Filed 5/11/16 P. v. Ramirez CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

HOPE MISNER RAMIREZ,

Defendant and Appellant. H042514 (Monterey County Super. Ct. No. SS122424A)

Defendant Hope Misner Ramirez was convicted in December 2013 of two counts

of forgery (Pen. Code, § 476) in case Nos. SS122424A and SS121231C

. 1 In 2014,
defendant, who was still serving her sentence , filed a petition requ esting that her sentence

be recalled and she be resentenced in case No. SS122424A to a misdemeanor under section 1170.18, subdivision (b), enacted by Proposition 47, “The Safe Neighborhoods

and Schools Act ” (the Act). The court denied defendant’s petition after finding her
ineligible, because the parties had stipulated that the fictitious check was made payable in

the amount of $1,598.09.
Defendant appeals. She argues that she is eligible for resentencing

, because the

victim did not suffer pecuniary harm. Therefore, s he claims that the true value of the

check was less than $950 and s he was eligible for Proposition 47 relief. We disagree and affirm the trial court’s order denying defendant’s petition for recall of sentence.

1 U nspecified statutory references are to the Penal Code.2 B ACKGROUND On February 27, 2013, defendant was charged by an amended complaint in case

No. SS122424A with a count of forgery (uttering a fictitious check) (§ 476), a count of
forgery (§ 470, subd. (d)) , a count of possession of methamphetamine (Health & Sa f.
Code, § 11377, subd. (a)), and a misdemeanor count of possession of a controlled
substance ( id

. , § 11364.1, subd. (a)). It was further alleged with respect to counts 1
through 3 that defendant had been out on bail. (§ 12022.1 .)
Subsequently, d efendant entered into a negotiated disposition for case No.

SS122424A and another case, case No. SS121231C. 2 D efendant pleaded nolo contendere

to two felony count s of forgery (uttering a fictitious check, § 476) , one for each case

. Defendant also admitte d the on

- bail enhancement under section 12022.1. The remaining
charges in case No. SS122424A were dismissed. Defendant was sentenced to a total term
of five years eight months in jail. The abstract of judgment was filed in December 2013.

In November 2 014, the voters enacted Proposition 47, which went into effect the
day after it passed. (Cal. Const., art. II, § 10, subd. (a); People v

. Rivera (2015) 233
Cal.App.4th 1085, 1089.) Proposition 47 reduced certain nonv iolent crimes to
misdemeanors, includi ng the crime of forgery. Under Proposition 47, a crime of forgery
is a misdemeanor if the value of the instrument is less than $950 and if certain
exceptions, none of which are applic able to defendant, do not apply. (§ 473, subd. (b).)

2 The complaint in case No. SS121231C is not included in the record on appeal. Additionally, defendant states in h er opening brief that case No. SS121231C was dismissed. However, the abstract of judgment reflects that defendant pleaded to a count of utter ing a fictitious check (§ 476) in case No. SS121231C. Further, the minute order of defendant’s change of plea hearing indicates that defendant was advised that pursuant to stipulation, the “total exposure for this case [No. SS122424A] and case #SS121231C is 5 years and 8 months in county jail pursuant to PC1170(h) consecutive.” Accordingly, the record does not reflect that case No. SS121231C was dismissed.3

On December 10, 2 014, defendant petitioned the court under section 1170.18 to

recall her s entence in case No. SS122424A . She asserted that she was eligible for relief
under Proposition 47 and requested that the court resentence her to a misdemeanor

. The
Peopl e opposed defendant’s petition and claimed that she was ineligible because the
value of the property or instrument exceeded $950.
In part, defendant’s petition argued that she was eligible for re sentencing, because
the check from which her charges arose was blank and did not contain a name or a dollar

amount

. She also asserted that the fictitious check had never been cashed and that she
did not actually receive any money for the forged check

. Nonetheless, o n April 7, 2015,
the parties stipulated that th e fictitious check was made payable in the amount of
$1,598.09. 3
On May 28, 2015, the trial court denied defendant’s petition for resentencing

, finding that the value of the check exceeded $950

. Defendant appealed.

D ISCUSSION On appeal, defendant argues that the trial court should not have found her
ineligible for Proposition 47 relief, because the fictitious check was never cashed and

the victim was not harmed

. Defendant further claims that the trial court erroneously

focused its attention on the amount written on the forged check, which the parties had stipulated was $1,598.09. Lastly , defendant argues that the trial court failed to consider
whether she would be an unreasonable risk of danger to public safety if resentenced

under section 1170.18.

3 In support of her petition, defendant attached copies of a police report indicating that the ch eck retrieved was blank. Defendant also attached a copy of the blank check. Therefore, i t is unclear from the record what evidence the parties relied on when they stipulated that the amount written on the forged check was $1,598.09. None theless, defenda nt does not appear to challenge the stipulation that the check was made payable in the amount of $1,598.09

. And, during the hearing on the Proposition 47 petition, defendant’s attorney reiterated that the “check amount” was $1,598.09.4

a. Statutory Framework and Overview
Proposition 47 enacted a procedure by which a petitioner who is currently serving
a sentence for a felony conviction can file a petition with the trial court to have his or her

sentence recalled if he or she would have been guilty of a misdemeanor under the Act if

the Act had been in effect at the time of his or her offense

. (§ 1170.18, subd. (a).)
After receiving a petition for recall of sentence, the trial court shall determine if

the petition er comes within the criteria articulated in section 1170.18, subdivision (a).
(§ 1170.18, subd. (b).) If a petitioner comes within section 1170.18, subdivision (a), his

or her sentence shall be recalled and the petitioner shall be resentenced to a misdem eanor unless the court finds, in its discretion, that resentencing the defendant will pose an
unreasonable risk of danger to public safety. (§ 1170.18, subd. (b).) Section 1170.18, subdivision (c) defines an “unreasonable risk of danger to public safety” as “an
unreasonable risk that the petitioner will commit a new violent felony within the meaning
of clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of S ection 667.”
In this particular case, defendant was convicted of violating secti on 476, which provides that “[e]very 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.”
Proposition 47 amended section 473, which sets for th the punishment for forgery

offenses. 4 Under the amended version of section 473, forgery where the value of the

4 We note that below and on appeal, the parties cite to section 476a, not section 473. Section 476a is inapplicable to defendant’s case. The record reflects that defendant was convicted of forgery (uttering a fictitious check) as defined under section 476 , and section 473 defines the punishment s for forgery offenses. Section 476a, (continued)5

instrument is greater than $950 remains a wobbler offense, punishab le as either a felony

or a misdemeanor. (§ 473, subd. (a).) However, if the value of the instrument i s less than $950, forgery is a misdemeanor unless certain exceptions apply

. 5 (§ 473, subd. (b).)

b. Standard of Review
A defendant bears the burden of p roof as to eligibi lity under Proposition 47.
( People v

. Sherow (2015) 239 Cal.App.4th 875, 879 [holding that a defendant bears the
burden of proof as to eligibility under § 1170.18, subd. (a)].)

At issue is the trial court’s determination that defendan t was not eligible to have

her felony conviction designated as a misdemeanor. The trial court must find a defendant

is ineligible based on a preponderance of the evidence. (Evid. Code, § 115; see, e.g.,
People v

. Osuna (2014) 225 Cal.App.4th 1020, 1040 [ trial court must find existence of
disqualifying factor under § 1170.126 by preponderance of the evidence].) We review the trial court’s findings made under a preponderance of the evidence standard for
substantial evidence. ( People v

. Wong (2010) 186 Cal.App.4th 1433, 1444.)

c. Defendant is Ineligible for Proposition 47 Relief
On appeal, d efendant contends that she is eligibl e for resentencing, because the “value” of the check was less than $950 even though the forged check was made payable

on the other hand, defines the elements and punishments applicable to the offense of drafting a check with insufficient funds. Like section 473, section 476a renders an offense of drafting a check with insufficient funds a misdemeanor if the check is less than $950 (absent certain exceptions) , but the offense remains a wobbler if the check is more than $950. (§§ 473, subds. (a) & (b), 476a, subds. (a) & (b).) Based on the simi larities between the two statutes , the parties’ arguments on appeal

— whether the value of the check was greater than $950

— apply fully to section 473.

5 Forgery remains a wobbler offense even if the value of the instrument is less than $950 if the defen dant has one or more prior convictions for an offense specified under section 667, subd ivision (e)(2)(C)(iv) or for an offense that requires registration under section 290, subdivision (c). Additionally, forgery remains a wobbler offense if the defendant was convicted of both forgery and identity theft as defined in section 530.5. None of these situations applies to defendant.6

i n the amount of $1,598.09

. D efendant argues that the check was never cashed and the
victim did not suffer direct pecuniary harm as a result of her forgery. She therefore

maintains that the trial court erred in focusing on the amount written on the check when
evaluating her eligibility. We disagree.
Proposition 47 amended section 473, which now provides in pertinent part that
forgery convictions are misdemeanors , absent certain exceptions, if the forgery
“relat[es]” to a check where the “value of the ch eck” does not exceed $950. (§ 473,

subd. (b).) At issue is what constitutes the “value ” of the check under section 473.

W e construe the “value ” of the check to be the amount written on the check

. ( People v. Franco (2016) 245 Cal.App.4th 679 [ “value” as used in § 473, subd

. (b) refers
to the face value of an instrument even if it was not exchanged for value].) Any
ambiguity in section 473 is resolved by referencing the legislative history of
Proposition 47, whic h supports this interpretation. The Voter Information Guide to Proposition 47 clearly states that “[u]nder this measure, forging a check worth $950 or

less would always be a misdemeanor, except that it would remain a wobbler crime if the
offender commits identity theft in connection wit h forging a check.” (Voter Information
Guide, Gen. Elec. (Nov. 4, 2014) analysis of Prop. 47 by Legis. Analyst, p. 35, italics
added.) 6 Here, the forged check at issue, if drawn, would have entitled defendant to
payment on demand of the amou nt that was w ritten on the check , which was $1,598.09.
In other words, defendant forged a check that was worth $1,598.09. Its value therefore
exceeded $950.
Contrary to defendant’s claims, section 473 does not require that the victim suffer
an actual pecuniary los s. Nor does section 473 contain any indication that the value of
the check should be determined by examining the financial harm incurred as a result of

6 The Voter Information Guide to Proposition 47 is not a part of the record on appeal. We take judicial notice of it on our own motion . (Evid. Code, §§ 452, 459.)7

the forgery. As a result

, we find the trial court did not err in finding defendant ineligible

for rese ntencing.

In her reply brief, defendant opines that she is eligible for resentencing, because if
she was charged with the same offense today, she may have been charged with a

misdemeanor. Defendant did not raise this argument in her opening brief and she does
not explain why she did not raise it before , so we do not consider it. 7 ( People v. Smithey
( 1999) 20 Cal.4th 936, 1017, fn. 26 [general rule is that points first raised in reply brief
will not be considered unless good reason is shown for fa ilure to present them before].)
Next, d efendant argues that she should be resentenced because she does not pose
an unreasonable risk of danger to public safety within the meaning of sec tion 1170.18,
subdivision (b). However, whether a defendant pose s a n unreasonable risk of danger to
public safety is relevant only if a defendant meets the eligibility criteria set forth under
section 1170.18, subdivision (a). ( § 1170.18, subd. (b).) T he trial court determined that
defendant was not eligible to be r esen tenced under Pro position 47; t herefore, it did not

need to ascertain whether she posed an unreasonable risk of danger to public safety.
Lastly, defendant argues that she was prejudiced when the court erred in denying
her petition for resentencing. Since we find that substantial evidence supports the trial court’s determination that she was not eligible for relief under section 1170.18

, she has

failed to demonstrate error and we need not address her claim of prejudice.

D ISPOSITION

The order is affirmed.

7 Additionally, we note that in order to establish eligibility for resentencing under Proposition 47, a defendant must show that he or she “ would have been guilty of a misdemeanor under [Proposition 47]

. . . had [Proposition 47] been in effect at the time of the offense.” (§ 1170.18, subd. (a) , italics added .) In other words, e ligibility is not established by showing that the defendant could have been guilty of a misdemeanor.8 Premo, J.

WE CONCUR:

Rushing, P.J.

Márquez, J.

People v. Ramirez H042514