People v. Miller CA1/3

Filed 8/5/21 P. v. Miller CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, A159570
v.
TONIKA LYNETTE MILLER, (San Mateo County
Defendant and Appellant. Super. Ct. No. 18SF014403B)
INTRODUCTION
Defendant Tonika Lynette Miller was charged with 14 felonies and two
special allegations, stemming from her participation in a real estate scheme
that preyed on an elderly victim. Defendant pleaded no contest to procuring
and offering a forged instrument (Pen. Code, § 115, subd. (a); count 1),1 grand
theft of real property (§ 487, subd. (a); count 3), and grand theft of personal
property (§ 487, subd. (a); count 13). Defendant admitted the special
allegations that the offenses involved excessive loss and constituted
aggravated white collar crime. Pursuant to the plea agreement, defendant
expressly stipulated to waive application of section 654 with respect to counts
1, 3, and 13. In exchange for the plea, the remaining charges were dismissed
and the agreed-upon “ ‘top’ ” state prison term was three years four months.
1 All further undesignated statutory references are to the Penal Code.
1
The trial court denied defendant’s request for probation and imposed the
maximum three years four months term allowed under the plea.
Defendant filed a notice of appeal challenging her sentence. She did
not request a certificate of probable cause.
Defendant’s court-appointed appellate counsel raises no issues and
asks this court for an independent review of the record as required by People
v. Wende (1979) 25 Cal.3d 436 (Wende). In accordance with Wende, defendant
was informed of her right to file a supplemental brief, which she has not
done. Our independent review having revealed no arguable issues that
require further briefing, the judgment is affirmed.
BACKGROUND2
In July 2018, defendant contacted the victim, Sara J.,3 who was over
the age of 65, a few weeks before Sara J.’s home was to be sold at a tax
auction. On or about July 23, 2018, defendant took the elderly victim to a
local restaurant and bought her two margaritas. Defendant then offered
Sara J. $500,000 for a reverse mortgage. Defendant told Sara J. that the
reverse mortgage would allow her to live at the property until she died.
Sara J. agreed and signed a grant deed in favor of Rex Regum, LLC, an entity
owned by codefendant Justin Hall.4 Defendant gave Sara J. $1,000 in cash at
that time and another $1,000 at some point later. Hall recorded the deed on
July 23, 2018. The deed falsely claimed that Sara J. received $800,000 for
We take our facts from the probation report and the second amended
2
complaint.
3We refer to the victim’s first name and last initial for privacy
purposes. (Cal. Rules of Court, rule 8.90.)
4 Hall is not a party to this appeal.
2
the sale of her home. Sara J. did not receive this money and had no intention
of selling her home.
On August 27, 2018, a new grant deed was recorded that reflected a
purported sale of Sara J.’s property to Lion Share Investments, LLC, for
$997,000. At the close of escrow, codefendant Hall received $985,620.16. The
next day, Hall paid defendant $227,000 and later paid her another $11,000.
By second amended complaint, defendant was charged with: procuring
and offering a false or forged document (§ 115, subd. (a); count 1); felony elder
theft (§ 368, subd. (d); count 2); grand theft of real property (§ 487, subd. (a);
count 3); second degree commercial burglary (§ 460, subd. (b); count 5); nine
counts of money laundering (§ 186.10, subd. (a); counts 7, 14–21); and grand
theft of personal property (§ 487, subd. (a); count 13). It was further alleged
that counts 1, 2, 3, and 13 involved excessive loss of over $100,000
(§ 1203.045, subd. (a)) and constituted aggravated white collar crime
(§ 186.11, subd. (a)(2)).
At a hearing on November 15, 2019, following advisements and
waivers, defendant entered a plea of no contest to procuring and offering a
false or forged instrument (§ 115, subd. (a); count 1), grand theft of real
property (§ 487, subd. (a); count 3), and grand theft of personal property
(§ 487, subd. (a); count 13). Defendant also admitted the excessive loss
(§ 1203.045, subd. (a)) and aggravated white collar crime (§ 186.11, subd.
(a)(2)) enhancements. Defendant further stipulated that section 654 would
not apply to sentencing on counts 1, 3, and 13. The court advised defendant
that her maximum sentence could be up to three years four months in state
prison.
On January 15, 2020, the trial court denied probation and sentenced
defendant to the agreed-upon maximum of three years four months in state
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prison, calculated as follows: on count 1, the principal count, the low term of
16 months plus two years for the aggravated white collar crime enhancement,
to run consecutively; on count 3 the low term of 16 months, to run
concurrently with count 1; and on count 13 the low term of 16 months, to run
concurrently with count 1. The court awarded defendant 325 days of credit
for time served.
DISCUSSION
A trial court is allowed broad discretion in its sentencing decisions, and
“its sentencing decision will be subject to review for abuse of discretion
[citations].” (People v. Sandoval (2007) 41 Cal.4th 825, 847.) We find no
abuse of discretion here. By admitting the excessive loss enhancement
(§ 1203.045, subd. (a)), defendant was presumptively ineligible for probation.
Defendant failed to overcome this presumption, and even if she had, the trial
court did not abuse its discretion in denying probation. (See § 1203.045,
subd. (c) [court may decide interest of justice supports probation].) The
record reflects that defendant took advantage of a position of trust and
confidence to prey upon an elderly and vulnerable victim who sustained
substantial monetary losses.5 (See Cal. Rules of Court, rule 4.414(a)(1), (3),
(5) & (9).)
Further, any possible claim that the section 654 waiver set forth in the
plea agreement contemplated an unauthorized sentence is foreclosed from
appellate review. “[D]efendants are estopped from complaining of sentences
to which they agreed.” (People v. Hester (2000) 22 Cal.4th 290, 295 (Hester).)
“The rule that defendants may challenge an unauthorized sentence on appeal
even if they failed to object below is . . . subject to an exception: Where the
5The victim received $2,000 for the sale of her property, which had an
estimated value between $1.5 and $1.8 million.
4
defendants have pleaded guilty in return for a specified sentence, appellate
courts will not find error even though the trial court acted in excess of
jurisdiction in reaching that figure, so long as the trial court did not lack
fundamental jurisdiction. The rationale behind this policy is that defendants
who have received the benefit of their bargain should not be allowed to trifle
with the courts by attempting to better the bargain through the appellate
process.” (Ibid., italics omitted.)
Here, defendant, who was charged with 14 felony counts, entered into
an agreement with the prosecution that waived her right to a jury trial in
exchange for a three years four months sentence. In that agreement,
defendant expressly stipulated to waive application of section 654 with
respect to counts 1, 3, and 13. Furthermore, the trial court expressly clarified
with defendant that she understood she was waiving any section 654 issues,
and defendant expressly stated on the record that she understood and agreed
to the waiver.
By agreeing to the plea, defendant avoided a potentially harsher
sentence. She received the benefit of her bargain. Thus, any section 654
claim is forfeited. (Hester, supra, 22 Cal.4th at p. 296.)
Having conducted an independent review of the entire record, we
discern no arguable issues requiring further briefing.6
We do note, however, errors in the sentencing minute order and the
abstract of judgment that require correction. At the sentencing hearing, the
trial court ordered defendant to pay a court facilities assessment (Gov. Code,
§ 70373) in the amount of $30 per count and a court operations assessment
6 We received a letter from appellate counsel indicating our recent
decision in People v. Richardson (2021) 65 Cal.App.5th 360 may be relevant
to potential issues in this case. It is not. Unlike here, Richardson involved a
factually impossible plea agreement.
5
(Pen. Code, § 1465.8) in the amount of $40 per count. The sentencing minute
order reflects only one $30 assessment (Gov. Code, § 70373) and one $40
assessment (Pen. Code, § 1465.8) rather than the three ordered. The abstract
of judgment similarly fails to reflect the per count assessments.
“Where there is a discrepancy between the oral pronouncement of
judgment and the minute order or the abstract of judgment, the oral
pronouncement controls.” (People v. Zackery (2007) 147 Cal.App.4th 380,
385; accord, People v. Mesa (1975) 14 Cal.3d 466, 471.) Here, the oral
pronouncement controls over the inconsistent and incorrect sentence set forth
in the abstract of judgment and sentencing minute order. Accordingly, the
abstract of judgment and sentencing minute order must be corrected to
accurately reflect the trial court’s oral pronouncement.
DISPOSITION
The trial court is directed to prepare a corrected abstract of judgment
and to correct the sentencing minute order dated January 15, 2020, in
accordance with this opinion. The trial court is further directed to forward a
certified copy of the corrected abstract of judgment to the Department of
Corrections and Rehabilitation. In all other respects, the judgment is
affirmed.
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_________________________
Jackson, J.
WE CONCUR:
_________________________
Fujisaki, Acting P. J.
_________________________
Petrou, J.
A159570/People v. Tonika Lynette Miller
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