Opinion
H044299
08-16-2018
THE PEOPLE, Plaintiff and Respondent, v. DIONT AARON LYONS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. CC938630)
Defendant Diont Aaron Lyons appeals an order denying his Proposition 47 petition to redesignate as a misdemeanor a felony conviction for access card forgery. The trial court correctly determined that defendant was not eligible for that relief since Proposition 47 made only certain forgery offenses misdemeanors, and access card forgery is not among them. We will therefore affirm the order.
I. BACKGROUND
In 2009, defendant used a counterfeit traveler's check to buy merchandise at a store, and police found several debit cards in his possession that had been altered to show different numbers on the front. He was convicted of two felonies: check forgery (Pen. Code, § 470, subd. (d)) and access card forgery (Pen. Code, § 484f, subd. (a)).
In 2016, defendant petitioned under Penal Code section 1170.18 (enacted by Proposition 47, the Safe Neighborhood and Schools Act, two years earlier) to redesignate both convictions as misdemeanors. The trial court granted the petition to redesignate the check forgery conviction, but denied redesignation of the access card forgery conviction because it is not one of the offenses that Proposition 47 reduced to misdemeanors.
II. DISCUSSION
Proposition 47 was enacted by the voters to redesignate certain property and drug offenses from felonies to misdemeanors. (People v. Varner (2016) 3 Cal.App.5th 360, 365.) It also created a procedure allowing a person previously convicted of a felony that Proposition 47 made a misdemeanor to petition the court for redesignation of that offense. (Pen. Code, § 1170.18.) Relevant here, Proposition 47 amended Penal Code section 473, the statute providing the punishment for forgery, to include subdivision (b), which reads: "[A]ny 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 as a misdemeanor.
Defendant contends that his conviction for access card forgery is a misdemeanor under section 473, subdivision (b) (unspecified statutory references are to the Penal Code). Access card forgery is not one of the offenses listed in the statute, but defendant argues that the statute is ambiguous and, properly interpreted, extends to other types of forgery not found in the text. The argument that section 473, subdivision (b) is ambiguous was rejected by this court in People v. Martinez (2016) 5 Cal.App.5th 234, 241 (Martinez). Martinez found the statute clear on its face, and based on a legislative expression of certain things necessarily being the exclusion of others, the forgery offenses listed in the text are the only offenses to which the statute applies. (Id. at p. 242.) Later, in People v. Bloomfield (2017) 13 Cal.App.5th 647, 653 (Bloomfield), the First Appellate District rejected the same contention defendant makes here, that the statute should be interpreted to encompass access card forgery as well as the listed types. Bloomfield found that by identifying seven specific types of forgery, the voters "deliberately signaled their intent not to include all forgery offenses in Proposition 47." (Bloomfield, supra, at p. 653.)
We are not persuaded to depart from the reasoning expressed in both Martinez and Bloomfield. Defendant argues that the statute's use of terms no longer used in ordinary conversation, such as "bank bills" and "notes," shows the list of offenses is intended to be illustrative, not exhaustive. But—as defendant himself points out—those terms were borrowed from section 470 (the statute defining forgery), which was originally enacted in 1872. (Lewis v. Superior Court (1990) 217 Cal.App.3d 379, 386-387.) So the use of dated language is not an indication the list is illustrative; it is merely an effort to track terminology used in existing law.
Defendant also discusses at some length the meaning of "bank bills;" "notes;" and "bonds," but does not credibly suggest that any of those terms could mean "access card." He asserts that section 473, subdivision (b) is intended to apply to any forgery "involving either currency in use today, or types of payment instruments currently in use to facilitate [the] purchase of goods and services." But we find no support in the statutory text for such a sweeping interpretation. If the statute were meant to cover any instrument used to purchase goods or services, it would say that, instead of specifying seven types of instruments.
Defendant asserts the statute's use of "relating to," in stating that it applies to all forgeries "relating to" the listed types, creates an ambiguity. To demonstrate an ambiguity, though, a party must "tender[] an alternative candidate of meaning, that is, a grammatically plausible reading of the language at issue." (Niles Freeman Equipment v. Joseph (2008) 161 Cal.App.4th 765, 780.) While defendant argues that the words "relating to" indicate the statute should be read broadly, he does not articulate an alternate meaning that would encompass access card fraud. As discussed, an interpretation as broad as essentially "a payment method used to facilitate purchase of goods or services" is not a plausible reading of the statute.
Defendant argues that not including access card forgery within section 473, subdivision (b) is contrary to the intent of the voters as expressed in ballot materials for Proposition 47. But the words of the statute itself are the most reliable indicator of voter intent, and where there is no ambiguity we do not examine extrinsic sources. (Bloomfield, supra, 13 Cal.App.5th at p. 653.) (Regardless, the ballot materials for Proposition 47 do not evince an intent to include access card forgery in its scope. (Id. at p. 654; see also Martinez, supra, 5 Cal.App.5th at pp. 242-243).) Defendant's conviction for access card forgery is not eligible for Proposition 47 relief because it is not one of the offenses included in section 473, subdivision (b).
III. DISPOSITION
The order is affirmed.
/s/_________
Grover, J.
WE CONCUR:
/s/_________
Premo, Acting P. J. /s/_________
Elia, J.