People v. Denk CA2/6

Filed 6/15/16 P. v. Denk CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX

THE PEOPLE, 2d Crim. No. B266009 (Super. Ct. No. 2009047617) Plaintiff and Respondent, (Ventura County)

v.

BERNIE JASON DENK,

Defendant and Appellant.

Bernie Jason Denk appeals from an order denying his application to have his felony forgery conviction designated a misdemeanor pursuant to Penal Code section 1170.18, subdivisions (f) and (g).1 Appellant contends that, because the amount involved did not exceed $950, the trial court erroneously concluded that the felony conviction was not eligible for reduction to a misdemeanor. We affirm. Procedural Background In April 2010 appellant pleaded guilty to felony forgery. (§ 470.) The information alleged that, with the intent to defraud, he had made or possessed counterfeit bills with the intent "to utter, pass and publish" them. He was sentenced to prison for two years.

1 All statutory references are to the Penal Code unless otherwise stated.

At the general election on November 4, 2014, the voters approved Proposition 47, which went into effect the next day. (Cal. Const., art. II, § 10, subd. (a).) With certain exceptions not applicable to appellant, Proposition 47 made forgery a misdemeanor if the amount involved did not exceed $950. (§ 476a, subd. (b).) Before Proposition 47, forgery was a misdemeanor if the amount involved did not exceed $450. (Former § 476a, subd. (b).) In June 2015 appellant applied to have his felony forgery conviction designated a misdemeanor because the amount involved did not exceed $950. (§ 1170.18, subds. (f) and (g).) In determining the amount, appellant asked the court to consider the preliminary hearing transcript and the probation report. The court denied the application. It reasoned that appellant had participated in a "criminal enterprise of manufacturing counterfeit bills being shared and distributed in a common situation. And the evidence [in] the record is clear that that enterprise, at minimum, had generated $1600 . . . ." Facts Our summary of the facts is based on the preliminary hearing transcript and the probation report. On December 31, 2009, Deputy Greg Gibson conducted a probation search of an apartment in Camarillo. Appellant resided there and was present during the search. Two other persons were also present. Inside appellant's wallet, Deputy Gibson found $320 in counterfeit bills. Appellant said that Robert Odom had given him the bills as payment for rent. He denied knowing that they were counterfeit. Appellant "stated that Odom had been residing in his apartment for the last month and a half." The wallet was on top of a dresser in the apartment's only bedroom. Inside a dresser drawer, Gibson found $240 in counterfeit bills. Appellant said that the dresser belonged to him, but he denied knowledge of the counterfeit bills. Photocopies of two $100 bills were on the bottom shelf in the bedroom closet, and a photocopy of another $100 bill was in plain view on the counter in the kitchen. Two counterfeit "$50 bills were wedged into a small gap between the stove and