People v. Franco , 240 Cal. Rptr. 3d 766 ( 2018 )

IN THE SUPREME COURT OF
CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
RUBEN PHILLIP FRANCO,
Defendant and Appellant.
S233973
Second Appellate District, Division Seven
B260447
Los Angeles County Superior Court
VA125859
December 10, 2018
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.
PEOPLE v. FRANCO
S233973
Opinion of the Court by Chin, J.
Proposition 47, a recent initiative measure, generally
makes specified types of forgery misdemeanors if the “value” of
the forged instrument does not exceed $950. (Pen. Code, § 473,
subd. (b).)1 We must decide how to determine the value of a
forged check. Because forgery requires the intent to defraud,
and the stated value of the forged check indicates the severity of
the intended fraud, we conclude that when the check contains a
stated value, that amount is its value for this purpose. We
affirm the judgment of the Court of Appeal in this case, which
reached a similar conclusion, and disapprove People v. Lowery
(2017) 8 Cal.App.5th 533, review granted April 19, 2017,
S240615 (Lowery), to the extent it is inconsistent with this
conclusion.
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 in the amount of $1,500. The
name of the payee was left blank. As relevant here, defendant
was charged with and, on January 16, 2013, he pleaded guilty
to, forgery under section 475, subdivision (a). On that date, the
court sentenced him to state prison but suspended the sentence
and placed him on probation.
1
All further statutory citations are to the Penal Code.
PEOPLE v. FRANCO
Opinion of the Court by Chin, J.
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 section 473,
subdivision (b), is its face value. (Franco, at p. 684.) Because
the check’s face value of $1,500 exceeded $950, it affirmed the
judgment, although it ordered a minor error in the abstract of
judgment corrected.
We granted defendant’s petition for review, which raised
the question of how to evaluate a forged check under section 473,
subdivision (b).
II. DISCUSSION
Defendant was convicted of forgery under section 475,
subdivision (a), which provides: “Every 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.” Section 470, subdivision (d),
contains a long list of items that can be the subject of forgery
including, for example, a check, a lottery ticket, a power of
2
PEOPLE v. FRANCO
Opinion of the Court by Chin, J.
attorney, a stock certificate, a document to convey land, an
acknowledgment of a notary public, and another person’s seal.2
When defendant pleaded guilty and was sentenced, all
forgery was a so-called “wobbler,” that is, punishable as either a
2
Section 470, subdivision (d), provides in its entirety:
“Every person who, with the intent to defraud, falsely makes,
alters, forges, or counterfeits, utters, publishes, passes or
attempts or offers to pass, as true and genuine, any of the
following items, knowing the same to be false, altered, forged, or
counterfeited, is guilty of forgery: any check, bond, bank bill, or
note, cashier’s check, traveler’s check, money order, post note,
draft, any controller’s warrant for the payment of money at the
treasury, county order or warrant, or request for the payment of
money, receipt for money or goods, bill of exchange, promissory
note, order, or any assignment of any bond, writing obligatory,
or other contract for money or other property, contract, due bill
for payment of money or property, receipt for money or property,
passage ticket, lottery ticket or share purporting to be issued
under the California State Lottery Act of 1984, trading stamp,
power of attorney, certificate of ownership or other document
evidencing ownership of a vehicle or undocumented vessel, or
any certificate of any share, right, or interest in the stock of any
corporation or association, or the delivery of goods or chattels of
any kind, or for the delivery of any instrument or writing, or
acquittance, release or discharge of any debt, account, suit,
action, demand, or any other thing, real or personal, or any
transfer or assurance of money, certificate or shares of stock,
goods, chattels, or other property whatever, or any letter of
attorney, or other power to receive money, or to receive or
transfer certificates of shares of stock or annuities, or to let,
lease, dispose of, alien, or convey any goods, chattels, lands, or
tenements, or other estate, real or personal, or falsifies the
acknowledgment of any notary public, or any notary public who
issues an acknowledgment knowing it to be false; or any matter
described in subdivision (b).”
Subdivision (b) of section 470 describes “the seal or
handwriting of another.”
3
PEOPLE v. FRANCO
Opinion of the Court by Chin, J.
felony or a misdemeanor. (People v. Gonzales (2018) 6 Cal.5th
44, 46; see former § 473; Stats. 2011, ch. 15, § 360.) Accordingly,
he was originally sentenced to state prison with the sentence
suspended. But the law has since changed.
“[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, section 473, subdivision (b),
provides: “Notwithstanding subdivision (a) [which generally
makes forgery a wobbler], 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),” is, with
exceptions not applicable here, punishable only by a
misdemeanor sentence. (Italics added.) Proposition 47
therefore reclassified as a misdemeanor only forgery of the
instruments expressly listed in section 473, subdivision (b),
when those instruments have a value not exceeding $950.
Forgery of the remaining types of instruments listed in section
470, subdivision (d), remains a wobbler, without regard to their
value.
We must decide what the value of a forged check is for this
purpose. The question arises only under Proposition 47, because
4
PEOPLE v. FRANCO
Opinion of the Court by Chin, J.
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.)
Three possible tests have been proposed. In the Court of
Appeal here and in Lowery, supra, 8 Cal.App.5th 533, review
granted, the defendants argued that the value of a forged check
was merely the intrinsic value of the paper itself. They relied
on People v. Cuellar (2008) 165 Cal.App.4th 833, which held
that, for purposes of theft, the value of a forged check was only
the value of the paper. (Id. at pp. 838-839.)
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.”
5
PEOPLE v. FRANCO
Opinion of the Court by Chin, J.
(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 section 473,
subdivision (b). The intrinsic value of a piece of paper will never
exceed $950. But as the Lowery court explained, the language
of section 473, subdivision (b), “makes clear that check forgery
may be punishable as a felony if the value of the check exceeds
$950. If, as Lowery argues, the value of a forged check is never
more than the paper on which it is written, the language
defining the $950 limit would be meaningless. This would
violate the rule that ‘[c]ourts should give meaning to every word
of a statute if possible, and should avoid a construction making
any word surplusage.’ (Arnett v. Dal Cielo (1996) 14 Cal.4th 4,
22 [56 Cal.Rptr.2d 706, 923 P.2d 1].)” (Lowery, supra, 8
Cal.App.5th at pp. 540-541, rev.gr.) Or, as the Court of Appeal
here explained, we should reject the argument that the value is
just the intrinsic value of the paper “in order to avoid absurd
consequences.” (Franco, supra, 245 Cal.App.4th at p. 684, citing
Flannery v. Prentice (2001) 26 Cal.4th 572, 578.)3
3
We express no view on the relevance, if any, of People v.
Cuellar, supra, 165 Cal.App.4th 833, to Proposition 47’s
provisions concerning theft.
6
PEOPLE v. FRANCO
Opinion of the Court by Chin, J.
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,
section 470, subdivision (d), lists many instruments that can be
the subject of forgery. Some of the listed instruments will
normally contain a stated value, but many will not — for
example, a lottery ticket, a power of attorney, a stock certificate,
a document to convey land, an acknowledgment of a notary
public, or someone’s seal. But the instruments listed in section
473, subdivision (b) — “a check, bond, bank bill, note, cashier’s
check, traveler’s check, or money order” — all generally do
contain a stated value. By contrast, forgery of the instruments
listed in section 470, subdivision (d), that do not have a face
value remains a wobbler. This circumstance strongly suggests
that the electorate was referring to face value when, in
Proposition 47, it reclassified only a subset of the forgery crimes
based on their “value.”
Lowery borrowed its test from section 484, subdivision (a),
the statute that defines the crime of theft. (Lowery, supra, 8
Cal.App.5th at p. 539, rev.gr.) That subdivision states that “[i]n
determining the value of the property obtained, for the purposes
of this section, the reasonable and fair market value shall be the
test . . . .” (§ 484, subd. (a).) In People v. Romanowski (2017) 2
Cal.5th 903, decided shortly after Lowery, we held that section
484, subdivision (a)’s “reasonable and fair market value” test
applied to determine the value of stolen access card information
under Proposition 47’s provisions concerning theft. We
explained that “courts may consider evidence related to the
possibility of illicit sales when determining the market value of
7
PEOPLE v. FRANCO
Opinion of the Court by Chin, J.
stolen access card information.” (Romanowski, at p. 906.)
Defendant argues something similar should apply here.
But People v. Romanowski, supra, 2 Cal.5th 903, was a
theft case. Section 484, subdivision (a), states the test only “for
the purposes of this section,” i.e., the section defining theft.
Forgery is different than theft. “As was said in 1896, ‘[A]s to
what constitutes forgery of instruments which are subjects of
forgery, the definitions at common law and by our code are the
same. “Forgery, at common law, is the false making or
materially altering, with intent to defraud, of any writing which,
if genuine, might apparently be of legal efficacy, or the
foundation of a legal liability.” ’ ” (Lewis v. Superior Court
(1990) 217 Cal.App.3d 379, 387, quoting People v. Bendit (1896)
111 Cal. 274, 280.) “The crime of forgery is complete when one
makes or passes an incorrectly named instrument with intent to
defraud, prejudice, or damage, and proof of loss or detriment is
immaterial.” (Buck v. Superior Court, supra, 232 Cal.App.2d at
p. 162.) “[T]he test is whether upon its face it will have the effect
of defrauding one who acts upon it as genuine.” (People v.
McKenna (1938) 11 Cal.2d 327, 332.)
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.
8
PEOPLE v. FRANCO
Opinion of the Court by Chin, J.
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
system of written instruments upon which modern commerce
critically depends.” (Lewis v. Superior Court, supra, 217
Cal.App.3d at p. 388.) The greater the stated value on the forged
instrument, the greater the threat to the system.
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
9
PEOPLE v. FRANCO
Opinion of the Court by Chin, J.
(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 section 473,
subdivision (b).
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
10
PEOPLE v. FRANCO
Opinion of the Court by Chin, J.
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 “value” means the fair market
value, thus indicating an intent to have the same meaning
attach to a forged check. If so, the electorate was also
presumably aware that, until Proposition 47 was enacted, the
value of a forged check was irrelevant when the defendant was
convicted of forgery, and that forgery and theft are quite
different. No reason appears to assume that the electorate
would believe the same test would apply to both crimes.
Moreover, the argument proves too much. When the electorate
enacted Proposition 47, case law had held that the value of a
forged check for purposes of theft was only the intrinsic value of
the paper it was written on. (People v. Cuellar, supra, 165
Cal.App.4th 833.) But, as explained above, applying that rule
to forgery would have made section 473, subdivision (b)’s
reference to the $950 limit (as well as the Legislative Analyst’s
analysis in the ballot materials) meaningless, something the
electorate cannot have intended.
In explaining why, in its view, the amount stated on the
check should not establish its value under section 473,
subdivision (b), and instead some lower amount might be
appropriate, the Lowery court said that, “[f]or example, a check
may be so ineptly forged that even the most credulous clerk
would refuse to honor it. A poorly forged check for a million
dollars is unlikely to be cashed, and it makes little sense to
assign the written value to such a check.” (Lowery, supra, 8
11
PEOPLE v. FRANCO
Opinion of the Court by Chin, J.
Cal.App.5th at p. 541, rev.gr.) However, a poorly forged check
for a million dollars that even the most credulous clerk would
refuse to honor probably would not be the proper subject of a
forgery conviction, but instead would be an instrument that “is
so defective on its face that, as a matter of law, it is not capable
of defrauding anyone.” (People v. Jones, supra, 210 Cal.App.2d
at p. 809.) But if a check made out for a million dollars was
capable of defrauding someone, and the defendant did intend to
defraud (as the crime of forgery requires), the amount stated
would reasonably indicate the severity of the crime. In this case,
defendant pleaded guilty, thus admitting that the instrument
was the proper subject of forgery.
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 section 473,
subdivision (b). Even assuming the rule applies to a statute that
potentially ameliorates the punishment for a crime after it was
committed, we disagree. This is not a case in which the
competing interpretations “ ‘stand in relative equipoise.’ ” (Soto,
at p. 980.) Instead, we can fairly discern the electorate’s intent
that the amount written on the forged check establishes its
value for this purpose. (Ibid.)
III. CONCLUSION
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.
12
PEOPLE v. FRANCO
Opinion of the Court by Chin, J.
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.
13
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 679Rehearing 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