Filed 2/17/17 (unmodified opinion attached) CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

BRIAN LEE LOWERY

,

Defendant and Appellant. H042551 (Santa Clara County Super. Ct. No. FF932426 )

ORDER MODIFYING OPINION

NO CHANGE IN THE JUDGMENT

THE COURT:

It is ordered that the opinion filed herein on February 10 , 2017, be modified as

follows:

First, t he last full sentence on the eighth page shall be modified to state:

For the above reasons, we hold the term “value” in Penal Code

section 473 refers to the actual monetary worth of th e check

— that is, the

amount the defendant could obtain for the check, not the amount for which

it was written.

Second, a fter the above modification is made, page numbers shall be added to the

opinion.

There is no change in the judgment.Dated:

_________________________ _______________________________ Rushing

, P. J.

___________ ___ _________________ Premo, J

.

____________ ___________________ Grover

, J

.

People v. Lowery
H042551F iled 2/10/17 ( unmodified version) CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

BRIAN LEE LOWERY

,

Defendant and Appellant. H042551 (Santa Clara County Super. Ct. No. FF932426 )

This c ase concerns the meaning of the term “value” in subdivision (b) of Penal

Code section 473, which makes check forgery a misdemeanor if the value of the check

does not exceed $950. 1

Defendant Brian Lee Lowery tried to cash a stolen forged check , but the cashier

determined it was forged and refused to cash it . After p leading no contest to possessing a

fictitious check, Lowery petitioned to designate the offense a misdemeanor under

Proposition 47

. Both the prosecution and Lo wery stipulated to his eligibility to have the

offense designated a misdemeanor . T he trial court , however, rejected this stipulation

.

The court denied the petition on the ground that the check was written for $1,047 .85

, exceeding the $950 limit under Pen al Code section 473

. Lowery appeals from the denial

of his petition

. Applying the rules of statutory construction, we conclude the term “value” in

Penal Code section 473 refers to the actual mon etary worth of the check, not the amount

for which it was wr itten. W hile the written va lue of a forged check may be substantial

1 This issue is currently before the California Supreme Court in People v. Franco (2016) 245 Cal.App.4th 679 , review granted June 15, 2016, S233973.evidence of its monetary worth, a def endant may be able to show a n uncashed check was

worth less than its written value

— e.g., by presenting evidence that the check was

unlikely to be cash ed.

In rejecting the parties’ stipulation as to Lowery’s eligibility, the trial court

erroneously ruled that the value of the check was equal to its written value as a matter of

law

. Accordingly, w e will reverse the order denying the petition and remand with

instructions to hold a n evidentiary hearing on the matter.

I. F ACTUAL AND P ROCEDURAL B ACKGROUND

In 2009, Davlyn Giovanetti told police five checks had been stolen from her

business in Morgan Hill. 2 Lowery tried to cash one of the checks in the amount o f

$1,047 at a check cashing business in Gilroy. The cashier , however, suspected the

s ignature was not genuine

. The cashier called Giovanetti , who told him not to cash the

check

. T he cashier kept it

, along with a copy of Lowery’s driver’s license. Lower y
subsequently told police a woman named “Ann” had given him the check as payment for

collecting scrap.

In 2010, Lowery pleaded no contest to possession of a fictitious check. (Pen.

Code, § 476.) In 2015, he petitioned to designate the offense a misdeme anor under

Proposition 47. (Pen. Code

, §1170.18, subd. (f). ) He filed a standardized court form

titled “WAIVER AND STIPULATION FOR RESENTENCING or REDESIGNATION

OF OFFENSES.” A checked box on the form stated, “The defendant is eligible to have

the felon y convictions listed above be designated as misdemeanors under Penal Code

§1170.18(f) and the Court may issue an order redesignating those offenses without a

hearing.” The form was signed under penalty of perjury by both the prosecutor and

Lowery’s counse l.

2 The statement of facts is based on police reports summarizing the offense. At the plea hearing, Lowery stipulated to a factual basis for the offense based on the police reports. We granted his motion to augment the record with the reports.T he tr i a l court issued a written order setting a hearing on the petition

. The order

stated , “Upon review by this Court, it appears that Defendant is ineligible for the

stipulated relief. Although Penal Code § 476 is an offense that may be subject to the

provisions of Penal Code § 1170.18, those provisions only apply when the total amoun t

of all checks does not exceed $950 (see Penal Code § 476(b) )

. [ 3 ] According to the

statement of probable cause in this case, the check in question was in the amount o f

$1047.85.” 4

At the hearing, Lowery was represented by the public defender, but he did not

personally appear. Neither defense counsel nor the prosecutor spoke . The following is

the entire transcript : “ [THE COURT:] Line 4 is Brian Lee Lowery. In this case, I find

that defendant is ineligible for the requested relief. [¶] He is seeking reduction of the

felony offense in this case in Count One. That’s a violation of Penal Code Section 476.

Althou gh Penal Code Section 476[] is one of the offenses that may be subject to

reduction, in this case the record clearly establishes that the check in question exceed[s]

$1,000. It was $1,047.85. It does exceed the $950 limit for mandatory misdemeanor

treatment, and for that reason, the petition is denied.”

II. D I SCUSSION

Lowery raises several arguments. First, h e contends the trial court abused its

discretion by rejecting the parties’ stipulation as to his eligibility to have his offense

designated a misdemeanor. Second, he contends the trial court should have afforded him

an evidentiary hearing on the matter. Alternatively, he argues that his attorney provided

ineffective assistance of counsel by failing to request a hearing or interpose various

3 The intended citation is to subd ivision (b) of Penal Code section 473, not Penal
Code section 476.

4 No “statement of probable cause” appears in the record. It appears the court relied on the police reports.objections. Finally, he argues the court erred by relying on ina dmissible hearsay

statements in the police reports.

The Attorney General responds that Lowery forfeited his claims by failing to

object to the trial court’s ruling. As to the substance of Lowery’s first claim , the Attorney

General contends the court wa s not bound by the parties’ stipulation because it involved a

question of law

. As to the merits of the petition, the Attorney General contends Lowery

did not meet his burden of demonstrating his eligibility for relief because he failed to

show the value o f the check did not exceed $950.

A. Forfeiture

We first consider whether Lowery has forfeited his claims on appeal by failing to

object below. Lowery contends any objection would have been futile

, excusing the

failure to object

. (See People v. Hill (1998 ) 17 Cal.4th 800, 821

- 822 [appellate review

not forfeited where counsel’s objections would have been futile ] .) But even with the

advantage of a written tentative ruling revealing the trial court’s reasoning, defendant’s

appointed counsel filed no oppositi on and did not even state an objection at the hearing.

W e agree with the Attorney General , however, that the court made its ruling on Lowery’s

eligibility as a matter of law. We may therefore consider the issue on its merits “because

it involves ‘a pure question of law which is presented by undisputed facts.’ ” ( People v.

Hines (1997) 15 Cal.4th 997, 1061, quoting Hale v. Morgan (1978) 22 Cal.3d 388, 394 .)

Although Lowery challenges the court’s reliance on police reports, t he parties do

not dispute the essential fact

— that the check was written for $1,047.85. The issue is

whether Lowery was ineligible because the $950 statutory limit of Penal Code section

473 refers to the written value of the check as a matter of law. Accordingly, we will

consider the merits of that ruling.

B. Legal Principles

Among other things, Propos ition 47 established a procedure whereby defendants

who have completed their sentences may petition to have certain felony convictionsdesignated misdemeanors. (Pen. Code, § 1170.18, subd. (f).) The procedure applies to a

felony conviction for an offense that would have been a misdemeanor if Proposition 47

had been in effect at the time of the offense. Proposition 47 also amended Penal Code

section 473 to reduce certain forgery offenses t o misdemeanor s

. S ubdivision (b) of that

section provides

, in 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

. . . .” (Pen. Code, § 473, subd. (b) , italics added .)

This case concer ns the meaning of the term “value” as used in that subdivision.

As an issue of statutory construction, we review the trial court’s interpretation of

Proposition 47 de novo. ( People v. Sherow (2015) 239 Cal.App.4th 875, 879.) “When

we interpret an init iative, we apply the same principles governing statutory construction.

W e first consider the initiative’ s language, giving the words their ordinary meaning and

construing this language in the context of the statute and initiative as a whole. If the

langu age is not ambiguous, we presume the voters intended the meaning apparent from

that language, and we may not add to the statute or rewrite it to conform to some assumed

intent not apparent from that language. If the language is ambiguous, courts may

consi der ballot summaries and argu ments in determining the voters’ intent and

understanding of a ballot measure.” ( People v. Superior Court (Pearson) (2010)

48 Cal.4th 564, 571 .)

C. “Value” as Used in Penal Code Section 473 Means Actual Monetary Worth

Based on t he written value of the check at issue here, the Attorney General takes

the position that the check had a value exceeding $950 as a matter of law. Lowery,

relying on People v. Cuellar (2008) 165 Cal.App.4th 833 ( Cuellar ) , contends the value of

the check w as limited to the intrinsic value of the paper on which it was written. We find

neither argument convincing.We look first to the ordinary meaning of the initiative’s language. Although the

term “value” may have different meanings in different contexts, its ordinary meaning in

the economic context ref

ers to the actual monetary worth of an object, typically as

measured by fair market value. Black’s Law Dictionary defines “value” as “[t] he

monetary worth or price of something; the amount of goods, service s, or money that

something will command in an exchange.” (Black’s Law Dict. (8th ed. 2004 ) p. 1586,

col. 2.) California courts are in accord that the ordinary meaning of “value” refers to

actual monetary value, e.g. as measured by fair market value. “Th e ordinary and

commonly understood meaning of ‘value’ is fair market value.” ( Manhattan Sepulveda,

Ltd. v. City of Manhattan Beach (1994) 22 Cal.App.4th 865, 870, citing cases.)

This construction has long been applied to the Penal Code as well. “It is well

established that the value to be placed on stolen property for purposes of [Penal Code]

section 487 ‘is the fair market value of the property and not the value of the property to

any particular individual.’ ” ( People v. Cook (1965) 233 Cal.App.2d 43 5, 437, quoting

People v. Latham (1941) 43 Cal.App.2d 35, 39.) Penal Code section 484, defining theft,

expressly defines value in these terms. “In determining the value of the property

obtained, for the purposes of this section, the reasonable and fair m arket value shall be

the test

. . . .” (Pen. Code, § 484, subd. (a).) (Cf. Pen. Code, § 482 [expressly referring to

the “nominal value” of an altered ticket, check, order, coupon, etc.].)

We further note that Proposition 47 uses the term “value” in sev eral contexts that

appear to refer to the actual monetary value of the property, not the face value or nominal

value . (See, e.g., Pen. Code, §§ 459.5, subd. (a) [defining shoplifting], 490.2, subd. (a)

[defining petty theft], 496, subds. (a) & (b) [defini ng receipt of stolen property].) T he

normal rule of statutory construction is that identical words used in different parts of the

same act are intended to have the same meaning. ( Department of Revenue of Oregon v.

ACF Industries, Inc. (1994) 510 U.S. 332 , 342.)Evidence of the voters’ intent further supports interpreting “value” in section 473

to mean monetary worth. The Voter Information Guide to Proposition 47 states that

“[u]nder this measure, forging a check worth $950 or less would always be a

mi sdemeanor, except that it would remain a wobbler crime if the offender commits

identity theft in connection with forging a check.” (Voter Information Guide, Gen. Elec.

(Nov. 4, 2014) analysis of Prop. 47 by Legis. Analyst, p. 35, italics added.)

Lowery contends the value of the check was limited to the value of the paper on

which it was written because a forged check is a nullity. For this proposition, he relies on

Cuellar , supra, 165 Cal.App.4th 833. Cuellar attempted to use a forged check to

purchas e cosmetics at a department store, but the clerk suspected the check was false and

refused to honor it. Cuellar grabbed the check from the clerk’s hand and left the store. A

jury convict ed Cuellar of grand theft from a person , among other crimes . (Pen. Code, §

487, subd. (c).) He challenged his conviction on the ground that grand theft from a

person requires the taking of something of value, while a forged check has no value

unless it is accepted. The court of appeal recognized the general principle th at a forged

check is a nullity, but the court found sufficient evidence that the check had some

minimal intrinsic value in the paper on which it was printed

. The court also held that the

check had “ intrinsic value as a negotiable instrument that, if legal ly drawn, would entitle

its holder to payment on demand. ” ( Cuellar

, supra , at p. 839.)

Cuellar

, decided se veral years before Proposition 47, is inapposite here. This case

concerns the statutory construction of Penal Code section 473, which was not at is sue in

Cuellar . The language of that section makes clear that check forgery may be punishable

as a felony if the value of the check exceeds $950. If, as Lowery argues, the value of a

forged check is never more than the paper on which it is written, the l anguage defining

the $950 limit would be meaningless. This would violate the rule that “ [c] ourts should

give meaning to every word of a statute if possible, and should avoid a construction

making any word surplusage.” ( Arnett v. Dal Cielo (1996) 14 Cal.4 th 4, 22.) Moreover,Cuellar held only that a forged check is “of no value unless accepted .” ( Cuellar

, supra ,

165 Cal.App.4th at p. 838, U. S. Rubber Co. v. Union Bank & Trust Co. (1961) 194

Cal.App.2d 703, 708

- 709, italics added.)

We think a forged chec k may have a monetary value equal to its written value

. (Cf. People v. Salmorin (2016) 1 Cal.App.5th 738, 744

– 745.) If Lowery had successfully

cashed the check for its written value, this would be overwhelming evidence that it was

worth its written value

. But other extrinsic factors may be equally relevant to the

determination such that an evidentiary hearing is required. A de fendant may be able to

introduce evidence showing the actual monetary value of the check is less than its written

value. For exa mple, a check may be so ineptly forged that even the most credulous clerk

would refuse to honor it. A poorly forged check for a million dollars is unlikely to be

cashed, and it makes little sense to assign the written value to such a check. The more

seri ous crime would consist of expertly forging a check for a thousand dollars. Allowing

a defendant to present evidence that a forged check was not likely to be cashed is

therefore consistent with the primary purposes of Proposition 47, which include reducin g

the number of nonviolent offenders in state prisons and reserving prison sentences for

more serious offenders. (See Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of

Prop. 47, § 2, p. 70; People v. Montgomery (2016) 247 Cal.App.4th 1 385, 1389

- 1 390.) A

defendant might also be able to present evidence through an expert witness that a forged

check has a monetary value less than its written value based o n a discounted price paid on

the street . (See U.S. v. Tyers (2d Cir. 1973) 487 F.2d 828, 831 [j ury was properly

instructed that it could consider “street value” of stolen money orders] .) Proposition 47

relief may also be summarily granted based on the face amount (for example where a

forged check is written for less than $950), as it is virtually c ertain that the market value

of a forged instrument would not exceed its face amount.

For the above reasons , we hold the term “value” in Penal Code section 473 refers

to the actual mon etary worth of the check, not the amount for which it was written. W econclude the trial court erred by rejecting the parties’ stipulation based on a finding that

the check was worth its written value as a matter of law. We will reverse the order

denying the petition and remand for a n evidentiary hearing. Accordingly, w e d o not

reach Lowe ry’s remaining claims

.

III. D ISPOSITION

The order denying Lowery’s petition is reversed, and the matter is remanded to the

trial court for an evidentiary hearing on the value of the check and any other facts

pertaining to Lowery’s eligibility u nder Proposition 47

.

_________________________ RUSHING, P.J.

I CONCUR:

_________________________ PREMO, J.

_________________________ GROVER, J.

People v. Lowery
H0 42551Trial Court: Santa Clara County Superio r Court No.: FF932426

Trial Judge: The Honorable L inda R. Clark

Attorney for Defendant and Appellant Laurie Wilmore Brian Lee Lowery : under appointment by the Court of Appeal for Appellant

Attorneys for Plaintiff and Respondent Kamala D . Harris The People : Attorney General

Gerald A. Engler Chief Assistant Attorney General

Jeffrey M. Laurence Senior Assistant Attorney General

Seth K. Schalit Supervising Deputy Attorney General

Clau dia H. Amaral Deputy Attorney General

People v. Lowery
H042551