People v. Aguirre
People v. Aguirre
Opinion of the Court
Defendant Beatrice Aguirre was detained by store security personnel after attempting to pay for purchases with a suspected counterfeit $100 bill. She was placed under arrest by a responding police officer, who, on conducting a search of defendant's purse incident to her arrest, found $1,130 in counterfeit $100, $20 and $5 bills, as well as 40 "washed out" $1 bills the officer believed were on their way to becoming counterfeit $100 bills. Defendant was charged with several felonies, including one count of forgery in violation of Penal Code section 476. She subsequently pleaded no contest to the forgery charge. The following year, defendant sought to recall her sentence under Proposition 47 ( Cal. Const., art. II, § 10, subd. (a); Pen. Code, § 1170.18 ) for resentencing as a misdemeanor. The trial court denied her petition on the ground the value of the counterfeit currency exceeded $950.
Defendant's principal argument on appeal is that the trial court erred in totaling the value of the counterfeit currency she *329possessed and should have, *431instead, followed cases holding the face amounts of forged checks cannot be aggregated for purposes of Proposition 47. We conclude the forged check cases are inapplicable and the total amount of counterfeit currency possessed by a defendant at a given time properly determines whether the crime of possessing counterfeit currency remains a "wobbler" or must be charged and sentenced as a misdemeanor. Indeed, as we explain, were that not the case, there could never be a felony conviction for possession of counterfeit currency, even for a suitcase of bogus bills, because the largest denomination the United States Federal Reserve prints in paper currency is $100. We discern no intent on the part of the proponents of Proposition 47 or the electorate to entirely eliminate felony convictions for possession of counterfeit currency. We therefore affirm the denial of defendant's petition for resentencing. We also affirm the trial court's refusal to split her sentence between mandatory supervision and county jail, but agree the court erred in imposing a parole revocation restitution fee.
II. BACKGROUND
In the summer of 2015, police officers responded to a report of someone trying to make a purchase using counterfeit currency. When officers arrived on the scene, defendant told them she was unaware the $100 bill she had tried to use was counterfeit. However, the store clerk alerted the officers that defendant had several other $100 bills in her purse. Defendant, who was on probation at the time, refused to allow the officers to search her purse, and they subsequently arrested her. Defendant then admitted she possessed both drugs and additional counterfeit bills, and upon conducting a search of her purse, the officers found an additional $1,130 in counterfeit $5, $20 and $100 bills, as well as 40 "washed out" $1 bills the officers believed were in the "stage of production" of becoming counterfeit $100 bills, along with 4.19 grams of methamphetamine and a glass pipe.
Defendant was charged with felony forgery ( Pen. Code, § 476
Defendant eventually pleaded no contest to felony forgery ( § 476 ).
Defendant's criminal history dated back to 1984, and she had never successfully completed a grant of probation. The probation department initially recommended a split sentence, i.e., defendant would serve one year of a three-year sentence in county jail and the rest on mandatory supervision.
*330However, probation thereafter reported defendant had sustained two new criminal arrests, both for forgery offenses. In light of defendant's failure to appear for sentencing and her subsequent criminal conduct the probation department dropped its split sentence recommendation, as it "no longer appears appropriate." Instead, the department recommended denial of probation and "imposition of the full incarceration period of three years."
The trial court imposed a lesser sentence than that recommended by probation-the midterm of two years, as well as various fees, including a $300 section 1202.45 parole revocation restitution fee. The trial court stated "It's apparent to me from [defendant's] behavior as well as while she was pending judgment and sentence that she is not a good candidate for probation. [¶] For those same reasons I'm providing-a split sentence would not be appropriate in this case because of the time chasing her down and trying to offer her services, she has received a ton of services. [¶] At this point in time, the ultimate service provider would be the jail which has more programs in it including the WRAP program and the Anka program. I hope [defendant] avails herself of the opportunity. ..."
Defendant subsequently filed a petition for resentencing pursuant to Proposition 47, which the trial court denied "based upon the number of counterfeit bills she was in possession [of] at the time" of the offense.
III. DISCUSSION
A. Proposition 47
In November 2014, the California electorate passed Proposition 47, the Safe Neighborhoods and Schools Act. ( People v. Page (2017)
*433"Prior to Proposition 47, all forgery offenses were 'wobblers,' meaning they could be charged and punished either as a felony or a misdemeanor." ( People v. Bloomfield (2017)
Proposition 47 amended section 473, the general forgery sentencing statute, so that it now contains two subdivisions. Subdivision (a) preserves the prior "wobbler" language and states: "Forgery is punishable by imprisonment in a county jail for not more than one year, or by imprisonment pursuant to subdivision (h) of Section 1170." (§ 473, subd. (a).) Subdivision (b) spells out exceptions to this general proviso and states in relevant part: "Notwithstanding subdivision (a), 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. ... This subdivision shall not be applicable to any person who is convicted both of forgery and of identity theft, as defined in Section 530.5." (§ 473, subd. (b).)
In short, while there are numerous forgery offenses (e.g., §§ 470, subds. (a)-(d), 470a, 470b, 471, 472, 474, 475, subds. (a)-*331(c), 476), Proposition 47 singled out only "seven specific instruments for reduced punishment," and the voters "signaled their intent not to include all forgery offenses in Proposition 47." ( Bloomfield , supra , 13 Cal.App.5th at p. 653,
Since the passage of Proposition 47, three published cases have dealt with issues concerning the possession of counterfeit currency. Two have addressed whether counterfeit paper currency is a "bank bill" for purposes of Proposition 47 and thus among the enumerated instruments now potentially excepted from "wobbler" status. ( People v. Mutter (2016)
*434None of these cases expressly addressed how Proposition 47's $950 benchmark should be determined in a possession of counterfeit currency case. They impliedly did so, however, in concluding this bar was not exceeded and the defendants were eligible for resentencing. In Mutter , the defendant admitted at the plea hearing "he had 'some counterfeit bills and tried to pass them.' " ( Mutter , supra , 1 Cal.App.5th at p. 432,
Mutter , Maynarich and Rendon , thus imply that, insofar as possession of counterfeit currency is concerned, whether the crime remains a wobbler, or must be *332charged and sentenced as a misdemeanor, is determined by the total value of the counterfeit currency possessed by the defendant. Indeed, defendant has not directed our attention to a single possession of counterfeit currency case that suggests that whether the offense must be charged and sentenced as a misdemeanor under Proposition 47 turns on the individual denominations of the counterfeit bills, rather than the total value of the bogus currency on which the charge is based.
Moreover, if the $950 benchmark for possession of counterfeit currency is determined by the single highest denomination bill found in a defendant's possession, then Proposition 47 will have effectively eliminated the crime of felony possession of counterfeit currency, as the United States Treasury does *435not produce paper currency in any denomination higher than $100.
Defendant places reliance on several cases dealing with forged checks and holding whether a defendant qualifies for resentencing under Proposition 47 is determined by the face value of each individual check and not their aggregate value. ( People v. Salmorin (2016)
Indeed, Neder , on which Salmorin grounds its discussion that multiple acts of forgery are separate crimes, involved forging a credit card holder's signature on three separate sales slips for the purchase of different goods from three different sales clerks. ( Neder , supra , 16 Cal.App.3d at p. 850,
However, the acts Neder identified are not the essence of the crime of possessing counterfeit currency. And designating the possession of multiple counterfeit bills at one time as a single crime is not in any way a "confusing fiction."
In fact, defendant has not called to our attention any authority suggesting she could properly have been charged and convicted of as many counts of violating section 476 as she had counterfeit bills in her possession, and the authority appears to be to the contrary. (See People v. Morelos (2008)
Given our view that the crime of possessing counterfeit currency at issue here is fundamentally different from the multiple check forging crimes at issue in Salmorin and Hoffman , we need not and do not address these cases further, and we affirm *334the trial court's denial of defendant's petition for resentencing under Proposition 47.
B.-C.
IV. DISPOSITION
The section 1202.45 parole revocation restitution fine is stricken, and the trial court is directed to prepare an amended abstract of judgment reflecting this and to promptly forward the amended abstract to the Department of Corrections and Rehabilitation. The judgment is otherwise affirmed.
We concur:
Humes, P.J.
Margulies, J.
Certified for Partial Publication .
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of parts III.B and III.C.
All further statutory references are to the Penal Code unless otherwise indicated.
Section 476 provides: "Every person who makes, passes, utters, or publishes, with intent to defraud any other person, or who, with the like intent, attempts to pass, utter, or publish, or who has in his or her possession, with like intent to utter, pass, or publish, any fictitious or altered bill, note, or check, purporting to be the bill, note, or check, or other instrument in writing for the payment of money or property of any real or fictitious financial institution as defined in Section 186.9 is guilty of forgery."
We grant the Attorney General's request for judicial notice of the currency denominations produced by the United States Federal Reserve. (Evid. Code, § 452, subds. (c), (h).) The federal government stopped producing paper currency in any denomination over $100 more than 70 years ago.
See footnote *, ante .
Case-law data current through December 31, 2025. Source: CourtListener bulk data.