I. BACKGROUND
A complaint filed on February 7, 2014, charged defendant with nine offenses, including, among others, felony counts of access card forgery ( Pen. Code,
The following facts regarding the access card forgery offenses at issue in this appeal (counts 1 & 5) are taken from the probation report. In January 2014, a taxi driver reported to police he had picked defendant up and driven her to several locations in Marin County. Defendant attempted to pay the $73.53 cab fare with a prepaid debit card, but the charge did not go through. When police searched defendant, they located a Green Dot prepaid Visa card with defendant's name and another individual's name embossed on it.
A week later, defendant attempted to purchase dinner at a fast food restaurant. A store employee contacted police because he remembered defendant from an earlier incident when she attempted to purchase food using a stolen credit card. When the police searched defendant's car, they located several credit cards with numbers removed or altered. Several cards had defendant's name on them.
II. DISCUSSION
Defendant contends the trial court erred in denying her petition to resentence her access card forgery offenses as misdemeanors under Proposition 47. She also argues exempting access card forgery from Proposition 47 relief violates her rights under the equal protection clauses of the United States and California Constitutions.
A. Eligibility for Misdemeanor Sentence
We first address defendant's argument the trial court erred by denying her resentencing petition because her access card forgery offenses should have been reduced to misdemeanors under section 473, subdivision (b).
In November 2014, the California electorate passed Proposition 47, the Safe Neighborhoods and Schools Act. ( People v. Rivera (2015)
Prior to Proposition 47, all forgery offenses were "wobblers," meaning they could be charged and punished either as a felony or a misdemeanor. (§§ 17, subd. (b)(1), 473, subd. (a) ["Forgery is punishable by imprisonment in a county jail for not more than one year, or by imprisonment pursuant to subdivision (h) of Section 1170."].) Proposition 47 amended section 473 to
Defendant was convicted of access card forgery under section 484f, subdivision (a) ( section 484f(a) ).
When interpreting a voter initiative, as with a statute, we look first at the
Looking at the plain meaning of the words in the statute, section 473(b) provides forgery will be classified as a misdemeanor when a defendant has used one of seven specific instruments (check, bond, bank bill, note, cashier's check, traveler's check, or money order) valued at $950 or less. Under the maxim of statutory construction "expressio unius est exclusio alterius ...., ' "where exceptions to a general rule are specified by statute, other exceptions are not to be implied or presumed." ' " ( People v. Quiroz (2011)
Defendant urges us to construe section 473(b) in the context of the entire statutory scheme for forgery, but doing so further supports our conclusion section 473(b) was intended to provide a limited exclusion for seven specific types of forgery. In section 470, subdivision (d) (section 470(d)), the general forgery statute lists over 50 different instruments that constitute forgery-the first seven of which correspond precisely to the instruments identified in section 473(b). ( Martinez, supra,
Defendant's reliance on cases predating Proposition 47 that interpreted the instruments listed in section 470(d) as a nonexhaustive list of forgery offenses is unpersuasive. Defendant argues "by framing section 473 [ (b) ] in the same language of section 470[ (d) ]," the voters "intended to adopt the construction of the general forgery statute, i.e., that the listed instruments are non-exclusive and that the instrument's name or character is 'immaterial.' " As discussed above, however, section 473(b) is not framed in the same language as section 470(d) but specifically references only seven of the instruments in that section. Voters are presumed to be aware of existing laws and judicial interpretation of those laws. (
Because the language of the statute is clear and unambiguous, we need look no further to ascertain the intent of the voters. (
In her reply brief, defendant relies on People v. Romanowski (2017)
Romanowski held theft of access card information under section 484e, subdivision (d) is one of the crimes eligible for reduced punishment under Proposition 47. ( Romanowski,
Proposition 47's amendment reducing punishment for certain forgery crimes operates differently than section 490.2. Section 490.2 changed the meaning of "grand theft" where it is defined in "any other provision of law," eliminating distinctions based on the type of property stolen when the property is worth $950 or less. ( Romanows k i, supra,
Gonzales is also not controlling here. In Gonzales , the Supreme Court held entering a bank to cash a stolen check for less than $950 is "shoplifting" within the meaning of section 459.5, a new misdemeanor crime created by Proposition 47. ( Gonzales,
We likewise reject defendant's argument that construing section 473(b) to exclude access card forgery would lead to the " 'absurd and
First, theft under section 484g and forgery under section 484f are different crimes, with different elements. (§ 484g [defining use of access card altered, obtained, or retained in violation of §§ 484e or 484f as theft]; § 484f, subd. (a) ["Every person who with the intent to defraud, designs, makes, alters, or embosses a counterfeit access card or utters or otherwise attempts to use a counterfeit access card is guilty of forgery."]; see People v. Gingles , supra ,
Second, the discrepancy between straight misdemeanor status for violations of section 484g involving property valued at $950 or less and wobbler status for violations of section 484f(a) preceded the enactment of Proposition 47. (§ 484g, as amended by Stats. 2009-2010, 3d Ex. Sess., ch. 28, § 15;
Defendant also contends denying her petition to reduce her forgery offenses to misdemeanors under Proposition 47 violates her right to equal protection under the United States and California Constitutions. Defendant asserts the trial court's narrow interpretation of section 473(b) creates two groups of similarly situated individuals who are treated differently: (1) those convicted of forgery for use of one of the seven instruments listed in section 473(b), and (2) those convicted of forgery by instruments other than those listed, including access cards.
The Attorney General argues defendant lacks standing to assert a constitutional violation because she failed to prove the value of the instruments used in her forgery offenses.
"The crux of the constitutional promise of equal protection is that persons similarly situated shall be treated equally by the laws. [Citation.] However, neither clause [of the United States or California Constitutions] prohibits legislative bodies from making classifications; they simply require that laws or other governmental regulations be justified by sufficient reasons." ( In re Evans (1996)
Defendant contends there is no rational basis for distinguishing between use of the first seven instruments listed in section 473(b) and other forgery crimes because those instruments function similarly, if not identically, to others listed under the general forgery statute and victims would suffer the same loss regardless of the instrument employed. Contrary to defendant's argument, there are several reasons the drafters of Proposition 47 and the voters may have decided check forgery was a less serious crime than other types of forgery. First, the seven instruments identified in section 473(b) are negotiable instruments usually printed on paper. Signing another person's name to a check or money order is generally easier than making or altering a name or number on a plastic access card and may reflect a less sophisticated and less culpable crime. As the Attorney General also points out, the use of an access card often transfers the name on the card and card number into the vendor's computer system, potentially affecting the privacy
Defendant contends the Martinez court's analysis is unsound after Romanowski , in which the Supreme Court rejected an argument that consumer protection offenses are categorically excluded from misdemeanor reduction under Proposition 47's theft provisions, citing to section 473(b) as evidence of the electorate's intent. ( Romanowski,
Moreover, the analysis in Romanowski is not inconsistent with our determination here. First, it is notable that in its analysis, the court referenced the specific language of section 473(b) expressly reducing punishment for the seven listed instruments, and characterized the statute by saying "Proposition 47 specifically created a $950 threshold for check forgery. " ( Romanowski, supra,
Romanowski also did not discuss section 473(b)'s provision that misdemeanor designation is inapplicable to check forgery when a defendant is also convicted of identity theft under section 530.5. (§ 473, subd. (b).) The exception for check forgery offenses involving identity theft convictions suggests the initiative's drafters and voters may have had consumer protection in mind when considering whether particular forgery crimes should be designated wobblers or straight misdemeanors. The fact they chose not to apply Proposition 47 to check forgery offenses that are also found to involve identity theft suggests they may have considered check forgery generally less likely to involve identity theft than other types of forgery offenses.
It is well settled that the Legislature "is afforded considerable latitude in defining and setting the consequences of criminal offenses." ( Johnson v. Department of Justice, supra,
The judgment is affirmed.
We concur:
Dondero, J.
Banke, J.
Notes
All statutory references are to the Penal Code.
Defendant's petition also sought to reduce her conviction for second degree burglary on count 8, but defendant conceded she did not have enough information to meet her burden of proof on that count and the court denied the petition. Defendant does not challenge that ruling on appeal.
Section 484f(a) states: "Every person who, with the intent to defraud, designs, makes, alters, or embosses a counterfeit access card or utters or otherwise attempts to use a counterfeit access card is guilty of forgery."
Defendant suggests excluding access card forgery offenses from Proposition 47 relief under section 473(b) is absurd because it gives rise to a sentencing scheme that is " 'suspect' " and " 'may be excessive' " for purposes of the Eighth Amendment. Because defendant neither contends section 473 violates the Eighth Amendment's prohibition against cruel and unusual punishment as applied to her nor makes a showing the statute is facially invalid, we reject her contention. (See People v. Rodriguez (1998)
The Attorney General also asserts defendant forfeited her claim by failing to raise it in the trial court. Defendant's equal protection challenge is cognizable on appeal, however, because it involves a pure question of law that rests on undisputed facts. (People v. Delacy (2011)
The Attorney General asks us to strike the portion of the trial court's order granting defendant's resentencing petition as to count 2 (petty theft). The Attorney General argues because count 2 was already charged and pled to as a misdemeanor, it is not eligible for reduction to a misdemeanor under Proposition 47-nor did defendant seek relief as to count 2 in her resentencing petition. Defendant agrees. As defendant notes, however, the court's order is without legal or practical effect, so we find it unnecessary to strike any portion of the order.