Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. SC067995
Kline, P.J.
Sandra L. Cavanas appeals from a judgment entered on a plea of no contest to embezzlement of an elder. Her court-appointed counsel has filed a brief raising no legal issues and asking this court to independently review the record pursuant to People v. Wende (1979) 25 Cal.3d 436.
PROCEEDINGS BELOW
By an information filed in the San Mateo County Superior Court on February 25, 2009, appellant was charged with 15 felonies: one count of embezzlement of an elder (Pen. Code § 368, subd. (e)), with a special allegation of loss exceeding $65,000 (§ 12022.6, subd. (a)(1)) (count 1); seven counts of identity theft (§ 530.5) (counts 2, 4, 6, 8, 10, 12 and 14); and seven counts of grand theft (§ 487, subd. (a)) (counts 3, 5, 7, 9, 11, 13 and 15).
All subsequent statutory references are to the Penal Code.
On December 2, 2008, more than a month prior to the filing of the information, the district attorney filed a criminal complaint charging appellant with only five felony counts. The preliminary hearing on those charges was conducted on February 11, 2009, two weeks before the district attorney filed the superseding information.
On March 27, 2009, appellant waived her rights and pled no contest to count 1 (embezzlement of Maria Dallara, her elderly mother), admitting the special allegation of loss exceeding $65,000. Appellant also pled no contest to count 3 (grand theft of property from her mother and American Express). In exchange for her plea, it was agreed appellant would receive a maximum of two years in prison, that probation with a one-year county jail term would be considered by the court, and that the remaining charges would be dismissed although “they [might] be addressed as it relates to the issue of restitution.” The remaining charges were dismissed with a Harvey waiver.
Michigan v. Harvey (1990) 494 U.S. 344, 348-349.
At sentencing on April 24, 2009, the trial court rejected the probation officer’s recommendation and denied probation. Appellant was sentenced to prison for two years as follows: the low term of two years for embezzlement, and the low term of 16 months for grand theft, to be served concurrently with the two-year term. Appellant was given credit for 143 actual days served, plus 70 days good conduct credit, for a total of 213 days. She was ordered to pay victim restitution as follows: $12,186.45 to U.S. Bank, $2,213.36 to GE Money Bank, $16,337.13 to Citigroup/Citibank, and $57,464.92 to the estate of her mother, a total of $88,201.86, with additional amounts to be determined to be paid to The Gap and TJX Rewards. Appellant was also ordered to pay a restitution fund fine of $200, plus a ten percent administrative fee pursuant to section 1203.1, subd. (l).
This timely appeal from the sentence imposed was filed on May 7, 2009.
Much of our description of the facts is taken from the probation officer’s report and recommendation filed with the court on June 1, 2009, which is far more informative than were the few witnesses who testified at the preliminary hearing.
Appellant committed the offense to which she pled by embezzling approximately $180,000 from her 83-year-old mother, and accumulating about $92,000 in credit card debt within a two-month period. The mother added appellant’s name to some of her accounts and credit cards, but never gave appellant permission to spend this amount of money. Appellant also added herself to many of her mother’s credit card accounts without her mother’s permission. She spent her mother’s money on personal items such as cosmetics, shoes, clothes, and furniture. At one point, she went on a shopping spree to New York, which resulted in a psychiatric hold after an altercation with a police officer.
These matters came to light on July 25, 2007, when South San Francisco police officers responded to a call from U.S. Bank regarding a disturbance between appellant and a bank teller. The police report states that, upon arrival of the officers, they were told by a teller that every time appellant came to the bank with her elderly mother, it was for the purpose of withdrawing large amounts of money from the mother’s accounts. The teller said appellant had exhausted two of the mother’s accounts over the past several weeks and was now making withdrawals from a certificate of deposit account that resulted in the mother having to pay penalties and fees. After the teller discussed the situation with her supervisor, they decided to file an Adult Protective Service referral.
Upon investigation, the police officers discovered that one of the mother’s checking accounts had been closed due to lack of funds. This account had been opened in 1993. Shortly after appellant’s name was added to the account in November 2005, the account was reduced from $70,000 to $1,300 in the three-month period from May to July of 2007.
In July 2007, appellant’s mother withdrew $10,000 from a fixed annuity account and used the funds to open a checking account. Twenty-three days later the balance left in this account was only $130. A certificate of deposit account opened jointly by appellant and her mother in December 2005 originally contained $92,000. On July 25, 2007, appellant withdrew $10,000 from the account, taking $3,000 in cash and transferring $7,000 into another checking account. In February 2007, a joint savings account was opened by appellant and her mother with $25,000 at a Washington Mutual bank. Appellant transferred this money to an account she shared with her husband. As of July 26, 2007, the balance left in the account appellant shared with her mother was 62 cents, and the balance left in the account appellant shared with her husband was $23.68. Appellant also opened multiple credit card accounts in her mother’s name or had her name added to her mother’s existing credit card accounts.
When police interviewed the mother, she appeared unaware of the status of her bank accounts and seemed confused. She said her husband had handled all their financial and banking matters until he died. After that, a friend assisted her with her banking until appellant came to live with her. The mother said appellant had recently bought her a new bedroom set although she had advised her not to do so, and appellant had recently gone to New York and “showed the girls how to shop.”
During an interview with the police, appellant acknowledged purchasing the bedroom set for her mother and said she had used some of her mother’s credit cards for personal purchases, but intended to repay her mother for some of the items. She said she used some of the money for home improvements. Appellant explained that plastic bags the police had seen on the floor of the mother’s house contained cosmetics she had purchased during recent shopping sprees, which she needed in order to resume working as a cosmetologist. As the police interview continued, appellant became agitated and at one point said, “when she dies it will all become mine anyways.” When asked to provide receipts or other documentation of her spending, appellant was unable to do so.
Appellant’s husband told the police she has a problem with spending money and “does ‘not buy cheap.’ ” He also reported that appellant can be “delusional” at times, and often threatened people with “ ‘her attorney.’ ” The husband also said appellant was bipolar and had been refusing to take her medications to control her mood swings.
According to the probation report, appellant stated she had an unpleasant childhood involving physical abuse and neglect by her parents, who were heavy drinkers, and saw her mother abused by her father, a merchant seaman often away from the home. After her father died, her mother married “a very good man” who helped her mother stop drinking. After her stepfather died in January 2007, appellant moved in with her mother to help her pay her bills and manage the household.
Appellant previously had been convicted of a misdemeanor elder abuse offense, which resulted from her being witnessed hitting her mother in the face and head several times and pulling her hair while they were in a vehicle. In her testimony at the preliminary hearing in the present case, appellant’s mother said she observed a change in appellant’s mental state while she was living with her from April to July 2007, which eventually turned into abusive behavior.
Appellant, who was 54 years of age at the time of her offense, possesses a cosmetology license and has worked in that field during most of her adult life. She married her husband in October 1992, but as a result of the present offenses they separated, after which her husband obtained a restraining order against her.
In 2007, following her altercation with a police officer in New York, appellant was hospitalized for two weeks and diagnosed as bipolar. Shortly thereafter, she was arrested and admitted to the acute psychiatric unit at the Santa Clara Jail after exhibiting hostile and combative behavior toward staff. Appellant was then refusing medication and displaying delusional behavior. After she began taking medication, her conduct improved. While in custody on the present offense in San Mateo, appellant received mental health services and has been in treatment since October 2007. Her personal physician confirmed her bipolar diagnosis.
The probation department recommended that imposition of sentence be suspended and appellant placed on probation for four years subject to numerous conditions, including counseling and treatment as recommended by her doctor, prohibitions on possessing a computer or accessing the internet, signing on a joint account with an elder or dependent adult, and employment as a caregiver for elderly persons. The probation officer felt appellant suitable for probation based on her willingness to comply with the terms of her probation and her minimal criminal history.
At the sentencing hearing, defense counsel urged the court to follow the probation officers’ recommendation so that appellant could be referred to the Pathways program. Counsel emphasized the role appellant’s bipolar disorder had played in causing her criminal conduct, her need for treatment and medication, the disorientation she experienced while committing her offenses, and her present remorse. The district attorney asked for a prison sentence.
The court denied probation primarily because it was “repulsive to the court” that appellant spent her mother’s savings on personal items and this was the second time she had engaged in this conduct, the “shopping spree” in New York being the first. The court pointed out that appellant had squandered her mother’s life savings in only two months and left her with no substantial income.
DISCUSSION
Where, as here, an appellant has pled guilty or no contest to his or her offenses, the scope of reviewable issues is restricted to matters based on constitutional, jurisdictional, or other grounds going to the legality of the proceedings leading to the plea; guilt or innocence are not included. (People v. DeVaughn (1977) 18 Cal.3d 889, 895-896.)
The admonitions given appellant at the time she entered her plea fully conformed with Boykin v. Alabama (1969) 395 U.S. 238 and In re Tahl (1969) 1 Cal.3d 122, and her waiver of constitutional rights was voluntary and knowing.
The record provides a factual basis for the plea.
Nothing in the record suggests appellant’s bipolar disorder rendered her mentally incompetent, and she was at all times represented by competent counsel who protected her rights and interests.
The sentence imposed is authorized by law.
Our independent review having revealed no arguable issues that require further briefing, the judgment of conviction and sentence are affirmed.
We concur: Haerle, J., Lambden, J.