People v. Lindsey CA1/5

Filed 12/27/23 P. v. Lindsey CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,
Plaintiff and Respondent,
A164328
v.
BRANDON LAMONT LINDSEY, (Contra Costa County
Super. Ct. No.
Defendant and Appellant.
52001139)

Defendant (and appellant) Brandon Lamont Lindsey appeals from a
judgment of conviction and sentence imposed after a jury found him guilty of
multiple crimes including assault with a semiautomatic firearm (Pen. Code,
§ 245, subd. (b)).1 He contends his conviction should be reversed because the
trial court elicited from a witness that Lindsey used a semiautomatic, rather
than a fully automatic, firearm. He further contends the case should be
remanded so the court can exercise its sentencing discretion under
amendments to section 1170 and other recent legislation. Respondent agrees
that a remand for resentencing is appropriate. We will remand for the trial
court to consider resentencing but affirm the judgment in all other respects.

1 All statutory references herein are to the Penal Code.

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 I. FACTS AND PROCEDURAL HISTORY
In January 2020, the Contra Costa County District Attorney filed an
Information charging Lindsey with attempted murder (§§ 664/187, subd.
(a)—count 1), shooting at an occupied motor vehicle (§ 246—count 2), assault
with a semiautomatic firearm (§ 245, subd. (b)—count 3), and attempted
second degree robbery (§§ 664/211—count 4). As to counts 1, 2 and 4, it was
alleged that Lindsey personally and intentionally discharged a firearm
(§ 12022.53, subds. (b)–(d)). As to count 3, the Information alleged that he
personally used an assault weapon or machine gun (§ 12022.5, subd. (b)).
A. Trial
During the jury trial, the following facts were elicited.
At approximately 8:30 p.m. on September 21, 2018, John E. drove his
then-girlfriend, Juliet W., in a Range Rover SUV to an address in Antioch.
Juliet W. told John E. that she needed to speak to a man called “B,” who was
“going to give her some painkillers” (described elsewhere in the record as
“Norcos”).
When they arrived, a man later identified as Lindsey directed them
down a long alley. John E. drove down the alley to its dead end. Lindsey
claimed to be waiting for his friend to arrive with the drugs.
Lindsey’s friend eventually arrived in a small Honda or Toyota.
Lindsey spoke to the friend, who then backed his car up the alley and
stopped, blocking John E.’s way out.
John E. became nervous and drove toward Lindsey and his friend.
Lindsey reached into his friend’s car, pulled out a gun, ran up to John E.’s
open window, and pointed the gun at his face. Lindsey demanded, “Give me
all your money.” Keeping his eyes on Lindsey’s face, John E. told Juliet W. to
give Lindsey the money because he did not want to get shot. Juliet W. said

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no, and Lindsey pointed the gun at her. When she reached into her purse for
the money, Lindsey pointed the gun back at John E.2
John E. thought Lindsey was going to start shooting, so he turned
towards the center console and pulled his left arm up. Lindsey began firing,
and John E. heard three gunshots. If John E. had not moved, all three
bullets would have entered the left side of his chest. Instead, Lindsey shot
the inside of John E.’s left forearm, and two bullets went into the driver’s
seat.
Juliet W. threw her money at Lindsey, and John E. “hit the gas” and
“pushed” Lindsey’s friend’s car out of the way. John E. drove to a store, 911
was called, and the police responded.
Antioch Police Officer Mark Moraga found two nine-millimeter bullet
casings on the front seat of John E.’s SUV, along with bullet holes and
bloodstains. The bullet casings were consistent with being shot from a
semiautomatic firearm. On cross-examination, Moraga acknowledged there
may be firearms other than semiautomatic firearms, such as revolvers, that
could shoot a nine-millimeter round. Detective Adrian Gonzalez testified,
however, that revolvers do not eject casings, while semiautomatic firearms
do, and he would not expect to find casings if a revolver was used in a
shooting. Police did not find the firearm at the scene.
Text messages recovered from Juliet W.’s phone indicated that someone
named “B” had told her where to buy pills and that she texted “B”’s number
when she arrived. A photograph of a man known to another witness as “B”
was identified as a photograph of Lindsey. From photographs of potential

2 John E.’s trial testimony as to whether the firearm was an automatic or
semiautomatic is the subject of the main issue on appeal, discussed later in
this opinion.

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suspects, John E. identified Lindsey as the shooter. Lindsey provided his
cellphone number to police, who determined that the cellphone was within a
quarter of a mile of the crime scene at the time of the shooting and moved
away from the scene after the shooting.
B. Jury Verdict and Sentence
The jury found Lindsey guilty on all counts and found the enhancement
allegations true. The trial court sentenced Lindsey to 23 years in state
prison. The sentence consisted of the upper term of nine years on count 3
(assault with a semiautomatic weapon), the upper term of 10 years for an
enhancement on that count under section 12022.5, subdivision (a),3 eight
months (one-third the midterm) on count 4 (attempted second degree
robbery), plus three years and four months (one-third the term) for a section
12022.53, subdivision (b) firearm enhancement on that count. As to count 1
(attempted murder), the court imposed a concurrent nine-year term, striking
the firearm enhancement under section 1385. As to count 2 (shooting at an
occupied motor vehicle), the court imposed but stayed, pursuant to section
654, a seven-year upper term, striking the firearm enhancement under
section 1385. Lindsey filed a timely notice of appeal.
II. DISCUSSION
A. Trial Court’s Questioning of Victim John E.
As the jury was instructed, a conviction on count 3 required proof
beyond a reasonable doubt that Lindsey perpetrated an assault with a
semiautomatic firearm or pistol. (§ 245, subd. (b).) Lindsey contends the
trial court committed misconduct and violated his due process and jury trial

3 Before the jury was given its final instructions, the enhancement
alleged under section 12022.5, subdivision (b) was amended to allege an
enhancement under section 12022.5, subdivision (a), to conform to the proof
at trial.

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rights by effectively directing John E. to testify that the firearm was a
“semiautomatic.” His argument is unpersuasive.
1. Trial Court Proceedings
On direct examination, the prosecutor asked John E. to describe the
gun Lindsey pointed at him. John E. testified it was “[a]n automatic
weapon.” The prosecutor asked, “What did it look like?” Defense counsel
objected that the question called for speculation. Before the court could finish
ruling, John E. responded, “I don’t know. I mean—[¶] I’m not really good
with guns. I didn’t have any guns at the time.” The court overruled the
objection and told the witness he could answer the question—specifically,
what the gun “looked like.” John E. testified: “I know what a revolver looks
like. I know what an automatic looks like. It looked like an automatic, like
maybe a 9 milliliter [sic], .45.”
At that point, the trial court interrupted the prosecutor and engaged
John E. in the following exchange, which is at the heart of Lindsey’s appeal:
“THE COURT: Just to make sure, an automatic weapon is a machine gun,
okay. So— [¶] THE WITNESS: Okay. Well— [¶] THE COURT: — it’s a
gun that you could fire with one pull of the trigger, fires multiple bullets with
one squeeze. I understand you to say that maybe this was a semiautomatic
firearm. Was that a better description? [¶] THE WITNESS: Yes. [¶] THE
COURT: Okay. Go ahead.” Defense counsel did not object.
The prosecutor then asked John E. to clarify his description of the
firearm, as follows: “[PROSECUTOR] Q. You said it looked like a
9-milliliter [sic] or .45-caliber gun? [¶] A. Correct. [¶] Q. So was it on the
smaller side? Did it appear to be a smaller gun? [¶] A. I don’t know. I
didn’t pay a lot of attention to the gun. I paid attention to his face. [¶] THE
COURT: Difference between, let’s say, a handgun or a long gun. Was it a

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handgun or— [¶] THE WITNESS: It was a handgun. [¶] THE
COURT: Handgun. Okay. [¶] Go ahead. [¶] THE WITNESS: One
that I would hold in my hand and go to the shooting range with.”
(Bolding removed.) During cross-examination, defense counsel did not
ask John E. whether the firearm was an automatic or a semiautomatic.
Before closing argument, the trial court instructed the jury on the
offense of assault with a semiautomatic firearm. Among other things, the
court instructed: “A semi-automatic firearm or semi-automatic pistol is
defined as a firearm or pistol with an operating mode that uses the energy of
an explosive and a fixed cartridge to extract a fired cartridge and chamber a
fresh cartridge with each single pull of the trigger.” (See CALCRIM No. 875.)
There is no dispute this instruction was proper.4
In closing argument, while discussing the firearm enhancement on
count 1, the prosecutor stated: “[John E.] told you it looked like a
semi-automatic weapon. And there were bullet holes in the driver’s seat and
9-milliliter [sic] shell casings in the driver’s seat where [John E.] was shot.”
After turning to the count 3 charge of assault with a semiautomatic weapon,
the prosecutor explained why the presence of those casings proved Lindsey
had used a semiautomatic firearm: “We know that the firearm the defendant
used was a semi-automatic firearm based on Officer Moraga[’s] and Detective
Gonzalez’s testimony about semi-automatic firearms.” (Italics added.) As to
Moraga’s testimony, the prosecutor explained (consistent with CALCRIM No.
875) that a semiautomatic “is a pistol that extracts a fired cartridge and

4 “A semiautomatic firearm ‘fires once for each pull on the trigger and
reloads automatically, but requires the shooter to release the trigger lever
before another shot can be fired.’ [Citation.] An automatic firearm ‘will
continue firing until either the trigger is released or the ammunition has
been expended.’ ” (In re Jorge M. (2000) 23 Cal.4th 866, 874, fn. 4.)

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chambers a fresh cartridge with each single pull of the trigger,” and “Officer
Moraga, who testified about the 9-milliliter [sic] shell casings found inside of
[John E.’s] car after the shooting[,] . . . told you that 9-millimeters are
commonly, at least in his experience, found in semi-automatic firearms.” The
prosecutor recounted Detective Gonzalez’s testimony “that a semi-automatic
weapon fires one bullet at a time [and] at the same time automatically
reloads while ejecting [the] shell casing.” The prosecutor continued: “So it
extracts a fired cartridge and chambers a fresh cartridge with each single
pull of the trigger. He told you that that was in contrast to the way a
revolver works, which is not a semi-automatic firearm. He told you a
revolver does not eject shell casings, that you would have to actually kick out
the barrel and dump out shell casings if you want to leave them behind for
some reason.” The prosecutor concluded: “The firearm the defendant used
ejected shell casings, just as a semi-automatic firearm does. So it proves the
defendant used a semi-automatic firearm in this case.”
2. Forfeiture
“As a general rule, a specific and timely objection to judicial misconduct
is required to preserve the claim for appellate review.” (People v. Seumanu
(2015) 61 Cal.4th 1293, 1320 (Seumanu).) As Lindsey acknowledges, “defense
counsel did not object to the trial court’s misconduct and erroneous
instruction.” Nor did defense counsel ask the court to admonish the jury with
a curative instruction. Further, there is no indication in the record or
argument from Lindsey that an objection would have been futile. Lindsey
therefore forfeited his challenge based on purported judicial misconduct or
instructional error arising from the judge’s questioning of John E. about the
firearm. (Ibid. [failure to object to the trial judge’s comment forfeited a claim
on appeal that it violated his federal constitutional rights]; People v. Silveria

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and Travis (2020) 10 Cal.5th 195, 320 [claim that the trial court abused and
unequally treated defense counsel in violation of the Sixth, Eighth, and
Fourteenth Amendments was forfeited due to the failure to object at trial on
the ground of judicial misconduct]; People v. Harris (2005) 37 Cal.4th 310,
348–350 [challenge based on the trial court’s questioning of defendant was
“not cognizable on appeal” due to defense counsel’s failure to object at trial].)5
3. Ineffective Assistance of Counsel
Lindsey argues, “[t]o the extent counsel’s failure [to object]
waives his claims on appeal, the claims are properly before this Court
through the prism of an ineffective assistance of counsel claim.” To
obtain relief for ineffective assistance of counsel, Lindsey must show
that (1) his “counsel’s representation fell below an objective standard of
reasonableness” and (2) “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have

5 In his reply brief, Lindsey argues that no objection was needed because
the trial court’s “instruction” on what constitutes an automatic firearm
“detrimentally skewed the jury’s determination of an element of the offense
charged in count three” in violation of his substantial rights under the Fifth
and Sixth Amendments to the federal Constitution. (Citing § 1259 [appellate
court may review an instruction even if no objection was made in the trial
court, “if the substantial rights of the defendant were affected thereby”].) But
the court’s explanation to the witness of the nature of an automatic weapon
was not a jury instruction, and the above-cited cases found a waiver or
forfeiture of even constitutional rights. Furthermore, if the challenge had
been preserved, and even if the court’s questioning of John E. constituted
judicial misconduct, Lindsey has not demonstrated entitlement to relief.
Where judicial misconduct is found, the question becomes “whether the
judge’s behavior was so prejudicial that it denied [the defendant] a fair, as
opposed to a perfect, trial.” (People v. Snow (2003) 30 Cal.4th 43, 78; People
v. Ng (2022) 13 Cal.5th 448, 570.) No due process violation occurs except in “
‘the exceptional case presenting extreme facts.’ ” (People v. Nieves (2021) 11
Cal.5th 404, 498.) Lindsey has not met that burden.

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been different.” (Strickland v. Washington (1984) 466 U.S. 668, 687–688,
694.) He fails to make either showing.
a. Defense Counsel’s Performance
Lindsey contends “the trial court committed misconduct by
interrupting the questioning for the purpose of directing [John E.] to ‘a better
description’ of the firearm used against him.” To assess counsel’s failure to
object, we first consider whether the court committed misconduct. Although
we find that the court’s statements, albeit legally correct, were problematic,
we nonetheless find that defense counsel’s failure to object does not establish
ineffective assistance.
“Within reasonable limits, the court has a duty to see that justice is
done and to bring out facts relevant to the jury’s determination.” (People v.
Santana (2000) 80 Cal.App.4th 1194, 1206; italics removed.) However, “ ‘a
judge should be careful not to throw the weight of his judicial position into a
case, either for or against the defendant.’ ” (People v. Sturm (2006) 37
Cal.4th 1218, 1237 (Sturm).) “Trial judges ‘should be exceedingly discreet in
what they say and do in the presence of a jury lest they seem to lean toward
or lend their influence to one side or the other.’ ” (Ibid.) “ ‘A trial court has
both the discretion and the duty to ask questions of witnesses, provided this
is done in an effort to elicit material facts or to clarify confusing or unclear
testimony. [Citations.] The court may not, however, assume the role of
either the prosecution or of the defense,’ and ‘it must not convey to the jury
the court’s opinion of the witness’s credibility.’ ” (People v. Nieves, supra, 11
Cal.5th at p. 494; see People v. Harris, supra, 37 Cal.4th at pp. 349–350.)
Lindsey argues that the trial court had no need to clarify John E.’s
testimony because he “did not provide confusing or unclear testimony.” But
he did. When asked to describe the gun, John E. responded it was “[a]n

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automatic weapon,” but when asked to state what it looked like, he
responded: “I don’t know. I mean— [¶] I’m not really good with guns. I
didn’t have any guns at the time.” When John E. was again asked to describe
the gun, he testified: “I know what a revolver looks like. I know what an
automatic looks like. It looked like an automatic, like maybe a 9 milliliter
[sic], .45.” (Italics added.) Given the witness’s concession that he was “not
really good with guns” and his incorrect description of the gun as a “9
milliliter,” it was reasonable for the court to believe the witness’s terminology
should be clarified.
Lindsey next argues that “the court made clear to the jurors that it did
not take [John E.’s] testimony at face value” and doubted his credibility when
he testified that he knew what an automatic firearm looked like and what he
saw was an automatic. But it was reasonable for defense counsel to conclude
there was no prejudice to Lindsey from an insinuation that a prosecution
witness—indeed, the victim and complaining witness—was not credible in his
description of the assailant’s purported weapon.
Lindsey further argues that the trial court “provided an erroneous
definition of automatic firearms, claiming that automatic firearms are
machine guns when they can also be handguns, which necessarily caused
[John E.] to change his answer as to what type of firearm was used in the
assault.” He goes so far as to call this instructional error, even though it was
not an instruction to the jury. He is incorrect.
Although the trial court started by saying “an automatic weapon is a
machine gun,” the court continued by explaining—accurately—that “it’s a
gun that you could fire with one pull of the trigger, fires multiple bullets with
one squeeze.” (See In re Jorge M., supra, 23 Cal.4th at p. 874, fn. 4 [“An
automatic firearm ‘will continue firing until either the trigger is released or

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the ammunition has been expended.’ ”].) Furthermore, Lindsey overlooks
section 16880, subdivision (a), which defines a “ ‘machinegun’ ” as “any
weapon that shoots . . . automatically more than one shot, without manual
reloading, by a single function of the trigger.” (Italics added.) As defined, a
machinegun legally refers to any automatic firearm, including an automatic
handgun. Lindsey fails to show that the court committed legal error in its
depiction of automatic weapons.
That said, the trial court’s exchange with John E. was problematic.
While the court was legally correct that an automatic firearm is a
machinegun, the term could conjure up a notion in the mind of the witness or
jurors of something necessarily larger than a handgun. Moreover, the court’s
ultimate question to the witness was overly suggestive. Despite John E.’s
testimony that the firearm was an automatic, and without explaining the
distinction between an automatic and a semiautomatic, the court stated to
John E.: “I understand you to say that maybe this was a semiautomatic
firearm. Was that a better description?” The leading nature of the question,
combined with the authoritative status of the court and the court’s display of
a knowledge of guns superior to that of the witness, threatened to prompt the
witness to answer in a way that would favor the prosecution, and implied
that the court had knowledge of facts beyond what had been introduced into
evidence.6

6 There is no indication in the record that the trial judge was anything
but well-intentioned in his comments. This case serves as a good reminder,
however, that judges presiding over jury trials should be cautious when
interjecting themselves into counsel’s examination of witnesses and carefully
phrase any questions that are designed to clarify a witness’s testimony on
critical issues in the case.

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 Nonetheless, Lindsey’s defense counsel may have had a reasonable
tactical reason not to object. (See People v. Mendoza Tello (1997) 15 Cal.4th
264, 266 [ineffective assistance claim must generally be rejected unless there
is no possible satisfactory explanation for counsel’s conduct].) First, whether
the firearm was an automatic rather than a semiautomatic was not material
to the defense theory that the firearm was a non-automatic revolver. Defense
counsel may have reasonably believed that it would be wiser to focus on the
distinction between semiautomatic firearms and revolvers, than to object and
turn attention to the distinction between semiautomatics and full automatics.
Second, defense counsel may have reasonably believed that Lindsey
would benefit from the trial court suggesting to the witness that the firearm
was a semiautomatic rather than an automatic. At the time of John E.’s
testimony, Lindsey faced an enhancement for personally using an assault
weapon or machine gun (§ 12022.5, subd. (b)), which carried a potential term
of 5, 6, or 10 years. Defense counsel may have therefore welcomed the
colloquy that resulted in John E. testifying that Lindsey’s weapon was a
semiautomatic and not a machine gun.7 Similarly, if counsel had objected to
the court’s questions and the court had relented, John E.’s testimony that the
firearm was an “automatic” could have prompted the prosecutor to attempt to
amend the Information to allege assault with a fully automatic weapon,
which carries a stiffer prison sentence than what Lindsey was facing. (§ 245,
subd. (a)(3).)

7 In fact, after John E.’s testimony that Lindsey used a semiautomatic,
the trial court pointed out to counsel, outside the jury’s presence, that
“nobody would believe” the enhancement under section 12022.5, subdivision
(b) would apply given the facts of the case, and the prosecutor thereafter
amended the allegation to conform to the proof at trial, asserting an
enhancement for personal use of a firearm (§ 12022.5, subd. (a)), which
carries a lower potential term of just 3, 4, or 10 years.

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 Third and alternatively, even if defense counsel saw an advantage in
maintaining John E.’s testimony that the firearm was an “automatic” because
it would not support the existing count 2 charge of assault with a
semiautomatic, defense counsel could have reasonably believed that
dissuading the trial court from making its inquiry would not have done any
good. After all, if defense counsel had objected and the court had not elicited
John E.’s testimony that the firearm was a semiautomatic, defense counsel
could reasonably expect the prosecutor to elicit that information to prove the
charge. Objecting to the court’s inquiry therefore would have only placed
unwanted emphasis on the inevitable evidence that the firearm was a
semiautomatic. In short, Lindsey has not established that the lack of an
objection was without any reasonable tactical purpose, or that defense
counsel’s performance fell below an objective standard of reasonableness.
(See People v. Frierson (1979) 25 Cal.3d 142, 158 [lack of objections to
evidence reflects “tactical decisions on counsel’s part and seldom establish[es]
a counsel’s incompetence”].)
b. Prejudice
Nor has Lindsey established prejudice. Again, even if defense counsel
had successfully objected to the trial court eliciting John E.’s testimony that
the firearm was a semiautomatic, the prosecutor would have elicited that
information anyway. And even if John E. had never testified that the firearm
was semiautomatic, there was ample other evidence—from more persuasive
witnesses—that it was. Officer Moraga noted that the nine-millimeter
casings found on the front seat of John E.’s SUV indicated that the bullets
were shot from a semiautomatic firearm. Detective Gonzalez further
explained that semiautomatics extract fired cartridges while revolvers do not.

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Indeed, the prosecutor’s argument in closing was that the shell casings and
law enforcement testimony proved that the firearm was a semiautomatic.
To the extent the trial court’s questioning could have been perceived as
favoring one party or the other, the judge twice instructed the jurors that
they were not to “take anything that [he] may have said or done during the
course of this trial as any indication of what [the judge thought] about the
facts, the witnesses, or what [the jury’s] verdict should be.” (CALCRIM No.
3550.) We presume the jurors followed the court’s instruction. (People v.
Thornton (2007) 41 Cal.4th 391, 440.)
Finally, it is undisputed that the trial court correctly instructed the
jury, pursuant to CALCRIM No. 875, that a “semi-automatic firearm or
semi-automatic pistol is defined as a firearm or pistol with an operating mode
that uses the energy of an explosive and a fixed cartridge to extract a fired
cartridge and chamber a fresh cartridge with each single pull of the trigger.”
The task for the jury in deciding count 3, therefore, was to decide how the
firearm operated, not how it looked physically or how it appeared to a lay
victim who admittedly knew little about guns. As described above, there was
ample evidence from law enforcement witnesses on this question, and the
resolution of the issue had nothing to do with whether John E. believed he
saw an “automatic” or a “semiautomatic.” There is no reasonable probability
Lindsey would have obtained a more favorable outcome at trial if counsel had
objected, and Lindsey fails to demonstrate ineffective assistance of counsel.
(Strickland, supra, 466 U.S. at p. 697.)
B. Remand for Resentencing
After Lindsey was sentenced to multiple upper terms and filed his
appeal, Assembly Bill No. 124 (AB 124), Senate Bill No. 567 (SB 567), and
Assembly Bill No. 518 (AB 518) were signed into law effective January 1,

14
2022. Lindsey contends these new laws require that his case be remanded for
the trial court to consider resentencing. Respondent agrees that remand is
appropriate, and we will so order.
1. AB 124
AB 124 amended section 1170 by making the lower term the
presumptive sentence for a term of imprisonment when certain conditions
exist. (Stats. 2021, ch. 695, § 5, adding § 1170, subd. (b)(6).) Specifically,
subdivision (b)(6) of section 1170 now provides: “Notwithstanding paragraph
(1), and unless the court finds that the aggravating circumstances outweigh
the mitigating circumstances that imposition of the lower term would be
contrary to the interests of justice, the court shall order imposition of the
lower term if any of the following was a contributing factor in the commission
of the offense: [¶] (B) The person is a youth, or was a youth as defined
under subdivision (b) of Section 1016.7 at the time of the commission of the
offense.” AB 124 also added section 1016.7, subdivision (b), which provides
that “[a] ‘youth’ for purposes of this section includes any person under 26
years of age on the date the offense was committed.” (Stats. 2021, ch. 695,
§ 4.)
Respondent agrees that the amendments made by AB 124 to section
1170, subdivision (b), apply retroactively to Lindsey. As respondent further
acknowledges, the matter should be remanded for the trial court to consider
resentencing under that statute, because the trial court imposed the upper
term on counts 1–3 and the middle term on count 4, Lindsey was 24 years old
at the time of the offenses, and the judgment is not yet final.
2. SB 567 and AB 518
SB 567 made the middle term the presumptive sentence in the absence
of certain circumstances. (See Stats. 2021, ch. 731, § 1.3, adding § 1170,

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subd. (b)(1), (2).) AB 518 amended section 654 by removing the requirement
that a defendant be punished under the provision that carries the longest
term of imprisonment and granting the trial court discretion to impose
punishment under any applicable provision. (See Stats. 2021, ch. 441, § 1.)
Respondent acknowledges that SB 567 and AB 518 also apply
retroactively. We need not consider the merits of Lindsey’s claims regarding
their application to his sentence, however, because upon the remand for
resentencing based on AB 124, the trial court may revisit its prior sentencing
decisions under all the new legislation. (See People v. Valenzuela (2019) 7
Cal.5th 415, 424–425 [explaining the “ ‘full resentencing rule’ ”].)
III. DISPOSITION
We remand for the trial court to consider resentencing in light of
applicable law, including AB 124, AB 518, and SB 567. The judgment is
affirmed in all other respects.

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 CHOU, J.

We concur.

JACKSON, P. J.
SIMONS, J.

People v. Lindsey / A164328

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