People v. Anderson CA2/6

Filed 1/20/16 P. v. Anderson CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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,