Filed 8/24/16 P. v. Renk CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G051671

         v.                                                            (Super. Ct. No. 04WF1276)

MICHAEL JASON RENK,                                                    OPINION

     Defendant and Appellant.



                   Appeal from a postjudgment order of the Superior Court of Orange County,
Thomas A. Glazier, Judge. Affirmed.
                   Jan B. Norman, 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
Kristen Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.
                                          *                  *                  *
                                      INTRODUCTION
              Defendant Michael Jason Renk appeals from an order denying his petition
under Penal Code section 1170.18, subdivision (f) for, inter alia, the reduction of his
felony convictions for forgery and second degree commercial burglary to misdemeanors.
(All further statutory references are to the Penal Code.) We affirm the order because
Renk failed to carry his burden of establishing eligibility for relief under Proposition 47,
the Safe Neighborhoods and Schools Act (§ 1170.18), by producing evidence that the
value of the check that he forged or the property that he had intended to steal in the
commission of the second degree commercial burglary did not exceed $950.
                                       BACKGROUND
              In May 2004, Renk was charged in a felony complaint with three felony
counts of forgery in violation of section 470, subdivision (d); three felony counts of
second degree commercial burglary in violation of sections 459 and 460, subdivision (b);
and one misdemeanor count of resisting and obstructing an officer in violation of
section 148, subdivision (a)(1). He pleaded guilty as charged, stating the following as the
factual basis for his plea: “On 5/4/04 I willfully & unlawfully did the following acts: [¶]
(1) passed a counterfeit check knowing it was forged & [¶] (2) entered Cash Plus, a
commercial building, with the intent to commit larceny & [¶] (3) I resisted & obstructed
Officer Shroyer, a peace officer, in the performance of his duties. [¶] On 5/3/04, I
willfully & unlawfully did the following acts: [¶] (1) enter[ed] Low’s Liquor, a
commercial building, with the intent to commit larceny AND (2) passed a counterfeit
check, knowing it was false AND (3) enter[ed] Low[’s] Liquor with the intent to commit
larceny & [¶] (4) passed a counterfeit check knowing it was forged.”
              The trial court suspended imposition of sentence and placed Renk on three
years’ formal probation on terms and conditions including that he serve 210 days in the
Orange County jail. In 2006, Renk’s probation was revoked and he was sentenced to 16
months in prison.

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              In December 2014, Renk filed a petition under section 1170.18,
subdivision (f), seeking to have his six felony convictions recalled and reduced to
misdemeanors (the petition). The prosecution opposed the petition as to one of the
counts of second degree commercial burglary and one of the counts of forgery, charged
as counts 1 and 2 in the felony complaint, “because the value of the cashed check was
approximately $1,400.” (There is no evidence in the record regarding the amount of the
check apparently at issue with regard to those two counts.) The trial court denied the
petition as to those two counts, and granted the petition as to the remaining felony counts.
Renk appealed.
                                        DISCUSSION
              In 2014, the voters enacted Proposition 47, which makes certain drug- and
theft-related offenses misdemeanors, unless the offenses were committed by certain
ineligible defendants. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1089, 1091.)
Those offenses previously had been designated either as felonies or as crimes that can be
punished as either felonies or misdemeanors. (Id. at p. 1091.) Proposition 47 added,
among other things, sections 490.2 and 1170.18 to the Penal Code. (People v. Rivera,
supra, at pp. 1091-1092.)
              Section 490.2, subdivision (a) provides that “obtaining any property by
theft” constitutes a misdemeanor where the value of the property taken does not exceed
$950. (See People v. Acosta (2015) 242 Cal.App.4th 521, 525.) Section 1170.18,
subdivision (f) provides: “A person who has completed his or her sentence for a
conviction, whether by trial or plea, of a felony or felonies who would have been guilty
of a misdemeanor under [Proposition 47] had [Proposition 47] 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.”



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              Proposition 47 added section 459.5, which provides that, notwithstanding
section 459 defining burglary, “shoplifting is defined as entering a commercial
establishment with intent to commit larceny while that establishment is open during
regular business hours, where the value of the property that is taken or intended to be
taken does not exceed nine hundred fifty dollars ($950). Any other entry into a
commercial establishment with intent to commit larceny is burglary. Shoplifting shall be
punished as a misdemeanor, except that a person with 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 may be punished pursuant to subdivision (h) of Section 1170. [¶] (b) Any
act of shoplifting as defined in subdivision (a) shall be charged as shoplifting. No person
who is charged with shoplifting may also be charged with burglary or theft of the same
property.” (Italics added.)
              Section 473, as amended by Proposition 47, provides in part: “(a) 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. [¶] (b) Notwithstanding
subdivision (a), 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
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not more than one year.” (Italics added.)


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    In People v. Salmorin (2016) 1 Cal.App.5th 738, 744-745, the appellate court held in
part: “[F]or purposes of resentencing under Proposition 47, the value of a forged check is
the face value of the check. Under Proposition 47, the market value of any forged
instrument listed in section 473, subdivision (b), may or may not correspond to the face
value of the instrument, depending on the existence of a secondary market or other
evidence of value. In the context of forgery, however, the word ‘value’ as used in
section 473, subdivision (b), corresponds to the stated value or face value of the check.

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               No evidence in the record shows the value of the property that Renk had
intended to steal in committing the second degree commercial burglary or the value of the
check that he forged. Renk had the burden of showing the facts establishing his
eligibility for relief under Proposition 47, including that the value of the intended stolen
property or the forged check did not exceed $950. (See People v. Sherow (2015) 239
Cal.App.4th 875, 877 [section 1170.18 places the burden on the petitioner to show that
the value of the item at issue did not exceed $950]; People v. Rivas-Colon (2015) 241
Cal.App.4th 444, 449-450 [same]; People v. Perkins (2016) 244 Cal.App.4th 129,
136-137 [same]; People v. Bush (2016) 245 Cal.App.4th 992, 1007 [same].) Because
Renk failed to carry that burden, the petition was properly denied as to counts 1 and 2 of
the felony complaint.


                                          DISPOSITION
               The postjudgment order is affirmed. This affirmance is without prejudice
to the trial court’s consideration of a subsequent petition by Renk, which offers evidence
of his eligibility for the requested relief.



                                                   FYBEL, J.

WE CONCUR:



O’LEARY, P. J.



IKOLA, J.


The trial court did not err in considering the face value of the forged checks for purposes
of determining [the defendant]’s eligibility for Proposition 47 resentencing.”

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