Filed 3/14/16
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B260447
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA125859)
v.
RUBEN PHILLIP FRANCO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County. Roger
Ito, Judge. Affirmed and remanded with instructions.
Allison H. Ting, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Mary Sanchez and
Theresa A. Patterson, Deputy Attorneys General, for Plaintiff and Respondent.
___________________________________
Ruben Franco appeals the denial of his oral petition for resentencing on his
convictions for forgery and receiving stolen property. We affirm the judgment but
remand for correction of the abstract of judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On October 17, 2012, Franco was charged with forgery (Pen. Code,1 § 475, subd.
(a)) and receiving stolen property (§ 496, subd. (a)). It was alleged that he had served
five prior prison terms within the meaning of section 667.5, subdivision (b). Franco
pleaded guilty to the charged offenses and admitted the five prior prison terms. The court
struck four of the five prior prison term allegations, suspended the execution of a four-
year felony state prison sentence, and placed Franco on three years’ formal probation.
On August 11, 2014, Franco failed to appear for a probation violation hearing.
The trial court revoked his probation and issued a bench warrant. On November 4, 2014,
Franco was taken into custody.
On November 19, 2014, the trial court found that Franco had violated his
probation and imposed the previously suspended four-year sentence. Franco made an
oral petition for resentencing that the court denied. Franco appeals.
DISCUSSION
I. Proposition 47 Resentencing Petition
“On November 4, 2014, the voters enacted Proposition 47, the Safe
Neighborhoods and Schools Act (hereafter Proposition 47), which went into effect the
next day. (Cal. Const., art. II, § 10, subd. (a).)” (People v. Rivera (2015) 233
Cal.App.4th 1085, 1089 (Rivera).) “Proposition 47 makes certain drug- and theft-related
offenses misdemeanors, unless the offenses were committed by certain ineligible
defendants. These offenses had previously been designated as either felonies or wobblers
(crimes that can be punished as either felonies or misdemeanors).” (Id. at p. 1091.)
1 Unless otherwise indicated, all further statutory references are to the Penal Code.
2
Proposition 47 amended the law regarding forgery to provide, in relevant part, 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, except that such person may instead be punished pursuant to subdivision (h) of
Section 1170 if that person has one or more prior convictions for an offense specified in
clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or for
an offense requiring registration pursuant to subdivision (c) of Section 290.” (§ 473,
subd. (b).)
Section 496, subdivision (a), regarding receiving stolen property, was also
amended by Proposition 47. It now provides, “Every person who buys or receives any
property that has been stolen or that has been obtained in any manner constituting theft or
extortion, knowing the property to be so stolen or obtained, or who conceals, sells,
withholds, or aids in concealing, selling, or withholding any property from the owner,
knowing the property to be so stolen or obtained, shall be punished by imprisonment in a
county jail for not more than one year, or imprisonment pursuant to subdivision (h) of
Section 1170. However, if the value of the property does not exceed nine hundred fifty
dollars ($950), the offense shall be a misdemeanor, punishable only by imprisonment in a
county jail not exceeding one year, if such person has no prior convictions for an offense
specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section
667 or for an offense requiring registration pursuant to subdivision (c) of Section 290.”
(§ 496, subd. (a).)
“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
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misdemeanor . . . unless the court, in its discretion, determines that resentencing the
petitioner would pose an unreasonable risk of danger to public safety.’ (§ 1170.18, subd.
(b).)” (Rivera, supra, 233 Cal.App.4th at p. 1092.) Franco argues that the trial court
should have resentenced him, treating his forgery and his receiving stolen property
convictions as misdemeanors, based on his oral petition.
A. Petition Requisites
The Attorney General argues that Franco was ineligible for resentencing because
his request was oral and not written. Although some language in the statute suggests that
its drafters anticipated that petitions would be in written form, section 1170.18 contains
no express requirement that a resentencing petition be made in writing. We therefore
agree with the court in People v. Amaya (2015) 242 Cal.App.4th 972 at page 975, that
there is “no statutory requirement for the filing of a written petition.” Moreover, the
Attorney General has not demonstrated that the prosecutor objected in the trial court to
Franco’s petition on the ground that it was oral rather than written. “‘“An appellate court
will ordinarily not consider procedural defects or erroneous rulings, in connection with
relief sought or defenses asserted, where an objection could have been, but was not,
presented to the lower court. . . .”’” (People v. Saunders (1993) 5 Cal.4th 580, 589-590.)
B. Forgery Conviction
Franco’s argument for resentencing is premised on his view that the $950 value
amount set forth in section 473, subdivision (b) corresponds not to the stated amount on
the face of the forged instrument but to the intrinsic value of the instrument itself. He
relies upon People v. Cuellar (2008) 165 Cal.App.4th 833 (Cuellar), in which the Court
of Appeal concluded that there was sufficient evidence to support a conviction for grand
theft from the person of another where the defendant took what was described as a
“bogus check” from the hand of a department store salesperson. The Cuellar court
reasoned that the check did not have a value equal to the amount for which it had been
written, but that for the purposes of a grand theft conviction, it nonetheless had some
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intrinsic value by virtue of the paper it was printed on and as a negotiable instrument that,
if legally drawn, would entitle its holder to payment on demand. (Id. at pp. 838-839.)
Franco reasons that the forged check he possessed, because it was illegally drawn and
was not exchanged for value, had no actual value despite the check’s face value being
$1,500, and that the court therefore should have resentenced him for forgery as a
misdemeanor..
We are not persuaded that the trial court interpreted section 473, subdivision (b)
incorrectly. While Cuellar, supra, 165 Cal.App.4th 833 and similar cases stand for the
principle that a forged check does not have an actual value corresponding to the face
value of the check, section 473, subdivision (b) does not specify that it is the actual value
of the check, as opposed to the face value of that instrument, that is the value that is used
to determine whether the offense is a felony or a misdemeanor. The value of forged
checks, bonds, bank bills, notes, cashier’s checks, traveler’s checks, and money orders,
the items listed in section 473, subdivision (b), may or may not correspond to the face
value of the instrument, depending on the existence of a secondary market or other
evidence of value. When viewed in the context of forgery, however, the word “value” as
used in section 473, subdivision (b) must correspond to the stated value or face value of
the check in order to avoid absurd consequences. (Flannery v. Prentice (2001) 26
Cal.4th 572, 578 [courts avoid statutory constructions that would produce absurd
consequences].) The trial court did not err in declining to resentence him on the forgery
conviction.
Franco argues that even if we “do not follow” Cuellar, supra, 165 Cal.App.4th
833 and similar cases concerning the value of the forged check, at the time he committed
his offenses he “had a federal constitutional due process right to rely on” this line of cases
such that we must consider the forged check here to have had only a nominal value and
may only apply our reasoning prospectively. Our conclusion that section 473,
subdivision (b) refers to the face value of the forged instrument is not a departure from
those cases holding that the actual value of a forged instrument is de minimis, and we are
therefore not failing to follow Cuellar and similar authority such that our decision may
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only be applied prospectively. Moreover, at the time that Franco committed his offenses,
Proposition 47 had not been enacted and all forgery was punishable as a felony regardless
of the value of the instrument in question. Therefore, even if our understanding of
Cuellar and related cases could be considered as constituting a change in interpretation,
this change could not have had any impact on Franco’s pre-Proposition 47 decision to
plead guilty.
C. Receiving Stolen Property Conviction
Franco argues that he should have been resentenced on his conviction for
receiving stolen property as a misdemeanor based upon the same argument concerning
value that he made in the context of his forgery conviction. Franco, however, has not
demonstrated on this record that he petitioned the trial court to resentence him on this
offense. Franco’s petition for resentencing was made orally and off the record, and the
record lacks any description of what counsel sought when he made this request. The
argument and the decision of the court contained in the reporter’s transcript concern
solely the question of whether the forgery conviction was subject to resentencing as a
misdemeanor. Neither the court nor either party mentioned the conviction for receiving
stolen property. As there is no indication that Franco petitioned the court to resentence
him on his felony conviction for receiving stolen property as a misdemeanor, Franco has
not established any error by the trial court in failing to resentence him for this offense.
II. Abstract of Judgment
Both Franco and the Attorney General agree that the abstract of judgment contains
a typographical error in the representation of the date of Franco’s sentencing hearing.
The first page of the abstract of judgment states that the sentencing hearing was held on
November 19, 2013, when in fact the hearing occurred on November 19, 2014. We may
correct this clerical error on appeal. (People v. Mitchell (2001) 26 Cal.4th 181, 186-187.)
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DISPOSITION
The judgment is affirmed. The superior court is ordered to prepare an amended
abstract of judgment as set forth in this opinion and to forward a copy to the Department
of Corrections and Rehabilitation.
ZELON, J.
We concur:
PERLUSS, P. J.
SEGAL, J.
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