PEOPLE v. FRANCO

Appellant’s Petition for Review

Cal.April 21, 2016

S23c9"73 7 SUPREME COURT FILED IN THE SUPREME COURT OF THE STATE OF CALIFORNIA APR 21 2016 Frank A. McGuire Clerk PEOPLE OF THE STATE OF| S CALIFORNIA, Plaintiff and Respondent, V. RUBEN PHILIP FRANCO, Defendant and Appellant. Deputy B260447 (Los Angeles County Superior Court No. VA125859) FROM THE JUDGMENT OF THE SUPERIOR COURT, COUNTY OF LOS ANGELES, THE HONORABLE ROGERITO, JUDGE PETITION FOR REVIEW ALLISON H. TING, SB 164933 Law Office of Allison H. Ting 1158 26" Street, # 609 Santa Monica, CA 90403 Tel. & Fax: (310) 826-4592 ting 164933 @gmail.com Attorney for Appellant/Petitioner IN THE SUPREME COURT OF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF| S CALIFORNIA, Plaintiff and Respondent, V. RUBEN PHILIP FRANCO, Defendant and Appellant. B260447 (Los Angeles County Superior Court No. VA125859) FROM THE JUDGMENT OF THE SUPERIOR COURT, COUNTY OF LOS ANGELES, THE HONORABLE ROGERITO, JUDGE PETITI FOR REVIEW ALLISONH. TING, SB 164933 Law Office of Allison H. Ting 1158 26Street, # 609 Santa Monica, CA 90403 Tel. & Fax: (310) 826-4592 ting164933@gmail.com Attorney for Appellant/Petitioner TABLE OF CONTENTS PETITION FOR REVIEW .......cccccceneecssceeverscneeecussescenaneeeessseneeeneuas 1 STATEMENT OF THE CASE.......cccecceeeeeeeseeeeeeteeeeeneneneeeneeeneneeneanes 2 STATEMENT OF FACTS... .cccccccccsescseeceeevseuavsnsensanseusueseuseeueasunnages 2 NECESSITY FOR REVIEW .....ccccccccceecetenseenseesoesenseeeseresteneuseegeens 3 ARGUMENT......cscevceseessnvecnesneeeseneessesuceeessesseeseeeseeseseeseestereetentes 5 A FORGED CHECK, MADE OUT FOR A MILLION DOLLARS, BUT NOT PRESENTED, NEGOTIATED, OR EXCHANGED, DOES NOT HAVE AN ACTUAL VALUE OF A MILLION DOLLARS; INFLICTING A FELONY, RATHER THAN MISDEMEANOR PUNISHMENT ON THE BASIS OF THE CHECK’S “STATED” VALUE IS ABSURD AND UNJUST; THE SAME RESULT OBTAINS IF THE STATED VALUEIS $1,500; ONLY AN ACTUAL VALUE OVER $950 SATISFIES THE FELONY PUNISHMENT PROVISION OF PENAL CODE SECTION 475, SUBDIVISION(a); APPELLANT MUST RE RE-SENTENCED TO A MISDEMEANOR COUNTY JAIL TERM FOR FORGERY......cccccscsssseessceseeeseeesseeeessaeeeteeneserenaees 5 A. Standard Of REVIOW .......cccecccsscceeccencnsensensseeuseeeeetceeereuauee 5 B. Relevant Facts and Procedural History ..........ccccesssceeesceenees 5 C. The “Absurd Consequences” Rule of Statutory Interpretation Evaluates Statutes on Fairness and Justice Grounds; It Thus Requires that the “Value” of a Forged Instrument Be Determined By Reference to Its Actual, Intrinsic, or Negotiated Value, but Not Its Potentially Absurd Face Value..........cscssseees 6 CONCLUSION.....ccecescesecscnseeceeeeeesenaeetscesuaeetentauaeseeteueeeseseseneeeas 9 TABLE OF AUTHORITIES Federal Cases Fetterly v. Paskett (9th Cir. 1993) QO7 F.2d 1295 v..cieecccteceeceseeeeeeeeeetaeeeeeteeeeeeeetnaeeestnenseneeaes 4,8 Hicks v. Oklahoma (1980) 447 U.S. 343 [100 S.Ct. 2227, 65 L.Ed.2d 175].........cceeeeee 3,8 Walker v. Deeds (9th Cir. 1995) 50 F.3d 670 ...csceceecesssceeeeeeeaeeenesuti tee ere teeneeereeeneneetenen 4,8 California Cases California Teachers Assn. v. San Diego Community College Dist. (1981) 28 Cal. 3d 692 oo... eiccccsccceeseceeeeeeeenseesneenteseseeseseenenteeenneeseeass 5 Flannery v. Prentice (2001) 26 Cal.4th 572 oc ccccescrseceeeeereeeeeeeeeeetenetsneeaeteenneetensennnrenens 7 People v. Cuellar (2008) 165 Cal.App.4th 833 0... ececceceescenceeseeneeseeeesereeesneeseeteaesennes 8 California Statutes Gov't Code § 1296ee ecccc ccc e cette eee e eee ee seen este see eeeeeeneeeaeeeeeeeteaantnanenens 7 Pen. Code SATB ccccccecencnseeeeee essen eee ee ee se ee nese eee POH OSOS EE SES SESE SESE S EOE E SEER EE ES 5,6 GSceeet ec cct cece eee eeeeeeeeeeeeeeee ee nnaeeaeteseenaaeneeseneennerteeens passim § 1170.126....i ecceesceeseeeee eee eeeeeerenseeeenseeseenaeenenneneteneeaeengs 6 Rule 8.500(D)(1) .... ce cececeesce ese eece sees eeeeeeseneeesennsenesenneenetattoane 3,4 Federal Constitutional! Provisions U.S. Const., 14th AMEN. ......cccccsceeececeseesteesenseessaserseteeans 3,4, 8 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA PEOPLE OF THE’ STATE OF] S CALIFORNIA, Plaintiff and Respondent, B260447 (Los Angeles County Superior Court RUBEN PHILIP FRANCO, No. VA125859) V. Defendant and Appellant. PETITION FOR REVIEW TO THE HONORABLE TANI CANTIL-SAKAUYE, CHIEF JUSTICE OF THE SUPREME COURT OF THE STATE OF CALIFORNIA, AND TO THE HONORABLE JUSTICES OF THE CALIFORNIA SUPREME COURT: Appellant, RUBEN PHILIP FRANCO,petitions this Court for review following the decision of the Court of Appeal, Second Appellate District, Division Seven, on March 14, 2016. (Cal. Rules of Court, rule 8.500.) Appellant did not file a petition for rehearing. A copy of the opinion of the Court of Appeal is attached as Exhibit "A." STATEMENTOF THE CASE Pursuant to a negotiated plea bargain, appellant was placed on three years’ formal probation, with execution of a four-year prison sentence suspended, for forgery (§ 475, subd. (a)), and receiving stolen property (§ 496, subd. (a)), with one prior prison term (§ 667.5, subd. (b)). (1CT 28, 35-38, 48-49, 51, 63; 1RT 2- 10.) On November 19, 2014, the trial court found that appellant had violated probation, and imposed the previously suspended four-year sentence. (1CT 61-62; 1SRT 306-307.) Appellant then made an oral petition for re-classification of his offenses to misdemeanors, pursuant to Proposition 47 (Pen. Code, § 1170.126); and, after a hearing, the trial court denied the motion. (1CT 61-62; 1SRT 301-302.) Appellant filed an appeal, and the Court of Appeal affirmed the judgment. (Exh. A.) Appellant now seeks review of the trial court’s order denying his Proposition 47 petition. STATEMENT OF FACTS The parties stipulated to a factual basis for the plea. (1RT 5- 6.) On July 17, 2012, Jeni Muniz went into a Rite Aid in Whittier, and left her purse in the car, thinking she had locked the car, when, in fact, she might not have clicked the remote control. (1CT 20.) Whenshe returned to the car, she found her purse was missing, along with a checkbook. (1CT 21.) None of the checks were signed, 2 and she had not given anyone permission to sign a check on her behalf. (1CT 22, 39.) On July 21, 2012, police conducted a parole search and found appellant had checkin his wallet, made out for $1,500, with the payee left blank. (1CT 5-6, 10, 39.) The check was dated July 17, 2012, and bore a signature in the name of Jeni Muniz. (1CT 7, 39.) Appellant told the officer that his employer owed him $200 for a cleaning job and had given him the $1,500 check, stating it was a bad check, but if appellant could cash it, he could keep the money. (1CT 11, 15, 17-19, 39.) ISSUE PRESENTED FOR REVIEW After Proposition 47, forgery under Penal Code section 475is a misdemeanorif the instrument’s “value” is under $950; does “value” mean actual value, i.e, negotiated or intrinsic value? NECESSITY FOR REVIEW Review is necessary to settle an important question of law and to promote uniformity of decision. (Rule 8.500(b)(1).) Resolution of the question presentedwill implicate appellant’s federal constitutional rights, under the due process clause of the Fourteenth Amendment. The arbitrary deprivation of a purely state law right may violate the Due Process Clause of the Fourteenth Amendment. (See, e.g., Hicks v. Oklahoma (1980) 447 U.S. 343, 346 [100 S.Ct. 2227, 65 L.Ed.2d 175] [arbitrary deprivation of liberty under state law implicates federal due process]; Fetterly v. Paskett (9th Cir. 1993) 997 F.2d 1295, 1300 [state trial court’s misapplication of its capital sentencing statute implicates the liberty interest protected by the Fourteenth Amendment]; Wa/ker v. Deeds (9th Cir. 1995) 50 F.3d 670, 673 [sentencing court’s failure to comply with state statute requiring a finding that habitual offender status is “just and proper” violated due process].) This case raises significant issues of law within the meaning of California Rules of Court, rule 8.500(b)(1) and thus reviewis necessary. Because these important issues of law have not been resolved in this state, review should be granted. ARGUMENT A FORGED CHECK, MADE OUT FOR A MILLION DOLLARS, BUT NOT PRESENTED, NEGOTIATED, OR EXCHANGED, DOES NOT HAVE AN ACTUAL VALUE OF A MILLION DOLLARS; INFLICTING A FELONY, RATHER THAN MISDEMEANOR PUNISHMENT ON THE BASIS OF THE CHECK’S “STATED” VALUE IS ABSURD AND UNJUST; THE SAME RESULT OBTAINS IF THE STATED VALUEIS $1,500; ONLY AN ACTUAL VALUE OVER $950 SATISFIES THE FELONY PUNISHMENT PROVISION OF PENAL CODE SECTION 475, SUBDIVISION (a); APPELLANT MUST RE RE-SENTENCED TOA MISDEMEANOR COUNTY JAIL TERM FOR FORGERY A. Standard of Review Reviewing courts “independently construe statutory law, as its interpretation is a question of law on which [the appellate court is] not boundbythetrial court’s analysis. (California Teachers Assn. v. San Diego Community College Dist. (1981) 28 Cal. 3d 692, 699.) B. Relevant Facts and Procedural History Appellant stole a checkbook and wrote the amount $1,500 on one of the checks. (1CT 5-6, 10, 20-22, 39.) He signed the check in the nameof the account-holder, and dated it with a current date, but left the payee portion blank. (1CT 5-7, 10, 39.) He did not negotiate the check, but kept it in his wallet. (LCT 5-6, 10, 39.) Appellant pled guilty to, inter alia, one count of possession or receipt of a forged item with intent to defraud. (Pen. Code, § 475, subd. (a).) Section 475, subdivision (a) provides: (a) Every person who possessesorreceives, 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. Appellant’s subsequent motion to reduce the forgery from a felony to a misdemeanor pursuant to Proposition 47 (Pen. Code § 1170.126) was denied. (1CT 61-62; 1SRT 301-302.) Appellant is serving a felony term of four years in countyjail. (1CT 61-62; 1SRT 307.) The Court of Appealaffirmed the trial court’s denial of Proposition 47 relief. (Exh. A.) This petition seeks review of the Court of Appeal’s opinion that Proposition 47’s reference to $950 value as the cutoff between misdemeanor and felony treatmentof the forgery statute requires examination of the forged instrument’s actual negotiated value orits instrinsic value, rather than its face value. C. The “Absurd Consequences” Rule of Statutory Interpretation Evaluates Statutes on Fairness and Justice Grounds; It Thus Requires that the “Value” of a Forged Instrument Be Determined By Reference to Its Actual, Intrinsic, or Negotiated Value, but Not Its Potentially Absurd Face Value Proposition 47 lessened the punishmentfor crimes such as forgery of a check with a value of less than $950, by making such crimes misdemeanors unless the defendant had a disqualifying prior conviction. (§ 473, subd. (b).) Appellant wrote “$1,500” on a stolen 6 and forged check, but merely placed it in his pocket, never attempting to negotiateit for that value. The Court of Appeal held the word “value” in section 473, subdivision (b), must be interpreted as “stated value”or “face value” rather than “actual value,” intrinsic value, or negotiated value, in order to avoid “absurd consequences.” (Exh. A, p. 5.) For this proposition, the court cited Flannery v. Prentice (2001) 26 Cal.4* 572, 578.) In Flannery, this Court interpreted Government Code section 12965, which provides, in pertinent part, that a trial court, “in its discretion, may award to the prevailing party reasonable attorney’s fees and costs....” The question was whether the word “party” waslimited to a litigant, or whether the definition could be expanded to meanthe attorney for the party, i.e., whether the fees and costs could be awarded directly to counsel. The Flannery court pointed out that awarding fees/costs to a pro bono litigant who had not spent any moneyonlegal fees, and not to the attorney who had incurred costs and earned fees, would result in “unjust enrichment” and would be unfair. (Flannery v. Prentice, supra, 26 Cal.4* at pp. 585-586.) Thus, Flannery equated absurd results with unfair results; and that wasthe right thing to do. Applying the Flannery court's reasoning to the instant case would require finding that using “stated value” of a check is unfair and absurd. Because appellant merely wrote some numbers on a check, but never cashed the check or otherwise exchanged the check with a third party, the check should be deemed worth no more than the paper on which it was printed, as in People v. Cuellar (2008) 165 Cal.App.4th 833, 835. To hold otherwise is unfair and absurd. The arbitrary deprivation of a purely state law right may violate the Due Process Clause of the Fourteenth Amendment. (See, e.g., Hicks v. Oklahoma (1980) 447 U.S. 343, 346 [100 S.Ct. 2227, 65 L.Ed.2d 175] [arbitrary deprivation of liberty understate law implicates federal due process]; Fetterly v. Paskett (9th Cir. 1993) 997 F.2d 1295, 1300 [state trial court’s misapplication of its capital sentencing statute implicates the liberty interest protected by the Fourteenth Amendment]; Wa/ker v. Deeds (9th Cir. 1995) 50 F.3d 670, 673 [sentencing court’s failure to comply with state statute requiring a finding that habitual offender status is “just and proper” violated due process].) If a defendant writes “$1,000,000” on a check and signs the account-holders name, but never presents it for cashing, or for any exchangeof value, it is not fair to say he possesses a forged check with a value of a million dollars. That would be absurd. Likewise, it is not fair to hold that appellant, by writing an amount greater than $950 on an uncashed check, and leavingit in his pocket, committed a felony rather than a misdemeanor. This Court should grant review, and say so. CONCLUSION For any orall of the foregoing reasons, this petition for review should be granted. Dated: April 18, 2016 Respectfully Submitted, CA ALLISON H. TING Attorney for Appellant RUBEN PHILIP FRANCO WORD-COUNTCERTIFICATE I, Allison H. Ting, counsel for appellant, certify pursuant to the California Rules of Court, that the word count for this document is less than 8,400 words, excluding the tables, this certificate, and any attachment permitted under rule 8.504(d), specifically, the word count is: 1,662 words. 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 April 18, 2016. Allison H. Ting Attorney for Appellant 10 EXHIBIT A Filed 3/14/16 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATEDISTRICT DIVISION SEVEN THE PEOPLE, B260447 Plaintiff and Respondent, (Los Angeles County Super. Ct. No. VA125859) COURT OF APPEAL — SECONDDIST. RUBEN PHILLIP FRANCO, F I L E D Defendant and Appellant. Mar 14, 2016 JOSEPHA. LANE,Clerk V. James Renteria peputy Clerk APPEAL from a judgmentofthe Superior Court of Los Angeles County. Roger Ito, Judge. Affirmed and remandedwith 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 denial of 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 admitted the 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, Franco failed to appear for a probation violation hearing. Thetrial court revoked his probation and issued a bench warrant. On November4, 2014, Franco wastaken into custody. On November19, 2014, the trial 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. I, § 10, subd. (a).)” (People v. Rivera (2015) 233 Cal.App.4th 1085, 1089 (Rivera).) “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 punishedas either felonies or misdemeanors).” (/d. 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 buysor receives any property that has been stolen 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 one year, or imprisonment pursuant to subdivision (h) of Section 1170. However, if the value of the property does not exceed nine hundredfifty dollars ($950), the offense shall be a misdemeanor, punishable only by imprisonmentin a county jail not exceeding one year, if such person has no prior 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.” (§ 496, subd.(a).) “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 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 unreasonable risk of danger to public safety.” (§ 1170.18, subd. (b).)” (Rivera, supra, 233 Cal.App.4th at p. 1092.) Franco arguesthat the trial court should have resentenced him,treating his forgery and his receiving stolen property convictions as misdemeanors, based onhisoral petition. A. Petition Requisites The Attorney General argues that Franco wasineligible for resentencing because his request was oral 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 requirementthat 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’s petition on the groundthat it 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, presented to the lower court... .”’” (People v. Saunders (1993) 5 Cal.4th 580, 589-590.) B. Forgery Conviction Franco’s argument for 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 instrument butto 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 concluded that there was sufficient evidence to support a conviction for grand theft from the person of another where the defendant took what was described as a “bogus check” from the hand of a departmentstore 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 purposesof 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, would entitle its holder to payment on demand. (dd. at pp. 838-839.) Franco reasonsthat the forged check he possessed, because it wasillegally drawn and was not 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.. Wearenot persuadedthatthe 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 money orders, the items 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. 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 onthe 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 process right to rely on”this line of cases such that we must consider the forged check here to have had only a nominal value and may only apply our reasoning prospectively. Our conclusion that section 473, subdivision (b) refers to the face value of the forged instrumentis not a departure from those cases holding that the actual value of a forged instrument is de minimis, and we are 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 change in 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 misdemeanorbased upon the same argument concerning value that he madein the context of his forgery conviction. Franco, however, has not demonstrated on this record that he petitioned thetrial court to resentence him onthis offense. Franco’s petition for resentencing was madeorally and off the record, and the record lacks any description of what counsel sought when he madethis request. The argument and the decision of the court contained in the reporter’s transcript concern solely the question ofwhether the forgery conviction was subject to resentencing as a misdemeanor. Neither the court nor either party mentioned the conviction for receiving stolen property. As there is 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 thetrial court in failing to resentence him for this offense. II. Abstract of Judgment Both Franco and the Attorney General agree that the abstract ofjudgment contains a typographicalerror in the representation of the date of Franco’s sentencing hearing. Thefirst page of the abstract ofjudgmentstates that the sentencing hearing washeld on November 19, 2013, when in fact the hearing occurred on November19, 2014. We may correct this 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. We concur: PERLUSS,P.J. SEGAL,J. DECLARATION OF SERVICE BY MAIL RE: People v. RUBEN PHILIP FRANCO.; B260447; Los Angeles County Superior Court VA125859;I, Allison H. Ting, declare I am over 18 years of age, not a party to the within cause; my business address is 1158 26th Street, # 609, Santa Monica, CA 90403; I served a copy of the attached PETITION FOR REVIEW on each of the following, in envelope(s) addressed to: L.A. County District Attorney 6230 Sylmar Ave. # 201 Clerk for Delivery to: Van Nuys, CA 91401 Hon. ROGER ITO, Judge Los Angeles County RUBEN PHILIP FRANCO Superior Court (addressonfile) 12720 Norwalk Blivd. Norwalk, CA 90650 California Appellate Project 520 S. Grand Ave ~4th FI. Los Angeles, CA 9007 Each said envelope wasthen, on April 18, 2016, sealed and deposited in the United States Mail at Los Angeles, California, with the postage thereon fully prepaid. In addition, I electronically served from myelectronic notification address of ting164933@qmail.com , the same document, on April 18, 2016, at a.m./p.m., to the following entity and electronic notification address[es]: CALIFORNIA APPELLATE PROJECT capdocs@lacap.com and ATTORNEY GENERAL, docketingLAAWT@doj.ca.gov;, 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 laws of the State of California that the foregoing is true and correct. Executed on April 18, 2016, at Los Angeles, California. Declarant 11