Filed 8/16/17 P. v. Cloherty CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Appellant Martin Coleman Cloherty appeals from the judgment after pleading guilty to felony unlawful use of a contractor’s license. (Bus. & Prof. Code, § 7027.3.) Following appellant’s guilty plea, the trial court sentenced him to 40 days in jail, recommended him to the Sheriffs’ Alternative Sentencing Bureau, and placed him on three years of felony probation. The trial court also ordered him to pay $52,319 in restitution.

Appellant’s counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 and People v. Kelly (2006) 40 Cal.4th 106, requesting that we conduct an independent review of the entire record on appeal. Counsel attests that appellant was advised of his right to file a supplemental brief in a timely manner, but he has not exercised this right.

Mindful that our review is limited to grounds for appeal occurring after entry of the plea (Cal. Rules of Court, rule 8.304(b)(5)), we have examined the entire record in accordance with People v. Wende and People v. Kelly. For reasons set forth below, we agree with counsel that no arguable issue exists on appeal. Accordingly, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On June 19, 2015, an information was filed charging appellant with felony grand theft by embezzlement (Pen. Code, § 487, subd. (a) (count one)); felony unlawful use of a contractor’s license (Bus. & Prof. Code, § 7027.3 (count two)); and misdemeanor working as a contractor without a license (Bus. & Prof. Code, § 7028, subd. (a) (count three)).[1] On June 24, 2015, appellant entered a plea of not guilty.

On February 8, 2016, appellant pled no contest to count two, felony unlawful use of a contractor’s license, and the remaining counts were dismissed. The stipulated facts underlying his plea were as follows. On May 31, 2013, the victim, D.W., entered into a contract with appellant for MH Construction (also known as Martin Heagney Construction) to remodel four rental apartments for $94,000. Although the contract included the Contractor’s License of Martin Heagney, appellant Martin Cloherty did not have a valid license.

In the Fall of 2013, the victim became aware of certain problems with the remodel project and, as a result, fired appellant. The victim was thereafter informed by subcontractors that appellant had not paid for their work on the project, and was informed by the City of Menlo Park that his property had been “red-tagged” for lack of permits.

Consistent with appellant’s subsequent guilty plea to felony unlawful use of a contractor’s license in connection with this remodel project, the trial court ordered him to serve 40 days in county jail, recommended him to the Sheriffs’ Alternative Sentencing Bureau and placed him on three years of felony probation. The plea agreement also included a Harvey waiver for purposes of restitution, permitting the trial court to consider facts relating to any and all counts, including those dismissed pursuant to the disposition. (See People v. Hoffman (2015) 241 Cal.App.4th 1304, 1311.)

According to the People’s Brief in Support of Restitution Order, the victim had paid appellant $71,000 under the contract, as well as $9,450 to subcontractors and $10,798.63 in repair work. In addition to these expenses, the prosecutor requested $32,070.00 in lost rental payments for the victim, for a total of $123,318.63. Finally, the prosecutor requested $85,176 in attorney fees, an amount that was just one fifth of the $425,880.31 in fees claimed by the victim’s civil attorneys.

A restitution report was filed on March 15, 2016, wherein it was recommended appellant pay $234,340 in restitution, an amount that included $118,976 in legal expenses. At the subsequent restitution hearing on October 26, 2016, the trial court expressed concern about this amount, questioning, in particular, the accuracy of information regarding the number of hours allegedly worked by the victim’s civil attorneys. The court then confirmed that restitution would only cover “[a]nything that we can actually tie to the failure of doing the work, plus the delay in the work being done.” After testimony from appellant and the victim regarding the remodel project, the court ordered restitution in the amount of $52,319, consisting of $32,070 in lost rental profits, $9,450 in amounts paid by the victim to subcontractors, and $10,799 to cover remediation work. The court retained jurisdiction for the purpose of awarding attorney fees.

Appellant filed a timely notice of appeal on November 23, 2016.

DISCUSSION

As we previously stated, appellant’s appointed counsel has filed an opening brief setting forth the material facts, but raising no issue for our consideration. Counsel requests that we independently review the record to decide whether there exists any nonfrivolous issue for appeal. (People v. Wende, supra, 25 Cal.3d 436; People v. Kelly, supra, 40 Cal.4th 106.) Counsel has also attested that appellant was advised of his right to file a supplemental brief with this court. Appellant declined to do so.

After an independent review of the record, we agree with appellant’s counsel that there are no reasonably arguable legal or factual issues for our consideration. The trial court imposed a 40-day jail term and three-year probationary term on appellant after accepting his valid guilty plea to one felony count of unlawfully using a contractor’s license and dismissing the remaining counts. The trial court then held an evidentiary hearing on the issue of restitution, where the court accepted testimony from both appellant and the victim and considered the parties’ filings. The court ultimately ordered appellant to pay $52,319 in restitution, an amount that included lost rental profits ($32,070), payments by the victim to subcontractors ($9,450) and remediation work ($10,799), but excluded payments made by the victim to appellant for work performed on the remodel project ($71,000). Given this record, we conclude the trial court’s judgment, including its restitution order, was lawful. (People v. Giordano (2007) 42 Cal.4th 644, 653 [“Penal Code section 1202.4 now requires restitution in every case, without respect to whether probation is granted. In addition, . . . Penal Code section 1203.1, subdivision (j) provides broader discretion for trial courts to impose restitution as a condition of probation”]; § 1202.4, subd. (f)(3) [“To the extent possible, the restitution order shall be prepared by the sentencing court, shall identify each victim and each loss to which it pertains, and shall be of a dollar amount that is sufficient to fully reimburse the victim or victims for every determined economic loss incurred as the result of the defendant’s criminal conduct”].)

Having ensured appellant received adequate and effective appellate review, we thus affirm the judgment. (People v. Wende, supra, 25 Cal.3d at pp. 441-442; People v. Kelly, supra, 40 Cal.4th at pp. 112-113.)

DISPOSITION

The judgment is affirmed.

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Jenkins, J.

We concur:

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McGuiness, P. J.

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Siggins, J.

People v. Martin Coleman Cloherty, A149955