People v. Garcia

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)).

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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.

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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

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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

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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

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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

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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

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(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.

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(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

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“ ‘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’ ”].)

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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

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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

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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

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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

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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

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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

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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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