Opinion
B263067
09-24-2019
THE PEOPLE, Plaintiff and Respondent, v. FRANK REYNALDO MARTINEZ, Defendant and Appellant.
Alan S. Yockelson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala Harris, Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Mary Sanchez, Andrew S. Pruitt, Chung L. Mar, and Noah P. Hill, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. LA077972) APPEAL from a judgment of the Superior Court of Los Angeles County, Gregory Dohi, Judge. Affirmed. Alan S. Yockelson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala Harris, Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Mary Sanchez, Andrew S. Pruitt, Chung L. Mar, and Noah P. Hill, Deputy Attorneys General, for Plaintiff and Respondent.
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A jury convicted Frank Reynaldo Martinez of petty theft (Pen. Code, § 490.2; count 1), misdemeanor forgery (§ 475, subd. (b); count 2), driving or taking a vehicle without consent, a felony (Veh. Code, § 10851, subd. (a); count 3), and forgery of checks with a value in excess of $950, a felony (§ 475, subd. (a); count 4). Martinez appealed his convictions, arguing that (1) pursuant to Proposition 47, the Safe Neighborhoods and Schools Act, his Vehicle Code section 10851 offense should have been classified as a misdemeanor under section 490.2, rather than a felony, and he was entitled to resentencing; (2) his conviction for violating section 475, subdivision (a), was improperly based on the aggregation of the stated values of the forged checks in his possession; and (3) there was no evidence he "falsely made the checks" in support of his section 475 convictions. The People argued that the abstract of judgment should be modified to reflect that the petty theft conviction was based on violation of section 484, not 490.2.
All further undesignated statutory references are to the Penal Code.
On December 23, 2016, we affirmed the judgment in an unpublished opinion. Thereafter, the California Supreme Court granted review but deferred further action pending its decisions in People v. Page (2017) 3 Cal.5th 1175 (Page) and People v. Lara (2019) 6 Cal.5th 1128 (Lara), both of which considered application of Proposition 47 to Vehicle Code section 10851. After issuance of the opinion in Lara, the Supreme Court transferred this matter back to us, with orders to reconsider the cause in light of Page and Lara. Having done so, we vacate our earlier opinion but again conclude Martinez's Vehicle Code section 10851 offense did not qualify for reduction under Proposition 47 because, as committed, it was not a theft offense. Our decision regarding Martinez's other claims of error remains the same. We therefore affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Our summary of the relevant factual events is based on Martinez's commission of crimes involving three victims.
1. Facts
a. Possession of Forged Checks
On April 4, 2014, Manucheher Afari inadvertently left his briefcase outside his building. When he returned to retrieve the briefcase, it was gone. Inside the briefcase was a personal checkbook and checkbooks for Afari's companies, Viewpoint LLC and Warner Plaza LLC. The following month, an officer initiated a traffic stop on a car driven by Martinez. The car was impounded and was later searched by a detective. The detective found three sets of checks behind the driver's seat: (1) nine checks from Afari's personal account, which were fraudulently signed but did not specify an amount or a payee; (2) four completed checks from Warner Plaza LLC's account in amounts ranging from $295-$865, and one incomplete check from the same account; and (3) four completed checks from Viewpoint LLC's account in amounts ranging from $380-$525.
The checks from the Viewpoint LLC account were all fraudulently signed and made payable to Martinez. The checks from the Warner Plaza account were all fraudulently signed; one was made payable to Martinez, one was blank, and three were made payable to "Kristin Johnson."
b. Theft of a Bumper
On May 21, 2014, at approximately 3:00 a.m., Spencer Smith exited his house and noticed the front bumper had been removed from his car, a gray Scion XB. He saw the same model of car parked down the street, and observed his bumper and license plate in the back of that car. He then saw Martinez get in that car and drive away.
c. Unlawful Driving of a Vehicle
On October 21, 2014, Sergio Fuentes reported that his 1995 Honda Civic was missing. On November 3, 2014, Martinez was arrested driving the car.
2. Procedure
Trial was by jury. Martinez was convicted of petty theft (§ 490.2) based on his taking of Smith's bumper; felony unlawful driving or taking of a vehicle without consent (Veh. Code, § 10851, subd. (a)), based on his driving of Fuentes's car; and misdemeanor forgery (§ 475, subd. (b)) and felony forgery of checks with a value exceeding $950 (§§ 475, subd. (a), 473, subd. (b)), based on his possession of the forged checks. The trial court denied Martinez's section 1118.1 motion for judgment of acquittal as to the felony forgery charge, brought on the ground that none of the forged checks exceeded $950; it also denied his section 995 motion to set aside the Vehicle Code section 10851 charge, brought on the ground that Proposition 47, which was enacted before the information was filed, reduced violations of Vehicle Code section 10851 to misdemeanors. In a bifurcated proceeding, Martinez admitted serving a prior prison term within the meaning of section 667.5, subdivision (b). The trial court sentenced Martinez to a prison term of four years, consisting of the upper term of three years for the violation of Vehicle Code section 10851, plus one year for the prison prior pursuant to section 667.5, subdivision (b). The sentences on the other charges were imposed concurrently. Martinez timely appealed.
DISCUSSION
1. Violation of Vehicle Code Section 10851
On November 4, 2014, the electorate enacted Proposition 47, which went into effect the following day. (Page, supra, 3 Cal.5th at pp. 1179, 1181; Lara, supra, 6 Cal.5th at p. 1132; People v. Lynall (2015) 233 Cal.App.4th 1102, 1108.) Proposition 47 reclassified certain drug- and theft-related offenses from felonies or wobblers to misdemeanors, unless committed by ineligible defendants. (Page, at p. 1179; People v. Morales (2016) 63 Cal.4th 399, 404.) One of the mechanisms by which Proposition 47 reduced theft crimes to misdemeanors was the enactment of section 490.2, which provides that "obtaining any property by theft" is a misdemeanor if the property's value is $950 or less. (§ 490.2, subd. (a); Page, at p. 1179; People v. Lewis (2016) 4 Cal.App.5th 1085, 1090.)
Section 490.2 was subsequently amended by Proposition 63, the "Safety for All Act of 2016," to provide that the $950 limit does not apply to theft of a firearm. (§ 490.2, subd. (c); Prop. 63, § 11.1.)
Proposition 47 also enacted section 1170.18, which created a procedure whereby an eligible defendant serving a sentence for one of the reclassified crimes may petition to have it designated a misdemeanor. (Lara, supra, 6 Cal.5th at pp. 1130—1131; Page, supra, 3 Cal.5th at p. 1179; People v. Lynall, supra, 233 Cal.App.4th at p. 1109.) The section 1170.18 petitioning procedure provides the exclusive path to relief for defendants who were already serving felony sentences as of Proposition 47's effective date, including persons whose convictions were not final. (Lara, at p. 1131; People v. DeHoyos (2018) 4 Cal.5th 594, 603.) In contrast, persons who were sentenced for reclassified crimes after Proposition 47's effective date—even if the offense was committed prior to the effective date—are entitled to initial sentencing under Proposition 47's amended penalty provisions, without regard to the section 1170.18 procedure. (Lara, at pp. 1131, 1133-1135.)
Martinez was charged, convicted, and sentenced after Proposition 47 went into effect; therefore, Proposition 47's ameliorative provisions may apply to him on direct appeal. (Lara, supra, 6 Cal.5th at p. 1135.) The "question remains whether they make a difference" in his case. (Ibid.) In his original briefing, Martinez argued that his Vehicle Code section 10851 conviction should be reduced to a misdemeanor under section 490.2 because the value of the vehicle involved did not exceed $950. Martinez's contention fails, however, because his violation of Vehicle Code section 10851 was not for a theft offense.
People v. Garza (2005) 35 Cal.4th 866, 876, explained that Vehicle Code section 10851 " 'proscribes a wide range of conduct.' " There "are two ways of violating section 10851: the defendant can either 'drive' or 'take' the vehicle." (People v. Smith (2013) 57 Cal.4th 232, 242.) A "person can violate section 10851(a) 'either by taking a vehicle with the intent to steal it or by driving it with the intent only to temporarily deprive its owner of possession,' " i.e., "posttheft driving." (Garza, at pp. 871, 876.) Unlawfully taking a vehicle with the intent to permanently deprive the owner of possession is a form of theft. (Id. at p. 871.) But, "unlawful driving of a vehicle is not a form of theft when the driving occurs or continues after the theft is complete . . . ." (Ibid.) Thus, a defendant convicted under Vehicle Code section 10851 of unlawfully taking a vehicle with the intent to permanently deprive the owner of possession has suffered a theft conviction; a defendant convicted of posttheft driving has not. (Garza, at p. 871; Page, supra, 3 Cal.5th at p. 1183; Lara, supra, 6 Cal.5th at p. 1136.)
Applying Garza's reasoning to Proposition 47, our Supreme Court explained: "Proposition 47 did not reduce to misdemeanors all violations of Vehicle Code section 10851. . . . [O]nly theft-based violations fall within Penal Code section 490.2, making them misdemeanors unless the vehicle stolen was worth more than $950." (Lara, supra, 6 Cal.5th at pp. 1135-1136; Page, supra, 3 Cal.5th at pp. 1180, 1182-1183.) "While a theft-based violation of Vehicle Code section 10851 may be punished as a felony only if the vehicle is shown to have been worth over $950, a violation committed by posttheft driving may be charged and sentenced as a felony regardless of value." (Lara, at p. 1136.)
Here, it is apparent that Martinez's conviction was for posttheft driving, not theft of the vehicle. (See Page, supra, 3 Cal.5th at p. 1189 [a resentencing court should ordinarily be able to determine from the record of conviction whether the Vehicle Code section 10851 conviction was based on vehicle theft or posttheft driving].) "Posttheft driving in violation of Vehicle Code section 10851 consists of driving a vehicle without the owner's consent after the vehicle has been stolen, with the intent to temporarily or permanently deprive the owner of title or possession. Where the evidence shows a 'substantial break' between the taking and the driving, posttheft driving may give rise to a conviction under Vehicle Code section 10851 distinct from any liability for vehicle theft." (Page, at p. 1188; Lara, supra, 6 Cal.5th at p. 1136.)
In this case, the information alleged that Martinez violated Vehicle Code section 10851 in that he "did drive a vehicle, a 1995 Honda Civic, without the consent of the owner, . . . and with the intent to deprive the owner of title and/or possession of the vehicle." The evidence showed that the car was stolen by an unknown person on October 20 or 21, 2014. A police officer found Martinez driving the car two weeks later, on November 3, 2014. There was thus a " 'substantial break' " between the taking and the driving. (Lara, supra, 6 Cal.5th at p. 1136.) The relevant jury instruction stated that Martinez could be convicted of violating Vehicle Code section 10851 if he "took or drove someone else's vehicle without the owner's consent," and the verdict form echoed this language. But, the prosecutor made clear during argument that the People contended only that Martinez was guilty of unlawfully driving the car, not its theft. After discussing the evidence, the prosecutor argued: "Now, keep in mind this charge is not that he took the car. The charge is not that he was the one that broke into that car outside of Mr. Fuentes's apartment and drove off with it. That is not the charge. The charge is that he drove the car without the owner's consent and he did so with the intent to deprive."
Under these circumstances, the evidence showed a felony conviction of Vehicle Code section 10851 on a posttheft driving theory. (See Page, supra, 3 Cal.5th at p. 1188 [to be entitled to resentencing under section 1170.18, defendant has the burden to show the conviction was based on theft, rather than on posttheft driving].) Lara is instructive. There, the court explained that the "evidence amply supported a theory of posttheft driving, which does not require proof of vehicle value in order to be treated as a felony. The evidence showed that defendant was apprehended driving the stolen car six or seven days after it was taken from its owner. Whether or not [defendant] was involved in the theft—a point the prosecutor conceded was not proved at trial—the evidence clearly establishes a substantial break between the theft and defendant's act of unlawful driving. [Citation.] Defendant did not have the owner's consent to drive the vehicle and the circumstances indicated he intended to keep the car from the owner for some period of time. The evidence was thus sufficient to show a felony violation of Vehicle Code section 10851." (Lara, supra, 6 Cal.5th at p. 1137.)
Likewise, here, there is no likelihood the jury concluded Martinez stole, but did not drive, the car; such a conclusion would have been unreasonable, given the evidence. "In the absence of any direct evidence tying defendant to the theft—or indeed, any circumstantial evidence beyond defendant's later possession of the stolen vehicle—there was nothing to show he also drove it while effectuating the theft, and neither party so argued to the jury." (Id. at p. 1138 [addressing claim of instructional error].) Accordingly, Martinez's Vehicle Code section 10851 offense may not be reduced to a misdemeanor, and he is not entitled to resentencing.
2. The Aggregation of Check Values Under Section 475
Martinez argues he was improperly convicted of felony forgery under section 475, subdivision (a) because his possession of eight forged checks constituted eight "separate and distinct acts" of misdemeanor forgery. He further argues the court erred by aggregating the value of each check to meet the threshold of a felony offense under section 473. We conclude Martinez's conviction for felony forgery was properly based on a single act of possession of eight forged checks, and the stated values of those checks were properly aggregated in determining whether the $950 threshold set forth by section 473 had been exceeded.
This charge was based on Martinez's possession of eight completed checks: four drawn from the Viewpoint LLC account in the amounts of $450, $525, $480 and $380, and four drawn from the Warner Plaza LLC account in the amounts of $495, $723, $485 and $865.
Under section 473, which was amended by Proposition 47, forgery remains a wobbler offense where the value of the instrument is greater than $950. (§ 473, subd. (b).) Where the value of the instrument is less than $950 and no exceptions apply, forgery is a misdemeanor. (§ 473, subd. (a).)
Martinez cites to People v. Neder (1971) 16 Cal.App.3d 846 (Neder) in support of his argument that his possession of forged checks constituted separate offenses. In Neder, the defendant was convicted of three counts of forgery in violation of section 470 based on evidence that he made three separate purchases using a stolen credit card. (Neder, at pp. 849—850.) On appeal, the defendant argued that he committed only one crime because the three acts of forgery were part of a single plan to take goods from the store by forging credit card slips. (Id. at p. 850.) The court disagreed, reasoning that "we have three separate forgeries, each directed to the obtaining of different property and none playing a part in the accomplishment of the end of the others." (Id. at p. 854.)
The parties agree that the rule articulated in People v. Bailey (1961) 55 Cal.2d 514 does not apply here. (See id. at p. 519 ["Whether a series of wrongful acts constitutes a single offense or multiple offenses depends upon the facts of each case, and a defendant may be properly convicted [on] separate counts charging grand theft from the same person if the evidence shows that the offenses are separate and distinct and were not committed pursuant to one intention, one general impulse, and one plan."].) We also conclude that the Bailey rule, which addresses thefts committed under a "single plan," does not apply to Martinez's act of possession under section 475, subdivision (a). (Bailey, at p. 518.)
Neder is distinguishable because it involved a prosecution for forgery under former section 470. Here, by contrast, Martinez was charged under section 475, subdivision (a)—"a possession statute" (People v. Valenzuela (2012) 205 Cal.App.4th 800, 806)—which provides that "[e]very person who possesses or receives, with the intent to pass or facilitate the passage or utterance of any forged, altered, or counterfeit items, or completed items contained in subdivision (d) of Section 470 with intent to defraud, knowing the same to be forged, altered, or counterfeit, is guilty of forgery." (§ 475, subd. (a), italics added.)
In People v. Carter (1977) 75 Cal.App.3d 865, 872, the court held that possession of multiple checks with intent to defraud constituted a single offense under section 475. Likewise, in People v. Morelos (2008) 168 Cal.App.4th 758, the court held that the defendants were each guilty of only a single count of forgery under section 475 based on their possession of multiple checks drawn from multiple accounts with the intent to defraud. (Morelos, at pp. 763—764.) Here, as in Carter and Morelos, Martinez's possession of eight completed checks was properly considered a single offense under section 475 as opposed to multiple acts of forgery.
Martinez next argues that it was improper to aggregate the values of the forged checks in determining whether the $950 threshold of a felony offense set forth by section 473 had been exceeded. Section 473 provides that "any 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 . . . ." (§ 473, subd. (b).) Martinez cites to People v. Hoffman (2015) 241 Cal.App.4th 1304 (Hoffman) for the court's holding that "section 473 does not authorize the trial court to aggregate check values." (Id. at p. 1310.)
The Hoffman court addressed the defendant's conviction of seven counts of forgery in violation of section 470. (Hoffman, supra, 241 Cal.App.4th at p. 1307.) The court held that the check values for each separate count could not be aggregated in determining whether the $950 threshold set forth by section 473 had been exceeded. (Hoffman, at p. 1310.) Here, by contrast, Martinez was properly convicted of one count of violating section 475 based on his possession of eight checks. Hoffman's conclusion that a court may not aggregate the values of checks at issue in different counts and for violations of a different statute does not apply here.
Furthermore, although section 473 refers to "check" in the singular, under section 7, words used in "the singular number include[ ] the plural." Accordingly, we read the phrase "value of the check" in section 473 to include multiple checks. (See People v. Mutter (2016) 1 Cal.App.5th 429, 436 [holding that possession of seven counterfeit $100 bills in violation of section 475, subdivision (a) was a misdemeanor because prosecution agreed the aggregated value of bills was less than $950].) Here, it is undisputed that the stated values of the eight checks at issue, when aggregated, exceed $950. Therefore, Martinez was properly convicted of a felony under section 473.
3. Evidence in Support of Section 475 Violations
Martinez contends he was improperly convicted of violating section 475, subdivisions (a) and (b) because there was "no evidence [he] falsely made the checks." In support of this argument he cites to People v. Reisdorff (1971) 17 Cal.App.3d 675 (Reisdorff) for the proposition that a violation of section 475 must be supported by evidence that the defendant "was responsible for" forging the checks.
Reisdorff does not apply here. In that case, the court held there was no evidence supporting the defendant's conviction of forgery in violation of section 470. (Reisdorff, supra, 17 Cal.App.3d at p. 679 ["there was no evidence that defendant himself falsely made the check which he uttered"].) "The crime of forgery [under section 470] . . . consists either in the false making or alteration of a document without authority or the uttering of such a document, knowing the same to be forged, with the intent to defraud. (Pen. Code, § 470.)" (People v. Swope (1969) 269 Cal.App.2d 140, 143.) Here, by contrast, Martinez was convicted of possession of checks, both incomplete and completed, with the intent to defraud in violation of section 475. Accordingly, Reisdorff's discussion of the elements of section 470 is inapplicable.
4. Correction of the February 11, 2015 Minute Order
Respondent contends that the February 11, 2015 minute order should be modified to reflect that the conviction for petty theft was in violation of section 484, not section 490.2, because section 490.2 is not a substantive theft offense.
" 'Generally, a clerical error is one inadvertently made, while a judicial error is one made advertently in the exercise of judgment or discretion. [Citations.]' " (People v. McGee (1991) 232 Cal.App.3d 620, 624.) " 'An amendment that substantially modifies the original judgment or materially alters the rights of the parties, may not be made by the court under its authority to correct clerical error.' " (Smith v. Superior Court (1981) 115 Cal.App.3d 285, 290.)
Here, Martinez was charged with and convicted of petty theft in violation of section 490.2. Although respondent concedes "it appears [Martinez] should have been convicted of theft under section 484," there is no evidence the error here was inadvertently made. Accordingly, it is not within our authority to correct the error. (See Smith v. Superior Court, supra, 115 Cal.App.3d at p. 289 [judicial error " 'which occurs in the rendition of orders or judgments which are the fault of judicial discretion, as opposed to clerical error or inadvertence, may not be corrected except by statutory procedure.' "].)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EDMON, P. J. We concur:
EGERTON, J.
DHANIDINA, J.