People v. Ultreras CA2/6

Filed 3/21/22 P. v. Ultreras CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B310187
(Super. Ct. No. 2020010153)
Plaintiff and Respondent, (Ventura County)

v.

ANTHONY ROBERT
ULTRERAS,

Defendant and Appellant.

Anthony Robert Ultreras appeals from the judgment
after the jury convicted him of molesting a child under the age of
18 (count 1, Pen. Code, § 647.6, subd. (a)(1))1 and committing a
lewd act on a child under the age of 14 (count 3, § 288, subd. (a)).
He pled guilty to possession of child pornography with prior
convictions (count 2, § 311.11, subd. (b)). He admitted that he
suffered a prior conviction of section 288, subdivision (a), as a
prior strike (§§ 667, subds. (c)(1), (e)(1), 1170.12, subd. (c)(1)) and

1 Undesignated statutory references are to the Penal Code.
as a sentence enhancement (§§ 647.6, subd. (c)(2), 667, subd.
(a)(1), 667.61, subd. (d)(1), 1170, subd. (h)(3), 1170.12, subd.
(a)(1)). The trial court sentenced him to 50 years to life in prison
plus a determinate term of 14 years eight months.
Ultreras contends: (1) the lewd conduct conviction is
not supported by substantial evidence, (2) the trial court abused
its discretion when it did not dismiss the prior strike, (3) the
sentence constitutes cruel and unusual punishment, (4) Senate
Bill No. 567 mandates resentencing, and (5) Senate Bill No. 81
applies at resentencing. We remand for resentencing in
compliance with Senate Bills Nos. 567 and 81. In all other
respects, we affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
The bus incident (count 1)
In March 2020, I.M. was 13 years old. Shortly after
she boarded a city bus to return home from middle school,
Ultreras moved from another seat and sat next to her. She did
not know him. He sat so close that their bodies were touching.
Ultreras was 39 years old.
Ultreras introduced himself and shook her hand. He
told her she had “gorgeous eyes.” He asked if she “was into boys
or girls” and if she shaved her pubic hair. He talked about
performing oral sex on her. He said he wanted to take her to a
hotel and “spoil” her, and said he wanted her “to rape him.” He
set a date to meet her at a hotel. I.M. felt “[v]ery uncomfortable”
during the conversation.
When she got off the bus, Ultreras ran after her. He
walked alongside her during the seven to eight minute walk to
her house. He continued to talk about going to a hotel.

2
 Incident at victim’s house (count 3)
When they arrived at I.M.’s house, Ultreras told her
to hold out her hands. He firmly gripped her hands and asked
her twice if he could kiss her. He called her “baby” and looked at
her body “up and down.” He said he was excited to meet her at a
hotel. Several times he slid his hands under the sleeves of her
sweater and touched the bare skin of her wrists.
The incident lasted about a minute. It was difficult
for I.M. to free herself from his grip but she eventually did so.
She walked up the stairs to her house and banged on the door
until she was let in.
Child pornography (count 2)
Police seized Ultreras’s cell phone and examined
memory cards installed in it. They contained approximately 51
images of children, some as young as nine to 12, including images
of nude children with their breasts, vaginas, and/or anuses
exposed, and cartoon images of adults having intercourse with
children. The jury heard testimony regarding this offense and
was informed that Ultreras pled guilty to it. (§ 311.11, subd. (b).)
Prior convictions
The jury heard evidence regarding two of Ultreras’s
prior convictions: In 2011, Ultreras put his hand under the
underwear of his 10-year-old daughter and touched her vagina.
He asked her to kiss his cheek. In 2017, Ultreras tapped the
shoulder of a 12-year-old girl he did not know in a laundromat.
He handed her a note that said she was “really pretty,” contained
his telephone number, and asked her to call him.
For the first incident, Ultreras was convicted in 2012
of lewd act on a child (§ 288, subd. (a)). He was placed on
probation but after violating it was sentenced to three years in

3
prison. For the second incident, he was convicted of child
molestation (§ 647.6, subd. (a)) and was sentenced to four years
in prison.
In addition, the probation report described a 2004
conviction for child molestation (§ 647.6, subd. (a)). In that case,
Ultreras “tongue kissed” a 13-year-old girl and “began to ‘grind’
his ‘private’ area” against her. He was placed on 36 months’
probation with terms including 60 days in jail.
Sentencing
I.M. submitted a victim impact statement. She
stated that the case was “painful,” affected her “in a very
negative way,” made her distrust adults, and made her afraid
when she went outside. As a result, she walked with others or
was driven when she left the house. Although she continued to
cry about the event, she did not require counseling or therapy.
The trial court granted the motion to strike the
five-year enhancement for the serious felony prior conviction.
(§§ 667, subd. (a)(1), 1385.)
The court denied the motion to dismiss the prior
strike. (§§ 667, subds. (c)(1), (e)(1), 1170.12, subd. (c)(1).) The
trial court ruled: “[T]he Romero[2] Motion is denied. [¶] The
Court will find that the defendant’s conduct and criminal record
fall within the spirit of the three-strikes law. As evidenced by the
defendant’s criminal history, he appears to be a sexual predator.
His convictions, in terms of sexual offenses, . . . began in 2004.”
For count 1, the court imposed the upper term of six
years, doubled to 12 years for the prior strike. (§§ 647.6, subd.
(c)(2), 667, subd. (e)(1), 1170.12, subd. (c)(1).) For count 2, the

2
People v. Superior Court (Romero) (1996) 13 Cal.4th 497
(Romero).

4
court imposed one-third of the mid-term of four years, doubled to
two years eight months for the prior strike, to run consecutive to
count 1. (§§ 311.11, subd. (b), 667, subd. (e)(1), 1170.1, subd. (a),
1170.12, subd. (c)(1).) The total determinate sentence was 14
years eight months. For count 3, the court imposed a sentence of
25 years to life, doubled for the prior strike to 50 years to life.
(§§ 288, subd. (a), 667.61, subds. (a), (c)(8), (d)(1), 667, subd.
(c)(1), 1170.12, subd. (c)(1).)
DISCUSSION
Sufficiency of the evidence
Ultreras contends the evidence was not sufficient to
convict him of count 3 (§ 288, subd. (a)). We disagree.
“When a defendant challenges the sufficiency of the
evidence, ‘“[t]he court must review the whole record in the light
most favorable to the judgment below to determine whether it
discloses substantial evidence—that is, evidence which is
reasonable, credible, and of solid value—such that a reasonable
trier of fact could find the defendant guilty beyond a reasonable
doubt.” [Citation.]’ [Citations.] ‘Substantial evidence includes
circumstantial evidence and any reasonable inferences drawn
from that evidence. [Citation.]’ [Citation.] We ‘“‘presume in
support of the judgment the existence of every fact the trier could
reasonably deduce from the evidence.’” [Citation.]’ [Citation.]”
(People v. Clark (2011) 52 Cal.4th 856, 942-943.) The substantial
evidence test also applies to the intent element of the crime. (Id.
at pp. 945-946.)
Section 288, subdivision (a), imposes liability on any
person “who willfully and lewdly commits any lewd or lascivious
act . . . upon or with the body, or any part or member thereof, of a
child who is under the age of 14 years, with the intent of

5
arousing, appealing to, or gratifying the lust, passions, or sexual
desires of that person or the child.” It is not necessary “that
specific or intimate body parts be touched. Rather, a touching of
‘any part’ of the victim’s body is specifically prohibited.” (People
v. Martinez (1995) 11 Cal.4th 434, 442 (Martinez) [waist and
wrists of first victim; neck or shoulder and “chest” of second
victim].) The touching may be of bare skin or through the
clothing. (Id. at p. 444.)
To find the required intent, the trier of fact considers
“‘all the circumstances, including the charged act,’ . . . the
defendant’s extrajudicial statements [citation], other acts of lewd
conduct admitted or charged in the case [citations], the
relationship of the parties [citation], and any coercion, bribery, or
deceit used to obtain the victim’s cooperation or to avoid detection
[citation].” (Martinez, 11 Cal.4th at p. 445.)
There was substantial evidence that Ultreras acted
with lewd intent when he slid his hands under I.M.’s sleeves and
touched her bare wrists. When he did so, he asked to kiss her,
looked at her body, called her “baby,” and expressed his desire to
meet her at a hotel for sex. Any ambiguity in his conduct was
clarified by the desires he stated on the bus: to orally copulate
her and have her “rape” him. His sexual interest was further
shown by his previous convictions for conduct with young girls
and the child pornography on his phone.
Ultreras contends there is insufficient evidence that
he touched I.M. “for the present and immediate purpose of
sexually arousing or gratifying the toucher or the victim.” (People
v. Alvarez (2002) 27 Cal.4th 1161, 1171, some italics omitted;
Martinez, 11 Cal.4th at pp. 451, fn. 17, 452.) He is wrong.
Substantial evidence supports the finding that when Ultreras

6
forcefully held I.M.’s hands, slipped his hands under her sweater,
touched her bare skin, and asked to kiss her, he had the purpose
of immediate sexual arousal or gratification and was not merely
attempting to schedule a future encounter.
Romero motion
Based on Ultreras’s 2012 lewd conduct conviction
(§ 288, subd. (a)), the trial court doubled his sentence for all three
counts as a “second strike.” (§§ 667, subd. (e)(1), 1170.12, subd.
(c)(1).) Ultreras contends the trial court erred when it denied his
Romero motion to dismiss (“strike”) the strike. We conclude
otherwise.
The trial court has the discretion to dismiss a prior
violent or serious felony conviction pursuant to the Three Strikes
law. (Romero, 13 Cal.4th at p. 504.) We review the trial court’s
decision to not dismiss a strike for abuse of discretion. (People v.
Carmony (2004) 33 Cal.4th 367, 374 (Carmony I).) We presume
the trial court considered all relevant factors, even if it did not
mention them all. (People v. Myers (1999) 69 Cal.App.4th 305,
310.)
In reviewing a ruling whether to strike a strike, we
“must consider whether, in light of the nature and circumstances
of his present felonies and prior serious and/or violent felony
convictions, and the particulars of his background, character, and
prospects, the defendant may be deemed outside the scheme’s
spirit.” (People v. Williams (1998) 17 Cal.4th 148, 161
(Williams).) Those factors support denial of the Romero motion
here.
We disagree with the characterization of the crimes
as “de minimis.” But the fact that the physical contact was on
the less serious end of the continuum encompassed by section 288

7
did not require the trial court to dismiss the strike. An appellate
court may not reverse the denial of a Romero motion by
“erroneously focus[ing] on a single factor—the nature and
circumstances of [the defendant’s] current offense—to the
exclusion of all others.” (Carmony I, 33 Cal.4th at pp. 373, 379.)
Moreover, denial of the Romero motion was also
supported by Ultreras’s prior record. The current offenses
resulted in his fourth conviction for child molesting or lewd
conduct against a child.
In considering a Romero motion, the court may
consider the age of the prior offenses. (People v. Avila (2020) 57
Cal.App.5th 1134, 1141 (Avila).) But remoteness in time is an
insufficient basis to strike a strike where the defendant has not
had “a crime-free cleansing period of rehabilitation” but instead
“has led a continuous life of crime after the prior.” (People v.
Humphrey (1997) 58 Cal.App.4th 809, 813 [error to strike 20-
year-old strike]; Williams, supra, 17 Cal.4th at p. 163 [error to
strike 13-year-old strike].)
Although the 2004 incident occurred 16 years before
the current offenses, the more recent prior offenses do not
demonstrate significant periods of obedience to the law. While
still on parole for the 2012 conviction, he committed the 2017
offense. While on parole for the 2017 offense, he committed the
current offenses. In light of his repeated molestation and lewd
conduct toward young girls, “there is simply nothing mitigating”
about the age of his prior offenses. (People v. Humphrey, supra,
58 Cal.App.4th at p. 813.)
Nor do Ultreras’s “background, character, and
prospects” place him outside the Three Strikes law. (Williams,
supra, 17 Cal.4th at p. 161.) He reported occasional drug use and

8
diagnoses of bipolar disorder and paranoia, but nothing in the
record shows that this background lessened his culpability. He
reoffended during two grants of parole, which demonstrated the
likelihood he would reoffend if released.
Avila, relied upon by Ultreras, does not compel a
different result. The priors in that case were committed 26 to 28
years earlier, when the defendant was under the age of 21, and
he committed only minor offenses in the seven years before the
current offenses. (Avila, supra, 57 Cal.App.5th at pp. 1141,
1143.) In contrast, Ultreras’s most recent prior offenses were
committed only nine and three years before the current offenses,
when he was 30 and 36 years old. Between 2011 and 2020, he
was either incarcerated or on parole, and he again molested
children shortly after his release from both prison terms.
Cruel and unusual punishment
Ultreras contends the sentence constitutes cruel and
unusual punishment. Because determination of whether a
sentence constitutes cruel and unusual punishment requires a
fact-specific examination of both the offense and the offender, the
issue is forfeited if not raised in the trial court. (People v. Brewer
(2021) 65 Cal.App.5th 199, 212.) The issue is thus forfeited. 3
On the merits, we conclude the sentence is
constitutionally permissible. The Eighth Amendment’s
prohibition against cruel and unusual punishment “‘does not
require strict proportionality between crime and sentence.
Rather, it forbids only extreme sentences that are “grossly

3 Ultreras does not claim that his trial counsel rendered
ineffective assistance when she failed to object that the sentence
was cruel or unusual. (Cf. People v. Brewer, supra, 65
Cal.App.5th at p. 212.)

9
disproportionate” to the crime.’” (Ewing v. California (2003) 538
U.S. 11, 23 (Ewing) (lead opn. of O’Connor, J.); In re Coley (2012)
55 Cal.4th 524, 542.) To determine if the California provision is
violated, the “sole test” is whether the sentence “‘is so
disproportionate to the crime for which it is inflicted that it
shocks the conscience and offends fundamental notions of human
dignity.’” (People v. Dillon (1983) 34 Cal.3d 441, 478, 487, fn. 38.)
“The gravity of an offense can be assessed by
comparing the harm caused or threatened to the victim or society
and the culpability of the offender with the severity of the
penalty.” (People v. Carmony (2005) 127 Cal.App.4th 1066, 1077
(Carmony II).) Ultreras certainly posed a threat to I.M. and
young girls in general, as exemplified by his approaching I.M. on
a bus, attempting to arrange sex with her, following her home,
and holding her hands so tightly that it took her several attempts
to escape his grasp.
A claim of cruel and unusual punishment may also be
rejected based on the defendant’s prior record. In Ewing, supra,
538 U.S. 11, the United States Supreme Court rejected the claim
that a sentence of 25 years to life for stealing three golf clubs
worth $399 each was cruel and unusual punishment. The court
held that characterizing the offense as “‘shoplifting three golf
clubs’” “incorrectly frames the issue.” (Id. at p. 28.) Instead, the
gravity of the offense included the defendant’s history of violent
or serious felonies. (Ibid.)
Before doubling his sentence because of the prior
strike, the sentence for Ultreras’s violation of section 288 was 25
years to life based on his prior conviction for the same offense.
(§ 667.61, subds. (a), (d)(1).) The purpose of the One Strike
legislation enacting that sentencing provision was that “rapist[s]

10
and child molesters . . . not be allowed to repeat their crimes. To
protect our citizenry, especially our women and children, we must
structure the law to keep violent child molesters and rapists off
our streets . . . so we take away their ability to commit their
crimes again.” (Sen. Floor Com., Analysis of Sen. Bill No. 26
(1993-1994 1st Ex. Sess.) as amended Aug. 26, 1994, p. 3; see
People v. Wutzke (2002) 28 Cal.4th 923, 929-930.)
The punishment here is unlike that held to be cruel
or unusual in Carmony II. There, the defendant was sentenced to
26 years to life for failing to “update” his sex offender registration
within five days of his birthday, even though he had registered
his new address a month earlier and had not moved in the
meantime. (Carmony II, supra, 127 Cal.App.4th at p. 1071.) The
court found that it was “a harmless technical violation of a
regulatory law.” (Id. at p. 1072.) Ultreras’s violations were
neither “harmless” nor “technical.”
In In re Coley, supra, 55 Cal.4th 524, our Supreme
Court considered the identical statutory violation as in Carmony
II but found the third strike sentence of 25 years to life did not
constitute cruel and unusual punishment. Like the violation in
Coley, the violation here “was not simply a minor or technical
oversight by a defendant who had made a good faith effort to
comply with the sex offender registration law.” (Id. at p. 530.)
In re Rodriguez (1975) 14 Cal.3d 639 (Rodriguez),
abrogated on another point as stated in People v. Harris (1990)
226 Cal.App.3d 141, 146, is inapposite. There, the defendant was
convicted of section 288 after he saw a six-year-old girl roller
skating, put her in his car, and “fondled the child’s private parts.”
(Rodriguez, at p. 643, fn. 5.) His prior record included attempted
statutory rape, child molest, and escape. (Id. at p. 644, fn. 6.)

11
The court held that failure to release the defendant after serving
22 years of a life sentence was disproportionate to the offense and
constituted cruel and unusual punishment. (Id. at p. 653.) But
unlike Ultreras, Rodriguez was only age 26 at the time of the
offense, “had an I.Q. of about 68, and was functionally illiterate.”
(Id. at pp. 644, fn. 6, 655.) Rodriguez is also inapposite here
because it “did not involve a recidivist statute.” (People v.
Martinez (1999) 71 Cal.App.4th 1502, 1511 [third strike sentence
of 25 years to life not cruel or unusual for driving under the
influence, possessing .18 grams methamphetamine, using
methamphetamine, and threatening peace officer].)
Senate Bill No. 567
In supplemental briefing, Ultreras contends that the
trial court’s selection of the upper term for count 1 is barred by
Senate Bill No. 567 (2021-2022 Reg. Sess.), which
amended section 1170, subdivision (b), effective January 1, 2022
(Stats. 2021, ch. 731, § 1.3). While we disagree that the new
legislation necessarily prohibits the upper term, we agree that we
must remand for the trial court to reconsider the sentence
pursuant to Senate Bill No. 567.
The Governor signed Senate Bill No. 567 on October
8, 2021. The legislation prohibits imposition of the upper term
unless there are “circumstances in aggravation of the crime that
justify the imposition of a term of imprisonment exceeding the
middle term, and the facts underlying those circumstances have
been stipulated to by the defendant, or have been found true
beyond a reasonable doubt at trial by the jury or by the judge in a
court trial.” (§ 1170, subd. (b)(2).) However, “the court may
consider the defendant’s prior convictions in determining

12
sentencing based on a certified record of conviction without
submitting the prior convictions to a jury.” (§ 1170, subd. (b)(3).)
As the People concede, the amendment of section
1170 by Senate Bill No. 567 is ameliorative legislation that
applies retroactively to Ultreras because his case is not final on
appeal. (In re Estrada (1965) 63 Cal.2d 740, 745; People v. Frahs
(2020) 9 Cal.5th 618, 627-637.)
The trial court stated its reasons for selecting the
upper term, including that the victim was “vulnerable in a public
place,” Ultreras’s prior convictions were “serious and numerous,”
he served prior prison terms, he committed the crimes while on
parole, and his prior performance on probation and parole was
unsatisfactory. (Cal. Rules of Court, rule 4.421(a)(3), (b)(2), (3),
(4) & (5).)4 The court also relied on “other factors reasonably
related to the sentencing decision” as provided in rule 4.420(b):
“The conduct was brazen, being committed on a public bus with
numerous passengers. The defendant in the past has committed
other sexual-based offenses with victims being prepubescent girls
including his own daughter. He has exhibited a prurient sexual
interest in young girls, thus he is a danger to society.”
The People contend that the upper term was
authorized by Ultreras’s stipulations at trial that in 2012, he was
convicted of violation of section 288, subdivision (a), and in 2017,
of section 647.6, subdivision (a). But although Ultreras did
stipulate to these factors in aggravation, he did not stipulate to

4 Subsequent rule references are to the California Rules of
Court.

13
others. Nor were these facts found by the jury or established by
certified records of conviction.5
Ultreras contends that the 2012 and 2017 convictions
could not be used to impose the upper term because Senate Bill
No. 567 continues the language of the former version of the
statute: “The court may not impose an upper term by using the
fact of any enhancement upon which sentence is imposed under
any provision of law.” (§ 1170, subd. (b)(5) (former subd. (b)); see
rule 4.420(c).) He is incorrect.
“‘Enhancement’ means an additional term of
imprisonment added to the base term.” (Rule 4.405(3).) A
statute that uses a prior conviction to define the base term of a
crime “is entirely different from a statute which imposes an
‘enhancement’ in addition to that base term.” (People v. Demara
(1995) 41 Cal.App.4th 448, 452 [prior conviction properly used to
both elevate base term for Vehicle Code, § 10851 and for prior
prison term enhancement]; accord, People v. Garcia (2003) 107
Cal.App.4th 1159, 1165-1166.) The 2012 conviction did not
constitute an “enhancement” when it was used to elevate count 1
to a felony pursuant to section 647.6, subdivision (c)(2). (People v.
Whitten (1994) 22 Cal.App.4th 1761 [permitting dual use of prior
to increase § 647.6 to felony and to impose upper term].) For the
same reason, the 2012 and 2017 convictions were not
“enhancements” when they were used to impose an increased
sentencing triad for count 2 pursuant to section 311.11,
subdivision (b).

5 During sentencing the court mentioned the 2004
conviction for section 647.6 that was listed in the probation
report, but not established by a stipulation, jury finding, or
certified record.

14
 The 2012 prior was used to impose a One Strike
sentence pursuant to section 667.61, and a two strikes sentence
pursuant to sections 667, subdivisions (c)(1) and (e)(1), and
1170.12, subdivision (c)(1). But these are “alternative sentencing
scheme[s],” not enhancements. (People v. Anderson (2009) 47
Cal.4th 92, 102; Romero, supra, 13 Cal.4th at pp. 526-527.)
This case is unlike People v. Wilson (2008) Cal.4t758,
upon which the People rely, where the trial court’s reliance on the
vulnerability of the victim without a jury determination was
harmless error. There, the defendant raped the victim after
taking her “to an isolated place with her six-month-old baby in
the car. Her other two children and their father . . . were being
held at gunpoint in defendant’s house. [The victim] knew
defendant had already shot [her boyfriend’s brother] and that his
confederates were torturing and would probably kill him. She
understandably testified she was afraid for her life.” (Id. at p.
813.)
Here, without diminishing the trauma imposed on
I.M. in count 1, she was propositioned on a public bus with others
present. If the jury had been presented with the issue, it might
have found that I.M. was “particularly vulnerable” pursuant to
rule 4.421(a)(3). But “we cannot conclude with any degree of
confidence, much less beyond a reasonable doubt, that the jury
would have [so] found.” (People v. Sandoval (2007) 41 Cal.4th
825, 841 [lack of jury finding regarding victim vulnerability and
other aggravating factors not harmless].)
Senate Bill No. 81
On October 8, 2021, during the pendency of this
appeal, the Governor signed Senate Bill No. 81 (2021-2022 Reg.
Sess.), which amended section 1385, effective January 1, 2022

15
(Stats. 2021, ch. 721, § 1). We requested and received
supplemental briefing discussing the application of Senate Bill
No. 81 to this case.
Senate Bill No. 81 added subdivision (c)(1) to section
1385 to provide: “Notwithstanding any other law, the court shall
dismiss an enhancement if it is in the furtherance of justice to do
so, except if dismissal of that enhancement is prohibited by any
initiative statute.” It also added subdivision (c)(2), which
provides that “the court shall consider and afford great weight to
evidence offered by the defendant to prove” various “mitigating
circumstances . . . . Proof of the presence of one or more of these
circumstances weighs greatly in favor of dismissing the
enhancement, unless the court finds that dismissal of the
enhancement would endanger public safety.” Among the listed
mitigating circumstances are: “(B) Multiple enhancements are
alleged in a single case. In this instance, all enhancements
beyond a single enhancement shall be dismissed. [¶] (C) The
application of an enhancement could result in a sentence of over
20 years. In this instance, the enhancement shall be dismissed.
[¶] (D) The current offense is connected to mental illness.
[¶] . . . [¶] (F) The current offense is not a violent felony as
defined in subdivision (c) of Section 667.5. [¶] . . . [¶] (H) The
enhancement is based on a prior conviction that is over five years
old.”
Senate Bill No. 81 provides: “This subdivision shall
apply to sentencings occurring after the effective date of the act
that added this subdivision.” (§ 1385, subd. (c)(7).) The act was
effective January 1, 2022. (Cal. Const., art. IV, § 8, subd. (c)(2).)
The parties agree that the legislation does not apply retroactively
to the initial sentencing in this case, which occurred in December

16
2020. However, Ultreras correctly contends that if this court
remands the case for resentencing, the amendment would apply.
“[W]hen part of a sentence is stricken on review, on
remand for resentencing ‘a full resentencing as to all counts is
appropriate, so the trial court can exercise its sentencing
discretion in light of the changed circumstances.’” (People v.
Buycks (2018) 5 Cal.5th 857, 893.) The court is “obligated to look
at the facts and the law in effect at the time of that resentencing.”
(People v. Walker (2021) 67 Cal.App.5th 198, 205, italics added.)
At resentencing the court may reconsider all its discretionary
sentencing choices, so long as it does not impose a total prison
term greater than the original sentence. (People v. Burbine
(2003) 106 Cal.App.4th 1250, 1258-1259.)
DISPOSITION
The sentence is vacated and the matter is remanded
for resentencing consistent with Penal Code section 1170, as
amended by Senate Bill No. 567, and Penal Code section 1385, as
amended by Senate Bill No. 81. After resentencing, the clerk of
the court shall prepare an amended abstract of judgment to
reflect the new sentence and forward a certified copy of the
amended abstract of judgment to the Department of Corrections
and Rehabilitation. In all other respects, the judgment is
affirmed.
NOT TO BE PUBLISHED.

TANGEMAN, J.

We concur:

YEGAN, Acting P. J. PERREN, J.

17
 Michele M. Castillo, Judge

Superior Court County of Ventura

______________________________

Mark D. Lenenberg, under appointment by the Court
of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Assistant Attorney General, Scott A. Taryle and David A. Voet,
Deputy Attorneys General, for Plaintiff and Respondent.