P. v. Marin

Filed 4/24/06 P. v. Marin CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977 .

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Fresno County. Lawrence Jones, Judge.

Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Stephen G. Herndon and Craig S. Meyers, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

On September 28, 2004, the prosecutor filed a 43-count information against appellant, Philip Marin.^[1] The information consisted of nine felony counts of procuring or recording false or forged instruments (§ 115, subd. (a), counts 1, 5, 10, 17, 20, 25, 28, 33, & 37), eight felony counts of forging deeds (§ 470, subd. (d), counts 2, 6, 11, 18, 26, 29, 34, & 38), eleven misdemeanor fraudulent conveyance counts (§ 531, subd. (a), counts 3, 4, 8, 13, 19, 21, 24, 27, 31, 35, & 40), four counts of felony false personating (§ 529, counts 12, 22, 30, & 39), three felony counts of obtaining money or property by false pretenses (§ 532, subd. (a), counts 32, 42, & 43), three counts of grand theft, a felony (§ 487, subd. (a), counts 7, 14, & 23), one felony count of attempted grand theft (§§ 664 & 487, subd. (a), count 15), two counts of perjury (§ 118, counts 9 & 36), one felony count of making a fraudulent claim (§ 72, count 16), and one felony count of theft from an elder or dependent adult (§ 368, subd. (d), count 41). The information alleged an enhancement that Marin's fraud and embezzlement involved the taking of more than $500,000 (§ 186.11, subd. (a), counts 4, 7, 8, 13, 14, 15, 19, 23, 24, 27, 31, 32, 35, 40, 41, 42, & 43) and the taking of more than $50,000 (§ 12022.6, subd. (a)(1), counts 4, 7, 8, 13, 14, 15, 19, 23, 24, 27, 31, 32, 35, 40, 41, 42, & 43).

Marin entered into a plea agreement on February 14, 2005.^[2] Marin pled no contest to four counts of attempting to file a false or forged document (counts 1, 10, 20, & 37), no contest to one count of forgery (count 29), and no contest to one count of perjury (count 9). Marin admitted his fraud and embezzlement involved the taking of more than $50,000. The parties agreed to a stipulated term of four years. Marin would pay a restitution fine. Under the terms of the plea agreement, the parties left open the issue of direct victim restitution.

The trial court sentenced Marin to prison for two years on count 9. The court sentenced Marin to consecutive terms of eight months on counts 1, 10, and 20. The court stayed sentences on the remaining allegations, granted applicable custody credits, and imposed an $800 restitution fine.

On appeal, Marin contends the trial court erred in denying his motion to withdraw his plea because he asserts the trial court advised him that the maximum victim restitution would be no more than $10,000.^[3] We find Marin's argument without merit and will affirm the judgment.

FACTS

Marin executed a series of false quit claim deeds, primarily from individuals who were deceased or very ill. There were several individuals and one corporation Marin targeted. Marin also executed a false driver's license to effectuate his fraud. The offenses to which Marin pled no contest involved four individuals, five fraudulent deeds, and his admission of perjury for obtaining the false driver's license.

Under the terms of the plea agreement, Marin was to receive a stipulated prison term of four years. Marin executed a felony advisement, waiver of rights plea form which set forth the counts and enhancement he was admitting, the stipulated sentence, and that he was subject to a restitution fine of between $200 and $10,000. Under the section at the top of page one of the two-page form, there is a handwritten asterisk. At the bottom of page one, the following handwritten language appears next to the asterisk:

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