Filed 6/1/18 P. v. Maldonado CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

v.

JOSE MALDONADO,

Defendant and Appellant.
D072441



(Super. Ct. No. RIF1204393)

APPEAL from a judgment of the Superior Court of Riverside County, David A. Gunn, Judge. Remanded with directions.
Reed Webb, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, Charles C. Ragland, Scott C. Taylor and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.


Jose Maldonado appeals the trial court's orders on his petition to reclassify all of his felony convictions as misdemeanors under Proposition 47 (the Safe Neighborhoods and Schools Act, Pen. Code, § 1170.18). He contends: (1) the court erroneously declined to reduce count 2 to a misdemeanor based on its improperly combining the value of stolen properties involved in counts 1 and 2; (2) a remand is required for the court to conduct an evidentiary hearing regarding the value of the fraudulent instrument involved in counts 8 through 11; (3) the court erroneously declined to strike an on-bail enhancement under section 12201.1; (4) the court erroneously declined to strike a prior prison enhancement; and (5) the court miscalculated his custody credits under section 4019. We will remand the matter to the trial court with directions set forth below.
FACTUAL AND PROCEDURAL BACKGROUND
In 2013, a jury convicted Maldonado of receiving stolen property (§ 496, subd. (a); counts 1, 2, 4, 7, 9), commercial burglary (§ 459; counts 3, 8), possessing or receiving a fictitious bill (§ 476; counts 5, 11), unlawful possession of a forged paper with intent to defraud (§ 475, subd. (c); counts 6, 10), and resisting or delaying a peace officer (§ 148, subd. (a); count 12). The jury found true allegations that Maldonado committed the offenses while out on bail. (§ 12022.1.) The court found true allegations that Maldonado had three prior strike convictions and three prior prison terms within the meaning of the "Three Strikes" law. (§ 667.5, subd. (b).) The court granted the People's motion to dismiss a prior strike and sentenced Maldonado to 15 years in prison.
This court affirmed the judgment in an unpublished opinion. We declined to address Maldonado's claim regarding the applicability of Proposition 47, concluding his remedy was to petition to recall his sentence in the superior court. (People v. Maldonado (Aug. 25, 2015, D067477) [nonpub. opn.].)
In October 2016, Maldonado filed a Proposition 47 petition. In February 2017, the court granted the petition as to counts 1, 4, 5, 6, and 7. In denying the petition as to counts 8 through 11, the court ruled that Maldonado had committed a felony by trying to pass a check valued at over $4,000. The court did not rule on counts 2 and 3 because the People requested time to investigate the underlying facts.
At a March 2017 hearing before a different judge, the parties argued regarding the value of the property at stake in count 2, which involves the same operative facts as count 1. The prosecutor stated that in September 2012, police had stopped Maldonado, who was carrying some stolen mail that included checks. Police searched Maldonado incident to the arrest and found in his wallet two money orders valued at $350. Those money orders supported the count 1 conviction. The prosecutor added that the police report did not specify the value of the stolen checks supporting the count 2 conviction. However, police later discovered that the checks were valued at just over $700. The court combined the money orders from count 1 and the checks from count 2 and the value exceeded $950. The court therefore declined to reduce count 2 to a misdemeanor.
In June 2017, the court declined to strike both the section 12022.1 on-bail enhancement and the section 667.5, subdivision (b) prior prison term enhancement. The court resentenced Maldonado to 12 years 4 months as follows: it selected count 2 as the principal term and imposed the upper term of three years, doubled because of the strike prior; 16 months on count 8; one year each for the three strike priors; and two years for the on-bail enhancement. The court imposed 364 days in county jail on the misdemeanor counts and awarded Maldonado credit for time served.
DISCUSSION
I.
Aggregation of the Values of Financial Instruments
The People concede and we agree that Maldonado's count 2 conviction should be reduced to a misdemeanor because the trial court improperly combined the value of the stolen property in counts 1 and 2 to reach a value exceeding $950.
Proposition 47 added section 473, subdivision (b), which provides that "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 . . . [does not exceed $950, shall be punishable as a misdemeanor]." People v. Hoffman (2015) 241 Cal.App.4th 1304 is instructive; there, the defendant was charged with 18 separate counts of felony forgery, and pleaded guilty to seven counts for forging seven of her parents' checks (§ 470, subd. (d)). Each count involved a separate check. The court held that the check values for each separate count could not be aggregated in determining whether their value exceeded $950. (Hoffman, at p. 1310.) Accordingly, the court in Hoffman held the trial court erred by denying the defendant's Proposition 47 resentencing petition on the ground the property value exceeded $950 based on the aggregate value of the forged checks. Applying that same analysis, we conclude the court here erroneously aggregated the value of the instruments in counts 1 and 2. The checks alone were valued at just over $700. Accordingly, the court on remand should reduce the count 2 conviction to a misdemeanor.
II.
Value of the Forged Check
Maldonado contends we should remand the matter for the trial court to conduct an evidentiary hearing regarding the value of the forged check as to counts 8 through 11. He claims the check was too poorly forged to be worth its face value of $4,743.36.
In People v. Romanowski (2017) 2 Cal.5th 903, the California Supreme Court addressed whether Proposition 47 applied to a violation of section 484e, subdivision (d), the theft of access card account information including credit and debit cards. The court first determined that a violation of section 484e, subdivision (d) was a theft crime. (Romanowski, at pp. 908-910.) The court then addressed how courts should assess the value of the stolen access card information. (Id. at p. 914.) It looked to the definition of theft under section 484, subdivision (a) which states the test is the " 'reasonable and fair market value.' " (Romanowski, at pp. 914-915.) This included the black-market value of the card information. The court concluded, "The ultimate burden of proving section 1170.18 eligibility lies with the petitioner." (Id. at pp. 915-916.)
Here, the People argue that the check's face value of $4,743.36 was dispositive because the check was legitimate and could be cashed for that amount. Maldonado's burden was to present evidence that the check could be valued at less than $950. We conclude that Maldonado did not meet his burden; accordingly, the trial court did not err in finding that he failed to make a prima facie case of eligibility for redesignation of his felony forgery conviction as a misdemeanor. (Romanowski, supra, 2 Cal.5th at p. 916 [evidentiary hearing required only if the defendant establishes "a reasonable likelihood" that the defendant may be entitled to relief].) We point out that the appellate record is lacking a copy of the forged check for our evaluation of this matter. However, our opinion will not preclude Maldonado from obtaining relief if he is able to demonstrate eligibility for relief in a new, properly supported petition. (People v. Johnson (2016) 1 Cal.App.5th 953, 970 [petitioner seeking recall of sentence under Proposition 47 may present probative evidence from any source].)
III.
On-Bail Enhancement
Maldonado contends the section 12022.1 on-bail enhancement must be stricken because his felony conviction was reduced to a misdemeanor under Proposition 47. This issue is currently pending in the California Supreme Court. (People v. Buycks (2015) 241 Cal.App.4th 519, review granted Jan. 20, 2016, S231765 [§ 12022.1 bail enhancement when underlying charge reduced to a misdemeanor].)
The phrase, " 'shall be considered a misdemeanor for all purposes,' " in section 1170.18, subdivision (k) does not apply retroactively. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1100.) For purposes of the on-bail enhancement, we consider the nature of the offense at the time it was charged. (Id. at p. 1101; see also In re C.H. (2016) 2 Cal.App.5th 1139, 1151, review granted Nov. 16, 2016, S237762.) Because the count was charged as a felony, the on-bail enhancement applies; therefore, the court was not authorized to strike this enhancement.
IV.
Prior Prison Term Enhancement
Maldonado contends the section 667.5 subdivision (b) enhancement for a consecutive one-year term for a prior prison commitment should be stricken because the underlying felony convictions were reduced to misdemeanors.
The issue whether Proposition 47 invalidates a prior prison term enhancement when the prison prior has been reduced to a misdemeanor is pending before the California Supreme Court. Based on the language of the voter initiative that did not specifically mandate retroactive application, the appellate courts generally have declined to apply Proposition 47 retroactively to a prior prison term enhancement for an offense reduced to a misdemeanor after the enhancement is imposed, especially where an enhancement is challenged after the judgment has become final. (See, e.g., In re Diaz (2017) 8 Cal.App.5th 812, 817-818, review granted May 10, 2017, S240888; People v. Johnson (2017) 8 Cal.App.5th 111, 115, review granted Apr. 12, 2017, S240509; People v. Jones (2016) 1 Cal.App.5th 221, 228-229, review granted Sept. 14, 2016, S235901; People v. Valenzuela (2016) 244 Cal.App.4th 692, review granted March 30, 2016, S232900; People v. Carrea (2016) 244 Cal.App.4th 966, review granted April 27, 2016, S233011; People v. Williams (2016) 245 Cal.App.4th 458, review granted May 11, 2016, S233539; People v. Ruff (2016) 244 Cal.App.4th 935, review granted May 11, 2016, S233201.) We adopt this position and conclude the court did not err by declining to strike this enhancement upon reducing the felonies to misdemeanors.
V.
Custody Credits
The People concede and we agree the court erred in calculating Maldonado's custody credits, specifically by sentencing him under section 2933.1 instead of section 4019.
In September 2013, when the court first sentenced Maldonado, it erroneously relied on section 2933.1 in awarding him a total of 266 actual days and 54 conduct days. In April 2014, the court correctly recalculated Maldonado's presentence credits under section 4019, awarding him 266 actual days and 266 conduct days. However, in June 2017, following the resentencing proceedings, the court again erroneously relied on section 2933.1 in awarding Maldonado custody credits.
"A defendant in a felony or misdemeanor case may . . . earn additional presentence credits against his or her sentence, called 'conduct credits,' for performing assigned labor (see § 4019, subd. (b)), and for complying with applicable rules and regulations (§ 4019, subd. (c))." (In re Mallard (2017) 7 Cal.App.5th 1220, 1225.) However, a person convicted of a violent felony for purposes of section 667.5, subdivision (c) is limited to accruing conduct credit equivalent of no more than 15 percent of his actual presentence confinement. (§ 2933.1, subds. (a), (c).)
In sentencing Maldonado under section 2933.1, the court erred because he was not convicted of violent felonies listed in section 667.5, subdivision (c). We accordingly direct the trial court on remand to recalculate Maldonado's conduct credits under section 4019.
DISPOSITION
The matter is remanded and the trial court directed to reduce the count 2 conviction to a misdemeanor and recalculate Maldonado's custody credits consistent with this opinion. As to the count 8 through 11 convictions, we affirm the order denying Maldonado's section 1170.18 petition without prejudice to later consideration of a properly supported petition offering evidence of his eligibility for relief. We affirm the judgment in all other respects. The court shall amend the abstract of judgment and forward a certified copy of it to the Department of Corrections and Rehabilitation.

O'ROURKE, Acting P. J.

WE CONCUR:



AARON, J.



GUERRERO, J.