Filed 8/19/22 P. v. Collins CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

BOBBY LEWIS COLLINS,

Defendant and Appellant.

D079724

(Super. Ct. No. FVI19002362)

APPEAL from a judgment of the Superior Court of San Bernardino 

County, John Peter Vander Feer, Judge. Affirmed in part; reversed in part

with instructions.

Reed Webb, under appointment by the Court of Appeal, for Defendant 

and Appellant. 

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant 

Attorney General, Charles C. Ragland, Assistant Attorney General, Melissa 

Mandel, Warren Williams and Teresa Torreblanca, Deputy Attorneys 

General, for Plaintiff and Respondent. 
2

A jury found defendant Bobby Lewis Collins guilty of assault with force 

likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4))1 and 

made a true finding that he personally inflicted great bodily injury on the 

victim (§ 12022.7, subd. (a)). The trial court sentenced Collins to 16 years in 

prison, which included imposition of the upper term of four years on the 

assault with force conviction.2 

On appeal, Collins contends the matter must be remanded pursuant to 

Senate Bill No. 567, which became effective on January 1, 2022 and creates a 

presumption for imposition of the middle term when a statute specifies three 

possible terms. 

As we explain, we agree Collins is entitled to resentencing under 

Senate Bill No. 567. Because on remand a full resentencing is appropriate, 

we conclude the trial court may consider whether Collins is entitled to relief 

under other laws, including, as he also contends, under Senate Bill No. 81. 

As amended, section 1385 specifies factors a trial court must consider when 

deciding whether to strike an enhancement.3 In all other respects we affirm 

the judgment.

1 All further statutory references are to the Penal Code. 

2 Collins’s four-year sentence for assault with force was doubled to eight 

years due to a serious felony prior (§ 1170.12, subd. (c)(1)). The trial court 

also imposed three years for the great bodily injury enhancement (§ 12022.7, 

subd. (a)), and an additional five years for the serious felony prior (§ 667, 

subd. (a)).

3 We only decide whether Collins is entitled to remand for resentencing 

including under Senate Bill No. 567 and offer no opinion regarding the 

possible terms of his sentence under this or any other law. Those are 

questions best left to the trial court to answer on remand.
3

FACTUAL AND PROCEDURAL BACKGROUND

Prosecution Evidence

On August 29, 2019, Collins invited a guest into Teresa W.’s home, 

where Collins had been residing for about six months. Teresa told her friend 

and victim Michael W., who was visiting Teresa, that she was uncomfortable 

having the guest inside her home. Michael testified that when he relayed the

message to Collins, Collins became angry, pushed him to the floor, then went 

outside and started yelling for him to come outside, presumably to fight. In 

an attempt to avoid Collins, who has a black belt in Jujutsu, Michael went 

out a side door near the garage. The next thing Michael knew, he was on the

ground, bleeding profusely from his nose. Before losing consciousness, 

Michael saw Collins standing over him.

As a result of the sudden attack by Collins, Michael suffered severe 

injuries to his nose and left eye, head trauma, facial cuts, bruised ribs, and a 

chipped tooth. After the attack, Michael took pain medication for more than 

two months; and at the time of trial, was still experiencing “profound 

dizziness” and vision problems.

Teresa testified she was in the kitchen when she heard a “smack[ing]” 

sound. She went outside and saw Collins punching Michael, who was 

bleeding badly on the floor. Teresa yelled at Collins to stop. Collins pushed 

Teresa to the floor, and continued beating Michael, who appeared “knocked 

out.” In an attempt to stop the attack, Teresa “threw” herself on top of 

Michael. Collins then “stomp[ed]” on Michael’s leg, leaving a “shoe 

impression.” At the end of the attack, Teresa called her mother who in turn 

called 911. Teresa told officers that during the attack she thought Collins 

was trying to “kill” Michael. 
4

Officer Ty Chamberlain arrived on scene and found Michael 

unconscious, his face bloodied. Officer Chamberlain testified Michael 

momentarily regained consciousness and said Collins had “fucked” him up. 

Officer Chamberlain interviewed Teresa on the night of the attack. She 

told the officer she saw Michael on the ground and Collins “standing over 

[Michael] punching him in the face.” When Collins ignored Teresa’s pleas to

stop, she laid on top of Michael to protect him from further blows. Collins

pushed Teresa off of Michael and continued punching Michael in the face. 

Teresa again got on top of Michael and threatened to call the police. This 

time Collins stopped the attack and left in his truck. Later that evening, 

officers arrested Collins outside Teresa’s home.

Defense Evidence

Collins testified he returned home from work at about 6:30 p.m. on 

August 29 and soon thereafter saw his friend “Rick.” Collins and Rick 

initially drank beer outside the home. At some point Collins went into the 

home to tell Michael that, while Michael had been away for the preceding few 

weeks, he and Teresa had had “sexual relations.” Collins wanted Michael to 

know because he believed Michael and Teresa were still a “couple.” 

According to Collins, Michael became angry, called Collins a “dirty mother 

fucker” and swung at him. 

A short time later, Michael again confronted Collins, this time by the 

side door near the garage. After Michael “lunged” at him, Collins defended 

himself by striking Michael three or four times in the nose and face.

Collins admitted that on the night of the incident he told officers he 

struck Michael “up to a dozen times”; and that, after he finished “deliver[ing]

the goods,” Michael was unconscious. Collins also admitted he studied 

martial arts for about 12 years, had earned a black belt in Jujutsu, and knew 
5

that a person could be knocked out, or, as Collins testified, put “to sleep,”

from a single blow to a person’s neck.

DISCUSSION

I. Senate Bill No. 567

A. Section 1170

When Collins was sentenced in August 2021, the trial court had broad 

discretion under former section 245, subdivision (a)(4)4 to impose a term of 

two, three, or four years for the assault by force conviction. (See former

§ 1170, subd. (b) [“When a judgment of imprisonment is to be imposed and 

the statute specifies three possible terms, the choice of the appropriate term 

shall rest within the sound discretion of the court.”].) Consistent with the 

law at that time, in sentencing Collins to the upper term the trial court relied 

on the facts of the instant crime and Collins’s probation report, which, as 

discussed post, identified a number of factors in aggravation and no factors in 

mitigation.

While Collins’s appeal was pending, the Governor signed Senate Bill 

No. 567. (Stats. 2021, ch. 731, § 1.3.) Senate Bill No. 567 amended the 

determinate sentencing law, section 1170, to make the middle term the 

presumptive sentence for a term of imprisonment. A court now must impose 

the middle term for any offense that provides for a sentencing triad unless 

“there are circumstances in aggravation of the crime that justify the 

imposition of a term of imprisonment exceeding the middle term, and the 

4 Subdivision (a)(4) of section 245 provides: “Any person who commits an 

assault upon the person of another by any means of force likely to produce 

great bodily injury shall be punished by imprisonment in the state prison for 

two, three, or four years, or in a county jail for not exceeding one year, or by a 

fine not exceeding ten thousand dollars ($10,000), or by both the fine and 

imprisonment.”
6

facts underlying those circumstances have been stipulated to by the 

defendant, or have been found true beyond a reasonable doubt at trial by the 

jury or by the judge in a court trial.” (§ 1170, subd. (b)(1), (2).) However, a 

court “may consider the defendant’s prior convictions in determining 

sentencing based on a certified record of conviction without submitting the 

prior convictions to a jury.” (Id., subd. (b)(3).)

Collins contends the amendment to section 1170 applies retroactively 

to him because his conviction is not yet final. He further contends he is 

entitled to remand for resentencing because, in imposing the upper term, the 

trial court relied on circumstances in aggravation that were neither proven as 

required under subdivision (b)(2) of section 1170, nor subject to the 

subdivision (b)(3) exception that is limited to a defendant’s prior convictions. 

The People agree, as do we, that the amendments to section 1170 apply 

retroactively to Collins. (See People v. Superior Court (Lara) (2018) 4 Cal.5th 

299, 308; People v. Lopez (2022) 78 Cal.App.5th 459, 465 (Lopez) [“The People 

properly concede that Senate Bill No. 567’s ameliorative amendments to

section 1170, subdivision (b) apply retroactively to all cases not yet final as of 

January 1, 2022.”].) However, the People contend that vacating the sentence 

is unnecessary because the trial court properly relied on certified documents 

in finding beyond a reasonable doubt that Collins suffered a serious felony 
7

prior.5 The People also contend any sentencing error was harmless because,

had the circumstances in aggravation been decided by a jury or the court at a 

court trial (as required under the new law), it is without question that the 

jury/court would have found true beyond a reasonable doubt the aggravating 

circumstances warranting the upper term.

In explaining why it chose the upper term of four years, the trial court

stated, “Mr. Collins, the Court has weighed the factors [in] aggravation and 

the factors of mitigation. [W]hen someone is found guilty of [section] 

245(a)(4), sometimes people aren’t actually struck. It’s an assault. [¶] In this 

case, the victim in this case was beaten severely[,] very severely to the point

where the witness had to throw herself—or felt it necessary to throw herself 

on top of him to . . . save his life. [¶] So under those circumstances, the factors 

of aggravation that have been outlined by the probation department 

5 The record shows that after the jury returned its guilty verdict, the 

trial court conducted a court trial on the bifurcated priors based on certified 

records including from the Department of Corrections and Rehabilitation. 

(See § 969b [providing in relevant part: “For the purpose of establishing 

prima facie evidence of the fact that a person being tried for a crime or public 

offense under the laws of this State has been convicted of an act punishable 

by imprisonment in a state prison, . . . the records or copies of records of any 

state penitentiary . . . or federal penitentiary in which such person has been 

imprisoned, when such records or copies thereof have been certified by the 

official custodian of such records, may be introduced as such evidence”]; see 

People v. Castillo (1990) 217 Cal.App.3d 1020, 1024, fn. 5 [explaining section 

969b is an exception to the hearsay rule].) 

The trial court found beyond a reasonable doubt that the “certified 

[section] 969b packages” established Collins suffered a serious felony prior 

based on a first-degree burglary conviction in the San Diego County Superior 

Court (No. SCD159490) on April 24, 2001. It also found under this same 

standard of proof that Collins was on probation when he committed the 

instant offense. Although the section 969b packages included records for 

other felony offenses, the trial court did not make findings with respect to 

these other offenses.
8

regarding the base term for [the section] 245(a)(4)” conviction provide the 

basis for the upper term.

B. Analysis

In Lopez, this court explained the two-step inquiry that applies when 

evaluating whether it was prejudicial error to sentence a defendant under the 

prior version of section 1170. (Lopez, supra, 78 Cal.App.5th at pp. 465-468.) 

“[T]he initial relevant question for purposes of determining whether prejudice 

resulted from failure to apply the new version of the sentencing law is 

whether the reviewing court can conclude beyond reasonable doubt that a 

jury would have found true beyond a reasonable doubt all of the aggravating 

factors on which the trial court relied in exercising its discretion to select the 

upper term. If the answer to this question is ‘yes,’ then the defendant has not 

suffered prejudice from the court’s reliance on factors not found true by a jury 

[or court] in selecting the upper term.” (Lopez, at p. 467, fn. 11.)6

Here, the answer to the first question is no. As noted, the trial court 

expressly relied on the probation report’s identification of circumstances in 

aggravation in sentencing Collins to the upper term. The probation report 

noted the following circumstances in aggravation: “The crime involved great 

violence, great bodily harm, other acts disclosing a high degree of cruelty, 

viciousness and callousness” (Cal. Rules of Court, rule 4.421(a)(1));7 “The 

6 Lopez disagreed with People v. Flores (2022) 75 Cal.App.5th 495, 500, 

which concluded that remand was unnecessary in light of Senate Bill No. 567 

if “ ‘a reviewing court concludes, beyond a reasonable doubt, that the jury, 

applying the beyond-a-reasonable-doubt standard, unquestionably would 

have found true at least a single aggravating circumstance had it been 

submitted to the jury.’ ” (Italics added.) We agree with Lopez and will follow 

its two-step harmless error analysis.

7 All further rule references are to the California Rules of Court.
9

defendant has engaged in violent conduct that indicates a serious danger to 

society” (rule 4.421(b)(1)); “The defendant’s prior convictions as an adult are 

numerous and of increasing seriousness” (id., (b)(2)); “The defendant has 

served prison terms” (id., (b)(3)); “The defendant was on a grant of [s]ummary 

probation when the crime was committed” (id., (b)(4)); and “The defendant’s 

prior performance on probation/parole was unsatisfactory” (id., (b)(5)).

On the one hand, some of the circumstances in aggravation were 

proven beyond a reasonable doubt in compliance with Senate Bill No. 567. 

These include: (1) the crime “involved great violence” and “great bodily 

harm,” as the jury found true the great bodily injury enhancement (see 

§ 12022.7, subd. (a)) and the facts in support of the assault with force 

conviction show Collins punched Michael in the face multiple times, 

rendering Michael unconscious and causing him serious injury; (2) Collins 

has served a prison term, as the court found true beyond a reasonable doubt 

in the bifurcated trial (see § 1170, subd. (b)(3)); and (3) Collins was on 

summary probation when he committed the offense, which the trial court also 

found true beyond a reasonable doubt.

On the other hand, the trial court also relied on circumstances in 

aggravation that were neither proven beyond a reasonable doubt by a 

jury/court (see § 1170, subd. (b)(2)); nor stipulated to by Collins (see ibid.);

nor subject to the certified-records exception to establish a defendant’s prior 

convictions (id., subd. (b)(3)). These circumstances include: (4) Collins is “a 

serious danger to society”; (5) his prior convictions are “numerous and of 

increasing seriousness”; and (6) his “prior performance on probation/parole 

was unsatisfactory.”

Because not all of the circumstances in aggravation were proven under 

the requirements of Senate Bill No. 567, we turn to the second step in the 
10

Lopez analysis, namely “whether we can be assured that the trial court would 

have exercised its discretion to impose the upper term based on” whatever 

permissible aggravating factors it cited, even though it “originally relied on 

both permissible and impermissible factors in selecting the upper term.” 

(Lopez, supra, 78 Cal.App.5th at p. 467.) In this second step, we inquire 

“whether it is reasonably probable that a more favorable sentence would have 

otherwise been imposed absent the trial court’s improper reliance” on the 

nonproven, impermissible factors. (Ibid.) If we “cannot conclude that the 

trial court would have selected an upper term sentence based on . . . some 

constellation of permissible aggravating factors,” we must “conclude that 

remand is required to allow the trial court the opportunity to exercise its 

discretion to make its sentencing choice in light of the recent amendments to

section 1170.” (Id., at p. 468.)

We cannot conclude from this record that the trial court would have 

sentenced Collins to the upper term based on some of the properly proven 

aggravating circumstances. Although the record shows the trial court 

expressly referenced the fact that Michael was “beaten severely” in imposing 

the upper term, the trial court also relied on other circumstances in 

aggravation identified in the probation report that were unproven. (See

Lopez, supra, 78 Cal.App.5th at p. 468 [concluding remand was necessary 

because the record did not clearly indicate that the trial court “would have 

selected an upper term sentence even if only a single aggravating factor or 

some subset of permissible factors were present”].) 

In addition, the trial court made no comments at sentencing that would 

otherwise explain why it was imposing the upper term (based on permissible 

factors), such that remand would be an “idle” act. (See, e.g., People v. Coelho

(2001) 89 Cal.App.4th 861, 889 [remand would be an idle and pointless act 
11

where the trial court had twice imposed 10 consecutive sentences and 

indicated that it would impose them even if some were not mandatory]; see 

also People v. Gutierrez (2014) 58 Cal.4th 1354, 1391 [remand is appropriate 

unless “the record ‘clearly indicate[s]’ that the trial court would have reached 

the same conclusion ‘even if it had been aware that it had such discretion’ ”].) 

Nor did the argument of counsel at sentencing, and the court’s statements in 

response, suggest that any error in sentencing Collins under the former law 

was harmless beyond a reasonable doubt. 

At the sentencing hearing, Collins was represented by a deputy public 

defender who was specially appearing for another deputy public defender who 

in turn had replaced Collins’s trial attorney, Eric Teti. The trial court 

inquired of Mr. Teti’s whereabouts and was informed Mr. Teti had left the 

Public Defender’s Office and was unavailable. The record shows the trial 

court first addressed Collins’s Romero8 motion to dismiss his serious felony 

prior (discussed post) and the public defender “submit[t]ed on the papers.” 

After denying the Romero motion, the court next asked for argument on the 

term to be imposed for the assault with force conviction and the public

defender stated, “We’d ask for the low term, but submit.” This was the 

entirety of defense counsel’s argument regarding the possible terms the trial 

court should impose in this case.

We thus conclude the matter must be remanded for resentencing under 

Senate Bill No. 567. 

8 People v. Romero (1996) 13 Cal.4th 497, 504.
12

II. Senate Bill No. 81

Collins also contends he is entitled to the benefits of Senate Bill No. 81 

(Stats. 2021, ch. 721, § 1), which added subdivision (c) to section 1385.9 

Subdivision (c)(1) provides in part, “Notwithstanding any other law, the court 

shall dismiss an enhancement if it is in the furtherance of justice to do so.” 

Subdivision (c)(2) of this statute provides in part, “In exercising its discretion 

under this subdivision, the court shall consider and afford great weight to 

evidence offered by the defendant to prove” various “mitigating 

circumstances. Proof of the presence of one or more of these circumstances 

weighs greatly in favor of dismissing the enhancement, unless the court finds 

that dismissal of the enhancement would endanger public safety.”

One such circumstance identified in subdivision (c)(2) of section 1385 

that is “afford[ed] great weight” is in subparagraph (H), which provides: “The 

enhancement is based on a prior conviction that is over five years old.” 

(§ 1385, subd. (c)(2)(H).) 

As noted, Collins’s filed a Romero motion to dismiss his serious felony 

prior based on a first-degree burglary conviction that (at the time of 

sentencing) was more than 20 years old. The trial court denied that motion 

based on former section 1385 and its exercise of discretion “in furtherance of 

justice” (see former § 1385, subd. (a)), without the benefit of Senate Bill No. 

81 and its requirement that the court give “great weight” to mitigating 

circumstances including that an enhancement “is over five years old” (see 

§ 1385, subd. (c)(2)(H)).

9 Effective January 1, 2022, section 1385 was amended by Senate Bill 

No. 81. (Stats. 2021, ch. 721, § 1.) Section 1385 was amended again, 

effective June 30, 2022, to effect technical changes. (Assem. Bill No. 200; 

Stats. 2022, ch. 58, § 15.)
13

Senate Bill No. 81 also added subdivision (c)(7) to section 1385. It 

provides: “This subdivision shall apply to all sentencings occurring after 

January 1, 2022.” Based on this subdivision, the People argue Senate Bill 

No. 81 does not retroactively apply to Collins’s case and therefore remand is 

unwarranted.

However, because we have vacated sentence and remanded for a full 

resentencing based on Senate Bill No. 567, we conclude Senate Bill No. 81—

among any other laws—will apply at Collins’s resentencing. (See People 

v. Sek (2022) 74 Cal.App.5th 657, 674 [concluding that because any 

resentencing of the defendant will take place after Senate Bill No. 81 became 

effective, a trial court on remand must follow this new law]; see also People 

v. Valenzuela (2019) 7 Cal.5th 415, 424-425 [“the full resentencing rule allows 

a court to revisit all prior sentencing decisions when resentencing a 

defendant”]; People v. Buycks (2018) 5 Cal.5th 857, 893 [“when part of a 

sentence is stricken on review, on remand for resentencing ‘a full 

resentencing as to all counts is appropriate’ ”].) We express no view on the 

sentence Collins is to receive under the new law(s).
14

DISPOSITION

Collins’s sentence is vacated and this matter is remanded for a full 

resentencing. In all other respects the judgment is affirmed.

HALLER, Acting P. J.

WE CONCUR:

AARON, J.

IRION, J.