Filed 3/28/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B306081
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA108524)
v.
LISA MARIA GARCIA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County. James D. Otto, Judge. Affirmed in part,
reversed in part and remanded for resentencing.
Aurora Elizabeth Bewicke, 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, Steven D. Matthews and Roberta L. Davis,
Deputy Attorneys General, for Plaintiff and Respondent.
**********
Defendant and appellant Lisa Maria Garcia was found
guilty of second degree robbery and assault with a deadly
weapon. The court imposed an eight-year prison term, suspended
execution of sentence and placed defendant on five years’ formal
probation. The court also imposed a 10-year protective order
pursuant to Penal Code section 136.2, subdivision (i)(1).
Defendant raises multiple claims of instructional error,
violation of her constitutional rights to a fair trial and to present
a defense, prosecutorial misconduct, and ineffective assistance of
counsel, and contends the court exceeded its authority in
imposing the postconviction protective order. In supplemental
briefing, defendant argues that in the event her convictions are
not reversed, she is entitled to a remand for resentencing
pursuant to new legislation passed during the pendency of this
appeal.
We conclude the postconviction protective order pursuant
to Penal Code section 136.2, subdivision (i)(1) must be vacated
and that a remand for resentencing is warranted in light of the
passage of Senate Bill 567 (2021–2022 Reg. Sess.) and Assembly
Bill 124 (2021–2022 Reg. Sess.) while this appeal was pending.
We otherwise affirm defendant’s conviction.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged with second degree robbery (Pen.
Code, § 211; count 1) and assault with a deadly weapon (§ 245,
subd. (a)(1); count 2). A metal sign and a wooden toy were
allegedly used as deadly weapons. As to the robbery count, it was
alleged defendant used the metal sign as a deadly weapon in the
commission of the robbery (§ 12022, subd. (b)(1)). It was further
alleged defendant inflicted great bodily injury on the victim, K.V.,
in the commission of both offenses (§ 12022.7, subd. (a)).
2
The charges arose from an incident that occurred at a Boost
Mobile store owned by K.V. in the City of Long Beach. On
February 14, 2018, defendant went to the store to purchase two
cell phones based on a promotion the store was offering at the
time.
Jacqueline Aguilar was working at the store that day and
assisted defendant in her purchase of the phones and activating
them. Defendant had trouble setting up her e-mail account on
the phones and Ms. Aguilar attempted to assist her to no avail.
Defendant became frustrated and asked for a refund.
Ms. Aguilar called K.V. to explain what was going on with
defendant. K.V., who was at her other store at the time, said she
would come see if she could help. When K.V. arrived, she tried
but was unable to resolve the problem. K.V. told defendant she
could give defendant a refund, except for an $80 fee that could
not be returned in accordance with Boost corporate policy. She
also told defendant she could do a “hard reset” on the phones but
it would take some time. Defendant became extremely angry and
cursed at her. Defendant said she had waited long enough,
needed to leave and wanted all of her money back. K.V.
reiterated she could refund all but the $80 fee.
Defendant came around the customer counter toward K.V.
and Ms. Aguilar, telling them she was going to take something
“worth $300” in value. She yanked open the drawer under the
cash register and rummaged through it, before grabbing K.V.’s
personal cell phone which was sitting on the counter. Defendant
took the cell phone and went back around to the front of the
counter and began collecting her things and placing them in a
bag, along with K.V.’s cell phone.
3
K.V. headed to the front door to close and lock it to prevent
defendant from leaving with her cell phone. Defendant became
“furious.” K.V. was scared but continued to block the door and
told defendant to return her cell phone. Defendant kept
demanding to be let out of the store. Defendant hit K.V. with the
bag containing the phones.
Defendant then picked up a large metal sign standing near
the front entrance and repeatedly swung it at K.V., striking her
several times. Defendant also repeatedly hit K.V. with a wooden
toy (the toy had been sitting at the front of the store near some
chairs as entertainment for customers’ children). During the
course of the attack, defendant also grabbed K.V.’s hair, knocked
her to the ground and punched her several times in the face with
her fist.
Ms. Aguilar, who was still behind the counter, called 911.
She stayed on the phone with the operator answering questions
about what was occurring until the police arrived.
K.V. received numerous scratches and bruises to her face,
neck, chest and arms and needed three staples to close the
laceration to her scalp caused by one of the blows to her head.
Defendant testified she became exasperated because she
believed K.V. and Ms. Aguilar were attempting to defraud her
and refused to give her money back despite not being able to set
up her phones properly. She claimed they never said she could
have a refund minus an $80 fee. Defendant said she grew
increasingly angry after spending so much time in the store and
being lied to. She claimed she had no intent to steal anything
and that she only came around the counter to look for a burglar
alarm button. She believed most stores had such buttons in
order to summon the police and she wanted the police to come
4
and help her. Defendant said she “panicked” after K.V. locked
her in and held her “hostage.” She said it was K.V. who was
insulting, “out of control,” trying to “provoke” a fight and who
“came after” her.
Defendant admitted she grabbed K.V.’s phone from the
counter and placed it in her bag, but that she only wanted to call
the police with it. She was unable to explain why she did not call
911 after taking the phone. She also admitted hitting K.V. with
the metal sign and the wooden toy, punching her and pulling her
hair. She said she only did those things because she was
frightened and wanted out of the store. She claimed to have
initially picked up the metal sign to break a window to escape,
not to hurt K.V.
The store’s security cameras recorded the incident from
several angles and those recordings were shown to the jury and
received into evidence. The video recordings substantially
corroborated K.V.’s and Ms. Aguilar’s testimony about how the
incident occurred.
The parties entered into a stipulation that informed the
jury K.V. applied for a U-Visa as a victim of a crime and that if
the visa was granted, K.V. could obtain “lawful status for up to
four years, work authorization and eligibility to adjust to a lawful
permanent residen[t] after three years.”
The jury found defendant guilty on both counts and found
true the special allegations.
The court imposed a five-year upper term on count 1, plus a
consecutive three-year term for the great bodily injury
enhancement, and a concurrent three-year midterm on count 2.
The court suspended execution of the eight-year sentence and
placed defendant on five years of formal probation. The court
5
also ordered defendant to serve 84 days in jail and credited her
with 84 days served. One term of probation required defendant
to stay away from the Boost Mobile store where the incident
occurred as well as the victim and all witnesses in the case.
Additionally, the court imposed a 10-year criminal protective
order pursuant to Penal Code section 136.2, subdivision (i)(1).
This appeal followed.
DISCUSSION
1. The Jury Instructions
a. CALCRIM No. 875
Defendant contends the court failed to correctly instruct on
the deadly weapon element for the assault count.
The court instructed with CALCRIM No. 875 which defines
the elements of assault with a deadly weapon. The court used
the correct language from the pattern instruction, with two
exceptions. The court failed to include the bracketed paragraph
that states “In deciding whether an object is a deadly weapon,
consider all the surrounding circumstances.” The Bench Notes
state the bracketed paragraph should be given when the jury is
required to determine whether an object was used as a deadly
weapon. The court also failed to omit from the first sentence of
the instruction the phrase “with force likely to produce great
bodily injury.” Defendant was only charged with assault with a
deadly weapon and the phrase therefore should have been
omitted.
Defendant argues these two errors in the written
instruction were exacerbated by the court’s oral reading of the
instruction which deviated from the text. The court misspoke
and used the disjunctive “or” in defining a deadly weapon as “one
used in such a way that it is capable of causing or likely to cause
6
death or great bodily injury.” The written instructions provided
to the jury were correct and used the word “and.”
Defendant failed to object or request the modifications to
CALCRIM No. 875 that she now claims were erroneous.
Defendant contends there is no forfeiture because the errors in
the instruction “essentially eliminated” an element of the offense.
We are not persuaded, and in any event, any errors were
harmless beyond a reasonable doubt.
The two errors in the written version of the instruction
were relatively minor, and defendant’s argument disregards the
well-established principles governing our review. In assessing
the propriety of instructions, “ ‘[w]e look to the instructions as a
whole and the entire record of trial, including the arguments of
counsel.’ ” (People v. Quinonez (2020) 46 Cal.App.5th 457, 465.)
“ ‘[A] jury instruction cannot be judged on the basis of one or two
phrases plucked out of context . . . .’ [Citation.] While a single
sentence in an instruction ‘may or may not be confusing,
depending upon the context in which the sentence lies,’ an
instructional error ‘ “ ‘cannot be predicated upon an isolated
phrase, sentence or excerpt taken from the instructions . . . .’ ” ’ ”
(Id. at pp. 465–466.) Rather, “ ‘ “[t]he correctness of jury
instructions is to be determined from the entire charge of the
court, not from a consideration of parts of an instruction or from a
particular instruction.” ’ ” (Id. at p. 466.)
Reading the instructions according to these principles, the
jury was fairly and correctly instructed. The court instructed the
jury with CALCRIM No. 3145, which included the sentence that
was omitted in CALCRIM No. 875, instructing the jury to
consider all the circumstances in deciding whether an object was
used as a deadly weapon. “The failure to give an instruction on
7
an essential issue, or the giving of erroneous instructions, may be
cured if the essential material is covered by other correct
instructions properly given.” (People v. Dieguez (2001)
89 Cal.App.4th 266, 277 (Dieguez).)
Similarly, the inclusion of the phrase “with force likely to
produce great bodily injury” in the first sentence of the
instruction was followed immediately by a listing of the elements
of the offense the prosecution was required to prove, including
that the defendant “did an act with a deadly weapon other than a
firearm.” The jury would not have been confused or misled into
believing it could find defendant guilty of assault based on a use
of force likely to produce great bodily injury even if she did not
use a weapon.
Further, the prosecutor’s argument bolstered the
instructions. The prosecutor identified each of the elements of
the offense, told the jurors the metal sign and the wooden toy
were the objects used as deadly weapons, even though they were
not ordinarily considered deadly or dangerous, and he focused
them on the manner in which defendant used them in attacking
K.V. There is no reasonable likelihood the jury misconstrued or
misapplied the law given the totality of the instructions and the
arguments of counsel. (Dieguez, supra, 89 Cal.App.4th at p. 276.)
As for the court’s misstatement in reading the instruction,
the Supreme Court recently reaffirmed the settled principle that
a reviewing court presumes “the jury understands and follows the
trial court’s instructions, including the written instructions” and
“ ‘[t]o the extent a discrepancy exists between the written and
oral versions of jury instructions, the written instructions
provided to the jury will control.’ ” (People v. Frederickson (2020)
8 Cal.5th 963, 1026, italics added; accord, People v. Osband
8
(1996) 13 Cal.4th 622, 717 [no prejudice from misstatements in
oral reading of instructions so long as jury is provided with
correct written versions as “they govern in any conflict with those
delivered orally”].)
Defendant has not shown anything in the record to rebut
the presumption the jurors followed the written instructions that
correctly stated the law.
Finally, the evidence of defendant’s guilt was
overwhelming, particularly the video footage of the incident
which strongly corroborated K.V.’s testimony and belied
defendant’s claim of self-defense.
b. CALCRIM No. 3145
Defendant contends the instruction on the deadly weapon
allegation for the robbery count was also inaccurate.
We are not persuaded by the various alleged deficiencies
cited by defendant. Only one of the alleged errors warrants a
brief discussion. The court instructed with the approved pattern
language of CALCRIM No. 3145. However, as respondent
concedes, the court erred in failing to omit the “inherently
deadly” phrase at the beginning of the instruction.
The metal sign, alleged to be the deadly weapon used in
connection with the robbery count, was plainly not an inherently
deadly weapon as a matter of law. There is no reasonable
likelihood the jury would have been confused on that point or
unclear that their role was to determine whether the sign was
used by defendant in a manner that rendered it a deadly and
dangerous weapon, given the totality of instructions and the
arguments of counsel.
However, to the extent the instruction was in error for
including that phrase, it is subject to harmless error analysis.
9
(People v. Aledamat (2019) 8 Cal.5th 1, 13 [reversal for alternate
theory error is not warranted if the reviewing court “after
examining the entire cause, including the evidence, and
considering all relevant circumstances . . . determines the error
was harmless beyond a reasonable doubt”].) As we already
explained above, the evidence of defendant’s guilt was
overwhelming, and the error was harmless beyond a reasonable
doubt.
c. Unanimity
Defendant contends the court prejudicially erred in failing
to give a unanimity instruction informing the jury it had to agree
on what specific object was used as a deadly weapon.
Defendant did not request a unanimity instruction.
However, the court has a sua sponte duty to provide such an
instruction where the evidence warrants it. (People v. Riel (2000)
22 Cal.4th 1153, 1199.) “ ‘The [unanimity] instruction is
designed in part to prevent the jury from amalgamating evidence
of multiple offenses, no one of which has been proved beyond a
reasonable doubt, in order to conclude beyond a reasonable doubt
that a defendant must have done something sufficient to convict
on one count.’ [Citation.] [¶] On the other hand, where the
evidence shows only a single discrete crime but leaves room for
disagreement as to exactly how that crime was committed or
what the defendant’s precise role was, the jury need not
unanimously agree on the basis or, as the cases often put it, the
‘theory’ whereby the defendant is guilty.” (People v. Russo (2001)
25 Cal.4th 1124, 1132 (Russo).)
The evidence here did not warrant a unanimity instruction,
so no sua sponte duty arose. Russo instructs that a unanimity
instruction is not required where, as here, multiple related acts
10
“ ‘form the basis of a guilty verdict on one discrete criminal
event.’ ” (Russo, supra, 25 Cal.4th at p. 1135.) “In deciding
whether to give [a unanimity] instruction, the trial court must
ask whether (1) there is a risk the jury may divide on two
discrete crimes and not agree on any particular crime, or (2) the
evidence merely presents the possibility the jury may divide, or
be uncertain, as to the exact way the defendant is guilty of a
single discrete crime. In the first situation, but not the second, it
should give the unanimity instruction.” (Ibid.)
Defendant was charged with a single, discreet assault on
K.V. During the course of the assault, which lasted several
minutes, defendant used, as alleged in the information and
argued by counsel, both the wooden toy and the metal sign to
strike K.V. numerous times. There was no evidence suggesting
multiple discreet assaults occurred.
Moreover, defendant offered one defense, contending only
that she acted in self-defense in attacking K.V. because she
wanted out of the store where she believed she was being
wrongfully detained. (People v. Covarrubias (2016) 1 Cal.5th 838,
879 (Covarrubias) [“a unanimity instruction is not required if ‘the
defendant offered the same defense to both acts constituting the
charged crime, so no juror could have believed defendant
committed one act but disbelieved that he committed the other”];
Dieguez, supra, 89 Cal.App.4th at p. 275 [unanimity instruction
not required when acts alleged are “so closely connected as to
form part of one continuing transaction or course of criminal
conduct” and “ ‘the defendant offers essentially the same defense
to each of the acts, and there is no reasonable basis for the jury to
distinguish between them’ ”].)
11
Under the circumstances of this case, the jury was not
required to find which object defendant used as a deadly weapon
during the assault. Indeed, as we have already explained, the
jury was correctly instructed it had to determine whether
defendant used either the metal sign or the wooden toy in a
manner that rendered them deadly weapons. However, the
jurors were not required to unanimously agree that either was
the deadly and dangerous weapon, so long as they did
unanimously agree that a deadly and dangerous weapon was
used in the assault.
d. The self-defense instructions
The court instructed the jury with the following pattern
self-defense instructions: CALCRIM Nos. 3470, 3471, 3472 and
3474. The court also gave defendant’s requested special
instruction on lawful resistance which was a modification of
CALCRIM No. 2670.
Defendant contends the court prejudicially erred in failing
to define unlawful detention or false imprisonment and in
instructing the jury that self-defense was not a defense to the
robbery count. Assuming for the sake of argument these were
errors, they were harmless beyond a reasonable doubt. While
defendant testified at length about her efforts to defend herself,
explaining that she “panicked” after K.V. locked her in and held
her “hostage,” and that it was K.V. who was insulting, “out of
control,” trying to “provoke” a fight and who “came after” her, the
video footage of the incident disproved her claims of unlawful
detention, false imprisonment and self-defense and corroborated
the testimony of K.V.
e. The defense of property instruction
12
The defense of property instruction was included, at the
prosecution’s request, to address K.V.’s effort to detain defendant
inside the store to prevent her from taking her personal property
(her cell phone). Defendant forfeited the contention of error in
giving this instruction by failing to object at trial. In any event,
any error in the wording of the instruction was harmless beyond
a reasonable doubt given the evidence of defendant’s guilt and
the prosecutor’s argument which clearly explained to the jury the
relevance of the instruction with respect to K.V.’s conduct after
defendant took her personal cell phone and attempted to leave
with it.
f. Duress and necessity
Defendant contends the court had a sua sponte duty to
instruct on duress and necessity. We disagree. A sua sponte
duty arises only when the record contains substantial evidence
supporting an instruction on duress and necessity. (See, e.g.,
People v. Powell (2018) 6 Cal.5th 136, 165.) The record does not
contain substantial evidence supporting either instruction.
2. Rights to a Fair Trial and to Present a Defense
Defendant argues the court violated her constitutional
rights to a fair trial and to present a defense by striking a portion
of her testimony and by refusing to allow her to argue that K.V.
had engaged in criminal behavior by falsely imprisoning her in
the store. We disagree.
In response to a question from her counsel about why she
was fearful of K.V. and Ms. Aguilar, defendant testified that prior
to the altercation with K.V., she heard Ms. Aguilar talking about
her brother being in jail. The court sustained the prosecutor’s
relevance objection and struck the testimony. Defendant says the
striking of her testimony prejudicially impacted her ability to
13
establish her defense and explain why she was in fear of both Ms.
Aguilar and K.V. and felt the need to defend herself.
We review a trial court’s ruling admitting or excluding
evidence under the deferential abuse of discretion standard.
(People v. Hartsch (2010) 49 Cal.4th 472, 497.) The trial court
acted well within its discretion in concluding the testimony about
Ms. Aguilar’s brother being in jail was irrelevant. It did not
meaningfully infringe on defendant’s ability to present her
defense that she felt K.V. was defrauding her and wrongfully
detaining her inside the store, nor did it impact her right to a fair
trial. (People v. Boyette (2002) 29 Cal.4th 381, 427–428 [the
application of the ordinary rules of evidence does not
impermissibly infringe on the right to present a defense].)
Defendant also argues the court violated her right to a fair
trial by prohibiting her from arguing that K.V. had engaged in
criminal conduct by falsely imprisoning her. During the
discussion of jury instructions, the court said defendant was not
allowed to argue K.V. committed a crime, explaining instead that
defendant could argue she was being unlawfully detained in the
store.
The jury was instructed on self-defense and lawful
resistance to a merchant’s unlawful detention. Defendant
testified at length to her belief she was being wrongfully
detained, and defense counsel argued self-defense and lawful
resistance in closing. Defendant has not shown how she was
deprived of a fair trial by the court’s ruling she could not argue
K.V. committed a crime.
3. The Prosecutor’s Argument
Defendant contends the prosecutor committed misconduct
during closing argument by telling the jury it would have to find
14
K.V. was a criminal in order to conclude defendant was not
guilty. Defendant contends the prosecutor’s argument misstated
the law, wrongfully shifted the burden to defendant to prove K.V.
acted criminally and was particularly egregious after the court
had ruled defendant was not allowed to argue criminal conduct
on the part of K.V.
Defendant did not object to these purported statements
during the prosecutor’s presentation. (People v. Seumanu (2015)
61 Cal.4th 1293, 1328, italics added [“making a timely and
specific objection at trial, and requesting the jury be admonished
. . . , is a necessary prerequisite to preserve a claim of
prosecutorial misconduct for appeal”].) After the closing
arguments were concluded, defendant did make an objection at
sidebar, but did not ask for a curative instruction. The court told
counsel it believed the instructions on self-defense were clear but
that it would remind the jury that what the attorneys said in
argument was not the law and that they were to follow the court’s
instructions on the law.
Even if defendant’s belated objection without asking for an
admonition were adequate to preserve the contention for appeal,
we would reject the claim on the merits.
In assessing the prosecutor’s argument, we must “consider
the assertedly improper remarks in the context of the argument
as a whole. [Citation.] ‘In conducting [our] inquiry, we “do not
lightly infer” that the jury drew the most damaging rather than
the least damaging meaning from the prosecutor’s statements.’ ”
(Covarrubias, supra, 1 Cal.5th at p. 894.)
The complained-of argument was part of the prosecutor’s
discussion of defendant’s claim of self-defense to support his
argument the claim was not credible. The prosecutor made
15
various comments that K.V. was the victim and was not the one
who had acted criminally or done anything wrong. He said that if
the jury accepted defendant’s claim of self-defense and found her
not guilty, they would be saying “essentially the defendant was
the one who was correct and that K.V. was the criminal, was the
one who did something wrong.” This argument was not
reasonably likely to confuse the jury, nor did it imply defendant
bore the burden of proof to show K.V. acted criminally. The
prosecutor quoted from the jury instructions and pointed out that
he had the burden to prove defendant did not act in self-defense.
The written instructions also correctly stated the law of self-
defense and identified the prosecutor’s burden in that regard.
Defendant has not shown the prosecutor engaged in argument
that can fairly be characterized as a “ ‘deceptive or reprehensible’
” tactic to persuade the jury to convict. (People v. Daveggio and
Michaud (2018) 4 Cal.5th 790, 854.)
4. Defendant’s Trial Counsel
Defendant contends her trial counsel was ineffective for
“failing to object more vigorously” to the court’s refusal to instruct
on lawful resistance to the robbery count, “failing to object” to the
defense of property instruction, failing to request duress and/or
necessity instructions, failing to raise constitutional objections to
the court’s ruling restricting defendant’s testimony and
argument, “neglecting to impeach” K.V. about her U-visa
application and “failing to object” to additional instances of
prosecutorial misconduct.
Defendant has a heavy burden to establish ineffective
assistance on direct appeal. Defendant must demonstrate “both
that trial counsel failed to act in a manner to be expected of
reasonably competent attorneys acting as diligent advocates, and
16
that it is reasonably probable a more favorable determination
would have resulted in the absence of counsel’s failings.” (People
v. Cudjo (1993) 6 Cal.4th 585, 623, citing Strickland v.
Washington (1984) 466 U.S. 668, 687–696.)
As we have already explained, the evidence of defendant’s
guilt was overwhelming. Defendant has not shown it is
reasonably probable she could have obtained a more favorable
determination in the absence of counsel’s alleged failings.
Moreover, most of the alleged claims of error qualify as
litigation tactics. “[W]here the appellate record does not reveal
whether counsel had a legitimate reason for a litigation choice,
we generally reserve consideration of any ineffective assistance
claim for possible proceedings on petition for writ of habeas
corpus.” (People v. Snow (2003) 30 Cal.4th 43, 95; accord, People
v. Mendoza Tello (1997) 15 Cal.4th 264, 266–267.)
We will address counsel’s failure to cross-examine K.V. on
her U-visa application because counsel admitted on the record
that was an oversight on his part. Defense counsel and the
prosecutor stipulated that K.V. had applied for a U-visa a couple
of months after the incident. The stipulation was read to the
jury, explaining that crime victims may apply for a U-visa, and
that if K.V.’s visa application was granted, she could obtain
“lawful status for up to four years, work authorization and
eligibility to adjust to a lawful permanent residen[t] after three
years.”
Defense counsel argued during closing that because of her
U-visa application, K.V. had a motive to lie about the incident
and to exaggerate being a victim in order to potentially improve
her chances of obtaining legal permanent residency. Defendant
has not shown how she would have reasonably obtained a more
17
favorable outcome had counsel cross-examined K.V. about the
application instead of relying on the stipulation.
5. Cumulative Error
Defendant argues cumulative error for which a reversal is
warranted. We are not persuaded. (People v. Bradford (1997)
15 Cal.4th 1229, 1382 [finding that to the extent any errors
occurred, they were minor and “[e]ven considered collectively”
they did not result in prejudice to the defendant].)
6. The Protective Order Pursuant to Penal Code
Section 136.2
The court imposed a 10-year postconviction protective order
pursuant to Penal Code section 136.2, subdivision (i)(1).
Respondent agrees with defendant the court erred in doing so.
Section 136.2, subdivision (i) provides authority for the
imposition of postconviction protective orders where a defendant
is convicted of a qualifying domestic violence offense. (See, e.g.,
People v. Beckemeyer (2015) 238 Cal.App.4th 461, 465–466.)
Defendant’s convictions for robbery and assault are not domestic
violence offenses. The court did not have statutory authority to
impose the postconviction protective order, and it must be
stricken.
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7. Remand for Resentencing
While this appeal was pending, the Governor signed Senate
Bill 567 and Assembly Bill 124. Both acts, which became
effective January 1, 2022, made changes to the law under which
defendant was sentenced. We agree with the parties the changes
effected by the new legislation apply retroactively to defendant’s
case as they are ameliorative in nature and therefore apply to all
nonfinal appeals. (People v. Brown (2012) 54 Cal.4th 314, 323
[discussing rule of In re Estrada (1965) 63 Cal.2d 740].)
As relevant here, the new legislation amended Penal Code
section 1170, including changes affecting a trial court’s discretion
to impose an upper term sentence. (Stats. 2021, ch. 731, § 1.3
[Senate Bill 567]; Stats. 2021, ch. 695, § 5.3 [Assembly Bill 124].)
Section 1170, subdivision (b)(2) now provides that an upper term
sentence may be imposed only “when 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.” Respondent
concedes the trial court, in imposing the upper term on count 1,
appears to have “relied upon factors in aggravation that were
neither admitted by [defendant] nor found to be true beyond a
reasonable doubt.”
Accordingly, the upper term sentence on count 1 must be
vacated and the case remanded for a new sentencing hearing. On
remand, the trial court may revisit all of its sentencing choices in
light of the new legislation. (People v. Valenzuela (2019)
7 Cal.5th 415, 424–425 [“the full resentencing rule allows a court
to revisit all prior sentencing decisions when resentencing a
19
defendant”]; accord, People v. Buycks (2018) 5 Cal.5th 857, 893
[“when 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’ ”].) In reconsidering the sentence,
the court may give further consideration to the terms of
probation, including the prohibition on possession of deadly
weapons.
DISPOSITION
The upper term sentence on count 1 and the protective
order imposed pursuant to Penal Code section 136.2,
subdivision (i)(1) are reversed. The case is remanded to the
superior court for resentencing. At the new sentencing hearing,
the court may reconsider all of its sentencing choices in light of
the amendments to Penal Code section 1170.
In all other respects, the judgment of conviction is affirmed.
GRIMES, Acting P. J.
WE CONCUR:
STRATTON, J. HARUTUNIAN, J.*
* Judge of the San Diego Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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