THE PEOPLE, Plaintiff and Respondent, v. RUBEN PHILLIP FRANCO, Defendant and Appellant.
S233973
IN THE SUPREME COURT OF CALIFORNIA
December 10, 2018
Second Appellate District, Division Seven B260447; Los Angeles County Superior Court VA125859
Justice Chin authored the opinion of the court, in which Chief Justice Cantil-Sakauye and Justices Corrigan, Liu, Cuéllar, Kruger, and Pollak* concurred.
* Associate Justice of the Court of Appeal, First Appellate District, Division Three, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Proposition 47, a recent initiative measure, generally makes specified types of forgery misdemeanors if the “value” of the forged instrument does not exceed $950. (
I. FACTUAL AND PROCEDURAL HISTORY
In July 2012, defendant Ruben Phillip Franco was found in possession of a recently stolen check containing the owner‘s forged signature and made out
On November 19, 2014, the court found that defendant had violated probation. At the hearing, defendant requested the court to resentence him as a misdemeanant under the recently enacted Proposition 47. He argued that the check‘s value was less than $950 dollars. The court denied the request and imposed the previously suspended prison sentence. Defendant appealed.
Defendant argued in the Court of Appeal that the value of the check “corresponds not to the stated amount on the face of the forged instrument but to the intrinsic value of the instrument itself.” (People v. Franco (2016) 245 Cal.App.4th 679, 683 (Franco).) The Court of Appeal disagreed. It concluded that the value of a forged instrument under
We granted defendant‘s petition for review, which raised the question of how to evaluate a forged check under
II. DISCUSSION
Defendant was convicted of forgery under
“[I]n the November 2014 election, California voters enacted Proposition 47, the Safe Neighborhoods and Schools Act. [Citations.] Proposition 47 downgrades several felonies and wobblers to misdemeanors and permits persons convicted of those felonies and wobblers serving felony sentences at the time the law took effect to have their offenses retroactively redesignated as misdemeanors under certain circumstances by filing a petition.” (People v. Gonzales, supra, 6 Cal.5th at p. 48.)
Forgery is among the crimes that Proposition 47 affected. As amended by that proposition,
We must decide what the value of a forged check is for this purpose. The question arises only under Proposition 47, because the value of the forged instrument was previously irrelevant to the crime of forgery. (Buck v. Superior Court (1965) 232 Cal.App.2d 153, 162.)
The Court of Appeal here held, and two Courts of Appeal have stated, that, for purposes of forgery, the value is the amount written on the check. (People v. Gonzales (2016) 6 Cal.App.5th 1067, 1072, fn. 6, review granted February 15, 2017, S240044, aff‘d. on another ground (2018) 6 Cal.5th 44; People v. Salmorin (2016) 1 Cal.App.5th 738, 744-745; Franco, supra, 245 Cal.App.4th at pp. 683-684.)
The court in Lowery, supra, 8 Cal.App.5th 533, review granted, took a third position after we granted review in this case. It rejected both the defendant‘s position (the value is the intrinsic value of the paper) and the prosecution‘s position (the value is the amount stated on the check). It held instead that “the term ‘value’ in Penal Code section 473 refers to the actual monetary worth of the check — that is, the amount the defendant could obtain for the check, not the amount for which it was written.” (Id. at p. 541.) Lowery explained that “[w]hile the written value of a forged check may be substantial evidence of its monetary worth, a defendant may be able to show an uncashed check was worth less than its written value — e.g., by presenting evidence that the check was unlikely to be cashed.” (Id. at p. 536.) In this court, defendant urges the Lowery position. Applying that test, he argues that, because it was unlikely to be cashed, the value of the check in this case is no more than the intrinsic value of the paper it is written on, which is obviously much less than $950.
We agree with both the Court of Appeal here and the Lowery court in rejecting the argument that the value of a forged check is only the intrinsic value of the paper. People v. Cuellar, supra, 165 Cal.App.4th 833, was decided before the adoption of Proposition 47. It considered the value of a forged check only for purposes of theft, not for purposes of forgery under
But we disagree with Lowery‘s attempt to find a test other than the amount written on the forged check. We look first to the statutory language, giving the words their ordinary and usual meaning, and considering them in the statutory context. (People v. Gonzales, supra, 6 Cal.5th at pp. 49-50.) As noted,
Lowery borrowed its test from
But People v. Romanowski, supra, 2 Cal.5th 903, was a theft case.
Additionally, the forged instrument must be capable of defrauding someone, although that someone might be gullible. “[T]o constitute the crime of forgery, the forged instrument must be one which, if genuine, must be legally capable of working the intended fraud or injury.... [¶] ... [¶] The purpose of the statute against forgery is to protect society against the fabrication, falsification and the uttering of instruments which might be acted upon as being genuine. The law should protect, in this respect, the members of the community who may be ignorant or gullible as well as those who are cautious and aware of the legal requirements of a genuine instrument.” (People v. Jones (1962) 210 Cal.App.2d 805, 808-809.) However, an instrument will not be the subject of a forgery if “it is so defective on its face that, as a matter of law, it is not capable of defrauding anyone.” (Id. at p. 809.)
Thus, the gravamen of forgery is the intent to defraud, not an actual injury. The amount written on the check is generally the best indicator of the extent of the intended fraud, and thus of the severity of the crime. Moreover, forgery does not merely concern the specific intended victim. As this court explained long ago, “A very large part of the business of civilized countries is done by means of negotiable instruments. These are rarely presented by the makers, but are paid to others on the faith that the signatures, and the bodies of the instruments, are genuine. The business of a bank would come to a standstill if the paying teller would not pay any check until he could communicate with the drawer. Hence, if there were many successful forgeries there would be the utmost confusion in business circles.” (People v. Bendit, supra, 111 Cal. at p. 281.) Or, as more recently explained, forgery “is maintained as a distinct, felony offense from theft by false pretenses because forgery threatens the
Interpreting the word “value” to mean stated value would also make the most sense to the majority of voters and thus, most likely, be what those voters intended. Not only does the amount written on the check reflect the severity of the intended fraud, it is also a readily ascertainable amount. Attempting somehow to factor in the likelihood the check will be cashed or other unspecified circumstances, as the Lowery test would do (Lowery, supra, 8 Cal.App.5th at p. 536, rev.gr.), could only lead to uncertainty.
In support of their respective positions, the parties discuss dictionary definitions of the word “value” and the information provided to the voters in the official ballot pamphlet for Proposition 47. As we explain, both sources are inconclusive. Neither the dictionary definitions nor the ballot information limits our interpretation of the word “value” in
In support of the argument that the value is limited to the check‘s fair market value, defendant and the Lowery court cite definitions such as the one in Black‘s Law Dictionary. (Lowery, supra, 8 Cal.App.5th at p. 539, rev.gr.) That dictionary defines “value” as, among other things, “[t]he monetary worth or price of something; the amount of goods, services, or money that something commands in an exchange.” (Black‘s Law Dict. (10th ed.) p. 1784, col. 2, italics added.) This language, including the words “or price,” seems broad enough to encompass the amount stated on a forged check.
Similarly, the ballot information is inconclusive. The analysis of the Legislative Analyst stated this regarding Proposition 47‘s effect on check forgery: “Under current law, it is a wobbler crime to forge a check of any amount. Under this measure, forging a check worth $950 or less would always be a misdemeanor” subject to an exception not applicable here. (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) analysis of Prop. 47 by Legis. Analyst, p. 35, italics added.) In this context, we think that, if anything, voters would assume the reference in the first sentence to “any amount” meant the amount written on the check. But the ballot information does not address this precise question, so we do not rely heavily on it in reaching our conclusion.
Noting that the electorate is presumed to be aware of existing law when it enacts an initiative measure (People v. Hernandez (2003) 30 Cal.4th 835, 867), defendant argues that the electorate must have been aware than in some contexts, primarily theft cases, the word
In explaining why, in its view, the amount stated on the check should not establish its value under
Defendant argues “that the rule of lenity, ‘whereby courts must resolve doubts as to the meaning of a statute in a criminal defendant‘s favor‘” (People v. Soto (2018) 4 Cal.5th 968, 979-980), compels us to adopt his interpretation of
We affirm the judgment of the Court of Appeal and disapprove People v. Lowery, supra, 8 Cal.App.5th 533, review granted, to the extent it is inconsistent with this opinion.
CHIN, J.
We Concur:
CANTIL-SAKAUYE, C. J.
CORRIGAN, J.
LIU, J.
CUÉLLAR, J.
KRUGER, J.
POLLAK, J.*
* Associate Justice of the Court of Appeal, First Appellate District, Division Three assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Franco
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 245 Cal.App.4th 679
Rehearing Granted
Opinion No. S233973
Date Filed: December 10, 2018
Court: Superior
County: Los Angeles
Judge: Roger T. Ito
Counsel:
Allison H. Ting, under appointment by the Supreme Court, for Defendant and Appellant.
Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Mary Sanchez, Louis W. Karlin and Theresa A. Patterson, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Allison H. Ting
Law Office of Allison H. Ting
1158 26th Street, #609
Santa Monica, CA 90403
(310) 826-4592
Theresa A. Patterson
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 9013
(213) 620-6004