P. v. Oluwatosin

Filed 1/29/07 P. v. Oluwatosin CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEAL from a judgment of the Superior Court of Los Angeles County.

Bob S. Bowers, Judge. Appeal dismissed.

Olawtunji Oluwatosin in pro. per.; and William D. Farber, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

________________________

This case arises from an extensive conspiracy to commit computer-access fraud and identity theft by Olawtunji Oluwatosin and other, unknown conspirators affecting numerous individuals and financial institutions. Pursuant to his negotiated plea to one count of conspiracy to commit computer intrusion and one count of grand theft of personal property, Oluwatosin was sentenced to an aggregate state prison term of 10 years. Oluwatosin timely appealed from the judgment, challenging the trial courts sentencing decision; he did not obtain a certificate of probable cause.

FACTUAL BACKGROUND

From January 3, 2002 until October 26, 2004 Oluwatosin and his confederates rented mail boxes and opened several cellular telephone accounts in the Los Angeles area, using stolen credit cards and drivers licenses. Oluwatosin and his confederates then successfully applied for accounts with ChoicePoint Corporation in the names of fictitious financial companies, each time listing a mail box and cellular telephone number as the companys address and telephone number. ChoicePoint Corporation maintains a computer database of personal, bank account and credit card information on millions of individuals throughout the United States. Oluwatosin and his confederates were able to access this information through their ChoicePoint Corporation accounts, which allowed them to manipulate the individual credit card accounts of unsuspecting victims. Specifically, Oluwatosin and his confederates transferred from the victims accounts to their own accounts any unused credit balance; they withdrew cash from the victims accounts through automatic teller machines; and they stole credit cards from the United States mail, which they either activated to obtain money from financial institutions or sold to third parties.

In addition to ChoicePoint Corporation itself and a number of banks and other financial institutions, more than 146,000 people were at risk as a result of the approximately 69,000 searches of Choice Point Corporation data conducted by Oluwatosin and his confederates. Twenty individuals were identified for purposes of Oluwatosins prosecution as having personal, bank account and credit card information compromised during the course of the conspiracy.

PROCEDURAL BACKGROUND

On August 24, 2005 the grand jury returned a 22-count felony indictment against Oluwatosin, charging him with one count of conspiracy to commit computer intrusion (Pen. Code, 182, subd. (a)(1), 502, subd. (a)(1)) (count 1). Thirty-eight acts were identified in support of the conspiracy, which was alleged to have occurred between January 3, 2002 and October 27, 2004. The indictment further charged Oluwatosin with five counts of grand theft of personal property (Pen. Code, 487, subd. (a) (counts 2-6), two counts of theft (Pen. Code, 484e, subd. (d)) (counts 7 - 8) and 14 counts of identity theft (Pen. Code, 530.5, subd. (a)) (counts 9-22).

The indictment specially alleged as to counts 1 through 4, that the commission of the charged offenses involved an amount in excess of $1,000,000 (Pen. Code, 12022.6, subd. (3)); as to counts 2, 3, 4 and 6, that the commission of the charged offenses involved an amount in excess of $150,000 (Pen. Code, 12022.6, subd. (a)(2)); as to all counts, that the charged offenses were part of a pattern of related felonies, a material element of which is fraud and embezzlement, in which the taking exceeded $500,000 (Pen. Code, 186.11, subd. (a)(2)) (the aggravated white collar crime enhancement); and, also as to all counts, that the commission of the charged offense involved an amount exceeding $2,500,000 (Pen. Code, 12022.6, subd. (a)(4) (the excess value enhancement)).

On December 20, 2005 pursuant to a written plea agreement filed under seal with the trial court, Oluwatosin agreed to plead guilty to count 1, conspiracy to commit computer intrusion, and to admit two of the alleged overt acts, and also plead guilty to count 2, grand theft of personal property. As to those counts, Oluwatosin agreed to admit the excess value enhancement and the aggravated white collar crime enhancement. As part of the confidential plea agreement the sentencing hearing was to be continued because it was agreed the length of Oluwatosins sentence within a range from seven years four months to 12 years in state prison would be determined according to factors set forth in the confidential agreement.

The record establishes Oluwatosin was provided a copy of the confidential plea agreement, acknowledged he had read it and agreed he had no questions. Thereafter, Oluwatosin was advised of, and waived, his constitutional rights and was advised of, and acknowledged that he understood the consequences of his plea. Oluwatosin stated he understood his potential sentence ranged from a minimum of seven years four months to a maximum of 12 years in state prison according to the terms of the confidential plea agreement. Oluwatosin further stated he was entering his plea knowingly, intelligently, freely and voluntarily, and he had had sufficient time to speak with defense counsel about the confidential plea agreement.

Thereafter Oluwatosin pleaded guilty and admitted the special allegations pursuant to the confidential plea agreement. Defense counsel joined in the waivers of Oluwatosins constitutional rights and stipulated Oluwatosins plea was entered into pursuant to People v. West (1970) 3 Cal.3d 595. Before accepting the plea, the trial court reviewed and approved the confidential plea agreement. The court found Oluwatosins waivers, plea and admissions were expressly voluntary, knowing and intelligent. The trial court found and defense counsel stipulated to a factual basis for Oluwatosins plea based on the police reports and other materials contained in the case file.

At the February 10, 2006 sentencing hearing, the trial court heard argument from the prosecutor and defense counsel and sentenced Oluwatosin to an aggregate 10 years in state prison pursuant to the terms of the confidential plea agreement. The sentence consisted of the upper term of three years for grand theft of personal property (count 2), plus four years for the excess value enhancement and three years for the aggravated white collar crime enhancement. The sentence imposed on count 1 was stayed (Pen. Code,  654).

The trial court also imposed a restitution fine of $200 and a parole revocation fine of $200, which it suspended pursuant to Penal Code section 1202.45. The court additionally ordered Oluwatosin to pay victim restitution of $1,999,600.57 to ChoicePoint Corporation, $1,082,560.98 to the Bank of America/Fleet Bank, $391,253.41 to Discover Bank, $1,119,589.90 to Bank One, $2,490,030.60 to Citibank/Sears and $9,074.49 to HSBS Bank. Oluwatosin received presentence custody credit of 708 days (472 actual days and 236 days of conduct credit).

We appointed counsel to represent Oluwatosin on appeal. After examination of the record counsel filed an Opening Brief in which no issues were raised. On November 27, 2006 we advised appellant he had 30 days within which to personally submit any contentions or issues he wished us to consider. On December 15, 2006 Oluwatosin filed a supplemental brief claiming the imposition of the four-year excess value enhancement violated his federal due process rights because the facts of the taking, damage or destruction in excess of $2.5 million were not charged in the accusatory pleading and found by the trier of fact as required by Penal Code section 12022.6, subdivision (c).

We have examined the entire record, including the confidential plea agreement and the transcript of the sentencing hearing, and are satisfied Oluwatosins attorney has fully complied with the responsibilities of counsel and no arguable issues exist. (Smith v. Robbins (2000) 528 U.S. 259, 277-284 [120 S.Ct. 746, 145 L.Ed.2d 756]; People v. Kelly (Nov. 27, 2006, S133114) ___ Cal.4th ___; People v. Wende (1979) 25 Cal.3d 436, 441.) Oluwatosin accepted a plea agreement that included a reduction in the maximum permissible sentence for the crimes and special allegations he admitted -- conspiracy to commit computer intrusion (count 1) and grand theft of personal property (count 2) and the related excess value and aggravated white collar crime enhancements -- from a possible aggregate state prison term of 20 years to the 10-year term actually imposed. The sentence imposed was within the range to which Oluwatosin expressly agreed. Oluwatosins challenge to an element of that sentence on appeal is in substance an attack on an integral part of the plea itself, requiring a certificate of probable cause. (People v. Panizzon (1996) 13 Cal.4th 68, 70 [a challenge to a negotiated sentence imposed as part of a plea bargain is properly viewed as a challenge to the validity of the plea itself].) Because no certificate of probable cause was obtained, the appeal must be dismissed.

DISPOSITION

The appeal is dismissed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

PERLUSS, P. J.

We concur:

WOODS, J.

ZELON, J.

Publication courtesy of California pro bono lawyer directory.

Analysis and review provided by Chula Vista Property line Lawyers.