unlawful judicial plea bargaining by offering the Avignones more lenient

treatment or another inducement to enter a guilty plea. (Id. at p. 575.) In Clancey, our

high court concluded that a conditional reversal was the appropriate remedy to resolve

the ambiguity. (Id. at p. 578.)

As we discussed, the trial court lacked the authority to impose its indicated

sentence. Additionally, the record suggests that the trial court may have engaged in

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improper judicial plea bargaining as it expressly stated that its "indicated sentence would

be appropriate if there were pleas and acceptance of responsibility. [¶] I've discussed

with all counsel the fact that the court makes—places considerable emphasis on

acceptance of responsibility when it comes down to a sentencing decision. [¶] Of course

each client, each defendant, has a complete right to go to a jury trial. And if they were

successful, then of course acceptance of responsibility is not an issue because they would

have been found not guilty. [¶] On the other hand, as I've explained to counsel, if they

were not successful and the trial did not go the way the defense would like it to go, then

their exposure is considerable, and that is made—if not worse, there's certainly no benefit

for acceptance of responsibility if this comes after a trial." A proper indicated sentence

does not occur where "the court extended leniency to defendant because of his plea."

(Clancey, supra, 56 Cal.4th at p. 578.)

Under these circumstances, the Avignones must be allowed the opportunity to

withdraw their pleas and admissions. (See In re Williams (2000) 83 Cal.App.4th 936,

944-945 [where agreed-upon sentence exceeds court's jurisdiction, the court lacks power

to effectuate the bargain, and defendant's remedy is to withdraw the plea].) If the

Avignones withdraw their pleas, all original charges and allegations will be reinstated.

III. ELECTRONIC SEARCH CONDITION

The Avignones contend that the mandatory supervision condition requiring them

to submit to a Fourth Amendment search of their computers and recordable media is

unreasonable under People v. Lent (1975) 15 Ca1.3d 481, and unconstitutionally

overbroad. This argument has been rendered moot by our determination that the

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Avignones received an unauthorized sentence and are thus ineligible for mandatory

supervision. (Ante, pt. II.)

IV. RESTITUTION TO OTILIA

At the restitution hearing, the trial court determined that the losses of each victim

should be calculated by subtracting the amount of money each victim received in

quarterly principal and interest payments from the total amount of their investment. As

to Otilia, the parties agreed that she invested a total of $355,000 with the Avignones. It

was undisputed that Otilia received six principal and interest payments of $8,400

($50,400) plus nine payments of $2,100 dollars ($18,900), for a total of $69,300. The

parties also agreed that the Avignones transferred a number of properties to Otilia with a

stipulated value of $203,500. Using the trial court's formula, Otilia was entitled to

restitution as follows: $355,000 – ($69,300 + $203,500) = $82,200.

At the restitution hearing the parties and the trial court erroneously concluded that

Otilia had received principal and interest payments totaling $63,026. The court then

made a math error to conclude that Otilia was not owed any restitution. The parties

brought the math error to the court's attention and it recalculated the restitution owed to

Otilia as follows: $355,000 – ($63,026 + $203,500) = $89,474. The parties agree, and

we concur, that the trial court's finding that Otilia was paid back $63,026 is not factually

supported by the record and that the correct amount is $69,300.

This argument is not moot in light of our reversal of the judgments as the

Avignones may decide to not withdraw their guilty pleas. Should the Avignones decide

to not withdraw their guilty pleas, the judgments shall be reinstated and the restitution

23
order must be modified to reflect that Otilia is entitled to a restitution award in the

amount of $82,200.

DISPOSITION

For the reasons stated ante, the judgments are reversed and the case remanded so

that defendants may decide whether to withdraw their guilty pleas. If defendants

withdraw their pleas, all original charges and enhancements shall be reinstated and trial

or other appropriate disposition shall proceed.

If defendants choose to not withdraw their pleas, then the judgments shall be

reinstated and defendants resentenced. The restitution order must be modified to reflect

that Otilia is entitled to a restitution award in the amount of $82,200.

NARES, J.

WE CONCUR:

McCONNELL, P. J.

O'ROURKE, J.

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Filed 11/8/17
CERTIFIED FOR PARTIAL PUBLICATION*

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D070012

Plaintiff and Appellant, (Super. Ct. No. SCD250640)

v.

SUSAN JOY AVIGNONE et al.,

Defendants and Appellants. NO CHANGE IN JUDGMENT

THE PEOPLE, D070388

Plaintiff and Respondent, (Super. Ct. No. SCD250640)

v. ORDER MODIFYING OPINION
AND CERTIFYING OPINION
SUSAN JOY AVIGNONE, FOR PARTIAL PUBLICATION

Defendant and Appellant. NO CHANGE IN JUDGMENT

THE COURT:

It is ordered that the opinion filed herein on October 13, 2017, be modified as
follows:

1. Beginning on page 2, the four introductory paragraphs located between the
counsel listing and the General Factual Background on page 3 are deleted, along with
footnotes 1 and 2, and the following inserted in their place:

* Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for
publication with the exception of parts I, III, and IV.
 Susan Joy Avignone and William Alan Avignone (together the
Avignones) defrauded five investors out of more than $700,000 in a real
estate scheme. In exchange for dismissal of some of the charges, the
Avignones pleaded guilty to three counts of fraud in connection with the
offer, sale, and purchase of a security (Corp. Code, §§ 25401 & 25540,
subd. (b); counts 2, 8, 10) and two counts of grand theft of personal
property with a value of more than $950 (Pen. Code, § 487, subd. (a);
counts 3, 5). Susan admitted a section 186.11, subdivision (a)(2) allegation
attached to count 10 and a section 12022.6, subdivision (a)(1) allegation
attached to count 5. William admitted a section 186.11, subdivision (a)(2)
allegation attached to count 2, a section 12022.6, subdivision (a)(2)
allegation attached to count 3, and a section 12022.6, subdivision (a)(1)
allegation attached to count 5. At sentencing, the trial court struck the
section 186.11 enhancements and denied probation. It sentenced the
Avignones to an aggregate term of five years four months to be served in
the custody of the sheriff. The court imposed a split sentence, ordering that
one year four months of the imposed sentence would be served in the
community under mandatory supervision.

The Avignones separately appealed, contending the trial court
abused its discretion in denying probation. William also contends (1) the
electronic search condition was unreasonable and unconstitutionally
overbroad, and (2) the trial court improperly calculated a restitution order
as to one of the victims. The People assert that the Avignones' sentences
are unauthorized because the trial court did not have discretion to sentence
them to county jail, rather than prison.

In the published portion of this opinion, we agree that the trial court
imposed an unauthorized sentence because a white collar crime
enhancement is a disqualifying factor under the Criminal Justice
Realignment Act of 2011 (operative Oct. 1, 2011, as added by Stats. 2011,
1st Ex. Sess. 2011–2012, ch. 12, § 1). Accordingly, the trial court imposed
an unauthorized sentence as it lacked discretion to strike the white collar
enhancements under section 1385, and thus could not impose a split
sentence.

2
 In the unpublished portion of this opinion, we reject the Avignones'
argument that the trial court abused its discretion in denying probation.
The People concede that the trial court improperly calculated the restitution
for one of the victims. Finally, William's argument regarding the electronic
search condition is moot based on our conclusion that he received an
unauthorized sentence. We reverse the judgments and remand with
directions to allow the Avignones an opportunity to withdraw their guilty
pleas.
2. On line 7 of the first new paragraph following the parenthetical reference to
"(Pen. Code,)" insert a new footnote 1 to read:

Undesignated statutory references are to the Penal Code.

3. Following the first sentence, ending "in denying probation," of the second new
paragraph, insert a new footnote 2 to read:

We granted Susan's unopposed motion to consolidate the appeals.

There is no change in the judgment.

The opinion in the above-entitled matter filed October 13, 2017, was not certified
for publication. It appearing the opinion meets the standards for partial publication
specified in California Rules of Court, rule 8.1105(c), the request pursuant to rule
8.1120(a) for partial publication is GRANTED.

IT IS HEREBY CERTIFIED that the opinion meets the standards for partial
publication specified in California Rules of Court, rule 8.1105(c); and

ORDERED that the words "Not to Be Published in the Official Reports" appearing
on page 1 of said opinion be deleted and the opinion herein be published in part in the
Official Reports.

McCONNELL, P. J.

Copies to: All parties

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