California Court of Appeals, Second District, Seventh Division
from an order of the Superior Court of Los Angeles County,
No. PA077541, Monica Bachner, Judge.
[Copyrighted Material Omitted]
Ramirez, under appointment by the Court of Appeal, for
Defendant and Appellant.
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.
by Segal, J., with Perluss, P. J., and Blumenfeld,
Cal.Rptr.3d 143] SEGAL, J.
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). 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.
AND PROCEDURAL BACKGROUND
the People charged Salmorin and Debra Lynn Spratt with three
felonies: forgery (§ 470, subd. (d)), 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.
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.
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,
all of which had been provided by counsel. The court received
into evidence the police report and photographs without
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.
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
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
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].)
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].)
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 ...