P. v. McGee CA1/3

Filed 7/24/13 P. v. McGee CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent, A133466 v. GINA MICHELLE McGEE, (Marin County Super. Ct. No. SC170537B) Defendant and Appellant.

Defendant Gina Michelle McGee appeals from a judgment following her guilty plea to the fraudulent offer, purchase, or sale of a security and grand theft by embezzlement. She contends the trial court abused its discretion in denying her motion to withdraw her guilty plea. We find no such error and shall affirm the judgment. FACTUAL AND PROCEDURAL BACKGROUND At the preliminary hearing, the prosecution presented evidence tending to show that between April 2006 and June 2009, numerous individuals were admitted as limited partners in Highlands Capital Partners, which was owned by defendant’s husband, codefendant Glenn Jackson, and specialized in currency trading. Highlands Capital Partners was affiliated with other entities, including Highlands Capital Advisors and Highlands Capital Management (collectively, Highlands). The prosecution presented evidence that defendant’s name appeared on various documents listing her as an officer and trading partner of Highlands. There was also evidence that she represented herself as employed by Highlands as a commodities trading agent, and she was authorized to withdraw funds from various Highlands accounts.

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Highlands reportedly received about $2.9 million from investors between April 2006 and June 2009. Approximately $1.1 million of that money was lost, $600,000 transferred to bank accounts for Jackson’s and defendant’s personal use and approximately $1.1 million never deposited into any trading account but converted to the defendants’ personal use. On June 2, 2011, the Marin County District Attorney filed a two-count information charging defendant with the fraudulent offer, purchase, or sale of a security (Corp. Code, § 25541) and grand theft by embezzlement (Pen. Code, § 487, subd. (a)). As to both counts, the information alleged that defendant took more than $500,000. (Pen. Code, § 186.11, subd. (a).) On that same day, defendant executed a “Guilty Plea Waiver Form” in which she stated, “I offer my plea of GUILTY, and my admissions and waivers freely and voluntarily. . . .” Defendant verbally confirmed to the court that she understood the charges and was entering her plea voluntarily. She thereafter entered plea of guilty pursuant to Alford/West,1 and acknowledged the truth of the Penal Code section 186.11 enhancement concerning the amount of loss. On August 19, 2011, a few days prior to the sentencing hearing, and again at the August 22 hearing before sentence was imposed, defense counsel advised the court that defendant intended to file a motion to withdraw her plea. Defense counsel stated that the motion would be based on the contention that defendant’s mental condition at the time she entered the plea constituted duress. The trial court nonetheless proceeded with sentencing, deferring the imposition of sentence and placing defendant on probation for a period of eight years, with 351 days of credit for time served. On August 30, 2011, defendant filed a written motion to withdraw her guilty plea. In support of the motion, defendant stated that she had been affected by her family’s health problems and the recent death of two friends, and that she had developed a rash, lost weight, discovered two lumps on her own breast, and missed the family pet. The trial court denied the motion.