P. v. Martinez

Filed 12/23/16 P. v. Martinez CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
opinions not certified for publication or ordered published, except as specified by rule
8.1115(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
FRANK REYNALDO MARTINEZ,
Defendant and Appellant.
B263067
(Los Angeles County
Super. Ct. No. LA077972)
APPEAL from a judgment of the Superior Court of Los
Angeles County, Gregory Dohi, Judge. Affirmed.
Alan S.Yockelson, 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 Andrew S. Pruitt, Deputy
Attorneys General, for Plaintiff and Respondent.

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A jury convicted Frank Reynaldo Martinez of petty theft
(Pen. Code, § 490.2; count 1),1 misdemeanor forgery (§ 475, subd.
(b); count 2), driving or taking a vehicle without consent, a felony
(Veh. Code, § 10851, subd. (a); count 3), and forgery of checks
with a value in excess of $950, a felony (§ 475, subd. (a); count 4).
Martinez argues on appeal that (1) his conviction for driving or
taking a vehicle without consent should have been classified as a
misdemeanor under section 490.2, rather than as a felony, (2) his
conviction for violating section 475, subdivision (a), was
improperly based on the aggregation of the stated values of the
forged checks in his possession, and (3) there was no evidence he
“falsely made the checks” in support of his section 475
convictions. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Our summary of the relevant factual events is based on
Martinez’s commission of crimes involving three victims.
1. Possession of Forged Checks
On April 4, 2014, Manucheher Afari inadvertently left his
briefcase outside his building. When he returned to retrieve the
briefcase, it was gone. Inside the briefcase was a personal
checkbook and checkbooks for Afari’s companies, Viewpoint LLC
and Warner Plaza LLC. The following month, an officer initiated
a traffic stop on a car driven by Martinez. The car was
impounded and was later searched by a detective. The detective
found three sets of checks behind the driver’s seat: (1) nine
checks from Afari’s personal account, which were fraudulently
signed but did not specify an amount or a payee; (2) four
1 All further statutory references are to the Penal Code
unless otherwise stated.

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completed checks from Warner Plaza LLC’s account in amounts
ranging from $295$865, and one incomplete check from the
same account; and (3) four completed checks from Viewpoint
LLC’s account in amounts ranging from $380$525.2
2. Theft of a Bumper
On May 21, 2014, at approximately 3:00 a.m., Spencer
Smith exited his house and noticed the front bumper had been
removed from his car, a gray Scion XB. He saw the same model
of car parked down the street, and observed his bumper and
license plate in the back of that car. He then saw Martinez get in
that car and drive away.
3. Unlawful Taking and Driving of a Vehicle
On October 21, 2014, Sergio Fuentes reported that his 1995
Honda Civic was missing. On November 3, 2014, Martinez was
arrested driving the car.
4. Criminal Proceedings
On December 1, 2014, an information was filed against
Martinez, charging him with petty theft (§ 490.2) based on the
taking of Smith’s bumper, and unlawful driving or taking of a
vehicle, a felony (Veh. Code, § 10851, subd. (a)), based on the
taking of Fuentes’s car. The information also charged Martinez
with misdemeanor forgery (§ 475, subd. (b)), and forgery
exceeding $950, a felony (§ 475, subd. (a)), based on his
possession of forged checks. The misdemeanor forgery charge
was based on Martinez’s fraudulent possession of “blank”
2 The checks from the Viewpoint LLC account were all
fraudulently signed and made payable to Martinez. The checks
from the Warner Plaza account were all fraudulently signed; one
was made payable to Martinez, one was blank, and three were
made payable to “Kristin Johnson.”

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checks—checks that did not specify an amount or payee—and the
felony forgery charge was based on Martinez’s fraudulent
possession of eight “forged” checks—checks that were signed and
specified an amount and payee. The information further alleged
Martinez had suffered one prior prison term within the meaning
of section 667.5, subdivision (b). Martinez pled not guilty.
Prior to trial, Martinez moved under section 995 to set
aside the Vehicle Code section 10851 charge on the ground that
Proposition 47, the Safe Neighborhoods and Schools Act, had
reduced the unlawful taking or driving of a vehicle to
misdemeanor petty theft via section 490.2. The trial court denied
the motion on the ground that section 490.2 does not apply to
Vehicle Code section 10851.
During trial, Martinez moved under section 1118.1 for a
judgment of acquittal as to the felony forgery charge on the
ground that none of the forged checks exceeded the value of $950.
Martinez argued that, under section 473, forgery is punishable as
a misdemeanor unless the value of the forged instrument exceeds
$950. The trial court denied the motion, concluding that under
People v. Carter (1977) 75 Cal.App.3d 865, the fraudulent
possession of multiple checks constitutes a single offense and,
therefore, it was proper to aggregate the values of the checks at
issue to determine whether the felony threshold had been met.
The jury found Martinez guilty on all counts. In a
bifurcated proceeding, Martinez admitted the prior prison term
allegation. The trial court sentenced Martinez to a prison term of
four years, consisting of the upper term of three years for the
violation of Vehicle Code section 10851, plus one year for the
prison prior pursuant to section 667.5, subdivision (b). The

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sentences on the other charges were imposed concurrently.
Martinez timely appealed.
CONTENTIONS
Martinez contends that (1) section 490.2, which reduced the
penalty for “obtaining any property by theft where the value of
the . . . property taken does not exceed . . . $950,” applies to his
conviction under Vehicle Code section 10851, (2) his conviction for
violating section 475, subdivision (a) was improperly based on the
aggregation of the stated values of the forged checks in his
possession, and (3) there was no evidence he “falsely made the
checks,” as required to support his section 475 convictions.
Respondent contends that the February 11, 2015 minute order
should be modified to correct a clerical error.
DISCUSSION
1. Violation of Vehicle Code Section 10851
Martinez contends that his Vehicle Code section 10851
conviction qualifies as a misdemeanor under section 490.2,
enacted by Proposition 47, because the value of the vehicle
involved did not exceed $950. In essence, Martinez is arguing
there is insufficient evidence supporting his felony conviction
under Vehicle Code section 10851 because an implied element of
that conviction is that the vehicle taken or driven is worth more
than $950. We conclude that section 490.2 does not apply to
Vehicle Code section 10851, and therefore Martinez was properly
convicted of a felony violation of Vehicle Code section 10851.3
3 Because we conclude that section 490.2 does not apply to
Vehicle Code section 10851, we do not address respondent’s
argument that Martinez’s conviction was for joyriding, not
vehicle theft.

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a. Proposition 47 and section 490.2
Proposition 47 amended and enacted various provisions of
the Penal and Health and Safety Codes to reduce certain drug
and theft offenses to misdemeanors, unless committed by
ineligible defendants. (Alejandro N. v. Superior Court (2015)
238 Cal.App.4th 1209, 1222; People v. Diaz (2015) 238
Cal.App.4th 1323, 1327-1328; People v. Shabazz (2015)
237 Cal.App.4th 303, 308.) When an eligible defendant is
convicted, after Proposition 47’s effective date, of one of the
offenses defined by Proposition 47 as a misdemeanor, he or she
may only be convicted of a misdemeanor. (People v. Shabazz, at
p. 309.) Proposition 47 also enacted section 1170.18, which
creates a procedure whereby a defendant who has suffered a
felony conviction of one of the reclassified crimes can petition to
have it redesignated a misdemeanor. (People v. Sherow (2015)
239 Cal.App.4th 875, 879.)
One of the mechanisms by which Proposition 47 reduced
theft crimes to misdemeanors was enactment of section 490.2. It
provides in pertinent part: “Notwithstanding Section 487 or any
other provision of law defining grand theft, obtaining any
property by theft where the value of the money, labor, real or
personal property taken does not exceed nine hundred fifty
dollars ($950) shall be considered petty theft and shall be
punished as a misdemeanor, except that such person may instead
be punished pursuant to subdivision (h) of Section 1170 if that
person has 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.” (§ 490.2, subd. (a).)

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b. Theft and Vehicle Code section 10851
Section 484 (which predates Proposition 47 and was not
amended by it) defines theft. In relevant part it provides: “Every
person who shall feloniously steal, take, carry, lead, or drive away
the personal property of another, or who shall fraudulently
appropriate property which has been entrusted to him or her, or
who shall knowingly and designedly, by any false or fraudulent
representation or pretense, defraud any other person of money,
labor or real or personal property, or who causes or procures
others to report falsely of his or her wealth or mercantile
character and by thus imposing upon any person, obtains credit
and thereby fraudulently gets or obtains possession of money, or
property or obtains the labor or service of another, is guilty of
theft.” (§ 484, subd. (a), italics added.) An element of the crime of
theft is the intent to permanently deprive the owner of the
property. (People v. Bacon (2010) 50 Cal.4th 1082, 1117; In re
Jesus O. (2007) 40 Cal.4th 859, 867; People v. Avery (2002)
27 Cal.4th 49, 52.)4
Vehicle Code section 10851, subdivision (a), provides: “Any
person who drives or takes a vehicle not his or her own, without
the consent of the owner thereof, and with intent either to
permanently or temporarily deprive the owner thereof of his or
her title to or possession of the vehicle, whether with or without
intent to steal the vehicle, or any person who is a party or an
accessory to or an accomplice in the driving or unauthorized
taking or stealing, is guilty of a public offense and, upon
4 The intent to deprive an owner of the main value of his or
her property is the equivalent of the intent to permanently
deprive. (People v. Avery, supra, 27 Cal.4th at p. 57.)

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conviction thereof, shall be punished by imprisonment in a
county jail for not more than one year or pursuant to subdivision
(h) of Section 1170 of the Penal Code or by a fine of not more than
five thousand dollars ($5,000), or by both the fine and
imprisonment.” Other subdivisions of the statute address, inter
alia, the theft or unauthorized driving of specific types of vehicles
and punishment for recidivists. (Veh. Code, § 10851, subds. (b),
(e).)
Vehicle Code section 10851 “ ‘proscribes a wide range of
conduct.’ ” (People v. Garza (2005) 35 Cal.4th 866, 876 (Garza).)
There “are two ways of violating section 10851: the defendant
can either ‘drive’ or ‘take’ the vehicle.” (People v. Smith (2013)
57 Cal.4th 232, 242.) Thus, a “person can violate section 10851(a)
‘either by taking a vehicle with the intent to steal it or by driving
it with the intent only to temporarily deprive its owner of
possession (i.e., joyriding).’ ” (Garza, supra, at p. 876.) In Garza,
our Supreme Court held, prior to Proposition 47’s passage and in
a different context, that “[u]nlawfully taking a vehicle with the
intent to permanently deprive the owner of possession is a form
of theft, and the taking may be accomplished by driving the
vehicle away. For this reason, a defendant convicted under
section 10851(a) of unlawfully taking a vehicle with the intent to
permanently deprive the owner of possession has suffered a theft
conviction and may not also be convicted under section 496(a) of
receiving the same vehicle as stolen property. On the other hand,
unlawful driving of a vehicle is not a form of theft when the
driving occurs or continues after the theft is complete
(for convenience, we will refer to this as post-theft driving).
Therefore, a conviction under section 10851(a) for post-theft
driving is not a theft conviction and does not preclude a

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conviction under section 496(a) for receiving the same vehicle as
stolen property.” (Id. at p. 871.)
c. Section 490.2 does not apply to Vehicle Code
section 10851
The question before us is whether section 490.2 ever
applies to Vehicle Code section 10851, and, if so, whether it
applies only to the “theft” version or also to the “joyriding/post-
theft driving” version. The issue of whether Proposition 47
applies to violations of Vehicle Code section 10851 is pending
before the California Supreme Court. (See People v. Page (2015)
241 Cal.App.4th 714, review granted Jan. 27, 2016, S230793;
People v. Solis (2016) 245 Cal.App.4th 1099, review granted June
8, 2016, S234150.) We conclude section 490.2 does not apply to
Vehicle Code section 10851.
When interpreting a voter initiative, our primary purpose
is to ascertain and effectuate the voters’ intent. (People v. Park
(2013) 56 Cal.4th 782, 796; People v. Briceno (2004) 34 Cal.4th
451, 459; People v. Shabazz, supra, 237 Cal.App.4th at p. 313.)
We apply the same principles that govern statutory construction.
Thus, we look first to the language of the statute, giving the
words their ordinary meaning. (People v. Park, at p. 796; People
v. Superior Court (Pearson) (2010) 48 Cal.4th 564, 571.) The
plain meaning of the statutory language controls, unless it would
lead to absurd results the electorate could not have intended.
(People v. Birkett (1999) 21 Cal.4th 226, 231; People v. Brown
(2014) 230 Cal.App.4th 1502, 1508-1509.) The statutory
language must be construed in the context of the statute as a
whole and the overall statutory scheme. (People v. Briceno, at
p. 459; Robert L. v. Superior Court (2003) 30 Cal.4th 894, 901.)
When the statutory language is ambiguous, we refer to other

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indicia of the voters’ intent, particularly the analyses and
arguments contained in the official ballot pamphlet. (People v.
Superior Court (Pearson), at p. 571; People v. Shabazz, at p. 313.)
We review questions of statutory interpretation de novo. (People
v. Prunty (2015) 62 Cal.4th 59, 71; People v. Sherow, supra, 239
Cal.App.4th at p. 878.)
At first glance, it appears section 490.2, subdivision (a)’s
language—“obtaining any property by theft”—applies when a
defendant takes a vehicle worth $950 or less with the intent to
permanently deprive the owner of possession. A vehicle is clearly
personal property. Under section 484, taking the personal
property of another with the intent to permanently deprive the
owner of it is theft. (See People v. Chun (2009) 45 Cal.4th 1172,
1183-1184; In re Jesus O., supra, 40 Cal.4th at p. 867.) Indeed,
our Supreme Court has stated that a defendant convicted under
Vehicle Code section 10851 of unlawfully taking a vehicle with
the intent to permanently deprive the owner of possession “has
suffered a theft conviction.” (Garza, supra, 35 Cal.4th at p. 871.)
But several factors militate against the conclusion section
490.2 applies to Vehicle Code section 10851. Proposition 47 did
not directly amend Vehicle Code section 10851, but left its
provisions intact. Nor does section 490.2 mention Vehicle Code
section 10851; in pertinent part, it expressly references only the
grand theft statute, section 487. This omission is significant
because, unlike statutes that simply prohibit theft, Vehicle Code
section 10851 is much broader, applying to defendants who have
committed not theft but joyriding (“post-theft driving”). Thus,
section 490.2 cannot apply to all violations of Vehicle Code
section 10851. Proposition 47’s resentencing provision, section
1170.18, likewise fails to include Vehicle Code section 10851 as

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one of the enumerated offenses eligible for resentencing. Given
the foregoing, application of Proposition 47 to Vehicle Code
section 10851 is unclear at best.
Moreover, it is settled that a specific statute prevails over a
general statute on the same subject. (People v. Ahmed (2011)
53 Cal.4th 156, 163; People v. Betts (2005) 34 Cal.4th 1039, 1058
[if general and specific statutes dealing with the same subject are
inconsistent, the specific prevails over the general]; Velasquez v.
Superior Court (2014) 227 Cal.App.4th 1471, 1475; Code Civ.
Proc., § 1859.) Here, Vehicle Code section 10851 is the more
specific statute. Subdivision (a) provides that violation of the
statute is generally a “wobbler,” that is, the offense may be
punished alternatively as a felony or a misdemeanor.5 (See
People v. Park, supra, 56 Cal.4th at p. 789 & fn. 4; People v. Solis,
supra, 245 Cal.App.4th at p. 1117, review granted.) Vehicle Code
section 10851, subdivision (b) makes the offense a felony and
5 Pursuant to section 17, a “felony is a crime that is
punishable with death, by imprisonment in the state prison, or
notwithstanding any other provision of law, by imprisonment in a
county jail under the provisions of subdivision (h) of Section 1170.
Every other crime or public offense is a misdemeanor except
those offenses that are classified as infractions.” (§ 17, subd. (a);
People v. Park, supra, 56 Cal.4th at p. 789.) “There is, however, a
special class of crimes involving conduct that varies widely in its
level of seriousness. Such crimes, commonly referred to as
‘wobbler[s]’ [citation], are chargeable or, in the discretion of the
court, punishable as either a felony or a misdemeanor; that is,
they are punishable either by a term in state prison or by
imprisonment in county jail and/or by a fine.” (People v. Park, at
p. 789; People v. Rivera (2015) 233 Cal.App.4th 1085, 1094; § 17,
subd. (b).)

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prescribes specific terms when a defendant takes or unlawfully
drives specialized vehicles under certain circumstances, i.e.,
ambulances, distinctively marked law enforcement or fire
department vehicles on emergency calls, and vehicles that have
been modified for the use of a disabled veteran or any other
disabled person and display a distinguishing placard or plate.
Subdivision (e) provides that recidivists are punishable as set
forth in section 666.5. Section 666.5 specifies that a person who,
having been previously convicted of a felony violation of Vehicle
Code section 10851 or other statutes, and is “subsequently
convicted of any of these offenses” shall be punished as a felon.
(§ 666.5, subd. (a), italics added.) The plain language of section
666.5 thus requires that both the prior and the current crime
must be felonies in order for section 666.5 to apply.
Section 490.2 conflicts with these provisions. Applying
section 490.2 to Vehicle Code section 10851 would upset this
careful scheme. If section 490.2 applied, theft of a vehicle would
no longer be a “wobbler” if the vehicle’s value did not exceed
$950. A defendant who stole one of the vehicles enumerated in
subdivision (b) of Vehicle Code section 10851, if valued at $950 or
less, could be sentenced only as a misdemeanant, rather than to
the two, three, or four year term specified.6 And, a recidivist who
stole a vehicle worth less than $950 could not be punished for his
or her recidivism, since under section 666.5 both the current and
prior crimes must be felonies.
6 We acknowledge it is unlikely, as a practical matter, that a
police car, fire vehicle, or ambulance being used on an emergency
call would ever fall beneath the $950 threshold. The same is not
necessarily true in regard to a vehicle modified for a disabled
person.

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Certainly, the electorate could have amended Vehicle Code
section 10851 in this fashion had it chosen to do so. But the
statutory language suggests otherwise. When the Legislature—
or here, the voters—“intend[] for a statute to prevail over all
contrary law, it typically signals this intent by using phrases like
‘notwithstanding any other law’ or ‘notwithstanding other
provisions of law.’ [Citations.]” (In re Greg F. (2012) 55 Cal.4th
393, 406-407.) Here, the electorate included such
“notwithstanding” language in regard to section 487 and statutes
defining grand theft, but not to Vehicle Code section 10851.
Section 490.2 provides that “Notwithstanding Section 487 or any
other provision of law defining grand theft, obtaining any
property by theft where the value of the money, labor, real or
personal property taken does not exceed nine hundred fifty
dollars ($950) shall be considered petty theft.” Vehicle Code
section 10851 does not define grand theft; it defines the offense of
unlawfully driving or taking a vehicle. Had the electorate
intended section 490.2 to apply to Vehicle Code section 10851, it
could easily have drafted section 490.2 to read “notwithstanding
Vehicle Code section 10851, Section 487, or any provision of law
defining grand theft.” That the provision approved by the voters
did not include this or similar language suggests the statute was
not intended to apply. “ ‘[W]e may not properly interpret the
measure in a way that the electorate did not contemplate: the
voters should get what they enacted, not more and not less.’
[Citation.]” (People v. Park, supra, 56 Cal.4th at p. 796.)
Furthermore, the language of a statute should not be given
a literal meaning if doing so would result in absurd consequences
that the Legislature, or in this case the electorate, could not have
intended. (People v. Leiva (2013) 56 Cal.4th 498, 506; People v.

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Rodriguez (2012) 55 Cal.4th 1125, 1131; In re J. W. (2002) 29
Cal.4th 200, 209-210; People v. Toussain (2015) 240 Cal.App.4th
974, 979; In re Greg F., supra, 55 Cal.4th at p. 410 [when
interpreting a statute, “courts are obligated to ‘adopt a common
sense construction over one leading to mischief or absurdity’ ”].)
Construing section 490.2 to apply to Vehicle Code section 10851
would lead to just such an absurd consequence. As noted, Vehicle
Code section 10851 can be violated in two ways: taking a vehicle
with the intent to permanently deprive the owner of possession;
or driving the vehicle with the intent to temporarily deprive the
owner of possession. (Garza, supra, 35 Cal.4th at p. 876 [a
defendant can violate Veh. Code, § 10851, subd. (a) “ ‘either by
taking a vehicle with the intent to steal it or by driving it with
the intent only to temporarily deprive its owner of possession
(i.e., joyriding)’ ”].) The former, but not the latter, amounts to
theft. As Garza explained, post-theft driving or joyriding is “not a
form of theft.” (Garza, at p. 871, italics added.) Thus, section
490.2 cannot apply to the “post-theft driving” method of violating
Vehicle Code section 10851; a joyrider who is not the actual thief
did not obtain the property by theft. Therefore, if section 490.2
applies to Vehicle Code section 10851, the result is that where
the vehicle is worth $950 or less, the “theft” version of the crime
becomes a misdemeanor, whereas the “joyriding” version remains
a wobbler. So construed, the law would require that the
defendant with the more culpable mental state (the intent to
permanently deprive the owner of possession) be convicted of only
a misdemeanor, while the defendant with the less culpable
mental state (to temporarily deprive the owner of possession)
could be convicted of a felony. In our view, this is an absurd
result that the electorate did not intend. Nothing in the ballot

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pamphlet suggests the voters were especially concerned about the
activities of post-theft drivers, as opposed to auto thieves; nothing
suggests they thought a thief who steals a low-value vehicle
should be treated as a mere petty criminal, while a defendant
who did not steal, but drives, the exact same vehicle should be
treated as a felon.
For the foregoing reasons, we conclude section 490.2 does
not apply to Vehicle Code section 10851, and the trial court did
not err by declining Martinez’s request to designate his offense a
misdemeanor.
2. The Aggregation of Check Values Under Section 475
Martinez argues he was improperly convicted of felony
forgery under section 475, subdivision (a) because his possession
of eight forged checks7 constituted eight “separate and distinct
acts” of misdemeanor forgery. He further argues the court erred
by aggregating the value of each check to meet the threshold of a
felony offense under section 473. We conclude Martinez’s
conviction for felony forgery was properly based on a single act of
possession of eight forged checks, and the stated values of those
checks were properly aggregated in determining whether the
$950 threshold set forth by section 473 had been exceeded.
Under section 473, which was amended by Proposition 47,
forgery remains a wobbler offense where the value of the
instrument is greater than $950. (§ 473, subd. (b).) Where the
7 This charge was based on Martinez’s possession of eight
completed checks: four drawn from the Viewpoint LLC account
in the amounts of $450, $525, $480 and $380, and four drawn
from the Warner Plaza LLC account in the amounts of $495,
$723, $485 and $865.

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value of the instrument is less than $950 and no exceptions
apply, forgery is a misdemeanor. (§ 473, subd. (a).)
Martinez cites to People v. Neder (1971) 16 Cal.App.3d 846
(Neder) in support of his argument that his possession of forged
checks constituted separate offenses.8 In Neder, the defendant
was convicted of three counts of forgery in violation of section 470
based on evidence that he made three separate purchases using a
stolen credit card. (Neder, at pp. 849-850.) On appeal, the
defendant argued that he committed only one crime because the
three acts of forgery were part of a single plan to take goods from
the store by forging credit card slips. (Id. at p. 850.) The court
disagreed, reasoning that “we have three separate forgeries, each
directed to the obtaining of different property and none playing a
part in the accomplishment of the end of the others.” (Id. at p.
854.)
Neder is distinguishable because it involved a prosecution
for forgery under former section 470. Here, by contrast, Martinez
was charged under section 475, subdivision (a)—“a possession
statute” (People v. Valenzuela (2012) 205 Cal.App.4th 800, 806)—
8 The parties agree that the rule articulated in People v.
Bailey (1961) 55 Cal.2d 514 does not apply here. (See id. at p.
519 [“Whether a series of wrongful acts constitutes a single
offense or multiple offenses depends upon the facts of each case,
and a defendant may be properly convicted [on] separate counts
charging grand theft from the same person if the evidence shows
that the offenses are separate and distinct and were not
committed pursuant to one intention, one general impulse, and
one plan.”].) We also conclude that the Bailey rule, which
addresses thefts committed under a “single plan,” does not apply
to Martinez’s act of possession under section 475, subdivision (a).
(Bailey, at p. 518.)

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which provides that “[e]very person who possesses or receives,
with the intent to pass or facilitate the passage or utterance of
any forged, altered, or counterfeit items, or completed items
contained in subdivision (d) of Section 470 with intent to defraud,
knowing the same to be forged, altered, or counterfeit, is guilty of
forgery.” (§ 475, subd. (a), italics added.)
In People v. Carter, supra, 75 Cal.App.3d 865, the court
held that possession of multiple checks with intent to defraud
constituted a single offense under section 475. (Carter, at p. 872.)
Likewise, in People v. Morelos (2008) 168 Cal.App.4th 758, the
court held that the defendants were each guilty of only a single
count of forgery under section 475 based on their possession of
multiple checks drawn from multiple accounts with the intent to
defraud. (Morelos, at pp. 763-764.) Here, as in Carter and
Morelos, Martinez’s possession of eight completed checks was
properly considered a single offense under section 475 as opposed
to multiple acts of forgery.
Martinez next argues that it was improper to aggregate the
values of the forged checks he possessed in determining whether
the $950 threshold of a felony offense set forth by section 473 had
been exceeded. 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), shall
be punishable by imprisonment in a county jail for not more than
one year . . . .” (§ 473, subd. (b).) Martinez cites to People v.
Hoffman (2015) 241 Cal.App.4th 1304 (Hoffman) for the court’s
holding that “section 473 does not authorize the trial court to
aggregate check values.” (Id. at p. 1310.)
The Hoffman court addressed the defendant’s conviction of
seven counts of forgery in violation of section 470. (Hoffman,

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supra, 241 Cal.App.4th at p. 1307.) The court held that the check
values for each separate count could not be aggregated in
determining whether the $950 threshold set forth by section 473
had been exceeded. (Hoffman, at p. 1310.) Here, by contrast,
Martinez was properly convicted of one count of violating section
475 based on his possession of eight checks. Hoffman’s
conclusion that a court may not aggregate the values of checks at
issue in different counts and for violations of a different statute
does not apply here.
Furthermore, although section 473 refers to “check” in the
singular, under section 7, words used in “the singular number
include[] the plural.” Accordingly, we read the phrase “value of
the check” in section 473 to include multiple checks. (See People
v. Mutter (2016) 1 Cal.App.5th 429, 436 [holding that possession
of seven counterfeit $100 bills in violation of section 475,
subdivision (a) was a misdemeanor because prosecution agreed
the aggregated value of bills was less than $950].) Here, it is
undisputed that the stated values of the eight checks at issue,
when aggregated, exceed $950.9 Therefore, Martinez was
properly convicted of a felony under section 473.
9 We note that the issue of whether, for the purpose of the
distinction between felony and misdemeanor forgery, the value of
an uncashed forged check is determined based on the face value
(or stated value) of the check or only the intrinsic value of the
paper it is printed on is pending before the Supreme Court. (See
People v. Franco (2016) 245 Cal.App.4th 679, review granted
June 15, 2016, S233973.)

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3. Evidence in Support of Section 475 Violations
Martinez contends he was improperly convicted of violating
section 475, subdivisions (a) and (b) because there was “no
evidence [he] falsely made the checks.” In support of this
argument he cites to People v. Reisdorff (1971) 17 Cal.App.3d 675
(Reisdorff) for the proposition that a violation of section 475 must
be supported by evidence that the defendant “was responsible for”
forging the checks.
Reisdorff does not apply here. In that case, the court held
there was no evidence supporting the defendant’s conviction of
forgery in violation of section 470. (Reisdorff, supra, 17
Cal.App.3d at p. 679 [“there was no evidence that defendant
himself falsely made the check which he uttered”].) “The crime of
forgery [under section 470] . . . consists either in the false making
or alteration of a document without authority or the uttering of
such a document, knowing the same to be forged, with the intent
to defraud. (Pen. Code, § 470.)” (People v. Swope (1969)
269 Cal.App.2d 140, 143.) Here, by contrast, Martinez was
convicted of possession of checks, both incomplete and completed,
with the intent to defraud in violation of section 475.
Accordingly, Reisdorff’s discussion of the elements of section 470
is inapplicable.
4. Correction of February 11, 2015 Minute Order
Respondent contends that the February 11, 2015 minute
order should be modified to reflect that the conviction for petty
theft was in violation of section 484, not section 490.2, because
section 490.2 is not a substantive theft offense.
“ ‘Generally, a clerical error is one inadvertently made,
while a judicial error is one made advertently in the exercise of
judgment or discretion. [Citations.]’ ” (People v. McGee (1991)

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232 Cal.App.3d 620, 624.) “ ‘An amendment that substantially
modifies the original judgment or materially alters the rights of
the parties, may not be made by the court under its authority to
correct clerical error.’ ” (Smith v. Superior Court (1981)
115 Cal.App.3d 285, 290.)
Here, Martinez was charged with and convicted of petty
theft in violation of section 490.2. Although respondent concedes
“it appears [Martinez] should have been convicted of theft under
section 484,” there is no evidence the error here was
inadvertently made. Accordingly, it is not within our authority to
correct the error. (See Smith v. Superior Court, supra, 115
Cal.App.3d at p. 289 [judicial error “ ‘which occurs in the
rendition of orders or judgments which are the fault of judicial
discretion, as opposed to clerical error or inadvertence, may not
be corrected except by statutory procedure.’ ”].)

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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P. J.
We concur:
ALDRICH, J.
STRATTON, J.*
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.

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