(Super. Ct. No. SF113481A)
The opinion of the court was delivered by: Blease , Acting P. J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Steven James Sebeni pled no contest to diversion of funds (Pen. Code, § 484b)*fn1 and contracting without a license, a misdemeanor (Bus. & Prof. Code, § 7028). The trial court reduced the diversion of funds count to a misdemeanor (§ 17) and placed defendant on three years' informal probation with a condition that he serve 60 days in county jail.
The People appeal, contending the trial court violated the plea agreement and improperly reduced the victim restitution award to zero. We vacate the sentence and remand for resentencing.
The facts of defendant's crimes, as ascertained from the factual basis of his plea, are as follows: On January 25, 2006, Ricardo Unzueta entered into a written contract with defendant to remodel Unzueta's home. Unzueta paid defendant $25,000 but defendant did not do the work and diverted the money for some other use. Defendant was not a licensed contractor.
The terms of defendant's plea agreement were announced at the plea colloquy on November 17, 2010. Defense counsel stated: "It's my understanding that [defendant] would be pleading guilty to Count I, which is a 484[b], as a felony, and Count IV, which is a misdemeanor, [Business and Professions] Code Section 7028. And then there's a -- essentially a graduated payment schedule. And with that, various levels of incarceration."
The trial court explained the terms of the agreement to defendant: "And the bottom line will be we'll continue your matter for three separate occasions for a sentencing to give you an opportunity to try to make restitution. [¶] If you pay no restitution, it will be a felony local 180 days. [¶] If you pay $5,000, it will be 120 days. [¶] Fifteen, though, will be 60 days. [¶] And the total, $25,000, will be a misdemeanor, 60 days." In addition, defendant would be placed on probation and could serve the jail time in an alternative program.
The court continued sentencing until May 18, 2012, with two interim dates before then. If defendant failed to pay on either of the interim dates, then the trial court could sentence him at that time, but if defendant continued to pay restitution, then the court would delay sentencing until May 18. The trial court set the two interim dates as January 21, 2011, and September 22, 2011.
Defense counsel asked to address one more matter, "the form of the payment." Counsel said: "we had mentioned this recently. But it's my understanding that it should be in the form of a cashier's check, written out to the victim's name. [¶] Is that correct, . . . , that he bring this to court that day?" [¶] And then I understood that [the prosecutor] may have the -- the victim here in court that day so it could be handed directly to him, because the DA's office doesn't want to be involved in -- in holding onto that money." The prosecutor said "[w]ell, that -- that's right, yeah[,]" and "[t]hat's what we try to do." The prosecutor then dismissed the charges and the hearing concluded.
On July 20, 2011, defendant filed a motion to withdraw the plea on the grounds that the victim was unavailable to receive the restitution payments. The motion asserted the victim was not present for the receipt of the first installment payment, January 21, 2011, "allegedly because the People forgot to notify him that he was to be present." Defendant brought cash that day which was placed in defense counsel's trust account. On February 18, 2011, the People informed defense counsel that they could not find the victim. The People were given until March 4, 2011, to find the victim, which was later extended to March 30 and then June 28. The matter was set for this motion once it became clear that the People could not find the victim.
The People's reply asserted the victim's unavailability was not anticipated by either party at the time of the plea. According to the People, defendant had only $1,600 of $5,000 he agreed to have on the day for the first payment. The People tried to contact the victim on multiple occasions, but to no avail. The victim had been in contact with law enforcement officials from the time of his initial complaint in late 2006 or early 2007 until the date for defendant's first installment payment in January 2011. The People argued that defendant had not established good cause for withdrawal of his plea and asserted the bargain should be "fairly enforce[d]" by requiring defendant to pay restitution to ...