People v. Dearman CA1/1 ( 2014 )

Filed 6/30/14 P. v. Dearman CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
A141063
v.
JO ANN DEARMAN, (San Mateo County
Super. Ct. No. SC076038A)
Defendant and Appellant.
Defendant Jo Ann Dearman appeals from a final judgment after no contest pleas to
misappropriation of public funds and embezzlement. As required under People v. Kelly
(2006) 40 Cal. 4th 106, 124, we affirmatively note counsel for defendant has filed a
Wende brief (People v. Wende (1979) 25 Cal. 3d 436) raising no arguable issues, counsel
apprised defendant of her right to file a supplemental brief, and defendant did not file
such a brief. Upon review of the record for potential error, we conclude no arguable
issues are presented for review and affirm the judgment.
STATEMENT OF FACTS AND PROCEDURAL HISTORY1
Defendant was employed from January 1, 2009 until May 16, 2011, as a financial
director for the San Mateo County Mosquito and Vector Control District (District). After
an outside firm conducted a forensic accounting audit, it determined defendant had
embezzled public funds in the amount of $351,918.83, and her codefendant, who
defendant hired, embezzled over $88,000. The audit showed defendant used five of the
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The facts are taken from the probation report.
District’s credit cards for personal expenses, issued herself unauthorized pay, deposited
unauthorized funds into her retirement account, and electronically transferred
$143,352.62 of the District’s funds to her personal bank account. The investigation
further revealed defendant used $20,000 of the embezzled funds to pay attorney fees for
her two prior felony embezzlement cases. Restitution was requested in the amount of
$761,663.95, which included the cost ($259,066) for a financial audit.
An information was filed by the San Mateo District Attorney’s Office charging
defendant with five counts of misappropriation of public funds (Pen. Code,2 § 424,
subd. (a); counts 1–5), five counts of misappropriation of public funds by altering,
falsifying, or destroying an account (§ 424, subd. (a)(4); counts 6–10), five counts of
embezzlement by a public or private officer (§ 504; counts 11–15), and five counts of
falsifying government documents (Gov. Code, § 6200; counts 16–20). It was further
alleged defendant committed multiple felonies involving fraud or embezzlement resulting
in a total loss of more than $100,000 (§ 186.11, subd. (a)(1)), committed multiple
felonies pursuant to a common plan or scheme amounting to a total loss of more than
$200,000 (§ 12022.6, subd. (a)(2)), and served two prior prison terms (§ 667.5,
subd. (b)).
After defendant filed a section 995 motion, the People dismissed counts 6 through
10, and the trial court dismissed counts 16 through 20. Less than a month later,
defendant entered pleas of no contest to counts 1 through 5 and 11 through 15, and
admitted all of the enhancements. As part of the plea agreement, defendant
acknowledged the maximum sentence the court could impose was 11 years. However, if
defendant made “substantial restitution,” determined by the court to be 50 percent or
more, the maximum sentence would be five to seven years.
In a sentencing memo, the People requested the trial court impose the maximum
sentence of 11 years in state prison, victim restitution in the amount of $761,663.95, and
a $997,011.62 fine (double the value of the taking of $498,505.61) under section 186.11,
2
All statutory references are to the Penal Code unless otherwise indicated.
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subdivision (c). At the sentencing hearing, defense counsel objected to the section
186.11 fine and to a portion of the restitution request in the amount of approximately
$250,000 for an audit, claiming both were excluded from the plea agreement. The court
indicated it would impose restitution for the cost of the audit, but agreeing with defense
counsel about the fine offered to let defendant withdraw her plea or make a motion.
Defense counsel responded to the court’s offer stating: “Let’s cut through this. She
doesn’t want to do that. . . . [¶] . . . [T]he $250,000 extra frankly realistically is going to
be a civil judgment anyway because she will have finished whatever by the time it is
collected anyhow. So we are probably arguing about the number of angels on the head of
a pin. So, why don’t we go ahead and do it.” When defendant was thereafter asked by
the court if she wished to withdraw her plea, she responded she wanted to proceed.
Because defendant had only paid back approximately $233,000 of the $761,000
owed, less than 50 percent, the court sentenced defendant to eight years in state prison as
follows: the low term of two years on count 1, one-third the midterm, one year,
consecutive on counts 2 through 5, and stayed sentence on counts 11 through 15 pursuant
to section 654. It also imposed two years consecutive on the section 186.11
enhancement, stayed imposition of two years on the section 12022.6, subdivision (a)(2)
enhancement, and following the People’s motion, struck the section 667.5,
subdivision (b) prior felony convictions. The court awarded defendant 127 actual days
of credit plus 126 days of good time/work time days for a total of 253 days. In addition
to other fees and fines imposed, the court ordered defendant to pay $502,597. 95 in
restitution, a $997,011.62 fine pursuant to section 186.11, subdivision (c), a $300
restitution fine, and a $300 parole revocation fine suspended unless parole is revoked.
DISCUSSION
We have reviewed the record on appeal. By entering pleas of no contest to the
charges, and admitting the special allegations, defendant admitted the sufficiency of the
evidence establishing the crimes and enhancements for which she was sentenced, and
therefore is not entitled to review of any issue relating to the question of whether she is
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guilty or not guilty. (People v. Hunter (2002) 100 Cal. App. 4th 37, 42.) Without a
certificate of probable cause, defendant cannot contest the validity of the plea.
(§ 1237.5; Cal. Rules of Court, rule 8.304(b)(2).)
Defendant was represented by counsel throughout the proceedings from entry of
her plea through sentencing. We find no support in the record for any claims on appeal
of ineffective assistance of counsel.
We find no meritorious sentencing issues requiring reversal of the judgment. The
restitution, fines, and fees imposed by the court were appropriate.
Having independently reviewed the entire record, we find no arguable error that
would result in a disposition more favorable to defendant.
The judgment is affirmed.
_________________________
Margulies, Acting P.J.
We concur:
_________________________
Dondero, J.
_________________________
Becton, J.*
*
Judge of the Contra Costa County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
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