P. v. Lupien

Filed 6/29/16 P. v. Lupien CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
PAUL RUSSELL LUPIEN,
Defendant and Appellant.
G051852
(Super. Ct. No. 02NF1132)
O P I N I O N
Appeal from a postjudgment order of the Superior Court of Orange County,
Thomas A. Glazier, Judge. Affirmed.
John L. Staley, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Scott C. Taylor and
Daniel Hilton, Deputy Attorneys General, for Plaintiff and Respondent.

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Appellant Paul Russell Lupien contends the trial court erred in denying his
petition to reduce his felony convictions to misdemeanors pursuant to Proposition 47.
Because appellant’s convictions stemmed from his attempt to pass a forged check that
was made out for over $950 we affirm the court’s ruling.
FACTUAL AND PROCEDURAL BACKGROUND
In 2003, appellant pleaded guilty to felony charges of second degree
commercial burglary, forgery and check fraud. (Pen. Code, §§ 459/460, subd. (b), 470,
subd. (d) & 475, subd. (c).)1 The plea was based on appellant’s admission he entered a
credit union with the intent to commit theft and fraudulently attempted to pass a forged
check. The trial court sentenced him to 16 months in prison consecutive to his sentence
in an unrelated case.
After Proposition 47 was passed in 2014, appellant petitioned the trial court
to reduce all three of his felony convictions to misdemeanors. The prosecution opposed
the petition on the basis that “we have a forged check in the amount of $1,700.”
Appellant did not dispute the amount but maintained he was eligible for Proposition 47
relief because “he did not actually cash and receive money from the check.” The trial
court denied his petition.
DISCUSSION
Arguing the face value of the check he attempted to pass is irrelevant for
purposes of Proposition 47, appellant contends the court erred in denying his petition.
We disagree.
“‘Proposition 47 makes certain drug- and theft-related offenses
misdemeanors, unless the offenses were committed by certain ineligible defendants.
These offenses had previously been designated as either felonies or wobblers (crimes that
1 All further statutory references are to the Penal Code.

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can be punished as either felonies or misdemeanors).’ [Citation.]” (People v. Morales
(June 16, 2016, S228030) __ Cal.4th __, __ [2016 WL 3346571].)
“Proposition 47 also added section 1170.18, concerning persons currently
serving a sentence for a conviction of a crime that the proposition reduced to a
misdemeanor. It permits such a person to ‘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’ specified sections that ‘have been amended or added by this act.’
(§ 1170.18, subd. (a).)” (People v. Morales, supra, __ Cal.4th at p. __.)
As relevant to appellant’s case, Proposition 47 amended Penal Code
sections pertaining to the crimes of forgery and check fraud. (§§ 473, 476a.) In addition,
Proposition 47 created the new crime of shoplifting. (§ 459.5.) Under certain
circumstances, those crimes are now punishable as misdemeanors. So if the conduct
underlying appellant’s convictions qualifies for misdemeanor treatment under these
provisions, he would be eligible for resentencing under Proposition 47.
The subject provisions – sections 473, 476a and 459.5 – have one thing in
common; they all reference the monetary figure of $950. To constitute misdemeanor
forgery, the value of the forged instrument cannot exceed that amount (§ 473, subd. (b));
to constitute misdemeanor check fraud, the amount of the check cannot exceed that
amount (§ 476a, subd. (b)); and to constitute misdemeanor shoplifting, the value of the
property that is intended to be taken cannot exceed that amount (§ 459.5, subd. (a)). This
monetary limitation is a problem for appellant because the check he tried to pass was
made out for $1,700.
Relying on People v. Cuellar (2008) 165 Cal.App.4th 833, appellant argues
the face value of the check is irrelevant for valuation purposes because there is no
evidence he received any proceeds from trying to cash the check. But Cuellar was
decided before the passage of Proposition 47. The question presented in that case was
whether a “‘bogus check’” the defendant took back from a department store clerk had any

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value so as to support his conviction for grand theft from a person. (Id. at p. 836.) The
court ruled the check did have some slight value based on the paper it was printed on, but
that “a forged check does not have a value equal to the amount for which it is written.
[Citation.] The check’s value is ‘a nullity’; it is merely ‘an order to pay [citation] and is
of no value unless accepted.’ [Citation.]” (Id. at p. 838.)
That may be true for the crime of grand theft from a person, which requires
an actual taking of the subject property. (See § 487, subd. (c).) However, unlike that
offense, the crimes of forgery, check fraud and shoplifting are not dependent on the
defendant actually acquiring the fruit of his unlawful exploits. Forgery occurs whenever
a person with fraudulent intent “passes or attempts” to pass a false financial instrument.
(§ 470, subd. (d).) Check fraud turns on possession “with the intent to utter or pass” a
completed check for the purpose of defrauding any person. (475, subd. (c).) And
shoplifting is based on entering a commercial establishment with the intent to commit
larceny. (§ 459.5, subd. (a).) Since these crimes are grounded in the defendant’s intent
to obtain money or property by wrongful means, it matters not that appellant failed to
obtain any proceeds from the forged check he tried to pass. What does matter is that he
clearly intended to fraudulently obtain cash proceeds in the amount of $1,700 from the
check. Because that amount exceeds $950, appellant is not eligible for resentencing
under Proposition 47.2
We hasten to add that if we adopted appellant’s position to ignore the
amount written on a forged check in cases where the check was not actually accepted, we
would undermine the voters’ intent to draw a distinction between felony and
misdemeanor conduct for the crimes involved here. Indeed, as respondent points out,
appellant’s position would require misdemeanor treatment in all such cases because
2 In People v. Franco (2016) 245 Cal.App.4th 679, the court reached a similar conclusion in a case
involving a forged check in the amount of $1,500. However, that case is of no precedential value because the
Supreme Court granted the defendant’s petition for review. (See People v. Franco, rev. granted June 15, 2016,
S233973.)

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valuation would turn not on the stated value of the check, but on the value of the paper on
which the check was written, which would always be less than $950. To avoid this
unintended consequence, and to ensure the defendant’s punishment is commensurate with
his culpability, the amount written on the subject check should always be considered in
cases involving forgery, check fraud and burglary. (See generally Hodges v. Superior
Court (1999) 21 Cal.4th 109, 114 [“In the case of a voters’ initiative statute, . . . we may
not properly interpret the measure in a way that the electorate did not contemplate: the
voters should get what they enacted, not more and not less.”].)
DISPOSITION
The trial court’s order denying appellant’s Proposition 47 petition is
affirmed.
BEDSWORTH, ACTING P. J.
WE CONCUR:
ARONSON, J.
FYBEL, J.

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