P. v. Breider

Filed 3/29/06 P. v. Breider CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

Defendant Wayne Joseph Breider appeals his conviction by guilty plea of fiduciary grand theft by embezzlement (Pen. Code, § 487, subd. (b)(3)) (count 2) and failure to file personal and business income tax returns (Rev. & Tax. Code, § 19706) (count 3). As to count 2, defendant admitted enhancement allegations that he took property valued in excess of $2.5 million (Pen. Code, § 12022.6, subd. (a)(4)), and that his offenses involved a pattern of related felony conduct involving the taking of more than $500,000 (Pen. Code, § 186.11, subd. (a)).^[1] Pursuant to his plea bargain, he was sentenced to 12 years 8 months in state prison. Defendant's counsel advise this court that their examination of the record reveals no arguable issues. (Anders v. California (1967) 386 U.S. 738; People v. Wende (1979) 25 Cal.3d 436.)

Background

Count 2

On December 20, 2000, defendant met with his friend, Brian Maxwell, to discuss defendant's company's investment opportunities. Defendant represented to Maxwell that defendant's company was a privately held investment banking firm and fraudulently induced Maxwell and Maxwell's wife to invest $1 million in a particular Jameson Inns, Inc., venture. In February and April 2001, defendant fraudulently induced Maxwell to transfer $5 million to defendant's account regarding an Opti, Inc., stock venture. In May 2002, Maxwell transferred another $1 million into defendant's account. Defendant used the Maxwells' funds to support his affluent lifestyle.

Count 3

The Franchise Tax Board reported that defendant did not file income tax returns between April 15, 2002 and February 1, 2005, and filed a claim against him for approximately $1.4 million.

Trial Court Proceedings

At the February 7, 2005 change of plea hearing, defendant was properly advised of the nature and consequences of his guilty plea pursuant to his plea bargain, and was found to have made a knowing, voluntary and intelligent waiver of his rights. Defense counsel stipulated to a factual basis for defendant's plea.

At the July 22, 2005 sentencing hearing, the court properly denied probation. (Pen. Code, § 1203.045.)^[2] It also properly balanced aggravating and mitigating factors and found that the circumstances warranted imposition of the aggravated three-year term on count 2, a consecutive eight-month term (one-third the midterm) on count 3, a consecutive four-year term for the section 12022.6 subdivision (a)(4) enhancement and a consecutive five-year term on the section 186.11, subdivision (a) enhancement. The court properly ordered: a $10,000 victim restitution fine (§ 1202.4); a $10,000 parole revocation restitution fine to remain suspended unless parole is revoked (§ 1202.45); restitution fines be offset down to $1,000 by restitution actually paid; a $1,000 fine pursuant to section 186.11, subdivision (b); defendant to make restitution on the charges dismissed with a Harvey waiver to be augmented by prejudgment and postjudgment interest of 10 percent; and a minimum of $7 million in restitution to Maxwell's wife since Maxwell was deceased. The issue of restitution to the Franchise Tax Board was left for future discussion. Defendant was properly awarded 372 days of credit. (§ 4019.)

Disposition

There are no arguable issues. The judgment is affirmed.

SIMONS, Acting P.J.

We concur.

GEMELLO, J.

REARDON, J.^*

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^[1] Pursuant to defendant's plea bargain four other counts of fiduciary grand theft by embezzlement and the enhancement allegations associated with each count were dismissed with Harvey waivers (People v. Harvey (1979) 25 Cal.3d 754). He faced a maximum of 18 years in prison if convicted of all the charges and allegations in the third amended complaint.

^[2] All further undesignated section references are to the Penal Code.

^* Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.