Opinion
F082543
01-05-2023
THE PEOPLE, Plaintiff and Respondent, v. SHAWN ARLIN DONLEY, Defendant and Appellant.
Jan B. Norman, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Robert C. Nash, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Mariposa County. No. 16449F Michael A. Fagalde, Judge.
Jan B. Norman, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Robert C. Nash, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT [*]
Defendant Shawn Arlin Donley pled no contest pursuant to a negotiated plea agreement to felony forgery. The forgery involved seven checks, each with a face value below $950, but with an aggregate face value of $4,376. We dismissed defendant's direct appeal of his conviction for failure to obtain a certificate of probable cause.
While defendant's direct appeal was pending, he filed with the trial court a petition to resentence his felony conviction to a misdemeanor pursuant to Proposition 47, the Safe Neighborhoods and Schools Act. The trial court denied defendant's petition. On appeal, he argues the trial court erred in denying his petition. The People disagree, arguing that the resentencing provisions of Proposition 47 do not apply to defendant because he was sentenced nearly five years after its effective date. We affirm.
At defendant's request, this court has taken judicial notice of its January 3, 2022 unpublished opinion on defendant's direct appeal of his conviction. (People v. Donley (Jan. 3, 2022, F081335) [nonpub. opn.] (Donley).) The procedural summary is drawn in part from that opinion.
A. Defendant's Direct Appeal
"On October 28, 2019, the Mariposa County District Attorney filed a second amended complaint charging defendant and five codefendants with conspiracy to commit check forgery (Pen. Code, §§ 182, subd. (a)(1), 475, subd. (a); count 1), felony forgery (§ 475, subd. (a); count 2), and misdemeanor forgery (§§ 470, subd. (d), 473, subd. (b); count 3). As to counts 1 and 2, the second amended complaint further alleged that defendant had suffered a prior felony 'strike' conviction within the meaning of the 'Three Strikes' law. (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).)
All further statutory references are to the Penal Code.
"On the same date, pursuant to a negotiated plea agreement, defendant pled no contest to count 2 and admitted the prior strike conviction in exchange for dismissal of counts 1 and 3. The plea agreement included an agreed sentence of two years eight months in prison and payment of restitution in the amount of $4,376.15. The plea agreement specified that defendant admitted the police reports contained a factual basis for the plea.
The written plea agreement provided that restitution would be paid in the amount of $4,376.15; as stated on the record, the plea agreement provided that defendant would pay restitution in the amount of $4,376.55.
"On May 6, 2020, the trial court imposed the agreed-upon sentence as follows: on count 2, two years eight months (the low term of 16 months doubled due to the prior strike conviction)."
"On June 16, 2020, defendant filed a notice of appeal." (Donley, supra, F081335.)
On January 3, 2022, we dismissed defendant's direct appeal of his conviction. We noted that we had the discretion to construe defendant's appeal as a petition for writ of habeas corpus if refusal to address the claim would result in a miscarriage of justice. We declined to do so, based on our finding that refusal to hear the claim would not result in a miscarriage of justice and the reasoning of People v. Miller (2012) 202 Cal.App.4th 1450. (Donley, supra, F081335.)
B. Defendant's Petition for Resentencing
On January 28, 2021, defendant filed a petition to be resentenced to a misdemeanor pursuant to section 1170.18.
On March 1, 2021, the trial court denied defendant's petition. On March 12, 2021, defendant filed a notice of appeal.
On April 2, 2021, defendant filed a motion with the trial court to reconsider denial of his petition.
On April 22, 2021, the trial court denied defendant's motion to reconsider.
Our factual summary is drawn from our opinion on defendant's direct appeal. (Donley, supra, F081335.)
"On September 10, 2019, a Mariposa County Sheriff's deputy responded to a market in Mariposa County. The market manager told the deputy that on September 5, 2019, Nicole Schoonover cashed a check at the market. The check was determined to be fraudulent.
"On September 11, 2019, Schoonover returned to the market and attempted to cash another fraudulent check. A market employee notified the sheriff's department and attempted to stall the transaction long enough for a deputy to arrive. Schoonover left the market before a deputy arrived. However, the vehicle Schoonover departed in was described to one of the deputies who was able to locate the vehicle and conduct a traffic stop. Defendant was the driver of the vehicle and Schoonover was the passenger. The deputy questioned Schoonover about the checks. She denied knowing that the checks were fraudulent and told the deputy that she received the checks from defendant, for whom she worked. Defendant denied knowing anything about the checks. Defendant and Schoonover were then both taken into custody.
"On the same date, the market's manager reviewed the checks received by the market within the previous two weeks and discovered that similar fraudulent checks had been cashed by Schoonover, defendant, Melanie Donley, Matthew Donley, Roy Sapp, and Christopher Robesky. Defendant personally cashed checks in the amount of $547.35 and $635.27. None of the checks individually exceeded $950 in face value, but the total value of the fraudulent checks cashed was $4,376.
"On September 12, 2019, a sheriff's deputy conducted a follow-up interview with defendant and Schoonover. Schoonover told the deputy that defendant made the checks at his mother's house and distributed them between himself and the others involved in the scheme. She said that when she cashed the checks, she gave the money to defendant who gave her a portion back. Defendant, on the other hand, told the deputy that he knew nothing about making fraudulent checks or who may be involved in the scheme. When asked who gave Schoonover the checks, defendant told the deputy that he assumed that Robesky or Matthew Donley may have been involved in the scheme.
"On the same date, deputies executed a search warrant at defendant's residence. They seized a computer, printer, and check paper.
"Deputies also obtained surveillance video footage from the cashing of the fraudulent checks. A vehicle depicted in at least one of the videos was registered to defendant's home address." (Donley, supra, F081335.)
DISCUSSION
Defendant contends that the factual basis supporting his forgery conviction could only support a misdemeanor conviction rather than a felony. He argues that the trial court therefore erred in denying his motion to reduce his sentence pursuant to section 1170.18. The People argue that section 1170.18 does not apply to people serving sentences imposed after the November 5, 2014 effective date of Proposition 47. We agree with the People. Because defendant began serving his sentence after November 5, 2014, he was not entitled to relief pursuant to section 1170.18 and the trial court did not err in denying his petition.
Approved by voters in 2014, Proposition 47 provides, "A person who, on November 5, 2014, was serving a sentence for a conviction .. of a felony or felonies who would have been guilty of a misdemeanor .. had this act been in effect at the time of the offense may petition for a recall of sentence before the trial court that entered the judgment of conviction in his or her case to request resentencing .." (See People v. Page (2017) 3 Cal.5th 1175, 1181.) Codified in section 1170.18, Proposition 47 "reduces many common theft- and drug-related offenses from felonies to misdemeanors for offenders who do not have prior convictions for specified violent or serious offenses." (People v. DeHoyos (2018) 4 Cal.5th 594, 597; see Page, at p. 1179.) Specifically, as it relates to this case, Proposition 47 modified section 473 to add subdivision (b), which reads in relevant part as follows: "any person who is guilty of forgery relating to a check ... where the value of the check ... does not exceed nine hundred fifty dollars ($950), shall be punishable by imprisonment in a county jail for not more than one year, except" where the defendant suffered a prior serious or violent felony conviction or a conviction requiring sex offender registration.
It is undisputed that defendant began serving his sentence in 2020. He was therefore not eligible for relief pursuant to subdivision (a) of section 1170.18 because he was not "[a] person who, on November 5, 2014, was serving a sentence for a conviction ... of a felony or felonies who would have been guilty of a misdemeanor ... had this act been in effect at the time of the offense .." (§ 1170.18, subd. (a).) Because" 'the statutory language is clear and unambiguous, the plain meaning of the statute governs.'" (People v. Johnson (2022) 79 Cal.App.5th 1093, 1109.) Defendant was not entitled to relief pursuant to section 1170.18 and the trial court did not err in denying him relief.
Defendant's reliance on People v. Hoffman (2015) 241 Cal.App.4th 1304, 1308, 1310-1311, for the proposition that he is entitled to relief, is misplaced. In Hoffman, the defendant began serving a sentence prior to November 5, 2014. Such is not the case here. Hoffman is therefore of no assistance to defendant.
DISPOSITION
The order is affirmed.
[*] Before Hill, P. J., Detjen, J. and DeSantos, J.