Tuesday, November 21, 2017
Crime Should Be Lowered to Petty ‘Theft’ Though No Theft
Majority Finds Absence of Basis for Reducing Offense Under Proposition 47
By a MetNews Staff Writer
A member of the First District Court of Appeal has argued in a dissent that a felony conviction for forging and presenting a prescription for a narcotic should be reduced, pursuant to Proposition 47, to misdemeanor petty “theft,” even though nothing was stolen.
The dissenter, Acting Presiding Justice Stuart R. Pollak of Div. Three, agreed with defendant Thomas Ray Gollardo that in accordance with the voter-enacted Safe Neighborhoods and Schools Act of 2014, his 2015 conviction under Health and Safety Code §11368 for forging and issuing a prescription for a narcotic drug should be classified as a misdemeanor.
The ballot proposition, approved by voters on Nov. 4, 2014, converts various specified nonviolent offenses into misdemeanors. These include theft and forgery, where the loss to the victim does not exceed $950.
Gollardo—whose offense was a third strike—had attempted to buy a bottle of cough medicine containing the opiate codeine, a controlled substance. The pharmacist doubted the authenticity of the prescription that was presented and telephoned the police, who apprehended Gollardo in an automobile at the pharmacy’s drive-up window.
The defendant pled “no contest,” admitted the strikes, and was sentenced to the middle term of four years in prison.
Jenkin’s Majority Opinion
Pollak rejected the reasoning of the majority, expressed in an opinion filed late Friday by Martin J. Jenkins, who said:
“We are aware of no legal authority, and defendant directs us to none, where a court conflates forgery and theft, much less forgery of a medical prescription and theft.”
Forgery, Jenkins pointed out, entails making or using fake documents while “theft” encompasses “larceny, embezzlement, or stealing.”
He went on to say:
“[G]iven the unique policy concerns underlying statutes, like section 11368, aimed at ensuring the integrity of medical prescriptions and, more fundamentally, protecting public health and safety, we refuse to assume in the absence of any clear indication that section 11368 comes within Proposition 47’s reach. Rather, the more prudent course of action—and the action more consistent with established rules of statutory and voter-initiative construction—is to assume the drafters purposefully omitted section 11368 in order to better serve and protect California citizens.”
Pollak found unpersuasive Jenkins’s point that “Proposition 47 did not amend or add to section 11368, and none of the statutes that were amended or added by Proposition 47 mention or refer to section 11368.”
Rather, he sided with Gollardo’s view that “categorically excluding petty thefts charged under Health and Safety Code section 11368 contradicts Proposition 47’s explicit purpose of reducing prison spending and maximizing alternatives for nonserious and nonviolent crime.”
Pollak did not point to any theft by Gollardo that could have given rise to a petty theft conviction, but noted that if Gollardo had pilfered the cough medicine, rather than seeking to obtain it through a phony prescription, the offense would have been reduced to shoplifting given that the value if the goods was less than $950. He reasoned:
“Defendant’s offense surely is a nonserious and nonviolent offense precisely of the type for which the electorate in Proposition 47 intended to preclude felony prison sentences. Had defendant walked behind the counter and grabbed the drugs which he attempted to obtain with an altered prescription, his offense unquestionably would be a misdemeanor under the changes enacted by Proposition 47. The offense he did commit is no more serious—and probably less serious since it gave rise to no threat of violence. I respectfully dissent from the refusal to recognize defendant’s petty offense as within both the letter and spirit of this ameliorative proposition.”
The case is People v. Gollardo, 2017 S.O.S. 5681.
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