People v. Aguirre

Filed 3/16/18
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
A148959
v.
BEATRICE AGUIRRE, (Solano County
Super. Ct. No. FCR315762)
Defendant and Appellant.
I. INTRODUCTION
Defendant Beatrice Aguirre was detained by store security personnel after
attempting to pay for purchases with a suspected counterfeit $100 bill. She was placed
under arrest by a responding police officer, who, on conducting a search of defendant’s
purse incident to her arrest, found $1,130 in counterfeit $100, $20 and $5 bills, as well as
40 “washed out” $1 bills the officer believed were on their way to becoming counterfeit
$100 bills. Defendant was charged with several felonies, including one count of forgery
in violation of Penal Code section 476. She subsequently pleaded no contest to the
forgery charge. The following year, defendant sought to recall her sentence under
Proposition 47 (Cal. Const., art. II, § 10, subd. (a); Pen. Code, § 1170.18) for
resentencing as a misdemeanor. The trial court denied her petition on the ground the
value of the counterfeit currency exceeded $950.
Defendant’s principal argument on appeal is that the trial court erred in totaling
the value of the counterfeit currency she possessed and should have, instead, followed
cases holding the face amounts of forged checks cannot be aggregated for purposes of
Proposition 47. We conclude the forged check cases are inapplicable and the total
*
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of parts III.B and III.C.
1
amount of counterfeit currency possessed by a defendant at a given time properly
determines whether the crime of possessing counterfeit currency remains a “wobbler” or
must be charged and sentenced as a misdemeanor. Indeed, as we explain, were that not
the case, there could never be a felony conviction for possession of counterfeit currency,
even for a suitcase of bogus bills, because the largest denomination the United States
Federal Reserve prints in paper currency is $100. We discern no intent on the part of the
proponents of Proposition 47 or the electorate to entirely eliminate felony convictions for
possession of counterfeit currency. We therefore affirm the denial of defendant’s petition
for resentencing. We also affirm the trial court’s refusal to split her sentence between
mandatory supervision and county jail, but agree the court erred in imposing a parole
revocation restitution fee.
II. BACKGROUND
In the summer of 2015, police officers responded to a report of someone trying to
make a purchase using counterfeit currency. When officers arrived on the scene,
defendant told them she was unaware the $100 bill she had tried to use was counterfeit.
However, the store clerk alerted the officers that defendant had several other $100 bills in
her purse. Defendant, who was on probation at the time, refused to allow the officers to
search her purse, and they subsequently arrested her. Defendant then admitted she
possessed both drugs and additional counterfeit bills, and upon conducting a search of her
purse, the officers found an additional $1,130 in counterfeit $5, $20 and $100 bills, as
well as 40 “washed out” $1 bills the officers believed were in the “stage of production” of
becoming counterfeit $100 bills, along with 4.19 grams of methamphetamine and a glass
pipe.
Defendant was charged with felony forgery (Pen. Code, § 4761—count 1), one
count of misdemeanor possession of methamphetamine (Health & Saf. Code, § 11377,
subd. (a)—count 2) and one count of second degree commercial burglary (§ 459—count
1
All further statutory references are to the Penal Code unless otherwise indicated.
2
3). It was further alleged as to count 1 that defendant had served two prior prison terms.
(§ 667.5, subd. (b).)
Defendant eventually pleaded no contest to felony forgery (§ 476).2 The district
attorney agreed to dismiss the remaining counts and priors, and that defendant would be
allowed to withdraw her plea if she was found ineligible for probation. When defendant
failed to appear for sentencing, the trial court issued a bench warrant, and she was
subsequently apprehended.
Defendant’s criminal history dated back to 1984, and she had never successfully
completed a grant of probation. The probation department initially recommended a split
sentence, i.e., defendant would serve one year of a three-year sentence in county jail and
the rest on mandatory supervision. However, probation thereafter reported defendant had
sustained two new criminal arrests, both for forgery offenses. In light of defendant’s
failure to appear for sentencing and her subsequent criminal conduct the probation
department dropped its split sentence recommendation, as it “no longer appears
appropriate.” Instead, the department recommended denial of probation and “imposition
of the full incarceration period of three years.”
The trial court imposed a lesser sentence than that recommended by probation—
the midterm of two years, as well as various fees, including a $300 section 1202.45
parole revocation restitution fee. The trial court stated “It’s apparent to me from
[defendant’s] behavior as well as while she was pending judgment and sentence that she
is not a good candidate for probation. [¶] For those same reasons I’m providing—a split
sentence would not be appropriate in this case because of the time chasing her down and
trying to offer her services, she has received a ton of services. [¶] At this point in time,
the ultimate service provider would be the jail which has more programs in it including
2
Section 476 provides: “Every person who makes, passes, utters, or publishes,
with intent to defraud any other person, or who, with the like intent, attempts to pass,
utter, or publish, or who has in his or her possession, with like intent to utter, pass, or
publish, any fictitious or altered bill, note, or check, purporting to be the bill, note, or
check, or other instrument in writing for the payment of money or property of any real or
fictitious financial institution as defined in Section 186.9 is guilty of forgery.”
3
the WRAP program and the Anka program. I hope [defendant] avails herself of the
opportunity. . . .”
Defendant subsequently filed a petition for resentencing pursuant to Proposition
47, which the trial court denied “based upon the number of counterfeit bills she was in
possession [of] at the time” of the offense.
III. DISCUSSION
A. Proposition 47
In November 2014, the California electorate passed Proposition 47, the Safe
Neighborhoods and Schools Act. (People v. Page (2017) 3 Cal.5th 1175, 1179.) This
measure “downgraded several crimes from felonies to misdemeanors,” one of its
purposes being “to reduce the number of prisoners serving sentences for nonviolent
crimes, both to save money and to shift prison spending toward more serious offenses.”
(People v. Romanowski (2017) 2 Cal.5th 903, 907.)
“Prior to Proposition 47, all forgery offenses were ‘wobblers,’ meaning they could
be charged and punished either as a felony or a misdemeanor.’ ” (People v. Bloomfield
(2017) 13 Cal.App.5th 647, 651 (Bloomfield); see § 473, subd. (a).)
Proposition 47 amended section 473, the general forgery sentencing statute, so that
it now contains two subdivisions. Subdivision (a) preserves the prior “wobbler” language
and states: “Forgery is punishable by imprisonment in a county jail for not more than one
year, or by imprisonment pursuant to subdivision (h) of Section 1170.” (§ 473, subd.
(a).) Subdivision (b) spells out exceptions to this general proviso and states in relevant
part: “Notwithstanding subdivision (a), 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), shall be punishable by
imprisonment in a county jail for not more than one year, except that such person may
instead be punished pursuant to subdivision (h) of Section 1170 if that person has one or
more prior convictions. . . . This subdivision shall not be applicable to any person who is
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convicted both of forgery and of identity theft, as defined in Section 530.5.” (§ 473,
subd. (b).)
In short, while there are numerous forgery offenses (e.g., §§ 470, subds. (a)–(d),
470a, 470b, 471, 472, 474, 475, subds. (a)–(c), 476), Proposition 47 singled out only
“seven specific instruments for reduced punishment,” and the voters “signaled their intent
not to include all forgery offenses in Proposition 47.” (Bloomfield, supra, 13 Cal.App.5th
at p. 653; see People v. Martinez (2016) 5 Cal.App.5th 234, 241–243.)
Since the passage of Proposition 47, three published cases have dealt with issues
concerning the possession of counterfeit currency. Two have addressed whether
counterfeit paper currency is a “bank bill” for purposes of Proposition 47 and thus among
the enumerated instruments now potentially excepted from “wobbler” status. (People v.
Mutter (2016) 1 Cal.App.5th 429, 434–436 (Mutter); People v. Maynarich (2016)
248 Cal.App.4th 77, 80–81 (Maynarich).) Both answered this question in the
affirmative. (Mutter, at p. 436 [“ ‘bank bill’ refers to the modern definition, i.e.,
currency”]; Maynarich, at p. 80 [“United States currency, issued by the Federal Reserve
Bank, qualifies as a bank bill or note.”].) The third case considered whether value can be
attributed to counterfeiting materials, such as security strips, Benjamin Franklin faces,
and blank money paper, in order to disqualify a defendant from eligibility for
resentencing as a misdemeanor. (People v. Rendon (2016) 5 Cal.App.5th 422, 424–425
(Rendon).) The court answered this question in the negative. (Id. at pp. 425–427.)
None of these cases expressly addressed how Proposition 47’s $950 benchmark
should be determined in a possession of counterfeit currency case. They impliedly did
so, however, in concluding this bar was not exceeded and the defendants were eligible for
resentencing. In Mutter, the defendant admitted at the plea hearing “he had ‘some
counterfeit bills and tried to pass them.’ ” (Mutter, supra, 1 Cal.App.5th at p. 432.) The
plea form did not “include the amount of the counterfeit bills.” (Ibid.) However, at the
resentencing hearing, the prosecutor had affirmatively agreed “the value of the
counterfeit bills was, at most, $700.” (Id. at p. 436.) The appellate court thus found “the
value element [required for Proposition 47 resentencing] has been satisfied.” (Ibid.) In
5
Maynarich, it was undisputed probation officers found the defendant in possession of
three counterfeit $50 bills. (Maynarich, supra, 248 Cal.App.4th at p. 79.) Accordingly,
there was “no issue as to whether the value of the bank bills he possessed exceeded
$950.” (Id. at p. 81.) In Rendon, “the only fictitious or altered bills or notes defendant
possessed that had any discernable value were the two $100 bills and the three $20 bills.”
(Rendon, supra, 5 Cal.App.5th at p. 426.) The prosecution could not, said the court, point
to the counterfeiting materials the defendant also had in her possession to boost the value
of the crime over the $950 benchmark. (Id. at pp. 426–427.) Thus, the defendant was
“correct that the evidence here showed that the value of the altered or fictitious bills she
possessed did not exceed $950. (Id. at p. 427; cf. People v. Gonzales (2016)
6 Cal.App.5th 1067, 1070, 1072 [face values of forged checks underlying multiple counts
could not be aggregated with the counterfeit bills totaling only $650 underlying a
separate count], review granted on another ground Feb. 15, 2017, S240044.)
Mutter, Maynarich and Rendon, thus imply that, insofar as possession of
counterfeit currency is concerned, whether the crime remains a wobbler, or must be
charged and sentenced as a misdemeanor, is determined by the total value of the
counterfeit currency possessed by the defendant. Indeed, defendant has not directed our
attention to a single possession of counterfeit currency case that suggests that whether the
offense must be charged and sentenced as a misdemeanor under Proposition 47 turns on
the individual denominations of the counterfeit bills, rather than the total value of the
bogus currency on which the charge is based.
Moreover, if the $950 benchmark for possession of counterfeit currency is
determined by the single highest denomination bill found in a defendant’s possession,
then Proposition 47 will have effectively eliminated the crime of felony possession of
counterfeit currency, as the United States Treasury does not produce paper currency in
any denomination higher than $100.3 Thus, the chances of anyone possessing a
3
We grant the Attorney General’s request for judicial notice of the currency
denominations produced by the United States Federal Reserve. (Evid. Code, § 452,
6
counterfeit bill with a greater face value are virtually nonexistent, and even if the
defendant had a briefcase with $50,000 in counterfeit bills, the possessory crime would
have to be charged and sentenced as a misdemeanor. We discern nothing in Proposition
47 or its legislative history (consisting of the materials sent to the voters) that suggests
the proponents of the measure and the electorate intended to eliminate felony possession
of counterfeit currency and to treat a mule in a big time counterfeiting operation the same
as a petty criminal with a few counterfeit bills. (See Bloomfield, supra, 13 Cal.App.5th at
p. 654 [“In each instance where the ballot materials mention forgery offenses, they
specifically refer to check forgery.”].) Such a result would also be at odds with
Proposition 47’s treatment of those forging checks. A defendant forging a $50,000
check, of course, can be charged with a felony and sentenced accordingly. It makes no
sense that a defendant carrying $50,000 in counterfeit currency could be charged only
with a misdemeanor because the highest denomination of the bills in his bag was $100.
We will not read Proposition 47 in a manner that is at odds with its apparent purposes and
leads to an absurd result. (See People v. Moore (2004) 118 Cal.App.4th 74, 77, 81.)
Defendant places reliance on several cases dealing with forged checks and holding
whether a defendant qualifies for resentencing under Proposition 47 is determined by the
face value of each individual check and not their aggregate value. (People v. Salmorin
(2016) 1 Cal.App.5th 738, 745–754 (Salmorin); People v. Hoffman (2015)
241 Cal.App.4th 1304, 1310–1311 (Hoffman).) In Salmorin, the defendant and a cohort
came into possession of a number of stolen checks and, when arrested, had five of the
checks in their possession—one was still blank, one was made out to an assumed name
used by the defendant, two were payable to his cohort, and one was payable to another
individual. The prosecutor’s theory was that the two had committed the forgeries as a
joint criminal enterprise and charged the defendant with one count of forgery under
section 470, subdivision (d). (Salmorin, at p. 742.) In Hoffman, the defendant took a
book of checks belonging to her parents and over three months, forged her mother’s
subds. (c), (h).) The federal government stopped producing paper currency in any
denomination over $100 more than 70 years ago.
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signature on 18 of the checks. She eventually pled guilty to seven of the 18 counts of
felony forgery under section 470, subdivision (d) based on the checks. (Hoffman, at
p. 1307.) Salmorin and Hoffman, thus, involved multiple separate acts of forging
separate documents, and the defendants in both cases were convicted of violating section
470, subdivision (d).
Here, in contrast, the defendant committed a singular act—possessing $1,130 in
counterfeit currency—and was convicted of violating section 476. Accordingly, much of
the discussion in Salmorin that “ ‘[n]ormally, separate acts . . . are separate offenses’ ”
(Salmorin, supra, 1 Cal.App.5th at p. 748–749, quoting People v. Neder (1971)
16 Cal.App.3d 846, 851 (Neder)) and that the courts have generally followed the “ ‘rule
of one count of forgery per instrument’ ” because it “ ‘is in accord with the essence of
forgery, which is making or passing a false document’ ” (Salmarin, at p. 749, quoting
People v. Kenefick (2009) 170 Cal.App.4th 114, 123), does not pertain to the crime at
issue here—one act of possessing multiple counterfeit bills.
Indeed, Neder, on which Salmorin grounds its discussion that multiple acts of
forgery are separate crimes, involved forging a credit card holder’s signature on three
separate sales slips for the purchase of different goods from three different sales clerks.
(Neder, supra, 16 Cal.App.3d at p. 850.) The Neder court held the defendant was
properly convicted of three counts of forgery, rejecting his assertion he could only be
convicted of a single count because each of the three acts of forging the card holder’s
signature was part of a single plan. (Id. at p. 852.) “The real essence of the crime of
forgery,” said the court, “has to do with the means, i.e., the act of signing the name of
another with intent to defraud and without authority, or of falsely making a document, or
of uttering the document with intent to defraud.” (Id. at pp. 852–853.) And for that
reason, “designation of a series of forgeries as one forgery would be a confusing fiction.”
(Id. at p. 853.)
However, the acts Neder identified are not the essence of the crime of possessing
counterfeit currency. And designating the possession of multiple counterfeit bills at one
time as a single crime is not in any way a “confusing fiction.”
8
In fact, defendant has not called to our attention any authority suggesting she
could properly have been charged and convicted of as many counts of violating section
476 as she had counterfeit bills in her possession, and the authority appears to be to the
contrary. (See People v. Morelos (2008) 168 Cal.App.4th 758, 764 [reversing multiple
counts of possessing blank forged checks; defendants could be convicted of only one
count as to each victim]; People v. Carter (1977) 75 Cal.App.3d 865, 868, 870–871
[simultaneous possession of multiple forged checks did not constitute multiple crimes],
superseded by statute on another ground as stated in People v. Todd (1994)
22 Cal.App.4th 82, 86; People v. Bowie (1977) 72 Cal.App.3d 143, 156–157 (Bowie)
[where the defendant “possessed all 11 [blank] checks at the same time,” he “was guilty
of only 1 [forgery] violation” for possessing a blank check with the intent to complete
and pass it, and distinguishing Neder because it was not “based on possession” and
involved “three separate forgeries”].)
Given our view that the crime of possessing counterfeit currency at issue here is
fundamentally different from the multiple check forging crimes at issue in Salmorin and
Hoffman, we need not and do not address these cases further, and we affirm the trial
court’s denial of defendant’s petition for resentencing under Proposition 47.
B. Split Sentence
Defendant alternatively contends the trial court abused its discretion in refusing to
split her two-year sentence between county jail and mandatory supervision.
Defendant has forfeited this contention by having failed to assert it below. (See
People v. Scott (1994) 9 Cal.4th 331, 356.)
But even assuming defendant preserved the issue, her assertion is meritless. In the
Criminal Justice Realignment Act of 2011, the Legislature “significantly change[d] the
punishment for some felony convictions.” (People v. Scott (2014) 58 Cal.4th 1415,
1418.) Under the Act, “qualified persons convicted of nonserious and nonviolent felonies
are sentenced to county jail instead of state prison. [Citation.] Trial courts have
discretion to commit the defendant to county jail for a full term in custody, or to impose a
hybrid or split sentence consisting of county jail followed by a period of mandatory
9
supervision.” (People v. Catalan (2014) 228 Cal.App.4th 173, 178; see § 1170, subd.
(h)(5)(B).)
Section 1170, subdivision (h)(5)(A) establishes a statutory presumption in favor of
imposition of a mandatory supervision period. California Rules of Court, rule 4.415
establishes a nonexhaustive list of criteria the court “may consider” in determining when
mandatory supervision is not appropriate in “the interests of justice,” which includes:
“(1) Consideration of the balance of custody exposure available after imposition of
presentence custody credits; (2)The defendant’s present status on probation, mandatory
supervision, postrelease community supervision, or parole; (3) Specific factors related to
the defendant that indicate a lack of need for treatment or supervision upon release from
custody; and (4) Whether the nature, seriousness, or circumstances of the case or the
defendant’s past performance on supervision substantially outweigh the benefits of
supervision in promoting public safety and the defendant’s successful reentry into the
community upon release from custody.” (Cal. Rules of Court, rules 4.415(b)(1)–(4),
4.408 [“The listing of factors in these rules for making discretionary sentencing decisions
is not exhaustive and does not prohibit a trial judge from using additional criteria
reasonably related to the decision being made. Any such additional criteria must be stated
on the record by the sentencing judge.”].)
Defendant contends the trial court “misapplied the criteria set forth in rule
4.415(b),” and specifically that the court did not weigh the “specific facts about the
defendant” against the benefits of mandatory supervision which defendant claims
includes “facilitating a defendant’s successful reentry into the community.”
However, the record reflects otherwise. The court noted defendant’s past history
of services, her failure on probation, and her recent refusal of residential drug treatment.
It further pointed out that “on the other side . . . jail has some wonderful programs,”
including WRAP and Anka, and that she “hope[d defendant] avails herself of the
opportunity.” The criteria set forth in California Rules of Court, rule 4.415 are not
exhaustive, and the court additionally noted defendant’s past behavior on probation and
her termination from drug court, her failure to appear for sentencing, and her new arrests.
10
In short, the trial court acted well within its discretion in imposing a full jail term and
refusing to split defendant’s sentence.4
There is also no merit to defendant’s claim that her attorney rendered ineffective
assistance in failing to urge the court to impose a split sentence, as initially recommended
by the Probation Department. To establish a claim of ineffective assistance of counsel,
“the defendant must first show counsel’s performance was deficient, in that it fell below
an objective standard of reasonableness under prevailing professional norms. Second, the
defendant must show resulting prejudice. . . . When examining an ineffective assistance
claim, a reviewing court defers to counsel’s reasonable tactical decisions, and there is a
presumption counsel acted within the wide range of reasonable professional assistance.”
(People v. Mai (2013) 57 Cal.4th 986, 1009.) “ ‘[T]he appellate court must look to see if
the record contains any explanation for the challenged aspects of representation. If the
record sheds no light on why counsel acted or failed to act in the manner challenged,
“unless counsel was asked for an explanation and failed to provide one, or unless there
simply could be no satisfactory explanation” [citation], the contention must be
rejected.’ ” (People v. Kelly (1992) 1 Cal.4th 495, 520.) We will reverse a trial court
decision on the grounds of ineffective assistance of counsel “ ‘only if the record on
appeal affirmatively discloses that counsel had no rational tactical purpose for his [or her]
act or omission.’ ” (People v. Zapien (1993) 4 Cal.4th 929, 980.) As defendant is raising
the claim of ineffective assistance of counsel on direct appeal and not by way of writ, we
must reject the claim unless there simply could be no satisfactory explanation for trial
counsel’s failure to challenge the probations conditions in question. (People v. Kelly, at
p. 520.)
While defendant asserts “there could be no satisfactory explanation for [counsel’s]
failure to object,” the record shows otherwise. Defense counsel argued against the
probation department’s updated recommendation of a three-year, upper term and urged
4
Given our determination that the trial court did not abuse its discretion in
refusing to split defendant’s sentence, we need not address the Attorney General’s
assertion of harmless error.
11
the court to impose the lower term stating, “I think everything here points to the low
term.” When it became clear the court was not going to impose the low term, but was,
nevertheless going to show some leniency by imposing the midterm of two years, counsel
could have decided that she had obtained as favorable a result as she could. Indeed, the
record reflects counsel had no hope of obtaining probation for her client, given the
court’s statement that “I mean there is not anything more I can do for her on probation.
She doesn’t want to work it. She didn’t do the things she was asked to do. We are
done.” Thus, there is no merit to defendant’s claim of ineffective assistance of counsel.
C. Section 1202.45 Fee
The Attorney General concedes the court erroneously imposed a $300 fine under
section 1202.45. We agree and shall order the fee stricken. (See People v. Butler (2016)
243 Cal.App.4th 1346, 1350–1352 [striking section 1202.45 fine where “trial court never
suspended any portion of the two-year county jail term and no period of mandatory
supervision was imposed”].)
IV. DISPOSITION
The section 1202.45 parole revocation restitution fine is stricken, and the trial
court is directed to prepare an amended abstract of judgment reflecting this and to
promptly forward the amended abstract to the Department of Corrections and
Rehabilitation. The judgment is otherwise affirmed.
12
_________________________
Banke, J.
We concur:
_________________________
Humes, P.J.
_________________________
Margulies, J.
A148959, People v. Aguirre
13
Trial Court: Solano County Superior Court
Trial Judge: Hon. Wendy Getty
Counsel:
Xavier Becerra, Attorney General, Gerald A. Engler and Jeffrey M. Laurence, Assistant
Attorneys General, Eric D. Share and Huy T. Luong, Deputy Attorneys for Plaintiff and
Respondent.
Tiffany J. Gates, under appointment by the Court of Appeal, for Defendant and
Appellant.
14