Filed 7/22/16 P. v. Long CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D068310

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCN331217)

DENNIS EUGENE LONG,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County,

Michael J. Popkins, Judge. Affirmed in part, modified in part with directions.



         Patrick Dudley, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie, L. Garland, Assistant Attorney General, Arlene A. Sevidal and Michael

Pulos, Deputy Attorneys General, for Plaintiff and Respondent.
                                    INTRODUCTION

       Dennis Eugene Long was charged with 69 criminal offenses for defrauding his

friends, fellow church members, and acquaintances of tens of thousands of dollars

through an herbal supplement investment scheme. Long pleaded guilty to five counts:

one count of securities fraud with an admission it caused loss in excess of $500,000

(Corp. Code, § 25541; Pen. Code,1 § 186.11, subd. (a)(2) [white collar crime

enhancement]; count 1), three counts of grand theft of personal property, each involving

more than $950 (§ 487, subd. (a); counts 4, 7, & 22), and one count of burglary of an

inhabited dwelling (§§ 459, 460; count 10).

       After hearing statements from a number of victims, the court decided it could not

abide by the stipulated sentence of seven years and offered Long the opportunity to

withdraw his guilty plea. Long chose not to do so and agreed the court could sentence

him to a term between seven and 12 years. The court sentenced him to 12 years in state

prison based upon the upper term of five years for securities fraud (count 1) with the five-

year white collar crime enhancement plus three consecutive terms of eight months each

for the grand theft counts (counts 4, 7, & 22). The court sentenced Long to the middle

term of four years for first degree residential burglary (count 10) to be served

concurrently with the other terms. In addition to other fines and fees, the court ordered

victim restitution pursuant to section 1202.4, subdivision (f), totaling $422,167 for 19




1      Further statutory references are to the Penal Code unless otherwise indicated.
                                              2
victims. This included a restitution award of $50,000 for victims Frisco White and Marie

Olsen.

         Long contends on appeal (1) the court abused its discretion in sentencing him to

12 years in prison because it did not properly consider his age and health as mitigating

factors, (2) the victim restitution award for White and Olsen was based on a clerical error

and should be modified from $50,000 to a total of $25,000, and (3) the abstract of

judgment should be corrected to strike the indication Long was convicted of a violent

felony. Because the People concede contentions two and three, we remand for correction

of the minutes and abstract of judgment to reflect a restitution award of $25,000 for

victims White and Olsen and to strike the violent felony designation as to count 10. In all

other respects, the judgment is affirmed because we conclude the court acted within its

broad discretion for sentencing.

                                      BACKGROUND

                                             A2

         Long created a limited liability company in 2005, which apparently never

functioned as a business entity. Long and his wife attended a church and bible study

group where they became trusted friends with a number of members. Long met with

many of these church members privately in their homes where he offered to "bless" them

with his good fortune. He told them he recently sold a company for $4 million in which

he owned exclusive rights to an herbal supplement product line similar to Viagra. He


2      Because the plea agreement was reached before a preliminary hearing, we draw
the factual background from the victims' statements and the probation officer's reports.
                                              3
told them he wanted to give them a "financial gift" by allowing them to buy shares in his

company as original investors, which would provide extravagant guaranteed returns, with

exponentially higher returns for higher investments. Long swore the church members to

secrecy because he could not offer the investment opportunity to everyone. Long showed

at least one investor a letter from an attorney purporting to substantiate the story of the $4

million sale. The letter turned out to be a forgery.

       Church members and other acquaintances, including individuals Long met through

his daughter's volleyball team, invested with Long between August 2005 and October

2012. He preyed on individuals who confided they were struggling financially or had

financial concerns due to illness or family issues. Long provided various excuses for

why the payout return was delayed including his own illness, bad negotiations, and an

audit by the Internal Revenue Service (IRS).

       When detectives executed a search warrant at Long's home, they located

investment subscription agreements from the victims, but no evidence of a viable

business or of Long producing or distributing an herbal supplement product. The victims'

checks were deposited into the Longs' personal bank account and the money was used for

their personal expenses such as private school for their daughter, luxury vehicles,

extravagant vacations, jewelry, credit card payments and household expenses.

       More than 30 victims lost over $900,000 to Long's scheme. When three

individuals threatened to report Long to law enforcement, he returned a total of $9,500 to

those individuals.



                                              4
                                             B

       A felony complaint charged Long with 69 felony counts of criminal offenses

conducted in a fraudulent scheme to obtain money from more than 30 named victims.

The charges included one count of securities fraud (Corp. Code, § 25541), four counts of

burglary of an inhabited dwelling (§§ 459, 460), 32 counts of making false statements in

connection with the sale of a security (Corp. Code, §§ 25401, 25540), 31 counts of grand

theft of personal property in excess of $950 (§ 487, subd. (a)), and one count of using the

personal identifying information of another (§ 530.5, subd. (a)).

       Long pleaded guilty to securities fraud (count 1), three counts of grand theft of

personal property in excess of $950 (counts 4, 7, & 22), and one count of residential

burglary (count 10). With respect to securities fraud, Long admitted he committed a

fraud in excess of $500,000 involving the offer of corporate funds or securities. With

respect to the grand theft counts, he admitted unlawfully stealing money from others on

three separate occasions in excess of $950 each. With respect to the residential burglary

count, he admitted entering a residential dwelling with the intent to commit a fraud or

felony. He entered the plea in exchange for a stipulated sentence of seven years in state

prison and dismissal of the remaining charges. The plea agreement included a waiver

pursuant to People v. Harvey (1979) 25 Cal.3d 754, 758, which permitted the court to

consider facts underlying dismissed counts for purposes of sentencing.

                                             C

       At the sentencing hearing, the court heard statements from numerous victims who

described how Long preyed on their vulnerabilities. They expressed how his actions

                                             5
caused them to lose not only money, which impacted their lives significantly, but also

their ability to trust others. Some described Long as "a wolf in sheep's clothing." Many

victims expressed their desire for the court to give him the maximum possible sentence

and their concern that seven years was not an adequate sentence for his conduct,

particularly since he would likely only actually serve three and a half years. Other victim

statements in the probation report expressed concerns that a seven-year sentence was too

light and would be "just a 'slap on the wrist' " or a "joke"

       After hearing from the victims, the court stated, "I am moved by everyone's

comments. And it's always been my feeling that when one steals, it's wrong no matter

who you steal from. [¶] But this court feels that it's even more egregious when you steal

from people who have been nice to you, taken you in as a friend. And it becomes much

more serious, in my opinion, when that occurs. And that's the case here. [¶] Apparently

everyone was kind to Mr. Long. Everyone took him in as a friend. Everyone trusted

him. And the payback for that is that they lost an enormous amount of money."

       Noting Long pleaded guilty to some of the charges for a stipulated sentence of

seven years, the court acknowledged Long could receive 50 percent credit for good

behavior, in which case he would serve only three and a half years. The court concluded

by saying, "the comments that I've heard, the amounts of money that have been taken,

and the nature of the thefts from people who were kind to him, people who trusted him,

has caused this court a great deal of concern. [¶] Even though it's a stipulated sentence of

seven years, this court has the power at the time of sentencing not to follow that

sentence." The court stated it was appalled by what occurred in this case and agreed

                                              6
seven years was not appropriate. The court stated its intention to sentence Long to 12

years in prison, but would allow Long to withdraw the plea if he so desired. The court

granted Long a continuance to consider his options.

                                            D

       Long chose not to withdraw his plea and agreed the court could sentence him to a

term between seven and 12 years. The court granted another continuance to allow the

probation department to prepare a supplemental report including a statement from Long

and to allow Long's attorney the opportunity to submit briefing in support of a sentence

less than 12 years.

       In his statement to the probation department, Long said he consulted with

attorneys to set up his company. He said he started by selling units of the company to

friends and acquaintances, but then decided to sell the product outright. He stated he paid

himself a salary of $225,000 per year for four or five years. He said he was audited by

the IRS and then stopped collecting money because he was ill. He admitted lying to six

families so he could "buy some time" until he could sell the company. He claimed he

thought he and all of his investors would do well, but he mishandled things and "screwed

up."

       Long submitted medical records showing he had a history of chronic lymphocytic

leukemia (CLL), which was stage I and did not meet the criteria for treatment. He had an

episode of acute liver failure in 2012, possibly caused by an autoimmune disease. He

was treated with medications and followed by physicians on an outpatient basis. While



                                            7
in custody, Long had a six-millimeter (mm) basal cell carcinoma lesion on his left upper

back biopsied. He also had a staphylococcus infection on his left big toe.

                                             E

       The court considered briefing and arguments from both sides, the supplemental

and original probation reports, victim impact statements, and letters of support for Long.

The court noted Long was 65 years old at the time of sentencing and had no prior record.

The court also noted he had some medical issues. The court considered the fact Long

served in the military as a positive factor, even though there was some dispute about his

length of service. The court also considered the fact Long entered a plea at an early stage

of the proceeding and chose not to withdraw his plea when the court indicated its

intention not to abide by the stipulated sentence.

       The court acknowledged Long's statement to the probation officer reflected some

remorse. However, his statement also minimized his conduct and tried to portray this as

a bad investment and a bad judgment rather than theft from his friends. The court stated,

"He's trying to manipulate us again into believing this was a righteous investment and he

simply was paying himself a salary and he just made poor decisions and poor judgment.

And I just don't buy it."

       The court agreed with the probation report's characterization of Long's actions as

"egregious, selfish and manipulative." The court stated it was moved by the victims'

statements stating, "[p]eople have lost life savings believing that their investments were

going to be used for a legitimate purpose for marketing a product that they were told was



                                             8
going to have a great return and not to pay an exorbitant salary to the defendant of

$225,000 a year for four or five years."

       The court noted the probation department's recommendation of a 14-year prison

term was not outrageous, but indicated Long deserved some credit for abiding by the

guilty plea. The court determined an aggregate 12-year prison term was appropriate.

       The court imposed the upper term of five years for securities fraud, finding the

aggravating factors outweighed any mitigating factors. As to the white collar crime

enhancement under section 186.11, subdivision (a)(2), the court found a consecutive

upper term of five years appropriate because aggravating factors outweighed any

mitigating factors, "particularly the fact that the amount stolen actually exceeded the

$500,000 by at least $500,000 over and above that." As to the grand theft counts, the

court noted they involved separate incidents and separate victims. The court imposed

three consecutive eight-month terms (one-third the middle base term) for a total of two

additional years. The court imposed the middle term of four years for the residential

burglary count, but concluded Long's early acknowledgment of guilt and his decision not

to withdraw his guilty plea were mitigating factors justifying a concurrent term.

                                       DISCUSSION

                                              I

       Long contends the trial court abused its discretion by failing to give sufficient

weight to his age and health conditions as mitigating factors in deciding the length of his

sentence. We disagree.



                                              9
       "When a judgment of imprisonment is to be imposed and the statute specifies three

possible terms, the choice of the appropriate term shall rest within the sound discretion of

the court." (§ 1170, subd. (b).) "California law affords the trial court broad discretion to

consider relevant evidence at sentencing." (People v. Towne (2008) 44 Cal.4th 63, 85.)

We review a sentencing decision for abuse of discretion. "The trial court's sentencing

discretion must be exercised in a manner that is not arbitrary and capricious, that is

consistent with the letter and spirit of the law, and that is based upon an 'individualized

consideration of the offense, the offender, and the public interest.' " (People v. Sandoval

(2007) 41 Cal.4th 825, 847.)

       "In reviewing for abuse of discretion, we are guided by two fundamental precepts.

First, ' "[t]he burden is on the party attacking the sentence to clearly show that the

sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a

showing, the trial court is presumed to have acted to achieve legitimate sentencing

objectives, and its discretionary determination to impose a particular sentence will not be

set aside on review." ' [Citations.] Second, a ' "decision will not be reversed merely

because reasonable people might disagree. 'An appellate tribunal is neither authorized

nor warranted in substituting its judgment for the judgment of the trial judge.' " '

[Citations.] Taken together, these precepts establish that a trial court does not abuse its

discretion unless its decision is so irrational or arbitrary that no reasonable person could

agree with it." (People v. Carmony (2004) 33 Cal.4th 367, 376-377.)

       The court in this case considered Long's age and the fact he had no prior criminal

record as a positive mitigating factor. The court also considered his medical conditions

                                              10
stating it had "no doubt Mr. Long does have these medical issues." The court stated "the

amount of weight that should be given for sentencing … is questionable to the court, but

nevertheless, I do believe he has those medical issues."

       We do not understand this statement to be a question either about the ability of the

court to consider medical issues3 or about whether Long actually had some health issues.

Rather, we assume the court meant what it said. It had reservations about how much

weight Long's medical issues deserved when balanced against the aggravating

circumstances present in the case such as the serious nature of the crimes involving large

amounts of money stolen from numerous victims, many of whom were friends who

trusted and confided in Long about their financial concerns and vulnerabilities.4

       The probation report listed possible circumstances in aggravation to include the

planning, sophistication and professionalism in carrying out the crime (Cal. Rules of

Court, rule 4.421(a)(8))5 the fact Long took advantage of a position of trust or confidence

with friends, church members and parents of his daughter's friends (rule 4.421(a)(11), and

the fact the offenses occurred over several years giving Long many opportunities to stop

his criminal behavior, "including when he became ill; however, he chose to continue his

3      Rule 4.423(b)(2) of the California Rules of Courts allows the court to consider as a
mitigating factor whether the "defendant was suffering from a mental or physical
condition that significantly reduced culpability for the crime." Because the court
considered Long's medical conditions, we need not reach the issue of whether or not his
conditions were such that they "significantly reduced culpability for the crime."

4     According to the medical records submitted, Long's conditions appeared stable
with medications and medical care.

5      Further rule references are to the California Rules of Court.
                                            11
criminal acts after he recovered from his illnesses" (rule 4.408(a)). The court found these

aggravating circumstances "far outweigh any mitigants." The court's decision in this

regard and its sentencing choice was neither irrational nor arbitrary. "It is not our role to

interfere with such a determination. No abuse of discretion has been demonstrated."

(People v. Lai (2006) 138 Cal.App.4th 1227, 1259.)

                                              II

       " '[D]irect victims of crime have a statutory right to restitution on the full amount

of their losses.' " (People v. Millard (2009) 175 Cal.App.4th 7, 26.) "[A] prima facie

case for restitution is made by the People based in part on a victim's testimony on, or

other claim or statement of, the amount of his or her economic loss. [Citations.] 'Once

[the People have] made a prima facie showing of [the victim's] loss, the burden shifts to

the defendant to demonstrate that the amount of the loss is other than that claimed by the

victim.' " (Ibid.) We review a restitution order for abuse of discretion. (Ibid.)

       Long contends, and the People concede, the $50,000 restitution award for victims

White and Olsen was based on a clerical error from the probation department's stipulated

sentence report. The losses identified for White and Olsen were $15,000 and $10,000,

for a total of $25,000. Therefore, we modify the restitution award to White and Olsen

from $50,000 to $25,000 and direct the trial court to correct the court minutes and the

abstract of judgment accordingly.

                                             III

       "[A]ny burglary of the first degree" is a "serious" felony. (§ 1192.7, subd.

(c)(18)); however, for a felony to be violent, it must be "charged and proved that another

                                             12
person, other than an accomplice, was present in the residence during the commission of

the burglary." (§ 667.5, subd. (c)(21).) Count 10 alleged Long committed unlawful entry

into a building "occupied" by the victims with the intent to commit theft. Long admitted

in making his plea he "entered a residential dwelling with the intent to commit a

fraud/felony."6 However, as the People concede, Long did not specifically admit the

individuals were present at the time of the burglary. Since count 10 was not pleaded and

proven to be a violent felony, we direct the court to correct the abstract of judgment to

remove such a designation. (People v. Mitchell (2001) 26 Cal.4th 181, 188.)




6       Long acknowledged during the plea colloquy count 10 would be considered a
strike because it was a "serious or violent felony." (Italics added.)
                                             13
                                      DISPOSITION

       The victim restitution award to White and Olsen is modified from $50,000 to

$25,000 and the trial court is directed to correct the court minutes and the abstract of

judgment accordingly. Additionally, the trial court is directed to amend the abstract of

judgment to remove the designation of count 10 as a violent felony. The court is further

directed to forward a copy of the amended abstract to the Department of Corrections and

Rehabilitation. In all other respects, the judgment is affirmed.




                                                                        MCCONNELL, P. J.

WE CONCUR:




                        NARES, J.




                    O'ROURKE, J.




                                             14
