People v. Mutter

          APPEAL from the Superior Court of Riverside County, No. RIF1314012, Becky Dugan, Judge.

          Reversed.

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[Copyrighted Material Omitted]

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          COUNSEL

         Donna L. Harris, 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, Scott C. Taylor and Daniel Hilton, Deputy Attorneys General, for Plaintiff and Respondent.

         Opinion by Miller, J., with Hollenhorst, Acting P. J., and Slough, J., concurring.

          OPINION

          [204 Cal.Rptr.3d 644] MILLER, J.

          The trial court denied the Proposition 47 petition for resentencing of defendant and appellant James Carl Mutter. (Pen. Code, § 1170.18.)^[1] Defendant contends the trial court erred because the crime for which he sought resentencing--possession or receipt of counterfeit currency (§ 475, subd. (a))--is a misdemeanor after the passage of Proposition 47. The denial of the petition is reversed.

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         [204 Cal.Rptr.3d 645] FACTUAL AND PROCEDURAL HISTORY

         Defendant was charged with two offenses, both alleged to have occurred on or about November 30, 2013: (1) forgery, in that defendant willfully and unlawfully possessed or received a counterfeit item with the intent to pass the item, knowing it to be counterfeit (Pen. Code, § 475, subd. (a)) and (2) possession of heroin (Health & Saf. Code, § 1350, subd. (a)). The information did not identify the counterfeit item or its value. Two prison priors were also alleged against defendant. (Pen. Code, § 667.5, subd. (b).)

         On January 16, 2015, defendant pled guilty to the forgery count (§ 475, subd. (a)). The trial court imposed a 16-month sentence, with four months to be served at the county jail and 12 months of mandatory supervision. At the plea hearing defendant admitted he had " some counterfeit bills and tried to pass them." The amount of the counterfeit bills was not given at the hearing. Defendant's plea form reflects the item was counterfeit bills, but does not include the amount of the counterfeit bills.

         On April 6, 2015, the Riverside County Probation Department moved the trial court to transfer defendant's mandatory supervision to Orange County because defendant was residing in Orange County. The motion to transfer probation was combined with a Proposition 47 hearing. Defendant did not file a Proposition 47 petition, but did file a memorandum of points and authorities explaining why possession or receipt of counterfeit bills is now a misdemeanor under Proposition 47. Presumably, defendant did not file a Proposition 47 petition because there was a suggestion that defendant's probation might not need to be transferred because defendant could qualify for Proposition 47 relief, thus freeing him from mandatory supervision.

         In defendant's points and authorities, he argued Proposition 47 altered section 473, which sets forth the punishment for a variety of forgery offenses, including section 475, subdivision (a), which is the offense for which defendant was convicted. Defendant argued that although Proposition 47 did not directly alter section 475, subdivision (a), it altered the relevant punishment statute (§ 473) by reducing forgery related to a " bank bill" to a misdemeanor. Defendant asserted currency (§ 475, subd. ...