Filed 2/28/17

                           CERTIFIED FOR PUBLICATION

          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                          FOURTH APPELLATE DISTRICT

                                    DIVISION TWO



THE PEOPLE,

        Plaintiff and Appellant,                    E065899

v.                                                  (Super.Ct.No. RIF1209520)

ANGELA KAY VANDIVER,                                OPINION

        Defendant and Respondent.




        APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge.

Affirmed.

        Michael A. Hestrin, District Attorney, Emily R. Hanks and Donald W. Ostertag,

Deputy District Attorneys, for Plaintiff and Appellant.

        Elizabeth Garfinkle, under appointment by the Court of Appeal, for Defendant and

Respondent.




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       In this appeal, the parties ask us to determine the value of a blank check for the

purpose of distinguishing between misdemeanor and felony receiving stolen property

after passage of the Safe Neighborhoods and Schools Act (Proposition 47).

       Respondent, Angela Kay Vandiver, pled guilty in 2012 to a single felony count of

receiving stolen property based on her possession of blank checks she knew had been

stolen. She later petitioned to have the conviction redesignated a misdemeanor under the

new provisions of Proposition 47 on the ground the checks were worth $950 or less.

(Pen. Code, § 1170.18.) The People opposed, arguing the balance of the victim’s

checking account was greater than $950. The trial court found the value of the blank

checks to be de minimis and granted the petition.

       The People contend the court erred by (i) reaching the merits because Vandiver

did not attach evidence of value to her petition and (ii) determining the checks’ value was

de minimis. They contend the court should have dismissed the petition as unsupported or

found the checks were worth the full amount in the linked checking account and denied

the petition on the merits. We affirm.




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                                            I

                             FACTUAL BACKGROUND

      On November 7, 2012, police found Vandiver in possession of 10 blank checks

belonging to another person (the victim).1 They arrested her and charged her with

receiving stolen property and violating probation.

      The same day, the investigating officer contacted the victim, who reported “she

and her family had recently closed a Citibank account because of Fraud. She [said] they

had complained to the bank after not receiving the checks they ordered. When they went

to the bank to follow-up, the family learned that somebody had drawn nearly $3000

dollars from the account. [She] said [neither] she, nor her family gave anybody

permission to take or use the checks. [She] felt it was most likely the checks were taken

from their mailbox.”

      Vandiver talked to police after waiving her Miranda rights.2 She told the police

she had recently been kicked out of an apartment and when she left she took items from

the person she was staying with, including the checks. “She said she knew it was wrong

to have the checks and she should have known better. She said she knew she had stolen

property but denied any knowledge of how [her former roommate] came to possess them.




      1  We grant the People’s motion to augment the record with the police report and
an affidavit submitted by the victim, both part of the record below.
      2   Miranda v. Arizona (1966) 384 U.S. 436.


                                            3
She said she had not used any of the checks before.” A copy of one of the checks

attached to the police report shows it was blank and not endorsed.

       The Riverside County District Attorney accused Vandiver of felony receiving

stolen property (§ 496, subd. (a);3 count 1) and having suffered a prison prior (§ 667.5,

subd. (b)).4 The complaint alleged “on or about November 7, 2012, in the County of

Riverside, State of California, she did wilfully and unlawfully receive certain property, to

wit, CHECKS, which said property had been obtained by theft, knowing said property

had been so obtained, and did conceal and withhold and aid in concealing and

withholding said property from the owner.” The complaint does not allege she made the

checks out for any amount, attempted to cash them, or attempted to pass them as payment

for goods or services.

       On November 21, 2012, Vandiver pled guilty to felony receiving stolen property

and admitted the prison prior. At the plea hearing, the trial court asked, “Is it true that on

November 7, 2012 of this year, in the county of Riverside, you had somebody else’s

checks?” She replied, “Yes, sir.” The court found a factual basis for the plea and

accepted it.

       The trial court sentenced Vandiver to a midterm of two years in county jail

(§ 1170, subd. (h)) on count 1 and an additional year (consecutive) for the enhancement.



       3   Unlabeled statutory citations refer to the Penal Code.
       4   The complaint included additional charges not relevant to the appeal.


                                              4
The court suspended execution of the final 18 months of the sentence and ordered 18

months of supervised release.

       On November 4, 2014, the voters of California passed Proposition 47, reducing

some felony theft-related offenses—including receiving stolen property—to

misdemeanors when the value of the stolen property does not exceed $950. The initiative

also created a procedure allowing offenders to petition to designate eligible felony

convictions misdemeanors and obtain resentencing if they “would have been guilty of a

misdemeanor under” the provisions added by Proposition 47. (§ 1170.18, subds. (a), (f).)

       On August 3, 2015, Vandiver filed a petition asking the trial court to designate her

receiving stolen property conviction a misdemeanor under section 1170.18. The petition

declares “defendant believes the value of the check or property does not exceed $950.”

The prosecution responded Vandiver was not entitled to relief because the stolen checks

came from an account whose balance was greater than $950. The prosecution requested

a hearing limited to the value of the checks.

       On February 26, 2016, the trial court held a hearing. The prosecution contended

“the value of the checks should be what is in the account” and submitted an affidavit

from the victim saying the account contained $3000 at the time the checks were stolen.

The trial court consulted its own records, which included the police report. The report

said the checks were blank, the victim had closed the associated account before

Vandiver’s arrest, and Vandiver said she had not used any of the victim’s checks. In

addition, the police report attached a copy of one of the victim’s checks showing it was


                                                5
blank and unendorsed. The prosecutor conceded the checks were not written out and

there was no evidence Vandiver had used any checks to take money from the account.

       The trial court found the checks were worth a de minimis amount and granted the

petition. It deemed count 1 a misdemeanor, and ordered the prison prior stricken.

       On April 22, 2016, the People filed a notice of appeal.

                                             II

                                      DISCUSSION

       A.     Petitioner’s Burden

       The People contend the trial court erred in granting the petition because

Vandiver’s “section 1170.18 petition failed to present any evidence regarding the

underlying facts of her section 496 conviction.” In effect, the People contend the trial

court abused its discretion by reaching the merits of the petition without first finding she

had made out a prima facie case of entitlement to resentencing.

       We have concluded elsewhere section 1170.18 cannot be read to limit the trial

court’s discretion as the People propose. (People v. Abarca (2016) 2 Cal.App.5th 475,

479, review granted Oct. 19, 2016, S237106.) The People present neither contrary

authority nor any other reason to conclude the trial court was required to summarily deny

the petition because Vandiver failed to attach evidence. The trial court acted within its

statutory discretion to consider evidence contained in court records and to set an

evidentiary hearing to establish the facts underlying the conviction. (People v. Huerta




                                              6
(2016) 3 Cal.App.5th 539, 543 (Huerta); § 1170.18, subd. (b) [“Upon receiving a petition

. . . the court shall determine whether the petitioner satisfies the [eligibility] criteria”].)

       Indeed, it would have been an abuse of discretion for the trial court to dismiss the

petition without allowing an opportunity to amend after holding a hearing and reviewing

evidence establishing her eligibility. “‘[T]he general rule of liberal allowance of pleading

amendment’ requires the reviewing court to grant leave to amend if there is a ‘reasonable

possibility’ the party can amend the pleading to cure its defects.” (Huerta, supra, 3

Cal.App.5th at p. 543.) Here, the trial court exercised its discretion to set a hearing on

value. At the hearing, the parties agreed the stolen items were blank checks, not checks

written out to cash or to make fraudulent purchases. The police report, which the trial

court considered, provides evidence of these points, and the prosecutor conceded them.

The police report also shows the victim had closed the bank account before the time of

the arrest. If Vandiver’s petition was deficient when filed, the evidence and concessions

made at the hearing establish she could have presented evidence sufficient to support

redesignation and resentencing simply by attaching the police report. (Huerta, at pp.

543-544.) Reversing the trial court and directing it to dismiss the petition with leave to

refile attaching the same evidence the court already consulted at the hearing would be an

extreme case of putting form over substance, as well as a waste of judicial resources.

       Under these circumstances, we cannot find the trial court abused its discretion by

reaching the merits of Vandiver’s petition.




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       B.     The Value of Blank Checks

       The People contend the trial court erred in valuing the blank checks. They argue

the court should have determined the stolen checks exceeded $950 in value on the ground

the account linked to the checks contained $3,000. Again, we find no error.

       Before the electorate passed Proposition 47, a violation of section 496, subdivision

(a) could be charged as a felony or a misdemeanor, at the discretion of the prosecutor.

However, Proposition 47 amended the provision to require any violation be treated as a

misdemeanor “if the value of the property does not exceed nine hundred fifty dollars

($950).” (§ 496, subd. (a).) We review the trial court’s interpretation of this provision de

novo and its findings of fact for substantial evidence. (People v. Rizo (2000) 22 Cal.4th

681, 685; People v. Perkins (2016) 244 Cal.App.4th 129, 136.)

       “The means of valuing stolen property is settled under the theft statutes.” (People

v. Swanson (1983) 142 Cal.App.3d 104, 107.) Section 484, subdivision (a), which

defines the crime of theft, directs “the reasonable and fair market value shall be the test”

for determining whether a theft offense is a misdemeanor or a felony. (People v. Pena

(1977) 68 Cal.App.3d 100, 103-104.) “[T]he ‘fair market price’ is the highest price

obtainable from a willing buyer by a willing seller, neither of whom is forced to act. It is

not the highest price in the market but the highest price a willing buyer and a willing

seller will arrive at.” (Id. at p. 104.) The parties agree the fair market value test applies

to determine the value of stolen property under the receiving stolen property statutes as it

does under the theft statutes, and we are aware of no contrary authority. (See People v.


                                               8
Swanson 142 Cal.App.3d 104, 108 [holding fair market value test applies to section

12022.6 enhancement for high-value theft just as it does to distinguish grand from petty

theft].)

           The People contend the trial court erred by failing to conclude, under the fair

market value test, the checks Vandiver had in her possession had “the value of the linked

bank account to which the check provides access.” Relying on an affidavit signed by the

victim, they represent “the account attached to the blank checks here was active, and if

accessed, held over $3,000.” They conclude the value of the checks exceeded $950,

rendering Vandiver’s conviction ineligible under section 1170.18. We find the People’s

argument unpersuasive on both the law and the facts.

           First, the People offer neither authority nor analysis to support their contention the

victim would have been able to obtain $3,000 from a willing buyer for a blank,

unendorsed check from her account. We doubt a convincing case can be made for the

position. Only an account holder can use a check to legally access the funds in the linked

account. The People have provided no basis for thinking any buyer—never mind a

willing one—would pay the full balance of an account in return for a check the buyer

could not legally use to access its funds. A check cashing business pays only a portion of

the face value for a check that is properly made out and endorsed, keeping the remainder

as its fee. (See People v. Smith (2016) 1 Cal.App.5th 266, 273, review granted Sept. 14,

2016, S236112 [“A person in possession of a check made out in his or her name can

endorse the check to the check cashing business and receive the proceeds in cash, less a


                                                  9
commission paid to the check cashing business”]; see also Civ. Code, §§ 1789.30-

1789.35 [regulating how check cashing businesses collect fees for their services].)

       The People’s position improperly pegs the value of a blank check at its potential

value to the account holder, which is the wrong measure as a matter of law. “The value

to be placed upon stolen articles for the purpose of establishing a felony charge is the fair

market value of the property and not the value of the property to any particular

individual.” (People v. Lizarraga (1954) 122 Cal.App.2d 436, 438, italics added.) Taken

to its logical conclusion, the People’s position entails the absurd result each of the checks

in Vandiver’s possession was worth $3,000 to her and the ten checks were worth $30,000

altogether. We think the better supported conclusion—a conclusion the trial court

appears to have accepted—is that blank, unendorsed checks have a de minimis fair

market value.

       We are aware of only one published decision addressing the value of blank checks

in the context of a Proposition 47 petition. The Third Appellate District has considered

whether a defendant was entitled to have his felony conviction for possessing a blank

check with intent to defraud (§ 475, subd. (b)) designated a misdemeanor under the

forgery punishment provision as it was amended by Proposition 47 (§ 473, subd. (b)).

(People v. Gonzales (2016) 6 Cal.App.5th 1067, review granted Feb. 15, 2017, S240044,

cited for persuasive value (Cal. Rules of Court, rule 8.1115).) Our sister court concluded

the blank checks did “not have any face value, and thus also come within the ambit of

section 473(b),” which requires check forgery offenses be punished as misdemeanors if


                                             10
the value of the check does not exceed $950. (People v. Gonzales, at. p. 1072.) Other

authorities suggest checks that do not have value as negotiable interests have a value

greater than zero. (E.g., People v. Cuellar (2008) 165 Cal.App.4th 833, 839 [holding a

check known to be forged “had slight intrinsic value by virtue of the paper it was printed

on” and “as a negotiable instrument that, if legally drawn, would entitle its holder to

payment on demand”].) We conclude from these authorities that blank, unendorsed

checks have a non-zero, de minimis value. The trial court therefore did not err by

determining the fair market value of the checks Vandiver had in her possession did not

exceed $950.

       The People contend we should, if we find the fair market value to be insubstantial,

“look to the black market value of such a stolen blank check.” The People direct us to

authorities permitting such evidence in other jurisdictions. (See, e.g., United States v.

Luckey (9th Cir. 1981) 655 F.2d 203, 205 [approving use of expert testimony of blank

checks’ “worth on the ‘thieves’ market,’” but reversing federal felony conviction due to

lack of evidence a blank check exceeded felony threshold amount].) We decline to

follow these authorities, none of which addresses California law. Section 484,

subdivision (a) clearly directs the courts to determine the value of stolen property by

reference to its fair market value. We agree the fair market test does not fit comfortably

the task of establishing the value of a blank check to people who would use it

fraudulently. However, addressing that issue falls within the purview of the Legislature,

not the courts. (In re Christian S. (1994) 7 Cal.4th 768, 782.)


                                             11
       Second, even if we were to accept the People’s position the fair market value of a

blank check equals the amount in the linked account, we would conclude the trial court

did not err. The investigating officer reported he contacted the victim the same day he

found Vandiver with the checks. She told him “her family had recently closed [the]

Citibank account” because they never received their checks and “[w]hen they went to the

bank to follow-up, the family learned that somebody had drawn nearly $3000 dollars

from the account.” Thus, the police report establishes the victim had closed her bank

account before Vandiver was arrested in possession of the checks. Moreover, as the

People conceded in the trial court, there is no evidence Vandiver was the person who

used checks to take money from the account. At the time of the offense, then, the $3,000

had been removed from the linked account and the account had been closed. The

victim’s affidavit is not to the contrary. In it, she says she “had over $3000 in the account

at the time the checks were stolen,” not at the time Vandiver was found to possess checks

previously stolen. Thus even accepting the People’s theory of valuation, the trial court’s

value finding was based on substantial evidence.

       In view of these facts, we cannot conclude the People carried their burden of

affirmatively showing the trial court mistakenly applied the fair market value test or

concluded without substantial evidence the value of the stolen checks in this case did not

exceed $950. (People v. Fedalizo (2016) 246 Cal.App.4th 98, 105 [“‘[a] judgment

challenged on appeal is presumed correct, and it is the appellant’s burden to affirmatively

demonstrate error’”].)


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                                 III

                            DISPOSITION

     We affirm the order.

     CERTIFIED FOR PUBLICATION


                                          SLOUGH
                                                   J.

We concur:


HOLLENHORST
          Acting P. J.


MILLER
                       J.




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