People v. Markham CA1/5 ( 2022 )

Filed 8/5/22 P. v. Markham CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for pur-
poses of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
A162600
v.
CARRIE MARKHAM, (Napa County Super.
Ct. No. 19CR002167)
Defendant and Appellant.
Carrie Markham appeals from an order denying her
petition pursuant to Assembly Bill No. 1950 (AB 1950) to reduce
a three-year probation sentence she received following her no
contest plea to theft from an elder or dependent adult, her 86-
year-old mother (victim). (Pen. Code, § 368, subd. (d).)1 We
affirm.
I. FACTS AND PROCEDURAL HISTORY
A. Complaint and plea
On March 5, 2020, the Napa County District Attorney filed
an amended complaint charging appellant with three felony
offenses, including grand theft of personal property (count 1);
Except where otherwise indicated, all statutory references
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are to the Penal Code.
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theft from an elder or dependent adult (count 2); and identity
theft (count 3). (§§ 487, subd. (a), 368, subd. (d), 530.5, subd. (a).)
On the same day, appellant pled no contest to count 2—
theft from an elder or dependent adult—and the trial court
suspended imposition of sentence. (§ 368, subd. (d).) Pursuant to
a plea agreement that included a Harvey2 waiver as to counts 1
and 3, appellant was placed on three years’ probation.
B. Factual basis for the plea
Before entering the plea, the appellant and her attorney
agreed to, and the trial court accepted, a summary of police
reports (summary report) as the factual basis for appellant’s
crime.3 The summary report included the following information:
(1) In the early 2000’s, the victim was going to have a
major surgery and gave the appellant power of attorney in case
“something happened” to her. The appellant was not to spend
any of the victim’s money without the victim’s permission.
(2) At some time over the next 10 years, the appellant
allegedly stole approximately $20,000 from the victim. This
crime was never investigated or prosecuted by the authorities.
The victim and appellant had a falling out over the theft, but
later patched up their relationship before the charges in this
appeal were reported.
2 People v. Harvey (1979) 25 Cal.3d 754.
3The summary report was written by the probation officer
and located within the probation officer’s report for felony
presentencing.
2
(3) In 2018, the victim’s grandson (grandson) found that
the appellant had made numerous unauthorized charges to the
victim’s bank account over the previous year. The charges were
made through ATM withdrawals, transfers, and miscellaneous
service and retail transactions in the amount of nearly $40,000.
(4) Grandson discovered through an online credit report
that the victim had 25 credit cards in her name. Through further
investigation, grandson found out that the victim had asked the
appellant to destroy a stack of credit cards with accounts in the
victim’s name. At the time of the credit check, some of these
credit cards were open, some were closed, and some were maxed
out. The victim was unaware these accounts still existed.
(5) After finding out about the unauthorized charges, the
victim hired an attorney to change her beneficiaries. The
attorney uncovered that, unbeknownst to the victim, a $55,000
loan had been taken out against the victim’s home. The loan
documentation showed a signature matching the appellant’s
handwriting.
(6) Grandson called the appellant to perform a pretext
phone call. During the call, the appellant said, “ ‘I fucked
everything up.’ ” She went on to say she took out the loan for
$55,000 in order to support the victim, and the ATM withdrawals
were a result of her (the appellant) being scammed.4 Grandson
also asked appellant about the victim’s missing medication and
appellant said she had flushed it down the toilet.
Appellant admitted that she was a victim of a “romantic
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scam with someone overseas.”
3
(7) A search warrant was executed at the appellant’s
residence, and appellant was interrogated. After being read her
rights, appellant said her reason for taking the money was
because she had been scammed. She also admitted to getting
loans on some of the victim’s jewelry before saying she was sorry
for what she had done. During the search of appellant’s home, a
prescription for the victim was located, along with two iPhones,
pawn slip receipts for loans, a private loan letter for $55,000, a
FedEx envelope with miscellaneous gift cards, and FedEx
documents with communications between appellant and the
person that allegedly committed the scam against her.
C. The basis for the restitution order
The Probation Officer’s Report for Felony Presentencing
made an assessment indicating “the defendant used her elderly
mother[’s] credit cards for personal use, took out a home loan on
her mother[’s] residence, and stole her medication and jewelry.
[¶] . . . She knowingly and repeatedly victimized her elderly
mother[,] and it does not appear this was the first time she ha[d]
stolen from her.”
In August 2019, a Restitution Request Form was signed by
the victim and submitted to the Napa County District Attorney’s
Office, requesting restitution in the amount of $163,134.03. An
updated filing by grandson indicated that after working with the
District Attorney’s Office, grandson was able to retrieve all the
jewelry and silver that appellant had stolen from the victim. In
addition, Bank of America agreed to overturn $39,600 in credit
card charges. By this time, the victim had passed away, making
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grandson the “derivative victim” who “had to pay off the
remaining debt charges as well as the private loan in order to sell
[victim’s] residence.” Consequently, there was still restitution
owed to the grandson in the amount of $97,034.03.
In June 2020, the trial court sentenced appellant to three
years of formal probation and 90 days in county jail.
D. Appellant’s petition to reduce her probation term
In January 2021, AB 1950 went into effect. AB 1950
amended section 1203.1 to limit the length of probation for most
felony cases to two years. (§ 1203.1, subd. (a), as amended by
Stats. 2020, ch. 328, § 2.) Exempt from these limits are offenses
that include “specific probation lengths within [their] provisions.”
(§ 1203.1, subd. (l)(1).)
In March 2021, appellant filed a petition pursuant to AB
1950 (petition), where she asked the trial court to modify her
probationary term from three to two years as set forth in
amended section 1203.1, subdivision (a).
In May 2021, following a contested hearing, the trial court
denied appellant’s petition, stating “the Court is going to deny
the motion to modify probation. I’m simply finding that the
victim in this case falls within the definition under [Family Code
section] 6211. Therefore, [Penal Code section] 1203[.]097 would
apply.” The appellant subsequently filed a timely notice of
appeal.
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II. DISCUSSION
Appellant argues the amendments to section 1203.1 made
pursuant to AB 1950 should be applied retroactively to her case.
She further contends that, since the crime she was convicted of
(§ 368, subd. (d)) did not specify a probation length within its
provisions, her probation must be reduced from three to two
years. Since appellant’s claim relies entirely on section 1203.1,
we must first address whether the amendments AB 1950 made to
section 1203.1 were meant to be applied retroactively. (§ 1203.1,
as amended by Stats. 2020, ch. 328, § 2.)
A. AB 1950 applies retroactively
The appellant argues, and respondent does not dispute,
that AB 1950’s modifications to section 1203.1 apply retroactively
to appellant’s case. (People v. Quinn (2021) 59 Cal.App.5th 874,
879–885; People v. Sims (2021) 59 Cal.App.5th 943, 955–964.)
We agree.
The parties disagree, however, whether the statute which
appellant was convicted of violating (§ 368, subd. (d)), qualifies as
an exception to the general rule limiting probation length in
felony cases to two years.
B. “Specific probation lengths” exception to AB 1950
Section 1203.1, subdivision (l) provides several exceptions
to the general rule that limits probation in most felony
convictions to two years. Applicable here is the exception made
for an offense that “includes specific probation lengths within its
provisions.” (§ 1203.1, subd. (l)(1).)
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Appellant contends the statute under which she was
convicted, section 368, subdivision (d), does not contain a
“ ‘specific probation length[] within its provisions,’ ” and thus the
exception does not apply and her probation term must be reduced
from three to two years. Appellant is incorrect. Although section
368, subdivision (d) does not itself state a probation length, it
operates in tandem with the sentencing statute of section
1203.097, which requires a three-year probation term when the
crime has been committed against certain victims. Under
established precedent, this satisfies the section 1203.1,
subdivision (1)(l) exception.
Our colleagues in Division Four confronted a similar
situation in People v. Rodriguez (2022) 79 Cal.App.5th 637(Rodriguez). Pursuant to a negotiated plea, Rodriguez was
convicted of assaulting his girlfriend with force likely to produce
great bodily injury, a violation of section 245, subdivision (a)(4).
(Rodriguez, supra, at p. 640.)
Rodriguez, who was placed on three years’ formal
probation, later contended his probation term should be reduced
to two years pursuant to AB 1950 because Penal Code section
245, subdivision (a)(4) (like Penal Code section 368, subdivision
(d) here) does not contain a specific probation length within its
provisions. Our colleagues determined that Rodriguez’s conduct
fell within Penal Code section 1203.097, which specifies that if a
person is granted probation for a crime in which the victim is a
person as defined in Family Code section 6211, probation must be
for a minimum of 36 months. (Rodriguez, supra, 79 Cal.App.5th
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at p. 644; Pen. Code, § 1203.097, subd. (a)(1).) The court observed
that the fact Penal Code section 245, subdivision (a)(4) did not
include a specific probation length was “not material,” observing
that “the Penal Code often separates the punishment provisions
from the crime.” (Rodriguez, supra, at p. 644.) As a result, “a
penal statute that works in tandem with a separate sentencing
statute—separate in form, but not in function—is exempt from
[AB 1950’s] probation limits.” (Ibid.) Since Rodriguez’s offense
qualified as a “domestic violence offense” under Penal Code
section 1203.097, he was not entitled to have his probation term
reduced from three to two years. (Ibid.)
We fully concur with our colleagues’ reasoning in
Rodriguez. We next address whether, as in Rodriguez,
appellant’s conduct as described in the summary report 5 qualifies
as domestic violence under section 1203.097, thereby mandating
a minimum 36-month term of probation.
C. Applicability of section 1203.097 minimum probation
term
As previously mentioned, the trial court denied the petition
because it found the victim qualified as a “victim” within the
5As previously mentioned, appellant and her counsel
stipulated that the summary report established a factual basis
for her plea. In addition, appellant agreed to a Harvey waiver
entitling the court to consider her entire criminal history
including any unfiled or dismissed charges, for example
conditionally dismissed count 1 (grand theft; § 487, subd. (a)) and
count 3 (identity theft; § 530.5, subd. (a)). (People v. Goulart
(1990) 224 Cal.App.3d 71, 80; People v. Martin (2010) 51 Cal.4th
75, 77 [Harvey waivers applicable to probation conditions].)
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definition of Family Code section 6211, making Penal Code
section 1203.097 applicable. Penal Code section 1203.097,
subdivision (a) states that “[i]f a person is granted probation for a
crime in which the victim is a person defined in Section 6211 of
the Family Code, the terms of probation shall include . . . [¶] . . .
[a] minimum period of probation of 36 months, which may
include a period of summary probation as appropriate.” (Italics
added.) With this finding, the “specific probation lengths”
exception (Pen. Code, § 1203.1, subd. (l)(1)) applied. (Rodriguez,
supra, 79 Cal.App.5th at p. 644.)
The question comes down to whether the court erred in
finding that the victim was a person described in Family Code
section 6211. Family Code section 6211 refers to “abuse
perpetrated against” a list of persons including, in subdivision (f),
“[a]ny . . . person related by consanguinity or affinity within the
second degree.” (Italics added.) There is no dispute that the
consanguinity requirement was met here, because the victim was
appellant’s mother.
The term “abuse” as used in Family Code section 6211 is
defined in Family Code section 6203, subdivision (a)(4) as
including “any behavior that has been or could be enjoined
pursuant to Section 6320.” Such abuse is not limited to the
infliction of physical injury or assault. (Fam. Code, § 6203, subd.
(b).) Under Family Code section 6320, subdivision (a), a “court
may issue an ex parte order enjoining a party from . . .
impersonating as described in Section 528.5 of the Penal Code
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[and] falsely personating as described in Section 529 of the Penal
Code.” (Italics added.)
Appellant contends that she did not “abuse” her mother as
defined in Family Code section 6320 because she was not
convicted of a violation of Penal Code section 528.5
(impersonation of person on Internet Web site or by other
electronic means) or Penal Code section 529 (false personation of
another). However, an injunction under Family Code section
6320 does not require a “conviction” under Penal Code sections
528.5 or 529—only behavior that is “described in” those sections.
(Fam. Code, § 6320, subd. (a).)
Substantial evidence supports the conclusion that
appellant’s behavior constituted “falsely personating as described
in” Penal Code section 529.
Section 529, subdivision (a)(3) prohibits a person from
falsely personating another “and in that assumed character” does
an act which, “if done by the person falsely personated” might
make that person “become liable to any suit or prosecution, or to
pay any sum of money, or to incur any charge, forfeiture, or
penalty, or whereby any benefit might accrue to the party
personating.”
Appellant’s conduct as set out in the summary report
easily qualifies as conduct proscribed by section 529. Appellant
“falsely personat[ed]” her mother, and, as her mother, performed
acts that, if performed by her mother, would have exposed her to
incur debt. In 2018, appellant made numerous unauthorized
charges to the victim’s bank account for nearly $40,000. Against
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her mother’s instructions, she kept open mother’s credit cards
and “maxed” some of them out. She took out a $55,000 loan on
the mother’s home by signing documents without her mother’s
consent.
Considering appellant’s conduct, the trial court acted well
within its discretion by denying appellant’s petition to reduce her
probation from three to two years.6 In light of our conclusion, we
need not address whether her conduct was also “as described” in
section 528.5.
Ironically, appellant was also charged with a violation of
section 487, subdivision (a), grand theft, which was conditionally
dismissed with a Harvey waiver. It is not lost on us that one of
the exceptions to the two-year felony probation rule established
by AB 1950 is a felony conviction for violating section 487,
subdivision (b)(3), which includes grand theft committed by an
agent where the total value of the property taken exceeds
$25,000. (§ 1203.1, subd. (l)(2).) Appellant’s thefts from the
6 We do not find appellant’s argument to be persuasive that
her conduct is not the type of conduct that the Legislature had in
mind when amending Family Code section 6320. First, Family
Code section 6320, subdivision (a), on its face, is not ambiguous.
There is no qualification placed on the trial court’s ability to
enjoin behavior “as described” in Penal Code sections 528.5 or
529. Even if we were to assume that the Legislature was
motivated, in part, to amend Family Code section 6320 due to
theft committed on the internet, as appellant contends, this does
not mean it intended to exclude conduct like that of appellant.
This is especially true based on the Legislature’s express intent
stated in Penal Code section 368, subdivision (a), finding that
elders (like the victim) deserve special consideration and
protection.
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victim were much greater than the $25,000 floor amount set by
section 1203.1, subdivision (l)(2) as an exception to the felony
two-year probation rule. In light of our analysis and the sheer
size of the theft committed by appellant, we are confident that
appellant’s conduct fits well within behavior the legislature
intended to except from section 1203.1, subdivision (a).
DISPOSITION
The judgment is affirmed.
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WISEMAN, .J. *
We concur.
JACKSON, P.J.
SIMONS, J.
People v. Markham / A162600
*Retired Associate Justice of the Court of Appeal, Fifth Appellate District,
assigned by the Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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