People v. Guerrero

IN THE SUPREME COURT OF
CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
v.
RAUL OSUNA GUERRERO,
Defendant and Appellant.

S253405

Sixth Appellate District
H041900

Santa Clara County Superior Court
C1476320

April 30, 2020

Justice Liu authored the opinion of the Court, in which Chief
Justice Cantil-Sakauye and Justices Chin, Corrigan, Cuéllar,
Kruger, and Groban concurred.
 PEOPLE v. GUERRERO
S253405

Opinion of the Court by Liu, J.

Proposition 47 reduced the punishment for certain
nonserious, nonviolent crimes previously classified as
“wobblers,” which were punishable either as a felony or as a
misdemeanor. Among the offenses it amended was forgery not
exceeding $950 dollars. (Pen. Code, § 473, subd. (b) (section
473(b)); all undesignated statutory references are to this code.)
But Proposition 47 also included an exception to that
amendment. The exception provides that the sentencing
reduction for forgery is not “applicable to any person who is
convicted both of forgery and of identity theft, as defined in
Section 530.5.” (§ 473(b).)
In People v. Gonzales (2018) 6 Cal.5th 44 (Gonzales), we
held that this exception applies only when there is a
“meaningful connection” between a defendant’s forgery
conviction and his conviction for misuse of personal identifying
information (§ 530.5), commonly referred to as identity theft.
(Gonzales, at p. 53.) We concluded that the mere fact that those
convictions were secured in the same proceeding does not
demonstrate such a connection. (Id. at p. 54.)
In this case, we are asked to further clarify the meaningful
connection standard by answering a related question: Does the
fact that a defendant possessed separate stolen identification
and forged instruments together at the same time provide a
sufficient connection between the two offenses to bar him from

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Opinion of the Court by Liu, J.

a sentence reduction pursuant to section 473(b)? We hold that
it does not. A meaningful connection between forgery and
identity theft for purposes of the identity theft exception
requires a facilitative relationship between the two offenses.
The mere fact that a defendant possessed two separate items of
contraband at the same time does not demonstrate such a
relationship.
I.
Defendant Raul Osuna Guerrero was arrested in 2014 for
violating a no-contact protective order after he refused to leave
his daughter’s apartment. When one of the arresting officers
searched Guerrero, he found a wallet in Guerrero’s jacket and
placed it in a plastic bag along with Guerrero’s other personal
belongings. Guerrero was booked into Santa Clara County jail
that same day, where a corrections officer inventoried his
possessions. Inside Guerrero’s wallet, the officer found a
driver’s license belonging to another person, a benefits card
belonging to another person, a counterfeit $50 bill, a check from
the St. Thomas More Society of Santa Clara County, and four
personal checks neither owned by Guerrero nor made out to him.
Based on Guerrero’s conduct and the items found in his
wallet, he was charged with one misdemeanor count of
possessing the personal identifying information of another
person (§ 530.5, subd. (c)(1)), one felony count of concealing or
withholding stolen property (§ 496, subd. (a)), one misdemeanor
count of contempt of court (§ 166, subd. (a)(4)), and one felony
count of forgery by possession of fictitious bill (§ 476). The
prosecution also alleged that Guerrero had a prior robbery
conviction that counted as a strike within the meaning of the
“Three Strikes” law. (§§ 667, subds. (b)–(i), 1170.12.) A jury

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found Guerrero guilty of all charges, and the trial court found
the strike allegation true.
After Guerrero was convicted but before he was sentenced,
the electorate approved Proposition 47 in November 2014, the
Safe Neighborhoods and Schools Act, which reduced the
punishment for certain crimes previously punishable as
felonies. At sentencing, the trial court found that Proposition
47 reduced Guerrero’s felony stolen property conviction (§ 496,
subd. (a)) to a misdemeanor. But the court did not make the
same finding with respect to his felony forgery conviction
(§ 476). The court sentenced Guerrero to a four-year term for
forgery and to two-month terms for each remaining count, all
running concurrently.
On appeal, Guerrero argued, among other things, that
section 473(b) reduced his forgery conviction to a misdemeanor
because the counterfeit bill on which his conviction was based
was less than $950. The Court of Appeal rejected this argument
and affirmed Guerrero’s sentence in an unpublished opinion,
reasoning that the sentence reduction for forgery in section
473(b) does not apply “where a defendant is concurrently
convicted of both forgery and identity theft [which] is what
occurred in this case.”
After the Court of Appeal affirmed Guerrero’s sentence,
we held in Gonzales that a forgery conviction under section 473
not exceeding $950 must be punished as a misdemeanor unless
the underlying conduct was committed “ ‘in connection with’ ”
conduct underlying an identity theft conviction. (Gonzales,
supra, 6 Cal.5th at p. 53.) We then granted Guerrero’s petition
for review and transferred his case to the Court of Appeal with

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directions to vacate its decision and to reconsider Guerrero’s
appeal in light of Gonzales.
On reconsideration, the Court of Appeal again affirmed
Guerrero’s forgery sentence, concluding that Gonzales did not
change the outcome. The court held that there was a
meaningful connection between Guerrero’s forgery and identity
theft convictions because he “contemporaneously possessed
another person’s personal identifying information and a
fictitious $50 bill.” We granted review.
II.
Forgery is a wobbler crime punishable either as a felony
or as a misdemeanor. (§ 473, subd. (a).) Proposition 47 reduced
forgery offenses to a misdemeanor when the amount in question
does not exceed $950. It added section 473(b), which provides
that “forgery relating to a check, bond, bank bill, note, cashier’s
check, traveler’s check, or money order, where the value of the
[instrument] does not exceed nine hundred fifty dollars ($950),
shall be punishable by imprisonment in a county jail for not
more than one year . . . .” Section 473(b) goes on to provide two
exceptions: First, regardless of the value of the offense, forgery
may be punished as a felony “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.” Second, section 473(b) does not
apply “to any person who is convicted both of forgery and of
identity theft, as defined in Section 530.5.” The second
exception — the identity theft exception — is at issue in this
case.

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We recently interpreted section 473(b)’s identity theft
exception in Gonzales. The defendant in that case was charged
with felony forgery and identity theft in the same information
but the conduct underlying those two charges occurred years
apart and had no relationship to each other. (Gonzales, supra,
6 Cal.5th at p. 47.) The defendant pleaded guilty to those
charges and, after passage of Proposition 47, sought reduction
of his forgery conviction to a misdemeanor. We held that section
473(b) did not preclude his resentencing. (Gonzales, at p. 56.)
We began by noting that section 473(b)’s language is
ambiguous as to what relationship between forgery and identity
theft is required to trigger the exception. (Gonzales, supra, 6
Cal.5th at p. 52.) The word “both” can be reasonably construed
to mean that a defendant’s forgery conviction is punishable as a
felony “(1) whenever the defendant has also been convicted of
identity theft; (2) whenever the defendant is convicted of
identity theft at the same time he is convicted of forgery; or (3)
whenever the defendant is convicted of identity theft for the
same conduct as his forgery conviction.” (Ibid.)
We rejected the first construction as contrary to the text
and structure of the statute. (Gonzales, supra, 6 Cal.5th at
p. 54.) The identity theft exception, we explained, is phrased in
the present tense: Protection from felony punishment is
unavailable “to any person who is convicted both of forgery and
of identity theft.” (§ 473(b), italics added.) This is in contrast
with other language in section 473(b) disqualifying a forgery
conviction for reduction to a misdemeanor if the defendant has
“prior convictions” for specified violent felonies and sex offenses.
If Proposition 47 had intended to preclude a forgery defendant
from relief whenever the defendant also had an identity theft
conviction regardless of when it was received, Proposition 47

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would have included identity theft among those previous
disqualifying convictions. Instead, the drafters added a
separate exception using the present tense, indicating that
“conviction for the forgery offense must at least occur in a
timeframe concurrent with the conviction for identity theft.”
(Gonzales, at p. 54.)
We also rejected the second possible construction, i.e., that
a forgery conviction is punishable as a felony “whenever the
defendant is convicted of identity theft at the same time he is
convicted of forgery.” (Gonzales, supra, 6 Cal.5th at p. 52.) We
indicated that such a construction would be arbitrary. It would
mean that a defendant convicted of forgery and identity theft in
the same proceeding could have his forgery conviction punished
as a felony “simply because he was convicted and sentenced in a
consolidated proceeding, whereas another defendant in a
comparable situation [could not] if he were convicted in separate
proceedings.” (Id. at p. 51.) Nothing in the statute suggests that
eligibility for felony punishment should turn on the procedural
sequence of a defendant’s forgery and identity theft convictions.
Instead, Gonzales held that the identity theft exception
makes forgery not exceeding $950 punishable as a felony only if
the defendant is also convicted of identity theft in the same
proceeding and the “conduct related to the forgery and identity
theft convictions were made ‘in connection with’ each other.”
(Gonzales, supra, 6 Cal.5th at p. 50.) The two convictions “must
bear some meaningful relationship to each other — beyond the
convictions’ inclusion in the same judgment.” (Id. at p. 54.) We
reached this conclusion based on the legislative history and
purpose of Proposition 47. The Legislative Analyst’s
interpretation of section 473(b) explained that “[u]nder this
measure, forging a check worth $950 or less would always be a

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misdemeanor, except that it would remain a wobbler crime if the
offender commits identity theft in connection with forging a
check.” (Voter Information Guide, Gen. Elec. (Nov. 4, 2014)
analysis of Prop. 47 by Legis. Analyst, p. 35, italics added.)
Moreover, we found that the electorate had a purpose in
combining the two offenses: Forgery and identity theft “tend to
facilitate each other and, committed together, arguably trigger
heightened law enforcement concerns. A person who commits
forgery by imitating the victim’s signature on a check, for
example, will often present identification to falsely represent his
or her identity.” (Gonzales, at p. 54.) At the same time, we
declined to adopt a requirement that the forgery and identity
theft offenses must be “committed in a transactionally related
manner” (id. at p. 53) or that they must relate to the “same
instrument” (id. at p. 57; see also id. at p. 53, fn. 6). Because the
conduct underlying Gonzales’s forgery and identity theft
convictions occurred years apart and was unrelated, we held
that section 473(b) did not preclude reduction of his forgery
conviction to a misdemeanor. (Gonzales, at p. 56.)
Our reasoning and holding in Gonzales are instructive on
the question now before us: whether forgery and identity theft
are undertaken in connection with each other for purposes of the
identity theft exception in section 473(b) simply because a
defendant possessed separate stolen identification and forged
instruments together at the same time. Guerrero contends that
concurrent possession, without more, is not enough to establish
a meaningful connection between his forgery and identity theft
convictions. The Attorney General argues that the answer
depends on the “totality of the circumstances,” including
whether the convictions “are linked in time or place, whether
the crimes required an identical or similar intent, whether the

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same course of conduct played a significant part in both
convictions, and whether the crimes facilitated one another or
shared some other transactional relationship.” According to the
Attorney General, because Guerrero possessed the counterfeit
bill and the stolen identification in the same place, with the
intent to defraud in both cases, and because proof of each crime
relied on largely the same evidence, there was a sufficient
relationship between his identity theft and forgery convictions
to disqualify him from a sentence reduction.
We agree with Guerrero that concurrent possession,
without more, does not establish a meaningful connection
between the two offenses for purposes of the identity theft
exception. As we said in Gonzales, the identity theft exception
does not arbitrarily combine two unrelated crimes; it “lists two
offenses that tend to facilitate each other and, committed
together, arguably trigger heightened law enforcement
concerns.” (Gonzales, supra, 6 Cal.5th at p. 54, italics added.)
Although our reference to facilitation in Gonzales was
illustrative, we now conclude that it provides the clearest
standard rooted in the purpose of Proposition 47 to evaluate
whether a meaningful connection between forgery and identity
theft exists. To disqualify a defendant for relief under section
473(b), the prosecution must show that the forgery offense
facilitated the identity theft offense, or vice versa. The fact that
both offenses were committed at the same time and place, or the
fact that evidence of both offenses was found at the same time
and place, does not by itself mean that one offense facilitated the
other.
As we have explained, section 473(b) does not disqualify a
defendant from relief whenever there is any superficial
connection between his forgery and identify theft convictions;

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the connection must be a “meaningful” one. (Gonzales, supra, 6
Cal.5th at p. 53.) Here, as in Gonzales, Proposition 47’s
remedial objectives as well as the limits of those objectives
inform our interpretation of the identity theft exception.
(Gonzales, at p. 52, citing People v. Dehoyos (2018) 4 Cal.5th 594,
597–599.) Proposition 47 intended “to ensure that prison
spending is focused on violent and serious offenses, [and] to
maximize alternatives for nonserious, nonviolent crime.” (Voter
Information Guide, Gen. Elec., supra, text of Prop. 47, § 2, p. 70.)
To this end, Proposition 47 redefined several theft-related
offenses as misdemeanors instead of wobblers, including forgery
of instruments worth $950 or less. At the same time,
Proposition 47 limited its ameliorative reach by excluding more
serious offenses from relief. We infer that the voters disqualified
defendants convicted of both forgery and identity theft from
sentence reduction because they believed that the commission
of one of those crimes to facilitate the other “arguably trigger[s]
heightened law enforcement concerns.” (Gonzales, supra, 6
Cal.5th at p. 54; see also Voter Information Guide, Gen. Elec.,
supra, analysis of Prop. 47 by Legis. Analyst, p. 35 [forgery
“would remain a wobbler crime if the offender commits identity
theft in connection with forging a check”].) Forgery offenses that
either facilitate or are facilitated by identity theft may result in
greater economic and personal harms. Other Penal Code
provisions recognize these heightened concerns by specifically
punishing the falsification or possession of false driver’s licenses
and identification cards “with the intent that [they] be used to
facilitate the commission of any forgery.” (§§ 470a, 470b.)
Requiring a showing of facilitation provides a familiar and
workable standard for determining whether a meaningful
connection exists. Courts and juries are frequently asked to

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determine whether conduct aids or facilitates the commission of
an offense (e.g., § 31 [aiding and abetting]) or whether a
defendant harbored the intent to facilitate (§§ 470a [falsifying
identification to facilitate forgery], 470b [possessing false
identification to facilitate forgery]). We said in Gonzales that
“[w]e can reasonably distinguish . . . between foreclosing relief
to those convicted of felony forgery that was also facilitated by
the felony offense of identity theft, and barring relief for anyone
who happens to have been convicted, at some point in his or her
life, of unrelated forgery and identity theft offenses.” (Gonzales,
supra, 6 Cal.5th at p. 55, italics added.) And we provided a
typical example: “A person who commits forgery by imitating
the victim’s signature on a check, for example, will often present
identification to falsely represent his or her identity.” (Id. at
p. 54.) Identity theft may also facilitate forgery in relation to
the same instrument. For example, a person may obtain a
victim’s home address or checking account number to create a
forged check. This standard is preferable to the totality of the
circumstances approach proposed by the Attorney General,
which may create further uncertainty and result in inconsistent
application.
An individual can commit forgery by possessing a forged
instrument (§ 476), and an individual can commit identity theft
by possessing stolen identification (§ 530.5, subd. (c)(1)). But
simultaneous possession of separate stolen identification and
forged instruments, without more, does not raise the same
heightened law enforcement concerns that the identity theft
exception in section 473(b) intended to address and is not
sufficient to show a facilitative relationship. Of course, when a
defendant possesses two items of contraband at the same time,
those items are connected in a superficial sense — the same

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person possesses them. But without additional evidence of a
connection, that is all that can be said. Possession of one
instrument need not have facilitated possession of the other.
(Cf. Ondarza v. Superior Court (1980) 106 Cal.App.3d 195, 203
[“commission of two separate crimes on the same day does not
justify an inference that they were necessarily connected”];
People v. Saldana (1965) 233 Cal.App.2d 24, 30 [“logic supports
the inference that the Legislature did not intend the phrase ‘two
or more different offenses connected together in their
commission’ to apply to two wholly unrelated crimes merely
because they were committed on the same day or . . . at the same
time” (quoting § 954)].)
The Attorney General contends that a defendant “found in
possession of the personal identifying information of one person
and an altered check of another person” raises heightened law
enforcement concerns because concurrent possession
demonstrates that the defendant is “engaged in broad and wide-
ranging efforts to defraud multiple victims.” First, we doubt
that voters intended to preclude a forgery defendant from relief
simply because he engaged in a scheme to defraud multiple
victims. If they did, section 473(b) would have also precluded
relief for defendants convicted of two forgery offenses, two
identity theft offenses, or more than one of any number of other
fraud offenses (see, e.g., §§ 477 [counterfeiting coin], 532a
[making false representations]) so long as those offenses had
different victims. The electorate instead chose to exclude
defendants who committed two and only two distinct fraud
offenses together. Moreover, the law already accounts for the
heightened seriousness of a criminal scheme to defraud multiple
victims: The more separate counts of forgery and identity theft
a defendant commits, the more convictions he may suffer.

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Second, even if the electorate intended to exclude
defendants engaged in “broad and wide-ranging efforts to
defraud multiple victims,” the bare fact that a defendant
possessed two separate items of contraband at the same time,
without evidence of how and when the defendant came into
possession of the contraband, does not itself demonstrate such a
connection. If the defendant came to possess the two items at
different times through unrelated conduct, the fact that he was
found with both items at the same time would not indicate that
the items are part of a common scheme. (Cf. People v. Ewoldt
(1994) 7 Cal.4th 380, 403 [“To establish the existence of a
common design or plan, the common features must indicate the
existence of a plan rather than a series of similar spontaneous
acts . . . .”].)
In this case, the stolen identification information and the
counterfeit $50 bill were not shown to be connected in any way
except that they were both found in Guerrero’s wallet. There
was no evidence that Guerrero used the stolen information to
obtain the counterfeit bill. Without such evidence, we cannot
draw any conclusion beyond the fact that Guerrero happened to
possess both items of contraband at the same time.
CONCLUSION
We hold that the meaningful connection requirement of
section 473(b)’s identity theft exception is satisfied only if a
defendant convicted of forgery is also convicted of identity theft
in the same proceeding and only if one of the offenses facilitated
the other. The sole fact that a defendant happened to possess
two separate items of contraband at the same time does not
demonstrate such a facilitative relationship. Simultaneous
possession of contraband, without more, does not raise the same

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law enforcement concerns that the electorate intended to
address when it excluded defendants “convicted both of forgery
and of identity theft” from sentencing relief. (§ 473(b).)
Because Guerrero had not yet been sentenced at the time
Proposition 47 became effective, its ameliorative provisions
apply directly to his case. (People v. Lara (2019) 6 Cal.5th 1128,
1135.) It is uncontested that the only evidence supporting his
forgery conviction was the counterfeit $50 bill, which is valued
at far less than the $950 threshold below which a forgery
conviction must be punished as a misdemeanor. Guerrero is
therefore entitled to reduction of his forgery conviction to a
misdemeanor. Accordingly, we reverse the judgment of the
Court of Appeal with instructions to remand to the trial court to
reduce Guerrero’s forgery conviction to a misdemeanor.

LIU, J.

We Concur:
CANTIL-SAKAUYE, C. J.
CHIN, J.
CORRIGAN, J.
CUÉLLAR, J.
KRUGER, J.
GROBAN, J.

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Guerrero
__________________________________________________________________________________

Unpublished Opinion XXX NP opn. Filed 12/5/18 – 6th Dist.
Original Appeal
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S253405
Date Filed: April 30, 2020
__________________________________________________________________________________

Court: Superior
County: Santa Clara
Judge: Linda R. Clark

__________________________________________________________________________________

Counsel:

Randall Conner, under appointment by the Supreme Court, for Defendant and Appellant.

Kamala Harris and Xavier Becerra, Attorneys General, Jeffrey M. Laurence and Gerald A. Engler,
Assistant Attorneys General, Seth K. Schalit, Lisa Ashley Ott, Catherine A. Rivlin and Claudia H. Amaral,
Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Randall Conner
State Public Defender
717 Washington Street, Second Floor
Oakland, CA 94607
(415) 264-1238

Lisa Ashley Ott
Deputy Attorney General
455 Golden Gate Ave., Suite 11000
San Francisco, CA 94102-7004
(415) 510-3839