Filed 2/25/15 P. v. Wagner CA2/7 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

SECOND APPELLATE DISTRICT 

DIVISION SEVEN 

THE PEOPLE, 

 Plaintiff and Respondent, 

 v. 

JONATHAN WAGNER, 

 Defendant and Appellant. 

 B253461 

 (Los Angeles County 

 Super. Ct. No. LA074557) 

 APPEAL from a judgment of the Superior Court of Los Angeles County. 

Christine Ewell, Judge. Reversed in part and remanded for resentencing. 

 Laurie Wilmore, 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, Margaret E. Maxwell and 

Douglas L. Wilson, Deputy Attorneys General, for Plaintiff and Respondent. 

_______________________ 
2

Jonathan Wagner was convicted of false personation (Pen. Code,1 § 529, subd. 

(a)(3)); grand theft (§ 484e, subd. (d)); two counts of identity theft (§ 530.5, subd. (a)); 

and forgery (§ 475, subd. (a). He argues that the evidence was insufficient to support his 

convictions on several counts, and he also requests review of the trial court’s 

determination regarding the discovery of personnel records of law enforcement officers 

involved in the case. In a supplemental brief, Wagner raises arguments concerning the 

impact of Proposition 47 on his convictions on three counts. We reverse the conviction 

for false personation and remand the matter for resentencing. 

FACTUAL AND PROCEDURAL BACKGROUND 

On June 28, 2013, Los Angeles Police Department officers Berzon Distor and 

Cynthia Wada conducted a routine check at the Carlton Motel in Studio City. While in 

the registration office, Distor saw Wagner abruptly leave the area and enter a motel room 

upon spotting the police. The officers obtained the registration for that motel room and 

then knocked on the door. 

A woman opened the door, let the police in, and whispered to them, “He’s in 

there,” apparently referring to the bathroom. Distor ordered Wagner to exit the 

bathroom, and when Wagner did so, Wada asked him for his name and identification. 

Wagner gave his name as “Matthew Wardlow,” but Distor noticed a tattoo on Wagner’s 

arm that read, “Wagner.” Wagner was detained pending further investigation of his 

identity. While being detained, Wagner told Distor, “I gave your partner a different name 

because I’m wanted by [the] federal marshal.” 

The police searched the motel room. In a corner of the bathroom, Distor found a 

Samsung cell phone box, and on the bathroom floor next to the toilet, a backpack. The 

toilet had papers in it, as though someone had tried to flush them down. Under the bed 

was a plastic binder with a wallet holding identification, credit cards, and blank checks. 

 

1 Unless otherwise indicated, all further statutory references are to the Penal Code. 
3

A Samsung cell phone was also found in the room, and Wagner indicated that it was his. 

Photo paper was also recovered from the room. 

The backpack recovered from the room contained a computer, printer, and flash 

drive. Inside the Samsung box the police found several credit cards bearing different 

names, checks, and a checkbook. One item in the box was a MasterCard in the name of 

Matthew Wardlow. Three checks bore the name Adorina Yengejeh, and a check with 

Yengejeh’s name was found inside a checkbook. Police also found in the Samsung box a 

vehicle sales person license in the name of Martin Andernians. A check relating to an 

account in the name of Yehudith Gal, check number 2166 for $293, was recovered from 

Wagner’s sock. In all, 44 items were booked into evidence. Wagner and his companion 

were arrested. 

After Wagner waived his rights under Miranda v. Arizona (1966) 384 U.S. 436 

Distor asked about the Samsung box. Wagner said that the box came with the cell phone 

he purchased. Wagner refused to answer questions about the items inside the Samsung 

box. When asked about the check found in his sock, Wagner said that he received it as 

payment for a job. 

Wagner was charged with false personation of Matthew Wardlow; theft by means 

of possessing access card information; identity theft of Wardlow and Edgar Nikolyan; 

two counts of possession of a forged driver’s license (§ 470b); and two counts of forgery. 

At trial, Distor testified concerning the apprehension and arrest of Wagner, as well 

as the search of the motel room. Los Angeles Police Department officer John Fischer 

described the contents of the flash drive found in Wagner’s backpack. Fischer found 

digital images of an identification card with a name on it, tax returns belonging to a 

person other than the person named on the identification card, partially written checks, 

business logos, a notary stamp that could be modified, and numerous other documents 

containing personal identifying information such as Social Security numbers, telephone 

numbers, and addresses. There was a digital image of a California driver’s license with 

the name of Edgar Nikolyan and a digital image of a California identification card in the 

name of Matthew Wardlow. Although there was no testimony at trial about the identity 
4

of the person whose picture was on these two cards, Wagner concedes on appeal that they 

were his photographs. 

Nikolyan testified that in June 2013 he began receiving credit cards and bills for 

online purchases in his name at his address. He contacted police, who showed him a 

driver’s license with his name and address but a photograph of another person. Nikolyan 

had not given anyone permission to use his name and address. The digital image of a 

driver’s license recovered from the flash drive contained his name and address, but 

Nikolyan did not recognize the person depicted in the photograph. 

Wardlow testified that he had met Wagner at a work furlough program. Wardlow 

had given Wagner his personal information, including pay stubs and W-2 forms, with the 

understanding that Wagner would assist him with a refinancing loan. Approximately one 

year later, Wardlow began receiving credit cards and debit cards in his name for which he 

had not applied. He had not given Wagner permission to use his personal information to 

obtain goods, services, or a driver’s license. The image of the driver’s license had 

Wardlow’s correct name, birth date, and business address. The MasterCard recovered 

from the motel room bore Wardlow’s name but was not a card he had authorized. 

Adorina Yengejeh identified the checks recovered from the motel room as 

belonging to an account she owned. She had lost her checkbook. She did not know 

Wagner, and she had not given anyone permission to have her checkbook. There had 

been no unauthorized transactions on that account. 

Yehudith Gal testified that the check that was recovered from the hotel room was 

one that she had written to Nissan for her car lease payment. She had put it outside in her 

mailbox. The police subsequently contacted her to ask about the check. The amount on 

the check was the amount she had written, but she had written it to Nissan, not to 

Jonathan Wagner, the person now listed as payee. Gal did not know Wagner, and she 

had never paid him money. 

Wagner was convicted of false personation, theft, both counts of identity theft, and 

one count of forgery, relating to Gal’s check. The jury deadlocked on the remaining 

forgery count and the two counts of possession of a forged driver’s license, and the court 
5

dismissed those charges. Wagner was sentenced to three years eight months in prison. 

Wagner appeals. 

DISCUSSION 

I. Sufficiency of the Evidence 

A. Count One 

Wagner argues that his conviction on count 1, for false personation, must be 

reversed for insufficiency of the evidence. “In reviewing a claim for sufficiency of the 

evidence, we must determine whether, after viewing the evidence in the light most 

favorable to the prosecution, any rational trier of fact could have found the essential 

elements of the crime or special circumstance beyond a reasonable doubt. We review the 

entire record in the light most favorable to the judgment below to determine whether it 

discloses sufficient evidence—that is, evidence that is reasonable, credible, and of solid 

value—supporting the decision, and not whether the evidence proves guilt beyond a 

reasonable doubt. [Citation.] We neither reweigh the evidence nor reevaluate the 

credibility of witnesses. [Citation.] We presume in support of the judgment the existence 

of every fact the jury reasonably could deduce from the evidence. [Citation.] If the 

circumstances reasonably justify the findings made by the trier of fact, reversal of the 

judgment is not warranted simply because the circumstances might also reasonably be 

reconciled with a contrary finding.” (People v. Jennings (2010) 50 Cal.4th 616, 638–

639.) 

Section 529 makes it a criminal offense to falsely personate another in either his or 

her private or official capacity when in that assumed character the person does, inter alia, 

“any . . . act whereby, if done by the person falsely personated, he might, in any event, 

become liable to any suit or prosecution, or to pay any sum of money, or to incur any 

charge, forfeiture, or penalty, or whereby any benefit might accrue to the party 

personating, or any other person.” (§ 529, subd. (a)(3).) The California Supreme Court 

has defined the term “personate” as “to pretend or represent oneself to be another” (Lee v. 

Superior Court (2000) 22 Cal.4th 41, 43, fn. 1), and has observed that decisional law 
6

“strongly suggest[s]” that this offense “requires a deliberate effort to pass oneself off as 

another.” (People v. Rathert (2000) 24 Cal.4th 200, 208.) In addition to holding oneself 

out as another person, the statute “requires an act separate from the false identification 

that occurred while the defendant was acting ‘in such assumed character.’” (People v. 

Guion (2013) 213 Cal.App.4th 1426, 1434.) 

Wagner argues that here there was no evidence of any additional act beyond 

identifying himself as Matthew Wardlow to the police that could constitute the further act 

required by section 529, subdivision (a)(3) because after he identified himself to the 

officers as Wardlow he took no further actions in Wardlow’s name, and indeed admitted 

that was a false identity shortly thereafter. The Attorney General does not dispute that if 

all Wagner did was to identify himself to the police as Wardlow, this would be 

insufficient to support a conviction for violating section 529, subdivision (a)(3). The 

Attorney General argues, however, that because Wardlow had given his personal 

information to Wagner and Wagner possessed a digital image of “a forged driver’s 

license with Wardlow’s name and personal information,” it is a reasonable inference that 

Wagner falsely personated Wardlow and committed the additional act of using that 

persona to obtain the MasterCard; and that additional act might have benefitted Wagner 

or rendered Wardlow liable for charges or penalties. Alternatively, the Attorney General 

also argues that the additional act could be Wagner’s possession of the image of a forged 

driver’s license in Wardlow’s name; and that because Wagner can be inferred to have 

previously falsely personated Wardlow, Wagner’s false identification of himself as 

Wardlow to the officers can also be considered an additional act. 

We have reviewed the record and conclude that the evidence is insufficient to 

support a conviction under section 529, subdivision (a)(3). While it appears highly likely 

from the record that Wagner was preparing to falsely personate Wardlow and to use the 

MasterCard and identification card to incur charges in his name, there is no evidence in 

the record that Wagner actually committed a requisite act for a false personation 

conviction under section 529, subdivision (a)(3) while “in the assumed character” of 

Wardlow. Contrary to the Attorney General’s claim, it is not a reasonable inference from 
7

the evidence at trial that Wagner “falsely personated Wardlow and did the additional act 

of using that persona to obtain the MasterCard” because there was no evidence at trial 

that Wagner was using Wardlow’s persona when he obtained the MasterCard. The 

prosecution did not present evidence from which it could be concluded that the 

MasterCard was a card issued by a financial institution—permitting the inference that 

Wagner had assumed the Wardlow persona to cause its issuance—rather than a 

counterfeit card, which would require no such adoption of an assumed character. 

Similarly, there was no evidence that Wagner was acting in an assumed character to 

obtain the digital image of the California identification card bearing Wardlow’s name. 

Had there been evidence that the card depicted in the image presented to the jury was 

issued by the Department of Motor Vehicles, the jury could have inferred that Wagner 

obtained it and that he did so while in the assumed character of Wardlow. There was no 

such evidence, and indeed, the fact that it was a digital image and that photo paper was 

recovered in the room tended to suggest not that the identification card was issued to 

Wagner while he acted in Wardlow’s persona but that Wagner or others were creating a 

counterfeit identification card. Neither the MasterCard nor the digital image of the 

identification card was therefore sufficient to permit a jury to conclude that Wagner had, 

while in an assumed character, done any act whereby he could be benefitted or Wardlow 

harmed. 

Wagner falsely identifying himself as Wardlow to the police officers also cannot 

support the conviction. Mere false identification to the police is not sufficient to establish 

false personation under section 529, subdivision (a)(3). (People v. Cole (1994) 23 

Cal.App.4th 1672, 1676; People v. Casarez (2012) 203 Cal.App.4th 1173, 1192.) Once 

Wagner assumed Wardlow’s persona with the police officers, he committed no further 

act that could satisfy section 529, subdivision (a)(3). Wagner did not, for instance, sign a 

promise to appear as the person he was personating (People v. Chardon (1999) 77 

Cal.App.4th 205, 212), nor did he refuse to take a breathalyzer test or to undergo a blood 

test while personating another (People v. Stacy (2010) 183 Cal.App.4th 1229, 1235-
8

1236). The evidence was insufficient to permit a conviction for violation of section 529, 

subdivision (a)(3). 

The remaining question is whether the conviction may be reduced to a violation of 

section 148.9, subdivision (a), which provides that it is a misdemeanor to falsely 

represent or identify oneself as another person or as a fictitious person to a peace officer 

upon a lawful detention or arrest, either to evade the process of the court or to evade the 

proper identification of the person by the investigating officer. While we have the 

authority to reduce a conviction to a lesser offense where the evidence supports the lesser 

but not the charged offense, we can only do so when the lesser offense is necessarily 

included in the charged offense. (§ 1181, subd. 6.) For purposes of section 1181, 

subdivision 6, “To qualify as a lesser offense that is necessarily included in another 

offense, ‘“all the legal ingredients of the corpus delicti of the lesser offense must be 

included in the elements of the greater offense.”’ [Citation.] Stated another way, when a 

crime cannot be committed without also committing another offense, the latter is 

necessarily included within the former. [Citations.] An offense is also included within a 

charged offense ‘“if the charging allegations of the accusatory pleading include language 

describing the offense in such a way that if committed as specified the lesser offense is 

necessarily committed.”’ [Citation.]” (People v. Lagunas (1994) 8 Cal.4th 1030, 1034.) 

Neither test is satisfied here. The elements of section 529, subdivision (a)(3) are 

false personation and the commission of an additional act while in that persona that could 

expose the person who is falsely personated to liability or benefit the defendant. Section 

148.9, subdivision (a) includes other elements not necessary for a violation of section 

529, subdivision (a)(3): false representation or identification as another person or as a 

fictitious person to a peace officer upon a lawful detention or arrest, either to evade the 

process of the court or to evade the proper identification of the person by the 

investigating officer. As a result, false personation under section 529, subdivision (a)(3) 

can be committed without also violating section 148.9, subdivision (a). Turning to the 

accusatory pleading in this case, the facts alleged in the information restate the statutory 
9

language of section 529, subdivision (a)(3) and do not include the elements of section 

148.9, subdivision (a). 

We acknowledge that in People v. Cole, supra, 23 Cal.App.4th at pages 1676 

through 1677, the court reduced a felony conviction under section 529, subdivision (a)(3) 

to a misdemeanor violation of section 148.9, subdivision (a), but it did so without 

explanation or analysis. We decline to follow that decision and instead agree with the 

reasoning of the court in People v. Guion, in which the court found that a violation of 

section 148.9, subdivision (a) is not a lesser included offense of a violation of section 

529, subdivision (a)(3). (People v. Guion, supra, 213 Cal.App.4th at pp. 1435-1436.) 

Accordingly, we reverse the conviction on count 1. As the trial court designated the 

sentence for this offense to be the principal term at Wagner’s sentencing (§ 1170.1, subd. 

(a)), we remand the matter for resentencing. 

B. Count Two 

In count 2, Wagner was convicted of violating section 484e, subdivision (d). This 

statute provides that “Every person who acquires or retains possession of access card 

information with respect to an access card validly issued to another person, without the 

cardholder’s or issuer’s consent, with the intent to use it fraudulently, is guilty of grand 

theft.” (§ 484e, subd. (d).) The term “access card” is defined broadly by statute (§ 484d, 

subd. (2)), and the jury was instructed that the People had alleged that Wagner acquired 

or retained the account information of the following access cards: the check belonging to 

Gal; the checkbook belonging to Yengejeh; the driver’s licenses2

 of Nikolyan and 

Wardlow; and the MasterCard in Wardlow’s name. 

Wagner and the Attorney General both agree, and the record demonstrates, that 

there was evidence that the check belonging to Gal and the checkbook belonging to 

Yengejeh were validly issued. There was, however, no evidence presented at trial from 

which the jury could have concluded that the driver’s license in Nikolyan’s name, the 

 

2 The jury was instructed in terms of driver’s licenses although the identification 

card in question for Wardlow was a California identification card. 
10

identification card in Wardlow’s name, or the MasterCard were validly issued. No one 

from a financial institution or the Department of Motor Vehicles testified as to whether 

the access cards were validly issued by them, and neither Nikolyan nor Wardlow testified 

that the license or identification card depicted by digital image had been issued to him. 

Therefore, there was insufficient evidence to support a conviction for grand theft under 

section 484e based upon Wagner’s retention of the access card information with respect 

to three of the five specific access cards alleged by the prosecution. 

With little explanation, Wagner contends that he was deprived of his right to a 

unanimous jury verdict by the presentation of the three factually inadequate grounds to 

the jury under section 484e. He admits, however, that the jury was instructed that it “had 

to unanimously agree on what account information it believed Mr. Wagner possessed,” 

which resolves any issue of unanimity. It appears that Wagner’s core argument is not 

about unanimity but about the distinct issue of the impact of presentation of factually 

unsupported theories of liability being presented to the jury. 

Because the failure here was factual rather than legal, and because the jury was 

perfectly capable of detecting that the prosecution had failed to present any evidence that 

the MasterCard, the driver’s license, and the identification card were validly issued, 

reversal is not required here. “If the inadequacy of proof is purely factual, of a kind the 

jury is fully equipped to detect, reversal is not required whenever a valid ground for the 

verdict remains, absent an affirmative indication in the record that the verdict actually did 

rest on the inadequate ground.” (People v. Guiton (1993) 4 Cal.4th 1116, 1129.) Wagner 

argues that there was an indication in the record that the jury relied upon the inadequate 

grounds in reaching its decision on count two, relying upon the questions asked by the 

jury during deliberations. We have reviewed these questions by the jury and find no 

affirmative indication that the jury relied on the insufficient ground for its verdict on 

count 2. The jury’s questions pertained to counts 4 and 6, both alleging a violation of 

section 470b, possession of a forged driver’s license. In its first communication, the jury 

asked two questions: first, whether “an unprinted facsimile” of a driver’s license could 

count as a driver’s license; and second, whether it was significant for the purposes of 
11

count 4 that the charge referred to a driver’s license when the image submitted was an 

identification card for Wardlow. Next, the jury asked the court to define the difference 

between the terms “forged” and “fraudulently altered.” The jury later requested a 

readback of the testimony of the officer who presented the contents of the flash drive 

recovered from the motel room. Finally, the jury asked the court to define “driver’s 

license” as related to count 4, section 470b. While these questions do indicate that “the 

jury was focused on the driver’s licenses,” as Wagner argues, the content of questions 

suggest that their focus pertained not to count 2 but to counts 4 and 6, counts upon which 

the jury was ultimately unable to reach a verdict. There is no basis for concluding that 

the jury rested its verdict upon the factually inadequate grounds. 

C. Counts 3 and 5 

Counts 3 and 5 were the identity theft charges with respect to Wardlow and 

Nikolyan. Section 530.5 provides that it is a criminal offense for a person to “willfully 

obtain[] personal identifying information . . . of another person, and use[] that 

information for any unlawful purpose, including to obtain, or attempt to obtain, credit, 

goods, services, real property, or medical information without the consent of that person.” 

Personal identifying information includes, inter alia, one’s name, address, and birth date. 

(§ 530.55, subd. (b).) The “unlawful purpose” required by the statute includes criminal 

activity as well as “acts prohibited by the common law or nonpenal statutes,” and it must 

be “wrongful by some legal measure, rather than merely a product of an improper, but 

lawful, purpose or motive.” (In re Rolando S. (2011) 197 Cal.App.4th 936, 945-946 & 

fn. 8.) 

Wagner’s arguments about the sufficiency of the evidence to support the two 

convictions of identity theft are directed entirely at the question of whether possession of 

the digital images of the driver’s license in Nikolyan’s name and the identification card in 

Wardlow’s name were sufficient to prove identity theft. We examine not only the 

evidence of the digital images but the rest of the evidence at trial and conclude that the 

two convictions are supported by substantial evidence. 
12

Wardlow had not given Wagner permission to use his personal information to 

obtain goods, services, or a driver’s license. Wardlow had given Wagner his personal 

information for the purpose of Wagner helping Wardlow obtain a refinancing loan. 

Thereafter Wardlow began receiving credit cards and debit cards in his name for which 

he had not applied. When apprehended, Wagner possessed both a MasterCard bearing 

Wardlow’s name and a digital image of an identification card with Wardlow’s correct 

name, birth date, and business address but Wagner’s photograph. The evidence that 

Wardlow was receiving credit cards for which he had not applied was sufficient to permit 

the conclusion that someone was using Wardlow’s identity to cause those credit cards to 

be issued without Wardlow’s authorization; and the fact that Wagner had Wardlow’s 

personal information, had a mocked up image of an identification card with Wagner’s 

photo and Wardlow’s personal identification, and even possessed a MasterCard in 

Wardlow’s name, all permitted the jury to draw the reasonable inference that Wagner was 

the one using Wardlow’s identity for these purposes. 

Similarly, Nikolyan began receiving credit cards for which he had not applied and 

bills for online purchases made in his name. Nikolyan had not given anyone permission 

to use his name and address. Wagner was found with the digital image of a California 

driver’s license bearing Nikolyan’s name and address and a photograph of Wagner. This 

evidence permitted the jury to conclude that Wagner was the one who had stolen 

Nikolyan’s identity and was using it for unlawful purposes. 

II. Law Enforcement Personnel Records 

Pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531, Wagner requested 

discovery in the trial court of the personnel records of two police officers to the extent 

that the records pertained to issues of falsity, and the court granted the motion with 

respect to records over the prior five years. Wagner requests that we review the record of 

the in camera proceedings for any error. 

We have reviewed the sealed record of the proceedings. At the in camera 

proceedings the custodian of records testified under oath that he had brought all records 
13

pertaining to the two officers over the past five years. The custodian of records described 

for the record the nature of each complaint and identified it by number, then handed the 

complaint to the court for the court’s review and determination whether the document 

was responsive to the Pitchess inquiry. We conclude the trial court appropriately 

exercised its discretion in determining that none of the documents was relevant to 

Wagner’s case and that no disclosure of material from the officers’ personnel files was 

appropriate. (People v. Mooc (2001) 26 Cal.4th 1216, 1229.) 

III. Proposition 47 

Voters enacted Proposition 47 on November 4, 2014. It went into effect the next 

day. (Cal. Const., art. II, § 10, subd. (a).) Proposition 47 makes certain drug- and theftrelated offenses misdemeanors unless the offenses were committed by certain ineligible 

defendants. These offenses had previously been designated as either felonies or wobblers 

(crimes that can be punished as either felonies or misdemeanors). 

By supplemental letter brief, Wagner argues that if this court upholds his 

conviction in count 2 for violating section 484e, subdivision (d) we should reduce count 2 

to a misdemeanor because under section 490.2, added by Proposition 47, his offense 

would now constitute petty theft rather than grand theft.3 Section 490.2 provides, 

“Notwithstanding Section 487 or any other provision of law defining grand theft, 

obtaining any property by theft where the value of the money, labor, real or personal 

property taken does not exceed nine hundred fifty dollars ($950) shall be considered petty 

theft and shall be punished as a misdemeanor” unless the person is otherwise ineligible 

for misdemeanor resentencing. 

 

3 Wagner also makes an argument regarding count 8 that is premised on this 

court concluding that there was insufficient evidence to support his convictions in counts 

3 and 5. As we have concluded that the convictions in counts 3 and 5 were supported by 

sufficient evidence, we need not further discuss Wagner’s contention. 
14

In count 2 the jury concluded that Wagner violated section 484e, subdivision (d), 

which provides, “Every person who acquires or retains possession of access card account 

information with respect to an access card validly issued to another person, without the 

cardholder’s or issuer’s consent, with the intent to use it fraudulently, is guilty of grand 

theft.” We have concluded above that substantial evidence supported the conviction for a 

violation for acquiring or retaining account access card information with respect to the 

check in the amount of $293 belonging to Gal and the checkbook belonging to Yengejeh. 

No evidence was presented at trial as to the value of this access card account information. 

Wagner claims that the value of the access card account information he possessed is less 

than $950 and argues that his crime should therefore be reclassified as a misdemeanor 

based upon new section 490.2. The Attorney General asserts by letter brief that section 

484e has not been affected by Proposition 47 because section 484e was not specifically 

mentioned in Proposition 47, but fails to address the impact, if any, of the provisions of 

section 490.2 on section 484e, subdivision (d). 

The ordinary remedy for those sentenced before the passage of Proposition 47 to 

seek relief under its terms is to file a petition for recall of sentence pursuant to section 

1170.18. Here, however, we have already determined that Wagner must be resentenced 

because of the insufficiency of the evidence to support his conviction on count 1, the 

basis for the principal term at his original sentencing. At resentencing, the trial court 

shall assess the applicability of Proposition 47 and determine whether, in light of section 

490.2, Wagner should be sentenced on count 2 as a felony or as a misdemeanor. 
15

DISPOSITION 

 The conviction for false personation (Pen. Code, § 529, subd. (a)(3)) in count 1 is 

reversed. The matter is remanded for a resentencing hearing at which the court shall 

consider the effect, if any, of Proposition 47. In all other respects, the judgment is 

affirmed. 

 ZELON, J. 

We concur: 

 PERLUSS, P. J. 

 WOODS, J.