Contracting Home Improvement And Repair Without contractor’s License
By: Roman P. Mosqueda, Esq.
Contracting for home improvement and repair without a contractor’s license obtained from the Contractors’ State License Board of the State of California is a misdemeanor, punishable by imprisonment in the county jail not exceeding six (6) months, or by fine not exceeding one thousand dollars ($1,000), or by both.
It is a violation of Section 7028(a) of the California Business & Professions Code, which states that: “It is a misdemeanor to engage in the business or act in the capacity of a contractor within this state without having a license therefore, unless the person is particularly exempted from the provisions of this chapter.”
But if the homeowner does not file a complaint with the police, no criminal complaint can be filed by the City Attorney or County District Attorney. A civil case for breach of contract may be filed with the Small Claims Court, where attorneys cannot appear, or as a limited ($25,000 or less) or unlimited civil case with the Superior Court.
Grand Theft Under
False Pretense:
This Author has represented a defendant accused not only with contracting without a license as a misdemeanor, but also with grand theft under false pretense.
Indeed, two counts in a felony complaint for grand theft of personal property, in violation of Section 487(a) of the Penal Code for taking money and personal property of a value exceeding four hundred dollars ($400), a felony, to wit: $2,300.00 as the property of one homeowner, and $4,100.00 as the property of another homeowner, were added to two counts of contracting without a license, a misdemeanor.
The imprisonment range of grand theft per count charged as a felony is sixteen (16) months, two (2) years, or three (3) years in state prison, or charged as a mis-demeanor is not exceeding one year in county jail. And as stated above, the imprisonment range of contracting without a license per count is six (6) months.
The discovery papers on the grand theft under false pretense state that the defendant used the contractor’s license of another person, solicited home improvement and repair contracts from two homeowners, and started one job, but did not finish it, and never started the other job, despite being paid in advance.
Defendant posted bail of $20,000.00 after four (4) days of custody. The bail remained the same after arraignment and at the preliminary hearing, 8 of 10 days.
Plea Bargain And
Disposition:
The Probation Officer’s Report recommended formal probation for a period of three (3) years, with suspended state prison sentence and full restitution to the victims, despite a “strike” for conviction for first degree residential robbery committed on or about August 30, 1995, by the defendant.
Part of the plea bargain proposed by this Author in response to the offer of the Assistant District Attorney assigned to Department 35, in the Criminal Court downtown Los Angeles, was no jail time in addition to three years of formal probation as recommended by the Probation Officer. The prosecutor agreed to it.
The sticking point was the amounts of restitutions to the two complainants- homeowners. The first one was claiming $2,300.00, even as the contract states that the $700 was due upon completion, and she paid only $1,650.00 in two checks, because the job was not finished, and told the Probation Officer that she wants recovery of $1,650.00.
The second homeowner paid the defendant only $3,800 and of that, $350.00 of work was done. But she claimed that she has a civil judgment of $4,352.00 And the prosecutor was claiming enforcement of that judgment as restitution in the criminal case.
Moreover, the prosecutor, after conferring with her supervisor, stated that the amounts of restitution are not negotiable, threatening to use the residential robbery “strike” against the defendant, despite the suggestion by Commissioner Ronald Rose of Department 35 to hold a subsequent restitution hearing.
This Author agreed to the restitution hearing after the plea of no contest to Count 1 and the dismissal of the three other counts of the Felony Complaint, but the prosecutor insisted on full restitution, including the disputed amounts.
After conferring with the defendant, who did not want the robbery “strike” to be used against him, and who agreed to pay the full restitution, this Author told Commissioner Ronald Rose of the disposition.
DNA Testing For Felons:
The prosecutor was then instructed by Commissioner Ronald Rose at the preliminary hearing on August 19, 2005, in Department 35, to take the “no-contest” plea, after advising the defendant of his rights and obtaining a waiver thereof.
So, the defendant pled no contest to Count 1 for grand theft felony committed against the first homeowner-complainant. And he was accordingly sentenced by Commissioner Ronald Rose to: three years of formal probation, three years of state prison imprisonment suspended, time served of four days plus two days of good behavior, resulting in no jail time, payment of costs and assessments, and payment to the victims of $2,300 and $4,352.00, respectively.
As an additional condition for his formal probation, the defendant was ordered not to contract for home improvement and repair without a license. This Author asked for one year within which the defendant could pay victim restitution, which was granted, provided the defendant begin to pay the two homeowners as required by the Probation Officer.
Finally, the defendant was ordered by the Commissioner to have DNA testing as mandated by Section 296 of the Penal Code for all defendants convicted of any felony the same day and return the paper work to the clerk of the court. He was also ordered to report to the Ascot Intake Team within twenty-four (24) hours.
(The Author, Roman P. Mosqueda, has been practicing criminal law defense for over fifteen (15) years. He trained with the Los Angeles City Attorney’s Office under the LA County Bar Association’s Trial Advocacy Program. He is an active member of the California Public Defenders Association.)