IN THE SUPREME COURT OF 

CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

RUBEN PHILLIP FRANCO,

Defendant and Appellant.

S233973

Second Appellate District, Division Seven

B260447

Los Angeles County Superior Court

VA125859

December 10, 2018

Justice Chin authored the opinion of the court, in which Chief 

Justice Cantil-Sakauye and Justices Corrigan, Liu, Cuéllar, 

Kruger, and Pollak*concurred.

 

* Associate Justice of the Court of Appeal, First Appellate 

District, Division Three, assigned by the Chief Justice pursuant 

to article VI, section 6 of the California Constitution.
PEOPLE v. FRANCO

S233973

Opinion of the Court by Chin, J.

Proposition 47, a recent initiative measure, generally 

makes specified types of forgery misdemeanors if the “value” of 

the forged instrument does not exceed $950. (Pen. Code, § 473, 

subd. (b).)1 We must decide how to determine the value of a 

forged check. Because forgery requires the intent to defraud, 

and the stated value of the forged check indicates the severity of 

the intended fraud, we conclude that when the check contains a 

stated value, that amount is its value for this purpose. We 

affirm the judgment of the Court of Appeal in this case, which 

reached a similar conclusion, and disapprove People v. Lowery

(2017) 8 Cal.App.5th 533, review granted April 19, 2017, 

S240615 (Lowery), to the extent it is inconsistent with this 

conclusion.

I. FACTUAL AND PROCEDURAL HISTORY

In July 2012, defendant Ruben Phillip Franco was found 

in possession of a recently stolen check containing the owner’s 

forged signature and made out in the amount of $1,500. The 

name of the payee was left blank. As relevant here, defendant

was charged with and, on January 16, 2013, he pleaded guilty 

to, forgery under section 475, subdivision (a). On that date, the 

court sentenced him to state prison but suspended the sentence 

and placed him on probation.

 

1 All further statutory citations are to the Penal Code.
PEOPLE v. FRANCO

Opinion of the Court by Chin, J.

2

On November 19, 2014, the court found that defendant 

had violated probation. At the hearing, defendant requested the 

court to resentence him as a misdemeanant under the recently 

enacted Proposition 47. He argued that the check’s value was 

less than $950 dollars. The court denied the request and 

imposed the previously suspended prison sentence. Defendant 

appealed.

Defendant argued in the Court of Appeal that the value of 

the check “corresponds not to the stated amount on the face of

the forged instrument but to the intrinsic value of the 

instrument itself.” (People v. Franco (2016) 245 Cal.App.4th

679, 683 (Franco).) The Court of Appeal disagreed. It concluded 

that the value of a forged instrument under section 473, 

subdivision (b), is its face value. (Franco, at p. 684.) Because 

the check’s face value of $1,500 exceeded $950, it affirmed the 

judgment, although it ordered a minor error in the abstract of 

judgment corrected.

We granted defendant’s petition for review, which raised 

the question of how to evaluate a forged check under section 473, 

subdivision (b).

II. DISCUSSION

Defendant was convicted of forgery under section 475, 

subdivision (a), which provides: “Every person who possesses or 

receives, 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.” Section 470, subdivision (d), 

contains a long list of items that can be the subject of forgery 

including, for example, a check, a lottery ticket, a power of 
PEOPLE v. FRANCO

Opinion of the Court by Chin, J.

3

attorney, a stock certificate, a document to convey land, an

acknowledgment of a notary public, and another person’s seal.

2

When defendant pleaded guilty and was sentenced, all 

forgery was a so-called “wobbler,” that is, punishable as either a 

 

2 Section 470, subdivision (d), provides in its entirety: 

“Every person who, with the intent to defraud, falsely makes, 

alters, forges, or counterfeits, utters, publishes, passes or

attempts or offers to pass, as true and genuine, any of the 

following items, knowing the same to be false, altered, forged, or 

counterfeited, is guilty of forgery: any check, bond, bank bill, or 

note, cashier’s check, traveler’s check, money order, post note, 

draft, any controller’s warrant for the payment of money at the 

treasury, county order or warrant, or request for the payment of 

money, receipt for money or goods, bill of exchange, promissory 

note, order, or any assignment of any bond, writing obligatory, 

or other contract for money or other property, contract, due bill 

for payment of money or property, receipt for money or property, 

passage ticket, lottery ticket or share purporting to be issued 

under the California State Lottery Act of 1984, trading stamp, 

power of attorney, certificate of ownership or other document 

evidencing ownership of a vehicle or undocumented vessel, or 

any certificate of any share, right, or interest in the stock of any 

corporation or association, or the delivery of goods or chattels of 

any kind, or for the delivery of any instrument or writing, or 

acquittance, release or discharge of any debt, account, suit, 

action, demand, or any other thing, real or personal, or any 

transfer or assurance of money, certificate or shares of stock, 

goods, chattels, or other property whatever, or any letter of 

attorney, or other power to receive money, or to receive or 

transfer certificates of shares of stock or annuities, or to let, 

lease, dispose of, alien, or convey any goods, chattels, lands, or 

tenements, or other estate, real or personal, or falsifies the 

acknowledgment of any notary public, or any notary public who 

issues an acknowledgment knowing it to be false; or any matter 

described in subdivision (b).”

Subdivision (b) of section 470 describes “the seal or 

handwriting of another.”
PEOPLE v. FRANCO

Opinion of the Court by Chin, J.

4

felony or a misdemeanor. (People v. Gonzales (2018) 6 Cal.5th

44, 46; see former § 473; Stats. 2011, ch. 15, § 360.) Accordingly, 

he was originally sentenced to state prison with the sentence 

suspended. But the law has since changed.

“[I]n the November 2014 election, California voters

enacted Proposition 47, the Safe Neighborhoods and Schools 

Act. [Citations.] Proposition 47 downgrades several felonies 

and wobblers to misdemeanors and permits persons convicted of 

those felonies and wobblers serving felony sentences at the time 

the law took effect to have their offenses retroactively 

redesignated as misdemeanors under certain circumstances by 

filing a petition.” (People v. Gonzales, supra, 6 Cal.5th at p. 48.)

Forgery is among the crimes that Proposition 47 affected. 

As amended by that proposition, section 473, subdivision (b), 

provides: “Notwithstanding subdivision (a) [which generally 

makes forgery a wobbler], 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),” is, with 

exceptions not applicable here, punishable only by a 

misdemeanor sentence. (Italics added.) Proposition 47 

therefore reclassified as a misdemeanor only forgery of the 

instruments expressly listed in section 473, subdivision (b), 

when those instruments have a value not exceeding $950. 

Forgery of the remaining types of instruments listed in section 

470, subdivision (d), remains a wobbler, without regard to their 

value.

We must decide what the value of a forged check is for this 

purpose. The question arises only under Proposition 47, because 
PEOPLE v. FRANCO

Opinion of the Court by Chin, J.

5

the value of the forged instrument was previously irrelevant to 

the crime of forgery. (Buck v. Superior Court (1965) 232 

Cal.App.2d 153, 162.)

Three possible tests have been proposed. In the Court of 

Appeal here and in Lowery, supra, 8 Cal.App.5th 533, review 

granted, the defendants argued that the value of a forged check 

was merely the intrinsic value of the paper itself. They relied 

on People v. Cuellar (2008) 165 Cal.App.4th 833, which held 

that, for purposes of theft, the value of a forged check was only 

the value of the paper. (Id. at pp. 838-839.)

The Court of Appeal here held, and two Courts of Appeal 

have stated, that, for purposes of forgery, the value is the 

amount written on the check. (People v. Gonzales (2016) 6 

Cal.App.5th 1067, 1072, fn. 6, review granted February 15, 

2017, S240044, aff’d. on another ground (2018) 6 Cal.5th 44; 

People v. Salmorin (2016) 1 Cal.App.5th 738, 744-745; Franco, 

supra, 245 Cal.App.4th at pp. 683-684.)

The court in Lowery, supra, 8 Cal.App.5th 533, review 

granted, took a third position after we granted review in this 

case. It rejected both the defendant’s position (the value is the 

intrinsic value of the paper) and the prosecution’s position (the 

value is the amount stated on the check). It held instead that 

“the term ‘value’ in Penal Code section 473 refers to the actual 

monetary worth of the check — that is, the amount the 

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

it was written.” (Id. at p. 541.) Lowery explained that “[w]hile 

the written value of a forged check may be substantial evidence 

of its monetary worth, a defendant may be able to show an 

uncashed check was worth less than its written value — e.g., by 

presenting evidence that the check was unlikely to be cashed.” 
PEOPLE v. FRANCO

Opinion of the Court by Chin, J.

6

(Id. at p. 536.) In this court, defendant urges the Lowery

position. Applying that test, he argues that, because it was 

unlikely to be cashed, the value of the check in this case is no 

more than the intrinsic value of the paper it is written on, which 

is obviously much less than $950.

We agree with both the Court of Appeal here and the 

Lowery court in rejecting the argument that the value of a forged 

check is only the intrinsic value of the paper. People v. Cuellar, 

supra, 165 Cal.App.4th 833, was decided before the adoption of 

Proposition 47. It considered the value of a forged check only for 

purposes of theft, not for purposes of forgery under section 473, 

subdivision (b). The intrinsic value of a piece of paper will never 

exceed $950. But as the Lowery court explained, the language 

of section 473, subdivision (b), “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 language 

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.4th 4, 

22 [56 Cal.Rptr.2d 706, 923 P.2d 1].)” (Lowery, supra, 8 

Cal.App.5th at pp. 540-541, rev.gr.) Or, as the Court of Appeal 

here explained, we should reject the argument that the value is

just the intrinsic value of the paper “in order to avoid absurd 

consequences.” (Franco, supra, 245 Cal.App.4th at p. 684, citing 

Flannery v. Prentice (2001) 26 Cal.4th 572, 578.)3

 

3 We express no view on the relevance, if any, of People v. 

Cuellar, supra, 165 Cal.App.4th 833, to Proposition 47’s 

provisions concerning theft.
PEOPLE v. FRANCO

Opinion of the Court by Chin, J.

7

But we disagree with Lowery’s attempt to find a test other 

than the amount written on the forged check. We look first to 

the statutory language, giving the words their ordinary and 

usual meaning, and considering them in the statutory context. 

(People v. Gonzales, supra, 6 Cal.5th at pp. 49-50.) As noted, 

section 470, subdivision (d), lists many instruments that can be 

the subject of forgery. Some of the listed instruments will 

normally contain a stated value, but many will not — for 

example, a lottery ticket, a power of attorney, a stock certificate, 

a document to convey land, an acknowledgment of a notary 

public, or someone’s seal. But the instruments listed in section 

473, subdivision (b) — “a check, bond, bank bill, note, cashier’s 

check, traveler’s check, or money order” — all generally do

contain a stated value. By contrast, forgery of the instruments 

listed in section 470, subdivision (d), that do not have a face 

value remains a wobbler. This circumstance strongly suggests 

that the electorate was referring to face value when, in 

Proposition 47, it reclassified only a subset of the forgery crimes 

based on their “value.”

Lowery borrowed its test from section 484, subdivision (a), 

the statute that defines the crime of theft. (Lowery, supra, 8 

Cal.App.5th at p. 539, rev.gr.) That subdivision states that “[i]n 

determining the value of the property obtained, for the purposes 

of this section, the reasonable and fair market value shall be the 

test . . . .” (§ 484, subd. (a).) In People v. Romanowski (2017) 2 

Cal.5th 903, decided shortly after Lowery, we held that section 

484, subdivision (a)’s “reasonable and fair market value” test

applied to determine the value of stolen access card information 

under Proposition 47’s provisions concerning theft. We 

explained that “courts may consider evidence related to the 

possibility of illicit sales when determining the market value of 
PEOPLE v. FRANCO

Opinion of the Court by Chin, J.

8

stolen access card information.” (Romanowski, at p. 906.) 

Defendant argues something similar should apply here.

But People v. Romanowski, supra, 2 Cal.5th 903, was a 

theft case. Section 484, subdivision (a), states the test only “for 

the purposes of this section,” i.e., the section defining theft. 

Forgery is different than theft. “As was said in 1896, ‘[A]s to 

what constitutes forgery of instruments which are subjects of 

forgery, the definitions at common law and by our code are the 

same. “Forgery, at common law, is the false making or 

materially altering, with intent to defraud, of any writing which, 

if genuine, might apparently be of legal efficacy, or the 

foundation of a legal liability.” ’ ” (Lewis v. Superior Court

(1990) 217 Cal.App.3d 379, 387, quoting People v. Bendit (1896) 

111 Cal. 274, 280.) “The crime of forgery is complete when one 

makes or passes an incorrectly named instrument with intent to 

defraud, prejudice, or damage, and proof of loss or detriment is 

immaterial.” (Buck v. Superior Court, supra, 232 Cal.App.2d at 

p. 162.) “[T]he test is whether upon its face it will have the effect 

of defrauding one who acts upon it as genuine.” (People v. 

McKenna (1938) 11 Cal.2d 327, 332.)

Additionally, the forged instrument must be capable of 

defrauding someone, although that someone might be gullible. 

“[T]o constitute the crime of forgery, the forged instrument must 

be one which, if genuine, must be legally capable of working the 

intended fraud or injury. . . . [¶] . . . [¶] The purpose of the 

statute against forgery is to protect society against the 

fabrication, falsification and the uttering of instruments which 

might be acted upon as being genuine. The law should protect, 

in this respect, the members of the community who may be 

ignorant or gullible as well as those who are cautious and aware 

of the legal requirements of a genuine instrument.” (People v. 
PEOPLE v. FRANCO

Opinion of the Court by Chin, J.

9

Jones (1962) 210 Cal.App.2d 805, 808-809.) However, an 

instrument will not be the subject of a forgery if “it is so defective 

on its face that, as a matter of law, it is not capable of defrauding 

anyone.” (Id. at p. 809.)

Thus, the gravamen of forgery is the intent to defraud, not 

an actual injury. The amount written on the check is generally 

the best indicator of the extent of the intended fraud, and thus

of the severity of the crime. Moreover, forgery does not merely 

concern the specific intended victim. As this court explained 

long ago, “A very large part of the business of civilized countries 

is done by means of negotiable instruments. These are rarely 

presented by the makers, but are paid to others on the faith that 

the signatures, and the bodies of the instruments, are genuine. 

The business of a bank would come to a standstill if the paying 

teller would not pay any check until he could communicate with 

the drawer. Hence, if there were many successful forgeries 

there would be the utmost confusion in business circles.” (People 

v. Bendit, supra, 111 Cal. at p. 281.) Or, as more recently 

explained, forgery “is maintained as a distinct, felony offense 

from theft by false pretenses because forgery threatens the 

system of written instruments upon which modern commerce 

critically depends.” (Lewis v. Superior Court, supra, 217 

Cal.App.3d at p. 388.) The greater the stated value on the forged 

instrument, the greater the threat to the system.

Interpreting the word “value” to mean stated value would 

also make the most sense to the majority of voters and thus, 

most likely, be what those voters intended. Not only does the 

amount written on the check reflect the severity of the intended 

fraud, it is also a readily ascertainable amount. Attempting 

somehow to factor in the likelihood the check will be cashed or 

other unspecified circumstances, as the Lowery test would do 
PEOPLE v. FRANCO

Opinion of the Court by Chin, J.

10

(Lowery, supra, 8 Cal.App.5th at p. 536, rev.gr.), could only lead 

to uncertainty.

In support of their respective positions, the parties discuss 

dictionary definitions of the word “value” and the information 

provided to the voters in the official ballot pamphlet for 

Proposition 47. As we explain, both sources are inconclusive. 

Neither the dictionary definitions nor the ballot information 

limits our interpretation of the word “value” in section 473, 

subdivision (b).

In support of the argument that the value is limited to the 

check’s fair market value, defendant and the Lowery court cite

definitions such as the one in Black’s Law Dictionary. (Lowery, 

supra, 8 Cal.App.5th at p. 539, rev.gr.) That dictionary defines 

“value” as, among other things, “[t]he monetary worth or price

of something; the amount of goods, services, or money that 

something commands in an exchange.” (Black’s Law Dict. (10th

ed.) p. 1784, col. 2, italics added.) This language, including the 

words “or price,” seems broad enough to encompass the amount 

stated on a forged check.

Similarly, the ballot information is inconclusive. The 

analysis of the Legislative Analyst stated this regarding 

Proposition 47’s effect on check forgery: “Under current law, it 

is a wobbler crime to forge a check of any amount. Under this 

measure, forging a check worth $950 or less would always be a 

misdemeanor” subject to an exception not applicable here. 

(Voter Information Guide, Gen. Elec. (Nov. 4, 2014) analysis of 

Prop. 47 by Legis. Analyst, p. 35, italics added.) In this context, 

we think that, if anything, voters would assume the reference in 

the first sentence to “any amount” meant the amount written on 

the check. But the ballot information does not address this 
PEOPLE v. FRANCO

Opinion of the Court by Chin, J.

11

precise question, so we do not rely heavily on it in reaching our 

conclusion.

Noting that the electorate is presumed to be aware of 

existing law when it enacts an initiative measure (People v. 

Hernandez (2003) 30 Cal.4th 835, 867), defendant argues that 

the electorate must have been aware than in some contexts, 

primarily theft cases, the word “value” means the fair market 

value, thus indicating an intent to have the same meaning 

attach to a forged check. If so, the electorate was also 

presumably aware that, until Proposition 47 was enacted, the 

value of a forged check was irrelevant when the defendant was 

convicted of forgery, and that forgery and theft are quite 

different. No reason appears to assume that the electorate 

would believe the same test would apply to both crimes. 

Moreover, the argument proves too much. When the electorate 

enacted Proposition 47, case law had held that the value of a 

forged check for purposes of theft was only the intrinsic value of 

the paper it was written on. (People v. Cuellar, supra, 165 

Cal.App.4th 833.) But, as explained above, applying that rule 

to forgery would have made section 473, subdivision (b)’s 

reference to the $950 limit (as well as the Legislative Analyst’s 

analysis in the ballot materials) meaningless, something the 

electorate cannot have intended.

In explaining why, in its view, the amount stated on the 

check should not establish its value under section 473, 

subdivision (b), and instead some lower amount might be 

appropriate, the Lowery court said that, “[f]or example, 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.” (Lowery, supra, 8 
PEOPLE v. FRANCO

Opinion of the Court by Chin, J.

12

Cal.App.5th at p. 541, rev.gr.) However, a poorly forged check 

for a million dollars that even the most credulous clerk would 

refuse to honor probably would not be the proper subject of a 

forgery conviction, but instead would be an instrument that “is 

so defective on its face that, as a matter of law, it is not capable 

of defrauding anyone.” (People v. Jones, supra, 210 Cal.App.2d 

at p. 809.) But if a check made out for a million dollars was

capable of defrauding someone, and the defendant did intend to 

defraud (as the crime of forgery requires), the amount stated 

would reasonably indicate the severity of the crime. In this case, 

defendant pleaded guilty, thus admitting that the instrument 

was the proper subject of forgery.

Defendant argues “that the rule of lenity, ‘whereby courts 

must resolve doubts as to the meaning of a statute in a criminal 

defendant’s favor’ ” (People v. Soto (2018) 4 Cal.5th 968, 979-

980), compels us to adopt his interpretation of section 473, 

subdivision (b). Even assuming the rule applies to a statute that 

potentially ameliorates the punishment for a crime after it was 

committed, we disagree. This is not a case in which the 

competing interpretations “ ‘stand in relative equipoise.’ ” (Soto, 

at p. 980.) Instead, we can fairly discern the electorate’s intent

that the amount written on the forged check establishes its 

value for this purpose. (Ibid.)

III. CONCLUSION

We affirm the judgment of the Court of Appeal and 

disapprove People v. Lowery, supra, 8 Cal.App.5th 533, review 

granted, to the extent it is inconsistent with this opinion.
PEOPLE v. FRANCO

Opinion of the Court by Chin, J.

13

CHIN, J.

We Concur:

CANTIL-SAKAUYE, C. J.

CORRIGAN, J.

LIU, J.

CUÉLLAR, J.

KRUGER, J.

POLLAK, J.*

 

* Associate Justice of the Court of Appeal, First Appellate 

District, Division Three assigned by the Chief Justice pursuant 

to article VI, section 6 of the California Constitution.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Franco

__________________________________________________________________________________

Unpublished Opinion

Original Appeal

Original Proceeding

Review Granted XXX 245 Cal.App.4th 679

Rehearing Granted

__________________________________________________________________________________

Opinion No. S233973

Date Filed: December 10, 2018

__________________________________________________________________________________

Court: Superior

County: Los Angeles

Judge: Roger T. Ito

__________________________________________________________________________________

Counsel:

Allison H. Ting, under appointment by the Supreme Court, for Defendant and Appellant.

Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney 

General, Lance E. Winters, Assistant Attorney General, Mary Sanchez, Louis W. Karlin and Theresa A. 

Patterson, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Allison H. Ting

Law Office of Allison H. Ting

1158 26th Street, #609

Santa Monica, CA 90403

(310) 826-4592

Theresa A. Patterson

Deputy Attorney General

300 South Spring Street, Suite 1702

Los Angeles, CA 9013

(213) 620-6004