People v. Norman CA4/2

Filed 9/9/22 P. v. Norman CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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(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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E076318
v. (Super.Ct.No. FWV18000674)
NORVELL NORMAN, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Shahla Sabet,
Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice
pursuant to art. VI, § 6 of the Cal. Const.) Affirmed in part; reversed in part with
directions.
C. Matthew Missakian, by appointment of the Court of Appeal, for Defendant and
Appellant.
1
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Joy Utomi,
Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
In October 2020, a jury found defendant and appellant Norvell Norman guilty of
assault with intent to commit forcible rape (Pen. Code, § 220, subd. (a)(1),1 count 1),
attempted forcible rape (§§ 664, 261, subd. (a), count 2), and assault with a firearm
(§ 245, subd. (a)(2), count 6.) In these counts, the jury found that defendant personally
used a firearm. (§ 12022.53, subd. (b), counts 1 & 2; § 12022.5, subds. (a), (d), count 6.)
The jury also found defendant guilty of criminal threats (§ 422, count 3), false
imprisonment by violence (§ 236, count 4), assault by means of force likely to produce
great bodily injury (§ 245, subd. (a)(4), count 5), and unlawful firearm possession
(§ 29800, subd. (a)(1), count 7).2
In December 2020, defendant was sentenced to 17 years eight months in state
prison: the upper term of six years on count 1, plus 10 years for the personal use
enhancement on count 1, plus consecutive terms of eight months on count 3 and one year
on count 6. A concurrent term was imposed on count 7, and additional terms were
imposed but stayed on counts 2, 4, and 5, and on the personal use enhancements on
counts 2 and 6.
1 Undesignated statutory references are to the Penal Code.
2 Defendant admitted two felony convictions for purposes of count 7.
2
In this appeal, the parties and we agree that defendant’s conviction in count 2 for
attempted forcible rape must be reversed because it is a lesser included offense of his
conviction in count 1 for assault with intent to commit forcible rape. Thus, we reverse
defendant’s conviction in count 2. Defendant also claims his conviction in count 5 for
assault by means of force likely to produce great bodily injury must be reversed because
insufficient evidence shows that the force he used in placing the victim, Jane Doe (Doe),
in a chokehold during the assault was likely to cause Doe great bodily injury.
Alternatively, he claims his counsel rendered prejudicial ineffective assistance in failing
to object to the prosecutor’s argument, which he claims urged the jury to convict him in
count 5 based on force he did not use, but might have used, had the assault continued.
We conclude substantial evidence shows that the force defendant used in placing
Doe into the chokehold was likely to cause Doe to lose consciousness and, thus, cause
her great bodily injury. (§ 245, subd. (a)(4).) We also find no merit to defendant’s
ineffective assistance claim because the prosecutor’s argument was proper. There is no
reasonable likelihood the jury construed the prosecutor’s argument as allowing it to
convict defendant in count 5 based on any force that defendant did not use.
The parties and we also agree that the matter must be remanded for resentencing
in light of Senate Bill No. 567 (2021-2022 Reg. Sess.) (Senate Bill 567), which amended
section 1170, subdivision (b), to limit the court’s discretion to impose an upper term.
(Stats. 2021, ch. 731, § 1.3, eff. Jan. 1, 2022.) At resentencing, the court may also
consider whether alternative terms should be imposed pursuant to Senate Bill No. 518
(2021-2022 Reg. Sess.) (Senate Bill 518), which amended section 654. (Stats. 2021,
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ch. 441, § 1, eff. Jan. 1, 2022.) More broadly, defendant must be fully resentenced.
(People v. Buycks (2018) 5 Cal.5th 857, 893.) We reverse defendant’s conviction in
count 2, remand for resentencing, and affirm the judgment in all other respects.
II. FACTUAL BACKGROUND
On February 20, 2018, defendant contacted Doe by text message in response to an
ad for worn, thong underwear that Doe had posted on an Internet website. In a text
conversation, they agreed that, in exchange for $200, Doe would give defendant two pairs
of used, thong underwear, and model them for him in his apartment. Doe asked
defendant to confirm this was not a “prank” because she could not afford to make a long
drive to his apartment for nothing. Doe did not agree to be completely nude, or to have
sex, and she declined defendant’s request to send “free” nude photographs of herself.
That day, Doe drove to defendant’s apartment with her boyfriend, John Doe. Doe
went up to defendant’s second-floor apartment while John Doe stayed in the car. The
door to the apartment was open, Doe walked in, defendant greeted her, and then
defendant closed and locked the door behind Doe. Inside the apartment, defendant gave
Doe $200, which Doe put in her backpack. Doe then gave defendant a pair of underwear
she was carrying and took off her shorts to model the underwear she was wearing.
Modeling meant “showing him the underwear on [her] body.” Doe never took her t-shirt
off.
Defendant sat on a couch as Doe modeled the underwear, but defendant looked
down and seemed “uninterested”; he “was just sitting there with his hands folded.” A
while later, he took pictures of Doe with a tablet. Doe modeled the underwear for
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defendant for 10 to 15 minutes. Because defendant did not seem interested in her, Doe
asked defendant if she could use his bathroom to wash her hands, then leave.
In the bathroom, Doe took off the underwear she had been modeling, put her
shorts back on, and washed her hands. After she left the bathroom, Doe put the
underwear she had modeled on the couch near defendant. As Doe was getting her shoes
and backpack and preparing to leave, defendant grabbed her, spun her around, and put
her in a chokehold with his left arm against her throat. Defendant said, “This is a prank,”
and later said, “I just want to fuck you real quick.” With his right hand, he was reaching
for Doe’s clothes. Doe felt the pressure of defendant’s arm on her throat and had
“trouble breathing.” She said she could not breathe “properly,” and she “almost” lost
consciousness. She was scared and thought she was going to be raped and killed. She
fought back. When it “got to the point where [she] thought [she] was going to pass out,”
she bit defendant’s left arm so hard that his arm bled in her mouth. She was screaming
for help and she was also screaming John Doe’s name.
Defendant had Doe in the chokehold for around 10 minutes. While Doe was in the
chokehold, defendant moved Doe to the couch where he had been sitting, then moved
some pillows and clothing to reveal a gun on the couch. Defendant got on top of Doe,
bent her over, and pushed her face so close to the gun that she could see the Glock logo
and smell gunpower. He said, “If you scream, I’ll shoot you,” but Doe kept screaming
and struggling to escape. Doe screamed “even louder” when she saw the gun. The entire
time Doe was screaming, defendant was holding her in the chokehold.
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John Doe heard Doe’s “muffled” screams, got out of the car, ran up to the second
floor, and found the apartment where the screams were coming from. The door was
locked and, “in a panic,” John Doe broke the apartment window with a metal vape
device. But John Doe could not get into the apartment through the window because there
was no walkway or footing beneath it. John Doe broke the door open with his shoulder,
went inside the apartment, and saw that defendant had Jane Doe in a chokehold. To John
Doe, it looked like defendant was trying to make Doe “pass out.”
Defendant looked “angry” and “confused,” as though he was not expecting John
Doe to break in. As soon as John Doe came through the door, defendant released Doe
and began to reach for the gun. Doe began to catch her breath and grab her things as
John Doe jumped between Doe and defendant. Defendant grabbed a gun and pointed it at
John Doe’s face, with his finger on the trigger. Following a “stare down,” Doe and John
Doe ran out of the apartment and drove away.
Doe dropped off John Doe near the apartment, then drove to the nearest shopping
center and called the police. Doe did not want to call the police, but John Doe convinced
her to do so. John Doe did not initially want to talk to the police because he was on
probation, but he later spoke with the police and told them everything he later testified to
at trial. He was initially confused about the whole situation and did not know what to do.
Doe initially told police that she had been distributing flyers door-to-door, and that
defendant grabbed her and pulled her inside his apartment. But after police continued to
question her, she realized she had to tell the truth even though it was “so embarrassing.”
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She told the truth after she asked an officer whether selling underwear was illegal, and an
officer told her that selling underwear was not illegal.
Doe suffered minor injuries during the struggle with defendant. An ear plug was
pulled out of Doe’s ear, which caused her ear to swell. Doe also sustained a “mark” or
“line” on her neck, like an abrasion or a bruise, but the skin was not cut. Doe also
scraped her ankle while escaping. She did not seek or receive medical treatment for her
injuries.
Police went to defendant’s apartment and found him sitting outside with bite
marks on his left bicep. The apartment window and door were broken. In the apartment,
police found a gun belt in a closet and a Glock 19 handgun, with ten rounds in the
magazine, on a small couch, partially covered with a blanket. Two pairs of Jane Doe’s
underwear and her earplug were found in a trashcan. Police found a tablet computer, but
no photographs of Doe were on it. When police called the phone number that was used
to text Doe, the tablet rang through an application.
III. DISCUSSION
A. As the Parties Agree, Defendant’s Conviction in Count 2 Must be Reversed
Defendant claims, and the People and we agree, that defendant’s conviction in
count 2 for attempted forcible rape must be reversed in light of his conviction in count 1
for the greater offense of assault with intent to commit forcible rape. A person cannot be
convicted of both a greater offense and a lesser offense that is necessarily included within
the greater offense. (People v. Ramirez (2009) 45 Cal.4th 980, 984.) Courts use the
statutory elements test in determining whether an offense necessarily includes a lesser
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offense. (People v. Reed (2006) 38 Cal.4th 1224, 1227 [“ ‘[I]f a crime cannot be
committed without also necessarily committing a lesser offense, the latter is a lesser
offense included within the former.’ ”].)
Attempted rape is a lesser offense of assault with intent to commit rape because
the offenses differ only in that assault with intent to commit rape requires an assault,
while attempted rape does not. (People v. Holt (1997) 15 Cal.4th 619, 674; People v
Ghent (1987) 43 Cal.3d 739, 757; People v. Rupp (1953) 41 Cal.2d 371, 382 (Rupp),
disapproved in part on other ground by People v. Cook (1983) 33 Cal.3d. 400.) As Rupp
explained, “an assault with intent to commit rape is merely an aggravated form of an
attempted rape, the latter differing from the former only in that an assault need not be
shown. . . . [¶] ‘An “assault” with intent to commit a crime necessarily embraces an
“attempt” to commit said crime but said “attempt” does not necessarily include an
“assault.” ’ ” (Rupp, at p. 382.) “Thus, a person who commits an assault with intent to
commit rape necessarily also always commits an attempted rape.” (People v. Martinez
(1985) 171 Cal.App.3d 727, 734.) Defendant’s conviction in count 2 must therefore be
reversed.
B. Substantial Evidence Shows Defendant Used Force Likely to Produce Great Bodily
Injury in Placing and Holding Doe in the Chokehold (Count 5)
Defendant claims his conviction in count 5 for assaulting Doe by means of force
likely to produce great bodily injury must also be reversed because insufficient evidence
shows he used force likely to produce great bodily injury in the assault. (§ 245,
subd. (a)(4).) He claims the force he used in placing Jane Doe in the chokehold was not
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likely to cause her great bodily injury—significant or substantial physical injury—both
because the chokehold “left almost no marks” and because Doe was able to scream
“throughout the incident.” We find no merit to this claim.
1. Legal Principles
In reviewing a claim that insufficient evidence supports a conviction, we review
the record in the light most favorable to the prosecution and the judgment to determine
whether the record contains substantial evidence—evidence that is reasonable, credible,
and of solid value—on the basis of which any rational trier of fact could have found that
the prosecution sustained its burden of proving the elements of the crime beyond a
reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Johnson
(1980) 26 Cal.3d 557, 578.) Substantial evidence cannot be based on “mere speculation
as to probabilities without evidence.” (People v. Morris (1988) 46 Cal.3d 1, 21,
disapproved on another ground in In re Sassounian (1995) 9 Cal.4th 535, 543, fn. 5.)
Section 245, subdivision (a)(4), criminalizes “an assault upon the person of
another by any means of force likely to produce great bodily injury.” “Great bodily
injury is bodily injury which is significant or substantial, not insignificant, trivial or
moderate.” (People v. Armstrong (1992) 8 Cal.App.4th 1060, 1066.) “ ‘[S]erious bodily
injury’ ” and “ ‘great bodily injury’ ” have “substantially the same meaning” (People v.
Hawkins (1993) 15 Cal.App.4th 1373, 1375) and “are essentially equivalent elements.”
(People v. Corning (1983) 146 Cal.App.3d 83, 90.) “ ‘ “[A]ll aggravated assaults are
ultimately determined based on the force likely to be applied against a person.” ’ ” (In re
B.M. (2018) 6 Cal.5th 528, 535.)
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For purposes of battery with serious bodily injury (§ 243, subd. (d)), serious bodily
injury is defined to mean, “a serious impairment of physical condition, including, but not
limited to, . . . loss of consciousness . . . .” (Id. at subd. (f)(4); People v. Wade (2012)
204 Cal.App.4th 1142, 1146-1149.) Because a loss of consciousness is a serious bodily
injury, force likely to cause a loss of consciousness is force likely to produce serious
bodily injury which is equivalent to force likely to produce great bodily injury. (§ 245,
subd. (a)(4); People v. Corning, supra, 146 Cal.App.3d at p. 90.)
Section 245 focuses on the injury likely to result from the force that was actually
used in the assault, not on injuries that were likely to result from any force that might
have been used but was not used. (In re B.M., supra, 6 Cal.5th at pp. 548-549; People v.
Aguilar (1997) 16 Cal.4th 1023, 1035; People v Drayton (2019) 42 Cal.App.5th 612,
618; People v Duke (1985) 174 Cal.App.3d 296, 302-303 (Duke).) We assess “potential
harm in light of the evidence” without speculating about what force might have been used
or what injuries any unused force might have caused. (In re B.M., at pp. 535-538.)
Hands or fists alone may be used in a manner likely to produce serious bodily
injury or great bodily injury (People v. Aguilar, supra, 16 Cal.4th at p. 1028), and injury
is not an element of the crime. (People v. Covino (1980) 100 Cal.App.3d 660, 667.) “It
is enough that the force used is likely to cause serious bodily injury.” (People v. Hopkins
(1978) 78 Cal.App.3d 316, 320.) The evidence may show that serious injury was likely
“even if” serious injury “did not come to pass.” (In re B.M., supra, 6 Cal.5th at p. 535.)
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2. Analysis
Substantial evidence shows that defendant used force likely to cause Doe serious
injury or great bodily injury when he placed and held Doe in a chokehold for around 10
minutes. Doe testified that the chokehold restricted her breathing—she had “trouble”
breathing and she could not breathe “properly”—and this nearly caused her to lose
consciousness. She said that “it got to the point” where she thought she was going to
pass out. Based on Doe’s testimony, the jury could have reasonably inferred that
defendant used force likely to cause Doe great bodily injury—a loss of consciousness—
when he placed and held Doe in the chokehold. (See People v. Wade, supra,
204 Cal.App.4th at p. 1148 [Loss of consciousness is serious bodily injury for purposes
of battery with serious bodily injury.]; § 245, subd. (a)(4).)
Defendant claims the evidence is insufficient to show that the force he used during
the chokehold was likely to cause Doe great bodily injury because the chokehold “left
almost no marks” on her neck, the swelling on her ear lobe was a minor injury, and her
ability to scream shows she was able to breathe and not likely to lose consciousness. He
also claims Doe was speculating when she said she “almost” lost consciousness and
could not breathe “properly.” We disagree. Doe was not speculating when she testified
that the chokehold prevented her from breathing “properly” and “almost” caused her to
lose consciousness. Rather, Doe testified to what she saw, heard, and felt when
defendant had her in the chokehold.
Further, that Doe did not actually suffer any great bodily injury, including a loss of
consciousness, and that Doe was able to scream during the chokehold, does not mean that
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defendant did not use force at any point during the chokehold that was likely to cause
Doe to suffer great bodily injury, including a loss of consciousness. Doe’s testimony that
she could not breathe “properly” and that she “almost” lost consciousness or “passed out”
during the chokehold was reasonable, and the jury was entitled to credit Doe’s testimony.
(See People v. Ochoa (1993) 6 Cal.4th 1199, 1206 [“Although we must ensure the
evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive
province of the trial judge or jury to determine the credibility of a witness and the truth or
falsity of the facts on which that determination depends.”].) Doe’s testimony was not “so
inherently implausible . . . to justify disregarding it under the substantial evidence rule.”
(Fortman v. Hemco (1989) 211 Cal.App.3d 241, 254.)
Defendant claims Duke is controlling. The defendant in Duke held the victim in
“a headlock” while he touched her breast over her clothing. (Duke, supra,174
Cal.App.3d at p. 302.) The victim said that “[t]he headlock made her feel ‘choked’ but
did not cut off her breathing.” (Ibid.) Although the victim “felt that his hold on her was
‘firm,’ . . . [she] did not say that he tightened his grip.” (Ibid.) The victim “could still
scream and she did get away. The victim did not describe an attempt to choke or strangle
her.” (Ibid.) Thus, the Duke court found insufficient evidence to sustain the defendant’s
conviction for assault by means of force likely to produce great bodily injury. (Id. at
p. 303.) Duke is distinguishable because the defendant there did not restrict the victim’s
breathing or nearly cause the victim to lose consciousness by placing the victim in a
“headlock.” (Id. at p. 302.) Here, substantial evidence shows that Doe could not breathe
12
properly and nearly lost consciousness due to the pressure defendant placed on her throat
when he had her in the “chokehold.” Defendant’s reliance on Duke is unavailing.
C. Defendant’s Ineffective Assistance of Counsel Claim Lacks Merit
Defendant alternatively claims his defense counsel rendered prejudicial ineffective
assistance in failing to object when, during closing argument, he claims the prosecutor
misstated the law by asserting: “[T]here was force likely to cause great bodily injury
because without John Doe’s interference, appellant might have ‘squeezed a little harder’
and might have applied force ‘a little longer.’ ”
This claim mischaracterizes the prosecutor’s argument. It is not reasonably likely
that the jury understood the prosecutor as suggesting that the jury could find defendant
used force likely to produce great bodily injury in count 5 based on force he might have
used against Doe, if John Doe had not interrupted him. Thus, there was no basis to object
to the argument, and no ineffective assistance in failing to object.
Defense counsel has a duty to ensure that prosecutorial argument does not mislead
the jury, and defense counsel renders prejudicial ineffective assistance in failing to object
to an argument when there is a reasonable likelihood that the argument will mislead the
jury. (People v. Centeno (2014) 60 Cal.4th 659, 674-679.) But “[w]hen attacking the
prosecutor’s remarks to the jury, the defendant must show that, ‘[i]n the context of the
whole argument and the instructions’ [citation], there was ‘a reasonable likelihood the
jury understood or applied the complained-of comments in an improper or erroneous
manner.’ ” (Id. at p. 667.)
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Here, there is no reasonable likelihood that the jury understood or applied the
prosecutor’s argument as allowing it to convict defendant in count 5 based on force that
defendant might have used, but did not use, in holding Doe in the chokehold. The
prosecutor merely pointed out that this would be a “very different case” if defendant had
used additional force by “squeez[ing] a little harder” or “a little longer.” It would be a
very different case, she suggested, because had defendant squeezed “a little harder” or “a
little longer,” then Doe would have lost consciousness and suffered great bodily injury.
But the prosecutor did not suggest that the jury should or could convict defendant in
count 5 based on force he did not use.
Instead, the prosecutor emphasized that her only burden was to show that the force
defendant did use was likely to cause Doe great bodily injury, not that it did cause Doe
great bodily injury. She said, “All I need to prove is that the force was likely to produce
great bodily injury. Likely to produce. Very different from that it actually did. That’s
not what I’m being asked to do. Remember, this is a swing and a miss, right? All I need
to show [is] that force, that stranglehold was likely to produce great bodily injury. . . . I
don’t need to prove that the defendant actually ever touched someone. . . . [¶] . . . [D]id
he produce great bodily injury? Was that force likely to produce great bodily injury? I
would submit to you, yes. When he put Jane Doe in a chokehold, she said she could not
breathe. She almost went unconscious. That is great bodily injury. . . . And it’s only the
likelihood of it, so had he squeezed a little harder, had it gone on a little longer, had John
Doe not broken in, we would have a very different case. All we’re facing was that the
force was likely to produce great bodily injury. . . . I don’t have to prove that the
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defendant actually touched someone.” (Italics added.) Further, the court’s instructions
did not tell the jury it could convict defendant in count 5 based on force defendant did not
use. (CALCRIM No. 875.) Thus, we find no merit to defendant’s ineffective assistance
claim.
D. As the Parties Agree, Defendant Must be Resentenced
In December 2020, defendant was sentenced to the upper term of six years on
count 1 plus 10 years for the personal use enhancement on count 1. (§§ 220, subd. (a)(1),
12022.53, subd. (b).) In imposing the upper term, the court found a single circumstance
in aggravation: “Defendant was armed with or used a weapon at the time of the
commission of the crime.” (Cal. Rules of Court, rule 4.421(a)(2).)3 The court found no
circumstances in mitigation. (Rule 4.423.) As defendant concedes, the imposition of the
upper term was lawful at the time defendant was sentenced in December 2020. At that
time, the court had broad discretion to select the lower, middle, or upper term under
former section 1170, subdivision (b). (See People v. Sandoval (2007) 41 Cal.4th 825,
846-847; Rules 4.420(b), 4.421, 4.423.)
Effective January 1, 2022, Senate Bill 567 amended section 1170, subdivision (b),
to require the court to impose a term of imprisonment not exceeding the middle term,
except as provided by subdivision (b)(2). (Stats. 2021, ch. 731, § 1.3; see Cal. Const.,
art. IV, § 8, subd. (c)(1); Gov. Code, § 9600, subd. (a); People v. Camba (1996) 50
Cal.App.4th 857, 865.) Under the new statute, the court may impose an upper term only
3 Undesignated references to rules are to the California Rules of Court.
15
where (1) there are circumstances in aggravation that justify the upper term and the facts
underlying the aggravating circumstances have been established either by stipulation or
proof at trial beyond a reasonable doubt (§ 1170, subd. (b)(1) & (2)) or (2) the court finds
based on certified records that the defendant has prior convictions. (Id. at subd. (b)(3).)
Section 1170, subdivision (b)(5), provides: “The court may not impose an upper term by
using the fact of any enhancement upon which sentence is imposed under any provision
of law.”
The parties and we agree that defendant must be resentenced in light of Senate Bill
567 and its amendments to section 1170, subdivision (b).4 Because it imposed sentence
on the personal use enhancement on count 1 (§ 12022.53, subd. (b)), the court could not
rely on defendant’s personal firearm use as a factor in aggravation to justify imposing the
upper term on count 1. (§ 1170, subd. (b)(5).) Thus, defendant’s upper term sentence on
count 1 is unauthorized (ibid.), and the case must be remanded so defendant may be
resentenced pursuant to section 1170, subdivision (b), as amended by Senate Bill 567.
The parties also agree, and so do we, that upon remand, a court is not prohibited
from resentencing based on any new law in effect at the time of resentencing, including
the changes Senate Bill 518 made to section 654, effective January 1, 2022. Senate
Bill 518 amended section 654, subdivision (a), to provide that “[a]n act or omission that
is punishable in different ways by different provisions of law may be punished under
4The parties also agree, and so do we, that Senate Bill 567 applies retroactively to
defendant’s nonfinal judgment of conviction and sentence. (People v. Flores (2022)
73 Cal.App.5th 1032, 1039.)
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either of such provisions . . . .” (Stats. 2021, ch. 441, §1, eff. Jan 1, 2022.) Former
section 654 provided that such an act or omission, “shall be punished under the provision
that provides for the longest potential term of imprisonment.” (See ibid.)5 On remand,
the court may reconsider all of its sentencing choices based on the laws and
circumstances that apply at the time of resentencing, including amended section 654.
(Stats. 2021, ch. 441, § 1, eff. Jan 1, 2022; see People v. Valenzuela (2019) 7 Cal.5th 415,
425 [“[T]he full resentencing rule allows a court to revisit all prior sentencing decisions
when resentencing a defendant.”]; People v. Buycks, supra, 5 Cal.5th at p. 893 [When
part of a sentence is stricken on review, “ ‘a full resentencing as to all counts is
appropriate, so the trial court can exercise its discretion in light of the changed
circumstances.’ ”].)
5 Senate Bill 518 retroactively applies to defendant’s nonfinal judgment for the
same reasons Senate Bill 567 retroactively applies. See footnote 4, ante.
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IV. DISPOSITION
Defendant’s conviction in count 2 for attempted forcible rape (§§ 664, 261,
subd. (a)(2)) is reversed, and the matter is remanded to the trial court for full resentencing
on defendant’s remaining convictions and sentencing enhancements, consistent with this
opinion, the amendments to sections 654 and 1170, subdivision (b), and the law and
circumstances in effect at the time or resentencing. The court is further directed to
prepare a supplemental sentencing minute order and an abstract of judgment reflecting
defendant’s new sentence and to forward a copy of the abstract to the Department of
Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J.
We concur:
CODRINGTON
Acting P. J.
RAPHAEL
J.
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