A conviction for identity theft must be transactionally related to forgery conviction in order to exclude defendant from Proposition 47 relief under Penal Code section 473, subdivision (b). Defendant pleaded no contest to forgery and fraud offenses (which included violations of Pen. Code, §§ 470, subd. (d), 475, subd. (b), 476) committed in 2003 and 2005, and to one count of identity theft (Pen. Code, § 530.5) from a 2006 case. The trial court consolidated the cases and sentenced defendant in the same proceeding on all charges. After the passage of Proposition 47, defendant petitioned for relief to have his offenses redesignated as misdemeanors. The trial court denied the petition on the ground that defendant was ineligible for relief based on his “current convictions.” Defendant appealed. Held: Reversed. Proposition 47 provides for the redesignation of certain crimes as misdemeanors and provides a procedure in section 1170.18 for retrospective relief. It amended section 473, subdivision (b) to reduce certain forgery offenses to misdemeanors, but misdemeanor status does not apply to forgery convictions where a person “is convicted of both forgery and of identity theft.” The court agreed with defendant that section 473, subdivision (b) is ambiguous as to whether the forgery and identity theft conviction must arise in the same transaction or can be parts of independent transactions. After considering the election materials and voter guide, the court concluded that it is clear that the “convicted of both” language applies only to identity theft that is committed in a transactionally related manner with the forgery of an instrument, and not where the identity theft occurred in a separate transaction that simply happened to be part of the same sentencing proceeding. Because defendant’s identity theft conviction was not transactionally related to his forgery convictions, the trial court erred in finding defendant ineligible for Proposition 47 relief on those counts.

Defendant’s conviction for possessing counterfeit driver’s licenses with the intent to assist a forgery did not qualify for Proposition 47 relief. Gonzales was also convicted of possessing counterfeit driver’s licenses with the intent to assist a forgery (Pen. Code, § 470b). The Court of Appeal concluded that Gonzales was not eligible for Proposition 47 relief on this count because “this type of forged instrument is not included in the list of instruments for which misdemeanor status is prescribed in section 473(b) (‘forgery relating to a check, bond, bank bill, note, cashier’s check, traveler’s check, or money order’).”

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/C078960.PDF