People v. Noel CA3 ( 2022 )

Filed 8/29/22 P. v. Noel CA3
NOT TO BE PUBLISHED
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(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Shasta)
----
THE PEOPLE, C093300
Plaintiff and Respondent, (Super. Ct. Nos. 19F6039,
20F2719)
v.
JUSTIN JOEL NOEL,
Defendant and Appellant.
Defendant Justin Joel Noel pled no contest to assault with force likely to cause
great bodily injury on J.C. in Shasta County Superior Court case No. 19F6039 and the
trial court placed defendant on formal probation. Subsequently, in Shasta County
Superior Court case No. 20F2719, a jury found defendant guilty of additional offenses,
the trial court revoked probation in case No. 19F6039, and the court sentenced defendant
to an aggregate term of four years eight months.
On appeal, defendant asserts: (1) a protective order the court issued in favor of
J.C. was statutorily unauthorized; (2) the trial court erred in stating that, upon his release,
he will be subject to parole as opposed to postrelease community supervision; (3) an
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administration fee imposed by the trial court was unauthorized; and (4) the abstract of
judgment must be amended to correct several errors. In supplemental briefing he
contends the legislative changes to Penal Code section 11701 made by Senate Bill
No. 567 (2021-2022 Reg. Sess.) (Senate Bill 567) and Assembly Bill No. 124 (2021-
2022 Reg. Sess.) (Assembly Bill 124) require remand for resentencing.
While we conclude the protective order was statutorily authorized, we remand the
matter for the trial court to determine the duration of the order and to issue a written
criminal protective order. We also agree that the changes proposed by Senate Bill 567 to
section 1170, subdivision (b)(6) also require remand.2 We agree with defendant’s
contentions that, upon his release, he shall be placed on postrelease community
supervision, not parole, and that the 15 percent administration fee imposed must be
stricken. Because we are remanding the matter for resentencing, defendant’s contentions
concerning errors on the original abstract of judgment are moot. We shall modify the
oral pronouncement of judgment, order a minute order corrected, and remand for
resentencing.
1 Undesignated statutory references are to the Penal Code.
2 Assembly Bill 124 is not independently operative. In 2021, three bills proposing
changes to section 1170 were enacted by the Legislature and signed by the Governor on
the same day: Assembly Bill 124 (Stats. 2021, ch. 695, § 5), Assembly Bill No. 1540
(2021-2022 Reg. Sess.) (Stats. 2021, ch. 719, § 2), and Senate Bill 567 (Stats. 2021,
ch. 731, § 1.3). (See People v. Flores (2022) 73 Cal.App.5th 1032, 1038; People v.
Banner (2022) 77 Cal.App.5th 226, 243, fn. 2 (conc. & dis. opn. of Detjen, J.).) Since
Senate Bill 567 was the last bill the Governor signed and bears the highest chapter
number, its amendments to section 1170 prevail over the amendments to that section
specified in the other two bills. (Gov. Code, § 9605, subd. (b); In re Thierry S. (1977)
19 Cal.3d 727, 738-739.) However, Senate Bill 567 states that if that bill is enacted last
of the three, section 1.3 of the bill incorporating the amendments proposed by Assembly
Bill 124 and Assembly Bill No. 1540 shall become operative. (Stats. 2021, ch. 731, § 3.)
Therefore, the amendments to section 1170, subdivision (b)(6) that defendant contends
were made by Assembly Bill 124 became operative only through Senate Bill 567.
2
FACTUAL AND PROCEDURAL BACKGROUND 3
Case No. 19F6039
“On 9/24/19, Redding Police Department (RPD) Officers responded to a call
regarding a disturbance between and [sic] male and female. When they arrived, officers
contacted the victim, identified as J.C. . . . , at the Shasta County Social Security
Building, who was reporting the disturbance.
“The victim stated she and the defendant, Justin Joel Noel, had been in a
dating/sexual relationship for approximately 3 months and have been staying together
while homeless. She reported there has been past domestic abuse and defendant refuses
to let the relationship end.
“The victim advised that over the course of the morning she attempted to sleep
while the defendant poked her, rambled, and behaved in a manner that prevented her
from sleeping. This encounter eventually led to the defendant accusing the victim of
being in another relationship. The defendant then ‘pounced’ on the victim, placed his
hands around her neck, and began squeezing her neck with his thumbs. The defendant
strangled the victim for approximately 4-5 seconds during which she could not breathe.
The victim reportedly did not lose consciousness; however, advised she had subsequent
neck pain from being strangled. The victim further reported after the defendant released
his grasp from her neck, he placed his hands around her face and used his thumbs to
‘gouge’ both of her eyes, which resulted in pain. The victim could not recall how long
the defendant ‘gouged’ her eyes. The victim advised, the defendant subsequently
released her, picked up a pile of dirt, and threw it in her face. The victim reported that
she did not struggle during the assault as she feared it would make things worse.
[¶] . . . [¶]
3 As do both parties, we derive the relevant underlying facts from the probation report.
3
“The victim was checked by RPD Officers who found no visible signs of injury
anywhere. She was told to inform officers if bruising later develops. The victim
informed officers that she would like the defendant arrested for the assault.
“The defendant was then questioned about the alleged assault that took place. The
defendant stated that he and the victim argued about their relationship and infidelity, but
denied any physical abuse. When asked if the victim requested the defendant leave her
along, [sic] the defendant stated, ‘She didn’t mean it, she wanted me with her.’ The
defendant was then placed under arrest.”
Defendant was charged with assault with force likely to cause great bodily injury
(§ 245, subd. (a)(4); count 1). It was further alleged defendant had served a prior prison
term within the meaning of section 667.5, former subdivision (b). Defendant pled no
contest to count 1. The prosecution agreed to the dismissal of the prior prison term
enhancement allegation.
On November 12, 2019, the trial court suspended imposition of sentence and
placed defendant on formal probation. During sentencing, defense counsel objected to
certain recommended probation conditions on the ground that “they are adding domestic
violence terms and conditions, and so he would be objecting to those.” The trial court
responded, “Okay. That’s an appropriate objection,” and struck the probation condition
that defendant complete a batterer’s program. The court also struck a domestic violence
fine. (§ 1203.097, subd. (a)(5).) The court ordered defendant not to have any contact
with J.C. The court concluded the proceedings by stating: “I don’t know where they got
the impression it was a domestic violence case.”
Case No. 20F2719
The underlying facts pertaining to case No. 20F2719 are not relevant to any issue
presented on appeal, and, accordingly, we do not summarize them in detail here. Briefly,
on April 24, 2020, a Shasta County deputy sheriff stopped defendant, who was driving
M.C.’s car, which had been stolen from where M.C. had parked it. On May 1, 2020,
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defendant entered A.S.’s car and drove off. Police pursued defendant as he drove A.S.’s
car. Eventually, defendant stopped the car, got out, and was apprehended by law
enforcement after repeatedly failing to follow law enforcement commands.
On May 4, 2020, the prosecution filed a petition for revocation of probation in
case No. 19F6039, alleging defendant had committed several new offenses. On the same
date, defendant was charged in case No. 20F2719 with carjacking (victim A.S.) (§ 215;
count 1), resisting, delaying, or obstructing a public officer, peace officer, or emergency
medical technician (§ 148, subd. (a)(1); count 2), and evading a peace officer (Veh. Code,
§ 2800.1; count 3). It was further alleged defendant personally used a deadly or
dangerous weapon, a knife, in the commission of count 1. (§ 12022, subd. (b).) On
August 31, 2020, the prosecution filed a first consolidated complaint, additionally
charging defendant with unlawful driving or taking of a vehicle (victim M.C.) (Veh.
Code, § 10851, subd. (a); count 4) and receiving a stolen motor vehicle (victim M.C.)
(§ 496d, subd. (a); count 5).
During trial, the court granted defendant’s motion to dismiss count 1, carjacking
(§ 215), and the use of a deadly or dangerous weapon enhancement allegation (§ 12022,
subd. (b)). The jury found defendant guilty on counts 2 through 4.4 The trial court
sustained probation revocation petitions in case No. 19F6039.
Sentencing
On December 18, 2020, the trial court sentenced defendant to an aggregate term of
four years eight months in state prison, calculated as follows: the upper term of four
years on count 1 in case No. 19F6039, assault with force likely to cause great bodily
injury (§ 245, subd. (a)(4)), and, in case No. 20F2719, a consecutive term of eight months
on count 4, unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a)), and
4 Counts 4 and 5 were presented as alternative counts. Accordingly, the jury reached no
verdict on count 5.
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concurrent terms of 180 days each on count 2, resisting, delaying, or obstructing a public
officer, peace officer, or emergency medical technician (§ 148, subd. (a)(1)), and count 3,
evading a peace officer (Veh. Code, § 2800.1).
DISCUSSION
I
The Protective Order
In sentencing defendant on December 18, 2020, the trial court stated: “Defendant
is ordered to neither knowingly attempt nor have any contact in any manner with, nor be
in the presence of, J.C., . . . , also as previously imposed in Case Number 19F6039.”
Defendant asserts this no-contact order is unauthorized and must be stricken. According
to defendant, while the trial court may have had the authority under section 1203.1 to
issue the order protecting J.C. as a probation condition on November 12, 2019, it lacked
any statutory authority to impose the order in imposing a prison sentence on
December 18, 2020. Defendant maintains that none of the statutory bases authorizing a
criminal protective order identified on Judicial Council form CR-160 (form CR-160), the
mandatory form for criminal protective orders, has any application here.
The Attorney General asserts defendant forfeited his contention by failing to
object in the trial court. However, as stated in People v. Ponce (2009) 173 Cal.App.4th
378: “As a general rule, an appellant waives issues on appeal that he or she did not
initially raise in the trial court. [Citation.] But there are exceptions to this rule for
unauthorized sentences and sentencing decisions that are in excess of the trial court’s
jurisdiction.” (Id. at p. 381.) “Because this case involves the jurisdictional validity of the
trial court’s decision to issue a . . . protective order during sentencing, we will consider
[the defendant’s] claim on the merits.” (Id. at pp. 381-382.) We take the same approach
and consider defendant’s claim on the merits.
As defendant notes, the trial court did not indicate the statutory basis for the
protective order. Nor is there a written criminal protective order in the record.
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“Several statutes permit entry of a protective order under certain circumstances in
a criminal case.” (People v. Robertson (2012) 208 Cal.App.4th 965, 996.) Generally, the
trial court’s failure to identify the correct statutory basis for its protective order does not
necessarily mandate reversal. “ ‘ “[A] ruling or decision, itself correct in law, will not be
disturbed on appeal merely because given for a wrong reason. If right upon any theory of
the law applicable to the case, it must be sustained regardless of the considerations which
may have moved the trial court to its conclusion.” ’ ” (People v. Zapien (1993) 4 Cal.4th
929, 976.)
Defendant identifies the statutory authority appearing on form CR-160 and argues
that the protective order was not authorized under any of the listed statutes. The Attorney
General responds that the order was authorized under section 136.2, subdivision (i)(1).
We proceed directly to consideration of that statutory provision.
Section 136.2, subdivision (i)(1) provides, in pertinent part: “When a criminal
defendant has been convicted of a crime involving domestic violence as defined in
Section 13700 or in Section 6211 of the Family Code, . . . the court, at the time of
sentencing, shall consider issuing an order restraining the defendant from any contact
with a victim of the crime.”
Subdivision (b) of section 13700 provides, in part: “ ‘Domestic violence’ means
abuse committed against an adult or a minor who is a spouse, former spouse, cohabitant,
former cohabitant, or person with whom the suspect has had a child or is having or has
had a dating or engagement relationship.” (Italics added.) Family Code section 6211
similarly states that “ ‘Domestic violence’ is abuse perpetrated against” specified
categories of individuals, including persons “with whom the respondent is having or has
had a dating or engagement relationship.” (Fam. Code, § 6211, subd. (c).)
Here, defendant and J.C. had been in a dating/sexual relationship for
approximately three months, and had been staying together while homeless. Thus, J.C.
was a person with whom defendant had a dating relationship so as to potentially qualify
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as a victim of domestic violence within the meaning of subdivision (b) of section 13700
and subdivision (c) of Family Code section 6211. (See § 13700, subd. (d) [“ ‘Victim’
means a person who is a victim of domestic violence”].)
Subdivision (a) of section 13700 defines “abuse” as “intentionally or recklessly
causing or attempting to cause bodily injury, or placing another person in reasonable
apprehension of imminent serious bodily injury to himself or herself, or another.”
Family Code section 6203 provides: “(a) For purposes of this act, ‘abuse’ means
any of the following: [¶] (1) To intentionally or recklessly cause or attempt to cause
bodily injury. [¶] (2) Sexual assault. [¶] (3) To place a person in reasonable
apprehension of imminent serious bodily injury to that person or to another. [¶] (4) To
engage in any behavior that has been or could be enjoined pursuant to [Family Code]
Section 6320.[5 ] [¶] (b) Abuse is not limited to the actual infliction of physical injury or
assault.”
In People v. Therman (2015) 236 Cal.App.4th 1276, the defendant asserted the
trial court lacked the authority to impose a no-contact order. (Id. at p. 1278.) Another
panel of this court considered whether the order was authorized under section 136.2,
subdivision (i). (Therman, at pp. 1278-1279.) The defendant had been convicted of
felony false imprisonment of his spouse. (Id. at p. 1279.) Because the defendant’s
spouse was within the class of persons protected under section 13700, the Therman court
had to decide whether the “defendant’s false imprisonment conviction involved ‘abuse’
within the meaning of section 13700.” (Therman, at p. 1279.) The court noted that,
“[d]uring the change of plea hearing, the prosecutor stated that defendant ‘did, with force
and/or violence, force [his spouse] to stay somewhere without her consent.’ ” (Ibid.) The
5 Behavior that could be enjoined pursuant to Family Code section 6320 includes, among
other things, attacking, striking, threatening, battering, harassing, and disturbing the
peace of the other party. (Fam. Code, § 6320, subd. (a).)
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court concluded: “[T]he factual basis for the plea establishes that defendant unlawfully
restrained his spouse using force and/or violence. On this admittedly sparse record, the
trial court could reasonably conclude that defendant intentionally or recklessly caused or
attempted to cause his spouse bodily injury, or placed her in reasonable apprehension of
imminent serious bodily injury to herself. [Citation.] We therefore conclude that the
record supports an implied finding that defendant committed ‘abuse’ against his spouse
within the meaning of section 13700, and therefore committed a crime of domestic
violence such that the protective order was authorized by section 136.2, subdivision (i).”
(Ibid.)
The Attorney General asserts that, like in Therman, the record here “supports an
implied finding [defendant] committed ‘abuse’ against J.C., a person with whom he had a
dating relationship and cohabitated.”
We have concluded J.C. was in the protected class of persons. As for the presence
of abuse, after defendant accused J.C. of being in another relationship, he pounced on
her, “placed his hands around her neck, and began squeezing her neck with his thumbs.
The defendant strangled the victim for approximately 4-5 seconds during which she could
not breathe. . . . The victim further reported after the defendant released his grasp from
her neck, he placed his hands around her face and used his thumbs to ‘gouge’ both of her
eyes, which resulted in pain. . . . The . . . defendant subsequently released her, picked up
a pile of dirt, and threw it in her face.”
We agree with the Attorney General that the record supports an implied finding
defendant committed “abuse” against J.C. within the meaning of section 13700 and
Family Code section 6203. This record is sufficient to support the finding that defendant
intentionally or recklessly caused, or attempted to cause, bodily injury, or placed J.C. in
reasonable apprehension of imminent serious bodily injury. (§ 13700, subd. (a); see also
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Fam. Code, § 6203, subd. (a)(1), (3), (4).) We thus conclude the trial court had the
authority to issue the protective order under section 136.2, subdivision (i)(1). 6
In his opening brief, defendant raises the fact that, in granting probation in
November 2019, the trial court sustained defense counsel’s objection to requirements that
defendant pay a domestic violence fine and participate in a batterer’s program. The court
concluded those proceedings by stating: “I don’t know where they got the impression it
was a domestic violence case.” Defendant asserts in his opening brief that the court
“found explicitly that this was not a domestic violence case . . . .” In his reply brief,
defendant adds that the “trial court’s finding that this was not a domestic violence case
was res judicata.”
Generally, we do not consider points raised for the first time in a reply brief absent
a showing of good cause for failure to present them earlier. (Citizens for Positive Growth
& Preservation v. City of Sacramento (2019) 43 Cal.App.5th 609, 630, fn. 9; Allen v. City
of Sacramento (2015) 234 Cal.App.4th 41, 52.) Defendant did not explicitly raise his
“res judicata” argument until his reply brief on appeal. While he argued in his opening
brief that the trial court “found explicitly that this was not a domestic violence case,” and
thus that section 136.2, subdivision (i)(1) did not provide a statutory basis for the
protective order, he did not raise res judicata. Defendant has offered no reason for his
failure to present this argument earlier. We thus find the issue is forfeited.
Although we conclude the order was statutorily authorized, the trial court failed to
specify any duration. A protective order under section 136.2, subdivision (i)(1) “may be
valid for up to 10 years, as determined by the court. . . . It is the intent of the Legislature
in enacting this subdivision that the duration of a restraining order issued by the court be
based upon the seriousness of the facts before the court, the probability of future
6 In light of this conclusion, we need not address the other statutory authority discussed
by defendant in his opening brief.
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violations, and the safety of a victim and the victim’s immediate family.” (§ 136.2, subd.
(i)(1).) In the absence of a specified duration, or the grounds supporting a chosen
duration, we must remand the matter for the trial court to determine the appropriate
length of the protective order pursuant to the factors set forth in section 136.2,
subdivision (i)(1).
II
Postrelease Community Supervision
Defendant asserts the trial court erred in stating he will be placed on parole upon
his release. Defendant asserts that, based on his convictions, the trial court should have
ordered that he will be placed on postrelease community supervision, not parole, and that
the minute order should be corrected accordingly.
The Postrelease Community Supervision Act of 2011 (Stats. 2011, ch. 15, § 479)
created postrelease community supervision as an alternative to parole for nonserious,
nonviolent felonies. (People v. Bryant (2021) 11 Cal.5th 976, 982.) “ ‘ “ ‘Parole applies
to high-level offenders, i.e., third strikers, high-risk sex offenders, and persons
imprisoned for serious or violent felonies or who have a severe mental disorder and
committed specified crimes.’ ” ’ ” (People v. Ruiz (2020) 59 Cal.App.5th 372, 378,
citing § 3451, subd. (b).) “ ‘ “ ‘All other released persons are placed on [postrelease
community supervision].’ ” ’ ” (Ruiz, at p. 378, citing § 3451, subd. (a).)
As the Attorney General correctly concedes, neither defendant’s current
convictions nor his criminal history renders him ineligible for postrelease community
supervision. (See § 3451, subds. (a), (b).) Accordingly, we shall order the oral
pronouncement of judgment modified and the trial court’s December 18, 2020 minute
order corrected to reflect that, upon his release, defendant shall be placed on postrelease
community supervision, not parole.
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III
Sentencing
Senate Bill 567
At the sentencing hearing held on December 18, 2020, the trial court selected the
upper term of four years on count 1, the conviction for a felony violation of section 245,
subdivision (a)(4), as the principal term. In selecting the upper term, the trial court found
that aggravating factors related to the crime outweighed the mitigating factors. At the
sentencing hearing, defense counsel urged the court to consider, among other factors,
defendant’s mental condition at the time of the crime, and argued that defendant’s drug
addiction and homelessness, “completely derailed [his life].” Additionally, the
presentence report prepared by the probation department for the sentencing hearing
included an entry that defendant had reported diagnoses of depression, anxiety, and
bipolar disorder, and that defendant believed he suffered from undiagnosed posttraumatic
stress disorder. The trial court did not address defense counsel’s comments or the
information of defendant’s mental health when imposing sentence.
Defendant contends that the amendments made by Senate Bill 567 to section 1170,
including subdivision (b)(6), constitute ameliorative legislation that applies retroactively
to cases such as his still pending on appeal and requires this court to vacate his sentence
and remand to the trial court for resentencing.
As amended, section 1170, subdivision (b)(6) provides in relevant part: “[U]nless
the court finds that the aggravating circumstances outweigh the mitigating circumstances
that imposition of the lower term would be contrary to the interests of justice, the court
shall order imposition of the lower term if any of the following was a contributing factor
in the commission of the offense: [¶] (A) The person has experienced psychological,
physical, or childhood trauma, including, but not limited to, abuse, neglect, exploitation
or sexual violence.”
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The Attorney General concedes these amendments are retroactive and apply to
defendant’s nonfinal case pending on appeal. We accept the Attorney General’s
concession. (See People v. Flores (2022) 75 Cal.App.5th 495, 500; People v. Flores,
supra, 73 Cal.App.5th at p. 1039.) The Attorney General argues however, that the record
reflects that the trial court would have reached the same sentence even under the
amended law, and thus contends that remand is unnecessary because any error in the trial
court’s imposition of the upper term, was harmless. We are not convinced.
The trial court did not have the benefit of section 1170, subdivision (b)(6) at the
time of defendant’s sentencing hearing and, as such, did not conduct the analysis required
of that section. In fact, the record is silent as to the trial court’s consideration of
defendant’s mental health diagnoses and life circumstances. We need not decide whether
these circumstances amount to the “trauma” intended in the newly amended statute; when
the trial court imposed sentence, defendant was not entitled to a presumptive lower term
upon a showing that mental illness resulted in psychological trauma, which was a
“contributing factor in the commission” of his offenses. (§ 1170, subd. (b)(6).)
Defendant thus had less incentive to develop a record regarding these issues. By the
same token, the trial court had less incentive to assess whether psychological trauma was
a contributing factor. (See People v Banner, supra, 77 Cal.App.5th at p. 242 [“record is
likely incomplete relative to statutory factors enacted after judgment [is] pronounced”],
citing People v. Frahs (2020) 9 Cal.5th 618, 637-638.) When a sentencing court is
unaware of the scope of its discretionary powers, “the appropriate remedy is to remand
for resentencing unless the record ‘clearly indicate[s]’ that the trial court would have
reached the same conclusion ‘even if it had been aware that it had such discretion.’ ”
(People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.) The record before us does not make
it clear that the trial court would have imposed the upper term had section 1170,
subdivision (b)(6) been in effect at the time. (Banner, at p. 242.)
13
On remand, defendant, as well as the Attorney General, will have the opportunity
to present additional evidence and information to permit the trial court to make the
necessary findings and exercise the discretion afforded by section 1170, subdivision (b).
Administration Fee
In sentencing defendant, the trial court ordered victim restitution “subject to a 15
percent administration fee . . . .” The trial court did not articulate a statutory basis for the
fee. Defendant asserts, and the Attorney General agrees, that this fee is unauthorized and
must be stricken.
As defendant notes, former subdivision (l) of section 1203.1 authorized the
imposition of a 15 percent administration fee that applied only when a defendant had
been ordered to pay restitution as a condition of probation. Defendant was not placed on
probation, and, thus, section 1203.1, former subdivision (l) did not apply.
“When a defendant is denied probation, section 1202.4, subdivision (f) . . .
provides for restitution paid directly to the victim and subdivision (e) provides for
restitution payable to a state fund.” (People v. Carbajal (1995) 10 Cal.4th 1114, 1121,
fn. 6.) Former subdivision (l) of section 1202.4 authorized “a fee to cover the actual
administrative cost of collecting the restitution fine, not to exceed 10 percent of the
amount ordered to be paid, to be added to the restitution fine and included in the order of
the court . . . .” (§ 1202.4, former subd. (l).) However, this could not serve as the
statutory basis for the 15 percent administration fee here because (1) former subdivision
(l) of section 1202.4 specified the administrative fee pursuant to that section was not to
exceed 10 percent, and (2) the trial court also separately imposed a 10 percent
administrative fee pursuant to section 1202.4.
Because it appears that there is no statutory basis for the 15 percent administration
fee, it was unauthorized and we shall order it stricken.
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Abstract of Judgment
In light of the fact that we are remanding the matter for resentencing, defendant’s
contentions concerning errors on the original abstract of judgment are moot.
DISPOSITION
The trial court’s December 18, 2020 minute order is ordered corrected to reflect
that, upon his release from prison, defendant shall be placed on postrelease community
supervision, not parole. The oral pronouncement of judgment is modified to reflect that,
upon his release, defendant will be subject to postrelease community supervision, and to
strike the 15 percent administration fee imposed in connection with victim restitution.
The matter is remanded to the trial court to determine the duration of the protective order
based on the factors set forth in section 136.2, subdivision (i)(1), for the trial court to
issue a written criminal protective order (form CR-160), and to resentence defendant
consistent with section 1170, subdivision (b). Upon conclusion of the resentencing
hearing, consistent with the new sentence and this opinion, the trial court shall prepare an
amended abstract of judgment and forward the amended abstract to the Department of
Corrections and Rehabilitation. The judgment is otherwise affirmed.
/s/
EARL, J.
We concur:
/s/
HOCH, Acting P. J.
/s/
KRAUSE, J.
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