People v. Rollins CA1/5

Filed 6/29/22 P. v. Rollins CA1/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent, A161024
v.
PHILLIP MARTE ROLLINS, (Contra Costa County
Defendant and Appellant. Super. Ct. No. 051822048)
This is an appeal from judgment after a jury convicted defendant
Phillip Marte Rollins of one count of making a criminal threat while armed
and one count of attempted false imprisonment. Defendant received three
years of probation, a condition of which was serving 180 days in jail. On
appeal, defendant contends that the trial court misinstructed the jury on the
offense of making a criminal threat, the trial court failed to give a required
instruction on jury unanimity, his attorney rendered ineffective assistance by
misstating facts during summation, and a change in law requires a reduction
in the length of his probationary term. We affirm.
1
FACTUAL AND PROCEDURAL BACKGROUND
On November 26, 2018, defendant was charged with making a criminal
threat (Pen. Code, § 422, subd. (a); count 1)1 and false imprisonment by
violence (§§ 236, 237; count 2). As to both counts, it was alleged defendant
personally used a firearm (§ 12022.5, subd. (a)). A jury trial revealed the
following facts.
I. Prosecution’s Case.
Defendant lived with the victim and her young daughter from 2015 to
2017 in a single-family home in Richmond. Their relationship was marred by
several incidents of violence. One time, defendant became enraged when the
victim’s cousin knocked too loudly on the door. After the cousin left,
defendant demanded that the victim and her daughter get in the car so that
he could take them to the victim’s uncle’s house. Both females were scared
and did not want to go. During the drive, defendant threatened to shoot at
the house and, later, threatened to kill the victim.
Another time, the couple argued in the living room until the victim
retreated to her daughter’s room and shut the door. Defendant opened the
door and grabbed her arm, pulling her from the room. In doing so, the victim
tripped and hurt her ankle.
In June 2017, the couple argued in the laundry room. Defendant
pushed the victim into the dryer and choked her for over a minute, causing
her neck to hurt for several days. About a week later, the victim’s daughter
told the victim her relationship with defendant was abusive and did not seem
right. Shortly thereafter, the victim told defendant he had to move out before
the next school year started in August.
1 Unless otherwise stated, all statutory citations herein are to the Penal
Code.
2
In early August 2017, defendant was confronted in his bedroom by the
victim’s friend Brandon, who demanded that he leave. The victim was in
another room. Brandon told defendant he was no longer welcome in the
victim’s house. Although Brandon used profanity, he was not armed and did
not threaten defendant. Defendant took nothing when he left, but he called
the victim later to arrange to collect his belongings.
The next day, the victim met defendant and gave him many of his
belongings. She also helped him find a new place to live, in a house with
several roommates. Defendant was uncomfortable receiving mail at his new
address, so he continued to receive mail at the victim’s house. She repeatedly
asked him to have his mail forwarded, but he did not do so. Although no
longer a couple, they continued to meet monthly so defendant could get his
mail.
On a Saturday in early February 2018, defendant and the victim
planned to meet, but the victim failed to show up at the arranged time.
Defendant repeatedly called the victim, but no one answered. Finally, on
Sunday, Brandon, who was now dating the victim, answered her phone and
said she was busy before hanging up.
The victim and defendant later talked and agreed to meet in the
parking lot of a large retail store at 6 p.m. on Monday. The victim arrived
with her daughter. The victim handed him his mail and turned to leave, but
he told her to stop. Defendant then told her that she could not leave or he
would kill her. He then demanded to know who answered her phone. He
partially pulled out a handgun for about 30 seconds before giving her a pen
and paper to write down the person’s name and address.2 Scared, the victim
The victim’s daughter did not remember seeing the gun; however, her
2
mother told her that he had one.
3
wrote down a fictitious name. Afterward, defendant told her that she could
leave the parking lot but could not go back home. Defendant warned the
victim that he had people watching her and if she told anyone he would kill
her.
The victim drove away quickly and called Brandon, who instructed her
to call 911. This 911 call, recorded on February 5, 2018, was played at trial.
In it, the victim reported meeting her ex-boyfriend to drop off his mail at the
store parking lot. Her ex-boyfriend, angry that someone else answered her
phone, pulled a gun out and (without pointing it) threatened to kill her for
“playing games . . . .” The victim described the gun as a black handgun that
he pulled out of his pocket. Defendant told her that he had people watching
and if she went home or told anyone he would kill her. Afraid, the victim
went to her uncle’s house.
About an hour later, police interviewed the victim, who described a
physically and verbally abusive relationship with defendant. She told the
police that she did not want defendant prosecuted but did want him to leave
her alone.
Police later interviewed defendant and searched his house. They found
an unloaded firearm registered to defendant, two magazines with no
ammunition, and a certified record of sale in his bedroom.
II. Defense Case.
Defendant’s friend testified that defendant was “pretty mild-mannered”
and not violent-natured. Defendant then testified in self-defense, describing
a course of events that differed from the victim’s account.
According to defendant, he and the victim mutually agreed to end their
relationship in August 2016. Following bouts of infidelity, the couple began
living together as “friendly” roommates. In May 2017, the victim told
4
defendant he would soon need to move out and that she would help him do so
when the time came.
Around June 2017, the victim started staying away from her house,
telling defendant she needed space. In July 2017, while the victim was away,
defendant awoke to three men in his bedroom, two with guns and the other
with a baseball bat. One of them put a gun to defendant’s head, told him to
leave, and warned that if he bothered the victim again he would be killed.
Defendant believed this man was the victim’s new boyfriend, Brandon.
Defendant, shaken, grabbed his clothes and left. He contacted the victim,
who denied knowing what happened. She told him not to call the police if he
wanted her to return his belongings.
The next day, defendant met the victim to collect some belongings. The
victim admitted one of the men was her new boyfriend and that they took
some of his things. She said she was trying to get them back and purchased
a hotel room for him. The victim later helped him find a new place to live.
He moved into the new place on August 1, 2017. She continued to receive his
mail and met him about every two weeks to give it to him.
In or around February 2018, the former couple agreed to meet on a
Saturday, but she did not appear or answer her phone. Defendant called her
once on Saturday and twice on Sunday. Finally, on Sunday, her new
boyfriend, who sounded like the man with the gun, answered and told
defendant he would kill defendant if he did not stop calling. Defendant hung
up.
The next day, defendant contacted the victim and arranged to meet her
at the store parking lot that evening. She arrived with her daughter.
Bringing up the prior day’s phone call, the victim told defendant it was a
message from her boyfriend, who would kill defendant if he called again.
5
Defendant responded, “[I]f he come for me, then he’s going to be gone,”
meaning her boyfriend would die if he came after defendant. After
exchanging more words, he left.
Defendant denied threatening the victim, having a gun with him,
demanding that she write down her new boyfriend’s name, or preventing her
from leaving. He also denied any of the prior acts of violence that the victim
described and insisted there was no physical violence between them.
The victim called defendant two days after the store parking lot
meeting. He suspected the call was being recorded and denied making
threats toward her.
Defendant received his gun license in 2016 while living with the victim.
They talked about his intention to buy a gun. In December 2017, after
defendant bought the gun, he stored it in a locked box with the record of sale.
III. Rebuttal and Surrebuttal.
The prosecutor played a February 7, 2018 pretext phone call the victim
made to defendant. In this call, the victim said she was scared because
defendant pulled a gun on her and threatened to kill her. Defendant denied
knowing what she was talking about and said that, to move forward, she
needed to return his stuff. Defendant accused Brandon of “run[ning] up on
people with niggas with bats and, uh, get[ting] on the phone and talk[ing]
reckless.” Defendant warned the victim not to talk “reckless” and to choose
her words “a little bit better.” He invited the victim to dinner to talk, but she
refused, asking how they could have dinner when he was threatening to kill
her. He again denied knowing what she was talking about.
Defendant accused the victim of “lying to me the whole time” and
“set[ting] me up” by having “[her] dude . . . come get me.” The victim denied
this. She said that she had to get someone else to ask him to leave because
6
he was refusing to do so. Defendant warned her that Brandon was “ ’bout to
be gone” and “[h]e’s gone.” Defendant asked if Brandon was “stayin’ over
there.” Upset that the victim did not reach out to him after Brandon
answered her phone, defendant said she was “lucky nothin’ happen [sic] right
then . . . .” Defendant also told her, “He gettin’ at me through you.”
Defendant testified in surrebuttal that he did not know why the victim
was scared. At the store parking lot, defendant relayed the message that if
the victim’s boyfriend came to “see” or “kill” him, “he’s going to be gone.” He
asked the victim if Brandon was staying with her because he believed she
was lying when she said Brandon did not live with her. Defendant believed
the pair began their relationship before he moved out. Defendant did not ask
the victim to explain what she meant by saying he pulled out a gun and
threatened to kill her. He told her to choose her words more carefully
because he was frustrated and upset. He believed the call was being recorded
or listened to by someone.
IV. Verdict, Sentencing and Appeal.
On August 28, 2019, the jury found as to count 1 that defendant was
guilty of making a criminal threat and that he did not personally use a
firearm but that he was armed with a firearm when committing the offense.
As to count 2, the jury found defendant not guilty of false imprisonment but
guilty of the lesser included offense of attempted false imprisonment. At
sentencing, the court placed defendant on probation for three years subject to
terms and conditions, including serving 180 days in county jail. On
September 21, 2020, defendant appealed.
DISCUSSION
Defendant argues on appeal: (1) the court prejudicially misinstructed
the jury on CALCRIM No. 1300 (“Criminal Threat”) because there was
7
insufficient evidence to support it as given; (2) the court prejudicially erred in
failing to sua sponte instruct on jury unanimity; (3) he received ineffective
legal assistance when his attorney made “material misstatements” during
summation (all capitalization and boldface omitted); and (4) newly amended
section 1203.1 requires reducing his probationary term to two years. We
address these arguments in turn.
I. No Prejudicial Error in Giving CALCRIM No. 1300.
Defendant argues the court’s giving of CALCRIM No. 1300, Criminal
Threat, was prejudicial error because the evidence was insufficient to prove
that (1) Brandon was a member of the victim’s “immediate family” for
purposes of section 422 or that (2) the victim was reasonably in sustained
fear for her immediate family’s safety. The following rules govern.
The trial court has a sua sponte duty to provide “proper instructions on
all of the elements of the charged offenses.” (People v. Lewelling (2017) 16
Cal.App.5th 276, 295.) An instruction is warranted where there is “some
evidence in the record that, if believed by the jury, would sufficiently support
the suggested inference.” (People v. Coffman and Marlow (2004) 34 Cal.4th
1, 102.) “It is error to give an instruction which, while correctly stating a
principle of law, has no application to the facts of the case.” (People v. Guiton
(1993) 4 Cal.4th 1116, 1129 (Guiton).) We review the propriety of a trial
court’s instruction de novo. (People v. Cole (2004) 33 Cal.4th 1158, 1206.)
8
A. Factual Background.
The challenged instruction, CALCRIM No. 1300, sets forth the
elements of count 1, making a criminal threat (§ 422).3 This instruction4
stated in relevant part: “To prove that the defendant is guilty of this crime,
the People must prove that: [¶] One, the defendant willfully threatened to
unlawfully kill or unlawfully cause great bodily injury to [Jane Doe One] or
members of complaining witness’s immediate family; [¶] Two, the defendant
made the threat orally or by electronic device or in writing; [¶] Three, the
defendant intended that his statement be understood as a threat and
intended that it be communicated to [Jane Doe One]; [¶] Four, the threat was
so clear, immediate, unconditional and specific that it communicated to [Jane
Doe One] a serious intention and the immediate prospect that the threat
would be carried out; [¶] Five, the threat actually caused [Jane Doe One] to
be in sustained fear for her own safety or for the safety of her immediate
family; and [¶] Six, [Jane Doe One’s] fear was reasonable under the
circumstances. [¶] . . . [¶] Immediate family means any spouse, parents and
3 “[T]o prove a violation of section 422, the prosecution must establish
all of the following: (1) that the defendant ‘willfully threaten[ed] to commit a
crime which will result in death or great bodily injury to another person,’
(2) that the defendant made the threat ‘with the specific intent that the
statement . . . is to be taken as a threat, even if there is no intent of actually
carrying it out,’ (3) that the threat . . . was ‘on its face and under the
circumstances in which it [was] made, . . . so unequivocal, unconditional,
immediate, and specific as to convey to the person threatened, a gravity of
purpose and an immediate prospect of execution of the threat,’ (4) that the
threat actually caused the person threatened ‘to be in sustained fear for his
or her own safety or for his or her immediate family’s safety,’ and (5) that the
threatened person’s fear was ‘reasonabl[e]’ under the circumstances.” (People
v. Toledo (2001) 26 Cal.4th 221, 227–228.)
4The trial court record frequently refers to the victim as “Jane Doe
One” and the victim’s daughter as “Jane Doe Two.”
9
children, any grandchildren, grandparents, brothers and sisters related by
blood or marriage or any person who regularly lives in the other person’s
household or who regularly lived there within the prior six months.” (Italics
added.)
During the jury instruction conference, defense counsel objected to the
inclusion of the italicized language on the grounds that the victim’s fear “for
the safety of her immediate family” was not at issue. The court responded
that it believed the victim testified she feared for the safety of her daughter
and, “[G]iven her testimony, I’ll go back and look at my notes, but I think this
was within the scope of what she testified to.” Defendant never renewed his
objection, and the instruction with the italicized language was given.
During summation, the prosecutor discussed each element of count 1,
explaining defendant made the criminal threat to the victim on February 5,
2018, when “[h]e told her he was going to kill her. That’s a threat. He
showed her a gun as he did so. He said, I want to kill you. I’m going to kill
you. He threatened her more than one time with her life.” The prosecutor
continued, “[I]t doesn’t really get more clear, immediate, unconditional, and
specific than, I will kill you. I want to kill you.” Afterward, “she called the
family member first. She called her boyfriend first [before calling 911].”
“And it actually caused her to be in sustained fear for her own safety or the
safety of her immediate family. . . . [¶] . . . [¶] . . . [S]he didn’t go home. She
sped out of the parking lot. She called 911. . . . [¶] . . . She stayed at her
uncle’s house. . . . That is how frightened she was. That’s how seriously she
took what the defendant said to her. [¶] And, of course, she was terrified for
her child. Confronted with a man who is showing her a gun and telling her
he was going to kill her. Yeah, she was frightened for her daughter.”
10
During deliberations, the jury sent a note to the court asking, “Is
Brandon considered part of the family”? The court responded, “No.” A few
hours later, the jury sent another note to the court, stating, “Penal code 422
[¶] Immediate family item C page 2 see [and] return attached.” The court
responded, “You must rely on testimony/evidence produced during the trial to
determine who was and/or who was not living in the household for purposes
of instruction 1300.”5 Eventually, the jury reached a verdict, finding
defendant guilty of count 1 and finding not true the allegation that he
personally used a firearm in committing the crime but true that he was
armed in doing so.
Defendant moved for a new trial, arguing (inter alia) that the jury
improperly convicted him under section 422 of making a criminal threat
against the victim’s boyfriend, Brandon. Defendant submitted sworn
declarations from juror Nos. 2 and 9, who asserted that they convicted
defendant based upon a threat he made against Brandon and that the victim
did not credibly testify that defendant was armed at the time. The court
denied the motion and rejected the juror declarations, finding they contained
mental processes that could not properly be considered.
B. Legal Analysis.
Defendant contends the evidence did not support the language in
CALCRIM No. 1300 requiring the threat to have actually caused the victim
to be in sustained fear for her own safety or the safety of her immediate
family.6 Defendant reasons that, one, the victim never testified his threat
5Defendant asserts that the court’s response to this jury question was
erroneous but does not explain why. We therefore disregard his assertion.
6In the standard CALCRIM No. 1300 instruction, the italicized
language is optional, as indicated by the brackets: “The threat actually
caused _____ to be in sustained fear for
11
caused her to be in sustained fear for her daughter’s safety and, two, there
was no evidence Brandon was an immediate family member, meaning that he
regularly lived with her within the prior six months. According to defendant,
the erroneous language contributed to the count 1 verdict. We conclude that
even assuming error, there was no harm.
Initially, we agree the evidence is insufficient to prove that, based on
defendant’s threat, the victim was reasonably placed in fear for her
daughter’s safety. (People v. Cole, supra, 33 Cal.4th at p. 1206.) Section 422
requires that “the threat must be communicated to the complaining witness
and cause the complaining witness to be in a state of sustained fear.
However, this threat, directed toward the complaining witness, must be to
unlawfully kill or cause great bodily injury to either the complaining witness
or his or her immediate family member.” (Ayala v. Superior Court (2021) 67
Cal.App.5th 296, 303.) The only evidence at trial was that defendant pulled a
gun from his pocket and, without pointing it at the victim, threatened to kill
her. While the victim testified that she feared for her daughter’s safety, there
was no evidence defendant threatened to harm her daughter, who was
waiting in a nearby car.
Nonetheless, we conclude it is not reasonably probable the result would
have been more favorable to defendant had the error not occurred. (Guiton,
supra, 4 Cal.4th at p. 1130.) The California Supreme Court instructs, “In
determining whether there was prejudice, the entire record should be
examined, including the facts and the instructions, the arguments of counsel,
any communications from the jury during deliberations, and the entire
verdict. [Citation.] Furthermore, instruction on an unsupported theory is
(his/her) own safety [or for the safety of (his/her) immediate family].”
(CALCRIM No. 1300.)
12
prejudicial only if that theory became the sole basis of the verdict of guilt; if
the jury based its verdict on the valid ground, or on both the valid and the
invalid ground, there would be no prejudice, for there would be a valid basis
for the verdict. We thus adopt the following test. . . . [T]he appellate court
should affirm the judgment unless a review of the entire record affirmatively
demonstrates a reasonable probability that the jury in fact found the
defendant guilty solely on the unsupported theory.” (Ibid.)
Here, ample evidence supported the prosecutor’s valid theory that
defendant, armed with a gun, threatened to kill the victim in the store
parking lot on February 5, 2018, and thereby placed her in sustained fear for
her own life. The victim testified to these precise facts, which were then
corroborated by the recording of the 911 call she made just after the incident.
Her daughter’s testimony was also aligned, as it confirmed the victim
returned to the car on February 5, after having what looked like a stressful
interaction with defendant, and told her daughter that defendant pulled out a
gun and threatened to kill her. As such, there was no prejudice, as we may
assume the unsupported theory that the victim was in fear for her daughter’s
safety was not “the sole basis of the verdict of guilt.” (Guiton, supra, 4
Cal.4th at p. 1130; see People v. Penunuri (2018) 5 Cal.5th 126, 169
[reviewing court will not overturn a jury verdict absent an affirmative
showing of a reasonable probability the defendant was convicted on the
invalid theory].)
This same record defeats defendant’s claim that the jury improperly
convicted him of making a criminal threat against the victim’s boyfriend,
Brandon. The prosecutor never raised this theory at trial.7 Further, in
7 As defendant mentions, the prosecutor referred to Brandon as the
victim’s “family member” in summation. The prosecutor did so just one time,
13
finding defendant guilty, the jury found true that he was armed while
committing the crime. The only evidence of defendant’s being armed was on
February 5, 2018, in the store parking lot. The victim’s testimony,
corroborated by the 911 call, made clear that defendant threatened to kill
her, and no one else, on February 5. Thus, as before, the jury verdict stands
because defendant cannot affirmatively show a reasonable probability that he
was convicted on the invalid theory that he made the threat against Brandon.
(Guiton, supra, 4 Cal.4th at p. 1130; People v. Penunuri, supra, 5 Cal.5th at p.
169.)
Finally, defendant’s attempt to rely on juror declarations to prove
otherwise fails. The trial court found these declarations contained improper
evidence relating to the jurors’ mental processes, which were inadmissible to
impeach the verdict. Defendant makes no attempt to prove the court’s
finding was erroneous. Nor could he. The California Supreme Court has long
held that “ ‘ “[a] verdict may not be impeached by inquiry into the juror’s
mental or subjective reasoning processes, and evidence of what the juror ‘felt’
or how he understood the trial court’s instructions is not competent.
([Citations]; Evid. Code, § 1150, subd. (a).)” ’ ” (People v. Lindberg (2008) 45
Cal.4th 1, 53.) We thus agree with the court that the jurors’ declarations
should not be considered.
in explaining that after being threatened by defendant, the victim called
Brandon before she called the police. Yet, in explaining each element of
count 1, the prosecutor made clear the criminal threat was directed at the
victim, not Brandon. Moreover, when the jury asked the court during
deliberations whether Brandon was the victim’s family member, the court
responded, “No.” On this record, the court’s reference to Brandon as a “family
member” could not have confused the jury while it was deliberating on
count 1.
14
II. No Sua Sponte Duty to Instruct on Juror Unanimity.
“In a criminal case, ‘the jury must agree unanimously the defendant is
guilty of a specific crime.’ ” (People v. Covarrubias (2016) 1 Cal.5th 838, 877–
878 (Covarrubias).) Defendant contends the court prejudicially erred in this
case by failing to instruct on jury unanimity. He reasons that jurors could
have found him guilty of making a criminal threat based on either a threat he
made against the victim or a threat he made against Brandon. We consider
de novo whether a unanimity instruction should have been given in a
particular case. (People v. Hernandez (2013) 217 Cal.App.4th 559, 568.)
Having done so, we reject his argument.
“ ‘[C]ases have long held that when the evidence suggests more than
one discrete crime, either the prosecution must elect among the crimes or the
court must require the jury to agree on the same criminal act.’ [Citation.]
Yet ‘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.’ [Citation.] ‘In deciding whether to give the 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.’ [Citation.]”
(Covarrubias, supra, 1 Cal.5th at pp. 877–878.)
Our case comports with the second situation: The evidence merely
presents the possibility the jury was uncertain as to the exact way defendant
was guilty of making a criminal threat. Indeed, the case built against
15
defendant from start to finish was based on his threat directed at the victim,
to kill her. Defendant was charged with making a criminal threat against
the victim; the victim testified unequivocally that defendant threatened her;
and the prosecutor argued to the jury the basis for count 1 was the threat
defendant made against the victim. Thus, while Brandon may have triggered
the threat, he was not its target. Accordingly, the court was not required to
give a unanimity instruction. (Covarrubias, supra, 1 Cal.5th at p. 878.)
Further weighing against the need for a unanimity instruction is the
fact that the jury found defendant was armed while making the criminal
threat. The only evidence at trial supporting this finding related to the
February 5, 2018 incident at the store parking lot. There is no evidence of
any threat being waged against Brandon during this incident. On the
contrary, as explained ante, the evidence proved that on February 5, 2018,
defendant showed the victim his gun and threatened to kill her. The jury’s
verdict therefore implies jurors were not divided on the crime defendant
committed. Rather, they agreed he made a criminal threat, while armed,
against the victim. Thus, no unanimity instruction was necessary. (See
Covarrubias, supra, 1 Cal.5th at p. 878.)
III. No Ineffective Assistance of Counsel.
Defendant next argues that his attorney violated his right to effective
assistance from counsel by making material misstatements in summation.
Specifically, defendant faults his counsel for twice stating, “ ‘As soon as
[defendant] moved out, Brandon moved in.’ ” According to defendant, his
attorney’s statements “would have . . . misled [one or more jurors] in
assessing whether or not Brandon was a member of [the victim’s] ‘immediate
family’ ‘who within the prior six months, regularly resided in the household.’
(§ 422, subds. (a), (b).)” In addition, defendant contends—without any
16
explanation—that his attorney’s statements served to lessen the
prosecution’s burden of proof and erode jurors’ confidence in the strength of
his case.
To prevail on a claim of ineffective assistance of counsel, the “defendant
must show counsel’s performance fell below a standard of reasonable
competence, and that prejudice resulted.” (People v. Anderson (2001) 25
Cal.4th 543, 569.) “Prejudice” in this context occurs only where defense
counsel’s deficient performance “ ‘so undermined the proper functioning of the
adversarial process’ ” that the outcome cannot be deemed reliable. (People v.
Kipp (1998) 18 Cal.4th 349, 366, quoting Strickland v. Washington (1984) 466
U.S. 668, 686 (Strickland).)
Under this standard, defendant must overcome a strong presumption
that his counsel’s conduct was sound legal strategy or otherwise within the
wide range of reasonable professional assistance. (People v. Bunyard (1988)
45 Cal.3d 1189, 1215.) “Defendant’s burden is difficult to carry on direct
appeal, as we have observed: ‘ “Reviewing courts will reverse convictions [on
direct appeal] on the ground of inadequate counsel only if the record on
appeal affirmatively discloses that counsel had no rational tactical purpose
for [his or her] act or omission.” ’ [Citation.]” (People v. Lucas (1995) 12
Cal.4th 415, 437 (Lucas).) Moreover, if “defendant has failed to show that the
challenged actions of counsel were prejudicial, [we] may reject the claim on
that ground without determining whether counsel’s performance was
deficient.” (People v. Kipp, supra, 18 Cal.4th at p. 366.)
Here, the record does not disclose why defendant’s counsel twice stated
that Brandon moved in as soon as defendant moved out. We therefore
reverse only if there is no rational tactical reason for his counsel’s conduct.
(Lucas, supra, 12 Cal.4th at p. 437.) This standard is not met here.
17
First, in light of the strong presumption of reasonableness attaching to
the attorney’s actions, we conclude the challenged statements were fair
comments on the evidence. (See People v. Ledesma (2006) 39 Cal.4th 641,
748 [“mere circumstance that a different, or better, argument could have
been made is not a sufficient basis for finding deficient performance”].)
Although the victim did not testify that she regularly lived with Brandon, she
did testify that soon after defendant left, “[Brandon] had stuff at our house,
like jackets and sometimes shoes,” and sometimes stayed over for a few days.
Moreover, it cannot be said “no rational tactical reason” existed for
defense counsel’s statements. (Lucas, supra, 12 Cal.4th at p. 437.) His
defense was premised on the victim’s relationship with Brandon. Among
other things, he claimed the victim lied about the fact that Brandon kicked
him out of her house while armed with a gun and threatened to kill him if he
bothered her again. Defendant also explained that when, during the pretext
phone call, he told the victim Brandon was “going to be gone,” he meant that
if Brandon came after him, defendant would respond. Given defendant’s
testimony, his counsel had a tactical reason to point out that Brandon moved
in with the victim around the same time defendant was moving out.
In any event, as mentioned, the Strickland standard has two prongs:
deficient performance by counsel and prejudice. (People v. Kipp, supra, 18
Cal.4th at p. 366.) Here, we presume the jury followed the court’s
instructions that, one, “[n]othing that the attorneys say is evidence” and, two,
the prosecution had the burden to prove the making of a criminal threat by
proof beyond a reasonable doubt. (People v. Daveggio and Michaud (2018) 4
Cal.5th 790, 853.) While defendant claims the jury likely held the prosecutor
to a lesser burden based on his counsel’s statements, he offers no supportive
18
evidence. Thus, even if we assume counsel misspoke, on this record there
was no harm. (Strickland, supra, 466 U.S. at p. 686.)
IV. The three-year probationary period stands.
In supplemental briefing, defendant argues Assembly Bill No. 1950
applies retroactively to his case and requires reducing his probationary term
to two years. He is wrong.8
After sentencing, the Legislature passed Assembly Bill No. 1950, which
amended section 1203.1 as of January 1, 2022, to limit to two years the
maximum period of probation for most felonies. (§ 1203.1, subd. (a), as
amended by Stats. 2020, ch. 328, § 2, No. 5B Deering’s Adv. Legis. Service, p.
58.) However, there are exceptions to this limit, including where, as here, the
underlying offense involves domestic violence. Specifically, the new version
of section 1203.1 states that the “two-year probation limit in subdivision (a)
shall not apply to: [¶] (1) An offense listed in subdivision (c) of Section 667.5
and an offense that includes specific probation lengths within its provisions.
For these offenses, the court, or judge thereof, in the order granting
probation, may suspend the imposing or the execution of the sentence and
may direct that the suspension may continue for a period of time not
exceeding the maximum possible term of the sentence and under conditions
as it shall determine. All other provisions of subdivision (a) shall apply.”
(§ 1203.1, subd. (l)(1), italics added.)
8 The parties agree the amended version of section 1203.1 applies
retroactively as an ameliorative change in the law applicable to all nonfinal
convictions on appeal. (People v. Superior Court (Lara) (2018) 4 Cal.5th 299,
308.) We agree, too. (People v. Faial (2022) 75 Cal.App.5th 738, 743
[“Appellate courts are so far unanimous in holding that Assembly Bill 1950
applies retroactively to defendants who were serving a term of probation
when the legislation became effective on January 1, 2021”].)
19
Here, defendant’s crimes are subject to a specific probation length of
three years. Under Penal Code section 1203.097: “If a person is granted
probation for a crime in which the victim is a person defined in Section 6211
of the Family Code, the terms of probation shall include . . . : [¶] (1) A
minimum period of probation of 36 months, which may include a period of
summary probation as appropriate.” (§ 1203.097, subd. (a)(1).) Family Code
section 6211, in turn, defines “ ‘domestic violence’ ” as “abuse perpetrated
against . . . : [¶] . . . [¶] (c) [a] person with whom the respondent is having or
has had a dating or engagement relationship.” (Fam. Code, § 6211, subd. (c).)
“Section 1203.097 applies to any person placed on probation for a crime if the
underlying facts of the case involve domestic violence, even if the statute
defining the crime does not specifically refer to domestic violence.” (People v.
Cates (2009) 170 Cal.App.4th 545, 548.)
Applying this statutory scheme, defendant is subject to three years (36
months) of probation because he committed crimes of abuse against the
victim, a person with whom he had a dating relationship. (Pen. Code,
§§ 1203.1, subd. (l), 1203.097, subd. (a)(1); Fam. Code, § 6211, subd. (c).)
Assembly Bill No. 1950 thus provides no basis for reducing his probationary
term.
DISPOSITION
The judgment is affirmed.
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_________________________
Jackson, P. J.
WE CONCUR:
_________________________
Simons, J.
_________________________
Wiseman, J.*
A161024/People v. Phillip Marte Rollins
* Retired Associate Justice of the Court of Appeal, Fifth Appellate
District, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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