Filed 1/20/16 P. v. Anderson 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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. B263234
                                                                         (Super. Ct. No. F482481001)
     Plaintiff and Respondent,                                            (San Luis Obispo County)

v.

DAMON EDWARD ANDERSON,

     Defendant and Appellant.



                   Appellant Damon Edward Anderson was charged with four counts
involving forged or non-sufficient funds checks and receiving stolen property, five
"strike" priors, and having served three prior prison terms. (Pen. Code, §§ 470, subd. (d),
476a, subd. (a), 496, subd. (a), 1170.12, subd. (b), and 667.5, subd. (b), respectively.)1
Confronted with a potential prison sentence of at least 25 years to life as a "three-striker,"
appellant entered into a negotiated agreement and pled no contest to one count of
possession of stolen property—a check written for at most $480—and admitted one
"strike." He was sentenced to six years in prison. The remaining charges and allegations
were dismissed on the People's motion.
                   Following passage of § 1170.18 (Proposition 47) by voter initiative in
November 2014, appellant sought (1) to have the offense reduced to a misdemeanor and


         1
             All further statutory references are to the Penal Code.
(2) his release. The trial court denied the motion. It decided that despite the dismissal of
three of the four counts, the sums of the checks in each of the originally charged counts
would be aggregated, resulting in a taking of $1,226, the sum urged by the prosecution.
Because the aggregate value of the checks exceeded $950, the trial court found appellant
ineligible for relief under Proposition 47.
               The trial court erred when it found that the sum to be considered was the
aggregate amount. In determining whether appellant was eligible for Proposition 47
relief on a specific count, the trial court could not aggregate the sums at issue in other
counts to exceed $950 and thereby make appellant statutorily ineligible. Accordingly, we
reverse and remand for the trial court to complete the Proposition 47 analysis.
                                         DISCUSSION
               The record does not disclose the facts surrounding appellant's offense. He
was charged with four offenses involving three checks: one for $420, one for $480, and
one for $326. One of the counts of receiving stolen property involved the check for $420
and the other involved the check for $480. Although it is unclear which of these two
checks was at issue in the count to which he pled guilty, the analysis is the same for each.
               Proposition 47 provides that "[a] person currently serving a sentence for a
conviction . . . of a felony . . . who would have been guilty of a misdemeanor . . . had
[Proposition 47] been in effect at the time of the offense may petition for a recall of
sentence . . . to request resentencing [under the law] as . . . amended . . . ." (§ 1170.18,
subd. (a).) "If the petitioner satisfies the[se] criteria . . . , the petitioner's felony sentence
shall be recalled and the petitioner resentenced to a misdemeanor . . . unless the court, in
its discretion, determines that resentencing the petitioner would pose an unreasonable risk
of danger to public safety." (§ 1170.18, subd. (b), italics added.)
               Appellant was convicted of one felony count of receiving stolen property.
As amended by Proposition 47, this offense is a misdemeanor "if the value of the
property does not exceed [$950]"; otherwise, it is a felony. (§ 496, subd. (a).) Here, the
property was a single check for either $420 or $480. It did not exceed $950. Therefore,


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appellant is entitled to Proposition 47 relief unless the trial court determines that his early
release would be unreasonably dangerous to public safety.
                The trial court found that appellant "received more than $950 worth of
stolen checks." The People argue that "the scope of [his] conduct which constituted
receiving stolen property was a factual determination for the trial court." While true, the
trial court's finding is still subject to reversal where substantial evidence does not support
it. (See People v. Renfro (1967) 250 Cal.App.2d 921, 922.) In the count at issue,
appellant was charged with and pled guilty to receiving a stolen check worth at most
$480. No evidence supports a finding that the check was worth more than that.
                The People also assert that because appellant signed a Harvey waiver,2 he
may not complain that the sentencing court "consider[ed] the facts underlying dismissed
counts and enhancements when determining the appropriate disposition for the offense or
offenses of which the defendant stands convicted." (People v. Munoz (2007) 155
Cal.App.4th 160, 167.) However, "an informed 'Harvey waiver' cannot be treated as
tantamount to a guilty plea to the dismissed or uncharged crimes, nor may it be employed
. . . to set aside the pleading and proving requirements necessary . . . to impose an
enhancement term." (People v. Myers (1984) 157 Cal.App.3d 1162, 1168.)
                We recently addressed a similar issue, involving a conviction for forgery, in
People v. Hoffman (2015) 241 Cal.App.4th 1304. In Hoffman, the People conceded that
a forgery conviction "does not authorize the trial court to aggregate check values" in
determining eligibility for Proposition 47 relief. (Id., at p. 1310.) Nonetheless, the
People argued that a "Harvey waiver allowed the trial court to rely on facts underlying
the dismissed forgery and grand theft counts to find that [the defendant was] 'outside the
spirit' of Proposition 47." (Id., at p. 1311) We rejected that argument in Hoffman,
concluding that Proposition 47 does not give trial courts such discretion. (Ibid.) We
reach the same conclusion here.




       2
           (People v. Harvey (1979) 25 Cal.3d 754.)
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                                     DISPOSITION
              The order denying Proposition 47 relief is reversed and this matter
remanded for the trial court to determine whether resentencing appellant would pose an
unreasonable risk of danger to public safety.
              NOT TO BE PUBLISHED.




                                          PERREN, J.


We concur:



              GILBERT, P. J.



              YEGAN, J.




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                              Donald G. Umhofer, Judge*

                       Superior Court County of San Luis Obispo
                         ______________________________


             Richard L. Fitzer, 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, Senior Assistant Attorney General, and Mary
Sanchez and Andrew S. Pruitt, Deputy Attorneys General, for Plaintiff and Respondent.




      *
        (Retired Judge of the San Luis Obispo Sup. Ct. assigned by the Chief Justice
pursuant to art. VI, § 6 of the Cal. Const.)
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