Filed 10/11/22 P. v. Martinez CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C095080
Plaintiff and Respondent, (Super. Ct. No. 20FE009377)
v.
LEONEL L. MARTINEZ,
Defendant and Appellant.
A jury found defendant Leonel L. Martinez guilty of sexual battery of a restrained
person and assault of a minor with intent to commit rape, digital penetration, or oral
copulation. The trial court sentenced him to seven years in prison, imposed various fees
and fines, and ordered him to avoid contacting the victim and to submit to COVID-19
testing.
1
On appeal, defendant raises five issues: (1) the trial court erred in failing to
instruct the jury on a lesser included offense to the charge of assault with intent to
commit rape, digital penetration, or oral copulation; (2) a recent amendment to Penal
Code section 6541 requires remand for resentencing; (3) the trial court exceeded its
sentencing authority when it required him to submit to COVID-19 testing; (4) the trial
court exceeded its sentencing authority when it prohibited him from contacting the
victim; and (5) the trial court was required to hold a hearing to determine his ability to
pay discretionary fees and fines and, to the extent the court found he could pay these
amounts, its finding lacks a sufficient evidentiary foundation.
We agree the trial court exceeded its sentencing authority when it ordered
defendant to submit to a COVID-19 test and issued the no-contact order. We also agree
the new legislation applies to defendant’s sentencing. We will vacate the sentence,
remand for resentencing, and otherwise affirm.
BACKGROUND
The Sacramento County District Attorney charged defendant in count one with
assault of a minor with intent to commit rape (§ 220, subd. (a)(2)) and in count two with
sexual battery of a restrained person (§ 243.4, subd. (a)). The trial court, with no
objection from the parties, later expanded on count one in its jury instructions to include
“assault with intent to commit a forcible sex act, rape, digital penetration, and/or oral
copulation.”
These charges followed after defendant’s 14-year-old stepdaughter, S.D., accused
him of sexual assault. According to S.D., defendant approached her while she was
watching television and said he had a “big surprise.” He then pulled down his shorts to
expose his erect penis, grabbed her hips and pulled her toward him, pulled down her
1 Further undesignated statutory references are to the Penal Code.
2
shorts and underwear to around her knees, and “slid his hand upwards” on her vagina.
After S.D. screamed “no” several times and yelled for her sister, defendant pulled up his
shorts and ran to the back door. S.D.’s sister heard the screams from the shower. Once
S.D. explained that defendant had tried to rape her, S.D.’s sister chased defendant outside
and closed the door. Defendant then begged his two stepdaughters not to tell their
mother.
Defendant offered a competing narrative. According to his trial testimony, after
he approached S.D. to ask about the smell of marijuana, S.D. grabbed his right hand and
put it on her thigh close to her vagina. When defendant pulled his hand away and
questioned her, S.D. cried and yelled loudly. S.D.’s sister came out of the shower,
grabbed a knife after talking to S.D., and told defendant to leave. Defendant complied .
In defendant’s telling, he was seriously injured at the time because of a recent car
accident and could only slowly lean over and extend his arms.
A jury found defendant guilty on both charged counts. The trial court sentenced
him to the middle term of seven years in prison on count one and stayed sentence on
count two pursuant to section 654. The court also imposed various fees and fines,
ordered defendant to avoid contact with S.D., and ordered him to submit to a COVID-19
test.
Defendant timely appealed. The case was fully briefed on June 24, 2022 and
assigned to this panel on July 5, 2022. We ordered supplemental briefing on August 5,
2022. The parties waived argument and the case was deemed submitted September 16,
2022.
DISCUSSION
I
Jury Instructions for Count One
Defendant first contends the trial court erred in failing to instruct the jury on the
offenses of attempted rape, attempted sexual penetration, and attempted oral copulation,
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which are lesser included offenses to the charged crime of assault with the intent to
commit one of these offenses. (See People v. Ghent (1987) 43 Cal.3d 739, 757 [“ ‘ “An
‘assault’ with intent to commit a crime necessarily embraces an ‘attempt’ to commit said
crime” ’ ”].) We disagree.
“Under California law, trial courts must instruct the jury on lesser included
offenses of the charged crime if substantial evidence supports the conclusion that the
defendant committed the lesser included offense and not the greater offense.” (People v.
Gonzalez (2018) 5 Cal.5th 186, 196.) To conclude that such substantial evidence exists
in this case, we would have to conclude that substantial evidence supports the finding that
defendant attempted to commit a forcible sex crime (either rape, sexual penetration, or
oral copulation) without also committing an assault. (See People v. Ghent, supra,
43 Cal.3d at p. 757 [“ ‘[An] assault with intent to commit rape is merely an aggravated
form of an attempted rape, the latter differing from the former only in that an assault need
not be shown’ ”]; see also People v. Clark (2011) 52 Cal.4th 856, 948 [“The crime of
attempted rape has two elements: (1) the specific intent to commit the crime of rape and
(2) a direct, although ineffectual, act toward its commission”].)
But although a jury could have found that defendant did not assault S.D., it is clear
from the parties’ competing version of the facts that the jury could not have reasonably
made this finding and also found that defendant attempted to commit a forcible sex
crime. According to the prosecution’s evidence, defendant grabbed S.D.’s hips after
exposing his erect penis, pulled her toward him, pulled down her shorts and underwear,
and touched her vagina. And according to defendant’s competing evidence, S.D. grabbed
defendant’s hand and placed it on her thigh near her vagina; he did not attempt any sex
act after she did so.
Both parties thus presented evidence showing that someone, either S.D. or
defendant, committed an assault. (See People v. Wyatt (2012) 55 Cal.4th 694, 702 [to
support a charge of assault, a defendant must willfully commit “an act likely to result in a
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touching, however slight, of another in a harmful or offensive manner”].) But if a jury
found that defendant attempted to commit a forcible sex crime after considering the
parties’ evidence, then the only rational conclusion would be that defendant, not S.D.,
committed the assault. No substantial evidence in the record would have allowed the jury
to find any differently. Simply put, here, given the available evidence, the jury could not
find defendant guilty of the lesser (an attempted forcible sex crime without a preceding
assault) without also finding him guilty of the greater (assault with intent to commit a
forcible sex crime).
Defendant nonetheless maintains the absence of “struggle marks” or other physical
evidence of an assault undermines S.D.’s claim that he pulled down her pants. But
although physical evidence of that sort certainly would have strengthened the
prosecution’s position at trial, its absence does not advance defendant’s position here. As
we have explained, if a jury found that defendant attempted to commit a forcible sex
crime after considering the competing evidence, the only reasonable conclusion would be
that defendant assaulted S.D. immediately preceding his attempt. Under no interpretation
of the competing evidence did he do the latter without also doing the former.
Defendant further asserts we should find in his favor because even if the jury
concluded that he “may have pulled or partially pulled down [S.D.’s] pants, that conduct
was simply part of the overall attempt to commit a sex offense rather than a separate
assault.” He then notes that “no evidence emerged of gratuitous attempts to punch the
girl or an attempt by [him] to place his hand over her mouth.” But an assault that is “part
of the overall attempt to commit a sex offense” is still an assault. And to the extent
defendant believes the law requires some type of “separate assault” unrelated to “the
overall attempt to commit a sex offense,” he is wrong. Under section 220, subdivision
(a), a person is guilty if they “assault[] another with intent to commit” rape or another
specified crime, not if they intend to commit rape or another specified crime and also
commit a “separate assault.” In short, because there was no substantial evidence that
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defendant committed an attempted rape, sexual penetration, or oral copulation without
also committing an assault, we reject defendant’s claim of instructional error.
II
Recent Amendment to Section 654
Defendant’s next argument concerns a recent amendment to section 654. At the
time of sentencing, when a defendant’s single act or omission violated multiple
provisions, section 654 required the trial court to “punish[] [the defendant] under the
provision that provide[d] for the longest potential term of imprisonment” and then stay
the sentence on the remaining counts. (Stats. 1997, ch. 410, § 1.) But following a recent
amendment in Assembly Bill No. 518 (2021-2022 Reg. Sess.), section 654 now allows
trial courts to choose the punishment to impose in these types of cases, stating: “An act
or omission that is punishable in different ways by different provisions of law may be
punished under either of such provisions . . . .” (Stats. 2021, ch. 441, § 1.) Defendant
contends we should remand to allow the trial court to exercise its newly authorized
discretion under section 654. We agree.
New criminal laws generally operate only prospectively unless the enacting body
“expressly” declares a contrary intent. (§ 3.) But not always. “[U]nder [In re Estrada
(1965) 63 Cal.2d 740], ‘ “[A]n amendatory statute lessening punishment is presumed to
apply in all cases not yet reduced to final judgment as of the amendatory statute’s
effective date” [citations], unless the enacting body “clearly signals its intent to make the
amendment prospective, by the inclusion of either an express saving clause or its
equivalent.” ’” (People v. Lara (2019) 6 Cal.5th 1128, 1134; see also People v. Nasalga
(1996) 12 Cal.4th 784, 790, fn. 5 [“a judgment is not final until the time for petitioning
for a writ of certiorari in the United States Supreme Court has passed”].)
This presumption favors retroactive application of section 654’s new language in
this case. The Legislature’s recent changes to section 654, as all parties agree, potentially
lessen punishment for those like defendant. And in making these changes, the
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Legislature evidenced no intent to have these changes apply prospectively only. For
these reasons, and because the statutory amendment became effective before defendant’s
appeal became final, we conclude he is entitled to the statute’s ameliorative benefit. (See
People v. Mani (2022) 74 Cal.App.5th 343, 379-381 [concluding that Assembly Bill No.
518 applies retroactively].)
We further conclude remand is appropriate to allow the trial court to exercise its
newly authorized discretion under section 654. Because we find the changes to section
654 apply retroactively to the time of defendant’s sentencing, we also (from this
retroactive lens) find the trial court was unaware of the scope of its discretionary
sentencing authority at this time. It was unaware, in particular, that it could have chosen
to impose punishment for the sexual battery of a restrained person (the crime that
provided for the shorter potential term of imprisonment) rather than the assault with
intent to commit a forcible sex act. (Compare § 220, subd. (a)(2) [sentence of up to nine
years] with § 243.4, subd. (a) [sentence of up to four years].) In these types of cases,
where a trial court was unaware of the scope of its discretionary powers, “the appropriate
remedy is to remand for resentencing unless the record ‘clearly indicate[s]’ that the trial
court would have reached the same conclusion ‘even if it had been aware that it had such
discretion.’ ” (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.) Applying this
principle here, because we find no such clear indication, we conclude remand for
resentencing is necessary.
The Attorney General argues “the trial court clearly indicated that it would not
exercise discretion on [defendant’s] behalf.” He points out that the trial court noted it
agreed with the jury’s verdict and made certain other observations regarding defendant’s
conduct. But the trial court’s unrelated statements do not provide the requisite clear
indication of what it would be inclined to do on remand. (See People v. Gutierrez, supra,
58 Cal.4th at pp. 1363-1364, 1391 [finding remand appropriate because it could not “say
with confidence what sentence [the trial court] would have imposed” had it correctly
7
understood the scope of its sentencing authority, even though the trial court found the
defendant acted violently, had a criminal history, and showed no regard for the impact of
his actions on others].) That is particularly true here considering the trial court’s
favorable comments about defendant, including that he has rehabilitation potential and no
prior record. Under these circumstances, we will remand for resentencing and
consideration of the changes to section 654 as well as any other new sentencing laws that
may now apply to defendant.
III
COVID-19 Testing Requirement
Defendant next contends the trial court erred when it ordered him to submit to a
COVID-19 test as part of his sentence. Although the Attorney General opines this is “a
close question,” he counters that the court’s order “appears” to be “within its inherent
authority to protect court participants, particularly in view of Executive Order No. N-38-
20, and the Judicial Council’s emergency rules.” We agree with defendant that the
court’s order was unauthorized.
The trial court ordered defendant “to submit to a COVID-19 test pursuant to
Executive Order N2820.” It did so based on a paragraph in defendant’s probation report
that stated: “In recognition of California Executive Order N-28-20, a Public Health
Emergency was declared due to COVID-19. Defendant(s) are required to provide a
COVID test in the form of a nasal swab. Defendant(s) shall not refuse to submit to such
procedure. If not voluntarily supplied, the Sacramento County Sheriff’s Department can
use reasonable force as the only effective means to ensure public safety and the welfare
of inmates and personnel.” This paragraph was listed as one of several sentencing
recommendations and, as mentioned, the trial court ultimately required a COVID-19 test
“pursuant to Executive Order N2820.”
Before turning to the merits of defendant’s challenge to the requirement that he
submit to a test for COVID-19, we consider first whether this matter is moot. The fact
8
that the purpose of this requirement was to test defendant while he was in the sheriff’s
custody strongly suggests that the test had already occurred. After all, having been
sentenced to prison, defendant should now be in the custody of the California Department
of Corrections and Rehabilitation (CDCR), not the sheriff. However, because the record
on these points is unsettled, we choose to reach the merits of this matter. We find the
trial court exceeded its authority when it required defendant to submit to a COVID-19
test. To start, nothing in the executive order the trial court referenced, Governor’s
Executive Order N-28-20, authorized COVID-19 testing. Although it dealt with COVID-
19, it never once mentioned testing. It instead concerned foreclosures, evictions, and
critical utilities. (See Governor’s Executive Order No. N-28-20 (Mar. 19, 2020).) And
although, as the Attorney General notes, the court likely intended to reference Governor’s
Executive Order No. N-38-20, we find this order also to be unhelpful. That order granted
courts greater authority in civil cases to require electronic service and to allow a party
deponent to appear remotely at a deposition. (Governor’s Executive Order No. N-38-20
(Mar. 27, 2020).) It also granted the Chairperson of the Judicial Council greater authority
to authorize “any court to take any action she deems necessary to maintain the safe and
orderly operation of that court” and to amend court rules in response to COVID-19. (Id.
at pp. 1-2.) Following this order, as the Attorney General notes, the Judicial Council
adopted several emergency rules concerning COVID-19, which can be found in
Appendix I to the California Rules of Court. But none of these emergency rules discuss
testing requirements. Nothing, then, in the executive order the court cited, the executive
order it perhaps intended to cite, or the Judicial Council’s emergency COVID-19 rules
authorized the testing requirement here.2
2 We take judicial notice of the two executive orders on our own motion. (Evid. Code,
§§ 452, subd. (c), 459, subd. (a).)
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Nor, on this record, did the trial court’s inherent power authorize this testing
requirement. Trial courts, to be sure, have broad inherent authority to control the
litigation before them, including authority to implement measures to ensure the safety of
court participants. (See Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 967;
People v. Lopez (2022) 75 Cal.App.5th 227, 235 [discussing a trial court’s inherent
authority to take safety measures in response to the COVID-19 pandemic].) But once a
defendant has been remanded to the sheriff’s custody following sentencing, the court’s
inherent power to ensure the safety of court participants is reduced. At that stage, prison
and jail authorities may have a “compelling[] governmental interest in regularly testing
prisoners for COVID-19” (Richson-Bey v. Bell (E.D. Cal., July 7, 2022, No.
122CV00447BAMPC) 2022 U.S. Dist. Lexis 120794, at p. *5). The role of courts,
however, is different. After all, the general responsibility for ensuring a safe environment
in the prison and jail systems does not reside with the courts; it resides instead with
CDCR for prisons and--in most counties, including Sacramento--with the local sheriff for
jails. (See Cal. Code of Regs., tit. 15, § 3271 [every CDCR “employee, regardless of his
or her assignment, is responsible for the safe custody of the inmates confined in the
institutions of the department”]; People v. Garcia (1986) 178 Cal.App.3d 887, 892 [in
most counties, with exceptions not including Sacramento, “the county sheriff administers
the jail”].) These considerations and the limited facts before us lead us to conclude that
the trial court’s inherent authority, although broad, did not authorize the testing
requirement here as part of defendant’s sentence.
The Attorney General’s arguments to the contrary fail to persuade. We have
already discussed that the claim defendant is subject to mandatory testing based on
CDCR protocols does not find support in the record. The Attorney General’s focus on
CDCR does, however, tend to reinforce a point we made earlier: CDCR, not the courts,
has the general task of ensuring a safe environment in the prison system.
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The Attorney General also suggests that if defendant had tested positive shortly
after sentencing, the sheriff’s department could have informed those “court participants
who have had contact with him.” He asserts that the testing requirement would have
“protect[ed] court participants who may have come into contact with the defendant.” The
Attorney General may speculate that the sheriff’s department might have been inclined to
trace defendant’s contacts, including any contacts from court, and inform them of any
positive test result. But such speculation is not enough to support the imposition of the
novel testing requirement here. (See Bitter v. United States (1967) 389 U.S. 15, 16 [a
court’s inherent power “must be exercised with circumspection”; it cannot be invoked
without a sufficient showing of need].)
Our conclusion that the trial court lacked inherent authority for its actions finds
support in People v. Ponce (2009) 173 Cal.App.4th 378. The court there considered
whether a trial court had inherent authority to order a defendant to avoid contacting a
person he had robbed. (Id. at pp. 380-381, 383.) Looking to federal decisions, the court
appeared to accept that a trial court could issue a no-contact order under its inherent
power in rare and compelling circumstances. (Id. at p. 385.) But finding no showing of
need for the no-contact order in the case before it, the court struck the order. (Id. at pp.
385-386.) In reaching this conclusion, the court explained, “even where a court has
inherent authority over an area where the Legislature has not acted, this does not
authorize its issuing orders against defendants by fiat or without any valid showing to
justify the need for the order.” (Id. at p. 384.) The same considerations cut against the
order here.
In sum, because we find the trial court lacked authority--statutory, inherent, or
otherwise--to impose a COVID-19 testing requirement at sentencing, we will direct the
court to omit this requirement on resentencing.
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IV
No-Contact Order
Defendant further asserts his sentence was unlawful because the trial court
improperly issued a no-contact order. The Attorney General agrees, and so do we.
At sentencing, the trial court stated that “defendant shall not have visitation
privileges with the victim pursuant to Penal Code section 1202.05.” But as all parties
agree, section 1202.05 has no application here. That statute requires the court to
“prohibit all visitation between the defendant and the child victim” when the defendant is
sentenced to prison for violating one of several specified statutes and the victim is a
minor. (§ 1202.05, subd. (a).) But defendant was not sentenced for violating any of the
statutes listed in section 1202.05. Because the statute does not apply, and because we are
unaware of any other authority authorizing the no-contact order, we will direct the trial
court to omit the no-contact order on resentencing.
V
Fees and Fines
Finally, defendant contends the “trial court’s finding that [he] had the ability to
pay [the imposed fees and fines] lacks a sufficient evidentiary foundation, and at the very
least, the trial court should have held . . . [a] hearing” to determine whether he had the
“present” ability to pay the discretionary fees and fines. We reject his argument.
The trial court imposed several fines after exercising its discretion to determine the
appropriate amount. These included a $2,000 fine under section 243.4, subdivision (a); a
$300 fine under section 290.3, subdivision (a) “plus $130 in penalties and assessments”;
a $2,100 restitution fine under section 1202.4, subdivision (b); and another $2,100 fine
under section 1202.45, subdivision (a), which the court suspended per section 1202.45,
subdivision (c). The court also imposed two mandated amounts: a court operations fee
of $40 per count under section 1465.8, subdivision (a)(1), and a court facilities
assessment of $30 per count under Government Code section 70373. After the trial court
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asked defense counsel whether he “want[ed] to say something about the fines and fees,”
defense counsel said, “Judge, any and all fees that are discretionary as opposed to
mandatory, that I’ll put on the record my client does not have the ability to pay for those
fees, and I ask that the Court consider that in ordering those fees.”3 But the trial court
was unmoved. It said: “Fortunately, he will have an opportunity to work while he’s in
prison, and although the wages are not high, he will have the opportunity to generate
income towards those fines and fees, so the Court declines the request.”4 Defendant
offered no further comments on this topic.
On this record, we reject defendant’s claim that the trial court’s determination
“lacks a sufficient evidentiary foundation.” The trial court’s comments at sentencing
evidenced its understanding that the imposed fees and fines were appropriate because,
even accepting that defendant lacked a current ability to pay, he still had a future ability
to earn wages in prison to pay the amounts owed. Defendant never objected to this
finding at the trial level. And although he now argues the court’s finding is flawed
because a government report he found online shows, in his reading, that “employment
opportunities for inmates . . . are virtually non-existent,” we find he forfeited this belated
objection. Had defendant believed the evidence insufficient to support the court’s
conclusion that he would have a future ability to pay the fees and fines, he needed to
inform the trial court. Having failed to do so, he cannot now fault the trial court for
failing to develop the evidence on this point. (See People v. McCullough (2013)
56 Cal.4th 589, 597 [“because a court’s imposition of a booking fee is confined to factual
3 Although the parties never discussed defendant’s income at trial, the probation report
states that he earned $4,000 monthly as a self-employed landscaper.
4 Several courts have found the prospect of prison wages relevant when evaluating a
defendant’s ability to pay. (See, e.g., People v. Kopp (2019) 38 Cal.App.5th 47, 96,
review granted Nov. 13, 2019, S257844; People v. Aviles (2019) 39 Cal.App.5th 1055,
1076.)
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determinations, a defendant who fails to challenge the sufficiency of the evidence at the
proceeding when the fee is imposed may not raise the challenge on appeal”].) Allowing a
defendant on appeal to challenge the sufficiency of the evidence in these types of
circumstances, when the defendant tacitly assented to the trial court’s findings below,
would inappropriately undermine “the goals of proper development of the record and
judicial economy.” (Id. at p. 599; see also People v. Trujillo (2015) 60 Cal.4th 850, 859
[“No reason appears why defendant should be permitted to appeal the sentencing court’s
imposition of [probation-related] fees after having . . . tacitly assented below”].)
We further reject defendant’s claim that the trial court should have held a hearing
to determine whether he had the “present” ability, and not just a future ability, to pay the
discretionary fees and fines. We acknowledge that a case defendant cites, People v.
Dueñas (2019) 30 Cal.App.5th 1157, favors a conclusion in his favor on this point,
stating, for instance, that a trial court may not execute a restitution fine under section
1202.4 “unless and until the trial court holds an ability to pay hearing and concludes that
the defendant has the present ability to pay the restitution fine.” (Duenas., at p. 1164.)
The court grounded its reasoning in due process principles. (Ibid.) But several courts
have since rejected this conclusion. Some courts, although agreeing due process
considerations require a trial court to consider ability to pay, have rejected the conclusion
that a trial court should “limit itself to considering only whether [defendants] have the
ability to pay at the time of the sentencing hearing.” (See, e.g., People v. Kopp, supra,
38 Cal.App.5th at p. 96, review granted.) Other courts, going further, have concluded
“that due process does not speak to this issue and that Dueñas was wrong to conclude
otherwise.” (See, e.g., People v. Hicks (2019) 40 Cal.App.5th 320, 329, review granted
Nov. 26, 2019, S258946.) For our purposes, even if we assume due process principles
require a trial court to consider ability to pay, we agree the court should not limit itself to
considering only a defendant’s present ability to pay. A defendant’s future ability to pay
matters too; and because defendant here forfeited his objection to the trial court’s finding
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on his future ability to pay, we find that enough to reject his challenge to the
discretionary fees and fines.
VI
Error in Abstract of Judgment
Lastly, we turn to one matter that the Attorney General raises: The abstract of
judgment misnames the victim. That is true. The abstract of judgment identifies the
victim as “Deserie D,” but the victim’s actual name starts with an S. But we need not act
to correct this error. Once the trial court prepares an amended abstract of judgment
omitting the no-contact provision, that will serve to remove the one reference to “Deserie
D.”
DISPOSITION
The sentence is vacated. The judgment is otherwise affirmed. The case is
remanded to the trial court for resentencing consistent with this opinion. Following
resentencing, the trial court is directed to prepare an amended abstract of judgment--
omitting the no-contact order and the COVID-19 testing requirement as well as reflecting
any subsequent changes to any other aspects of the sentence--and forward a certified
copy to CDCR.
/s/
Duarte, J.
We concur:
/s/
Hull, Acting P. J.
/s/
Renner, J.
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