ATTACHMENT C

RESPONDENT'S ARGUMENT

To: Cheree Swedensky, Assistant to the B Page 10 of 12 2019-08-07 22:38:25 (GMT) 19099128363 From: Chantel Pineda

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AUG 7 2019

SUPERIOR COURT OF THE STATE OF CALIFORNIA,-.-J «'

FOR THE COUNTY OF LOS ANGELBS

DEPARTMENT NO. 63 2 HON. DAVID R. FIELDS, JUDGE

THE. PEOPLE OF THE STATE OF CALIFORNIA,

PIAINTIFF,

VS.

01 ELAINE ESTRADA,

DEFENDANT(S).

NO. BA445165

REPORTER'S

CERTIFICATE

I, PATRICIA MCNEAL, OFFICIAL REPORTER

OF THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, FOR

THE COUNTY OF"LOS ANGELES, DO'HEREBY CERTIFY THAT THE

FOREGOING PAGES 1-3 COMPRISE A FULL, TRUE, AND CORRECT

TRANSCRIPT OF THE PROCEEDINGS TAKEN IN THE MATTER OP THE

ABOVE-ENTITLED CAUSE HELD ON AUGUST 6, 2019.

DATED THIS 6TH DAY OF AUGUST 2019

PATRICIA MCNEAL, CSR NO. 4458OFFICIAL' REPORTER

ATTACHMENT C

To: Cheree Swedensky, Assistant to the B Page 11 of12 2019-08-07 22:38:25 (GMT) 19099128363 From: Chantel Pineda

K... .

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AUG 7 2019

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EXHIBIT 2

To: Cheree Swedensky, Assistant to the B Page 12 of 12 2019-08-07 22:36:25 (GMT) 19099128363 From: Chantel Pineda

Respondent did not object^ and the Statement of Issues was amended.

Respondent's Evidence

9. Respondent contended at hearing that she was not convicted of a crimebecause her criminal case was dismissed. Had she been convicted of a felony, she wouldhave been sentenced to formal probation or sent to state prison. She aclcnowledged enteringa plea to a misdemeanor, after which her "misdemeanor plea was dismissed with noconvictions." By virtue of her case being "dismissed," respondent asserted that "governmentagencies and ail other entides are banred from using a dismissed case against an employeewith respect to retirement benefits or any other employment benefits." Respondent assertedthat she does not have a criminal record "whatsoever*' and that she "can truthfully state to theworld that she has not been convicted of a crime."

10. The sole case that respondent cited in support of her contention is People v.Garcia (1982) 131 Cal.App.3d 256,258.^ Respondent asserted that the court held "thatwhen a defendant successfully withdraws his or her guilty plea, the case is restored to itsoriginal status before entry of the plea." Respondent contended

[T]he intent of the global settlement was to vacate the felonyplea, restore [respondent] to her pre-plea status that being of ap^ charged but not convicted. As such, after [respondent]withdrew her felony plea, she was restored to the status of anunconvlcted defendant

By withdrawing her felony plea, and the court accepting thewithdrawal of the felony plea, and wth knowledge of the factthat this was the intent of the prosecution, [respondent] couldhave only been convicted of the misdemeanor, which she pled.

CalPERS Evidence and Contentions

11. True Nguyen, a CalPERS Associate Governmental Program Analyst who hasworked for CalPERS for 10 years, testified that his job duties are to review forfeiture ofbenefits c^es, jafeK»tkaMdji!Siiandffl;s ,ca%jai.8SaKdO!at when a CalPERiSjnfimbaLhasbeen copvicted of a felony, the member forfeits her benefits. Mr. Nmiven determined that

V.""I'-T- ' I I'l l I II lini ii iji' iiii iiii^i^iirfrirnTr^^^^iTiii n i jrespondent was convicteooF a felony by olHaunrng and reviewing the court documents.f I l l j

12. Mr. Nguyen determined that respondent made $18,896,69 in membercontributions during the forfeiture period, from September 1,2007, through December 10,2017. December 10, 2017 was respondent's last day on the payroll with the City of SierraMadre. Due to the removal of 5.111 years of service credit, respondent had remaining 1.947years of CalPERS service credit, auid she no longer met the minimum five-year vesting

^ Respondent incorrectly cited the case as 131 Cal.3d 256,258.

Law Offices of

Freddie V. VegaAttorney at Law

August?, 2019

Cheree Swedensky, Assistant to the BoardCalPERS Executive Office

P.O. Box 942701

Sacramento, CA 94229-2701

SUBJECT: In the Matter of the Appeal of Forfeiture of Benefits of ELAINE 0, ESTRADA,

Respondent

RESPONDENrS ARGUMENT

The Proposed Decision is flawed and should not be adopted. In fact, the Board of Administration

(Board) of the California Public Employees' Retirement System (CalPERS) should reinstate Elaine

C. Estrada to be fully vested in CalPERS. Per the attached transcripts, (Exhibit 1) it is dear that

Ms. Estrada pied to a felony, but was never convicted of a felony. In her proposed decision,

Administrative Law Judge Danette C. Brown improperly relied on True Nguyen, a CalPERS

Associate Governmental Analyst to deterrhihe that Ms. Estrada was conviceted of a felony (Exhibit

2). However, on August 6,2019, the Honorable David R. Fields, Judge of the Los Angeles

Superior Court clearly stated on the record that Ms. Estrada was convicted only of a misdemeanor"

and not a felony. As such. Government Code section 7522.72 which requires a conviction of

a felonv bv an emplovee before the empiovee can lose accrued rights or benefits in the

public retirement svstem. does not applv and Ms. Estrada should be reinstated into the

CalPERS system immediateiv. Failure by the Board to reinstate Ms. Estrada will result in the

filing of an appeal in Superior Court of California along with a request for sanctions and .attorney's

fees.

Freddie V. Vega, Attorney at Lj

Cc: Charles H. Glauberman, Senior Attorney

119 N. 2nd Avenue Serving Inland Empire, LA, & OC • Phone (909) 946-0077Upland, CA 91786 www.fireddievegalaw.com Faxt (888) 723-7563

inrvega@fi:^dievegalaw.com

EXHIBIT I

MINUTE ORDERSUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES

DATE PRINTED: 08/06/19

CASE NO. BA446165

THE PEOPLE OF THE STATE OF CALIFORNIAVS.

DEFENDANT 01: ELAINE ESTRADA

BAIL: APPEARANCE. AMOUNT DATE . RECEIPT OR SURETY COMPANY REGISTERDATE OF BAIL POSTED BOND NO. NUMBER

CASE FILED ON 04/28/16.

CHARGING DEFENDANT WITH HAVING COMMITTED;^ON OR.ABOUT 09/01/07 IN THE COUNTY OF LOS ANGELES, THE FOLLOWING OFFENSECS)

ON 08/06/19 AT 830 AM IN CRIM JUSTICE CTR CLAC) DEPT 037

CASE CALLED FOR JUDICIAL ACTION

PARTIES: DAVID R. FIELDS (JUDGE) DARNETTA SMITH (CLERK)PATRICIA MCNEAL (REP) ALAN YOCHELSON (DDA)

DEFENDANT IS PRESENT IN COURT, AND REPRESENTED BY ERIN E. MUSE DEPUTY PUBLICDEFENDER

COURT ORDERS MINUTE ORDER DATED 06/28/17 NUN PRO TUNC IN STATINGDEFENDANT IS CONVICTED OF FELONY CHARGE.

ON 06/28/17, THE DEFENDANT ENTERED INTO A NO CONTEST PLEA TOSECTION 502(C)(7) A FELONY. BUT IS NOT

CONVICTED AND NOT SENTENCED.

ON 01/03/18, THE NO CONTEST PLEA TO COUNT 3, A VIOLATION OF502(C)(7), A FELONY, IS WITHDRAWN AND REDUCED

TO A MISDEMEANOR.

A NO CONTEST FJLEA IS THEN ENTERED-AS TO COUNT 3, A VIOLATION OFPENAL CODE SECTION 502(C)(7). A MISDEMEANOR. DEFENDANT IS THENSENTENCED AND CONVICTED TO MISDEMEANOR ONLY.

JUDICIAL ACTIONPAGE NO. 1 HEARING DATE: 08/06/19

CASE NO. BA446165DEF NO. 01 PRINTED 08/06/19

plea of no contest to a violation of penal code

IS^HEN DISMISsS* ̂ MISDEMEANOR, IS WITHDRAWN AND CASENEXT SCHEDULED EVENT:PROCEEDINGS TERMINATED

08/06/19

and CORRECT COPY OF THE ELECTRONIC MINUTEORDER ON FILE IN THIS OFFICE AS OF THE ABOVE DATE.

Angeles'^ state^of'SSS^nia^^'^^^^'^^^''^'^'^ of superior court, county of los

DEPUTY

JUDICIAL actionpage no. 2 HEARING DATE: 08/06/19

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SUPERIOR COURT OP THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

DEPARTMENT. NO. 632 HON. DAVID R. FIELDS, JUDGE

THE PEOPLE OF; THE STATE OF CALIFORNIA,

PLAINTIFF,

VS.

01 ELAINE ESTRADA,

DEFENDANT (S) .

NO. BA446165

REPORTER'S TRANSCRIPT OF PROCEEDINGS

TUESDAY, AUGUST 6, 2019

APPEARANCES:

FOR THE PEOPLE;

FOR THE DEFENDANT:

JACKIE LACEY, DISTRICT ATTORNEYBY: ALAN YOCHELSON, DEPUTYFOLTZ CRIMINAL JUSTICE CENTER•18TH FLOOR

210 WEST TEMPLE STREETLOS ANGELES, CA 90012

ERIN MUSE

DEPUTY PUBLIC DEFENDER

QORIGiNAL PATRICIA MCNEAL; CSR NO. 4458. OFFICIAL REPORTER i

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CASE NO;

NAME: •

LOS ANGELES, CA

DEPT. 632

REPORTER: .

TIME:

BA446165

PEOPLE VS. ELAINE ESTRADA

TUESDAY, AUGUST 6, 2019

DAVID R. FIELDS, JUDGE

PATRICIA MCNEAL, CSR NO. 4458

2:30 P.M.

APPEARANCES: ' .

DEFENDANT ELAINE ESTRADA, PRESENT IN COURT AND

BEING REPRESENTED BY ERIN MUSE, DEPUTY PUBLIC

DEFENDER; AND ALAN YOCHELSON, DEPUTY DISTRICT

ATTORNEY, PRESENT AND REPRESENTING THE PEOPLE OF

THE STATE OF CALIFORNIA.

THE FOLLOWING PROCEEDINGS WERE HELD:

THE COURT: ELAINE ESTRADA, B.A. 446165.

COUNSEL.

MS. MUSE: ERIN MUSE, DEPUTY PUBLIC DEFENDER, FOR

MISS ESTRADA WHO IS COMING FORWARD.

MS. YOCHELSON: GOOD AFTERNOON, YOUR HONOR.

ALAN YOCHELSON, Y-O-C-H-E-L-S-O-N, FOR THE •

PEOPLE. ■ :

THE COURT: ALL RIGHT. SO WE HAD AN OFF-THE-RECORD

CONFERENCE.

AND THERE IS A REQUEST AND THE COURT IS GOING

1 TO NUNC PRO TDNC PROM JUNE 28TH. WHAT WAS IT? JUNE 28TH,

2 2017?

3 MS. MUSE: I BELIEVE SO.

4 THE COURT: I WANT TO BE SURE. IS THAT THE RIGHT

5 DATE? THIS FILE IS VERY VOLUMINOUS. YES.

6 MS. YOCHELSON: YES.

7 THE COURT: YEAH, IT WAS.

8 SO JUNE 28TH, 2017.

. 9 MS..MUSE: SORRY. .

10 THE COURT: THERE WAS A VIOLATION OF 502 C. 7 AS A

11 FELONY ON THAT DATE.

12 AND THE COURT FINDS NUNC PRO TUNC THAT ON JUNE

13 28TH, 2017,. THE DEFENDANT PLEADED TO THE FELONY BUT WAS NOT

14 CONVICTED.

15 IN ADDITION, THE COURT NUNC PRO TDNC TO

16 JANUARY 3RDi'2018, CAN NOW INDICATE ON JANUARY 3RD, 2018,

17 THE DEFENDANT WAS CONVICTED OF A MISDEMEANOR AND SENTENCED

18 TO A MISDEMEANOR ON JANUARY 3RD, 2018.

19 AND JUST A MINUTE. LET ME TRY TO GET THIS

20 RIGHT. YES.

21 AND THE WAY THIS WAS DONE WAS 502 C. 7 IS

22 REDUCED TO A MISDEMEANOR, COUNT 3, ON JAITOARY 3RD, 2018,

23 NUNC PRO TUNC TO DO THAT. WELL, IT WAS ALREADY DONE, THAT'S

24 CORRECT.

25 ' BUT NUNC PRO TUNC TO MAKE EXPLICITLY CLEAR

26 THAT DEFENDANT WAS SENTENCED, IS SENTENCED TO A MISDEMEANOR

27 ON COUNT 3 ON JANUARY 3RD, 2018, AND CONVICTED OF A

28 MISDEMEANOR ON JANUARY 3RD, 2018. OKAY.

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MS. MUSE: WOULD THE RECORD REFLECT THAT SHE DID NOT

SUFFER A FELONY CONVICTION IN THIS CASE?

THE COURT: THE RECORD WILL SO REFLECT THAT THE

DEFENDANT DID NOT SUFFER A FELONY CONVICTION IN THIS CASE.

SHE MERELY PLEADED TO.THE FELONY ON

MS. YOCHELSON: JUNE 28TH.

THE COURT: -- JUNE 28TH, 2017, BUT WAS NOT

CONVICTED.

■ MS. MUSE: THANK YOU. '

THE COURT: SHE WAS ONLY CONVICTED IN THIS CASE, THE

ONLY OlIMINAL OFFENSE SHE WAS CONVICTED AND SENTENCED WAS A

MISDEMEANOR ON JANUARY 3RD, 2018. THAT IS A MISDEMEMOR OF

502 C. 7 OF THE PENAL CODE WHICH IS A WOBBLER. SO IT ALLOWS

A FELONY OR A MISDEMEANOR. SHE WAS CONVICTED OF A

MISDEMEANOR.

OKAY. ALL RIGHT."

MS. YOCHELSON: THANK YOU, YOUR HONOR.

THE COURT: OKAY. THANK YOU VERY MUCH.

GOOD LUCK.

(WHEREUPON, THE PROCEEDINGS CONCLUDED

AT 2:21 P.M.)

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SUPERIOR COURT OP THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

DEPARTMENT NO. 632 HON. DAVID R. FIELDS, JUDGE

THE. PEOPLE OF THE STATE OF CALIFORNIA,

PLAINTIFF,

VS.

01 ELAINE ESTRADA,

DEPENDANT (S) .

NO. BA446165

REPORTER'S

CERTIFICATE

I, PATRICIA MCNEAL, OFFICIAL REPORTER

OF THE SUPERIOR COURT OP THE STATE OF CALIFORNIA, FOR

THE COUNTY OF'LOS ANGELES, DO HEREBY CERTIFY THAT THE •

FOREGOING PAGES 1-3 COMPRISE A FULL, TRUE, lUTO CORRECT

TRANSCRIPT OF THE PROCEEDINGS TAKEN IN THE MATTER OF THE

ABOVE-ENTITLED CAUSE HELD ON AUGUST 6, 2019.

DATED THIS 6TH DAY OF AUGUST 2019

PATRICIA MCNEAL^ CSR NO. 4458OFFICIAL REPORTER

EXHIBIT 2

Respondent did not object, and the Statement of Issues was amended.

■ Respondent's Evidence

9. Respondent contended at hearing that she was not convicted of a crimebecause her criminal case was dismissed. Had she been convicted of a felony, she wouldhave been sentenced to formal probation or sent to state prison. She acknowledged enteringa plea to a misdemeanor, after which her "misdemeanor plea was dismissed with noconvictions." By virtue of her case being "dismissed," respondent asserted that "govenunentagencies and all other entities are barred from using a dismissed case against an employeewith respect to retirement benefits or any other employment benefits." Respondent assertedthat she does not have a criminal record "whatsoever" and that she "can truthfully state to theworld that she has not been convicted of a crime."

10. The sole case that respondent cited in support of her contention is People v.Garcia (1982) 131 CaI.App.3d 256,258.' Respondent asserted that the court held "thatwhen a defendant successfully withdraws his or her guilty plea, the case is restored to itsoriginal status before entry of the nlea." Respondent contended:

[T]he intent of the global settlement was to vacate the felonyplea, restore [respondent] to her pre-plea status that being of aparty charged but not convicted. As such, after [respondent]withdrew her felony plea, she was restored to the status of anunconvicted defendant

By withdrawing her felony plea, and the court accepting thewithdrawal of the felony plea, and with knowledge of the factthat this was the intent of the prosecution, [respondent] couldhave only been convicted of the misdemeanor, which she pled.

CalPERS Evidence and ContentionsWg.BUUULM ■ 1' U

11. True Nguyen, a CalPERS Associate Governmental Program Analyst who hasworked for CalPERS for 10 years, testified that his job duties are to review forfeiture ofbenefits cases. JaejtameHffpjJjafflnondent^s case. He stated that when a CalPgif^ 1^**"been convicted of a felom , -vr ' .respondent was convictec

12. Mr. Nguyen determined that respondent made $18,896.69 in membercontributions during the forfeiture period, from September 1,2007, through December 10,2017. December 10,2017 was respondent's last day on the payroll with the City of SierraMadre. Due to the removal of 5.111 years of service credit, respondent had remaining 1.947years of CalPERS service credit, and she no longer met the minimum five-yew vesting

Respondent incorrectly cited the case as 131 Cal.3d 256,258.