Filed 10/12/16 Certified for publication 11/7/16 (order attached)




               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                    SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                     H042889
                                                               (Santa Cruz County
         Plaintiff and Respondent,                              Super. Ct. No. F00652)

         v.

SALVADOR MARTINEZ, JR.,

         Defendant and Appellant.


                                             I. INTRODUCTION
         In May 2000, defendant Salvador Martinez, Jr. pleaded guilty to a charge that he
committed a felony forgery in violation of Penal Code section 470, subdivision (a),1 by
“sign[ing] the name of another person and of a fictitious person, to [a] RECEIPT FOR
GOODS.”2 Documents in the police report showed that defendant had signed someone
else’s name on credit card receipts after making credit card purchases at a Chevron
station.
         In March 2015, defendant filed a petition for redesignation of his felony forgery
offense as a misdemeanor under section 1170.18, subdivision (f), which was enacted in
2014 as part of Proposition 47. The trial court denied the petition on the ground that


         1
             All further statutory references are to the Penal Code unless otherwise indicated.
         2
             Hereafter, we refer to defendant’s offense as a “receipt for goods” forgery.
section 1170.18 does not apply to defendant’s specific forgery offense—a “receipt for
goods” forgery—because that offense is not listed as a misdemeanor in section 473,
subdivision (b). On appeal, defendant contends that the trial court erred by finding his
offense was not eligible for redesignation under section 1170.18, subdivision (f). For
reasons that we shall explain, we will affirm the trial court’s order.
                                     II. BACKGROUND
       A complaint filed on April 26, 2000 charged defendant with two crimes. Count 1
alleged that defendant committed a violation of section 470, subdivision (a), a felony, in
that he did, “with the intent to defraud, and knowingly without authority to do so, sign
the name of another person and of a fictitious person, to [a] RECEIPT FOR GOODS.”
Count 2 alleged that defendant committed a violation of section 484g, subdivision (a),
a misdemeanor, in that he did, “with intent to defraud[,] use for the purpose of obtaining
money, goods, services and anything else of value, an access card and access card
account information that had been altered, obtained, and retained, in violation of
section 484e and 484f, and an access card with knowledge that it was forged, expired
and revoked.”
       On May 15, 2000, defendant pleaded guilty to count 1. Count 2 was dismissed.
Defendant was placed on probation for 36 months and ordered to pay restitution in the
amount of $159.92.
       On March 23, 2015, defendant filed a petition to have his felony forgery
conviction redesignated as a misdemeanor pursuant to section 1170.18, subdivision (f).
       On April 30, 2015, the People filed written opposition, arguing that defendant had
not met his burden to show proof that the amount involved in the forgery was under
$950. Additionally, at a hearing on June 30, 2015, the People argued that the trial court
should deny defendant’s petition because “certain types of 470’s were not affected by
Prop 47. And specifically the types that were affected were [forgeries] involving check



                                              2
fraud, cashier’s checks, traveler’s check[s], or money orders. This involved a credit card,
which was not one of those items.”
           On July 27, 2015, defendant filed a response that included proof that the amount
involved in the forgery was under $950, namely, copies of the credit card receipts from
the original police report. Additionally, he argued that his conviction was eligible for
redesignation because it is a “forgery offense sentenced pursuant to Penal Code
Section 473.” Defendant argued that because he had no disqualifying convictions and
the amount of restitution was under $950, a redesignation of his conviction to a
misdemeanor would be in alignment with one of the purposes of Proposition 47: “to
maximize alternatives for nonserious, nonviolent crime.”
           On August 25, 2015, the trial court denied defendant’s petition. Regarding
defendant’s argument that the “only relevant inquiry allowed under Prop. 47 is the
amount,” the trial court stated, “I think it needs to be specifically outlined within the
statute. I’m going to respectfully disagree that the only relevant inquiry is the charge
itself.”
                                          III.   ANALYSIS
           Defendant argues that the trial court erred in refusing to redesignate his receipt
for goods forgery conviction as a misdemeanor. Defendant relies on on principles of
statutory interpretation as well as principles of equal protection.
           A.     Legal Principles: Proposition 47
           On November 4, 2014, the voters enacted Proposition 47, the Safe Neighborhoods
and Schools Act. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1089 (Rivera).)
Proposition 47 “reduced the penalties for a number of offenses.” (People v. Sherow
(2015) 239 Cal.App.4th 875, 879.) Proposition 47 now “makes certain drug- and theft-
related offenses misdemeanors, unless the offenses were committed by certain ineligible
defendants.” (Rivera, supra, at p. 1091.)



                                                  3
       Section 473, which prescribes the punishment for forgery, was one of the statutes
amended by Proposition 47. (See Rivera, supra, 233 Cal.App.4th at p. 1091.)
Subdivision (a) of section 473 now provides: “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.” Subdivision (b) of section 473 now provides, in pertinent part:
“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 not more than one year . . . .”
       Section 1170.18, which was added by Proposition 47, “provides that persons who
have completed felony sentences for offenses that would now be misdemeanors under
Proposition 47 may file an application with the trial court to have their felony convictions
‘designated as misdemeanors.’ [Citations.]” (Rivera, supra, 233 Cal.App.4th at p. 1093.)
As relevant here, 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 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.”
       B.     Statutory Interpretation
       Defendant’s first argument is that “receipt for goods” forgery convictions are
eligible for misdemeanor designation under Proposition 47 based on principles of
statutory interpretation. “Issues of statutory interpretation are questions of law subject
to de novo review. [Citation.]” (People v. Simmons (2012) 210 Cal.App.4th 778, 790.)
       “When we interpret an initiative, we apply the same principles governing statutory
construction. We first consider the initiative’s language, giving the words their ordinary

                                                  4
meaning and construing this language in the context of the statute and initiative as a
whole. If the language is not ambiguous, we presume the voters intended the meaning
apparent from that language, and we may not add to the statute or rewrite it to conform to
some assumed intent not apparent from that language. If the language is ambiguous,
courts may consider ballot summaries and arguments in determining the voters’ intent
and understanding of a ballot measure. [Citation.]” (People v. Superior Court (Pearson)
(2010) 48 Cal.4th 564, 571.)
        Thus, “ ‘ “[w]hen statutory language is clear and unambiguous, there is no need
for construction and courts should not indulge in it.” [Citation.]’ [Citation.]” (People v.
Hendrix (1997) 16 Cal.4th 508, 512.) Additionally, we consider the maxim expressio
unius est exclusio alterius: “The expression of some things in a statute necessarily means
the exclusion of other things not expressed.” (Gikas v. Zolin (1993) 6 Cal.4th 841, 852
(Gikas).) Under that maxim, where the Legislature expressly includes certain criminal
offenses in a statute, the legislative intent was to exclude offenses that were not
mentioned. (People v. Sanchez (1997) 52 Cal.App.4th 997, 1001; see also People v.
Walker (2000) 85 Cal.App.4th 969, 973; People v. Brun (1989) 212 Cal.App.3d 951,
954.)
        Defendant contends that his “receipt for goods” forgery conviction was eligible
for misdemeanor designation based on his interpretation of section 473, subdivision (b).
We therefore must analyze the language of section 473.
        Under subdivision (a) of section 473, forgery convictions are wobblers.
Subdivision (b) of section 473 provides an exception to the general rule expressed in
subdivision (a), bestowing misdemeanor status upon specified types of forgeries. As we
previously noted, section 473, subdivision (b) states: “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

                                              5
dollars ($950), shall be punishable by imprisonment in a county jail for not more than
one year . . . .” (Italics added.)
       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. Defendant was convicted of a “receipt for goods” forgery.
A receipt for goods is not one of the seven instruments specified in section 473,
subdivision (b). Defendant therefore was ineligible to have his “receipt for goods”
forgery conviction designated as a misdemeanor pursuant to section 473, subdivision (b).
       Defendant contends that the seven listed items in section 473, subdivision (b)
were “intended to be illustrative, and not exclusive” and to interpret the statute otherwise
“lacks common sense or rationalization.” This argument is not persuasive. As noted
above, “[t]e expression of some things in a statute necessarily means the exclusion of
other things not expressed.” (Gikas, supra, 6 Cal.4th at p. 852.) Section 473,
subdivision (b) identifies forgeries involving seven specific instruments as eligible for
misdemeanor designation. This is significant given that section 470—the statute that
defines forgery—identifies over 50 instruments with which forgery can be committed,
including the seven instruments listed in subdivision (b) of section 473.3 The express


       3
          Section 470, subdivision (d) describes the instruments subject to criminal
penalties under subdivision (a) as: “any check, bond, bank bill, or note, cashier’s check,
traveler’s check, money order, post note, draft, any controller’s warrant for the payment
of money at the treasury, county order or warrant, or request for the payment of money,
receipt for money or goods, bill of exchange, promissory note, order, or any assignment
of any bond, writing obligatory, or other contract for money or other property, contract,
due bill for payment of money or property, receipt for money or property, passage ticket,
lottery ticket or share purporting to be issued under the California State Lottery Act of
(continued)

                                              6
identification of those seven instruments in section 473, subdivision (b) excludes from
misdemeanor designation forgeries committed with all other instruments. To adopt
defendant’s argument and conclude that “receipt for goods” forgery convictions are
eligible for misdemeanor designation, we would have to insert the term “receipt for
goods” into subdivision (b) of section 473. We decline to do so. Inserting additional
language into a statute “ ‘violate[s] the cardinal rule of statutory construction that courts
must not add provisions to statutes. [Citations.]’ ” (People v. Guzman (2005) 35 Cal.4th
577, 587.)
       Although the plain language of the statute is clear, we note that defendant is
incorrect when he asserts that the intent of the electorate was to include all types of
forgeries. The “Official Title and Summary” of Proposition 47 printed in the ballot
materials included the following statement: “Requires misdemeanor sentence instead of
felony for the following crimes when amount involved is $950 or less: petty theft,
receiving stolen property, and forging/writing bad checks.” (Voter Information Guide,
Gen. Elec. (Nov. 4, 2014), official title and summary of Prop. 47, p. 34, italics added
(hereafter Guide).) The Legislative Analyst’s analysis of Proposition 47, also printed in
the ballot materials, specified the crimes for which penalties would be reduced; it



1984, trading stamp, power of attorney, certificate of ownership or other document
evidencing ownership of a vehicle or undocumented vessel, or any certificate of any
share, right, or interest in the stock of any corporation or association, or the delivery of
goods or chattels of any kind, or for the delivery of any instrument of writing, or
acquittance, release or discharge of any debt, account, suit, action, demand, or any other
thing, real or personal, or any transfer or assurance of money, certificate of shares of
stock, goods, chattels, or other property whatever, or any letter of attorney, or other
power to receive money, or to receive or transfer certificates of shares of stock or
annuities, or to let, lease, dispose of, alien, or convey any goods, chattels, lands, or
tenements, or other estate, real or personal, or falsifies the acknowledgment of any notary
public, or any notary public who issues an acknowledgment knowing it to be false; or any
matter described in subdivision (b).” (Italics added.)


                                              7
specifically listed “Writing Bad Checks” and “Check Forgery.” (Guide, supra, analysis
of Prop. 47 by Legis. Analyst, p. 35.) Nothing in the ballot materials indicated that by
passing Proposition 47, penalties would be reduced for all means of committing forgery
listed in section 470, subdivision (d).
       In sum, a section 470, subdivision (d) forgery conviction is eligible for
misdemeanor designation under section 1170.18, subdivision (f) only if the instrument
utilized in the forgery is one listed in section 473, subdivision (b): a check, bond, bank
bill, note, cashier’s check, traveler’s check, or money order with a value of $950 or less.
Since “receipt for goods” forgery convictions are not listed in section 473,
subdivision (b), they are not eligible for misdemeanor designation under section 1170.18,
subdivision (f).
       C.     Equal Protection
       Defendant also contends that denying a petition for redesignation of a forgery
conviction relating to a “receipt for goods” with a value of $950 or less violates his
state and federal constitutional rights to equal protection. (See Cal. Const., art. I, § 7;
U.S. Const., 14th Amend.) Defendant asserts that the trial court’s interpretation of
amended section 473, subdivision (b) creates two groups of people who are treated in an
unequal manner: (1) those otherwise eligible defendants convicted of forgery by use of
one of the seven instruments specified in section 470 subdivision (d) (i.e., a check, bond,
bank bill, note, cashier’s check, traveler’s check or money order), who will either be
sentenced to a misdemeanor or are eligible for misdemeanor sentencing redesignation
and (2) those otherwise eligible defendants convicted of forgery by use of the “remaining
thirty-plus instruments in the statute[],” who can be sentenced to a felony and are
ineligible for misdemeanor redesignation.
       “The concept of equal protection recognizes that persons who are similarly
situated with respect to a law’s legitimate purposes must be treated equally. [Citation.]
Accordingly, ‘ “[t]he first prerequisite to a meritorious claim under the equal protection

                                               8
clause is a showing that the state has adopted a classification that affects two or more
similarly situated groups in an unequal manner.” ’ [Citation.]” (People v. Brown (2012)
54 Cal.4th 314, 328.) We need not decide whether persons convicted of receipt of goods
forgeries, such as defendant, are similarly situated to persons convicted of forgery with
the instruments described in section 473, subdivision (b), however. As we shall explain,
the disparate treatment between the two groups has a rational basis.
       The California Supreme Court has instructed that “[a] defendant . . . ‘does not
have a fundamental interest in a specific term of imprisonment or in the designation a
particular crime receives.’ [Citations.]” (People v. Wilkinson (2004) 33 Cal.4th 821,
838.) Therefore, the rational basis test is applicable to an equal protection challenge
involving “ ‘an alleged sentencing disparity.’ ” (Ibid.) Under the rational basis test,
“ ‘equal protection of the law is denied only where there is no “rational relationship
between the disparity of treatment and some legitimate governmental purpose.” ’
[Citations.]” (Johnson v. Department of Justice (2015) 60 Cal.4th 871, 881 (Johnson).)
“ ‘This standard of rationality does not depend upon whether lawmakers ever actually
articulated the purpose they sought to achieve. Nor must the underlying rationale be
empirically substantiated. [Citation.] While the realities of the subject matter cannot be
completely ignored [citation], a court may engage in “ ‘rational speculation’ ” as to the
justifications for the legislative choice [citation]. It is immaterial for rational basis review
“whether or not” any such speculation has “a foundation in the record.” ’ [Citation.]”
(Ibid.) Therefore, “[t]o mount a successful rational basis challenge, a party must
‘ “negative every conceivable basis” ’ that might support the disputed statutory disparity.
[Citations.] If a plausible basis exists for the disparity, courts may not second-guess its
‘ “wisdom, fairness, or logic.” ’ [Citations.]” (Ibid.)
       Defendant argues that “there is no distinction between the means of forgery
enumerated in [section] 473[, subdivision] (b) and the balance of the means listed in
[section] 470[,subdivision] (d).” We disagree. As the People argue, it is “reasonable

                                               9
to presume” that the drafters of Proposition 47 and the electorate wanted to distinguish
between the seven negotiable instruments specified in section 473, subdivision (b), and
a credit card receipt, which is not a negotiable instrument. The drafters and electorate
could reasonably have determined that fraudulent use of a credit card could result in
greater harm than writing a bad check or committing check fraud, since forgery
committed with a credit card can result in ongoing financial loss and damage to a
victim’s credit history, whereas forgery committed with one of the financial instruments
listed in section 473, subdivision (b) will, as the People point out, “generally result in
more limited harm to a victim centered around a one-time loss.”
       We find that there is a “plausible basis” for the alleged disparity in excluding a
“receipt for goods” forgery conviction from reclassification and resentencing under
section 1170.18 while including forgeries involving the seven negotiable instruments
specified in section 473, subdivision (b). (See Johnson, supra, 60 Cal.4th at p. 881.)
Because there is a rational basis for Proposition 47’s distinction between offenders who
were convicted of forgery involving the instruments listed in section 473, subdivision (b)
and offenders convicted of “receipt for goods” forgeries, defendant’s equal protection
claim fails.
                                   IV.    DISPOSITION
       The August 25, 2015 order denying defendant’s Penal Code section 1170.18
petition is affirmed.
                                    ___________________________________________
                                    BAMATTRE-MANOUKIAN, J.

WE CONCUR:

__________________________
ELIA, ACTING P.J.

__________________________
MIHARA, J.



                                              10
Filed 11/7/16
                          CERTIFIED FOR PUBLICATION


                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                            SIXTH APPELLATE DISTRICT


THE PEOPLE,                                        H042889
                                                  (Santa Cruz County
        Plaintiff and Respondent,                  Super. Ct. No. F00652)

        v.                                        ORDER FOR PUBLICATION

SALVADOR MARTINEZ, JR.,

        Defendant and Appellant.



THE COURT:
        The opinion in the above-entitled matter filed on October 12, 2016, was not
certified for publication in the Official Reports. The Office of the Attorney General has
requested the opinion be certified for publication. It appears that the opinion meets the
standards set forth in California Rules of Court, rules 8.1105(c). The request is
GRANTED. The opinion is ordered published in the Official Reports.



                                    _________________________________________
                                    BAMATTRE-MANOUKIAN, J.


                                    __________________________________________
                                    ELIA, ACTING P.J.


                                    ___________________________________________
                                    MIHARA, J.
Trial Court:                           Santa Cruz County Superior Court
                                       Superior Court No.: F00652


Trial Judge:                           Hon. Timothy R. Volkmann


Attorneys for Defendant and            Tania Rose
Appellant:
Salvador Martinez, Jr.                 Sixth District Appellate Program


Attorneys for Plaintiff and Respondent: Kamala D. Harris
The People                              Attorney General of California
                                        Gerald A. Engler
                                        Chief Assistant Attorney General
                                        Jeffrey M. Laurence
                                        Senior Assistant Attorney General
                                        Catherine A. Rivlin
                                        Supervising Deputy Attorney General
                                        Karen Z. Bovarnick
                                        Deputy Attorney General
