People v. Avignone

225 Cal. Rptr. 3d 61, 16 Cal. App. 5th 1233
CourtCalifornia Court of Appeal, 5th District
DecidedOctober 13, 2017
DocketD070012; D070388
StatusPublished
Cited by11 cases

This text of 225 Cal. Rptr. 3d 61 (People v. Avignone) is published on Counsel Stack Legal Research, covering California Court of Appeal, 5th District primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Avignone, 225 Cal. Rptr. 3d 61, 16 Cal. App. 5th 1233 (Cal. Ct. App. 2017).

Opinion

NARES, J.

*1236Susan Joy Avignone and William Alan Avignone (together the Avignones) defrauded five investors out of more than $700,000 in a real estate scheme. In exchange for dismissal of some of the charges, the Avignones pleaded guilty to three counts of fraud in connection with the offer, sale, and purchase of a security (Corp. Code, §§ 25401 & 25540, subd. (b); counts 2, 8, 10) and two counts of grand theft of personal property with a value of more than $950 (Pen. Code, § 487, subd. (a)1 ; counts 3, 5). Susan admitted a section 186.11, subdivision (a)(2) allegation attached to count 10 and a section 12022.6, subdivision (a)(1) allegation attached to count 5. William admitted a section 186.11, subdivision (a)(2) allegation attached to *64count 2, a section 12022.6, subdivision (a)(2) allegation attached to count 3, and a section 12022.6, subdivision (a)(1) allegation attached to count 5. At sentencing, the trial court struck the section 186.11 enhancements and denied probation. It sentenced the Avignones to an aggregate term of five years four months to be served in the custody of the sheriff. The court imposed a split sentence, ordering that one year four months of the imposed sentence would be served in the community under mandatory supervision.

The Avignones separately appealed, contending the trial court abused its discretion in denying probation.2 William also contends (1) the electronic search condition was unreasonable and unconstitutionally overbroad, and (2) the trial court improperly calculated a restitution order as to one of the victims. The People assert that the Avignones' sentences are unauthorized because the trial court did not have discretion to sentence them to county jail, rather than prison.

In the published portion of this opinion, we agree that the trial court imposed an unauthorized sentence because a white collar crime enhancement *1237is a disqualifying factor under the Criminal Justice Realignment Act of 2011 (operative Oct. 1, 2011, as added by Stats. 2011, 1st Ex. Sess. 2011-2012, ch. 12, § 1). Accordingly, the trial court imposed an unauthorized sentence as it lacked discretion to strike the white collar enhancements under section 1385, and thus could not impose a split sentence.

In the unpublished portion of this opinion, we reject the Avignones' argument that the trial court abused its discretion in denying probation. The People concede that the trial court improperly calculated the restitution for one of the victims. Finally, William's argument regarding the electronic search condition is moot based on our conclusion that he received an unauthorized sentence. We reverse the judgments and remand with directions to allow the Avignones an opportunity to withdraw their guilty pleas.

GENERAL FACTUAL BACKGROUND

Because the parties are familiar with the facts, we summarize only the general facts concerning the underlying crimes at issue in this appeal. We present additional facts concerning the issues on appeal in our discussion post .

Eric-Count 2

Eric spoke to his pastor about his plan to borrow against the equity in his home to obtain funds he needed to start a new drywall business. The pastor referred Eric to Susan, his sister, for financial advice. Susan told Eric that she and her husband, William, were financial planners doing business as SABA Investments (SABA). In May 2006, Susan helped Eric refinance his home, with part of the funds used to purchase life insurance policies for Eric and his wife.

In April 2009, William contacted Eric by telephone to suggest borrowing against the life insurance policies to invest in real estate in Georgia to obtain a greater return than what the life insurance policies provided. Eric sent a check to SABA for $27,000. He received a promissory note indicating that he and his wife would receive quarterly payments for five years and a 50 percent share of the equity in the property when it was sold in five years. The investment was to be secured by a first lien on the property. The quarterly payments stopped in October 2010. In January 2011, William told Eric that he did not have the money to pay him back. Eric *65never received paperwork indicating the investment was used to purchase real property and never received any lien paperwork for property in Georgia. *1238Otilia-Count 3

Otilia met the Avignones through a friend and purchased a life insurance policy from them. In 2009, Otilia met with the Avignones. They suggested that she borrow against her life insurance policy and use the money to invest in real estate in Georgia. They told her they would purchase a block of properties from the government, turn them around in three to five years, triple the money, and she would get half. In June 2009, Otilia invested $70,000. She received a promissory note for that amount and was promised quarterly payments of $2,100. In February 2010, Otilia made a $245,000 investment with the Avignones. At some point, she made another $38,760 investment. Otilia initially received some payments, but in March 2011 all payments on her investments stopped. Otilia never received any paperwork showing that property had been purchased with her funds or paperwork showing that she was a first lien holder on any property.

Monroe-Count 5

After meeting William through a mutual friend, Monroe purchased a life insurance investment from William. In June 2009, William told Monroe that his company, SABA, used investor funds to purchase distressed properties in Georgia, fix them up, and rent them out. William promised Monroe that if he invested in the plan, Monroe would receive first lien status on the title of each property purchased. William promised quarterly payments on the investment and 50 percent of the profit when the properties were sold. Monroe invested a total of $150,000. Monroe initially received some payments, but the payments stopped. In July 2011, William told Monroe that the payments would resume soon, but Monroe never received any more payments.

Carlos-Count 8

Carlos met the Avignones through Otilia. In 2010, Carlos met with the Avignones and gave his $217,000 retirement sum to the Avignones. The Avignones used $200,000 to invest in property located in Georgia and returned the balance so Carlos could pay off creditors. In return, Carlos received a promissory note that guaranteed him $2,000 per month. He received several months of payments, but the payments were then cut in half and ultimately stopped. William never returned Carlos's telephone calls and Carlos discovered that the SABA office had been vacated.

Frank-Count 10

Frank met the Avignones at church and considered them his "best church friends." In early 2010, Frank sought financial advice from the Avignones as *1239he was facing foreclosure of his home. In May 2010, Frank gave the Avignones $54,000 to invest in real estate in a southern state. In return, he received a promissory note for $54,000 and was promised quarterly interest payments.

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Cite This Page — Counsel Stack

Bluebook (online)
225 Cal. Rptr. 3d 61, 16 Cal. App. 5th 1233, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-avignone-calctapp5d-2017.