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People v. Salmorin

California Court of Appeals, Second District, Seventh Division

July 19, 2016

THE PEOPLE, Plaintiff and Respondent,
v.
JULIUS FERNANDO SALMORIN, Defendant and Appellant

          APPEAL from an order of the Superior Court of Los Angeles County, No. PA077541, Monica Bachner, Judge.

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[Copyrighted Material Omitted]

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         COUNSEL

         Carlos Ramirez, under appointment by the Court of Appeal, for Defendant and Appellant.

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         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and David E. Madeo, Deputy Attorneys General, for Plaintiff and Respondent.

         Opinion by Segal, J., with Perluss, P. J., and Blumenfeld, J.,[*] concurring.

          OPINION

          [205 Cal.Rptr.3d 143] SEGAL, J.

         INTRODUCTION

         After pleading no contest to forgery, Julius Fernando Salmorin petitioned to recall his sentence under Proposition 47, the Safe Neighborhoods and Schools Act (Pen. Code, § 1170.18).[1] The trial court denied the petition, concluding the aggregate value of the checks Salmorin was convicted of forging made him ineligible for resentencing. Because the trial court erred by aggregating the face amounts of the forged checks, we reverse.

         FACTUAL AND PROCEDURAL BACKGROUND

         In 2013 the People charged Salmorin and Debra Lynn Spratt with three felonies: forgery (§ 470, subd. (d)),[2] receiving stolen property (§ 496, subd. (a)), and possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)). [205 Cal.Rptr.3d 144] Salmorin waived his right to a jury trial and pleaded no contest to the forgery count. Pursuant to a negotiated agreement, the trial court suspended imposition of sentence and placed Salmorin on three years of formal probation. The court dismissed the remaining counts on the People's motion.

         In March 2015 Salmorin filed a petition for resentencing under Proposition 47 and checked the preprinted box indicating " [t]he amount in question is not more than $950.00." The People opposed the petition, and the court set the matter for a hearing.

         At the beginning of the hearing, the trial court stated it did not have the court file, but had reviewed copies of the probation officer's report, the complaint, the arresting officer's report, and photographs of the stolen checks,

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all of which had been provided by counsel. The court received into evidence the police report and photographs without objection.[3]

         The prosecutor summarized the contents of the police report: Salmorin and Spratt received some stolen checks, were told to cash them, and were allowed to keep 10 percent of the proceeds. When arrested, Salmorin and Spratt had five stolen checks in their possession: a blank check, a $245 check payable to Ralph Tagarao (an assumed name used by Salmorin), an $880 check payable to another individual, and two checks payable to Spratt, one of which was for $208. The prosecutor argued that, in the 2013 prosecution, the People had proceeded on the theory that, because Salmorin and Spratt had jointly possessed all of the stolen checks, they had committed the forgeries as a joint venture or criminal enterprise. (See, e.g., People v. Land (1994) 30 Cal.App.4th 220, 227-228 [35 Cal.Rptr.2d 544].) The People acknowledged that none of the individual checks had a value greater than $950, but " proceeded on an aggregate theory" that the total value of the checks exceeded $950. The People argued that the amounts of the checks " can and should be aggregated for the purpose of determining value" for Proposition 47, and that therefore Salmorin was ineligible for resentencing.

         Counsel for Salmorin presented no evidence at the hearing. Relying on the police report, counsel argued that Salmorin was eligible for resentencing because the only check attributable to Salmorin was the $245 check payable to Salmorin's assumed name.

         The trial court denied the petition. The court found that Salmorin and Spratt had engaged in a joint criminal enterprise, and that the aggregate value of the forged checks exceeded $950.

         DISCUSSION

         A. Proposition 47 and Forgery Offenses

          Proposition 47 makes certain drug-related and theft-related offenses misdemeanors, unless the offenses were committed by certain ineligible defendants. ( People v. Rivera (2015) 233 Cal.App.4th 1085, 1091 [183 Cal.Rptr.3d 362].) " As summarized by the Legislative Analyst, the proposition 'reduces penalties for certain offenders convicted of nonserious and nonviolent property and drug crimes' and 'allows certain offenders who have been previously convicted of such crimes to apply for reduced sentences.'" ( People v. Davis (2016) 246 Cal.App.4th 127, 134 [200 Cal.Rptr.3d 642].)

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          [205 Cal.Rptr.3d 145] Proposition 47 changed the law regarding the punishment of forgery by adding section 473, subdivision (b), which provides that " any person who is guilty of forgery relating to a check, bond, bank bill, note, cashier's check, traveler's check, or money order, where the value of the check, bond, bank bill, note, cashier's check, traveler's check, or money order does not exceed nine hundred fifty dollars ($950), shall be punishable by imprisonment in a county jail for not more than one year." (§ 473, subd. (b).) " Proposition 47 also created a new resentencing provision: section 1170.18. Under section 1170.18, a person 'currently serving' a felony sentence for an offense that is now a misdemeanor under Proposition 47, may petition for a recall of that sentence and request resentencing in accordance with the statutes that were added or amended by Proposition 47. (§ 1170.18, subd. (a).) A person who satisfies the criteria in section 1170.18 shall have his or her sentence recalled and be 'resentenced to a misdemeanor ... unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety.'" ( People v. Rivera, supra, 233 Cal.App.4th at p. 1092; see People v. Bush (2016) 245 Cal.App.4th 992, 1004 [200 Cal.Rptr.3d 190] [Prop. 47 amended § 473 " to reflect eligibility for resentencing" for certain forgery convictions].)

          We review the trial court's construction of Proposition 47 de novo. ( People v. Sherow (2015) 239 Cal.App.4th 875, 879 [191 Cal.Rptr.3d 295].) We review any factual findings in connection with the court's ruling on the petition for substantial evidence. ( People v. Perkins (2016) 244 Cal.App.4th 129, 136 [197 Cal.Rptr.3d 743]; see P ...


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