People v. Franco
People v. Franco
Opinion of the Court
*681Ruben Franco appeals the denial of his oral petition for resentencing on his convictions for forgery and receiving stolen property. We affirm the judgment but remand for correction of the abstract of judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On October 17, 2012, Franco was charged with forgery (Pen.Code,
On August 11, 2014, Franco failed to appear for a probation violation hearing. The trial court revoked his probation and issued a bench warrant. On November 4, 2014, Franco was taken into custody.
On November 19, 2014, the trial court found that Franco had violated his probation and imposed the previously suspended four-year sentence. Franco made an oral petition for resentencing that the court denied. Franco appeals.
*682DISCUSSION
I. Proposition 47 Resentencing Petition
"On November 4, 2014, the voters enacted Proposition 47, the Safe Neighborhoods and Schools Act (hereafter Proposition 47), which went into effect the next day. (Cal. Const., art. II, § 10, subd. (a).)" (People v. Rivera (2015)
Proposition 47 amended the law regarding forgery to provide, in relevant part, that "any 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 by imprisonment in a county jail for not more than one year, except that such person may instead be punished pursuant to subdivision (h) of Section 1170 if that person has one or more 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." (§ 473, subd. (b).)
Section 496, subdivision (a), regarding receiving stolen property, was also amended by Proposition 47. It now provides, "Every person who buys or receives any property that has been stolen or that has been obtained in any manner constituting 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 imprisonment in 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 hundred fifty dollars ($950), the offense shall be a misdemeanor, punishable only by imprisonment in 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 misdemeanor under Proposition *73147, may *683petition 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 who satisfies 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,
A. Petition Requisites
The Attorney General argues that Franco was ineligible for resentencing because his request was oral and not written. Although some language in 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)
B. Forgery Conviction
Franco's argument for resentencing is premised on his view that the $950 value amount set forth in section 473, subdivision (b) corresponds not to the stated amount on the face of the forged instrument but to the intrinsic value of the instrument itself. He relies upon People v. Cuellar (2008)
We are not persuaded that the trial court interpreted section 473, subdivision (b) incorrectly. While Cuellar,supra,
Franco argues that even if we "do not follow" Cuellar,supra,
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.
*685Franco, however, has not demonstrated on this record that he petitioned the trial court to resentence him on this offense. Franco's petition for resentencing was made orally and off the record, and the record lacks any description of what counsel sought when he made this request. The argument and the 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. 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 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 of judgment contains a typographical error in the representation of the date of Franco's sentencing hearing. The first page of the abstract of judgment states that the sentencing hearing was held on November 19, 2013, when in fact the hearing occurred on November 19, 2014. We may correct this clerical error on appeal. (People v. Mitchell (2001)
*733DISPOSITION
The judgment is affirmed. The superior court is ordered to prepare an amended abstract of judgment as set forth in this opinion and to forward a copy to the Department of Corrections and Rehabilitation.
We concur:
PERLUSS, P.J.
SEGAL, J.
Unless otherwise indicated, all further statutory references are to the Penal Code.
Reference
- Full Case Name
- The PEOPLE, and v. Ruben Phillip FRANCO, and
- Cited By
- 6 cases
- Status
- Published