On September 14, 2015, an amended information was filed charging defendant with the felony offense of forging and issuing a prescription for a narcotic drug in violation of Health and Safety Code section 11368 (count one) and the misdemeanor offense of burglary in violation of section 459 (count two). The amended information further alleged defendant had committed two prior strike offenses pursuant to sections 667, subdivisions (d) and (e), and 1170.12, subdivisions (b) and (c) -a 2006 conviction for vandalism committed for the benefit of a criminal street gang (§ 594, subd. (a), § 186.22, subd. (b)), and a 2012 conviction for participation in a criminal street gang (§ 186.22, subd. (a)). Finally, the amended information alleged defendant had served a prior prison term for the 2012 conviction within the meaning of section 667.5, subdivision (b).
These charges stemmed from the following events on June 4, 2015. Defendant entered into a Walgreens store in Santa Rosa and presented the pharmacist with a prescription for a 16-ounce bottle of Phenergan Codeinecough syrup. Suspecting the prescription was fraudulent based upon its appearance, the pharmacist recorded defendant's identifying information and contacted the police.
Police officers responding to the call located defendant in the rear passenger seat of a vehicle parked at the pharmacy drive-up window. When confronted by the officers, defendant was cooperative and conceded the prescription was fraudulent. Defendant explained he had obtained the prescription from some acquaintances. He insisted that this was the first time that he had attempted to obtain codeine.
On November 3, 2015, defendant was interviewed by a probation officer. Defendant stated that, just before the June 4 incident, he had been drinking cough syrup and had taken three or four Xanax, causing him to "black [ ] out." Defendant insisted he did not recall entering Walgreens or receiving the prescription from acquaintances, and did not "wak[e] up" until he was being booked by police after his arrest. Defendant explained he had first ingested codeine and Xanax after being released from jail, and told the officer, "I'll take responsibility for it. I just need help. I need help for my addiction. I need to stay clean and sober, get back to my job." Expressing the desire to "live a sober life," defendant stated that his priorities were to receive substance abuse treatment for his addiction and to move away from Sonoma County to be free of "negative influences." Consistent with these priorities, defendant was thereafter accepted to a six-month residential treatment program through the Treatment Alternative for Safer Communities (TASC) program after "admitt[ing] to having a substance use disorder" and "express[ing] a desire for rehabilitation."
On October 13, 2015, the trial court denied defendant's request for Proposition 47 relief, reasoning: "While many of [defense counsel's] comments make sense to this Court regarding the actual underlying facts of the case, meeting some of the misdemeanor criteria that the Court has here, the Court cannot avoid looking at the prior strikes and the prior prison commitments listed on the complaint." Defendant then entered a no-contest plea in open court to count one, the felony medical prescription forgery count, and admitted the two prior strike offenses (for vandalism committed for the benefit of a criminal street gang in 2006 and participation in a criminal street gang in 2012). The remaining count and special allegation were then dismissed on the prosecution's motion.
On November 4, 2015, prior to sentencing, defendant filed a new motion under section 17, subdivision (b), to reclassify the count one felony as a misdemeanor, as well as a motion pursuant to People v. Superior Court (Romero ) (1996)
Defendant first contends the trial court erred by denying his petition for relief under Proposition 47. He reasons that "forgery of a narcotic prescription ( Health & Safety Code § 11368 ) falls within the clear intent of the voters in enacting Proposition 47," and, as such, is an offense eligible for sentencing reduction under section 1170.18. Second, defendant contends the trial court abused its discretion in denying his section 17, subdivision (b) motion to reduce the felony charge to a misdemeanor by failing to make an "individualized consideration" of relevant sentencing factors, including his character and attitude
We review de novo questions of statutory or voter-initiative interpretation. ( Evangelatos v. Superior Court (1988)
I. Is defendant's forgery offense eligible for reclassification under Proposition 47?
Defendant contends his felony offense under Health and Safety Code section 11368 (hereinafter, section 11368 ) qualifies for purposes of Proposition 47 as "petty theft" (to wit, theft of one or more items not exceeding $950 in value) and, as such, is eligible to be reclassified by the court as a misdemeanor. We first look to the language of Proposition 47 and section 1170.18, a provision added upon its passage, to assess his contention.
"On November 4, 2014, the voters of California passed Proposition 47, reducing some felony theft- and forgery-related offenses to misdemeanors when the value of the stolen property does not exceed $950. (E.g., §§ 459.5, subd. (a) [redefining some theft as shoplifting], 490.2, subd. (a) [redefining some grand theft as petty theft], 473, subd. (b) [changing punishment for some forgery and counterfeiting offenses].) The initiative also created a resentencing procedure allowing offenders to petition for resentencing if they are "currently serving a sentence for a conviction" for committing a felony and "would have been
One of these new provisions, section 1170.18, provides a procedure by which a defendant may petition the trial court for certain relief from the
As a threshold issue, the People contend that defendant's motion is procedurally defective because he filed it prior to sentencing, placing him outside the scope of section 1170.18, which, as reflected in the statutory language set forth above, is essentially a resentencing statute. (See § 1170.18, subds. (a), (f).) As the record reflects, defendant moved pursuant to section 1170.18, subdivision (f), when asking the trial court to reclassify his felony offense of forging and issuing a narcotic prescription ( § 11368 ) as a misdemeanor, even though he was not "[a] person who has completed his or her sentence for a conviction...." (§ 1170.18, subd. (f).)
On appeal, defendant acknowledges his mistake in referencing section 1170.18, subdivision (f) as the basis for his motion given that he had not yet been sentenced, yet insists his motion should be viewed more broadly as a request for relief under Proposition 47 from the legal repercussions of classifying his offense as a felony. However, putting aside the issue of whether defendant's motion was procedurally defective and assuming for the sake of argument he is entitled to petition for reclassification of his offense under Proposition 47, a more serious concern is whether his
According to defendant, obtaining a narcotic drug though use of a false pretense, i.e., use of a false prescription, constitutes petty theft so long as the narcotic drug's value does not exceed $950. ( § 490.2, subd. (a) ; see also § 484, subd. (a) ["Every person ... who shall knowingly and designedly, by any false or fraudulent representation or pretense, defraud any other person of money, labor or real or personal property, ... is guilty of theft. In
As an initial matter, we wholeheartedly agree with defendant that the electorate intended Proposition 47 to "reduce punishment for any theft of property worth less than $950 that could previously be charged as grand theft based on the type of property." ( People v. Romanowski (2017)
As noted above, Proposition 47 "(1) added chapter 33 to the Government Code (§ 7599 et seq.), (2) added sections 459.5, 490.2, and 1170.18..., and (3) amended Penal Code sections 473, 476a, 496, and 666 and Health and Safety Code sections 11350, 11357, and 11377. (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, §§ 4-14, pp. 70-74.)" ( People v. Rivera, supra,
Defendant nonetheless asks that we read section 1170.18, subdivision (a) to include within its scope his section 11368 offense, even though it is not one of the amended or added statutes. We decline to do so: "The expression of some things in a statute necessarily means the exclusion of
Also relevant to our analysis is section 473, a Penal Code provision criminalizing different forms of forgery than that admitted by defendant. Section 473 is among the criminal statutes amended by Proposition 47.
" Section 473, which prescribes the punishment for forgery, was one of the statutes amended by Proposition 47. [Citation.] Subdivision (a) of section 473 now provides: 'Forgery is punishable by imprisonment in a county jail for not more than one year, or by
We find our colleagues' analysis and, more importantly, their ultimate conclusion that the electorate did not intend to reduce punishment for all types of forgery, persuasive. As such, we conclude section 473 -the statute amended by Proposition 47 that, unlike section 490.2, specifically covers forgery offenses-provides a separate basis for rejecting defendant's argument that his section 11368 offense is one eligible for resentencing under Proposition 47. ( People v. Jones (2009)
We hasten to add that several public policy concerns support our conclusion that defendant's crime is not eligible for reduction under our interpretation of Proposition 47. As other courts have recognized, an offense under section 11368 is not simple theft or forgery. Rather, it involves, as in defendant's case, "forg[ing] or alter[ing] a prescription or ... obtain[ing] any narcotic drug by any forged, fictitious, or altered prescription," an offense "punish[able] by imprisonment in the county jail for not less than six months nor more than one year, or in the state prison." ( § 11368.)
As this discussion reflects, section 11368 was enacted to criminalize not just simple theft or drug possession, but conduct undermining the very integrity and trustworthiness of our medical system. "Although a person could use a forged prescription, as defendant apparently did, as a method for trying to obtain narcotics for personal use, as we pointed out before, the offense is not so limited. In addition, even when the drugs are for personal use, section 11368 is directed at a greater evil than possession and personal use of the obtained drugs. It is primarily directed at forgery of the indicia of a powerful authority solely reserved to statutorily defined 'practitioners.' ( Health & Saf. Code, §§ 11026, 11153 ; People v. Gandotra (1992)
Thus, given the unique policy concerns underlying statutes, like section 11368, aimed at ensuring the integrity of medical prescriptions and, more fundamentally, protecting public health and safety, we refuse to assume in the absence of any clear indication that section 11368 comes within Proposition 47's reach. Rather, the more prudent course of action-and the action more consistent with established rules of statutory and voter-initiative construction-is to assume the drafters purposefully omitted section 11368 in order to better serve and protect California citizens.
One issue remains for our review. Just before sentencing, defendant filed a motion pursuant to section 17, subdivision (b), asking the trial court to exercise its discretion to treat his section 11368 offense as a misdemeanor for purposes of sentencing. Undisputedly, forging and issuing a prescription in violation of section 11368 is a "wobbler" offense, meaning the offense is punishable in the court's discretion as either a felony or a misdemeanor. ( Coffey v. People (2005)
Defendant contends the trial court's ruling was an abuse of discretion. (See People v. Superior Court (Alvarez ) (1997)
As defendant notes, the California Supreme Court has stated that "the court's exercise of discretion under section 17(b) contemplates the imposition of misdemeanor punishment for a wobbler 'in those cases in which rehabilitation of the convicted defendant either does not require,
Our review of the record at hand confirms the trial court acted within the scope of its discretion under section 17, subdivision (b) when denying defendant's request to deem his wobbler offense a misdemeanor. In particular, the trial court based its decision on the following, relevant considerations that are firmly grounded in the record. First, the court referred to information in the presentence report regarding defendant's history of gang involvement, his criminality, including his multiple strike offenses, and his relatively recent failures on both probation or parole. In particular, the court noted defendant had been placed back on parole on June 14, 2015, a date "very close" to the date of the current offense (June 14, 2015). Thus, while defendant insists the court ignored key factors such as the non-violent nature of his offenses and his cooperativeness and willingness to take affirmative steps to address the addiction issue that led to his current offense, we decline to assume on this record that the court wholly disregarded these by-all-means relevant circumstances. It is well established " '[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.' [Citation.] Concomitantly, '[a] decision will not be reversed merely because reasonable people might disagree. "An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge." [Citations.]' " (See Alvarez, supra , 14 Cal.4th at pp. 977-978,
The trial court's denial of defendant's section 17, subdivision (b) motion, thus, stands.
The judgment is affirmed.
I concur:
Siggins, J.
Pollak, Acting P.J.
I respectfully dissent. The majority's conclusion, in my opinion, is inconsistent both with the language and the purpose of the measures enacted in Proposition 47.
Defendant argues, correctly I believe, that obtaining a narcotic drug though use of a false pretense, that is, use of an altered prescription, constitutes petty theft so long as the narcotic drug's value does
It is true, as the Attorney General argues, that section 1170.18 does not include Health and Safety Code section 11368 as one of the sections in accordance with which a defendant is to be resentenced. Passing over the inconsistency with the Attorney General's initial argument that section 1170.18 does not apply, the argument misconstrues the text of that section. Section 1170.18 applies to those convicted of a felony who would have been guilty of a misdemeanor under the act had it been in effect at the time of the offense. Defendant was convicted of the felony violation of Health and Safety Code section 11368, but would have been guilty of violating section 490.2 had that section been in effect at the time of the offense. While section 1170.18 does not provide for resentencing in accordance with Health and Safety Code section 11368, it does provide for resentencing in accordance with section 490.2.
It is also true that section 473, subdivision (b), as amended by Proposition 47, reduces certain forms of forgery to a misdemeanor and does not include forgery of
Far more compelling is defendant's argument that "categorically excluding petty thefts charged under Health and Safety Code section 11368 contradicts
There are, to be sure, important public policy reasons underlying the prohibition in Health and Safety Code section 11368 against altering a prescription for narcotic drugs. But as in the case of the broad public interest in consumer protection considered in People v. Romanowski,
Defendant's offense surely is a nonserious and nonviolent offense precisely of the type for which the electorate in Proposition 47 intended to preclude felony prison sentences. Had defendant walked behind the counter and grabbed the drugs which he attempted to obtain with an altered prescription, his offense unquestionably would be a misdemeanor under the changes
Notes
Unless otherwise stated, all statutory citations herein are to the Penal Code.
Proposition 47 created a new provision, section 1170.18, which permits a defendant to petition for relief upon reclassification of certain felony offenses as misdemeanors. Subdivision (f) provides that "[a] person who has completed his or her sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under this act had this act been in effect at the time of the offense, may file an application before the trial court that entered the judgment of conviction in his or her case to have the felony conviction or convictions designated as misdemeanors." (§ 1170.18, subd. (f).) Further, where the section 1170.18 applicant has satisfied the criteria in subdivision (f), the trial court "shall designate the felony offense or offenses as a misdemeanor." (§ 1170.18, subd. (g).)
Defense counsel reiterated that defendant admitted and wanted help for his drug addiction problem, and had been accepted into a six-month residential treatment program. Counsel also noted that defendant had a six year-old son, had substantial family and community support, and had his previous job available to him upon completion of the residential treatment program.
On November 17, 2016, after briefing in this case concluded, the trial court granted defendant's petition for writ of habeas corpus and deemed a properly submitted request for certificate of probable cause timely filed. The court also indicated it would grant the certificate of probable cause. Accordingly, defendant's additional argument on appeal that he received ineffective assistance from counsel based on counsel's failure to file a request for certificate of probable cause is now moot.
"Section 487 lists four types of grand theft. First, subdivision (a) makes it grand theft to steal any 'money, labor, or real or personal property ... of a value exceeding nine hundred fifty dollars ($950).' Next, section 487, subdivision (b) sets a $250 threshold for theft of 'domestic fowls, avocados, olives, citrus or deciduous fruits, other fruits, vegetables, nuts, artichokes, or other farm crops' as well as of 'fish, shellfish, mollusks, crustaceans, kelp, algae, or other aquacultural products ... from a commercial or research operation which is producing that product.' After that, section 487, subdivision (c) makes it grand theft to steal property 'from the person of another,' and section 487, subdivision (d) makes it grand theft to steal either an 'automobile' or a 'firearm.' In sum, section 487 makes it grand theft to steal more than $950 worth of anything; more than $250 worth of the crops or critters listed in subdivision (b); anything at all from the victim's person; or any cars or guns." (Romanowski, supra ,
Section 473 provides in relevant part that "any person who is guilty of forgery relating to a check, bond, bank bill, note, cashier's check, traveler's check, or money order, where the value of the check, bond, bank bill, note, cashier's check, traveler's check, or money order does not exceed nine hundred fifty dollars ($950), shall be punishable by imprisonment in a county jail for not more than one year." (§ 473, subd. (b).)
As the statutory text makes clear section 11368 only applies to forging or altering a prescription for a " 'Narcotic drug' means any of the following, whether produced directly or indirectly by extraction from substances of vegetable origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis:
(a) Opium and opiate, and any salt, compound, derivative, or preparation of opium or opiate.
(b) Any salt, compound, isomer, or derivative, whether natural or synthetic, of the substances referred to in subdivision (a), but not including the isoquinoline alkaloids of opium.
(c) Opium poppy and poppy straw.
(d) Coca leaves and any salt, compound, derivative, or preparation of coca leaves, but not including decocainized coca leaves or extractions of coca leaves which do not contain cocaine or ecgonine.
(e) Cocaine, whether natural or synthetic, or any salt, isomer, derivative, or preparation thereof.
(f) Ecgonine, whether natural or synthetic, or any salt, isomer, derivative, or preparation thereof.
(g) Acetylfentanyl, the thiophene analog thereof, derivatives of either, and any salt, compound, isomer, or preparation of acetylfentanyl or the thiophene analog thereof." (Health & Saf Code § 11019.)
After briefing concluded in this matter, our appellate colleagues in Division One likewise declined to include section 11368 within Proposition 47's broad scope, albeit for different reasons. Rejecting the defendant's argument that his section 11368 offense constituted "shoplifting," a misdemeanor offense under Proposition 47, our colleagues reasoned: "The record indicates defendant entered the pharmacy with the intent to commit a violation of ... section 11368, which punishes persons who forge or alter a prescription. The intent to commit a felony violation of ... section 11368 supports a conviction for burglary under Penal Code section 459, as the statute requires a showing of an intent to commit 'any felony.' However, shoplifting as defined in section 459.5 is limited to persons with the 'intent to commit larceny.' (§ 459.5, subd. (a).) A violation of ... section 11368 does not constitute larceny. Especially in cases such as this, where the defendant intends to pay for the medications at issue. Accordingly, defendant's burglary conviction is not eligible for resentencing...." (People v. Brown, supra,
All statutory references are to the Penal Code unless otherwise noted.
Section 473, subdivision (b) provides in relevant part that "any person who is guilty of forgery relating to a check, bond, bank bill, note, cashier's check, traveler's check, or money order, where the value of the check, bond, bank bill, note, cashier's check, traveler's check, or money order does not exceed nine hundred fifty dollars ($950), shall be punishable by imprisonment in a county jail for not more than one year."
In addition, defendant continues, the particular facts of his case-i.e., his voluntary admission and attempt to obtain treatment for drug addiction-illustrate why denying him Proposition 47 relief would be "an outcome inapposite to the stated purpose of the law."