P. v. Mountford

Filed 5/28/19 P. v. Mountford CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
DAVID GORDON MOUNTFORD,
Defendant and Appellant.
B287245
(Los Angeles County
Super. Ct. No. GA080859)
APPEAL from an order of the Superior Court of Los
Angeles County, Stanley Blumenfeld, Judge. Affirmed.
Nancy L. Tetreault, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Senior Assistant
Attorney General, Noah P. Hill and Allison H. Chung, Deputy
Attorneys General, for Plaintiff and Respondent.
____________________

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This is defendant David Gordon Mountford’s third appeal
challenging the trial court’s denial of his petitions for
resentencing under Proposition 47 (Pen. Code, § 1170.18).1 In
our opinion addressing the first two appeals (People v. Mountford
(Mar. 28, 2019, B286803, B287202) [nonpub. opn.], petn. for
review pending, petn. filed May 6, 2019 (Mountford I)), we held
that Mountford’s convictions of fraudulent use of personal
identifying information and fraudulent possession of personal
identifying information in violation of section 530.5, subdivisions
(a) and (c)(2), and offering a false or forged instrument in
violation of section 115, subdivision (a), were ineligible for
resentencing under Proposition 47.
In this appeal, Mountford challenges the denial of his
petition as to his February 1, 2011 convictions of fraudulent use
of personal identifying information in violation of section 530.5,
subdivision (a), possession of a forged driver’s license (§ 470b),2
and forgery (§ 470, subd. (a)).
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2 While referred to as possession of a forged driver’s license,
section 470b actually provides: “Every person who displays or
causes or permits to be displayed or has in his or her possession
any driver’s license . . . with the intent that the driver’s license
. . . be used to facilitate the commission of any 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.”

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BACKGROUND
On the evening of February 27, 2009, Mountford and two
women went to the Trans Ocean Volkswagen dealership in
Pasadena. Mountford said he was interested in purchasing three
vehicles. He identified himself as Ernestas Dranseika and used
Dranseika’s federal tax identification number when completing a
credit application. A credit check revealed a fraud alert as to
that number. The sales manager called the police. When the
police arrived, Mountford admitted attempting to purchase the
vehicles with a stolen identity.
The police arrested Mountford. At the police station,
Mountford identified himself as Douglas Korn. The police found
a valid driver’s license bearing the name of Douglas Korn in a Kia
that Mountford said belonged to him. The police booked
Mountford in the name of Douglas Korn. Mountford asked the
police to leave the Kia parked where it was, but the police
impounded it. Mountford signed the vehicle disposition form
with the name Douglas Korn. The police then discovered
Mountford’s identity through his fingerprints.
The police subsequently learned that Mountford had
purchased the Kia through fraudulent means in 2008. A police
officer met with the finance manager of the Glendale Kia
dealership. The finance manager stated that “Douglas Korn” had
purchased the Kia for $9,600 using four prepaid debit cards and a
non-prepaid debit card with Korn’s name on it. The officer went
to the bank where the prepaid debit cards had been purchased
and learned that Mountford had purchased the cards.
The officer attempted to locate Korn. Korn’s parole officer
indicated that Korn had been arrested by the FBI on September

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8, 2008 and had been in federal custody since then. The officer
went back to the Kia dealership. The used car sales manager
identified Mountford from a photographic lineup as the person
who had purchased the Kia using a driver’s license and social
security card in the name of Douglas Korn. The officer later
spoke to Korn, who stated that he did not know Mountford and
had not given Mountford permission to use his name or
identification.
On February 1, 2011, pursuant to a plea agreement,
Mountford pleaded guilty to two counts of identity theft (count 1,
Ernestas Dranseika; count 13, Sherman Carter3), one count of
possession of a forged driver’s license (count 2, Dranseika), and
one count of forgery of a credit application (count 6, Douglas Korn
credit application).
In October 2017, Mountford filed petitions to reduce the
four convictions to misdemeanors under Proposition 47. The
People opposed the petitions on the ground that none of his
convictions was eligible for Proposition 47 relief.
On December 14, 2017, the trial court denied the petitions.
It explained that convictions of identity theft under section 530.5
are ineligible for resentencing under Proposition 47. Mountford’s
forgery convictions were ineligible for resentencing pursuant to
section 473, subdivision (b), because he was also convicted of
identity theft. Mountford timely appealed.
3 There is nothing in the record regarding the factual basis
for this count.

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DISCUSSION
I. Proposition 47
In November 2014, California voters enacted Proposition
47, “The Safe Neighborhoods and Schools Act.” (Cal. Const., art.
II, § 10, subd. (a).) One purpose of Proposition 47 is “ ‘to reduce
the number of nonviolent offenders in state prisons, thereby
saving money and focusing prison on offenders considered more
serious under the terms of the initiative.’ [Citations.]
[Proposition 47] also expressly states an intent to ‘[r]equire
misdemeanors instead of felonies for nonserious, nonviolent
crimes like petty theft and drug possession, unless the defendant
has prior convictions for specified violent or serious crimes.’ ”
(People v. Gonzales (2017) 2 Cal.5th 858, 870.)
Proposition 47 reduced certain theft-related offenses from
felonies or wobblers to misdemeanors, unless the offenses were
committed by certain ineligible offenders. (People v. Rivera
(2015) 233 Cal.App.4th 1085, 1091.) Under Proposition 47, a
defendant may be eligible for misdemeanor resentencing if the
offense would have been a misdemeanor had Proposition 47 been
in effect at the time of the offense, and he or she would have been
guilty of a misdemeanor under Proposition 47.4 (§ 1170.18,
4 Under section 1170.18, subdivision (a), “[a] person who,
on November 5, 2014, was serving a sentence for a conviction . . .
of a felony or felonies who would have been guilty of a
misdemeanor under the act that added this section . . . had this
act been in effect at the time of the offense may petition for a
recall of sentence before the trial court that entered the judgment
of conviction in his or her case to request resentencing in
accordance with Sections 11350, 11357, or 11377 of the Health
and Safety Code, or Section 459.5, 473, 476a, 490.2, 496, or 666 of

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subds. (a) & (f); People v. Gonzales, supra, 2 Cal.5th at pp. 863,
875.) For eligible convictions, resentencing or redesignation
under Proposition 47 is “required unless ‘the court, in its
discretion, determines that resentencing the petitioner [or
reclassifying the conviction as a misdemeanor] would pose an
unreasonable risk of danger to public safety.’ (§ 1170.18,
subd. (b).)” (Gonzales, supra, at p. 863.)
II. Identity Theft Under Section 530.5, Subdivision (a)
Mountford I addressed the question whether convictions
under section 530.5, subdivisions (a) and (c),5 are eligible for
the Penal Code.” Under section 1170.18, subdivision (f), “[a]
person who has completed his or her sentence for a conviction . . .
of a felony or felonies who would have been guilty of a
misdemeanor under this act had this act been in effect at the
time of the offense, may file an application before the trial court
that entered the judgment of conviction in his or her case to have
the felony conviction or convictions designated as misdemeanors.”
5 Under section 530.5, subdivision (a), “[e]very person who
willfully obtains personal identifying information . . . of another
person, and uses that information for any unlawful purpose,
including to obtain, or attempt to obtain, credit, goods, services,
real property, or medical information without the consent of that
person, is guilty of a public offense.” If convicted under this
subdivision, the defendant “shall be punished by a fine, by
imprisonment in a county jail not to exceed one year, or by both a
fine and imprisonment, or by imprisonment pursuant to
subdivision (h) of Section 1170.”
Under section 530.5, subdivision (c)(1), “[e]very person who,
with the intent to defraud, acquires or retains possession of the
personal identifying information . . . of another person is guilty of
a public offense.” If convicted under this subdivision, the

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resentencing under Proposition 47. We noted there was currently
a split of authority in the Courts of Appeal on this question, and
it was now before the Supreme Court. (See People v. Jimenez
(2018) 22 Cal.App.5th 1282, 1291-1292 [conviction for
unauthorized use of personal identifying information was
properly reduced to misdemeanor shoplifting], review granted
July 25, 2018, S249397; People v. Sanders (2018) 22 Cal.App.5th
397 [unauthorized use of personal identifying information is not a
theft offense and should not be considered as petty theft or
reduced to misdemeanor], review granted July 25, 2018,
S248775.) After analyzing the two cases before the Supreme
Court, as well as others, we held that fraudulent use of personal
identifying information and fraudulent possession of personal
identifying information in violation of section 530.5, subdivisions
(a) and (c)(2), were not theft offenses and therefor did not fall
within the purview of Proposition 47.
The Supreme Court has not yet spoken on this issue. In
the absence of any authority to the contrary, for the reasons we
stated in Mountford I, we conclude that Mountford’s two
convictions of fraudulent use of personal identifying information
in violation of section 530.5, subdivision (a), were not eligible for
defendant “shall be punished by a fine, by imprisonment in a
county jail not to exceed one year, or by both a fine and
imprisonment.” Under subdivision (c)(2) of section 530.5, a
person who violates subdivision (c)(1) and “has previously been
convicted of a violation of this section, upon conviction therefor
shall be punished by a fine, by imprisonment in a county jail not
to exceed one year, or by both a fine and imprisonment, or by
imprisonment pursuant to subdivision (h) of Section 1170.”

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resentencing under Proposition 47. The trial court therefore did
not err in denying Mountford’s petitions as to these convictions.
III. Forgery Under Section 470, Subdivision (a)
As stated above, the trial court found that Mountford’s
forgery and possession of a forged driver’s license convictions
were ineligible for resentencing pursuant to section 473,
subdivision (b), because he was also convicted of identity theft.
While the trial court was incorrect, we nonetheless conclude it
did not err in finding the convictions ineligible for resentencing
under Proposition 47.6
Proposition 47 made certain types of forgery eligible for
resentencing as a misdemeanor. Subdivision (b) of section 473
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 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 for an offense specified in clause (iv) of
subparagraph (C) of paragraph (2) of subdivision (e) of Section
667 or for an offense requiring registration pursuant to
subdivision (c) of Section 290. This subdivision shall not be
6 We review the trial court’s ruling, not its reasoning; if the
ruling is correct on any ground, we will affirm. (People v. Cowan
(2010) 50 Cal.4th 401, 473, fn. 25.)

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applicable to any person who is convicted both of forgery and of
identity theft, as defined in Section 530.5.”
The People concede that because Mountford’s forgery and
identity theft convictions arose out of separate transactions,
Mountford’s identity theft convictions do not preclude
resentencing on his forgery conviction. (People v. Gonzales (2018)
6 Cal.5th 44, 46-47.) They argue, however, that Mountford failed
to show that his forgery conviction was eligible for resentencing,
because he failed to show that the amount in question did not
exceed $950. Mountford contends that his statement in his
petition that the amount in question did not exceed $950 met his
burden of proof. The parties’ focus on the value attached to the
forgery misses the mark. It should have been on the nature of
the forged document.
In People v. Martinez (2016) 5 Cal.App.5th 234, the
defendant was convicted of forging a receipt for goods. The court
observed: “The plain language of section 473 is clear and
unambiguous. Under subdivision (b) of section 473, a forgery
conviction is a misdemeanor if the instrument utilized in the
forgery is a check, bond, bank bill, note, cashier’s check, traveler’s
check, or money order with a value of $950 or less. If the forgery
does not involve one of the seven instruments specified in section
473, subdivision (b), it is a wobbler under subdivision (a) of
section 473.” (Id. at p. 241; accord, People v. Aguirre (2018) 21
Cal.App.5th 429, 433; People v. Bloomfield (2017) 13 Cal.App.5th
647, 652-653; see, e.g., People v. Gollardo (2017) 17 Cal.App.5th
547 [forging a prescription for narcotics not included in
Proposition 47].) A receipt for goods was “not one of the seven
instruments specified in section 473, subdivision (b).” (Martinez,
supra, at p. 241.) Therefore, the defendant’s conviction was

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ineligible for resentencing as a misdemeanor under Proposition
47. (Ibid.)
A credit application is not “one of the seven instruments
specified in section 473, subdivision (b).” (People v. Martinez,
supra, 5 Cal.App.5th at p. 241.) Therefore, Mountford’s forgery
conviction was not eligible for resentencing under Proposition 47,
and the trial court did not err in denying his petition as to that
conviction. (Ibid.)
IV. Possession of a Forged Driver’s License Under
Section 470b
As noted in People v. Aguirre, supra, 21 Cal.App.5th at
page 433, “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.’
[Citations.]” A forged driver’s license is not one of the seven
instruments listed in section 473, subdivision (b). Therefore,
Mountford’s conviction of possession of a forged driver’s license in
violation of section 470b was not eligible for resentencing under
Proposition 47. (Aguirre, supra, at p. 433; People v. Bloomfield,
supra, 13 Cal.App.5th at pp. 652-653.) Again, the trial court did
not err in denying Mountford’s petition as to this conviction.

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DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED
JOHNSON, J.
We concur:
ROTHSCHILD, P. J.
WEINGART, J.*
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.

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