California Court of Appeals, Fourth District, Third Division
Original proceedings; petition for a writ of mandate to challenge an order of the Superior Court of Orange County, No. 13CF0500 Robert R. Fitzgerald, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
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Kamala D. Harris Attorney General and Michael W. Whitaker, Deputy Attorney General for Petitioner.
No appearance for Respondent.
Law Offices of Mark W. Fredrick, Mark W. Fredrick and Ronald G. Brower for Real Party in Interest.
The People petitioned for a writ of mandate ordering the respondent court to vacate its ruling reducing the felony charges against Alireza Jalalipour to misdemeanors and we issued an order to show cause. We hold that, unless the People consent to a reduction of the charged offense, the establishment of defendants guilt, whether by plea or trial, must precede
A courts reduction of a wobbler to a misdemeanor under Penal Code section 17, subdivision (b)(3). We also hold that, in the absence of the Peoples consent, the courts reduction of the charged felonies to misdemeanors, and then allowing defendant to plead guilty to the misdemeanors, constituted an unlawful judicial plea bargain. Accordingly, we grant the Peoples petition.
Jalalipour (through a corporation) owned and operated 12 Subway restaurants acquired between 2001 and 2009. From April 2004 through March 2010, he underreported the collected sales tax by about 75 percent, resulting in an unpaid tax liability of almost $1.4 million.
Around May of 2010, the Board of Equalization (the Board) selected Jalalipours company for a routine civil audit. In June 2010, the Board auditor Jocelyn Tsai met with Jalalipours wife, Behina Baher. Baher provided Tsai with copies of weekly sales summary sheets. The weekly summaries showed the amount of sales tax collected, cost of sales, total sales, store location, and dates. Tsai was not allowed to take or copy the weekly summaries. Tsai organized the data on a spreadsheet. She noticed that information was missing for some weeks and asked Baher to get the missing data from the franchisor. Baher did not provide the missing documentation.
Tsai received, from her supervisor, some data obtained from the franchisor. Tsai asked Baher about a large discrepancy between the sales tax collected and the sales tax paid to the Board. Baher said that if the computers were wrong and charged the wrong amount of tax, it was not the governments money. Tsai informed her that if the tax is charged, it must be sent to the Board.
In May 2011, a search warrant was served on Jalalipours 12 restaurants and his residence. The Board agents located some draft sales tax returns and a worksheet at Jalalipours residence (some found under some towels in a hamper). Worksheets indicated that Jalalipour calculated the amount of taxable sales he reported to the Board by first determining the figure he wanted to report for sales tax collected, and then calculating the amount of taxable sales he needed to report in order to support that number.
In February 2013, the People filed a felony complaint charging Jalalipour with six counts of tax evasion (Rev. & Tax Code, §§ 7152, subd. (a), 7153.5),
and one count of grand theft (Pen. Code, § 487, subd. (a)). The complaint also alleged that Jalalipour had committed two or more related felonies with a material element of fraud (§ 186.11, subd. (a)(2)), took property in an amount exceeding $1.3 million (§ 12022.6, subds. (a)(3), (b)), and took funds of a value exceeding $100, 000 (§ 1203.045).
Jalalipour was arraigned and entered a plea of not guilty to all counts and denied the enhancements.
On June 11, 2013, a preliminary hearing was held in front of Judge Robert R. Fitzgerald, who held Jalalipour to answer on all counts and sustained all of the enhancements.
On June 19, 2013, the People filed an information against Jalalipour, alleging the same charges and special allegations that had been contained in the felony complaint.
In a subsequent meeting in Judge Fitzgeralds chambers, defense counsel asked the court to reduce all of Jalalipours crimes to misdemeanors pursuant to sections 18 and 17, subdivision (b) (section 17(b)). The People filed an opposition to the defenses motion to reduce the charged offenses to misdemeanors.
On December 17, 2013, the court heard Jalalipours motion to reduce his felony charges to misdemeanors. At the outset, the court asked, Is it also the defenses indication that you intend to plead guilty to a misdemeanor should the court [reduce the charges to misdemeanors]? Defense counsel replied, Yes. Defense counsel asserted that the contract between Jalalipour and Subway specifies that if he sustains a felony conviction, he can lose all his stores, the sole source of his income for his family and his two children.
The People argued that People v. Silva (1995) 36 Cal.App.4th 231 [43 Cal.Rptr.2d 8] "makes it very clear that once the court issues a bindover at preliminary hearing it loses jurisdiction to. . . reduce [the charges] to misdemeanors prior to the adjudication. The People stated that [a]t this point the defendant has to plead a felony, and the court in its sentencing discretion can. . . reduce it to a misdemeanor, but the court does not have the option to take a plea to a misdemeanor at this point in the proceeding because the defense did not make the motion at the appropriate time.
The trial court granted Jalalipours motion and declared all the charges to be misdemeanors. The court explained its primary reason for granting the motion was that, otherwise, Jalalipour ...