Opinion
E067948
05-03-2018
THE PEOPLE, Plaintiff and Respondent, v. CARRIE NICHOLE GRAHAM, Defendant and Appellant.
Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Andrew Mestman and Minh U. Le, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FWV1403946) OPINION APPEAL from the Superior Court of San Bernardino County. Michael A. Smith, Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Reversed. Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Andrew Mestman and Minh U. Le, Deputy Attorneys General, for Plaintiff and Respondent.
The trial court denied the petition of defendant and appellant Carrie Nichole Graham to reduce her sentence to a misdemeanor under Proposition 47 (Petition) because her forgery conviction under Penal Code section 476a exceeded $950; and therefore was ineligible for relief. On appeal, defendant argues that the trial court erred in denying the Petition because the record shows she pled guilty to section 476, not section 476a, and her conviction under section 476 is eligible for relief under Proposition 47.
All statutory references are to the Penal Code unless otherwise specified.
FACTUAL AND PROCEDURAL HISTORY
On September 19, 2014, a complaint charged defendant with one count of forgery—making, passing, uttering, publishing, or possessing counterfeit bills with the intent to defraud under section 476. According to the supplemental probation report, defendant stole, wrote, and cashed five checks that did not belong to her. The five checks were written for the following amounts: $285, $155, $145, $350, and $273.
Section 476, states as follows: "Every person who makes, passes, utters, or publishes, with intent to defraud any other person, or who, with the like intent, attempts to pass, utter, or publish, or who has in his or her possession, with like intent to utter, pass, or publish, any fictitious or altered bill, note, or check, purporting to be the bill, note, or check, or other instrument in writing for the payment of money or property of any real or fictitious financial institution as defined in Section 186.9 is guilty of forgery."
On November 4, 2014, the voters approved Proposition 47; it went into effect the next day. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1089.) Proposition 47 changed certain felony or wobbler drug-related and theft-related offenses to misdemeanors, unless the offenses were committed by ineligible defendants. (Rivera, at p. 1091; People v. Lynall (2015) 233 Cal.App.4th 1102, 1108.) Specifically, as to criminal offenses, Proposition 47: (1) added sections 459.5, 490.2, and 1170.18; and (2) amended sections 473, 476a, 496, and 666, and Health and Safety Code sections 11350, 11357, and 11377. (Rivera, at p. 1091; Lynall, at p. 1108.)
On December 22, 2014, the prosecution moved to amend count 1 "to include the language, in excess of 950 dollars." Defendant did not object. The trial court granted the motion and amended count 1 by interlineation "to show it was in excess of 950 dollars." The complaint was never amended to change count 1 to section 476a. Defendant pled no contest to a violation of section 476a—not 476—in exchange for three years of felony probation with 120 days to be served in county jail and termination of a separate misdemeanor matter (case No. MWV1204317).
The parties stipulated that the police reports contained the factual basis for defendant's plea. Moreover, the parties did not dispute, and the court agreed, that defendant wrote and cashed five checks, each of them for less than $950—$285, $155, $145, $350, and $273. The total of the five checks exceeded $950.
On December 22, 2014, the trial court granted defendant probation on the condition that she serve 120 days in jail. On May 4, 2015, defendant admitted violating her probation and the court ordered her to serve 210 days in jail; on November 20, 2015, defendant again admitted violating her probation and the court ordered her to serve 365 days in jail.
On June 16, 2016, defendant admitted violating her probation and the court imposed the upper term of three years with credit for 433 days. Defendant was ordered to serve two years in jail, and one year on mandatory supervision under Penal Code section 1170, subdivision (h). The prosecutor agreed not to file drug charges under Health and Safety Code sections 11364 and 11377.
On December 2, 2016, defendant filed the Petition under section 1170.18, subdivision (f) to recall her felony conviction and reduce it to a misdemeanor.
On March 10, 2017, defendant filed a supplemental allegation, that the value of each check was less than $950, a fact not in dispute. The same day, the trial court denied the Petition, finding defendant was not eligible for relief under section 1170.18, subdivision (f).
On March 13, 2017, defendant filed a notice of appeal from the trial court's order finding that she was ineligible for relief under section 1170.18. On June 23, 2017, defendant filed a petition for writ of habeas corpus, case No. E068592 (Writ).
Defendant filed a petition for writ of habeas corpus that was, on July 12, 2017, ordered considered with this appeal for the sole purpose of determining whether an order to show cause should issue. In her writ of habeas corpus, defendant argues that her trial counsel rendered ineffective assistance of counsel. For the reasons set forth in this opinion, we agree with defendant and reverse the trial court's order. Because we reverse the trial court's order, by separate order we will deny defendant's petition for writ of habeas corpus.
For the reasons set forth below, we reverse the trial court's order denying defendant relief under Proposition 47.
DISCUSSION
A. DEFENDANT PLED GUILTY TO SECTION 476, NOT 476a
Defendant contends that she is eligible for relief under section 1170.18 because she pled no contest to section 476; it was a clerical error that specified she pled guilty to section 476a. We agree.
In this case, the complaint charged defendant with the crime of "forgery," in violation of section 476, and alleged that defendant "made, passed, uttered, and published, and attempted to do so, with intent to defraud a person, and possessed, with like intent, to utter, pass and publish, a fictitious and altered bill, note, and check, purporting to be the bill, note, and check and other instrument in writing for the payment of money and property of a real and fictitious financial institution. > $950." The complaint was never amended to include a charge under section 476a.
The complaint charged defendant with violating section 476; however, at the hearing wherein defendant pled no contest she pled guilty to section 476a. At the hearing, the prosecutor asked to amend count 1 under section 476 "to include the language, in excess of 950 dollars." There was no amendment to change count 1 to a charge under section 476a instead of section 476. Thereafter, the court stated to defendant, "my understanding of your agreement is that you are going to be pleading in your new case to making or passing a check or forgery in excess of 950 dollars as a felony." Defendant responded, "Yes ma'am." Later in the hearing, the court asked defendant, "how do you plead to a violation in Count 1, Penal Code Section 476(a), making or passing a check or forgery in excess of 950 dollars, as a felony?" Defendant answered, "No contest." (Italics added.)
Defendant was never charged with section 476a; the complaint charged defendant with section 476. The law is clear that the charging authority lies with the prosecutor, not with the courts. (People v. Birks (1998) 19 Cal.4th 108, 134.) The court had no authority to change the charge in count 1 to section 476a when taking defendant's plea. Notwithstanding the no contest plea to section 476a, every minute order in the file reflected that defendant pled no contest to section 476, not 476a. And, more importantly, while taking the plea, the trial court used the language from section 476 of "making or passing a check or forgery in excess of $950 as a felony," and not the language of section 476a—making or drawing or uttering or delivering a check "with not sufficient funds." Furthermore, the parties do not dispute that there were sufficient funds. Defendant successfully cashed five checks: $285 on May 21, 2014; $155 on May 23, 2014; $145 on May 29, 2014; $350 on May 27, 2014; and $273 on May 29, 2014. On June 4, 2014, Wells Fargo Fraud Detection contacted the victim; the victim informed the bank that the checks were fraudulent and froze the checking account. The victim believed that defendant stole the checks. On July 29, 2014, the victim's wife told the police that defendant admitted to taking, writing and cashing the checks.
Defendant was the girlfriend of the victim's stepson. She had been living in the victim's home. --------
At the hearing on the Petition defendant argued that she was charged with section 476, and pled guilty to section 476, which punishes the passing of fraudulent checks. Defendant argued that there was no evidence that she delivered a check with "not sufficient funds" within the meaning of section 476a. Defendant argued that at the time of her plea in December 2014 the parties had not contemplated the later decision in People v. Salmorin (2016) 1 Cal.App.5th 738, 743-745 (Salmorin), which held that for purposes of Proposition 47, it is not permissible to aggregate the amounts of fraudulent checks under sections 476 and 473 to deny relief under Proposition 47. At the hearing on the Petition, defense counsel argued defendant was eligible for relief because each of the five checks were under $950, and recent case law provided that "no aggregation can take place" for purposes of a section 476 violation.
In response, the prosecutor noted that the plea agreement was taken after Proposition 47 went into effect. Moreover, the parties "stipulated it was over 950 in aggregation." Based on these facts, the prosecutor argued that the intent of the parties was to craft a plea for "a felony, post Prop. 47" to a section 476a violation. Otherwise, defendant "could not have legally pled guilty to" a section 476 violation at the time the plea was taken. The prosecutor argued that the only mistake was a failure to amend the complaint by interlineation. The prosecutor asked the court to amend the complaint nunc pro tunc; defendant objected to the amendment. The trial court never amended the complaint.
After hearing argument from counsel, the trial court denied the Petition. The trial court found that reducing the offense would be contrary to the plea agreement; specifically, it pointed to the fact that the plea was entered into after Proposition 47 was enhanced, and for an amount in excess of $950. The court reasoned, "the intent of all the parties in the plea agreement [was] that this would not be a reducible offense under Prop. 47. And in exchange for that, the defendant was granted probation, 120 days in county jail as a term, allowed to do that on weekends."
Proposition 47 amended section 473 to reduce certain forgery offenses to misdemeanors. Subdivision (b) of that section provides, in pertinent 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." (§ 473, subd. (b).) Salmorin held that "section 473 does not authorize the trial court to aggregate check values." (Salmorin, supra, 1 Cal.App.5th at pp. 745-747; see also People v. Hoffman (2015) 241 Cal.App.4th 1304, 1310.)
Salmorin explained: "Proposition 47 changed the law regarding the punishment of forgery by adding section 473, subdivision (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." ' " (Salmorin, supra, 1 Cal.App.5th at p. 743.)
The appellate court in Salmorin, however, specifically limited its holding that "section 473 does not authorize the trial court to aggregate check values," with the exception that its holding did not apply to section 476a. (Salmorin, supra, 1 Cal.App.5th at pp. 746-747.)
In this case defendant pled no contest in 2014, two years prior to the decision in Salmorin was rendered. At the time the plea was taken and prior to the decision in Salmorin, a violation of section 476 wherein the sum of checks exceeded $950 was ineligible for relief under Proposition 47. Therefore, the parties' stipulation that the sum of the forged checks was "over 950 in aggregation" does not support the People's argument that defendant intended to plead guilty to section 476a.
Here, the evidence shows that defendant pled guilty to section 476, not to section 476a: the complaint was never amended to include a charge under section 476a, the minute orders referenced section 476, the language at the hearing wherein defendant pled guilty referenced section 476, and there were sufficient funds / defendant successfully cashed five fraudulent checks. The evidence is clear that the trial court misspoke when referring to section 476a since there was nothing in the record to indicate that a crime under section 476a was charged by the People or committed by defendant.
Notwithstanding, the People argue that defendant's "argument is in essence a challenge to the validity of her plea and not cognizable on appeal from the trial court's order denying relief under Proposition 47." However, defendant does not challenge her guilty plea. She simply argues she should be punished for passing fraudulent checks under section 476; not for delivering checks with "not sufficient funds" under section 476a.
Therefore, because defendant pled guilty to section 476, the trial court erred in denying the Petition. (Salmorin, supra, 1 Cal.App.5th at pp. 745-747.) Defendant is eligible for relief under Proposition 47 because she pled no contest to a violation under section 476 and none of the individual fraudulent checks exceeded $950.
DISPOSITION
The order denying defendant's petition under Proposition 47 is reversed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
Acting P. J. We concur: CODRINGTON
J. FIELDS
J.