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Filed 1/13/23 P. v. Rivera CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 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

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

ARNULFO RIVERA, JR.,

Defendant and Appellant.

 A160739

 (Contra Costa County

 Super. Ct. No. 51613108)

In his second appeal in this matter, appellant Arnulfo Rivera, Jr.,

asserts four challenges to his prison sentence of 25 years to life for multiple 

convictions involving domestic violence. Appellant contends the matter must 

be remanded to allow the trial court to: (1) reconsider its sentencing decision 

on the primary charge, assault with a deadly weapon, in light of a recent 

revision to Penal Code section 654;1 (2) impose sentence on convictions for

domestic corporal injury, making a criminal threat, and dissuading a witness

by force or threat (counts one, three, and four), and then stay those sentences 

under section 654; (3) recalculate his presentence custody credits; and (4) 

amend the abstract of judgment to show that his conviction for making a

criminal threat (count five) was reversed by this court in its previous appeal. 

The Attorney General concedes appellant’s last three challenges but contends 

1 All undesignated statutory references are to the Penal Code.
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that the matter should not be remanded for resentencing on the primary 

charge because the record does not clearly indicate that the trial court would 

impose a lighter sentence on remand. We disagree with the Attorney General

on this contention. We remand the matter to the trial court to reconsider its 

sentencing decision on the primary charge, assault with a deadly weapon, in 

light of the recent revision to Penal Code section 654, and to correct the three 

other sentencing matters raised by appellant and conceded by the Attorney 

General.

I. FACTUAL AND PROCEDURAL BACKGROUND

In November 2016, the district attorney filed an amended information 

charging appellant with the following: corporal injury on a cohabitant 

(§ 273.5, subd. (a); count one); assault with a deadly weapon (§ 245, subd. 

(a)(1); counts two & six); criminal threats (§ 422, subd. (a)) with the personal 

use of a deadly weapon (§ 12022, subd. (b)(1); count three); dissuading a 

witness by force or threat (§ 136.1, subd. (c)(1); count four); and criminal 

threats (§ 422, subd. (a); count five). It was further alleged that he had two 

prior serious felony convictions (§ 667, subd. (a)(1)), two prior strike 

convictions (§§ 667, subds. (d), (e); 1170.12, subds. (b), (c)), and three prior 

prison term convictions (§ 667.5, subd. (b)). (People v. Arnulfo Rivera, Jr.

(Dec. 6, 2019, A151733) [nonpub. opn.] (Rivera I).) 

The majority of the counts arose out of a single violent incident 

between appellant and his live-in female companion. The offenses were 

committed after the couple got into an argument about money. During the 

argument, appellant physically assaulted the victim and threatened her with 

a knife. He also threatened to kill her and members of her family if she 

called the police. The victim was able to call a friend who later called 911. 

(Rivera I, supra, A151733.)
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On December 6, 2016, a jury convicted appellant on counts one through 

five, acquitting him on count six. The next day, the jury found true a 2007 

prior conviction for criminal threat and found one of the prior prison term 

allegations to be not true. The jury was unable to reach unanimous verdicts 

on the remaining prison priors and the strike/serious prior felony allegation. 

The court declared a mistrial as to those enhancements. The prosecution 

elected not to retry the two remaining prior prison term allegations. Retrial 

commenced on the remaining strike/serious prior felony allegation. On 

March 2, 2017, the jury found the allegation to be true. (Rivera I, supra, 

A151733.)

The trial court sentenced appellant on count two to a term of 25 years 

to life as a third strike offense. A consecutive 10-year sentence was imposed 

comprised of five years each for the two serious felony enhancements. 

Consequently, the total sentence was 35 years to life. Appellant was awarded 

341 days of presentence credits for actual time served, but he was not 

awarded any conduct credits. (Rivera I, supra, A151733.) 

In December 2019, this court reversed appellant’s conviction on count 

five on the ground that no jury instruction had been given on the lesser 

included offense of attempted criminal threat. (Rivera I, supra, A151733) 

We also remanded the matter to the trial court with instructions to award 

appellant an additional 340 days of conduct credit, for total presentence 

custody credit of 681 days. Finally, we directed the trial court to determine 

whether appellant’s two serious felony enhancements imposed under section 

667, subdivision (a), should be stricken under Senate Bill No. 1393 (2017-

2018 Reg. Sess.) (Senate Bill 1393). (Rivera I, supra, A151733.) Senate Bill

1393 became effective on January 1, 2019, and it granted trial courts 
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discretion to dismiss enhancements imposed under section 667, subdivision 

(a), in the interests of justice. 

After the issuance of the remittitur and prior to the resentencing 

hearing, appellant filed a resentencing memorandum asking the trial court 

to: (1) dismiss one or both of his prior serious felony strikes pursuant to 

People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero); (2) 

exercise its newly granted discretion under Senate Bill 1393 to dismiss his 

two, five-year sentence enhancements imposed under section 667, subdivision 

(a); and (3) award him a total of 681 days of presentence custody credit. 

Appellant’s resentencing hearing was held on August 14, 2020, 

following the retirement of the Honorable Bruce Mills, the judge who oversaw 

the trial. At the resentencing hearing, the Honorable Teresa Canepa 

presiding, the trial court denied appellant’s Romero motion to dismiss his two 

prior strikes but dismissed both of his five-year serious felony enhancements 

imposed under section 667, subdivision (a). As a result, appellant’s aggregate 

prison term was reduced from 35 years to life to 25 years to life. The court 

also awarded appellant 681 days of presentence custody credits. This appeal 

followed. 

II. DISCUSSION

A. Resentencing Under Assembly Bill No. 518

Under section 654, a defendant who violates multiple laws in a single 

course of action may be charged with and convicted of distinct crimes but 

sentenced for only one offense. (People v. Sek (2022) 74 Cal.App.5th 657, 673

(Sek).) Sentences on the other offenses are imposed but stayed. (Ibid.)

At the time of appellant’s sentencing hearings, section 654 required the 

trial court to impose punishment “under the provision that provide[d] for the 

longest potential term of imprisonment.” (§ 654, former subd. (a).) Effective 
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January 1, 2022, Assembly Bill No. 518 (2021-2022 Reg. Sess.) (Assembly Bill 

518) modified this provision. Section 654, as modified by Assembly Bill 518, 

now provides that an act or omission punishable in different ways by 

different provisions of law, as in this case, may be punished under any of the 

applicable sentencing provisions. (§ 654, subd. (a).) As amended, section 654 

now gives trial courts discretion to impose and execute a shorter sentence,

while staying the execution of the longest sentence. (People v. Mani (2022) 74 

Cal.App.5th 343, 379 (Mani).) The Attorney General concedes that the recent 

legislative changes to sections 654 apply to appellant because the judgment is

not yet final. We agree. (Ibid.; see also Sek, supra, 74 Cal.App.5th 657 at p. 

673.) 

Appellant indicates that if we remand for resentencing, he will ask the 

trial court to base his sentence on count one, corporal injury to a cohabitant, 

rather than count two, assault with a deadly weapon. This would remove his 

sentence from the full scope of the “Three Strikes” law because count one was 

not a serious or violent felony. (See People v. Johnson (2015) 61 Cal.4th 674, 

681 [defendants with two or more prior strikes are subject to a lesser 

sentence when convicted of a felony that is neither serious nor violent, unless 

an exception applies].)

2 The Attorney General opposes remand for 

resentencing, arguing that remand would be futile because the record “does 

not clearly indicate that the trial court would reduce appellant’s sentence on 

remand.” Although we agree there is some support in the record for the 

Attorney General’s position, the amended version of section 654, subdivision 

2 The Attorney General posits that an aggregate sentence under 

appellant’s scenario would be, at most, 18 years, based on a doubling of the 

upper term of four years for the conviction for corporal injury to a copartner 

(§ 273.5, subd. (a); count 1) plus an additional 10 years for the two prior 

serious felony convictions. 
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(a) was not effective when the trial court sentenced appellant, and the court 

lacked the discretion to choose which counts to stay under section 654.

It is well established that “ ‘[d]efendants are entitled to sentencing 

decisions made in the exercise of the “informed discretion” of the sentencing 

court. [Citations.] A court which is unaware of the scope of its discretionary 

powers can no more exercise that “informed discretion” than one whose 

sentence is or may have been based on misinformation regarding a material 

aspect of a defendant’s record.’ [Citation.] In such circumstances, [the 

Supreme Court has] held that the appropriate remedy is to remand for 

resentencing unless the record ‘clearly indicate[s] that the trial court would 

have reached the same conclusion ‘even if it had been aware that it had such 

discretion.’ ” (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391; accord, People 

v. Tirado (2022) 12 Cal.5th 688, 694; People v. Flores (2020) 9 Cal.5th 371, 

431–432.)

In agreeing to reduce appellant’s overall term by 10 years by dismissing 

the two prior serious felony enhancements imposed under section 667, 

subdivision (a), Judge Canepa stated: “I have . . . read the briefing from both 

parties, and obviously I wasn’t the trial judge in this matter. I was very 

disturbed to read the details of the case and the injuries that occurred to the 

victim. I’m also taking into consideration the fact that [appellant has] 

numerous convictions that he, as Judge Mills said, apparently earned the 

years that he gave him. [¶] But having said all that, in terms of the [section] 

667(a)(1) priors which relates to the determinate sentence of 10 years, 

correct, I’m going to strike those because I do believe that the 25-years-to-life 

is sufficient in a matter such as this given his strike priors, which I would not 

strike, and given the activity in this matter which, as I said, was very 

disturbing. [¶] So in terms of his sentence now, it is an indeterminate 
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sentence of 25-years-to-life. The two [section] 667(a)(1) prior convictions are 

stricken.”

In light of Judge Canepa’s comments, the Attorney General argues that 

there is “no basis” for remand for reconsideration of appellant’s prison term 

under the amended version of section 654 because the trial court “made it 

clear that any further reduction would be inappropriate.” Appellant counters 

that the record does not clearly indicate that the resentencing court would 

refuse to stay his 25-year to life sentence and impose a shorter sentence 

under a different count, and that to contend otherwise amounts to 

speculation. He observes that Judge Canepa exercised her discretion and 

struck both serious felony priors, suggesting that the trial court “was not 

unsympathetic to [him].” He also notes that the Legislature has recently 

enacted a series of measures intended to ameliorate longer sentences, 

suggesting that the court might also take this trend into account and stay his

sentence on count two even though it did decline to strike his two strike 

priors. 

Although the trial court was not inclined to strike any of appellant’s 

priors, at the time it had no discretion to stay the sentence on count two, and 

appellant’s trial counsel did not have the opportunity to argue the issue. The 

subsequently enacted amendment provides the court with that discretion, 

greatly modifying the court’s sentencing authority. Thus, even with the 

court’s statements during sentencing, out of an abundance of caution, we 

remand this matter for resentencing to allow the court to consider whether to 

stay sentencing on count two and to sentence appellant on a different count. 

(See, e.g., People v. Johnson (2019) 32 Cal.App.5th 26, 68–69 [remand

ordered in context of Senate Bills Nos. 1393 and 620 even though the trial 
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court had stated it wouldn’t strike enhancements even if it did have 

discretion].) 

Accordingly, we vacate appellant’s sentence and remand this matter to 

the trial court to apply section 654, as modified by Assembly Bill 518, in the 

first instance in order to determine his new sentence. The court shall also 

consider other recent legislative changes to the sentencing laws, as 

applicable.3 We express no opinion as to the appropriate outcome of any 

future sentencing determination. 

B. Sentences on Counts 1, 3, and 4 Must Be Imposed

Appellant notes that neither Judge Mills at the original sentencing 

hearing nor Judge Canepa at the sentencing hearing on remand formally 

imposed any sentence for his convictions on counts one, three, and four. As a 

result, he argues that the terms for those counts should be formally imposed 

and then stayed under section 654. The Attorney General agrees. We concur 

with the parties. 

At the original sentencing hearing, Judge Mills indicated that multiple 

punishments on counts one, three, and four would not be permissible under 

section 654 because those counts arose out of the same course of conduct as 

count two. The court imposed sentence on counts two and five (with the 

sentence on count five stayed) and imposed two consecutive five-year terms 

for the prior serious felony enhancements, and stayed sentences on counts 

one, three, and four. However, the judge did not first impose sentences on 

those counts before staying them. Judge Canepa was not asked to correct 

those errors on remand, and she did not do so. Accordingly, the matter 

3 Appellant suggests that the trial court “would presumably be required 

to resentence [him] under the framework of ... [Senate Bill No. 81], which 

went into effect on January 1, 2022,” relying on the changes made to the 

treatment of enhancements under this legislation. 
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should be remanded so that the judgment can reflect that sentences were 

imposed on all counts, but that the execution of some of the terms were 

stayed under section 654. (See People v. Alford (2010) 180 Cal.App.4th 1463, 

1469 [“A sentence must be imposed on each count, otherwise if the nonstayed 

sentence is vacated, either on appeal or in a collateral attack on the 

judgment, no valid sentence will remain.”]) Thus, we will direct the trial 

court to modify the judgment on remand to comply with section 654.

C. Presentencing Custody Credits

Appellant argues that he is entitled to a total of 1,832 days of 

presentence custody credits instead of the 681 days currently listed on the 

abstract of judgment dated August 14, 2021. The Attorney General agrees, 

as do we. 

As noted above, at appellant’s initial sentencing hearing held on June 

20, 2017, the trial court granted him 341 days of presentence custody credits 

but made no mention of presentence conduct credits. We ordered the trial 

court on remand to award an additional 340 days of conduct credits. The 

resentencing hearing was not held until August 14, 2020. 

Section 2900.1 provides: “Where a defendant has served any portion of 

his sentence under a commitment based upon a judgment which judgment is 

subsequently declared invalid or which is modified during the term of 

imprisonment, such time shall be credited upon any subsequent sentence he 

may receive upon a new commitment for the same criminal act or acts.” Our 

Supreme Court has instructed: “When, as here, an appellate remand results 

in modification of a felony sentence during the term of imprisonment, the 

trial court must calculate the actual time the defendant has already served 

and credit that time against the ‘subsequent sentence.’ (§ 2900.1.)” (People v. 

Buckhalter (2001) 26 Cal.4th 20, 23.)
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Pursuant to section 2900.1 and People v. Buckhalter, supra, 26 Cal.4th 

20, appellant was entitled to additional presentence custody credits for the 

1,151 days between the date of the initial sentencing hearing and the date of 

the resentencing hearing. Accordingly, the abstract of judgment should be 

corrected to reflect a total of 1,832 days of presentence credits based on 1,492 

actual days and 340 days for good conduct. 

D. Abstract of Judgment Must Reflect Reversal of Conviction on 

Count 5

After we ordered the reversal of count five in Rivera I, we ordered the 

trial court to amend the abstract of judgment to reflect that reversal. (Rivera 

I, supra, A151733.) The parties did not discuss the reversal of count five at 

the resentencing hearing, and the revised abstract of judgment still shows 

that appellant was convicted of that charge and that the sentence was stayed 

under section 654. On remand, we again order the trial court to amend the 

abstract of judgment to reflect that his conviction on count five was reversed.

II. DISPOSITION

Appellant’s sentence is vacated and the matter is remanded for 

resentencing to allow the trial court to (1) exercise the discretion conferred on 

it by Assembly Bill 518 and any other applicable recent changes to sentencing 

laws, (2) impose sentence on counts one, three, and four and then stay the 

execution of those sentences pursuant to section 654, unless the court elects 

to impose sentence on one of these counts in lieu of the sentence on count two, 

in which case it should impose sentence and stay execution of the sentences 

on any remaining counts, (3) amend the abstract of judgment to show that 

appellant is awarded 1,492 presentence custody credits and 340 conduct 

credits for a total of 1,832 days, and (4) amend the abstract of judgment to 

show that his conviction on count five was reversed and never retried. 
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Following resentencing, the clerk of the court is directed to prepare an 

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

amended abstract of judgment to the Department of Corrections and 

Rehabilitation.
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DEVINE, J.

WE CONCUR:

HUMES, P. J.

MARGULIES, J.

A160739

 Judge of the Contra Costa County Superior Court, assigned by the Chief 

Justice pursuant to article VI, section 6 of the California Constitution.