P. v. McQuary

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Filed 11/20/17 P. v. McQuary CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
CHRISTOPHER ALLEN MCQUARY,
Defendant and Appellant.
E067215
(Super.Ct.No. SWF006085)
O P I N I O N
APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge.
Affirmed.
Andrea S. Bitar, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, and Eric A. Swenson and Jennifer
B. Truong, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant and appellant, Christopher Allen McQuary, filed a petition pursuant to
Penal Code section 1170.18,1 which the court denied. On appeal, defendant contends the
court erred in denying his petition. We affirm.
I. PROCEDURAL HISTORY
On October 30, 2003, the People charged defendant by felony complaint with
check forgery in the amount of $1,476.58 (count 1; § 470, subd. (d)) and burglary (count
2; § 459). The People additionally alleged defendant had suffered a prior prison term.
(§ 667.5, subd. (b).) On June 7, 2004, defendant pled guilty to the count 1 offense.2 As
provided in the plea agreement, the court sentenced defendant to 16 months of
imprisonment and dismissed the remaining count and allegation.
On May 18, 2016, defendant filed a petition for reduction of the felony forgery
offense to a misdemeanor. Defendant checked a box on the section 1170.18 form
reflecting that he believed “the value of the check or property [did] not exceed $950.”
The People asserted in their response dated June 2, 2016, that defendant was not entitled
to a sentence reduction because the alleged value of the check defendant pled guilty to
forging was $1,476.58, as reflected in the complaint. On June 16, 2016, the court denied
the petition, indicating that the amount exceeded $950.
1 All further statutory references are to the Penal Code unless otherwise indicated.
2 Defendant simultaneously pled guilty to burglary in a second case and admitted
a violation of probation in a third case.

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II. DISCUSSION
Defendant contends the court erred in determining the value of the check was
more than $950 because the value of a check cannot be determined by its face value
alone. Defendant maintains that by compelling him to bear the burden of proving the
value of the check was $950 or less, he was deprived of due process. Defendant further
argues that the rule of lenity should have been applied in the instant case. Thus,
defendant asserts that the matter must be reversed or remanded for an evidentiary
hearing. We disagree.
“‘On November 4, 2014, the voters enacted Proposition 47, “the Safe
Neighborhoods and Schools Act” (hereafter Proposition 47), which went into effect the
next day. [Citation.]’ [Citation.] Section 1170.18 ‘was enacted as part of Proposition
47.’ [Citation.]” (T.W. v. Superior Court (2015) 236 Cal.App.4th 646, 649, fn. 2.)
Section 1170.18, subdivision (f), provides a mechanism by which a person who has
completed his sentence for a felony offense may petition for reclassification of the
offense as a misdemeanor in accordance with the offense statutes as added or amended by
Proposition 47.
The petitioner bears the burden of proof to show eligibility for reclassification
under section 1170.18. (People v. Sherow (2015) 239 Cal.App.4th 875, 880; accord,
People v. Rivas-Colon (2015) 241 Cal.App.4th 444, 449.) This includes, in cases of

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forgery, that the value of the forged item did not exceed $950. (People v. Salmorin
(2016) 1 Cal.App.5th 738, 745 [“[F]or purposes of resentencing under Proposition 47, the
value of a forged check is the face value of the check.”]; accord, People v. Gonzales
(2016) 6 Cal.App.5th 1067, 1071, review granted Feb. 15, 2017, S240044 [blank checks
do not have any value]; accord, People v. Franco (2016) 245 Cal.App.4th 679, review
granted June 15, 2016, S233973 [whether a forged check has sufficient “value” for felony
sentencing is determined based on the check’s face value];3 cf. People v. Lowery (2017) 8
Cal.App.5th 533, review granted Apr. 19, 2017, S240615 [value of forged check is not
necessarily its face value, but must include a determination of its fair market value, i.e.,
the likelihood it would be cashed]; see People v. Romanowski (2017) 2 Cal.5th 903, 906,
915, 917 [value of stolen access cards is determined by reasonable and fair market value
of cards on black market].)
Here, defendant failed to meet his burden of proving that the value of the check he
pled guilty to forging was $950 or less. Indeed, defendant pled guilty to forging a check
valued at $1,476.58, which rendered him categorically ineligible for reduction of his
sentence pursuant to section 1170.18. Even if we assume for the sake of argument that
3 The issue currently before the California Supreme Court, as reflected on the
docket in Franco, is as follows: “For the purpose of the distinction between felony and
misdemeanor forgery, is the value of an uncashed forged check the face value (or stated
value) of the check or only the intrinsic value of the paper it is printed on?”
<http://appellatecases.courtinfo.ca.gov/search/case/mainCaseScreen.cfm?dist=0&doc_id
=2139221&doc_no=S233973>(as of Nov. 20, 2017).

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defendant merely pled guilty to forging a check of indeterminate value, defendant still
failed to prove that it was not worth more than $950. Requiring that defendant prove the
value of the check he was convicted of forging does not improperly shift the burden of
proof to defendant or deny him due process; this is because the People already met their
burden when defendant pled guilty. It is defendant who is requesting relief here and who,
thus, properly bears the burden of proof.
Moreover, even assuming arguendo that the People bore the burden of proving the
value of the check was not more than $950, several courts, as cited above, have already
determined that the value of a forged check is its face value. Here, the face value of the
check, according to the complaint, was $1,476.58. Furthermore, defendant’s reliance on
the rule of lenity does not convince us to alter our conclusion. “‘The rule [of lenity]
applies only if the court can do no more than guess what the legislative body intended;
there must be an egregious ambiguity and uncertainty to justify invoking the rule.’
[Citation.]” (People v. Avery (2002) 27 Cal.4th 49, 58.) We find no ambiguity in the
language of section 1170.18 with respect to who carries the burden of proof or how the
value of a forged instrument may be determined. Thus, the court properly denied
defendant’s petition.

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III. DISPOSITION
The judgment is affirmed without prejudice to subsequent consideration of a
properly filed petition.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J.
We concur:
RAMIREZ
P. J.
MILLER
J.

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