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Name: People v. Gollardo
Case #: A146961
Court: CA Court of Appeal
District 1 DCA
Division: 3
Opinion Date: 11/17/2017

Felony offense of forging and issuing a prescription for a narcotic drug (Health & Saf. Code, § 11368) is ineligible for reduction to a misdemeanor under Proposition 47. In June 2015, defendant presented a forged prescription for a bottle of codeine cough syrup to a Walgreen’s pharmacist. Suspecting the prescription was fraudulent, the pharmacist recorded defendant’s identifying information and contacted police. Defendant was arrested and charged with forging and issuing a prescription for a narcotic drug and burglary. Two strike priors were alleged. After the preliminary hearing he moved to reduce the prescription offense to a misdemeanor under Proposition 47 (Pen. Code, § 1170.18). The court denied his motion and defendant entered a plea to the prescription forgery offense and admitted the strike priors. He was sentenced and appealed, arguing that his section 11368 offense qualified as “petty theft” under Penal Code section 490.2 (added by Proposition 47). Held: Affirmed. Proposition 47 reduced some theft and drug-related offenses to misdemeanors and created a resentencing procedure allowing qualified defendants currently serving a felony sentence for an eligible offense to petition for reclassification of their crime to a misdemeanor. Putting aside the issue of whether defendant’s motion was procedurally defective because it was filed prior to sentencing, he is nonetheless ineligible for Proposition 47 relief. Neither Proposition 47 nor section 1170.18 mentions section 11368. Further, the misdemeanor sentencing provision for “petty theft” under 490.2 does not apply to violations of section 11368, which was not just intended to criminalize theft or drug possession, but was also intended to protect the integrity and trustworthiness of our medical system and protect public health and safety. The appellate court concluded that section 11368 does not come within the scope of Proposition 47. [Editor’s Note: Justice Pollak dissented, concluding that defendant’s offense is covered by section 490.2, as it is a theft-related offense, and that categorically excluding petty thefts charged under section 11368 contradicts Proposition 47’s explicit purpose of reducing prison spending/overcrowding and maximizing alternatives for nonserious crimes.]

The trial court did not abuse its discretion in denying defendant’s Penal Code section 17, subdivision (b) motion to treat his section 11368 offense as a misdemeanor for purposes of sentencing. Just before sentencing, defendant renewed his motion to reduce the prescription offense, which is a wobbler, to a misdemeanor, this time citing section 17, subdivision (b). He argued on appeal the trial court abused its discretion in denying his motion. However, the trial court based its decision on relevant criteria, such as defendant’s history of gang activity, multiple strike offenses, and recent failures on probation and parole. The record did not reflect that the trial court ignored defendant’s mitigating factors. The party attacking the sentence has the burden of showing the sentencing decision was irrational or arbitrary. In the absence of such a showing, as here, it is presumed the trial court acted properly to achieve legitimate sentencing objectives.

The full opinion is available on the court’s website here: