Filed 4/20/16 P. v. Sariaslan CA2/8
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT



THE PEOPLE,                                                          B264930

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                      Super. Ct. No. A087453)
         v.

RAMIN SARIASLAN,

         Defendant and Appellant.



         APPEAL from an order of the Superior Court of Los Angeles County. David R.
Fields, Judge. Reversed and remanded.


         Janet Uson, under appointment by the Court of Appeal, for Defendant and
Appellant.


         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Mary Sanchez and Paul S. Thies,
Deputy Attorneys General, for Plaintiff and Respondent.


                                                       *********
       Defendant Ramin Sariaslan appeals from the May 8, 2015 order denying his
application for relief under Proposition 47 (The Safe Neighborhoods and Schools Act;
Pen. Code, § 1170.18)1 to have his 1983 felony conviction for forgery (§ 470) designated
a misdemeanor. Defendant was convicted of two counts of forgery in 1983; one for a
check in the amount of $680, and another for a check in the amount of $1,500.
Defendant’s Proposition 47 application did not specify for which count he was seeking
reclassification. The trial court denied the application, finding that “the amount of the
forgery is greater than $950.00 and is not eligible for Proposition 47 relief.” We reverse,
finding that defendant’s conviction relating to the $680 check was eligible for
reclassification as a misdemeanor under Proposition 47. However, we reject defendant’s
claim that he was entitled to reclassification of both counts.

                  FACTUAL AND PROCEDURAL BACKGROUND
       In July 1983, a felony complaint was filed charging defendant with 10 counts,
including counts for grand theft and forgery. In August 1983, defendant entered a guilty
plea to two counts of forgery, in violation of section 470 (counts 3 & 6). According to
the complaint, count 3 involved a forged check for $680, and count 6 involved a forged
check for $1,500. The remaining counts were dismissed.
       On February 9, 2015, defendant filed an application seeking to have his conviction
reduced from a felony to a misdemeanor under section 1170.18, subdivision (f). He
checked the box on the application indicating that “[t]he amount in question is not more
than $950.00.” On February 25, 2015, defendant’s application, proof of service, and the
court file from defendant’s 1983 conviction were forwarded to Department 46. On
May 8, 2015, the People filed their response, opposing the application on the basis that
the amount of the forgery was in excess of $950. On May 8, 2015, the court denied
defendant’s application without a hearing.




1      All further statutory references are to the Penal Code.

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                                      DISCUSSION
       Defendant contends the court erroneously denied his application for
reclassification because Proposition 47 amended section 473 to classify as a
misdemeanor any forgery offense where the value of the forged instrument does not
exceed $950. (§ 1170.18, subd. (a).) He also contends, for the first time on appeal, that
he is entitled to resentencing on both counts, arguing that “[w]ithout evidence that the
forged checks were accepted, each check in counts 3 and 6 in this case was merely a
piece of paper with slight intrinsic value and was a nullity, legally void, and valueless.”
       Proposition 47 reduced the penalties for certain drug and theft-related offenses and
reclassified those offenses as misdemeanors rather than felonies. (§ 1170.18; People v.
Sherow (2015) 239 Cal. App. 4th 875, 879 (Sherow); People v. Rivera (2015) 233
Cal. App. 4th 1085, 1091.) Defendants previously convicted of felonies that were
reclassified as misdemeanors under Proposition 47, who have completed their sentence,
may apply to have their felony conviction designated as a misdemeanor. (§ 1170.18,
subd. (f).) The applicant bears the burden of proving that he or she is eligible for
Proposition 47 relief. (Sherow, at pp. 879-880.)
       It is well settled that Proposition 47 amended section 473 to reclassify forgery (as
defined in section 470) as a misdemeanor if the value of the forged instrument does not
exceed $950, with specific exceptions not applicable here. (§ 473, subd. (b); People v.
Hoffman (2015) 241 Cal. App. 4th 1304, 1309-1310.)
       Nevertheless, respondent contends that defendant did not meet his burden of proof
of establishing his eligibility for relief under Proposition 47, reasoning defendant did not
adduce any evidence that the forgeries were for sums less than $950, and because
defendant did not specify on his application for which of his two felony convictions he
sought reclassification. However, respondent also concedes that “the trial court might
have erred in not reducing appellant’s conviction for count 3 because the check was
written for a sum less than $950.”




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       The case file from defendant’s 1983 conviction included the felony complaint and
defendant’s plea agreement. The complaint alleged that count 3 was based on
defendant’s forgery of a check for $680. Count 3 is eligible for Proposition 47 relief.
       For the first time on appeal, defendant argues he is entitled to resentencing on both
counts, on the basis that “a forged check does not have a value equal to the amount for
which it is written” and is of no value unless it is “accepted.” (People v. Cuellar (2008)
165 Cal. App. 4th 833, 838 (Cuellar) [construing grand theft statute]; see also People
Caridis (1915) 29 Cal. App. 166, 168-169 [same].) He reasons that there was no evidence
in the record that either of his forged checks was “accepted,” therefore, the checks were
presumptively worthless. This theory was never presented to the trial court, and
defendant presented no evidence that his forged checks were not “accepted” with his
application for Proposition 47 relief. Therefore, defendant did not meet his burden to
establish his entitlement to resentencing on this theory. (Sherow, supra, 239 Cal.App.4th
at pp. 879-880.)
       And, in any event, Cuellar is distinguishable because it concerned a charge of
grand theft from the person of another in violation of section 487, subdivision (c) and not
the forgery statute. (Cuellar, supra, 165 Cal.App.4th at p. 836.)2 Section 470 provides
that “[e]very person who, with the intent to defraud, knowing that he or she has no
authority to do so, signs the name of another person or of a fictitious person to [a check]
is guilty of forgery.” Section 473 provides that “any person who is guilty of forgery
relating to a check . . . where the value of the check . . . does not exceed nine hundred
fifty dollars ($950)” is guilty of a misdemeanor, whereas forgery for a greater amount
constitutes a felony. Section 470, defining the elements of forgery, does not require that
the forged instrument be accepted. Defendant’s proposed construction of the law would

2       The defendant in Cuellar was convicted of grand theft from the person of another
based on his act of grabbing a forged check out of a sales clerk’s hand. He argued on
appeal that grand theft from a person required that the item taken have some value, and
that a forged check lacked any value. The court found that substantial evidence
supported the defendant’s grand theft conviction, reasoning that the phony check had
some minimal “intrinsic value.” (Cuellar, supra, 165 Cal.App.4th at p. 839.)

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impose an additional element for felony forgery convictions (e.g., that the forged
instrument be accepted or cashed). We are not persuaded.3
                                      DISPOSITION
       The order denying the application is reversed, and the matter is remanded to the
trial court with directions to grant the application, and designate defendant’s conviction
for count 3 a misdemeanor.
                                                  GRIMES, J.


       WE CONCUR:
                     RUBIN, Acting P. J.




                     FLIER, J.




3      Defendant also contends the trial court’s denial of his application violates his right
to due process. We find no merit in this argument, as defendant’s flawed theory was
never properly presented to the trial court, and has no merit. (See also Sherow, supra,
239 Cal.App.4th at pp. 879-880 [no due process violation in denying petition for
resentencing].)


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