People v. Gollardo

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."

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

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

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

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) 2 Cal.5th 903 , 910, 215 Cal.Rptr.3d 758 , 391 P.3d 633 [ Romanowski ].) At the same time, however, we disagree that his particular Health & Safety Code offense, medical prescription forgery to obtain a narcotic drug, was intended by lawmakers to fall within the initiative's broad scope.

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, 233 Cal.App.4th at p. 1091, 183 Cal.Rptr.3d 362 .) And section 1170.18, subdivision (a), expressly states that a defendant may petition the court for resentencing if (1) his felony conviction "would have been ... a misdemeanor under the act that added this section," and (2) his resentencing is " in accordance with ... those sections hav[ing] been amended or added by this act ." ( § 1170.18, subd. (a) [italics added].) Yet neither Proposition 47 nor section 1170.18 mentions section 11368. In particular, Proposition 47 did not amend or add to section 11368, and none of the statutes that were amended or added by Proposition 47 mention or refer to section 11368. Defendant insists, nonetheless, that his section 11368 offense may be designated a misdemeanor by the trial court because, as a forgery offense that is essentially a "petty theft," his offense falls within the scope of Proposition 47 based upon the initiative's amendment of another statute-to wit, section 490.2.

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

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) 129 Cal.App.4th 809 , 812, fn. 2, 29 Cal.Rptr.3d 59 ; see also § 17, subd. (b) [the court may declare a wobbler a misdemeanor when the prosecutor designates the crime as such in a charging document].) Here, the court exercised its discretion to deny defendant's motion after considering the parties' filings and arguments and noting, among other things, defendant's extensive gang-related criminal history and poor performance on probation and parole.

Defendant contends the trial court's ruling was an abuse of discretion. (See People v. Superior Court ( Alvarez ) (1997) 14 Cal.4th 968 , 978, 60 Cal.Rptr.2d 93 , 928 P.2d 1171 [section 17(b) rulings reviewed for abuse of discretion] [ Alvarez ].) He argues that the trial court failed to make a reasoned consideration of the sentencing factors relevant to his particular case. Rather, defendant claims, the court "was guided entirely by [his] past criminal history," without regard for the following significant facts: "(1) that the nature of [his] current offense, theft conduct stemming from a recently-developed addiction to prescription drugs, was wholly dissimilar from his prior strike convictions; (2) that [he] was cooperative, took responsibility for his actions, and showed remorse from the time of arrest until the time of sentencing; and (3) that [he] not only expressed a desire for rehabilitation, but also applied for and secured admission to a residential drug treatment program."

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, 60 Cal.Rptr.2d 93 , 928 P.2d 1171 .) Defendant's reliance on the trial court's silence does not meet his affirmative burden to prove error on appeal, particularly where the court stated on the record that it had considered the parties' filings and arguments in reaching its decision.

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 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

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

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

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) 47 Cal.4th 566 , 581, 98 Cal.Rptr.3d 546 , 213 P.3d 997 [" 'Under well-established principles of statutory interpretation, the more specific provision [citation] takes precedence over the more general one' "].) Quite simply, had the drafters intended medical prescription forgery to come within Proposition 47's reach, they easily could have stated as much in the text. In the absence of any such

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.

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