Filed 10/19/17 P. v. Bey CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
| THE PEOPLE, Plaintiff and Respondent, v. JAMEELAH A. BEY, Defendant and Appellant. |
A147693
(Alameda County Super. Ct. No. H57092D)
|
This case comes before us for review under the procedures prescribed in People v. Wende (1979) 25 Cal.3d 436, 441–442 (Wende). Appellant Jameelah Bey (Jameelah)[1] appeals following her convictions by no contest plea of one count of conspiracy (Pen. Code, § 182),[2] 14 counts of filing false instruments (§ 115), three counts of grand theft (§ 487, subd. (a)), two counts of insurance fraud (§ 550, subd. (a)(1)), and one count of fraudulent statements regarding worker’s compensation claims (Ins. Code, § 11880, subd. (a)), together with an aggravated white collar crime enhancement and excessive taking enhancements appended to the grand theft and conspiracy counts. (§§ 186.11, subd. (a), 12022.6, subd. (a)(2)).
I.FACTUAL AND PROCEDURAL BACKGROUND
The charges had been filed against a group of individuals affiliated with the Black Muslim Temple in Oakland, who operated a security firm and a janitorial service, and who submitted false paperwork to obtain public contracts. The paperwork falsely stated that certain principals of the firms had educational backgrounds they did not have, experience with law enforcement and the military they did not have, and insurance, licenses and job references they did not have.
Jameelah and five codefendants[3] were charged with a series of crimes committed between 2009 and 2014 while doing business under the name BMT International Security Services (BMT) or Back on Track janitorial services. BMT, under its various names,[4] operated out of 818 27th Street in Oakland. The offenses arose from successful bids by BMT on public contracts for security services with Alameda County and the Housing Authority of Los Angeles (HACLA), and for other bids submitted for public contracts with the Port of Oakland, the City of Oakland, the City of Vallejo, the City of Newport Beach, and the Los Angeles Department of Water and Power.
A former employee of BMT told an investigator that Jameelah gave her a legitimate expired insurance policy and told her to cut and paste it to make it look current and legitimate. The falsified insurance document was used in at least the City of Oakland and the Port of Oakland bids. Jameelah was also involved in submitting documents on behalf of Back on Track, BMT’s janitorial service; included with the bids were falsified tax returns made to look like they were professionally prepared, but they were not. And Jameelah was also involved with transactions on behalf of “Respect for Life”—a planned daycare center affiliated with the Black Muslim Temple—which included the rental and subsequent theft of a modular building, as well as the use of forged deeds and other forged documents in connection with city approvals and zoning for the project.
Alameda County’s investigation into BMT’s contracts and contract bids in both Northern and Southern California led to the filing of a 42-count information on February 4, 2015, including allegations of conspiracy, offering false or forged instruments, grand theft, real estate fraud, insurance fraud, failure to pay or withhold unemployment and disability insurance, failure to file tax returns, and false statements in bankruptcy.
Following a joint preliminary hearing, Jameelah was charged with 24 of the 42 counts: two counts of conspiracy: conspiracy to submit false documents to obtain public contracts (count 1) and conspiracy to operate an unlicensed security service (count 42), 16 counts of offering false or forged instruments (counts 2, 4 through 6, 8 through 13, and 17 through 22),[5] three counts of grand theft (counts 3, 7 and 23), and three counts of insurance fraud (counts 27, 28 and 37). The information also alleged special aggravated white collar crime enhancements based on losses exceeding $500,000 in connection with the crimes involving the conspiracy to submit false documents to procure public contracts (counts 1–10) (§ 186.11, subd. (a)) and losses exceeding $200,000 for the conspiracy to operate as a private patrol service without a license (count 42) (§ 12022.6, subds. (a)(2) & (b)).
On October 5, 2015, as part of a negotiated disposition, the People dismissed count 42 (conspiracy), and Jameelah pled no contest to all of the remaining 21 charges against her: one count of conspiracy, 14 counts of filing false instruments, three counts of grand theft, two counts of insurance fraud, and one count of fraudulent statements regarding worker’s compensation claims (Ins. Code, §11880, subd. (a)). Additionally, Jameelah admitted an aggravated white collar crime enhancement of causing losses in excess of $100,000 and an excessive taking enhancement of more than $200,000 through multiple grand thefts and a conspiracy to commit grand theft.[6] (§§ 186.11, subd. (a), 12022.6, subd. (a)(2).)
Before entering her plea, Jameelah was informed of the consequences of her plea, was informed of and waived her rights to trial by jury, to confront and cross-examine witnesses, to subpoena witnesses for her defense, to testify in her own defense, and her privilege against self-incrimination. In the written waiver of rights, Jameelah gave up her right to appeal her conviction, including the denial of any pretrial motions.[7]
In accordance with the negotiated plea agreement, on December 21, 2015, the court suspended imposition of sentence and granted Jameelah formal probation for five years, with various terms and conditions.
Jameelah filed a timely notice of appeal. In addition to checking the box indicating she appealed from “the sentence or other matters occurring after the plea that do not affect the validity of the plea,” she requested a certificate of probable cause, alleging violation of her Sixth and Fourteenth Amendment rights through religious discrimination in her prosecution and ineffective assistance of counsel, an unspecified jurisdictional violation, a Brady violation (Brady v. Maryland (1963) 373 U.S. 83), collusion between the district attorney and her attorney, and coercion of her plea. She also claimed her convictions were unlawful because a “bid” is not an “instrument” under section 115. She specified no sentencing error or other error relating to orders made after conviction. Her request for a certificate of probable cause was denied.
II.DISCUSSION
Jameelah’s appointed appellate attorney filed a brief on appeal without raising any specific issues, asking us to review the entire record to determine if any issues warrant briefing, as provided in Wende, supra, 25 Cal.3d 436. Jameelah was advised by her attorney that she could file a supplemental brief on her own behalf within 30 days after the Wende brief was filed. She did not file such a brief.
In order to challenge a judgment following a guilty plea based on ineffective assistance of counsel occurring prior to the plea, discriminatory prosecution, or the other matters Jameelah specified for appeal, she was required to obtain a certificate of probable cause from the trial court.[8] (§ 1237.5, subd. (b); Cal. Rules of Court, rule 8.304(b) (Rule 8.304); In re Chavez (2003) 30 Cal.4th 643, 650–651 & fn. 3; People v. McEwan (2007) 147 Cal.App.4th 173, 177–178; People v. Stubbs (1998) 61 Cal.App.4th 243, 244–245.) A defendant who has entered a guilty plea and has not obtained a certificate of probable cause may only appeal from (1) denial of a suppression motion, or (2) the sentence or other matters occurring after entry of the plea that do not affect the validity of the plea. (Rule 8.304(b)(4)(B); People v. Vargas (2007) 148 Cal.App.4th 644, 651.)
Jameelah did not make a suppression motion at trial; hence, her broad general waiver on the plea and waiver form imposed no greater restriction on her right to appeal than if she had not executed a waiver. “As a general proposition, a broad or general waiver, such as ‘I waive my appeal rights,’ will include error occurring prior to the waiver, but not subsequent error because the defendant could not make ‘a knowing and intelligent waiver of the right to appeal any unforeseen or unknown future error . . . .’ ” (In re Uriah R. (1999) 70 Cal.App.4th 1152, 1157, quoting People v. Vargas (1993) 13 Cal.App.4th 1653, 1662; but see, People v. Panizzon (1996) 13 Cal.4th 68, 82, 84 [if waiver spells out that defendant waives right to appeal from sentence, waiver is enforceable].)
The trial court’s denial of a certificate of probable cause made the appeal “inoperative” except as to matters occurring after entry of the plea. (Rule 8.304(b)(4)(B); Stubbs, supra, 61 Cal.App.4th at p. 245.) Accordingly, we do not believe we are required to conduct a full-record review for errors occurring prior to the plea. (Cf. People v. Castelan (1995) 32 Cal.App.4th 1185, 1188–1189 [appellate court should dismiss appeal that does not comply with section 1237.5].) Under the rationale of Wende, we should only be required to search the record for evidence supporting issues that Jameelah would be entitled to raise on appeal, namely, issues relating to denial of a suppression motion, and matters occurring after entry of the plea that do not affect its validity. (See Rule 8.304(b)(4)(B).)
We have reviewed in a codefendant’s case the preliminary hearing transcript for Wende purposes, and thus have, in effect, conducted a full-record review. For present purposes, we have focused specifically on any potentially meritorious issues that may have arisen after Jameelah’s plea. We have found none. The grant of probation was as promised and the conditions of probation were reasonably related to Jameelah’s crimes. (People v. Lent (1975) 15 Cal.3d 481, 486.) We are satisfied Jameelah’s appellate attorney fully complied with counsel’s responsibilities. (Wende, supra, 25 Cal.3d at p. 443.)
III. DISPOSITION
The judgment is affirmed.
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Streeter, J.
We concur:
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Ruvolo, P.J.
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Reardon, J.
A147693/People v. Bey
[1] A number of the codefendants in this case bear the surname “Bey.” We therefore refer to appellant by her first name. No disrespect is intended.
[2] Further undesignated statutory references are to the Penal Code, unless otherwise indicated.
[3] The charges against Jameelah’s codefendants—Rory Vermal Parker, Dahood Sharieff Bey, Qadirah Bey, Basheer Fard Muhammad and Billie Poindexter—were resolved separately. The codefendants are not parties to this appeal.
[4] “BMT” stood for “Black Muslim Temple,” a religious organization which operated at the same address used for BMT. The individuals and business entities involved in this case were related to the Black Muslim Temple. BMT also operated by the names BMT Security Solutions and BMT International Services.
[5] Counts 11 and 12 were dismissed on a motion under section 995 because the statute of limitations had run on those counts.
[6] The white collar crime enhancement under § 186.11 was originally charged with respect to a conspiracy to submit false bids under counts 1–10, and losses were alleged in excess of $500,000. At some point an amended information was prepared (although possibly never filed), and the amendments included (1) charging this enhancement in connection with the grand theft counts and the conspiracy in count 1 (which was amended to allege conspiracy to commit grand theft), and (2) changing the alleged losses to $100,000. The excessive loss enhancement under § 12022.6 was originally charged in connection with the second conspiracy count (count 42), but the amended information alleged those losses with respect to counts 1, 3, 7 and 23 (grand theft and conspiracy to commit grand theft), instead of count 42. The plea colloquy suggests it was the amended information to which Jameelah pled.
[7] Jameelah initialed a box that read: “I hereby give up my right to appeal from this conviction, including an appeal from the denial of any pretrial motions.”
[8] The only way to challenge denial of a certificate of probable cause is by a petition for writ of mandate. (In re Brown (1973) 9 Cal.3d 679, 683; 6 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Criminal Appeal, § 26, pp. 297–298.)
