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Name: People v. Avignone
Case #: D070012
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 10/13/2017
Summary

Trial court lacks discretion to strike aggravated white collar crime enhancement (Pen. Code, § 186.11) in order to make defendants eligible to serve their sentences in county jail rather than state prison. Defendants, husband and wife, defrauded investors out of more than $700,000 in a real estate investment scheme. They entered guilty pleas to three counts of fraud (Corp. Code, §§ 25401, 25540, subd. (b)) and grand theft of property worth more than $950 (Pen. Code, § 487, subd. (a)). They admitted an aggravated white collar crime enhancement (Pen. Code, § 186.11, subd. (a)(2)), which applies to a pattern of felony conduct involving the taking of more than $500,000. The trial court struck the section 186.11 enhancements, and imposed a county jail split sentence. Defendants appealed, arguing that the trial court abused its discretion in denying probation. Held: Reversed and remanded. The Realignment Act contains a provision that allows qualified defendants to serve their sentence in county jail rather than state prison (Pen. Code, § 1170, subd. (h)). However, section 1170, subdivision (h)(3) lists an aggravated white collar crime enhancement as a disqualifying factor for a county jail sentence. Penal Code section 1385, subdivision (c)(1) authorizes a trial court to strike an enhancement in furtherance of justice. But this authority may be withdrawn by the Legislature. Penal Code section 1170, subdivision (f) provides that any allegation that renders a defendant eligible for state prison, shall not be subject to a section 1385 dismissal. Thus, the trial court’s split sentence in local custody was unauthorized. Because the defendants may have entered their pleas based on a belief they would serve custodial time in county jail rather than state prison, the matter is remanded to allow them the option of moving to withdraw their pleas. [Editor’s Note: In an unpublished part of the opinion, the Court of Appeal disagreed with the defendants’ argument that the trial court abused its discretion in denying probation.]

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/D070012.PDF