May a Judge Add Up Forged Checks to Deny Prop 47 Relief?

As the reader of this article may know, a prosecutor may add up the repair expenses of multiple acts of vandalism to support felony vandalism charges, although no one act exceeded $400 in damage, the limit for misdemeanor vandalism.  This may seem unfair to a defendant facing such charges.

Consequently, it is understandable that a judge in ruling on a petition for recall and resentencing under Prop 47 may add up multiple forged checks and, if the sum exceeds $950, deny Prop 47 relief.  However, is such an approach legally correct in this different context?

The answer is no according to a recently issued appellate court ruling, People v. Julius Fernando Salmorin (2016 DJDAR 7328) from the Second Appellate District.  In the underlying 2013 case, Judge Monica Bachner added up the forged checks ($245, $880 and $208).
 
Proposition 47 was then passed in November, 2014.  It changed the law regarding the punishment for forgery by adding Penal Code § 473(b).  It kept the same definition of forgery, but designated such conduct a misdemeanor when the value of the check, etc., “does not exceed $950.”

When Mr. Salmorin requested resentencing of his felony forgery conviction under Penal Code § 1170.18(a), Judge Bachner denied the petition, reasoning that the conviction was based on the aggregate amount of the checks, which exceeded $950.

The facts of the case were that Salmorin and his girlfriend, Debra Lynn Spratt, received some stolen checks and were told to cash them, and were allowed to keep ten percent of the proceeds.  When arrested, the two had five stolen checks (a blank check, a $245 check payable to Ralph Tagarao (an assumed name used by Salmorin), an $880 check payable to another individual and two checks payable to Spratt, one of which was for $208).
 
The prosecution had proceeded on the theory that because Salmorin and Spratt had jointly possessed all of the stolen checks, they had committed the forgeries as a joint venture or criminal enterprise (People v. Land (1994) 30 Cal.App.4th 220, 227-228).  None of the individual checks exceeded $950.  The two defendants were also found with methamphetamine and charged with possession of methamphetamine under Health & Safety Code § 11377(a).

After the trial court judge denied the petition, Salmorin appealed the ruling to the Second Appellate District.  Salmorin’s main argument was that the court erred because only one of the checks, for $245, was attributable to him.  The appellate court saw the ruling on the petition instead as problematic because it was unclear how the court determined the value of each check and whether the court could aggregate the value of the checks.

The appellate court ruled that the trial court correctly valued each check as simply the face value, but erred by aggregating the individual checks to reach over $950.  The Second Appellate District cited to People v. Hoffman (2015) 241 Cal.App.4th 1304, 1310, which says, “section 473 does not authorize the trial court to aggregate check amounts.”
 
The People argued that Hoffman should not apply because in Hoffman, each individual forged check was the basis of a separate count, whereas in this case, all the forged checks were included in the same count.

In response to this distinction, the appellate court looked back at the language of Penal Code § 473(b) and the original voter initiative of Prop 47.  The court noted that “if a penal code is reasonably susceptible to multiple constructions, then we ordinarily adopt the construction which is most favorable to the offender. . . “ People v. Rizo (2000) 22 Cal.4th 681, 685-686; People v. Marks (2015) 243 Cal.App.4th 331, 334.

The court concluded that the overall intent of Proposition 47 was to reduce certain felonies to misdemeanors and the was furthered by reducing the felony conviction to a misdemeanor here.

We think this is a good ruling, however, the reader should understand People v. Bailey (1961) 55 Cal.2d 514, that a theft involving several taking by “one intention, one general impulse and one plan” constitutes a single offense or theft.  In Bailey, the defendant filled out a fraudulent application for welfare benefits and then received many welfare checks over time.  The aggregate amount of the illegal benefits received was used to support a grand theft conviction and the appellate court there did not allow looking at each check individually.

For more information about aggregation of charges and Prop 47, please click on the following articles:
  1. Felony Vandalism Charges Proper When Prosecutor Adds Damages Up from Multiple Victims
  2. Proposition (Prop) 47 and What It Means for Sentencing
  3. Can Proposition 47 (Prop 47) Increase One’s Sentence?  Yes
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