Filed 2/25/15 P. v. Wagner CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 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 Supe rior 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, Ge rald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Margaret E. Maxwell and Douglas L. Wilson, Deputy Attorneys Ge neral, 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 co unts of identity theft (§ 530.5, subd. (a)); and forgery (§ 475, subd. (a). He argues that the evidence was insu fficient to support his convictions on several counts, and he also requests review of the trial court’s determination regarding the discovery of pers onnel records of law enforcement officers
involved in the case. In a supplemental brief, Wagner raises arguments concerning the impact of Proposition 47 on hi s convictions on three counts. We reverse the conviction for false personation and remand the matter for resentencing.

FACTUAL AND PROCED URAL BACKGROUND
On June 28, 2013, Los Angeles Police De partment officers Berzon Distor and Cynthia Wada conducted a routine check at th e Carlton Motel in St udio City. While in the registration office, Distor saw Wagner ab ruptly leave the area and enter a motel room upon spotting the police. Th e officers obtained the registration for that motel room and
then knocked on the door. A woman opened the door, let the police in, and whis pered to them, “He’s in there,” apparently referring to the bathroom. Distor ordered Wagner to exit the bathroom, and when Wagner did so, Wada as ked him for his name and identification. Wagner gave his name as “Matthew Wardlo w,” but Distor noticed a tattoo on Wagner’s arm that read, “Wagner.” Wagner was deta ined pending further investigation of his identity. While being de tained, Wagner told Distor, “I ga ve your partner a different name because I’m wanted by [t he] federal marshal.” The police searched the motel room. In a corner of th e bathroom, Distor found a Samsung cell phone box, and on the bathroom fl oor next to the toilet, a backpack. The toilet had papers in it, as though someone ha d tried to flush them down. Under the bed was a plastic binder with a wallet holding iden tification, credit cards, and blank checks.

1 Unless otherwise indicated, all further stat utory 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 fro m the room contained a computer, printer, and flash drive. Inside the Samsung box the police found several credit ca rds bearing different names, checks, and a checkbook . One item in the box was a MasterCard in the name of
Matthew Wardlow. Three chec ks bore the name Adorina Yengejeh, and a check with Yengejeh’s name was found in side 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, chec k number 2166 for $2 93, was recovered from Wagner’s sock. In all, 44 items were booke d 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 th e 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 personatio n of Matthew Wardlow; theft by means of possessing access card information; identity theft of Wardlow and Edgar Nikolyan; two counts of possession of a forg ed 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 An geles Police Department officer John Fischer
described the contents of the flash drive fo und in Wagner’s backpack. Fischer found digital images of an identification card w ith a name on it, tax returns belonging to a person other than the person na med 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 imag e of a California identification card in the name of Matthew Wardlow. Although ther e was no testimony at trial about the identity4 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 receivi ng 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 anot her person. Nikolyan had not given anyone permissi on to use his name and address. The digital image of a
driver’s license recovered from the flash dr ive 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 refinanci ng 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 busin ess 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 ha d lost her checkbook. She did not know Wagner, and she had not given anyone permi ssion to have her checkbook. There had
been no unauthorized trans actions on that account.
Yehudith Gal testified that the check th at was recovered from the hotel room was
one that she had written to Nissan for her car le ase 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 ch eck. The jury deadlo cked on the remaining forgery count and the two counts of possession of a forged driver’s license, and the court5 dismissed those charges. Wagner was sentence d to three years eight months in prison. Wagner appeals.

DISCUSSION I. Sufficiency of the Evidence

A. Count One

Wagner argues that his conviction on co unt 1, for false personation, must be reversed for insufficiency of the evidence. “In reviewing a claim for sufficiency of the evidence, we must determin e whether, after viewing the evidence in the light most favorable to the prosecution, any rational trie r 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 reasona ble, credible, and of solid value—supporting the decision, and not wh ether the evidence proves guilt beyond a reasonable doubt. [Citation.] We neither reweigh the evidence nor reevaluate the credibility of witnesses. [Cita tion.] We presume in support of the judgment the existence of every fact the jury reasonably could dedu ce from the evidence. [Citation.] If the circumstances reasonably justif y the findings made by the trie r of fact, reversal of the judgment is not warranted si mply because the circumstance s 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 fa lsely personate another in either his or her private or official capacity when in that assumed charact er 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 whereb y any benefit might accrue to the party personating, or any other pers on.” (§ 529, subd. (a)(3).) The California Supreme Court has defined the term “personate” as “to pret end or represent oneself to be another” ( Lee v. Superior Court (2000) 22 Cal.4th 41, 43, fn. 1), and has obser ved that decisional law6 “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 th e 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 c ould constitute the further act required by section 529, subd ivision (a)(3) because after he identified himself to the
officers as Wardlow he took no further acti ons 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 sec tion 529, subdivision (a)(3). The Attorney General argues, however, that because Wardlow had given his personal information to Wagner and Wa gner 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 co mmitted the additional act of using that persona to obtain the MasterCard; and that additional act might have benefitted Wagner
or rendered Wardlow liable for ch arges or penalties. Alterna tively, 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 id entification of himself as
Wardlow to the officers can also be considered an additional act.
We have reviewed the record and conclu de that the evidence is insufficient to support a conviction under section 529, subdi vision (a)(3). While it appears highly likely from the record that Wagner wa s preparing to falsely persona te Wardlow and to use the
MasterCard and identification card to incur ch arges in his name, there is no evidence in the record that Wagner act ually 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 from7 the evidence at trial that Wa gner “falsely personated Wardlo w and did the additional act of using that persona to obtain the MasterCa rd” because there was no evidence at trial that Wagner was using Wardlow’s persona when he obtained th e MasterCard. The prosecution did not present evidence from which it could be concluded that the MasterCard was a card issued by a financ ial institution—permitting the inference that Wagner had assumed the Wardlow persona to cause its issuan ce—rather than a counterfeit card, which would require no su ch adoption of an assumed character. Similarly, there was no evid ence 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 th e card depicted in the imag e 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 ind eed, the fact that it was a digita l 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 ot hers 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 Wa rdlow to the police officers also cannot support the conviction. Mere fa lse 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.4t h 1173, 1192.) Once Wagner assumed Wardlow’s persona with th e police officers, he committed no further act that could satisfy section 529, subdivisio n (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 ta ke 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 conv iction may be reduced to a violation of section 148.9, subdivision (a), which provi des 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 i nvestigating officer. While we have the authority to reduce a conviction to a lesser offense where the evid ence 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 ne cessarily 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 w ithout also committing anothe r offense, the latter is necessarily included within the fo rmer. [Citations.] An offens e is also incl uded within a charged offense ‘“if the chargi ng allegations of the accusato ry pleading include language describing the offense in such a way that if committed as specifie d the lesser offense is necessarily committed.”’ [Citation.]” ( People v. Lagunas (1994) 8 Cal.4th 1030, 1034.)
Neither test is satisfied he re. The elements of secti on 529, subdivision (a)(3) are false personation and the commission of an add itional 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 pr oper identification of the person by the investigating officer. As a result, false pers onation under section 52 9, subdivision (a)(3) can be committed without also violating secti on 148.9, subdivision (a). Turning to the accusatory pleading in th is case, the facts alleged in the information restate the statutory9 language of section 529, subd ivision (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 conv iction 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 fo llow 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 co unt 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 viola ting section 484e, subdivision (d). This statute provides that “Every person who acquires or re tains 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 in tent to use it fraudulently, is guilty of grand theft.” (§ 484e, subd. (d).) The term “access ca rd” is defined broadly by statute (§ 484d, subd. (2)), and the jury was inst ructed 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 belo nging to Yengejeh; th e driver’s licenses 2 of Nikolyan and Wardlow; and the MasterCard in Wardlow’s name. Wagner and the Attorney General both agre e, 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 evid ence presented at trial from which the jury could have concluded that th e 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 i ssued by them, and neither Ni kolyan 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, Wagne r contends that he was de prived of his right to a unanimous jury verdict by the presentation of the three fact ually inadequate grounds to the jury under section 484e. He admits, howeve r, that the jury was in structed that it “had to unanimously agree on what account information it belie ved Mr. Wagner possessed,” which resolves any issue of unanimity. It appears that Wagner’s core argument is not about unanimity but about the di stinct 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 prosecu tion had failed to present any evidence that the MasterCard, the driver’s license, and th e 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 indicati on in the record that th e 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 reco rd that the jury relie d upon the inadequate grounds in reaching its decision on count tw o, relying upon the questions asked by the jury during deliberations. We have reviewed these questi ons 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 co unts 4 and 6, both alleging a violation of section 470b, possession of a forg ed driver’s license. In its first communication, the jury asked two questions: first, wh ether “an unprinted facsimile” of a driver’s license could count as a driver’s license; and second, wh ether it was significant for the purposes of11 count 4 that the charge refe rred to a driver’s license wh en the image submitted was an identification card for Wardlow. Next, the ju ry 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 que stions do indicate that “the jury was focused on the drive r’s licenses,” as Wagner argu es, the content of questions suggest that their focus pertaine d 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 th e factually inadequate grounds.

C. Counts 3 and 5

Counts 3 and 5 were the identity theft char ges with respect to Wardlow and Nikolyan. Section 530.5 provid es that it is a criminal offe nse for a person to “willfully obtain[] personal identifying information . . . of another person, and use[] that information for any unlawful purpose, including to obtain, or attemp t to obtain, credit, goods, services, real property, or medical info rmation 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 th e statute includes criminal activity as well as “acts prohib ited by the common law or nonpenal statutes,” and it must be “wrongful by some legal m easure, rather than merely a product of an improper, but lawful, purpose or motive.” ( In re Rolando S. (2011) 197 Cal.Ap p.4th 936, 945-946 & fn. 8.) Wagner’s arguments about the sufficienc y of the evidence to support the two convictions of identity theft ar e directed entirely at the question of whether possession of the digital images of the driv er’s license in Nikolyan’s name and the identification card in Wardlow’s name were sufficient to prove id entity theft. We ex amine not only the evidence of the digital images but the rest of the evidence at trial and conclude that the two convictions are supporte d by substantial evidence.12 Wardlow had not given Wagner permission to use his personal information to obtain goods, services, or a driver’s licen se. Wardlow had give n Wagner his personal information for the purpose of Wagner helping Wardlow obt ain 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 imag e of an identification card with Wagner’s photo and Wardlow’s personal identificati on, and even possessed a MasterCard in Wardlow’s name, all permitted th e jury to draw the reasonabl e inference that Wagner was the one using Wardlow’s iden tity 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 gi ven anyone permission to use his name and address. Wagner was fo und with the digital image of a California driver’s license bearing Nikolyan’s name a nd address and a photogr aph of Wagner. This evidence permitted the jury to conclude that Wagn er was the one who had stolen Nikolyan’s identity and was us ing 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 o fficers to the extent that the records pertained to issues of fa lsity, and the court gr anted the motion with respect to records over the prior five years. Wagner reques ts that we review the record of the in camera proceedi ngs 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 records13 pertaining to the two officers over the past five years. The custodian of records described
for the record the nature of each complaint and identifie d it by number, then handed the complaint to the court for the court’s revi ew and determination whether the document was responsive to the Pitchess inquiry. We conclude th e trial court appropriately exercised its discretion in determining that none of the documents was relevant to Wagner’s case and that no disclosure of mate rial 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 offe nses were committed by certain ineligible defendants. These offenses had previously been designated as either felonies or wobblers (crimes that can be punished as eith er felonies or misdemeanors). By supplemental letter brief, Wagner ar gues that if this court upholds his conviction in count 2 for violating section 48 4e, subdivision (d) we should reduce count 2
to a misdemeanor because under section 4 90.2, added by Proposition 47, his offense would now constitute petty thef t 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 va lue of the money, labor, real or personal property taken does not exceed ni ne 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 regard ing count 8 that is premised on this court concluding that there was insufficient ev idence to support his co nvictions in counts 3 and 5. As we have concluded that the c onvictions in counts 3 a nd 5 were supported by sufficient evidence, we n eed 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 in tent to use it fraudulently, is guilty of grand
theft.” We have concluded above that substa ntial evidence supported the conviction for a violation for acquiring or retaining account ac cess card information with respect to the check in the amount of $293 belonging to Gal and the checkbook belo nging to Yengejeh. No evidence was presented at trial as to the va lue of this access card account information. Wagner claims that the value of the acces s card account informati on he possessed is less than $950 and argues that his crime should th erefore 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 secti on 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 petiti on for recall of sentence pursuant to section 1170.18. Here, however, we have already de termined that Wagner must be resentenced
because of the insuffici ency of the evidence to suppor t 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 de termine whether, in light of section 490.2, Wagner should be sentenced on c ount 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 rese ntencing hearing at which the court shall consider the effect, if any, of Proposition 47. In all othe r respects, the judgment is
affirmed.

ZELON, J.

We concur:

PERLUSS, P. J.

WOODS, J.