People v. Libich CA2/3 ( 2021 )

Filed 5/13/21 P. v. Libich CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(a). This opinion has
not been certified for publication or ordered published for purposes of rule 8.1115(a).
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B298370
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. SA095699
v.
Order Denying Petition
MARTIN LIBICH,
for Rehearing and
Defendant and Appellant. Modifying Opinion
[No change in judgment]
BY THE COURT: *
It is ordered that the petition for rehearing filed May 7,
2021, is denied and the opinion filed April 22, 2021 is modified as
set forth below. There is no change in the judgment.
On page 21, add the following footnote (new footnote 10) at
the end of the last sentence: “After we issued the opinion in this
matter, the Attorney General sought rehearing, arguing for the
first time that the two-year limit for felony probation terms does
not apply to cases involving domestic violence. The People have
forfeited that argument by failing to raise it in their March 19,
2021 supplemental letter brief. Therefore, we express no opinion
on that subject. Nevertheless, nothing in our opinion should be
construed to foreclose the prosecution from making that
argument upon remand, and the trial court may consider the
argument when it decides whether to reduce defendant’s
probation term under A.B. 1950.”
* EDMON, P. J. LAVIN, J. EGERTON, J.
2
Filed 4/22/21 P. v. Libich CA2/3 (unmodified opinion)
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(a). This opinion has
not been certified for publication or ordered published for purposes of rule 8.1115(a).
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B298370
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. SA095699
v.
MARTIN LIBICH,
Defendant and Appellant.
APPEAL from a probation order of the Superior Court of
Los Angeles County, Upinder Kalra, Judge. Affirmed in part and
remanded with directions.
David R. Greifinger, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Matthew Rodriguez,
Acting Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Susan Sullivan Pithey, Assistant Attorney
General, Paul M. Roadarmel, Jr. and David F. Glassman, Deputy
Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Defendant Martin Libich was convicted of aiding and
abetting his then-girlfriend’s stalking and electronic harassment
of Leandra Y., his ex-girlfriend, and electronic harassment of
Lux Y., his child with Leandra. On appeal, he argues we must
reverse the stalking conviction because one of the aiding-and-
abetting instructions misidentified the victim as Lux rather than
Leandra. Although we agree the instruction was confusing, we
conclude that the prosecutor’s closing argument resolved the
ambiguity and that it is not reasonably likely the jury
misunderstood the relevant legal principles. Defendant also
argues—and the People concede—that Assembly Bill No. 1950
(2019–2020 Reg. Sess.) (A.B. 1950), which reduced maximum
felony probation terms to two years, applies to him retroactively
because it became effective while his appeal was pending.
Defendant asks us to reduce the term of his probation on appeal
whereas the People urge us to remand. We conclude that under
the circumstances of this case, remand is the proper remedy. We
therefore vacate the probation order and remand with directions
to reconsider it under A.B. 1950.
PROCEDURAL BACKGROUND
By information dated May 18, 2018, defendant was charged
with one count of stalking (Pen. Code,1 § 646.9, subd. (a); count 1)
and two counts of electronic harassment (§ 653.2, subd. (a);
counts 3 & 4).2 The information named Leandra as the victim of
1 All undesignated statutory references are to the Penal Code.
2 Count 2, felony vandalism, was dismissed.
2
counts 1 and 3 and named Lux as the victim of count 4.
Defendant pled not guilty.3 After a jury trial at which he did not
testify, defendant was convicted as charged.
The court suspended imposition of sentence for count 1 and
placed defendant on five years’ formal probation. Among other
probationary terms, defendant was required to serve 270 days in
county jail, perform 30 days of community service, and complete
a 52-week domestic violence treatment program followed by
psychological counseling for the remainder of the probation
period. For counts 3 and 4, imposition of sentence was suspended
and defendant was placed on three years’ summary probation, to
run concurrently with probation for count 1.
Defendant filed a timely notice of appeal, and we affirmed
by unpublished opinion. (People v. Libich (Nov. 17, 2020,
B298370) [nonpub. opn.].) Defendant then petitioned the
California Supreme Court for review. The court granted the
petition and transferred the matter to us with directions to
vacate our prior opinion and reconsider the matter in light of
A.B. 1950.
FACTUAL BACKGROUND
1. Defendant’s relationship with Leandra
Leandra and defendant met online in 2009. About a month
later, Leandra got pregnant with Lux, who was born the
following year. By the time Leandra discovered she was
pregnant, the relationship had ended. Nevertheless, Leandra told
3On December 5, 2018, the case was dismissed under section 1387.2.
By stipulation, defendant was re-arraigned and the case proceeded
with the existing accusatory pleading.
3
defendant about the pregnancy, and they discussed co-parenting
the child.
During these discussions, defendant became controlling, so
Leandra limited their communication to email and text messages.
When Lux was born, Leandra and defendant again tried to
communicate and to co-parent—but those attempts also failed.
Ultimately, several months after Lux’s birth, a paternity suit was
filed to establish custodial time.
Years of contentious litigation over custody and child
support followed: Leandra and defendant appeared in court more
than 25 times over the next six years. In 2011 or 2012, the court
ordered defendant and Leandra to communicate via Family
Wizard, an online service that maintains records for parents in
conflict. This was the only way the couple communicated—except
in emergencies, for which texting was allowed.
As relevant here, Leandra and defendant were scheduled to
appear for a custody hearing on July 18, 2016. Defendant had
moved for more custodial time; Leandra was opposed.
2. Defendant convinces his new girlfriend to harass
Leandra
Defendant met Christina Ceglar online in late May 2016,
on Collarspace, a website catering to the BDSM4 community.5
Collarspace also has a section for people seeking dominant–
submissive relationships. A dominant–submissive (DS)
relationship is a consensual relationship in which the dominant
4 BDSM stands for bondage, discipline, sadism, and masochism.
5 Ceglar testified as part of an agreement in which she pled no contest
to felony stalking with an anticipated disposition of five years’ felony
probation. She was scheduled to be sentenced after she testified.
4
partner has all the control, makes the decisions, and gives orders;
the submissive partner follows those orders and does everything
to please the dominant partner. Defendant and Ceglar became
“heavily” involved in such a relationship.
Ceglar’s Collarspace profile described her as a “submissive
seeking a dominant, wanting a permanent master, looking for
someone who could provide me with structure and guidance[.]”
Defendant’s profile, which he posted under the screen name Jean
Clawed, described him as a “dominant seeking a submissive to
please” him.
Defendant contacted Ceglar through Collarspace, and she
agreed to meet him at a café in El Segundo. The relationship
grew intense quickly. Their DS relationship began soon after
meeting, and they became sexually involved. Eventually, they
started texting by phone instead of messaging through
Collarspace; defendant had at least two phone numbers.
Defendant took Ceglar to Chicago from June 7–10, 2016.
When they returned, defendant assumed an active role as the
dominant partner in the relationship. He planned entire days for
Ceglar. He provided her with phone apps to keep up with her
activities—including scheduling apps that would document
everything she did throughout the day so defendant could
monitor her “progress.” One app allowed him to reserve blocks of
time for certain activities; another let him create task checklists.
Defendant assigned tasks to Ceglar: reading a book and writing
about it, brushing her teeth, watching television for an hour,
taking a break. And he told her when to do those tasks—when to
clean the house, make lunch, do dishes, read, wash her face,
brush her teeth, exercise, and go to bed. He was in control “from
the moment” she woke up until the “moment [she] went to bed.”
5
Ceglar did what defendant wanted because she wanted to please
him—because pleasing him pleased her.
On the Chicago trip, defendant told Ceglar about Leandra
and Lux. He said he was battling Leandra for custody; Leandra
was a “terrible person,” and he needed to do “anything in his
power” to get his daughter away from her. Ceglar could help him
do it.
Defendant asked Ceglar to create a fake Collarspace profile
for Leandra. His plan was to get so many Collarspace users to
call her that Leandra would have to change her phone number.
Forcing Leandra to change her number “would cause big
problems in her life” because the number was connected to her
business. Defendant and Leandra were scheduled to appear in
court for a custody hearing at 7:00 a.m. on Monday, July 18,
2016—and defendant wanted Leandra to change her phone
number before that hearing. Ceglar—who was in a bipolar manic
state at the time—agreed. She believed what defendant told her
about Leandra and was willing to do anything to please him.
Defendant gave Ceglar Leandra’s phone number, both
verbally and by text message. He sent the text from his alternate
phone on Friday, July 15, 2016, at 11:22 a.m. Defendant told
Ceglar that Leandra lived in a little yellow house and that his
daughter’s nickname was Little Ms. Lux. Together, defendant
and Ceglar came up with a profile name—Alexandra Lux—and
decided on the language for the post.
6
In mid-July 2016, Ceglar posted the profile on Collarspace.
It read:
Hello. My name is Alexandra Kay[6] and my little girl’s
name is Lux. [¶] … [¶] We are not new to the site, but
this is a new profile. I just got a new phone number
specifically for this purpose. I like to be scared. It’s a
thrill. If you can manage to scare me, I will be very
impressed, and you will prove yourself worthy of my
attention. Tears turn me on. I live in a little yellow
house in Venice Beach, California. [¶] … [¶]
Protecting my little girl is what’s most important to
me. This phone number is specifically for this part of
my life. I like to pretend. Can you beat me at my own
game? All I want is your phone calls and your best.
My new phone number is [redacted]. You can ask for
myself, Leandra, or my baby girl, Lux. Good luck,
xoxo. Please forgive us if we do not get back to your
messages right away.
The post was signed “Mommy Dearest, xoxo, Little Ms. Lux.” In
an effort to attract more callers, Ceglar included a photo of a
woman licking another woman’s foot. Ceglar told defendant that
the profile was live.
A Collarspace journal entry posted on Friday, July 15,
2016, at 10:53 p.m. said: “I am accepting calls from private
numbers only, but only for the next nine minutes, K. Turning off
my phone at 11:00 p.m. ☺ [phone number]. Press *67 before
dialing or block your number, K. Leandra Kay.”
6 Kay is Leandra’s middle name.
7
In a separate Collarspace profile, Ceglar posted a photo of
injured buttocks next to text that read: “I need to feel safe and
secure. [Phone number.] What do you have to lose, loser? … My
farts are eggy. They smell like eggs.” A third profile, which
Ceglar called “$2 Whore 4 U,” also included Leandra’s phone
number.
At defendant’s direction, Ceglar also made at least 60
harassing calls to Leandra herself and left 20 or 30 voicemail
messages. The first message, from July 15, 2016, at 2:11 p.m.,
was, “Leandra Kay, I love you.”
Many of the messages left that weekend insulted and
threatened Leandra and told her to change her number. Ceglar
testified that the voicemails sounded desperate, enraged, out of
control, and angry. She was trying to scare Leandra, to throw her
off in the custody hearing, and to get her to change her phone
number.
Other messages expressed resentment: “Hey, this is a job
for me. I feel like I’m at fucking work.” And: “I’m not the
responsible person here. That’s the only person who can tell me
to stop. That is the only person that I care about right now.”
Defendant was the responsible person, and the task he had
assigned her to complete was the work.
Meanwhile, Ceglar had also written Leandra’s telephone
number in a bathroom stall at an Alcoholics Anonymous club and
on a curb next to a liquor store. She also hit two cars in a Whole
Foods parking lot and left notes on them with Leandra’s phone
number.
On July 19, 2016, Ceglar left Leandra a final message: “I
apologize to you. I’m very sorry for everything that I did. … I was
wrong. … Just leave me alone. I’m very sick. I’m getting help.
8
You were right … about him … and I’m very sorry. Goodbye.”
(Ellipses in original.) Defendant once told Ceglar that Leandra
thought he was a monster; Ceglar wanted Leandra to know that
she was right. Soon thereafter, Ceglar checked herself in to a
hospital psychiatric ward.
Ceglar’s claim that defendant had asked her to harass
Leandra was corroborated by Ceglar’s contemporaneous
statements to an ex-boyfriend with whom she was living at the
time.
3. Leandra receives harassing phone calls the weekend of
July 15, 2016–July 17, 2016
On Friday, July 15, 2016, Leandra began receiving
threatening phone calls and messages on her mobile phone. The
first message, from a female caller, was a voicemail that said,
“Leandra Kay, I love you.” Kay is Leandra’s middle name; only
her mother and defendant had ever called her Leandra Kay.
Later that day, Leandra began receiving phone calls and
text messages asking for “Alexandra Lux,” “Lux the Whore,” and
“Lux the Slut,” Leandra received between 50 and 100 calls in all,
most of which used profanity and asked for Lux by name. At the
time, Lux was six years old. The calls made Leandra fear for her
daughter’s safety.
Leandra asked the callers where they got her number—and
some told her it had been posted on Collarspace. Leandra wasn’t
familiar with the website, so she went online and searched it for
Alexandra Lux. She found a profile that included her phone
number, her daughter’s name, and a description of her house.
She also noted that the profile read “Mommy Dearest xoxo and
Little Ms. Lux.” Defendant had a history of referring to her and
Lux, respectively, as Mommy Dearest and Little Ms. Lux.
9
On Saturday, July 16, 2016, Leandra received a call from a
woman who said she had found Leandra’s phone number written
on a wall at a community treatment center. Next to the number
was a message that said “selfish or helpless.” Leandra had never
been to the treatment center. Later that day, Leandra reported
the calls to the police. She told police she believed defendant was
behind them.
Throughout the weekend, Leandra received phone calls,
text messages, and voicemails threatening her daughter. The
voicemails—left by a female caller—insisted that Leandra be a
good mother, protect her daughter, and change her number. The
messages continued late Saturday night and into Sunday
morning. At one point on Sunday morning, Leandra was
receiving calls every four to eight minutes.
On Sunday, July 17, 2016, Leandra was contacted by a
man who said he’d found a note on his car with Leandra’s name
and number; the note said Leandra needed help. The man said
his car had been parked outside a Whole Foods. As Leandra made
her way there, she was contacted by a police detective about a
possible hit and run in the Whole Foods parking lot. Leandra had
not been to the parking lot that day, had not hit anyone, and had
not left a note. When Leandra arrived at the scene, she
encountered a police officer. The officer didn’t see any damage on
her car.
4. The Defense Case
The defense argued that Ceglar had acted alone and
introduced evidence that she had engaged in similar behavior
before.
In May 2016, before meeting defendant, Ceglar posted a
Collarspace journal entry in which she wrote: “I posted some
10
bitch’s number who I was harassing. She have [sic] me the $300
today. I’ll take it down.”
A month later, Ceglar was upset that a friend she’d met in
church had not promptly returned a $5 hairbrush Ceglar had left
in the friend’s car. So, in June and July 2016—about two weeks
before creating the Alexandra Lux profile—she posted the
friend’s personal mobile phone number on Collarspace. Ceglar
created a profile under the name Ice Queen Snow with a picture
of the friend, the friend’s phone number, and a message: “Please
help me come tonight. My name is Snow. It will go straight to
voicemail. Make it good. Be creative. No limits.” In a journal
entry under the same profile, Ceglar called the friend a cunt.
The defense also introduced a series of lengthy email
messages Ceglar sent to a different friend on July 9, 2016—before
she posted the Alexandra Lux profile—in which she complained
that defendant was leaving her. Ceglar and defendant had
broken up two days earlier, and Ceglar laid out a detailed plan to
gather intelligence and hurt defendant.7 She wrote: “I know
where he lives. I can stalk him. I can find out where he drops his
daughter after school. I can find out who the mother is. I can post
things publicly, anything to get her attention to me, which I’m
sure would be much easier than getting his. I can make him talk,
lies or the truth. I can make him answer. I need to be calculated.”
The next day, July 10, 2016, Ceglar texted her friend, “I fucking
hate him” and “I hope something horrible happens to him.” She
7The timing of the breakup was corroborated by numerous instances of
Ceglar referring to the breakup and to being single on July 7, 10, 12,
and 15, 2016, as well as evidence that she began seeing another man
on July 12, 2016, and developed a relationship with a man from
Arizona on July 18, 2016.
11
also sent the friend a text containing Leandra’s first name, last
name, and home address.
Indeed, Ceglar explained that she’d made similar threats to
an ex-boyfriend. After finding the names of all of his family
members, his 13-year-old nephew, his friends, and his ex-
girlfriend, she told him: “If you tell your business associates
about me and your concerns, I will post the first video on the
world wide web. Sure, I can get in a lot of trouble. Sure, I would
have consequences for that, but I think your consequences are far
worse.”
DISCUSSION
Defendant argues we must reverse count 1 because
CALCRIM No. 402—aiding and abetting under the natural-and-
probable-consequences doctrine—misidentified the victim of the
non-target offense. We conclude that the prosecutor’s closing
argument resolved the instruction’s ambiguity such that it is not
reasonably likely the jury misunderstood the relevant legal
principles.
1. Legal Principles and Proceedings Below
“A court is required to instruct the jury on the points of law
applicable to the case, and no particular form is required as long
as the instructions are complete and correctly state the law.
[Citation.] In considering a claim of instructional error we must
first ascertain what the relevant law provides, and then
determine what meaning the instruction given conveys.” (People
v. Andrade (2000) 85 Cal.App.4th 579, 585.) We review the
wording of jury instructions de novo. (People v. Posey (2004) 32
Cal.4th 193, 218.)
12
“If a jury instruction is ambiguous, we inquire whether
there is a reasonable likelihood that the jury misunderstood and
misapplied the instruction. [Citations.]” (People v. Smithey (1999)
20 Cal.4th 936, 963.) In making this determination, we consider
the challenged language “ ‘in the context of the instructions as a
whole and the trial record’ … .” (People v. Reliford (2003) 29
Cal.4th 1007, 1013.) In particular, we “must consider the
arguments of counsel in assessing the probable impact of the
instruction on the jury. [Citations].” (People v. Young (2005) 34
Cal.4th 1149, 1202 (Young).)8
A defendant can be guilty of a crime he does not personally
commit if he aids and abets the actual perpetrator—and he may
be guilty as an aider and abettor in two ways. A defendant acts
as a direct aider and abettor if he, “(i) with knowledge of the
unlawful purpose of the perpetrator, (ii) and with the intent or
purpose of committing, facilitating or encouraging commission of
the crime, (iii) by act or advice, aids, promotes, encourages or
instigates the commission of the crime. [Citation.]” (People v.
Cooper (1991) 53 Cal.3d 1158, 1164; § 31.) In addition to being
liable for crimes he intends to aid and abet (target crimes), a
defendant may be convicted of any crime that was the natural
8 Citing People v. Mendoza (1974) 37 Cal.App.3d 717, defendant insists
that although “instructions must be read in context, courts must
presume that the jury accepted their plain meaning.” Mendoza, an
opinion from an intermediate appellate court, predates the California
Supreme Court opinions cited above. It also predates Estelle v.
McGuire (1991) 502 U.S. 62, 72, on which those opinions are based. As
such, to the extent Mendoza announces a different standard than these
later cases, it is no longer good law. (See Auto Equity Sales, Inc. v.
Superior Court (1962) 57 Cal.2d 450, 455.)
13
and probable consequence of a target crime. (People v. Prettyman
(1996) 14 Cal.4th 248, 261–262.)
Here, the court instructed the jury on both direct aiding
and abetting (CALCRIM No. 401), and aiding and abetting under
the natural-and-probable-consequences doctrine. Defendant
contends the instruction on this second theory of aiding and
abetting misidentified the victim of the non-target crime of
stalking (§ 646.9, subd. (a); count 1) as Lux rather than Leandra.
The court instructed the jury as follows:
A separate theory of aiding and abetting is known as
the Natural and Probable Consequences Doctrine.
Under this theory, under certain circumstances, a
person who is guilty of one crime may also be guilty of
other crimes that were committed at the same time.
The defendant is charged in Counts 3 and 4 with
violating Penal Code section 653.2(a) (Electronic
Harassment) and in Count 1 with violating Penal
Code section 646.9(a) (Stalking).
Under this theory of aiding and abetting, you must
first decide whether the defendant is guilty of
Count 3, a violation of Penal Code section 653.2(a),
against Leandra Y. If you find the defendant is guilty
of this crime, you must then decide whether he is
guilty of Penal Code section 646.9(a), as charged in
Count 1, and Penal Code section 653.2(a), as charged
in Count 4 against Lux Y.
Under this theory, to prove that the defendant is
guilty of Penal Code section 646.9(a), as charged in
Count 1, and Penal Code section 653.2(a), as charged
14
in Count 4 against Lux Y., the People must prove
that:
1. The defendant is guilty of Penal Code section
653.2(a) against Leandra Y. as charged in
Count 3;
2. During the commission of Penal Code section
653.2(a) a coparticipant in that Penal Code section
653.2(a) committed the crime of Penal Code
section 646.9(a) or 653.2(a) against Lux Y.;
3. Under all the circumstances, a reasonable person
in the defendant’s position would have known that
the commission of Penal Code section 646.9(a)
or 653.2(a) against Lux Y. was a natural and
probable consequence of the commission of the
Penal Code section 653.2(a) against Leandra Y.
A coparticipant in a crime is the perpetrator or anyone
who aided and abetted the perpetrator. It does not
include a victim or innocent bystander.
A natural and probable consequence is one that a
reasonable person would know is likely to happen if
nothing unusual intervenes. In deciding whether a
consequence is natural and probable, consider all of
the circumstances established by the evidence.
Each of the counts charged in this case is a separate
crime. You must consider the natural and probable
consequence theory separately for Count 1 and
Count 4.
15
To decide whether the crime of Penal Code section
646.9(a) (Stalking) or Penal Code section 653.2(a)
(Electronic Harassment) were committed, please refer
to the separate instructions that I will give you on
that crime.
(Bold added; see CALCRIM No. 402.)
2. The instruction was ambiguous, but there is no
reasonable likelihood the jury misunderstood it.
As discussed, when introducing the elements of aiding and
abetting under the natural-and-probable-consequences doctrine,
the court instructed: “Under this theory, to prove that the
defendant is guilty of Penal Code section 646.9(a), as charged in
Count 1, and Penal Code section 653.2(a), as charged in Count 4
against Lux Y., the People must prove … .” (Emphasis added.)
This sentence contains two nonrestrictive phrases, each set off by
a pair of commas. The second phrase, “as charged in Count 4
against Lux Y.,” makes clear that Lux Y. is the victim of count 4.
By contrast, the first phrase, “as charged in Count 1,” does not
identify the victim of count 1.
The instruction then explains the elements of aiding and
abetting under a natural-and-probable-consequences theory.
Specifically, the second element required the prosecution to prove
that during the commission of count 3, a co-participant
“committed the crime of Penal Code section 646.9(a) or 653.2(a)
against Lux Y.” And, to prove the third element, the prosecution
had to establish that a reasonable person in defendant’s position
would have known that “the commission of Penal Code section
646.9(a) or 653.2(a) against Lux Y. was a natural and probable
consequence of the commission of [count 3] against Leandra Y.”
16
On its face, then, the instruction tells the jury that both
count 1 and count 4 concern Lux Y. And, because the
nonrestrictive phrase modifying count 1 in the previous
paragraph does not rule out the possibility that Lux was the
victim of count 1, the instruction appears to misidentify the
victim. Furthermore, contrary to the People’s repeated assertions,
no other instruction identifies Leandra as the victim of count 1.
And, unlike the verdict forms for counts 3 and 4, the verdict form
for count 1 also fails to identify a victim. Accordingly, because
nothing in the other jury instructions contradicts the apparent
meaning of the language in CALCRIM No. 402, viewed either in
isolation or in the context of the charge as a whole, the
instruction was ambiguous.
In light of this ambiguity, we must determine whether it is
reasonably likely that the jury understood the instruction in a
way that violated defendant’s constitutional rights. (Estelle v.
McGuire, supra, 502 U.S. at p. 72.) That is, could one or more
jurors have understood the non-target offense to be stalking Lux
rather than Leandra? Based on the record as a whole—and
counsel’s arguments in particular—we conclude that
interpretation is not reasonably likely. (See People v. Reliford,
supra, 29 Cal.4th at p. 1013 [court must consider trial record];
Young, supra, 34 Cal.4th at p. 1202 [court must consider
counsel’s arguments].)
During closing argument, the prosecutor explained aiding
and abetting under a natural-and-probable-consequences theory
this way: First, the prosecution had to prove “that the defendant
is guilty of electronic harassment of Leandra Y. as an aider and
abettor. During the commission of that harassment of
Leandra Y., Ceglar stalked Leandra Y. … and harassed Lux,
17
and … that was a natural and probable consequence of harassing
Leandra.” Later, the prosecutor again referred to Leandra as the
victim of stalking: “So under either theory, I think the evidence
proves that [defendant] intended Ceglar to harass and stalk
Leandra.” Then, the prosecutor explained the elements of
stalking: “Ceglar willfully and maliciously harassed Leandra Y.
No doubt that happened. She made a credible threat with intent
to place Leandra Y. in reasonable fear for her safety or the safety
of a family member—in this case, Lux. No doubt that happened.”
Finally, at the end of his argument, the prosecutor explained that
defendant used Ceglar “to stalk and harass his ex and in the
process harassed his own daughter.” Taken as a whole, the
prosecutor’s argument cleared up the ambiguity in the
instruction.
We also note that the “record contains no inquiries from the
jury regarding the application of these instructions.” (Young,
supra, 34 Cal.4th at p. 1203.) Indeed, there is no indication the
jury struggled with its verdict at all: Deliberations only lasted for
about an hour.
Because it is not reasonably likely the jury misunderstood
the victim of count 1 to be Lux rather than Leandra, we conclude
the court did not err.
3. A.B. 1950
When probation was granted in this matter, section 1203.1,
subdivision (a), provided that a court may impose felony
probation “for a period of time not exceeding the maximum
possible term of the sentence.” It further provided that “where
the maximum possible term of the sentence is five years or less,
then the period of suspension of imposition or execution of
18
sentence may, in the discretion of the court, continue for not over
five years.” (Former § 1203.1, subd. (a).)
While this appeal was pending, the Legislature passed, and
the Governor signed, A.B. 1950, which amended section 1203.1.
(Stats. 2020, ch. 328, § 2.) Subject to exceptions not applicable
here, section 1203.1, subdivision (a), as amended, provides that a
felony probation term cannot exceed two years. Similarly,
section 1203a, as amended, limits probations terms for most
misdemeanors to one year. (Stats. 2020, ch. 328, § 1.)
Defendant contends A.B. 1950’s two-year limitation for
felony probation terms applies retroactively to cases like his that
were not final when the new law became effective on January 1,
2021. (See People v. Sims (2021) 59 Cal.App.5th 943, 955–964
(Sims); People v. Quinn (2021) 59 Cal.App.5th 874, 879–885
(Quinn).) The People agree, and we accept their concession.9
Because defendant’s case was pending on direct appeal and,
therefore, was not final as of A.B. 1950’s effective date, A.B. 1950
applies retroactively to him.
Although the parties agree on retroactivity, they disagree
about the proper remedy. Defendant, following Quinn, asks us to
modify the probation order to reduce his term of supervision to
two years. (Quinn, supra, 59 Cal.App.5th at p. 885.) The People,
by contrast, ask us to follow Sims and remand for the trial court
to modify the probation order. (Sims, supra, 59 Cal.App.5th at
p. 964.) The parties are right that those cases had different
dispositions—but neither court explained why it disposed of its
case the way it did.
9 As such, we do not reach the merits of the issue.
19
The People urge that “[r]emand permits the trial court to
adjust, modify, or strike probation terms, so that they can be
complied with before termination of probation or removed from
consideration of whether the probation terminated successfully.
The trial court can [also] determine the date probation
terminated or will terminate under the new law, and whether
conditions remained unmet.” Defendant neither responds to these
arguments nor explains why he believes modifying the order on
appeal is the better approach.
Under the circumstances of this case, we agree with the
People that remand is appropriate. Here, the court imposed a
substantial number of probation conditions. Among other
probationary terms, defendant was required to serve 270 days in
county jail, perform 30 days of community service, complete a 52-
week domestic violence treatment program followed by
psychological counseling, and refrain from participating in any
dominant–submissive social media. The court also ordered
defendant to submit to electronic search of his devices and abide
by a 10-year protective order. The appellate record does not
reveal how defendant has fared in completing these
requirements. As such, we vacate the probation order and
remand so that defendant may seek a reduced probation term
under A.B. 1950. (Sims, supra, 59 Cal.App.5th at p. 964; § 1203.3,
subd. (a); see People v. Killion (2018) 24 Cal.App.5th 337, 340
[“Generally, a trial court has the authority and discretion to
modify a probation term during the probationary period,
including the power to terminate probation early.”].)
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DISPOSITION
The probation order is vacated and the matter is remanded
with directions to issue a new order consistent with the views
expressed in this opinion. In all other respects, we affirm.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, J.
WE CONCUR:
EDMON, P. J.
EGERTON, J.
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