Mr. Triplett was a passer of bad checks. Actually he was a bad passer of bad checks, he tended to get caught. He was caught trying to cash a forged check at a Wells-Fargo branch. He followed this up by trying to cash another forged check at a local Food & Liquor store.
Triplett pleaded guilty to one count of felony second degree burglary for the Wells-Fargo incident. In the Food & Liquor incident he pleaded guilty to one felony count of second degree burglary and one felony count of trying to pass a fictitious check. On his change of plea forms, Triplett specified that he had entered each business with the intent to commit theft.
Following the November 2014 election, Triplett sent a letter to the trial court asking his convictions be reduced to misdemeanors under PC 1170.18, added to the books on November 5, 2014, as part of Proposition 47.
The trial court held a hearing regarding Triplett's PC 1170.18 petition. The government opposed the petition for the burglary counts on the basis that Triplett's felony convictions rested upon an intent to commit identity theft, which placed the convictions beyond the PC 495.5 definition of "shoplifting". But the government conceded Triplett was entitled to relief on the Food & Liquor ficitious check count since the checks were less than 950 dollars. The trial court asked Triplett's lawyer if he agreed with the government's description of Triplett's convictions as being based upon Triplett's intent to pass bad checks. Triplett's lawyer agreed.
The trial court denied the petition as to the commercial burglary counts and granted as to the ficitious check count. The legal basis for the ruling was that this is "not what was envisioned by the proposition or the voters when they voted for Proposition 47".
The Third District reverses as to the Food & Liquor burglary.
The threshold question is whether the trial court erred in using the parties' agreement as to the facts underlying the convictions in making its decision. Normally the court would be bound by the record of conviction and any legally admissible evidence introduced at the hearing. Here the prosecutor stated the convictions were based upon Triplett trying to pass bad checks and Triplett's lawyer, in open court, agreed with this proffer. Can the court then use these facts in arriving at a ruling?
The panel says "yes", fashioning a rule that, IMEO, may prove to be less-than-pragmatic. The new rule is that facts that the parties agree to may be used as long as they "augment, not contradict or otherwise detract from, the record of conviction". I know what the panel is trying to accomplish, and it makes sense. Given the dearth of statutory guidance as how 1170.18 proceedings should be conducted, it promotes efficiency to allow the trial courts to rely upon facts to which both parties agree. For example, if a defendant was convicted of stealing from a 7Eleven store and the responding police officer's report states the stolen item was a package of cigarettes worth seven dollars, it is certainly preferable to allow the trial court to use this fact (if both sides agree) than to drag the poor police officer into court and make him testify to this fact. My problem with the rule is that it may lead to niggling litigation over whether the agreed-upon facts "detracted" from the record of conviction or not. Why not just allow all agreed-upon facts as long as defendants are represented by counsel?
In the end, the new rule doesn't even hurt Triplett. The panel, correctly, rejects the faulty reasoning in P v. Gonzalez, and finds passing a bad check is a form of theft, theft by false pretenses. And as 459.5 prohibits entering an open business with the intent to commit theft of not more than 950 dollars, Triplett gets his requested 1170.18 relief on the Food & Liquor 459 conviction.
Unfortunately, there was no recorded agreement by the government's lawyer as to the value of the forged check in the Wells-Fargo count. Because Triplett never presented any evidence as to the value of that check, the trial court was correct to deny relief on that count.
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