Opinion
E066670
06-13-2018
THE PEOPLE, Plaintiff and Respondent, v. ROBERT THOMAS HAMILTON III, Defendant and Appellant.
Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Kristine Gutierrez and Jennifer B. Truong, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. INF1101527) OPINION APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge. Affirmed in part; reversed in part and remanded with directions. Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Kristine Gutierrez and Jennifer B. Truong, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Robert Thomas Hamilton III pled guilty to transportation of methamphetamine (Health & Saf. Code, former § 11379, count 2), possession or receipt of a forged check (Pen. Code, § 475, subd. (a), count 3), and three counts of receiving stolen property (Pen. Code, former § 496, subd. (a), counts 4-6). He also admitted that he had one prior strike conviction (Pen. Code, §§ 667, subds. (c) & (e)(1), 1170, subd. (c)(1)) and that he had served one prior prison term (Pen. Code, § 667.5, subd. (b)). The court sentenced defendant to a total of seven years in state prison. He subsequently filed a petition for resentencing pursuant to Penal Code section 1170.18. The court denied the petition as to counts 2 and 3, and continued the matter as to counts 4 through 6. Defendant appeals from the denial of his petition for resentencing. We reverse and remand as to count 3. Otherwise, we affirm.
All further statutory references will be to the Health and Safety Code unless otherwise noted. --------
FACTUAL AND PROCEDURAL BACKGROUND
On June 11, 2011, a police officer conducted a traffic stop of defendant's car. Defendant agreed to let the officer search his car. The officer found four baggies of methamphetamine, a digital scale, $254 in cash, identification cards that did not belong to defendant, two stolen credit cards, and an envelope with several checks in it.
On September 18, 2013, defendant entered a plea agreement and pled guilty to transportation of methamphetamine (Health & Saf. Code, former § 11379, count 2), possession or receipt of a forged check (Pen. Code, § 475, subd. (a), count 3), and receiving stolen property (Pen. Code, former § 496, subd. (a), counts 4-6). He also admitted that he had one prior strike conviction (Pen. Code, §§ 667, subds. (c) & (e)(1), 1170, subd. (c)(1)) and that he had served one prior prison term (Pen. Code, § 667.5, subd. (b)). Pursuant to the plea agreement, the court sentenced defendant to three years on count 2, doubled to six years; it then imposed concurrent terms of four years each on counts 3 through 6, plus a consecutive term of one year on the prison prior, for a total of seven years in state prison.
On June 19, 2015, defense counsel filed a petition for resentencing pursuant to Penal Code section 1170.18, seeking to have defendant's convictions for possession of a forged check (Pen. Code, § 475, subd. (a)) and receiving stolen property (Pen. Code, former § 496, subd. (a)) reduced to misdemeanors. On August 4, 2015, defendant filed a petition in propria persona additionally seeking to have his conviction for transportation of methamphetamine (Health & Saf. Code, § 11379) reduced to a misdemeanor. He alleged that this offense qualified for relief because he pled guilty to transportation of methamphetamine for personal use, not for sale.
On July 1, 2016, the court held a hearing and denied the petition for resentencing as to the transportation of methamphetamine conviction, asserting that Health and Safety Code section 11379 is not enumerated in Penal Code section 1170.18. The court stated that it was irrelevant that the transportation was for personal use. It also denied the petition as to the possession of a forged check conviction (Pen. Code, § 475, subd. (a)) on the basis that defendant failed to meet his burden to show the amount of the checks was less than $950. The court continued the matter as to the other convictions.
ANALYSIS
I. Defendant Failed to Establish That He Was Eligible for Relief Under
Proposition 47 on Count 2
Defendant argues the trial court erred in concluding that his conviction under former section 11379 (count 2) was not eligible for resentencing under Proposition 47. He contends that since he pled guilty to transportation of methamphetamine for personal use, his conduct under the current law would amount to a violation of section 11377, which is a qualifying offense under Proposition 47. Thus, he asserts that the order denying relief should be reversed and the matter remanded for resentencing. We affirm the court's ruling.
At the time of defendant's convictions in 2013, former section 11379 applied to transportation for sale or personal use. (People v. Eagle (2016) 246 Cal.App.4th 275, 278 (Eagle).) Defendant pled guilty to transportation of methamphetamine for personal use, pursuant to former section 11379.
Effective January 1, 2014, the Legislature amended section 11379 to add the requirement that the transportation be for sale. (§ 11379, subd. (c) [transports means to transport for sale].)
In November 2014, California voters approved Proposition 47 (effective November 5, 2014). (Pen. Code, § 1170.18.) "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)." (People v. Rivera (2015) 233 Cal.App.4th 1085, 1091.) "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." (Id. at p. 1092.)
The trial court denied defendant's petition, finding him ineligible for relief since Health and Safety Code section 11379 is not one of the code sections enumerated in Penal Code section 1170.18, subdivision (a). However, the Supreme Court in People v. Page (2017) 3 Cal.5th 1175 (Page) recently held that Penal Code section 1170.18, subdivision (a), "does not say that only those defendants who were convicted under the listed sections are eligible for resentencing." (Id. at p. 1184.) In other words, eligibility for resentencing is not limited to defendants convicted under one of the provisions listed in Penal Code section 1170.18, subdivision (a). (Id. at pp. 1184-1185; see People v. Martinez (2018) 4 Cal.5th 647 (Martinez).) Thus, in light of Page, the court improperly found defendant ineligible for relief. Nonetheless, we affirm the denial of the petition with regard to count 2. "[W]e review the ruling, not the court's reasoning and, if the ruling was correct on any ground, we affirm." (People v. Geier (2007) 41 Cal.4th 555, 582 (Geier).)
Defendant does not dispute that he was validly convicted under former section 11379 as it existed at the time of his offense. He also does not dispute that Proposition 47 did not expressly amend section 11379. Rather, he argues that, at the time Proposition 47 took effect, there was no need to explicitly include section 11379 violations, since such offenses only involved transportation for sale, in light of the amendment to section 11379 narrowing the definition of "transports" to "transport for sale." He further contends that, under the laws as they were written at the time Proposition 47 took effect, his act of transporting methamphetamine for personal use "amounted to a simple, nonserious and nonviolent drug possession crime," and the electorate intended such crime to be treated as a misdemeanor. Moreover, had his act of transporting methamphetamine for personal use been committed today, it would constitute a violation of section 11377, which is included in Proposition 47. Thus, he claims this court should construe Proposition 47 to permit resentencing in this case to ensure misdemeanor treatment.
The Supreme Court recently addressed this issue in Martinez, supra, 4 Cal.5th 647. As in the instant case, the defendant appealed the trial court's denial of his Proposition 47 petition on his transportation conviction under former section 11379. The Supreme Court asserted that the defendant's eligibility for resentencing turned on whether he " 'would have been guilty of a misdemeanor under [Proposition 47] had [it] been in effect at the time of the offense.' (Pen. Code, § 1170.18[, subd.] (a).)" (Martinez, at p. 652.) The Supreme Court affirmed this court's conclusion that the defendant was not eligible for resentencing since his conduct still would have amounted to felony drug transportation. The Supreme Court noted that Proposition 47's amendments to sections 11350, 11357, and 11377 "do not redefine or refer to unlawful transportation of controlled substances." (Martinez, at p. 653.) Furthermore, the amendment to section 11379 clarifying that "transports" means to "transport for sale" (§ 11379, subd. (c)) did not become effective until 2014, which was more than three years after the defendant's conviction of former section 11379 had become final. (Martinez, at p. 653.) Thus, the Supreme Court held, "Because Proposition 47 did not reduce the transportation of a controlled substance from a felony to a misdemeanor, [the defendant] is ineligible for resentencing on that offense." (Ibid.) In other words, "[the defendant's] conviction under former section 11379 would not have been affected even if Proposition 47 had been in effect at the time of his offense." (Martinez, at p. 655.)
Here, defendant's conviction for transportation of methamphetamine under Health and Safety Code former section 11379, subdivision (a), was final in 2013; thus, the amendment to that statute, which became effective in 2014, does not apply to his conviction. Moreover, as noted in Martinez, the required showing under Penal Code section 1170.18 is whether the petitioner "would have been guilty of a misdemeanor under [Proposition 47] had [it] been in effect at the time of the offense." (Pen. Code, § 1170.18, subd. (a).) Defendant committed his offense in 2011. Thus, if Proposition 47 had been in effect when defendant committed his offense in 2011, he would have been guilty of a felony not covered by Proposition 47, since the amendment did not go into effect until 2014. (See Martinez, supra, 4 Cal.5th at p. 653.)
As to defendant's specific claim that his act of transporting methamphetamine for personal use would constitute a misdemeanor in violation of section 11377, had it been committed today, he is not necessarily correct. As the Supreme Court in Martinez, explained, "[t]he Legislature's amendment of section 11379 to specify that 'transport' means 'transport for sale' did not shift the unlawful transportation of drugs for all other reasons to section 11377. Because possession is not an element of unlawful transportation, not every person convicted of transporting drugs under former section 11379 has necessarily committed a drug possession offense covered by Proposition 47. [Citation.] The 2013 amendment to section 11379 simply means that transportation of a controlled substance without intent to sell is no longer a distinct criminal offense." (Martinez, supra, 4 Cal.5th at p. 655.)
Because defendant has still not established his eligibility for resentencing under Proposition 47, we must affirm the court's denial of his petition as to count 2. (See Geier, supra, 41 Cal.4th at p. 582.)
II. Defendant's Conviction Under Section 475 is Eligible for Relief
Defendant next argues that the court violated his due process rights by denying his request for resentencing under Proposition 47 on his conviction for possession of a forged check. (§ 475, subd. (a), count 3.) He claims that the checks were essentially only worth the paper they were written on, since they were never cashed. He also contends that the court erred in aggregating the amounts of the four forged checks in order to find that the amount exceeded $950. We agree that the court improperly aggregated the amounts of the four checks.
A. Relevant Background
Defendant was convicted of violating section 475, subdivision (a), which provides, "Every person who possesses or receives, with the intent to pass or facilitate the passage or utterance of any forged, altered, or counterfeit items, or completed items contained in subdivision (d) of Section 470 with intent to defraud, knowing the same to be forged, altered, or counterfeit, is guilty of forgery." Proposition 47 amended section 473, which is the statute that governs sentencing for forgery, including a violation of section 475. (People v. Maynarich (2016) 248 Cal.App.4th 77, 80.) Section 473, subdivision (b), now states that forgery related to a check that does not exceed $950 in value is a misdemeanor. (Maynarich, at p. 80.)
Defendant's conviction in count 3 was based on his possession of four forged checks. At the hearing on the petition, the People asserted that each check was for an amount under $950, but the aggregate value of the checks exceeded $950. Thus, the court found that defendant failed to meet his burden to prove the value of the checks did not exceed $950.
B. The Court Erred in Aggregating the Check Values
Defendant argues that the forged checks "had intrinsic value, but were not worth the value for which the checks had been written." However, "for purposes of resentencing under Proposition 47, the value of a forged check is the face value of the check. Under Proposition 47, the market value of any forged instrument 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. In the context of forgery, however, the word 'value' as used in section 473, subdivision (b), corresponds to the stated value or face value of the check." (People v. Salmorin (2016) 1 Cal.App.5th 738, 745 (Salmorin).) Thus, the trial court properly considered the face value of the forged checks for purposes of determining defendant's eligibility for Proposition 47 resentencing.
However, the court erred by using the aggregate value of the checks to determine whether defendant was entitled to resentencing under section 473, subdivision (b). " '[S]ection 473 does not authorize the trial court to aggregate check values.' " (Salmorin, supra, 1 Cal.App.5th at p. 745.)
The People contend that section 473, subdivision (b), should not prohibit the trial court from aggregating the value of forged checks where, as here, the checks are the subject of a single charge. However, as explained in Salmorin, supra, 1 Cal.App.5th 738, 745, the language of section 473, subdivision (b), does not support this position. "We begin then with the ' "usual, ordinary meaning" ' of the language of the statute. [Citation.] With exceptions not relevant here, section 473, subdivision (b), provides that 'any person who is guilty of forgery relating to a check, . . . where the value of the check . . . does not exceed [$950], shall be punishable by imprisonment in a county jail for not more than one year.' [Citation.] In referring to 'a check' and 'the value of the check,' the language of the statute distinguishes misdemeanor forgery from felony forgery based on the value of any single check the person is guilty of forging, not the aggregate value of two or more checks. [Citations.] Nothing in the ordinary meaning of the words of section 473, subdivision (b), supports the People's distinction between individual checks charged in separate counts and multiple checks charged in a single count. And we may not read that distinction into the statute. [Citations.]" (Salmorin, supra, 1 Cal.App.5th at p. 746.)
"Moreover, to the extent there is any ambiguity in the language of section 473, subdivision (b), ' " 'other indicia of the voters' intent' " ' do not support the People's interpretation. [Citations.] 'As the Legislative Analyst explained, "Under this measure, forging a check worth $950 or less would always be a misdemeanor," unless "the offender commits identity theft in connection with forging a check." ' [Citation.] The Legislative Analyst's use of the word 'always' strongly suggests voters did not intend the court to disqualify a defendant from relief under Proposition 47 by aggregating the value of multiple forged checks worth $950 or less even if the People charged the forgeries in a single offense. [Citations.]" (Salmorin, supra, 1 Cal.App.5th at pp. 747-748.)
The People argue that the Salmorin court's construction of section 473, subdivision (b), "is problematic because it frustrates the apparent purpose of Proposition 47, and it would lead to absurd results." However, Proposition 47 "included a provision requiring that it 'be liberally construed to effectuate its purposes.' [Citations.] One of those purposes is to '[r]equire misdemeanors instead of felonies for nonserious, nonviolent crimes like petty theft and drug possession, unless the defendant has prior convictions for specified violent or serious crimes.' [Citation.] The People's proposed interpretation of section 473, subdivision (b), is not a liberal construction of the statute and does not effectuate the purpose of '[r]equir[ing] misdemeanors instead of felonies.' To the contrary, under the People's proposed interpretation, fewer forgery offenses would qualify as misdemeanors." (Salmorin, supra, 1 Cal.App.5th at p. 747.)
Thus, the court erred in aggregating the amounts of the four checks to find that defendant's conviction in count 3 was not eligible for resentencing as a misdemeanor under Proposition 47. Because none of the checks were written for amounts exceeding $950, defendant was eligible for relief.
DISPOSITION
The trial court's order denying defendant's section 1170.18 petition for resentencing of his possession of a forged check conviction (§ 475, subd. (a), count 3) is reversed, and the matter is remanded with directions to resentence defendant in accordance with section 1170.18 on that count, unless the court, in its discretion, determines that resentencing him would pose an unreasonable risk of danger to public safety. (§ 1170.18, subd. (b).) In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J. We concur: RAMIREZ
P. J. SLOUGH
J.