PEOPLE v. FRANCO

Appellant’s Opening Brief on the Merits

Cal.March 13, 2017

IN THE SUPREME COURT OF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF $233973 CALIFORNIA, Plaintiff and Respondent, (Court of Appeal No. B260447) V. (Los Angeles County Superior Court RUBEN PHILLIP FRANCO, No. VA125859) SUPREME COURT Defendant and Appellant. FILED MAR 13 201? avarrete Clerk Hon. RogerIto, Judge Jorge N Deputy APPELLANT’S OPENING BRIEF ON THE MERITS ALLISON H. TING SB 164933 Law Office of Allison H. Ting 1158 26Street, # 609 Santa Monica, CA 90403 Tel. & FAX: (310) 826-4592 Attorney for Appellant IN THE SUPREME COURT OFTHE STATE OF CALIFORNIA PEOPLE OF THE STATE OF $233973 CALIFORNIA, Plaintiff and Respondent, (Court of Appeal No. B260447) Vv. (Los Angeles County Superior Court RUBEN PHILLIP FRANCO, No. VA125859) Defendant and Appellant. Hon. RogerIto, Judge APPELLANT’S OPENING BRIEF ON THE MERITS ALLISON H. TING SB 164933 Law Office of Allison H. Ting 1158 26" Street, # 609 Santa Monica, CA 90403 Tel. & FAX: (310) 826-4592 Attorney for Appellant TABLE OF CONTENTS ISSUE PRESENTED.......ccccecesecsevevenscnreereserseeeneesesenennerensaennogs 6 SUMMARY OF ARGUMENT. .........cccesscseseseeteteeeeneeeneneneeeeneerenees 6 STATEMENT OF THE CASE........ccccsesscstseeererenetsteeteeessteneeessanees 7 STATEMENT OF FACTS... ..ccccscecscscesencueceeerenensaseeeaenseneenseenetaeees 9 ARGUMENT.......cccceceeceeeereessecseeencuenacscecseeeeerseestenaeaensnenenseas 10 FOR PURPOSESOF DISTINGUISHING BETWEEN MISDEMEANOR AND FELONY FORGERY UNDER PENAL CODE SECTION 473(b), THE VALUE OF ANY FORGED CHECKIS ITS MONETARY WORTH ween eee eneneeuaeeeeneesusepeseereaaetSASSeneetseneeGHPABONSEEGEOOES SST AReeeSENSOOOEEES 10 A. INCPOGUCTION 20... cceceececeeteeeeeeseceeeteseetepensuserentarsesnenees 10 B. Relevant Statutory ProviSiONS.......ccsscesssreceeenseseeeeaes 10 C. The Rules of Statutory Construction and the Electorate’s Intent Support Defining Section 473(b)’s Term “Value” as SWOT” Loc ccccrscseecccereeseeceeneenenerseeteneneasepsserensensenreseane 13 1. The Plain and Ordinary Meaning of Value is Worth ... 13 2. The Electorate is Presumed Aware of the Entire Scheme of the Penal Code. Its Choice to Use the Simple Word “Value” Instead of “Nominal Value” or “Face Value” Indicates It Meant to Use Value as Worth. ........cceseeeees 20 3. The Electorate’s Intent and Proposition 47’s Purpose Are Satisfied By Defining Section 473(b)’s Value as Worth dustenssececersssaaussusesustecsscssseasenecsoossonsauseessnsssteussaceepesestesssesssrsnesensaee® 24 4. The Rule of Lenity Requires Defining Value as Worth 27 5. The Rules Against Surplusage and Absurd Consequences Are Not Offended By Defining Value as WOSTH Lo ceccecceceseesesenteneceesesarecesnenensesseeeeneeeeeeneanneenans 28 D. People v. Salmorin Cited No Authority for Its Contrary Dictum Using Face Value for Purposes of Section 473(b) 33 CONCLUSION... .ccccececsceccereerseeecesneseeerscecseeeaeenereteneaeeseeneenens 34 TABLE OF AUTHORITIES Federal Cases Departmentof Revenue of Oregon v. ACF Industries, Inc. (1994) 510 U.S. 332 [114 S. Ct. 843, 127 L. Ed. 2d 165] ...........00.. 23 Legal Tender Cases (1870) 79 U.S. 457 [20 L.Ed. 287, BOD] ccceececceecesee tees teense eens cane eens ee ee eee ee ee HE EH ES EEE E DEES EEE ES EEE EES 19 United States v. Kroesser (11th Cir. 1984) 731 F.2d 1509 ....ccccceccetesce eee teeeeeeeeeneeeeeeneeeeneeneeeeesaseeen setae 20 Xanthopoulos v. Thomas Cook, Inc. (S.D.N.Y. 1985) 629 F.SUPP. 164.0... cece eeee eee ee eee eeneneeeeeeseeeneaseseesneeserseatens 19 California Cases Arnett v. Dal Cielo (1996) 14 Cal.4th 4 ...ccccccccccceeetereeeneeeeeeeseeeeenseeeeeseeeaneentanenteaees 28 Bank of America Nat'l Trust & Sav. Asso. v. Cranston (1967) 252 Cal. APp.2d 208........ccccceeeeeececeeeeeeeenenseveeeseeseenenaseetereuss 18 Buck v. Superior Court of Orange County (1965) 232 Cal.APP.2d 153 ......cccccceeeeereceeeeenereeeeeevaeaeeaeueteeeeuas 12, 21 California Golf, L.L.C. v. Cooper (2008) 163 Cal.App.4th 1053 00... ceeeeeceeeeseseeeeeneueveeeeaeeerererersreenes 18 Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379 ..ccccccccscecteeceennearessseeeeeeeeesnesaneuneneeeeeeeninneees 25 Gentner & Co. v. Wells Fargo Bank (1999) 76 Cal. App.4th 1165........c cece cceeeeese ee eeesenseneveeeeerecrereteesines 18 Los Angeles Check Sellers Asso. v. United States Nat'l Bank (1969) 275 Cal.App.2d 570 .....cccccccecececeeeesensseseneseeeverarersererensesenaes 19 Manhattan Sepulveda, Ltd. v. City of Manhattan Beach (1994) 22 Cal.APp.4th 865 .......ccccensececseeereeseeeeereneeeeseaeeneaeenenenegs 16 People v. Avery (2002) 27 Cal.Ath 49 v.ieeccccescceccenssceeeeseneceeeesesesnsecaseeseneenereseunanenas 27 People v. Bullwinkle (1980) 105 Cal.App.3d 82......cccccceceseeceeeeeuseeneeeeeeese nee eeenenneneenae nies 18 People v. Caridis (1915) 29 Cal. APP. 166 .....cccececeseeneeset sees eeneneeeeeeaeteeeenentateneeeanenenas 31 People v. Cook (1965) 233 Cal. APp.2d 435 .....cccceteceteeeneeeseneereesensenseeeeeee een enaeenes 16 People v. Cordova (2016) 248 Cal.App.4th 543 ......ccececseeeceeceeceneneveseeeteessrseeesaeeregeers 21 People v. Cruz (1996) 13 Cal.4th 764 ....ciccccccecceeeeeeeeeee ence eeeeeeeseeeeeevenseenetnreeteanens 28 People v. Cuellar (2008) 165 Cal. App.4th 833 ........cccccesererceeseeeseeeeseneenees 24, 30, 31, 33 People v. Garcia (1999) 21 CAb.4th 1 icicccccceccccesceeseeeeseeeeeeeresereeenesneensesesensuerenaeeuans 28 People v. Goodliffe (2009) 177 Cal. APp.4th 723 .....cccccceccesecenseereneenereeeenseseeanaeeneaeaenees 24 People v. Hernandez (2003) 30 Cal. 4th 835.......ccccccccesceecececeeseesreessenenseeeesuersseneesesenenens 21 People v. Jones (1988) 46 Cal. 3d 585... ..cccccscecccccucesceeseneeeseeennenseneeseseeeneeneeeneaenenes 27 People v. Jones (2001) 25 Cal.4th 98 ...cccccccvecsecccceveeseeseeeeeseeneeeeseeeceeseeeaereeesaenenees 20 People v. Levels (1989) 209 Cal.App.3d 410.0... cccecceeceseeeneeeteteneeseneen eee nea sateen enenen es 22 People v. Lowery (2017) 8 Cal.App. Sth 533 ....ccccecccseeteteseeeteeeresesnereneesneneeeneneeaespassim People v. Martinez (2016) 5 Cal.App.5th 234, 239 ....cccssceceescssceteeseeseseeseeseneanenenes 12, 33 People v. McAffery (1960) 182 Cal.App.2d 486.......ccececssececeneeeneeeeneneeeeeeeeseeeeeneneeaeraes 21 People v. Montgomery (2016) 247 Cal.App.4th 1385 00... cccccccceseseesneeesseeseeereesensenenes 25, 26 People v. Morgan (1956) 140 Cal.APpp.2d 796.0... cccccececcceseeeseceneneeseseeeseeeneeet nen enneneees 21 People v. Mutter (2016) 1 Cal. App. Sth 429 oc. cceccceeeteceneeenneeseeeaseneeeeseeentnerenennegs 27 People v. Nuckles (2013) 56 Cal.4th GOL... ..cceccecescececeeeeeeceeeeenerseenenseeeesenecueeeeeeneseats 28 People v. Reisdorff (1971) 17 Cal.App.3d 675... cecececcceceeee scene eee ee ene e eee eeenneaenenee een ened 29 People v. Rivera (2015) 233 Cal.App.4th 1085 ......cccccceserecceveeeteeeeeeetrareeatnerseneeeeeans 12 People v. Salmorin (2016) 1 Cal. App. Sth 738 ......cceceseccccesseeeeeeseereereaeeaenenneeties 22, 33, 34 People v. Soria (2010) 48 CAal.4th 58 v...cccccceccccecsceeceeeeeneeteeeeeeeeseseeeseeeeneeeaeeeeagenagy 28 People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968.......ccccceccsceccceceneneeeeeeeeeeenseseennsrerseeereneaeeaees 11 People v. Superior Court (Pearson) (2010) AB Cal.4th 564....c.cccccceecceseeceeeeeseresseeneceaneeseeeresraerneges 13, 24 People v. Tidwell (2016) 246 Cal.App.4th 212......cccccccceescscsesereereteeeeereeeseseenerenenenenes 25 Tokai Bankof Cal. v. First Pac. Bank (1986) 186 Cal.App.3d 1664 00... .ccccceceeeserseeesenteeeeseeeseeneeneaeane sees 19 U.S. Rubber Co. v. Union Bank & Trust Co. (1961) 194 Cal.App.2d 703 .....cccceccceseeteeseeeseereeeeeeeaeseeeeneenteenenenenes 31 Other State Cases Ashford v. Thos. Cook & Son (1970) 52 Hawali 113 ......ccccccsecceseeseeeseneneeeeeteeneeneeuatsuareussessnesseess 19 DCC Constructors, Inc. v. Yacht Club Southeastern, Inc. (Fla.Dist.Ct.App. 2003) B39 SO.2d 731 ccccecccecccceecvcccuesccecesensaeteeeeeeeeseeeseneegeeeeeseeees 17 Federal Statutes Uniform Commercial Code Article 3 ........ccccccscentteeeecesaeeenensaeens 19 California Statutes Pen. Code GS LBG.1L.ccc cee cce cece eee ee ener seen seen eeeeeeneees een nn eneen ens 29, 30 § B96 ecececce cece e cere ence eee ee ee ee een E AEE E EEO E SERED E SEERA RESET EGER EERE EEE E ES 22 § 47oo eccccec eee eee ee eee eee eee ne nee eeeeeeeeeneaeenenenen teens 11, 12, 27, 29 S473 cccccccece eee eee e eee e eee e eens eee ERE EE eRe ERA EEE E EO ERE ESET CEST EES passim G7 i ccccecect nee ne eaten senna nee e et eeeeeaeaneneaeeaeeeaennanegs 10, 11, 12, 29 476 ie eccccce cece e nen ee eee een e ENE EDEL EEO RHEE EERE ER EEE REESE 12, 15, 29 § 476A vececcc cece eee e renee eee e ee eee eA EE EERE EOS EEE EE ESSERE EO ERE ER SHEE EERE EE 22 oo:y eerreer ee rer rrer 21 SBS ci eccce teeter eee e eee eee e nese nee E EDU ERE E EEA EEE EERO ESA EERE EEE E DEES 16 oy rerrrr ree 16, 24, 30 BS lL eeccc cece eee e ete eens nH DE DEO OEE EO EO EO SRE EEEEDEA SHAE ERE EES ES EE DEST HEED 23 § SBOD iecccccene serene eee eee e eens eens eee ESE SEES EA EEG EE Eas eee ee EE EO HEHE ESS 12 § 1170.18... cece eceseeeseeeeeeneneseeensenseeeeesntseaeeeeaeeerenae 8, 12 § 1298 .eeccccesece erste ee ee eee e eee e ee en eens eH EE EE SEE EA EEE ERASE EERO EERE ESS 23 Welf. & Inst. Code § 10980... cccccececec cere reer eee enna ee eee eee ee DOR ER EES DEAR ER ER EE EGER EEE EEE 22 Other Authorities 1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Introduction to Crimes, § 24 ...ccccccseceeesccccscneeeesseuecetsnenernges 27 http ://WWW.dICTIONALY.COM .....ceceseceeceeee eee enenenee res eaeeeeneeeneeeeees 14 Merriam-Webster Dictionary.........cccccsesecenccccereeeseeeeeeeneneees 13, 14 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, V. RUBEN PHILLIP FRANCO, Defendant and Appellant. $233973 (Court of Appeal No. B260447) (Los Angeles County Superior Court No. VA125859) APPELLANT’S OPENING BRIEF ON THE MERITS ISSUE PRESENTED “For the purposeofthe distinction between felony and misdemeanorforgery, is the value of an uncashed forged check the face value (or stated value) of the check or only the intrinsic value of the paperit is printed on?” (Order of June 15, 2016.) SUMMARY OF ARGUMENT The answerto the question presented is it depends. The “value” of a forged check is its monetary worth, which can vary depending on the circumstances. In this case, because there was no evidence that the uncashed non-guaranteed forged check was likely to be honored or worth anything more than the paper on which it was printed, its value is the intrinsic worth of its paper. Defining value in section 473, subdivision (b) as monetary worth is supported by the applicable rules of statutory construction, including: (1) the plain and ordinary meaningrule; (2) the rule of examining the statutory landscape; (3) examination of the drafters’ intent and the purposeof the statute; (4) the rule of lenity, and (5) the rules against surplusage and absurd consequences. STATEMENT OF THE CASE Pursuant to a negotiated plea bargain, appellant pled guilty to forgery by possession or receipt (count 1 - Pen. Code’ 475, subd. (a)) and receiving stolen property (count 2 - § 496, subd. (a)), and admitted a prior prison term. (1CT 26, 35-38; 1CT 48, 51; 1RT 2-5, 10.) A four-year felony prison term was imposed with execution of sentence suspended, and appellant was placed on three years’ formal probation. (1RT 2-9; 1CT 51, 63.) On August 11, 2014, appellant failed to appear for a probation violation hearing and a bench warrant wasissued. (1CT 57.) On November 19, 2014, after the voters enacted Proposition 47, appellant’s probation was revoked (1CT 62; 1SRT? 305-307) 1 Further undesignated statutory references are to the Penal Code. 2“SRT”refers to the Supplemental Reporter's Transcript filed on April 13, 2015. 7 and thetrial court denied his petition to reclassify his forgery offense to a misdemeanor under Proposition 47 and sections 1170.18 and 473, subdivision (b) 3. (1CT 61-62; 1SRT 301-302.) Thetrial court denied appellant’s motion to reclassify his forgery conviction because the face value of the uncashed checkin his wallet was $1,500. THE COURT: .. . Iam disinclined to believe that becausethe victim was not actually - or the check was not actually tendered, it was just possessed, thatit is not a felony.If it is owed more than 950,it lookslike it is a felony. ... I think under these circumstances, if the check - maybein the future he should have a check for 950 orless, or 949, but it is 1500, so it makesit a felony. So the request for reclassification as a misdemeanoris at this juncture denied.... (1SRT 302.) In a published opinion filed March 14, 2016, the Court of Appeal affirmed, agreeing with the trial court that the $1,500 face value of the personal check in appellant’s wallet satisfied the $950 or more value element required for felony punishment of check 3 Section 1170.18, which was added by Proposition 47, provides that persons who areserving felony sentencesfor offenses that would now be misdemeanors underProposition 47 may petition for a recall of the sentence before the trial court, to request resentencing under the amendedstatutes, including the amended version of section 473. (§ 1170.18, subd. (a).) The Court of Appeal found appellant’s oral motion at sentencing was sufficient to constitute a petition under section 1170.18. (Appendix, p. 4.) 8 forgery under section 473, subdivision (b) as amended by Proposition 47. (Opinion, Appendix A, p. 4.) This Court granted review on June 15, 2016. STATEMENT OF FACTS The parties stipulated to a factual basis for the plea. (1RT 5- 6.) On July 17, 2012, Jeni Muniz wentinto a Rite Aid in Whittier, and left her purse in the car. (1CT 20.) When she returned, her purse was missing, along with a checkbook. (1CT 14, 21.) None of the checks were signed, and she had not given anyone permission to sign a check on herbehalf. (1CT 22, 39.) On July 21, 2012, police searched appellant and foundin his wallet a “blank check” made out for $1,500, with the payeeleft blank. (1CT 5-6, 10, 39.) The check was dated July 17, 2012, and bore the purported signature of Jeni Muniz. (1CT 7, 39.) Appellant told police that his employer owed him $200for a cleaning job and had given him the $1,500 check, stating it was a bad check, butif appellant could cash it, he could keep the money. (1CT 11-12, 14- 19, 39.) The record does not indicate whether Muniz’s checkbook was backed by an active bank account, or how much money wasin any such account, or whether there was an active and available secondary market from which to obtain any moneyfor the check. ARGUMENT FOR PURPOSES OF DISTINGUISHING BETWEEN MISDEMEANOR AND FELONY FORGERY UNDER PENAL CODE SECTION 473(b), THE VALUE OF ANY FORGED CHECKIS ITS MONETARY WORTH A. Introduction This Court should hold that the value of any forged checkis its worth in terms of market value. Underthis definition, an uncashed, non-guaranteed forged checkis worth only the paper on whichit is printed, i.e., it has intrinsic value but no significant monetary worth. The value of an uncashed forged check which is guaranteed bytheissueris equal to its guaranteed face value, unless the forgery is of such poor quality that the guarantee would be inoperable. The value of a cashed forged check is the monetary worth for which it was exchanged. Defining value as worth satisfies the applicable rules of statutory construction, including plain meaning, harmony with other statutes, harmony with the electorate’s intent and purpose, the rule of lenity, and the rules against surplusage and absurd consequences. B. Relevant Statutory Provisions The issue presented involves section 473, subdivision (b) (punishment of forgery), as amended by Proposition 47, and section 475 (possession or receipt of a forged check, bond, bank 10 bill, note, cashier’s check, traveler’s check, or money order, plus other enumerated items that are punished under § 473, subd. (a) instead of subd. (b).) Appellant pled guilty to violating section 475, subdivision (a), which states that possession or receipt of a forged check or similar item, with knowledge and intent to passorfacilitate passage of the check, and intent to defraud, is a forgery. Every person whopossessesor 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 sameto beforged, altered, or counterfeit, is guilty of forgery. (§ 475, subd. (a).) Possession or receipt of a forged instrumentin section 475, subdivision (a), may be based on cashed or uncashed forged personal checks, as well as cashed or uncashedcashier's checks, traveler’s checks, money orders, bonds, and currency. Before Proposition 47 was passed, section 473 madeall forgeries wobblers, giving trial courts broad discretion to treat any forgery conviction as a misdemeanorora felony. (Peoplev. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977.) The forgery statute did not mention value. Proposition 47 ended that discretionary sentencing scheme. Proposition 47 “reduced the penalties for a numberof offenses” and “* makes certain drug- and theft-related offenses misdemeanors, 11 unless the offenses were committed by certain ineligible defendants.” * (People v. Martinez (2016) 5 Cal.App.5th 234, 239, quoting People v. Rivera (2015) 233 Cal.App.4th 1085, 1089, 1091.) All forgery crimes, including sections 470, 475 and 476, are now punished under section 473, subdivision (a) or subdivision (b). Subdivision (a) makes forgeries wobblers except as provided in subdivision (b) which providesin relevant part that forgeries are misdemeanors “. . . where the va/ue of the check, bond, bank bill, note, cashier’s check, traveler’s check, or money order does not exceed nine hundredfifty dollars ($950)... .” (Italics added.) So, where the value of the check is $950 or more, the crime is a wobbler, punishable as a misdemeanororfelony in the trial court’s discretion. (§ 473, subd. (a).) Where the value of the forged check is less than $950, the crime is always a misdemeanor. Thus, for the first time in California’s history, the term va/ue is now associated with forgery. (Compare Buck v. Superior Court of Orange County (1965) 232 Cal.App.2d 153, 162 [value is immaterial in crime of forgery].) 4 Section 473, subdivision (b) also provides that a forgery conviction must be punished as a wobbler under subdivision (a) if the defendant wasalso convicted of identity theft (§ 530.5) or has previously been sentenced and hasdisqualifying prior convictions as outlined in section 1170.18. These provisions have no application in this case, and thus are not discussed further. 12 C. The Rules ofStatutory Construction and the Electorate’s Intent Support Defining Section 473(b)’s Term “Value”as “Worth” Wheninterpreting voterinitiatives, the reviewing court applies “the same principles governing statutory construction.” (People v. Superior Court (Pearson) (2010) 48 Cal.4th 564, 571.) 1. The Plain and Ordinary Meaning of Value is Worth Review of an initiative begins with its language, with words given their “ordinary meaning” and construed “in the context of the statute and initiative as a whole.” (People v. Superior Court (Pearson), supra, 48 Cal.4th at p. 571.) If the languageis not ambiguous, the reviewing court “may not add to the statute or rewrite it to conform to some assumedintent not apparent from that language.” (Ibid.) Under this rule, the word value in section 473 should not be modified by placing “face,” “apparent,” or “nominal” in front of it. Value should be interpreted plainly, as worth. Popular dictionaries define value primarily as worth, so worth is the ordinary definition of value. There is a secondary, specialized, and, hence, extraordinary definition of value used in mathematics, and that is: an assigned quantity. The Merriam-WebsterDictionary defines value as: 1 : a fair return in goods, services, or money for something exchanged. 2 : the amount of money something is worth. 3 : worth, utility, or importancein 13 comparison with something else. 4 : a numerical quantity that is assigned or is found by calculation or measurement (Merriam-Webster Dict.: http://www.wordcentral.com/cgi- bin/student?value, as of Feb. 28, 2017.) Dictionary.com defines value as: 1. relative worth, merit, or importance: the value of a college education; the value of a queen in chess. 2. monetary or material worth, as in commerce or trade: This piece of land has greatly increased in value. 3. the worth of something in terms of the amount of other things for which it can be exchanged or in terms of some medium of exchange. 4. equivalent worth or return in money, material, services, etc.: to give value for value received. 5. estimated or assigned worth; valuation: a painting with a current value of $500,000. 6. denomination, as of a monetary issue or a postage stamp. 7. Mathematics. magnitude; quantity; number represented by a figure, symbol, or the like: the value of an angle; the value of x; the value of a sum. a point in the range of a function; a point in the range corresponding to a given point in the domain of a function: The value of x 2 at 2 is 4. (http://www.dictionary.com/browse/value, as of Feb. 28, 2017.) Based on the ordinary dictionary definition, the value of a forged checkis its monetary worth in dollars and cents,i.e., its actual value, not its assigned (face) value. At best, face value is _ relevant evidence that can be used to establish value (worth), as explained in People v. Lowery (2017) 8 Cal.App.5th 533. In Lowery, the Court of Appeal held the plain meaning of value in section 473, subdivision (b) is “worth.” (People v. Lowery, 14 supra, 8 Cal.App.5th at p. 536.) The defendanttried to cash a forged check with a face value of $1,047.85, but the cashier determined it was forged and refused to cashit. (Ibid.) The defendant pled guilty to possession of a forged check (§ 476) and later filed a Proposition 47 petition to designate the offense a misdemeanor under section 473, subdivision (b). (Ibid.) The prosecutor agreed, but thetrial court rejected the prosecutor's stipulation, ruling that the value of the uncashed forged check was its face value, and that was over $950. (People v. Lowery, supra, 8 Cal.App.5th at pp. 536-537.) The Court of Appeal disagreed. It reversed and remanded the case for an evidentiary hearing, holding value in section 473 “refers to the actual monetary worth of the check, not the amountfor whichit is written.” (People v. Lowery, supra, 8 Cal.App.5th at pp. 536, 542.) The Lowery court reasoned that face value may be substantial evidence of a check’s worth, but it was not, as a matter of law, the definition of value to be applied in every case. (People v. Lowery, supra, 8 Cal.App.5th at pp. 536, 541.) Face value as “worth” may be rebutted, for example, by evidence that the check was uncashed and was notlikely to be cashed. (People v. Lowery, supra, 8 Cal.App.5th at p. 536.) So, rather than re-write section 473 to add “face,” “written,” or “nominal” before the word value, 15 the Lowery court determined that value is worth, and face value is relevant evidence having a tendency to prove worth. Lowery relied on the plain and ordinary meaning of value within the “economic context,” which is: “actual monetary worth . . . typically as measured byfair market value.” (People v. Lowery, supra, 8 Cal.App.5th at p. 539, italics added, citing Black’s Law Dict. (8th ed. 2004) p. 1586, col. 2 [value is the “monetary worth or price of something; the amount of goods, services, or money that something will command in an exchange’, italics in Lowery; Manhattan Sepulveda, Ltd. v. City of Manhattan Beach (1994) 22 Cal.App.4th 865, 870 [“The ordinary and commonly understood meaning of ‘value’ is fair market value”]; People v. Cook (1965) 233 Cal.App.2d 435, 437 [value of stolen property (§ 487) is fair market value, not value to a particular individual]; and § 484, subd. (a) [value of property obtained by theft is reasonable and fair market value].) Lowery concluded: “For the above reasons, we hold the term ‘value’ in Penal Code section 473 refers to the actual monetary worth of the check - that is, the amount the defendant could obtain for the check, not the amount for which it was written.” (People v. Lowery, supra, 8 Cal.App.5th, at p. 541.)° 5 Lowery offered additional reasonsfor its opinion, and those are set forth in other subsectionsof this brief. 16 Lowery determined that a defendant seeking Proposition 47 relief should be able to request an evidentiary hearing in order to prove the worth of a forged checkis less than its face value, based on expert testimony about street value (People v. Lowery, supra, 8 Cal.App.5th, at p. 541), or evidence tending to show it was unlikely he would cash the check, for example because the forgery wasof poor quality or of an outlandish face value (/bid.) So, the value of a forged checkis its worth, and that depends on the circumstances. Someof the circumstances to consider are: the face value of the check, whether it was cashed or uncashed, and whetherit waslikely to be cashed, based on the quality of the forgery or whetherit was made outfor an outlandish amount, and expert testimony on market or street value. (People v. Lowery, supra, 8 Cal.App.5th, at p. 541.) Appellant would add that another relevant circumstanceis whether the check or other item covered by section 473, subdivision (b) (check, bond, bank bill, note, cashier’s check, traveler’s check, or money order) is guaranteed or non-guaranteed. The face value of a personal check ordinarily is not backed up by any guarantee from theissuing institution. “Unlike a certified check, a personal check does not offer any guaranteesthatit will be honored and thus the proffer of a personal check is not the equivalent of cash or a certified check.” (DCC Constructors, Inc. v. 17 Yacht Club Southeastern, Inc. (Fla.Dist.Ct.App. 2003) 839 So.2d 731, 734; compare People v. Bullwinkle (1980) 105 Cal.App.3d 82, 90, fn. 4 [some banks have agreements with merchants to honor personal checks that are presented along with “check guarantee cards”].) In contrast, the actual value of a cashier’s checkis its face value becauseit is guaranteed by the issuing financial institution. “Since a cashier’s check is a bank’s primary obligation, a cashier's check is presumed to have beenissued for value.” (Gentner & Co. v. Wells Fargo Bank (1999) 76 Cal.App.4th 1165, 1172.) The bank becomes both the drawer and drawee; and the check becomesa promise by the bank to draw the amountof the check from its own resources and to pay the check upon demand. (Jbid.) “Cashier’s checks ... are readily negotiable and come with a bank’s guarantee of payment.” (California Golf, L.L.C. v. Cooper (2008) 163 Cal.App.4th 1053, 1072.) “Cashier’s checks are preferred because they are as good as cash.. . . because of provisions such as Commercial Code section 3312.” (Ibid.; see also Bank of America Nat'l Trust & Sav. Asso. v. Cranston (1967) 252 Cal.App.2d 208, 216-218.) Although a bank’s guaranteeof a cashier’s check is not absolute, as it is subject to some defenses, the general rule is that the holder of a cashier’s checkis a holderin 18 due course who“takes the instrumentfor value.” (Tokai Bank of Cal. v. First Pac. Bank (1986) 186 Cal.App.3d 1664, 1669.) Traveler’s checks are generally accepted as cash equivalents, even if they do not meetthe strict technical requirements of negotiable instruments foundin Article 3 of the Uniform Commercial Code. (Xanthopoulos v. Thomas Cook, Inc. (S.D.N.Y. 1985) 629 F.Supp. 164, 171-172; Ashford v. Thos. Cook & Son (1970) 52 Hawaii 113, 117-118.) The Official Comment 4 to UCC § 3-104 makes clear that “traveler’s checks in the usual form... are negotiable instruments underthis Article when they have been completed by theidentifying signature.” A moneyorderis a “thing of value” for purposes of “selling a product,” and “the issuer of a money order renders a service by holding itself ready to pay the face value to the holderof the instrument wheneverhe presentsit.” (Los Angeles Check Sellers Asso. v. United States Nat’l Bank (1969) 275 Cal.App.2d 570, 573.) So a moneyorder,like a cashier’s check, is guaranteed. Likewise, currency (a bank bill) is guaranteed to have a value (worth) equalto face value. A five-dollar bill in a person's walletis worth five dollars, equal to its face value, because currencyis “legal tender” as money. (Lega/ Tender Cases (1870) 79 U.S. 457, 529 [20 L.Ed. 287, 305].) Congress has the power to make money and regulate its value. (Ibid.) The face value definition of value may be 19 applied to “bank bills,” i.e., currency, because “The federal governmentis unique in that it has the powerto print money, which meansit can take a thing of nominal intrinsic value, paper, place its imprimatur upon it and turn it into a valuable commodity, currency.” (United States v. Kroesser (11th Cir. 1984) 731 F.2d 1509, 1517.) In sum, popular dictionaries and the recent Lowery decision provide persuasive support for the conclusion that value in section 473, subdivision (b) means “worth” and that this may vary according to the circumstances. In appellant’s case, an uncashed, non-guaranteed personal check with a face value of $1,500 had no payee and therefore wasnotyetlikely to be cashed. The absence of any evidence that the check was drawn on an active bank account with sufficient funds further supports a conclusion that the check was unlikely to be cashed. Given the totality of the circumstances, the check was worthless, or worth no morethan its intrinsic paper value. 2. The Electorate is Presumed Aware ofthe Entire Schemeof the Penal Code. Its Choice to Use the Simple Word “Value” Instead of “Nominal Value”or “Face Value” Indicates It Meant to Use Value as Worth. Statutes must not be readin isolation, but must be harmonized with the “entire scheme of law of which they are a part.” (People v. Jones (2001) 25 Cal.4th 98, 111-112.) The 20 electorate, like the Legislature, is presumed to be awareof existing statutory provisions. (People v. Cordova (2016) 248 Cal.App.4th 543, 545 [“The adopting body is presumed to be awareof existing laws and judicial construction thereof”]; see also People v. Hernandez (2003) 30 Cal.4th 835, 867 [“We assumethe electorate is aware of relevant judicial decisions when it adopts legislation by initiative”].) The term value played no part in forgery law before the passage of Proposition 47. Historically, “Whether the instrument forged has independentvalue is unimportant; the crime is complete whenthe act is done with the requisite intent.” (Buck v. Superior Court of Orange County, supra, 232 Cal.App.2d at p. 162 [“proof of loss or detriment is immaterial”], citing People v. McAffery (1960) 182 Cal.App.2d 486, 493; People v. Morgan (1956) 140 Cal.App.2d 796, 800.) So, the drafters of the amendmentto section 473 were writing on a clean slate as to forgery, but they must have been awareof the rest of the statutory landscape. Although there is historical precedent elsewherein the Penal Codefor using terms such as “face value,” “nominal value,” “apparent value,” and “total amount,” the drafters chose not to use those terms, electing instead to use “value.” The Lowery court cited for comparison Penal Code section 482 which criminalizes altering a cancelled train or boat ticket, to 21 makeit appearto restore its “nominal value.” (People v. Lowery, supra, 8 Cal.App.5th at pp. 539-540.) Thus, Lowery suggeststhatif the electorate wanted to use the term “nominal value” in section 473, it could have doneso. Section 476a, criminalizing the uttering of insufficient funds checks, uses the term “total amount” with a meaning of total face value. (See People v. Salmorin (2016) 1 Cal.App.Sth 738, 747 [“total amount” refers to the aggregated face value of the checks].) The drafters of the amendmentto section 473 could have used the same term, “total amount,” for the crime of check forgery, but chose not to do so. The California legislature used “face value” in former Penal Code section 396 (“. . . guilty of a misdemeanorif the face value of the food stamps or the authorizations to participate is four hundred dollars ($ 400) or less... .”), but then eliminated the phrasein the replacement statute, Welfare and Institutions Code section 10980 (“. . . If the total amount of such aid obtained or retainedis four hundred dollars ($¢ 400) or less... .”). (People v. Levels (1989) 209 Cal.App.3d 410, 417, italics added.) The amendmentto Welfare and Institutions Code section 396 evidenced legislative intent to stop using an assigned face value and start using actual worth as measure of the seriousness of the offense. 22 Section 1298 provides: “In lieu of a deposit of money, the defendant or any other person may deposit bonds of the United States or of the State of California of the face value of the cash deposit required, and such bondsshall be treated in the same manner as a deposit of money... .” (Italics added.) The drafters of Proposition 47 must have been awareof section 1298’s use of the term “face value” in the case of state bonds. Thefact they chose to use only “value” in section 473, subdivision (b) makes sense because section 473, subdivision (b) may apply to non-guaranteed, uncashed, and unlikely-to-be-cashed personal checks in addition to bonds. Thus, the omission of “face” or “nominal” in front of value appears to be a conscious decision. “[I]dentical words used in different parts of the same act are intended to have the same meaning.” (People v. Lowery, supra, 8 Cal.App.5th, at p. 540, citing Department of Revenue of Oregon v. ACFIndustries, Inc. (1994) 510 U.S. 332, 342 [114 S. Ct. 843, 127 L. Ed. 2d 165].) Based onthis rule of identical meanings, the Lowery court found that value in other parts of the Penal Code means the monetary worth of property taken or received, not face value or nominal value. (Ibid., citing § 495.5 [shoplifting punished based on the “value of the property that is taken or intended to be taken”], 490.2, subd. (a) [petty theft is the “value of the money, labor, real or personal property taken”], and 496 [receipt of stolen 23 property punished based on value of property obtained or received].) The drafters are also presumed awareof existing cases, including People v. Cuellar (2008) 165 Cal.App.4th 833, which stated that for purposes of grand theft person (§ 487), an uncashed forged check hasonlyintrinsic paper value. The drafters of the amendmentto section 473 could have used the term “face value”if they wanted to prevent application of the Cuel/ar rule to check forgeries. The fact the electorate chose the simple word “value” indicates a choice to adopt the plain and ordinary meaning of value as worth. 3. The Electorate’s Intent and Proposition 47’s Purpose Are Satisfied By Defining Section 473(b)’s Value as Worth If this Court decides that value does not have a plain and ordinary meaning in the economic context, it should still conclude that value means worth after examining the electorate’s intent and the purpose of Proposition 47. “If the language is ambiguous, courts may consider ballot summaries and argumentsin determining the voters’ intent and understanding of a ballot measure.” (People v. Superior Court (Pearson), supra, 48 Cal.4th at p. 571; People v. Goodliffe (2009) 177 Cal.App.4th 723, 728-732.) “Where uncertainty exists consideration should be given to the consequencesthatwill flow from a particular interpretation.” 24 (Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1387.) The Lowery court supported its holding that value means worth with evidence that the electorate used the word “worth”in the Voter Information Guide to Proposition 47. (People v. Lowery, supra, 8 Cal.App.5th at p. 540, citing Voter Information Guide, Gen. Elec. (Nov. 4, 2014) analysis of Prop. 47 by Legis. Analyst, p. 35 [“[u]nder this measure, forging a check worth $950 orless would always be a misdemeanor[unless combined with identity theft],” italics added by Lowery.) This provides solid voters’-intent support for defining value as worth. Proposition 47 included a provision requiring that it “be liberally construed to effectuate its purposes.” (Prop. 47, § 18,eff. Nov. 5, 2014; Voter Information Guide, Gen. Elec., supra, text of Prop. 47, p. 74; People v. Tidwell (2016) 246 Cal.App.4th 212, 219.) One of the purposes of Proposition 47 was to reduce the number of nonviolent offenders in state prisons and to reserve prison sentences for the most serious offenders. (See Voter Information Guide, Gen. Elec., supra, text of Prop. 47, § 2, p. 70; People v. Montgomery (2016) 247 Cal.App.4th 1385, 1389-1390.) Examining the Proposition 47 materials in the 2014 voter information guide reveals that both proponents and opponents focused mainly on the portion aimed at people who werecurrently incarcerated, by changing the classification of their crimes from felonies to misdemeanors. The 25 proposition’s proponents praised this feature as a way of saving moneyby releasing petty criminals from prisons (in addition to not putting them there in the first place). (People v. Montgomery, supra, 247 Cal.App.4th at p. 1390.) The “Official Title and Summary”of Proposition 47 printed in the ballot materials included the following statement: “Requires misdemeanor sentenceinstead of felony for the following crimes when amountinvolved is $950 or less: petty theft, receiving stolen property, and forging/writing bad checks.” (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) official title and summary of Prop. 47, p. 34, italics added.) The Legislative Analyst described Proposition 47 as having three main functions: (1) reducing penalties for certain offenders convicted of nonserious and nonviolent property and drug crimes; (2) allowing certain offenders previously convicted of such crimes to apply for reduced sentences, and (3) requiring state savings resulting from the measure be spent to support public services such as truancy prevention, mental health and substance abuse treatment, and victims’ services. (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) analysis of Prop. 47 by Legis. Analyst, p. 35, italics added.) In sum, saving moneyby limiting sentencing discretion through application of a rule requiring misdemeanorsentencing for crimes of small financial effect is the express intent of the measure. The desired result is best achieved by defining value as worth, so 26 that most uncashed forged checks are essentially worthless and most cashed forged checks are worth the dollar amount for which they were exchanged. 4. The Rule of Lenity Requires Defining Value as Worth Whenstatutory language is ambiguous,the rule of lenity requires courts to “resolve doubts as to the meaning of a statute in a criminal defendant's favor.” (People v. Avery (2002) 27 Cal.4th 49, 57; see People v. Mutter (2016) 1 Cal.App.5Sth 429, 436 [rule of lenity applied to § 470 requires adopting modern definition of “bank bill” as “currency”].) The rule of lenity applies if the statute in question is ambiguous, meaning susceptible of two reasonable meanings that “stand in relative equipoise, i.e., that resolution of the statute’s ambiguities in a convincing manneris impracticable.” (People v. Avery, supra, 27 Cal.4th at p. 58, quoting People v. Jones (1988) 46 Cal.3d 585, 599.) “As Witkin explains, The rule [of lenity] applies only if the court can do no more than guess whatthelegislative body intended; there must be an egregious ambiguity and uncertainty to justify invoking the rule.’” (People v. Avery, supra, 27 Cal.4th at p. 58, quoting 1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Introduction to Crimes, § 24, p. 53; accord People v. Nuckles (2013) 56 Cal.4th 601, 611.) 27 Any ambiguity in the statutory language should be construed “as favorably to the defendant as its language and the circumstancesof its application may reasonably permit.” (People v. Garcia (1999) 21 Cal.4th 1, 10; see § 4 [The rule of the common law, that penal statutes are to be strictly construed, has no application to this code. All its provisions are to be construed according to the fair import of their terms, with a view to effect its objects and to promote justice.”].) Under the rule of lenity, the reviewing court gives the defendant the benefit of every reasonable doubt on questions of interpretation. (People v. Soria (2010) 48 Cal.4th 58, 65.) Defining value as worth gives defendants the benefit of the reasonable doubt as to whether value means worth orface value. 5. The Rules Against Surplusage and Absurd Consequences Are Not Offended By Defining Value as Worth The rules against surplusage and absurdity limit use of the rule of lenity. “Courts should give meaning to every word of a statute if possible, and avoid a construction making any word surplusage.” (Arnett v. Dal Cielo (1996) 14 Cal.4th 4, 22.) The definition favoring the defendant should not be adopted if it will lead to absurd consequences. (People v. Cruz (1996) 13 Cal.4th 764, 783.) Defining value as worth complies with the rule against 28 surplusage because someforged checkswill be worth $950 or more, Many section 475 check forgeries will be misdemeanors because possession or receipt of a forged instrument (§ 475, subd. (a)) is a lesser, necessarily included offense of uttering a forged check (§ 476). (See People v. Reisdorff (1971) 17 Cal.App.3d 675, 678-680 [forgery by possession is a lesser, necessarily included offense of forgery by uttering].) So, possessing an uncashed forged check made out for $950 is a lesser included offense of writing it or cashing it. Defining value as worth will result in most possessed uncashed forged checks being essentially worthless (or worth only the value of the paper on which they are written), but some uttered and cashed forged checkswill be worth the moneyfor which they are exchanged. That seemsfair and reasonable. Uttering a forged check may moreoften correlate with a large monetary worth than merely possessing an uncashed check. But section 473, subdivision (b) does notinsist that check forgeries (§§ 470, 475, or 476) be evenly distributed in terms of value under or over $950. As long as some checkforgeries will involve checks worth $950 or more, the rule against surplusageis satisfied. As an analogy, the aggravated white collar enhancement, section 186.11, is not absurd even though it may bedifficult to achieve manyprosecutions underit. Section 186.11 provides an 29 increased punishmentin theft crimes involving a loss of more than $100,000. Even if most theft crimes in California involve less than $100,000 monetary loss, once in a while, a theft offense involving over $100,000 occurs, triggering the section 186.11 white-collar enhancement. Similarly, even if most uncashed forged personal checks are practically worthless, once in a while a forged check will be worth $950 or more, because it was cashed, or because it was guaranteed or similar circumstances showit is so likely to be cashed that it has such a large worth. Still, almost “always” (Voter Information Guide, Gen. Elec., supra, analysis of Prop. 47 by Legis. Analyst, p. 35), check forgery will be a misdemeanor, in keeping with the electorate’s intent and the rule of lenity. This results in no violation of the rules against surplusage or absurdity. In the Court of Appeal below, appellant relied on People v. Cuellar, supra, 165 Cal.App.4th at p. 835, which held that, for purposes of grand theft person (§ 487), an uncashed forged check has only intrinsic paper value. For defendant Cuellar, who had stolen a forged check, that meant there was sufficient evidence to support a grand theft/person conviction (§ 487, subd. (c)), which has as an essential element, “intrinsic value.” (People v. Cuellar, supra, 165 Cal.App.4th at p. 837.) The Cuellar court agreed with the defendant that the forged check was not worthits face value. 30 (People v. Cuellar, supra, 165 Cal.App.4th at p. 838, citing U.S. Rubber Co. v. Union Bank & Trust Co. (1961) 194 Cal.App.2d 703, 708-709 [“The check was neverrightfully endorsed and wasnot a bearer instrument; it was merely an order to pay ([Civ. Code] § 3207) andis of no value unless accepted. The forged instrument wasin effect a nullity ([Civ. Code] § 3104) and worthless and could not be the subject of conversion as contemplated in this | proceeding”].) The Cuellar court cited People v. Caridis (1915) 29 Cal.App. 166, where the defendanthadstolen a winningillegal lottery ticket with a face value of $1,250. (People v. Cuellar, supra, 165 Cal.App.4th at pp. 838-839.) The Caradis court affirmed a larceny conviction, holding the ticket was not worth face value becauseit wasanillegal ticket, but it had “someslight intrinsic value” sufficient to satisfy the larceny statutes’ definition of “value.” (People v. Caridis, supra, 29 Cal.App. at p. 168.) Relying on Caridis, Cuellar upheld the defendant’s grand theft/person charge, concluding that a forged check,like an illegal lottery ticket, has . slight intrinsic value by virtue of the paperit was printed on.’”” (People v. Cuellar, supra, 165 Cal.App.4th at p. 839.) To avoid the rule against surplusage, the Lowery opinion provides a reasonable application of the rule of lenity: the value of any checkis its worth. Thus, the value of a cashed forged checkis 31 the monetary value for which it was exchanged, whichis a fair market value. The value of an uncashed but guaranteed check would be face value, unless the circumstancesindicate it is not likely to be cashed, such as whenitis ineptly or poorly forged. (See People v. Lowery, supra, 8 Cal.App.5Sth, at p. 541.) And the value of an uncashed, non-guaranteed check, in most cases is worthless, or worth only intrinsic paper value, unless the circumstancesindicate it is likely to be cashed. (Ibid.) Lowery found that a forged check may have a monetary value equalto its face value. When a forged checkis actually cashed for face value, this is “overwhelming evidence” that the check is worth its face value. (People v. Lowery, supra, 8 Cal.App.5th at p. 541.) But face value does not always equal monetary worth. “For example, a check may beso ineptly forged that even the most credulous clerk would refuse to honorit.” (Ibid.) Because such a checkis “unlikely to be cashed,” it “makeslittle sense to assign the written value to such a check.” (Ibid.) Here, the only evidence of the check’s worth was the amount written on it. There was no evidence of a connected, active bank account containing sufficient funds, or an existing secondary market, or what the check’s worth might be there. Because appellant possessed an incomplete check, with the payeeleft blank, he held an “incomplete and inchoate” check (People v. Rendon 32 (2016) 5 Cal.App.5th 422, 426), of which the face value represented mere potential value. Under the facts presented, it was not likely that the check would be cashed for the full face amount. Thus, it was worth only the value of the paper on which it was printed, so Jong as it remained uncashed. D. People v. Salmorin Cited No Authority for Its Contrary Dictum Using Face Value for Purposes of Section 473(b) People v. Salmorin, supra, 1 Cal.App.5th 738, 741-742, adopts “face value” for purposes of determining the value of forged checks under section 473. But its adoption of face value wasdicta, unnecessary to the issue at bar, and not supported by anycitation to authority. The issue in Sa/morin was whether the value of multiple checks could be aggregated to find the $950 value. The face value of the checks totaled less than $950, and theintrinsic value of the checks also wasJess than $950. (Id. at p. 744.) Salmorin explained that section 473 value depends on each individual check, because the electorate used theplain singular term “check” rather than “checks.” (Id. at p. 746.) Unnecessarily, the Sa/morin opinion went further and, without any citation to authority, decided to use the face value of the checks and to reject Cuellar’s approach. (Seeid. at pp. 744-745, citing People v. Cuellar, supra, 165 Cal.App.4th 833.) Sa/morin did not consider or anticipate defining value as worth, as in the subsequent Lowery 33 opinion. Lowery is better reasoned than Sa/morin, better supported by authority, and, unlike Sa/morin, is a direct and persuasive holding on the specific issue presented here. CONCLUSION Under Proposition 47, public policy concerns and punishment were balanced, so that a large numberof non-serious crimes could avoid state prison time. Check forgery is not a crime of violence or a serious crime. It deserves punishment, but usually as a misdemeanor. For the purpose of distinguishing between misdemeanor and felony check forgery under section 473, subdivision (b), defining value as worthis faithful to the plain and ordinary meaning of the word value in the economic context. This definition is harmonious with other provisions of the Penal Code. It satisfies the purpose and intent of the initiative measure by reducing punishments for check forgery in general and passing the cost savings onto othersocial programs.It is consistent with the rule of lenity, and the rules against surplusage and absurd consequences. Appellant’s uncashed forged check was not guaranteed, had no payee, and wasnot shownto belinked to an active bank account containing sufficient funds. There was no evidence of an existing and active secondary market or what the check would be 34 worth there. For these reasons, the judgment should be reversed in full and with prejudice, as no evidentiary hearing is required. Dated: March 11, 2016 Respectfully submitted, Allison H. Ting Counsel for Appellant Ruben Philip Franco 35 WORD-COUNT CERTIFICATE I, Allison H. Ting, counsel for appellant, certify pursuant to the California Rules of Court, that the word countfor this document is 6,702 words, excluding the tables, this certificate, and any attachment permitted underrule 8.360(b). This document was prepared with Word, and this is the word count generated by the program for this document. I certify that the foregoing is true and correct. Executed at Los Angeles, California, on: March 11, 2017. Allison H. Ting Attorney for Appellant 36 APPENDIX 37 Filed 3/14/16 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SEVEN THE PEOPLE, B260447 Plaintiff and Respondent, | (Los Angeles County Super. Ct. No. VA125859) COURT OF APPEAL — SECOND DIST. RUBEN PHILLIP FRANCO, F I L E D Defendant and Appellant. Mar 14, 2016 JOSEPH A.LANE,Clerk Vv. James Renteria peputy Clerk APPEAL from a judgmentofthe Superior Court of Los Angeles County. Roger Ito, Judge. Affirmed and remanded with instructions. Allison H. Ting, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Mary Sanchez and Theresa A. Patterson, Deputy Attorneys General, for Plaintiff and Respondent. Ruben Franco appeals the denialof his oral petition for resentencing on his convictions for forgery and receiving stolen property. We affirm the judgment but remandfor correction of the abstract ofjudgment. FACTUAL AND PROCEDURAL BACKGROUND On October 17, 2012, Franco was charged with forgery (Pen. Code,! § 475, subd. (a)) and receiving stolen property (§ 496, subd. (a)). It was alleged that he had served five prior prison terms within the meaning of section 667.5, subdivision (b). Franco pleaded guilty to the charged offenses and admittedthe five prior prison terms. The court struck four of the five prior prison term allegations, suspended the execution of a four- year felony state prison sentence, and placed Franco on three years’ formal probation. On August 11, 2014, Francofailed to appear for a probation violation hearing. The trial court revoked his probation and issued a bench warrant. On November4, 2014, Franco wastaken into custody. On November19, 2014,thetrial court found that Franco had violated his probation and imposedthe previously suspended four-year sentence. Franco made an oral petition for resentencing that the court denied. Franco appeals. DISCUSSION I. Proposition 47 Resentencing Petition “On November4, 2014, the voters enacted Proposition 47, the Safe Neighborhoods and Schools Act (hereafter Proposition 47), which wentinto effect the next day. (Cal. Const., art. II, § 10, subd. (a).)” (People v. Rivera (2015) 233 Cal.App.4th 1085, 1089 (Rivera).) “Proposition 47 makescertain drug- andtheft-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 punishedaseither felonies or misdemeanors).” (Jd. at p. 1091.) Unless otherwise indicated, all further statutory references are to the Penal Code. Proposition 47 amendedthe law regarding forgery to provide, in relevantpart, that “any person whois 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 hundredfifty dollars ($950), shall be punishable by imprisonmentin a county jail for not more than one year, except that such person mayinstead be punished pursuant to subdivision (h) of Section 1170 if that person has one or moreprior 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.” (§ 473, subd. (b).) Section 496, subdivision (a), regarding receiving stolen property, was also amended by Proposition 47. It now provides,“Every person who buysorreceives any property that has beenstolen or that has been obtained in any mannerconstituting theft or extortion, knowing the property to be so stolen or obtained, or who conceals,sells, withholds, or aids in concealing,selling, or withholding any property from the owner, knowing the property to be so stolen or obtained, shall be punished by imprisonmentin a county jail for not more than oneyear, or imprisonment pursuantto subdivision (h) of Section 1170. However,if the value of the property does not exceed nine hundred fifty dollars ($950), the offense shall be a misdemeanor, punishable only by imprisonmentin a county jail not exceeding oneyear, if such person has noprior convictionsfor 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.” (§ 496, subd.(a).) “Proposition 47 also created a new resentencing provision: section 1170.18. Undersection 1170.18, a person ‘currently serving’ a felony sentence for an offense that is now a misdemeanorunder 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 whosatisfies 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 unreasonablerisk of danger to public safety.’ (§ 1170.18, subd. (b).)” (Rivera, supra, 233 Cal.App.4th at p. 1092.) Franco arguesthatthe trial court should have resentenced him,treating his forgery and his receiving stolen property convictions as misdemeanors,based onhis oralpetition. A. Petition Requisites The Attorney General argues that Franco wasineligible for resentencing because his request wasoral and not written. Although some languagein the statute suggests that its drafters anticipated that petitions would be in written form, section 1170.18 contains no express requirement that a resentencing petition be made in writing. We therefore agree with the court in People v. Amaya (2015) 242 Cal.App.4th 972 at page 975, that there is “no statutory requirementfor the filing of a written petition.” Moreover, the Attorney General has not demonstrated that the prosecutor objected in the trial court to Franco’spetition on the groundthatit was oral rather than written. “An appellate court will ordinarily not consider procedural defects or erroneousrulings, in connection with relief sought or defenses asserted, where an objection could have been, but wasnot, presentedto the lower court. ...”’” (People v. Saunders (1993) 5 Cal.4th 580, 589-590.) B. Forgery Conviction Franco’s argumentfor resentencing is premised on his view that the $950 value amountset forth in section 473, subdivision (b) correspondsnot to the stated amount on the face of the forged instrumentbut to the intrinsic value of the instrumentitself. He relies upon People v. Cuellar (2008) 165 Cal.App.4th 833 (Cuellar), in which the Court of Appeal concludedthat there was sufficient evidence to support a conviction for grand theft from the person of another where the defendant took what wasdescribed as a “bogus check” from the hand of a department store salesperson. The Cuellar court reasonedthat the check did not have a value equal to the amount for which it had been written, but that for the purposes of a grand theft conviction, it nonetheless had some 4 intrinsic value by virtue of the paper it was printed on and as a negotiable instrumentthat, if legally drawn, wouldentitle its holder to payment on demand. (/d. at pp. 838-839.) Francoreasons that the forged check he possessed, becauseit wasillegally drawn and wasnot exchangedfor value, had no actual value despite the check’s face value being $1,500, and that the court therefore should have resentenced him for forgery as a misdemeanor.. Weare not persuaded that the trial court interpreted section 473, subdivision (b) incorrectly. While Cuellar, supra, 165 Cal.App.4th 833 and similar cases stand for the principle that a forged check does not have an actual value correspondingto the face value of the check, section 473, subdivision (b) does not specify that it is the actual value of the check, as opposedto the face value of that instrument, that is the value that is used to determine whetherthe offense is a felony or a misdemeanor. The value of forged checks, bonds, bank bills, notes, cashier’s checks, traveler’s checks, and moneyorders, the items listed in section 473, subdivision (b), may or may not correspondto the face value of the instrument, depending on the existence of a secondary market orother evidence of value. When viewedin the context of forgery, however, the word “value” as used in section 473, subdivision (b) must correspondto the stated value or face value of the check in order to avoid absurd consequences. (Flannery v. Prentice (2001) 26 Cal.4th 572, 578 [courts avoid statutory constructions that would produce absurd consequences].) Thetrial court did not err in declining to resentence him on the forgery conviction. Franco arguesthat even if we “do not follow” Cuellar, supra, 165 Cal.App.4th 833 and similar cases concerning the value of the forged check,at the time he committed his offenses he “had a federal constitutional due processright to rely on” this line of cases such that we must consider the forged check here to have had only a nominal value and mayonly apply our reasoning prospectively. Our conclusionthat section 473, subdivision (b) refers to the face valueofthe forged instrumentis not a departure from those cases holdingthatthe actual value of a forged instrument is de minimis, and weare therefore not failing to follow Cuellar and similar authority such that our decision may 5 only be applied prospectively. Moreover,at the time that Franco committed his offenses, Proposition 47 had not been enacted andall forgery was punishable as a felony regardless of the value of the instrument in question. Therefore, even if our understanding of Cuellar and related cases could be considered as constituting a changein interpretation, this change could not have had any impact on Franco’s pre-Proposition 47 decision to plead guilty. C. Receiving Stolen Property Conviction Franco argues that he should have been resentenced on his conviction for receiving stolen property as a misdemeanor based upon the same argument concerning value that he made in the context of his forgery conviction. Franco, however, has not demonstrated on this record that he petitioned the trial court to resentence him onthis offense. Franco’spetition for resentencing was madeorally andoff the record, and the record lacks any description ofwhat counsel sought when he madethis request. The argument andthe decision of the court contained in the reporter’s transcript concern solely the question of whether the forgery conviction was subject to resentencing as a misdemeanor. Neither the court nor either party mentioned the conviction for receiving stolen property. Asthereis no indication that Franco petitioned the court to resentence him on his felony conviction for receiving stolen property as a misdemeanor, Franco has not established any error by the trial court in failing to resentence him for this offense. II. Abstract of Judgment Both Franco and the Attorney General agree that the abstract ofjudgmentcontains a typographicalerror in the representation of the date of Franco’s sentencing hearing. Thefirst page of the abstract ofjudgment states that the sentencing hearing was held on November 19, 2013, whenin fact the hearing occurred on November 19, 2014. We may correctthis clerical error on appeal. (People v. Mitchell (2001) 26 Cal.4th 181, 186-187.) DISPOSITION The judgmentis affirmed. The superior court is ordered to prepare an amended abstract ofjudgmentas set forth in this opinion and to forward a copy to the Department of Corrections and Rehabilitation. ZELON,J. Weconcur: PERLUSS,P.J. SEGAL,J. B E G E T DECLARATION OF SERVICE RE: People v. RUBEN PHILLIP FRANCO, Case No. S233937 I, Allison H. Ting, declare Iam over 18 years of age, and nota party to the within cause; my business address is 1158 26th Street, # 609, Santa Monica, CA 90403; I served a copy of the attached: APPELLANT’S OPENING BRIEF ON THE MERITS on eachofthe following, by placing same in envelope(s) addressed as follows: Randy Kaplan, DPD Office of Public Defender Clerk for Delivery to: 7500 Imperial Highway, Hon. Roger Ito Judge Suite 224 Los Angeles County Downey, CA 90242 Superior Court 12720 Norwalk Blvd. RUBEN PHILLIP FRANCO Norwalk, CA 90650 19859 Vista Hermona Walnut, CA 91789 California Appellate Project 520 S. Grand Ave —4*FI, Los Angeles, CA 90071 Each said envelope was then, on March 11, 2017, sealed and deposited in the United States Mail at Los Angeles, California, with the postage thereonfully prepaid. Furthermore,I, Allison H. Ting, declare I electronically served from my electronic notification address of ting164933@gmail.com, the same referenced above document on March 11, 2017, at a.m./p.m., to the following entities and electronic addresses: capdocs@lacap.com (EXTRA COPYfor C.A.P.), and docketingLAAWT j-ca.gov (SERVICE COPYfor Attorney General), , and I electronically served the Court of Appeal on the website www.courts.ca.gov/8872.htm#tab17043 (Court of Appeal, Second Appellate District). I declare under penalty of perjury under the lawsof the State of California that the foregoing is true and correct. Executed on March 11, 2017, at Los Angeles, California. Declarant H E E R O M A Be e a