People v. Woodard CA2/5 ( 2015 )

Filed 12/15/15 P. v. Woodard CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B262145
Plaintiff and Respondent, (Los Angeles County Super. Ct.
No. KA105853)
v.
JOSHUA JAMES WOODARD,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County, Jack Hunt,
Judge. Affirmed.
Tyrone A. Sandoval, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Mary Sanchez, Deputy
Attorney General, and Chung L. Mar, Deputy Attorney General, for Plaintiff and
Respondent.
_____________________________
Defendant and appellant Joshua James Woodard appeals from a January 28, 2015
order denying his petition for relief under Proposition 47 (“The Safe Neighborhoods and
Schools Act”; Pen. Code, § 1170.18)1 to recall and resentence as a misdemeanor a felony
conviction for forgery (§ 476). We affirm the trial court’s order denying the petition
because defendant did not satisfy his burden of proving the conviction was subject to
relief under Proposition 47.
FACTUAL AND PROCEDURAL BACKGROUND
In May 2014, prior to a felony preliminary hearing, defendant entered a plea of no
contest to forgery, in violation of Penal Code section 476 (count 1) and admitted to one
prior conviction for robbery in violation of section 211, a serious or violent felony
conviction under section 667, subdivisions (b) through (j), and section 1170.2,
subdivisions (a) through (d). The court sentenced defendant to a total of 32 months in
state prison.
After Proposition 47 took effect in November 2014, defendant filed a motion
seeking to have his conviction reduced from a felony to a misdemeanor under section
1170.18, subdivision (a).2 On January 28, 2015, the court denied defendant’s petition.
DISCUSSION
Defendant contends the court erroneously denied his petition for resentencing
because section 473 classifies as a misdemeanor any forgery offense where the value of
the forged instrument does not exceed $950. Defendant alternatively seeks an order
remanding the matter for further factfinding. We hold the trial court properly denied
1 All further statutory references are to the Penal Code.
2 Defendant filed an earlier motion in November 2014, but it was denied because
it lacked a proper proof of service. Defendant’s second motion was filed on January 7,
2015.
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defendant’s petition for resentencing because defendant did not prove that his conviction
was for an offense that now amounts to misdemeanor forgery.
Proposition 47 reduced the penalties for certain drug- and theft-related offenses
and reclassified those offenses as misdemeanors rather than felonies. (People v. Sherow
(2015) 239 Cal. App. 4th 875, 879 (Sherow); People v. Rivera (2015) 233 Cal. App. 4th
1085, 1091.) Defendants previously convicted of felonies that were reclassified as
misdemeanors under Proposition 47 may petition for resentencing under section 1170.18,
but the petitioner bears the burden of proving that he or she is eligible for resentencing.
(Sherow, supra, at pp. 879-880.)
Proposition 47 amended section 473 to reclassify forgery (as defined in section
476) as a misdemeanor if the value of the forged instrument does not exceed $950, with
specific exceptions. (§ 473, subd. (b).) In Sherow, supra, 239 Cal.App.4th at page 877,
the defendant was convicted of nine counts of second degree burglary, but there was no
evidence in the record of the value of the items he stole. The appellate court affirmed the
order denying a resentencing petition because the defendant had not presented any
evidence that the amount taken in his various second degree burglary offenses did not
exceed $950. Because a proper petition might make the required showing, the affirmance
specified it was “without prejudice to subsequent consideration of a properly filed
petition.” (Id. at p. 881.)
The trial court properly denied defendant’s petition in a ruling made before
Sherow was published, but entirely consistent with its reasoning. (Sherow, supra, 239
Cal.App.4th at p. 877 [petition lacking information about defendant’s eligibility for
resentencing properly denied].) Defendant marked a checkbox on a form petition stating
that the “cumulative value of the bad checks does not exceed $950.00,” but it did not
contain any evidence in support of that statement. (Compare People v. Hoffman (2015)
241 Cal. App. 4th 1304 [reversing denial of petition where aggregate value of forged
checks exceeded $950, but each individual check was less than $950].) In light of the
holding in Sherow, we recognize it may be possible for defendant to file a new petition
presenting evidence that meets his initial burden of proof to show that the offense
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involved a forged check with a value that did not exceed $950. We therefore affirm
without prejudice to defendant’s ability to file a subsequent petition with the required
proof.
DISPOSITION
The order denying the petition is affirmed without prejudice to subsequent
consideration of a properly filed petition.
KRIEGLER, J.
We concur:
TURNER, P. J.
BAKER, J.
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