17 Cal. App. 5th 547
Cal. Ct. App. 5th2017Background
- In June 2015 defendant attempted to obtain a 16-ounce bottle of Phenergan-Codeine with a prescription the pharmacist believed fraudulent; police found him at the drive-up and he admitted the prescription was false.
- Defendant had two prior strike convictions (2006 vandalism for gang benefit; 2012 gang participation) and a prior prison term; he expressed addiction issues and was accepted into a six-month residential treatment program.
- An amended information charged felony prescription forgery (Health & Safety Code §11368) and misdemeanor burglary; defendant moved to reclassify the §11368 felony as a misdemeanor under Proposition 47 and later moved under Penal Code §17(b) to treat the wobbler as a misdemeanor.
- Trial court denied the Proposition 47 reclassification and the §17(b) reduction, accepted defendant’s no-contest plea to the felony §11368 count with admitted strikes, and sentenced him to four years in state prison; defendant appealed.
- The court below affirmed, holding §11368 is not among the code sections amended or added by Proposition 47 and that the trial court did not abuse its discretion in declining to treat the wobbler as a misdemeanor.
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument | Held |
|---|---|---|---|
| Whether a §11368 prescription-forgery felony is eligible for reclassification under Proposition 47 / §1170.18 | §1170.18 limits resentencing to offenses expressly amended/added by Prop 47; §11368 is not listed, so not eligible | §11368 conduct is theft-by-false-pretense or shoplifting in effect (value < $950) and should be reclassified under §490.2 or §459.5 as Prop 47 intended | Court: §11368 is not among statutes amended/added by Prop 47; voters did not plainly intend to include prescription forgery—no Prop 47 relief |
| Whether §1170.18(f) petition procedure applied pre-sentencing | §1170.18 is a resentencing statute for those who completed sentences; defendant’s pre-sentencing filing is procedurally defective | Even if form was imperfect, substance should be considered because Prop 47 aims to reduce nonviolent felony sentences | Court: noted procedural misstep but resolved eligibility on statutory scope—§11368 not covered |
| Whether the trial court abused discretion in denying §17(b) request to treat wobbler as misdemeanor | Trial court properly considered defendant’s violent/serious priors, parole failures, and gang history | Defendant argued the court failed to make an individualized consideration of mitigating factors (addiction, treatment, remorse, nonviolent offense) | Court: No abuse of discretion; record shows trial court considered relevant factors and permissibly relied on criminal history and recent parole failure |
| Whether public-policy/purpose of Prop 47 requires including §11368 | N/A | Excluding §11368 would contradict Prop 47’s goal of reducing prison terms for nonserious, nonviolent offenses | Court: Public-safety concerns of prescription forgery support exclusion; intent not shown in initiative text |
Key Cases Cited
- Evangelatos v. Superior Court, 44 Cal.3d 1188 (statutory and initiative interpretation reviewed de novo)
- People v. Romanowski, 2 Cal.5th 903 (interpreting §490.2 and Prop 47’s effect on theft statutes)
- People v. Gonzales, 2 Cal.5th 858 (Prop 47 and §459.5 shoplifting/larceny substitution principles)
- People v. Rivera, 233 Cal.App.4th 1085 (overview of Prop 47 statutory changes)
- People v. Wheeler, 127 Cal.App.4th 873 (prescription forgery targets integrity of medical system)
- People v. Alvarez, 14 Cal.4th 968 (standard of review and factors for §17(b) discretion)
- People v. Park, 56 Cal.4th 782 (purpose of §17(b) and when misdemeanor treatment is appropriate)