Filed 9/21/17 P. v. Holloway CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge. Affirmed.

Alex Kreit, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Peter Quon, Jr. and Garrett Beaumont, Deputy Attorneys General, for Plaintiff and Respondent.

Counsel for defendant and appellant, Tammy Sue Holloway, filed a petition for reclassification of her conviction from a felony to a misdemeanor pursuant to Penal Code section 1170.18,^[1] which the court denied. On appeal, defendant contends the court erred in denying her petition. We affirm.

I. FACTS AND PROCEDURAL BACKGROUND

By felony complaint filed December 29, 2010, the People charged defendant with second degree burglary (count 1; § 459), check forgery (count 2; § 470, subd. (d)), and possession of a forged identification card (count 3; § 470b). The People additionally alleged defendant had suffered five prior prison terms. (§ 667.5, subd. (b).)

On June 8, 2011, in a plea to the court, defendant pled guilty as charged and admitted all the allegations against her.[2] Defendant admitted that with respect to count 1, she went into a business with the intent to commit a theft and a felony. With respect to the count 2 offense, defendant admitted she falsely made, altered, or forged a counterfeit check. In return, the court granted defendant probation, to which the People objected. The court struck all five prior prison term enhancements.

On July 31, 2012, defendant admitted violations of her probation in three separate cases, including the instant case. Defendant additionally entered guilty pleas in three new felony cases. The court sentenced defendant to three years’ incarceration in the instant case to run concurrent with her sentences in the other five cases, but suspended execution of sentence on two of the three years, which would be spent under mandatory supervision.

On March 17, 2014, defendant pled guilty in a seventh case and admitted five prior prison term allegations. She admitted the offense constituted a violation of her mandatory supervision in her other cases. The court sentenced defendant to serve the remaining 294 days of mandatory supervision in jail concurrent to her sentence in the new case.

On July 20, 2016, defense counsel filed a petition for resentencing pursuant to section 1170.18 seeking to reduce her counts 1 and 2 convictions for felony second degree burglary and forgery to misdemeanors. Defense counsel checked the box indicating defendant believed the value of the check did not exceed $950. In a response dated July 23, 2016, the People noted defendant had already completed her sentence in the matter. The People contended that defendant was ineligible for relief because defendant had attempted to cash three checks valued in the aggregate at more than $950. The People indicated she had written forged checks in the amounts of $4,732.86, $101, and $1,670. The court denied defendant’s petition, noting defendant “has not shown that [the] check attempted to be cashed [was] under [$]950.00. [District attorney] says $1[,]670.00. If [defendant] has other evidence showing eligibility, she can file for reconsideration.”

II. DISCUSSION

Defendant contends that since she only pled guilty to forgery of a single check, insufficient evidence supported the court’s determination that defendant had tried to cash a forged check in the amount of $1,670. Defendant additionally contends the value of the check is not necessarily the amount for which it is written; thus, she avers the court failed to properly determine, even if defendant’s convictions were for attempting to cash a check made out for $1,670, whether the value of the check was more than $950. Therefore, defendant maintains the court erroneously denied her petition. We disagree.

“‘On November 4, 2014, the voters enacted Proposition 47, “the Safe Neighborhoods and Schools Act” (hereafter Proposition 47), which went into effect the next day. [Citation.]’ [Citation.] Section 1170.18 ‘was enacted as part of Proposition 47.’ [Citation.]” (T.W. v. Superior Court (2015) 236 Cal.App.4th 646, 649, fn. 2.) Section 1170.18, subdivision (f), provides a mechanism by which a person who has completed his sentence for a felony offense may petition for reclassification of the offense as a misdemeanor in accordance with the statutes added or amended by Proposition 47.

The petitioner bears the burden of proof to show eligibility for reclassification under section 1170.18. This includes, in cases of forgery, that the value of the forged item did not exceed $950. (People v. Salmorin (2016) 1 Cal.App.5th 738, 744-745 [“[F]or purposes of resentencing under Proposition 47, the value of a forged check is the face value of the check.”]; accord, People v. Gonzales (2016) 6 Cal.App.5th 1067, 1071, review granted Feb. 15, 2017, S240044 [blank checks do not have any value]; People v. Franco (2016) 245 Cal.App.4th 679, review granted June 15, 2016, S233973 [whether a forged check has sufficient “value” for felony sentencing is determined based on the check’s face value]; People v. Lowery (2017) 8 Cal.App.5th 533, review granted Apr. 19, 2017, S240615 [value of forged check is not necessarily its face value, but must include a determination of its fair market value, i.e., the likelihood it would be cashed]; People v. Romanowski (2017) 2 Cal.5th 903, 906, 915, 917 [value of stolen access cards is determined by reasonable and fair market value of cards on black market].)

We acknowledge that the court could not aggregate the values of three checks when defendant pled guilty to only the forgery of a single check. (People v. Salmorin, supra, 1 Cal.App.5th at pp. 745-754.) We also agree that there was insufficient evidence from which the court could determine that the check defendant pled guilty to forging was made out in the amount of $1,670. Nevertheless, we disagree this was the basis for the court’s denial of defendant’s petition. Rather, the court denied defendant’s petition because she failed to carry her burden of showing that the check she was convicted of forging was worth $950 or less. Thus, the court properly denied defendant’s petition.

Citing People v. Romanowski, supra, 2 Cal.5th at page 916, defendant contends the court was required to hold an evidentiary hearing to determine the “value” of the check defendant was convicted of forging. However, Romanowski held that “an evidentiary hearing may be ‘required if, after considering the verified petition, the return, any denial, any affidavits or declarations under penalty of perjury, and matters of which judicial notice may be taken, the court finds there is a reasonable likelihood that the petitioner may be entitled to relief and the petitioner’s entitlement to relief depends on the resolution of an issue of fact.’ [Citations.]” (Ibid.)

Here, defendant did not verify her petition; she did not attach any evidentiary affidavits or declarations under penalty of perjury; and no evidence of the value of the check, of which we are aware, was subject to judicial notice. The People’s statement of the values of the checks in their response is hearsay and holds no evidentiary value whatsoever. Thus, defendant failed to carry her burden of even showing prima facie evidence that the value of the check was $950 or less. Therefore, the court was not required to hold an evidentiary hearing prior to denying defendant’s petition.

III. DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER

J.

We concur:

RAMIREZ

P. J.

MILLER

J.