Filed 11/20/17 P. v. Hoffman 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

RYON MICHAEL HOFFMAN,

Defendant and Appellant.
H042478
(Santa Clara County
Super. Ct. No. CC462668)

Defendant Ryon Michael Hoffmann challenges the superior court’s denial of his Penal Code section 1170.18, subdivision (f) application seeking to have his 2004 conviction for possession of a “blank or unfinished” check (§ 475, subd. (b)) redesignated as a misdemeanor. The superior court denied his application because it found that “the face amount of the check in that Count was $1327.56.” Defendant’s original contention on appeal was that the superior court erred in equating the “face amount” of a check with its “value” for purposes of determining whether the value of the check was greater than $950 so as to qualify for relief under section 1170.18. He claimed that “the value” of a check does not refer to the “face amount written on” the check “but is to be determined merely based upon the intrinsic or inherent value of the instrument itself (i.e., the price someone would pay to acquire the instrument).”
We requested supplemental briefing on whether the superior court erred in concluding that a completed check for $1,327.56 was the basis for defendant’s conviction. Defendant had been found with both completed and unfinished checks, and a count charging him with possessing a “completed check” (§ 475, subd. (c)) was dismissed as part of the plea agreement under which he pleaded guilty to the possession of an unfinished check count. Defendant now contends that the superior court erred in identifying an incorrect basis for defendant’s conviction, and we agree. Consequently, we reverse and remand for the superior court to consider whether the value of any of the blank or unfinished checks found in defendant’s possession exceeded $950.

I. Background
In August 2004, defendant was arrested after he was found in possession of “numerous forged checks” and “material consistent with manufacturing false checks.” He had in his possession “no less than 50 written personal and business checks from several people’s accounts,” “stacks of blank check stocks” and “printed checks in various stages of completion . . . .” Defendant also possessed two “[m]anufactured/fake” checks from Bill Saso Construction, each for $1,327.56, made out to himself, and a “completed” $1,200 stolen and forged check made out to himself from Mary Ugarte. Ugarte’s mail had been stolen, and she had been notified by her bank two weeks prior to defendant’s arrest that defendant had unsuccessfully attempted to negotiate one of her checks in the amount of $700. Saso’s mail also had been stolen, and, before his arrest, defendant had “misused” Saso’s stolen “business checks” for an amount over $2,000.
Defendant was charged by complaint with numerous counts including possession of a blank or unfinished check (§ 475, subd. (b)), possession of a completed check (§ 475, subd. (c)), and receiving stolen property (§ 496, subd. (a)). Defendant entered into a plea agreement under which he pleaded guilty to the possession of a blank or unfinished check count and two narcotics counts in exchange for dismissal of the remaining counts and an agreed term of 16 months. The receiving count and the completed check count were dismissed.
In 2015, defendant filed a section 1170.18 application seeking redesignation of his section 475, subdivision (b) conviction as a misdemeanor. Defendant’s declaration in support of his application stated: “There was no monetary loss during the act of 475(b). I was arrested for possessing stolen checks, and for having in my possession check making materials. However I never used them so the financial loss by the crime never exceeded $950.00, which is the limit under proposition 47 to receive relief for forgery/fraud.”
The superior court denied his application. “Defendant is not eligible for the requested relief in Count 5 because the record indicates that the face amount of the check in that Count was $1327.56. Although Penal Code §475(b) is among the offenses that may be subject to reduction, the value of the check cannot exceed nine hundred fifty dollars ($950) (see Penal Code §473, §490.2, §496(a)). The conviction in this case does not qualify for treatment under §1170.18(f) because the value of the check exceeded that statutory maximum . . . .”
Defendant moved for reconsideration. He argued that the “value” of a forged check “is not the amount written on a forged check.” Apparently, the court did not grant his request for reconsideration. Defendant timely filed a notice of appeal from the court’s order denying his application.

II. Analysis
Defendant contends that the superior court erred by assuming that one of the completed checks that defendant possessed was the basis for the section 475, subdivision (b) possession of an unfinished or blank check count to which he pleaded guilty. We agree.
At the time of his plea agreement, defendant was facing three counts concerning checks. Count 5, the count to which he pleaded guilty, charged him with violating section 475, subdivision (b) by possessing “a blank and unfinished check and real and fictitious check, with the intention to of [sic] completing the same and facilitating the completion of the same, in order to defraud another person.” Count 6, which was dismissed, charged him with violating section 475, subdivision (c), by possessing “a completed check, and a real and fictitious check, with the intent to utter and pass the same and to facilitate the utterance and passage of the same, in order to defraud another person.” Count 7, which was also dismissed, charged him with receiving stolen property (§ 496, subd. (a)) for receiving “checks and mail.” During the plea colloquy, defendant entered a guilty plea to Count 5, which the court described as charging that he “possessed a blank or uncompleted check or money order.” The court and counsel identified the factual basis for defendant’s plea as “the police reports contained in the Court’s file.” The police reports do not identify which items were associated with which counts. The probation report did not identify the factual basis for any of the counts, and it identified “the victim in this case” as Ugarte. No information about the factual basis for the counts was identified at sentencing.
Defendant’s guilty plea was to possession of a “blank or uncompleted” check. The count alleging that he had possessed a completed check was dismissed. The factual basis for his plea established that he possessed a variety of blank and incomplete checks. The check for $1,327.56 could not have been the factual basis for his plea because it was completed. Nor could any of the other completed checks have formed the factual basis for his plea. Since the denial of defendant’s application was based on the superior court’s misunderstanding of the factual basis for defendant’s conviction, the appropriate remedy is to remand the matter for the superior court to reconsider his application under an accurate understanding of the factual basis for his conviction.

III. Disposition
The superior court’s order is reversed, and the matter is remanded for the superior court to consider whether the value of any of the blank or unfinished checks found in defendant’s possession exceeded $950.







_______________________________
Mihara, J.



WE CONCUR:






_____________________________
Elia, Acting P. J.






_____________________________
Bamattre-Manoukian, J.