P. v. McQueen

Filed 1/30/07  P. v. McQueen CA6

Reposted 2/9/07 to provide correct panel information

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SIXTH APPELLATE DISTRICT

I.  INTRODUCTION

            Defendant William McQueen represented himself as a licensed contractor to COPE Centro Familiar (COPE), a non-profit organization that provides childcare to economically disadvantaged families.  COPE contracted with defendant to construct a daycare center and preschool classrooms.  An investigation of the construction projects revealed that defendant did not have a contractor's license and was using another contractor's license number.  Defendant subsequently pleaded no contest to one felony count of fraudulent use of a contractor's license number in violation of Business and Professions Code section 7027.3.  The trial court placed defendant on probation for five years on the condition that he serve 180 days in county jail and pay victim restitution of $680,406. 

            On appeal, defendant contends that the restitution order must be reversed because (1) there is no credible evidence to support the amount of $62,698 included in the restitution order to reimburse COPE for costs incurred in attempting to complete the construction projects; (2) the trial court erred in failing to allow an offset of $178,670; and (3) trial counsel was ineffective in failing to make a proper evidentiary showing with respect to the offset claim.

            For reasons that we will explain, we find no merit in defendant's contentions and therefore we will affirm the judgment.

II.  FACTUAL AND PROCEDURAL BACKGROUND

            A.  Factual Background

            While doing business as McQueen Engineering, defendant contracted with COPE to perform work on two separate construction projects.  In January 2001, defendant entered into a contract to design and construct modular classrooms adjacent to Starlight Elementary School (the Starlight project).  In June 2002, defendant entered into a contract for renovation of an existing daycare center in Watsonville (the Renovation project).

            COPE intended to use a licensed contractor because the Starlight project was funded by the California Department of Education and the Renovation project was funded by the Packard Foundation.  Defendant held himself out as a licensed contractor and included a contractor's license number on his letterhead. 

            In December 2002, a childcare facilities analyst employed by County of Santa Cruz inspected the two COPE projects.  The County analyst determined that the Starlight project was about 60 percent complete, with some poor workmanship and noncompliance with approved architectural plans.  The Renovation project was determined to be complete, although there were problems with workmanship.

            In December 2003, COPE complained to a district attorney investigator that COPE had made payments to defendant for the Starlight project, but the project had not been completed and defendant had not paid the manufacturer for the modular buildings that had been delivered to the site.  During the course of the district attorney's investigation, it was discovered that the contractor's license number that defendant was using during his work for COPE was actually the license number of Ron Perez, a former business associate of defendant.  The investigation also revealed that over a million dollars had been deposited into defendant's bank accounts during 2001 and 2002, but defendant had not filed a state income tax return during those years.  Some of the funds had been transferred to other businesses that appeared to be owned by defendant.

            Before July 2004, the modular buildings that had been delivered to the Starlight project site were repossessed by the manufacturer due to lack of payment.  In the same month, a stop work order was issued to McQueen Engineering. 

            B.  The No Contest Plea

            On March 17, 2004, a complaint was filed that charged defendant with five felonies, including fraudulent use of a contractor's license (Bus. & Prof. Code, §  7027.3; counts 1, 2); diversion of construction funds (Pen. Code, § 484b; count 3); and unlawful failure to file an income tax return with intent to evade payment (Rev. & Tax. Code, § 19706; counts 4, 5).  The complaint also included a special allegation that defendant had intentionally taken, damaged and destroyed property of a value in excess of $150,000 (Pen. Code, § 12022.6, subd. (b).)

            The preliminary hearing was held on February 14, 2005.  Defendant was held to answer on all counts.  However, the trial court made no holding order as to the special allegation under Penal Code section 12022.6, subdivision (b). The information filed February 23, 2005, alleged the same five counts as the complaint but omitted the special allegation. 

            Defendant subsequently entered into a plea agreement.  On August 11, 2005, defendant pleaded no contest to count 1, fraudulent use of a contractor's license (Bus. & Prof. Code, § 7027.3) on or about January 15, 2001.  In exchange, the remaining counts were to be dismissed and the indicated sentence included no immediate state prison, probation for up to five years, imposition of a restitution fine and victim restitution, and consideration of all counts in determining restitution.  The parties also stipulated to a factual basis for the plea, as follows:  â€