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People v. Gollardo

California Court of Appeals, First District, Third Division

November 17, 2017

THE PEOPLE, Plaintiff and Respondent,
THOMAS RAY GOLLARDO, Defendant and Appellant.

         Superior Court of Sonoma County No. SCR666882, Hon. Jamie E. Thistlethwaite, Judge

          Counsel for Appellant: Jonathan Soglin, Executive Director, First District Appellate Project, Grace M. Shigetani, Staff Attorney, First District Appellate Project

          Counsel for Respondent: Kamala D. Harris, Attorney General Of California, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General Eric D. Share Supervising Deputy Attorney General Huy T.Luong Deputy Attorney General Amit A. Kurlekar

          JENKINS, J.

         This is an appeal from final judgment after defendant Thomas Ray Gollardo entered a no-contest plea to the felony offense of forging and issuing a prescription for a narcotic drug in violation of Health and Safety Code section 11368, and admitted two prior strike offenses pursuant to Penal Code sections 667, subdivisions (d) and (e), and 1170.12, subdivisions (b) and (c).[1] Defendant challenges the judgment on the ground that the trial court erred by denying his petition to reclassify the charged felony offense as a misdemeanor pursuant to Proposition 47, the Safe Neighborhoods and Schools Act of 2014. For reasons set forth below, we affirm.


         On September 14, 2015, an amended information was filed charging defendant with the felony offense of forging and issuing a prescription for a narcotic drug in violation of Health and Safety Code section 11368 (count one) and the misdemeanor offense of burglary in violation of section 459 (count two). The amended information further alleged defendant had committed two prior strike offenses pursuant to sections 667, subdivisions (d) and (e), and 1170.12, subdivisions (b) and (c) - a 2006 conviction for vandalism committed for the benefit of a criminal street gang (§ 594, subd. (a), § 186.22, subd. (b)), and a 2012 conviction for participation in a criminal street gang (§ 186.22, subd. (a)). Finally, the amended information alleged defendant had served a prior prison term for the 2012 conviction within the meaning of section 667.5, subdivision (b).

         These charges stemmed from the following events on June 4, 2015. Defendant entered into a Walgreens store in Santa Rosa and presented the pharmacist with a prescription for a 16-ounce bottle of Phenergan Codeine cough syrup. Suspecting the prescription was fraudulent based upon its appearance, the pharmacist recorded defendant's identifying information and contacted the police.

         Police officers responding to the call located defendant in the rear passenger seat of a vehicle parked at the pharmacy drive-up window. When confronted by the officers, defendant was cooperative and conceded the prescription was fraudulent. Defendant explained he had obtained the prescription from some acquaintances. He insisted that this was the first time that he had attempted to obtain codeine.

         On November 3, 2015, defendant was interviewed by a probation officer. Defendant stated that, just before the June 4 incident, he had been drinking cough syrup and had taken three or four Xanax, causing him to “black[] out.” Defendant insisted he did not recall entering Walgreens or receiving the prescription from acquaintances, and did not “wak[e] up” until he was being booked by police after his arrest. Defendant explained he had first ingested codeine and Xanax after being released from jail, and told the officer, “I'll take responsibility for it. I just need help. I need help for my addiction. I need to stay clean and sober, get back to my job.” Expressing the desire to “live a sober life, ” defendant stated that his priorities were to receive substance abuse treatment for his addiction and to move away from Sonoma County to be free of “negative influences.” Consistent with these priorities, defendant was thereafter accepted to a six-month residential treatment program through the Treatment Alternative for Safer Communities (TASC) program after “admitt[ing] to having a substance use disorder” and “express[ing] a desire for rehabilitation.”

         On September 14, 2015, following the preliminary hearing, defendant made a motion pursuant to section 1170.18, subdivision (f), seeking to have count one, felony forging and issuing a prescription for a narcotic drug, reduced to a misdemeanor in accordance with Proposition 47, the Safe Neighborhoods and Schools Act of 2014.[2] At the contested hearing on his motion, defense counsel argued that defendant, an individual who had attempted to obtain a single bottle of cough syrup for personal use, had assumed responsibility for his actions and obtained acceptance into a residential treatment program. Counsel further argued that, with respect to defendant's prior strikes, the first was a vandalism offense for gang-related graffiti that occurred when he was just 18 years old, and that second was a plea to a stand-alone gang charge, thus “distinguishable from other types of violent strike felonies.”

         On October 13, 2015, the trial court denied defendant's request for Proposition 47 relief, reasoning: “While many of [defense counsel's] comments make sense to this Court regarding the actual underlying facts of the case, meeting some of the misdemeanor criteria that the Court has here, the Court cannot avoid looking at the prior strikes and the prior prison commitments listed on the complaint.” Defendant then entered a no-contest plea in open court to count one, the felony medical prescription forgery count, and admitted the two prior strike offenses (for vandalism committed for the benefit of a criminal street gang in 2006 and participation in a criminal street gang in 2012). The remaining count and special allegation were then dismissed on the prosecution's motion.

         On November 4, 2015, prior to sentencing, defendant filed a new motion under section 17, subdivision (b), to reclassify the count one felony as a misdemeanor, as well as a motion pursuant to People v. Superior Court (Romero) (1996) 3 Cal.4th 497');">13 Cal.4th 497, to strike the prior strike conviction allegations. At the November 24, 2015 sentencing hearing, after argument from counsel, [3" name="ftn.FN3" id="ftn.FN3">3] the trial court, denied defendant's motions and sentenced him to state prison for a middle term of four years in accordance with probation's recommendation. This timely appeal followed.


         Defendant first contends the trial court erred by denying his petition for relief under Proposition 47. He reasons that “forgery of a narcotic prescription (Health & Safety Code § 11368) falls within the clear intent of the voters in enacting Proposition 47, ” and, as such, is an offense eligible for sentencing reduction under section 1170.18. Second, defendant contends the trial court abused its discretion in denying his section 17, subdivision (b) motion to reduce the felony charge to a misdemeanor by failing to make an “individualized consideration” of relevant sentencing factors, including his character and attitude toward the present offense and the nature and circumstances of his offenses.[4] We begin with the relevant legal framework.

         We review de novo questions of statutory or voter-initiative interpretation. (Evangelatos v. Superior Court (1988) 3d 1188');">44 Cal.3d 1188, 1212 [rules of statutory interpretation apply to voter initiatives]; Argaman v. Ratan (1999) 3 Cal.App.4th 1173');">73 Cal.App.4th 1173, 1176.) The fundamental rule of such construction is that we must ascertain the intent of the lawmakers so as to effectuate the purpose of the law. (People v. Murphy (2001) 36');">25 Cal.4th 136, 142.) “To determine the intent of legislation [or voter initiatives], we first consult the words themselves, giving them their usual and ordinary meaning. [Citations.]” (DaFonte v. Up-Right, Inc. (1992) 3');">2 Cal.4th 593, 601.) “We do not, however, consider the statutory [or initiative] language in isolation; rather, we look to the entire substance of the statutes in order to determine their scope and purposes. [Citation.] That is, we construe the words in question in context, keeping in mind the [enactments'] nature and obvious purposes. [Citation.] We must harmonize the various parts of the enactments by considering them in the context of the [legal] framework as a whole. [Citation.] If the... language is unambiguous, then its plain meaning controls. If, however, the language supports more than one reasonable construction, then we may look to extrinsic aids, including the ostensible objects to be achieved and the [enactment's] history. [Citation.]” (People v. Cole (2006) 38 Cal.4th 964, 975.)

         Further, as the well-establish rules of appellate review instruct, we must indulge in every presumption to uphold the judgment and look to defendant to affirmatively show error. (People v. Sullivan (2007) 151 Cal.App.4th 524, 549; People v. Abarca (2016) 2 Cal.App.5th 475, 483.)

         I. Is defendant's forgery offense eligible for reclassification under Proposition 47?

         Defendant contends his felony offense under Health and Safety Code section 11368 (hereinafter, section 11368) qualifies for purposes of Proposition 47 as “petty theft” (to wit, theft of one or more items not exceeding $950 in value) and, as such, is eligible to be reclassified by the court as a misdemeanor. We first look to the language of Proposition 47 and section 1170.18, a provision added upon its passage, to assess his contention.

         “On November 4, 2014, the voters of California passed Proposition 47, reducing some felony theft- and forgery-related offenses to misdemeanors when the value of the stolen property does not exceed $950. (E.g., §§ 459.5, subd. (a) [redefining some theft as shoplifting], 490.2, subd. (a) [redefining some grand theft as petty theft], 473, subd. (b) [changing punishment for some forgery and counterfeiting offenses].) The initiative also created a resentencing procedure allowing offenders to petition for resentencing if they are “currently serving a sentence for a conviction” for committing a felony and “would have been guilty of a misdemeanor under” the provisions added by Proposition 47. (§ 1170.18, subd. (a).)” (People v. Abarca, supra, 2 Cal.App.5th at p. 479.) Thus, “[Proposition 47] ‘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.' (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) analysis of Prop. 47 by Legis. Analyst, p. 35 (Ballot Pamphlet).)... The purpose of this and other similar changes was ‘to ensure that prison spending is focused on violent and serious offenses [and] to maximize alternatives for nonserious, nonviolent crime.' (Ballot Pamphlet, supra, text of Prop. 47, § 2, p. 70.)” (In re J.C. (2016) 246 Cal.App.4th 1462, 1469.) To this end, Proposition 47 “(1) added chapter 33 to the Government Code (§ 7599 et seq.), (2) added sections 459.5, 490.2, and 1170.18..., and (3) amended... sections 473, 476a, 496, and 666 and Health and Safety Code sections 11350, 11357, and 11377. (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, §§ 4-14, pp. 70-74.)” (People v. Rivera (2015) 33 Cal.App.4th 1085');">233 Cal.App.4th 1085, 1091.)

         One of these new provisions, section 1170.18, provides a procedure by which a defendant may petition the trial court for certain relief from the felony classification of his or her offense. Specifically, section 1170.18, subdivision (a), authorizes a “person [currently] serving a sentence for a conviction... [to] petition for a recall of sentence before the trial court that entered the judgment of conviction in his or her case to request resentencing in accordance with Sections 11350, 11357, or 11377 of the Health and Safety Code, or Section 459.5, 473, 476a, 490.2, 496, or 666 of the Penal Code, as those sections have been amended or added by this act.” (§ 1170.18, subd. (a).) Subdivision (f), in turn, provides that “[a] person who has completed his or her sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under this act had this act been in effect at the time of the offense, may file an application before the trial court that entered the judgment of conviction in his or her case to have the felony conviction or convictions designated as misdemeanors.” (§ 1170.18, subd. (f).) Further, where the section 1170.18 applicant has satisfied the criteria in subdivision (f), the trial court “shall designate the felony offense or offenses as a misdemeanor.” (§ 1170.18, subd. (g).)

         As a threshold issue, the People contend that defendant's motion is procedurally defective because he filed it prior to sentencing, placing him outside the scope of section 1170.18, which, as reflected in the statutory language set forth above, is essentially a resentencing statute. (See § 1170.18, subds. (a), (f).) As the record reflects, defendant moved pursuant to section 1170.18, subdivision (f), when asking the trial court to reclassify his felony offense of forging and issuing a narcotic prescription (§ 11368) as a ...

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