People v. Hoffman : Harvey Waivers and Prop 47

Ms. Hoffman, a young lady with borderline personality disorder and a heroin habit, stole her parents' checkbook and forged 18 checks.  Each check was for an amount less than 950 dollars (important, as we'll soon see) however the total of the checks was over 950 dollars.  She also used a friend's access card to withdraw 25 dollars sans permission.

She was charged with 18 counts of forgery, one count of fraudulent use of an access card, and one count of grand theft.  She pled guilty to seven of the forgery counts in return for dismissal of the balance of the counts.  Also she entered a Harvey waiver as to the dismissed counts.  At sentencing the court denied her 17B motion as to each of the forgery counts and placed her on felony probation, but told her he would be wont to grant the 17B motion later if she participated in drug treatment and got her life on track.  She later violated her probation, relapsed, and upon return to court the judge kept working with her and offering her alternatives to incarceration to motivate her to continue to work on beating her addiction.

After November, 2015, Ms. Hoffman returned to court and petitioned under Penal Code section 1170.18 to have her forgery convictions reduced to misdemeanors.  The trial court denied the petition on the ground that since the aggregate amount of the checks was over 950 dollars, the case "fell outside the spirit" of Proposition 47.

The Second District panel reverses.  The Attorney General concedes that the law did not allow the trial court to add up the individual forged checks; each check was its own crime (and under 950 dollars).  But, the AG argues the Harvey waiver would allow the trial court to use the dismissed counts (grand theft and access card fraud) to find Hoffman falls "outside the spirit".  Nope says the panel.  A Harvey waiver allows the court to use the facts of dismissed counts within the applicable statutory framework, here Penal Code section 1170.18.

Because section 1170.18 contains no reference to spirits, the panel takes the "spirit" argument as to Proposition 47 and places it back from where it came, cases involving a defendant's invitation to the court to "strike a strike" (Romero).  Where the statute is clear, you must follow it, regardless of the borders of the pneuma rising from the code.

As an aside, I calculate Ms. Hoffman's theoretical custody exposure to remain the same.  Her felony exposure was seven years in the county jail (3 yr max for the first forgery, plus consecutive 8 months sentences for each of the remaining 6 forgeries).  With all seven counts now misdemeanors and the one-third-of-middle-term rule now inapplicable, she could still receive seven years in the county jail.
However, I agree with the trial judge that the superior result would be Ms. Hoffman overcoming her addiction and becoming a productive person.