Filed 5/23/22 P. v. Aguilar CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

ROSAURA MACHADO AGUILAR,

Defendant and Appellant.

 D079877

 (Fresno Super. Ct. 

 No. F18905370)

APPEAL from a judgment of the Superior Court of Fresno, Jane 

Cardoza, Judge. Remanded for resentencing.

Lindsay Sweet and Michelle Theresa Livechhi-Raufi, under 

appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant 

Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. 

Vasquez, Lewis A. Martinez and William K. Kim, Deputy Attorneys General, 

for Plaintiff and Respondent.
2

Following a search of her apartment that yielded weapons and drugs, 

Rosaura Machado Aguilar was tried and convicted of felony child abuse (Pen. 

Code, § 273a, subd. (a), count 1), possession for sale of a controlled substance 

(Health & Saf. Code § 11378, count 2), possession of a controlled substance 

with a firearm (id., § 11370.1, subd. (a), count 3), and possession of a smoking 

device (id., § 11364, count 9, a misdemeanor). As to count 2, the jury 

additionally found that Aguilar was personally armed with a firearm in 

possessing the drugs for sale. (Pen. Code,1 § 12022, subd. (c).) 

Aguilar raises several claims on appeal. She first contends the trial 

court prejudicially erred in failing to instruct the jury sua sponte on

misdemeanor child abuse, a lesser included offense on count 1. Noting the 

jury hung on other standalone firearm charges, she next challenges the true 

finding on the personal arming enhancement attached to count 2, claiming 

both insufficiency of the evidence and instructional error. For reasons we 

explain, we reject each of these contentions.

Turning to Aguilar’s final argument, recent legislation requires us to 

remand for a full resentencing hearing, where the court must decide whether 

to stay the term imposed on count 2 or count 3 under section 654, as amended 

by Assembly Bill No. 518 (Assembly Bill 518) (Stats. 2021, ch. 441). At 

resentencing, the parties may address other recent legislative amendments 

that may affect the trial court’s sentencing choices. Accordingly, we remand 

for resentencing and otherwise affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

One evening in August 2018, social worker Jennifer Moore received a 

crisis referral asking her to check on a family in Huron. Because the caller 

1 Further undesignated statutory references are to the Penal Code.
3

indicated the presence of methamphetamine in the home, Moore contacted

police. Officer Randall Doherty of the Huron Police Department arrived at 

the given address around 8:00 p.m. and saw a 4- or-5-year-old girl walk 

outside the front door of Aguilar’s apartment. Doherty asked the child if her 

mother was home; the girl nervously went back inside without closing the 

door. Peering in, Doherty noticed Vicente Licea asleep on a queen-size 

mattress on the living room floor, with 18-month-old John Doe sleeping 

beside him. Aguilar walked into the living room with the young girl Doherty 

had seen moments before, as well as another child. Doherty entered the 

apartment, awoke Licea, and searched him. Inches from John on the bed lay

a small glass pipe with traces of burnt white residue. 

On Licea’s person, Doherty found a glass pipe and a plastic sandwich 

bag containing eight .380-caliber bullets. Officers then searched the 

apartment. Lifting the mattress from the box spring, they discovered a 

semiautomatic .233-caliber AR-15 assault rifle and a semiautomatic .380-

caliber handgun. Both firearms were loaded, and each had a live round 

inside its firing chamber with additional rounds in their magazines. Doherty 

could not recall whether the safety was on for either weapon. Near the 

firearms but on the floor, officers saw 15 to 20 children’s drawings, notebooks, 

and coloring books. The bullets found on Licea’s person matched the 

handgun; additional bullets for the assault rifle were stored in a 

compartment within the rifle. 

Perched on the seat of a chair near the bed, officers found a wallet, a 

cardboard shoebox, and a metal first-aid kit. A purse hanging on the back of 

the chair contained 26 glass pipes, 26.3 grams of what looked to be 

methamphetamine, and 1,100 empty plastic baggies. The wallet on the seat 

of the chair contained Aguilar’s California identification card, her debit card, 
4

and $422 in cash. The cardboard shoebox was closed and sealed shut with 

duct tape. Inside the box, officers found five small baggies bearing logos and 

containing a white substance, eight pipes, and a large quantity of residue. 

Opening the two latches on the metal first-aid kit, they discovered 62 baggies 

containing over two pounds of a white substance. On another chair nearby, 

they found a digital scale with traces of residue, as well as a cardboard box 

containing 1,000 empty plastic sandwich bags. 

Aguilar and Licea were arrested; Moore took Aguilar’s five children 

(ages 12 or 13, 11, 9 or 10, 5, and 1) into protective custody. A presumptive 

test confirmed the white substance in the purse and boxes to be 

methamphetamine. Aguilar told police she lived in that apartment with her 

five children but later informed Moore that her children had been staying 

with relatives. She denied knowing about the drugs or weapons found inside. 

Licea admitted to police that the narcotics and weapons were his and denied 

that Aguilar played any part. 

The Fresno County District Attorney jointly charged Licea and Aguilar 

with child abuse and various drug and weapons offenses. Specifically, 

Aguilar was charged with felony child abuse as to 18-month-old John Doe 

(§ 273a, subd. (a), count 1); possession for sale of methamphetamine while 

personally armed with a firearm (Health & Saf. Code, § 11378; Pen. Code, 

§ 12022, subd. (c), count 2); possession of methamphetamine while armed 

with a loaded, operable firearm (Health & Saf. Code, § 11370.1, subd. (a), 

count 3); possession of an assault weapon (Pen. Code, § 30605, subd. (a), 

count 4); two counts of possession of a firearm by a felon (Pen. Code, § 29800, 
5

subd. (a)(1), counts 7 & 8); misdemeanor possession of a smoking device 

(Health & Saf. Code, § 11364, count 9).2

Aguilar and Licea were tried together. The jury convicted Aguilar on 

counts 1, 2, 3, and 9 and found the personal arming enhancement attached to 

count 2 true. But it hung on the separate weapons charges brought against 

her in counts 4, 7, and 8, and the court later dismissed those counts at the 

People’s request. 

In September 2019, the court sentenced Aguilar to five years in state 

prison. Selecting count 2 as the principal count, it imposed a two-year middle 

term as the base. It declined to strike the attached firearm enhancement, but 

found appropriate a lower three-year term on that enhancement. Concluding 

that the subordinate counts likewise stemmed from a “single period of 

aberrant behavior,” the court ran all the terms concurrently. It imposed a

four-year middle term on count 1 and a three-year middle term on count 3. 

Aguilar received credit for time served on the misdemeanor conviction in 

count 9. 

DISCUSSION

Aguilar challenges her conviction on count 1, the personal arming 

enhancement on count 2, and the sentence on count 3. As we explain, we 

reject Aguilar’s challenges to her convictions, but recent ameliorative 

legislation necessitates remand for a full resentencing hearing.

A. Lack of Instruction on Misdemeanor Child Abuse

Aguilar was convicted in count 1 of felony child abuse as to her 18-

month-old son, John Doe. “Misdemeanor child abuse (§ 273a, subd. (b)), is a 

lesser included offense of felony child abuse (§ 273a, subd. (a)).” (People v. 

2 Prior to trial, the court granted the People’s motion to dismiss count 10, 

a misdemeanor drug possession charge. 
6

Moussabeck (2007) 157 Cal.App.4th 975, 980.) Aguilar claims it was 

reversible error for the trial court not to instruct the jury on misdemeanor 

child abuse. As we explain, no instructional error occurred.

The crime of child abuse can constitute either a felony or a 

misdemeanor, depending on whether it occurs “under circumstances or 

conditions likely to produce great bodily harm or death.” (Compare § 273a, 

subd. (a) with id., subd. (b).) “[G]iven the interest protected, i.e., the lives of 

highly vulnerable children, the definition of ‘likely’ in the context of [the 

felony offense defined in] section 273a is not that death or serious injury is 

probable or more likely than not.” (People v. Wilson (2006) 138 Cal.App.4th 

1197, 1204.) Rather, “ ‘likely’ as used in section 273a means a substantial 

danger, i.e., a serious and well-founded risk, of great bodily harm or death.” 

(Ibid.) 

Because no evidence was presented at trial that baby John could move 

around on his own, Aguilar suggests a reasonable jury could find that the 

firearms wedged between the mattress and box spring as well as the drugs 

contained in shut boxes “were not accessible” to him. Although Officer 

Doherty testified that a methamphetamine pipe bearing traces of burnt 

residue lay inches from John on the bed, he never photographed the pipe in 

his report. Absent evidence that John was ambulatory, Aguilar maintains 

there was substantial evidence that the conditions endangering him were 

negligent but nonetheless unlikely to produce great bodily harm or death. 

Although other children in the apartment might have amplified the risks to 

John, Aguilar was supervising them, and Licea’s body weight over the 

mattress rendered the firearms less accessible. In short, Aguilar maintains 

that the circumstances rendered great bodily harm possible, though 

improbable, supporting conviction on the misdemeanor offense. 
7

“[A] trial court errs if it fails to instruct, sua sponte, on all theories of a 

lesser included offense which find substantial support in the evidence. On 

the other hand, the court is not obliged to instruct on theories that have no 

such evidentiary support.” (People v. Breverman (1998) 19 Cal.4th 124, 162

(Breverman).) A sua sponte instructional duty arises only if there is 

substantial evidence from which a reasonable jury could conclude that the 

defendant is guilty of the lesser, but not the greater offense. (Ibid.) Thus, for 

example, it was reversible error for the trial court to not instruct on 

misdemeanor elder abuse in People v. Racy (2007) 148 Cal.App.4th 1327

(Racy), where the victim did not actually suffer great bodily harm and “the 

evidence supporting the guilty verdict of felony elder abuse was not so 

compelling that the jury instead could have reasonably reached a guilty 

verdict of misdemeanor elder abuse.” (Id. at pp. 1334−1336.)3

Here, in contrast to Racy, no instructional error occurred. As the 

People suggest, the presence of four other children in the household created a 

serious and well-founded risk of great bodily injury to John from the 

unsecured weapons and drugs. Although count 1 only alleged child abuse as 

to John, Moore testified that Aguilar had five children, ages 12 or 13, 11, 9 or 

10, 5, and 1. Besides John, who was one-and-a-half at the time of the search, 

Doherty saw a child between the ages of 4 or 5 as well as one other child in 

the apartment. Taken with Moore’s testimony, that meant there were 

children as young as 1, 5, and 9 in the house at the time the guns were found.

The presence of other children readily leads us to reject Aguilar’s 

instructional error claim. True enough, John was asleep on the bed when 

3 Because the elder abuse statute “was patterned on and is virtually 

identical to” the child abuse statute, “[c]ases interpreting one section are 

therefore appropriately used to interpret the other.” (People v. Valdez (2002) 

27 Cal.4th 779, 784, fn. 4.)
8

officers arrived, suffered no injury, and potentially could not move around on 

his own. Defense counsel cast doubt on Doherty’s testimony about finding a 

pipe on the bed, noting he neglected to photograph it. The firearms were 

wedged between a queen mattress and box spring that the People 

acknowledge would be too heavy for a one-year-old to lift. And the 

methamphetamine was discovered inside a purse, a taped-shut shoebox, and 

a latched metal first-aid box of arguably limited accessibility to an 18-monthold child. 

But as the People suggest, the presence of children as young as 5 and 9

in the apartment at the time of Doherty’s search “dramatically increased the 

probability for great bodily harm” to John from loaded semiautomatic 

weapons being kept under the mattress. Although the firearms were less 

accessible while Licea lay over them, there was no indication Licea’s body

was positioned that way at all times. There were children’s coloring books 

and drawings on the floor near where the weapons were wedged. On these 

facts, the evidence did not reasonably support a conviction of misdemeanor 

child abuse, meaning no instructional error occurred. (See Breverman, supra, 

19 Cal.4th at p. 162 [the existence of any evidence, however weak, will not 

justify instructions on a lesser included offense].)

B. Sufficiency of the Evidence as to the Personal Arming Enhancement

After convicting Aguilar of possession for sale of a controlled substance 

(Health & Saf. Code, § 11378) in count 2, the jury determined that she was 

“personally armed with a firearm” in committing the offense. (Pen. Code, 

§ 12022, subd. (c).) Aguilar challenges the sufficiency of the evidence 

supporting that enhancement finding. We review her claim “ ‘using the same 

standard we apply to a conviction.’ ” (People v. Wilson (2008) 44 Cal.4th 758, 

806.) Reviewing the entire record in the light most favorable judgment, we 
9

“ ‘ “determine whether it discloses substantial evidence—that is, evidence 

that is reasonable, credible, and of solid value—from which a reasonable trier 

of fact could find the defendant guilty beyond a reasonable doubt.” ’ ” (Ibid.)

Section 12022, subdivision (c) adds a consecutive prison term of three, 

four, or five years where a person “is personally armed with a firearm in the 

commission of a violation of attempted violation of Section . . . 11378 . . . of 

the Health and Safety Code.” Aguilar concedes the evidence would have 

supported a vicarious arming enhancement under subdivisions (a) or (d) of 

that statute,4 but emphasizes that only a personal arming enhancement 

under subdivision (c) was charged. Noting the jury could not reach a verdict 

as to her standalone firearm possession charges (counts 4, 7, and 8) and 

highlighting Licea’s admission that both firearms were his, Aguilar contends 

“it is only through speculation, surmise or vicarious liability that the jury 

could have found [her] personally armed within the meaning of section 

12022.” (Italics added.) Although she admits that “two people can be 

personally armed with the same firearm” (Smith, supra, 9 Cal.App.4th at 

p. 205), Aguilar claims the evidence at trial indicated that she was at most 

vicariously armed through Licea. (See, e.g., People v. Superior Court 

(Pomilia) (1991) 235 Cal.App.3d 1464, 1469 (Pomilia) [personal arming 

enhancement under section 12022, subdivision (c) may not rest on vicarious 

liability].) 

4 Section 12022, subdivision (a) adds a one-year consecutive term of 

imprisonment where a person “is armed with a firearm in the commission of 

a felony or attempted felony.” This subdivision applies to both personal and 

vicarious arming. (People v. Smith (1992) 9 Cal.App.4th 196, 204 (Smith).) 

Subdivision (d) provides an enhancement of one, two or three years for 

vicarious arming as to “a person not personally armed with a firearm” who 

knows that another principal is “personally armed” during the commission of 

those same offenses. (See Smith, at p. 204.)
10

We disagree. For the jury to find that Aguilar was personally armed, 

the firearms did not need to be on Aguilar’s person, but merely available for 

her offensive or defensive use. (People v. Mendival (1992) 2 Cal.App.4th 562, 

574 (Mendival) [“It is the availability—the ready access—of the weapon that 

constitutes arming.”].) Viewing the record in the light most favorable to the 

judgment, a rational jury could conclude that two firearms wedged between 

the mattress and box spring in her living room, discovered by police while 

Aguilar was inside her apartment, were available to Aguilar for her offensive 

or defensive use. (See Pomilia, supra, 235 Cal.App.3d at p. 1472 [two loaded 

pistols in the room from which police officers saw defendant emerge could 

reasonably be deemed “ ‘available for [defendant’s] use in offense or 

defense’ ”].) It is not the case, as Aguilar claims, that the only way to read 

the verdicts is to conclude the jury relied on a theory that she was vicariously 

armed through Licea. Licea’s admission that he owned the weapons did not 

affect their availability for Aguilar’s use. Although ammunition was found on 

Licea’s person matching the firearms, the guns themselves were loaded and 

available for Aguilar’s use. Finally, inconsistent verdicts between the 

personal arming enhancement and standalone firearm possession counts do 

not affect our analysis on sufficiency-of-the-evidence review. (People v. 

Covarrubias (2016) 1 Cal.5th 838. 890−891 (Covarrubias); People v. Hussain 

(2014) 231 Cal.App.4th 261, 273.) 

Even if the firearms were otherwise available to her, Aguilar maintains 

that Licea’s positioning on the bed rendered them less accessible. This 

argument fails, however, for the simple reason that drug possession is a 

continuing offense. It is sufficient in this context that the jury could 

determine beyond a reasonable doubt that Aguilar had access to a firearm at 

any point in which she had dominion and control over illegal drugs and could 
11

resort to a firearm to further that offense. (People v. Bland (1995) 10 Cal.4th 

991, 999 (Bland).) 

Attempting to distinguish Bland, Aguilar notes that the Supreme 

Court in that case was considering the general firearm enhancement under 

subdivision (a) of section 12022. Whereas the subdivision (a) enhancement 

permits liability based on either personal or vicarious arming, subdivision (c) 

applies only to personal arming—i.e., for the defendant to have the weapon 

available for offensive or defensive use. (See Smith, supra, 9 Cal.App.4th at 

p. 204; Mendival, supra, 2 Cal.App.4th at p. 574.) But this distinction is 

immaterial because Bland involved personal, not vicarious, arming under 

subdivision (a). Bland stands for the proposition that drug possession for 

sale is a continuous offense, and a reasonable jury can find an attached 

personal arming enhancement true so long as there is sufficient evidence the 

firearm was available for the defendant’s use in furtherance of the felony at 

some point during that continuing offense. (Bland, supra, 10 Cal.4th at 

p. 1000.) Thus, for example, the court in Delgadillo applied Bland to 

conclude sufficient evidence supported a true finding under section 12022, 

subdivision (c). (People v. Delgadillo (2005) 132 Cal.App.4th 1570, 

1574−1575.)

Here, police found large quantities of methamphetamine, plastic 

baggies, pipes, and a digital scale in Aguilar’s apartment. Her drug 

possession for sale was a continuing offense under Bland. Although the 

weapons were admittedly Licea’s, they were wedged between the mattress 

and box spring in Aguilar’s living room, the same room where the drugs were 

discovered. There was no evidence Licea was at all times positioned on the 

mattress over the drugs, and the jury could reasonably conclude that the 

firearms were available for Aguilar’s offensive or defensive use at some point
12

during her felonious drug possession. (Bland, supra, 10 Cal.4th at p. 1000.)5 

Thus, substantial evidence supports the jury’s finding on the personal arming 

enhancement in count 2 notwithstanding Licea’s body positioning at the time 

of the search.

C. Instruction Given on the Personal Arming Enhancement

Using a modified version of CALCRIM No. 3131, the court instructed 

the jury on the personal arming enhancement as follows:

“If you find the defendants guilty of the crime charged in 

Count Two, you must then decide whether the People have 

proved the additional allegation that the defendants were 

personally armed with a firearm in the commission of that 

crime. You must decide whether the People have proved 

this allegation for each defendant and return a separate 

finding for each defendant.” [¶] . . . [¶] 

“A person is armed with a firearm when that person: [¶] 

1. Carries a firearm or has a firearm available for use in 

either offense or defense in connection with the crime 

charged; [¶] AND [¶] 2. Knows that he or she is carrying 

the firearm or has it available for use.

“The People have the burden of proving each allegation 

beyond a reasonable doubt. If the People have not met this 

burden, you must find that the allegation has not been 

proved.” 

5 Attempting to distinguish applicable case law, Aguilar argues that the 

two defendants in Mendival, supra, 2 Cal.App.4th 562 were personally armed 

with a single firearm on the front floorboard that either person could reach

(id. at p. 575), whereas Aguilar “did not have ready access to firearms that 

were hidden underneath the mattress where Mr. Licea lay with his full body 

weight directly over the weapons.” But absent evidence to support the 

unbelievable proposition that Licea never moved and was always positioned 

over the weapons wedged under the mattress in the living room, a jury could 

reasonably find that the firearms were available for Aguilar’s use at some 

point during her felonious drug possession.
13

Aguilar argues the court committed prejudicial error in instructing the 

jury on the personal arming enhancement. By addressing defendants in 

plural, she contends the court erroneously invited the jury to find the 

personal arming enhancement allegation true based on an impermissible 

vicarious liability theory. (See Smith, supra, 9 Cal.App.4th at pp. 206−207 

[instructional error occurred where the court’s instructions “expressly 

permitted [a finding of personal arming under section 12022, subdivision (c)] 

based only upon vicarious liability”].) Aguilar asserts this error was 

prejudicial given the jury’s failure to convict her on the standalone firearm 

possession counts. 

“A claim of instructional error is reviewed de novo. [Citation.] An 

appellate court reviews the wording of a jury instruction de novo and assesses 

whether the instruction accurately states the law. [Citation.] In reviewing a 

claim of instructional error, the court must consider whether there is a 

reasonable likelihood that the trial court’s instructions caused the jury to 

misapply the law in violation of the Constitution. [Citations.] The 

challenged instruction is viewed ‘in the context of the instructions as a whole 

and the trial record to determine whether there is a reasonable likelihood the 

jury applied the instruction in an impermissible manner.’ ” (People v. 

Mitchell (2019) 7 Cal.5th 561, 579; see Covarrubias, supra, 1 Cal.5th at 

p. 926 [“When a defendant claims an instruction was subject to erroneous 

interpretation by the jury, he must demonstrate a reasonable likelihood that 

the jury misconstrued or misapplied the instruction in the manner 

asserted.”].) 

Viewing the instructions as a whole, it is clear that no error occurred. 

As Aguilar claims, jurors were told to decide whether “the defendants were 

personally armed with a firearm” in possessing methamphetamine for sale. 
14

But in the very next breath, the instruction stated that jurors “must then 

decide whether the People have proved this allegation for each defendant and 

return a separate finding as to each defendant.” (CALCRIM No. 3131, italics 

added.) It noted the People’s burden “of proving each allegation beyond a 

reasonable doubt.” (Ibid., italics added.) Additionally, the jury was 

instructed under CALCRIM No. 203 that it was to decide “each charge for 

each defendant separately.” In this context, there is no reasonable likelihood 

the jury misunderstood the instructions given in the manner Aguilar 

suggests.

D. Multiple Punishment

Aguilar contends, and the People agree, that section 654’s multiple 

punishment bar requires us to stay the concurrent three-year sentence 

imposed by the trial court on count 3. Aguilar’s convictions in counts 2 and 3 

were both based on her possession of methamphetamine and loaded firearms 

within her apartment. At trial the prosecutor argued that Aguilar and her 

codefendant possessed the methamphetamine for sale; he did not suggest any 

methamphetamine was possessed for personal use. Because counts 2 and 3

target “a single physical act that violates different provisions of law,” section 

654 precludes multiple punishment. (People v. Jones (2012) 54 Cal.4th 350, 

358‒359 [section 654 applied where three separate convictions were all 

premised on defendant having a gun in his car at the time of his arrest].)

Were this the only issue, we could simply stay the sentence imposed on 

count 3 as the parties jointly requested in their original briefs and otherwise 

affirm. However, a subsequent legislative amendment, addressed in 

supplemental briefing, necessitates remand for resentencing. At the time 

Aguilar was sentenced, section 654, former subdivision (a) provided in 

relevant part: “An act or omission that is punishable in different ways by 
15

different provisions of law shall be punished under the provision that 

provides for the longest potential term of imprisonment, but in no case shall 

the act or omission be punished under more than one provision.” With the 

passage of Assembly Bill 518, effective January 1, 2022, section 654, 

subdivision (a) now permits the court to punish the defendant “under either 

of such provisions” rather than “under the provision that provides for the 

longest potential term of imprisonment.” (Stats. 2021, ch. 441 (Assem. Bill

518) § 1.) 

Because Assembly Bill 518 provides the court with “new discretion to 

impose a lower sentence” and there is no evidence to rebut the presumption of 

retroactivity expressed in In re Estrada (1965) 63 Cal.2d 740, 744−745, 

Aguilar is entitled to the potentially ameliorative benefit of the amended 

statute. (People v. Mani (2022) 74 Cal.App.5th 343, 379.) Here, the trial 

court exercised leniency in several respects, running all the terms 

concurrently because the crimes stemmed from “a single period of aberrant 

behavior” and selecting the lower term on the firearm enhancement. Thus, 

as the People concede, the record is not “sufficiently clear to render remand a 

meaningless exercise.” (People v. Mendoza (2022) 74 Cal.App.5th 843, 862.) 

Accordingly, we remand for a full resentencing hearing where the trial court 

may decide whether to stay execution of the term imposed in count 2 or count 

3 under section 654 as amended. (Mani, at pp. 380−381.)6

6 Observing that middle terms were imposed on counts 1, 2, and 3, we 

requested supplemental briefing from the parties on the effect, if any, of 

Senate Bill No. 567 (Stats. 2021, ch. 731) on Aguilar’s sentence. Effective 

January 1, 2022, section 1170, subdivision (b)(6) as amended generally 

requires the court to impose the lower term if a defendant’s status as a victim 

of intimate partner violence “was a contributing factor in the commission of 

the offense.” There was some discussion of Aguilar’s status as a victim of 

intimate partner violence at sentencing, but because that fact was not 
16

DISPOSITION

The matter is remanded for a full resentencing hearing, where the 

court must decide in its discretion whether to stay the sentence imposed on 

count 2 or count 3 consistent with Penal Code section 654 as amended. 

Following resentencing, the clerk of the superior court is directed to prepare 

an amended abstract of judgment and forward a certified copy to the 

Department of Corrections and Rehabilitation. In all other respects, the 

judgment is affirmed.

DATO, J.

WE CONCUR:

McCONNELL, P. J.

AARON, J.

relevant to the court’s sentencing decisions under then-existing law, the 

record was not fully developed. Because the case will be remanded for 

resentencing, we agree with the People that the best course is to allow the 

parties to address their arguments regarding the applicability of amended 

section 1170 to the trial court in the first instance. (See generally People v. 

Buycks (2018) 5 Cal.5th 857, 893 [describing the “full resentencing rule”].)