People v. Hoffman: Checks Cannot Be Aggregated To Deny Prop 47 Re-Sentencing.

In People v. Hoffman, _Cal.App.4th__, Case No. B261945, decided on November 5, 2015, the defendant was convicted of seven separate felony counts for violating Penal Code section 473 [forged check] in May 2014. There were 18 checks and originally 18 counts, as well as a few additional counts.  The amount of the checks ranged from $150 to $450, totaling $8734.  The defendant signed a Harvey waiver (People v. Harvey (1979) 25 Cal.3d 754) that allowed the court to consider the dismissed counts at sentencing. Defendant had no prior convictions.  

In June 2014, the trial court suspended imposition of sentence and placed Hoffman on formal felony probation with terms and conditions, including 180 days in county jail.  The court denied Hoffman's request to reduce the felonies to misdemeanors but encouraged her to renew the request if she succeeds in her drug treatment program. 

In July 2014, the trial court released Hoffman from serving her remaining jail term to enter a residential treatment program.  Hoffman subsequently violated probation and tested positive for drugs several times. 

In November 2014, the electorate passed Proposition 47.  The Act reclassifies forgery as a misdemeanor if "the value of the check . . . does not exceed [$950]."  (§ 473, subd. (b).)  In December 2014, defendant filed a petition for resentencing under the Act.  (§ 1170.18.)  The trial court denied the request to reduce Hoffman's seven felony forgery counts to misdemeanors because the total amount of the checks exceeded $950.  The court said, "The aggregate amount exceeds the $950.  I think it takes her outside the spirit of the law that was passed by the voters."
Defendant appealed the court’s ruling.  

The appellate court explained that Proposition 47 allows a person, such as Hoffman, who is currently serving a felony sentence for an offense that is now a misdemeanor (forgery), to petition for recall of sentence and resentencing in accordance with its provisions.  (§§ 1170.18, subd. (a), 473, subd. (b).)  If the petitioner satisfies the statutory criteria, the court "shall" resentence petitioner to a misdemeanor "unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety."  (§ 1170.18, subd. (b).)  There is no other discretionary provision.  The Act "shall be liberally construed to effectuate its purposes."  (Prop. 47, eff. Nov. 5, 2014, § 18; see Voter Information Guide, supra, text of proposed laws, p. 74.) 

The statutory criteria for resentencing are that the "person [is] currently serving a sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor . . . had this act been in effect at the time of the offense . . . ."  (§ 1170.18, subd. (a).)  "Unreasonable risk of danger to public safety" is defined to mean an unreasonable risk that the petitioner will commit a new super-strike offense, such as murder, rape or child molestation.  (Id., subd. (c), § 667, subd. (e)(2)(C)(iv).) 

Hoffman satisfies the statutory criteria for resentencing.  She is serving a sentence for conviction of felonies that would have been misdemeanors under the Act.  Section 473, subdivision (b), as amended by the Act, provides, "[A]ny person who is guilty of forgery relating to a check, . . . where the value of the check . . . does not exceed nine hundred fifty dollars ($950), shall be punishable by imprisonment in a county jail for not more than one year," unless the person has a prior super-strike conviction, is required to register as a sex-offender, or has committed identity theft in connection with the forgery. 

On appeal the prosecution argued that Hoffman's Harvey waiver allowed the trial court to rely on facts underlying the dismissed forgery and grand theft counts to find that Hoffman is "outside the spirit" of Proposition 47.  The appellate court explained that the Harvey waiver allowed the trial court to rely on facts underlying the dismissed counts to make whatever sentencing determinations were authorized under section 1170.18.  But only two determinations were authorized by section 1170.18:  (1) whether Hoffman meets the statutory criteria, and (2) whether Hoffman's resentencing would pose an unreasonable risk of danger of a super-strike offense.   

The trial court may not refuse to reduce a defendant's sentence based on the court's notion of the statute's "spirit."  The "criteria" for resentencing are explicitly stated in section 1170.18, subdivision (a), and "unreasonable risk" is defined in subdivision (c).  If the criteria are met, and the resentencing does not pose an unreasonable risk of a new super-strike offense, the "felony sentence shall be recalled and the petitioner resentenced to a misdemeanor."  (Id., subd. (b).)  Further, the appellate court explained that in construing a measure, we may not undertake to rewrite its unambiguous language.  (People v. Goodliffe (2009) 177 Cal.App.4th 723, 726.) 

The appellate court reversed the trial court’s order.  

copyright © 2015 Christine Esser

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