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Filed 7/26/22 P. v. Ruiz CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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

THIRD APPELLATE DISTRICT

(San Joaquin)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

JESUS RUIZ,

Defendant and Appellant.

C093744, C094498

(Super. Ct. No. STK-CRFDV-2020-0005117)

Defendant Jesus Ruiz showed up at his estranged wife’s home drunk and armed 

with a loaded gun. After his wife opened the door, defendant forced his way inside and 

then hit his wife over the head with the gun until she fell to the floor. A jury found

defendant guilty of first degree burglary, felony infliction of corporal injury on a spouse, 

and several other crimes. It also found that defendant used a firearm and inflicted great 

bodily injury on his spouse in the course of committing the burglary and spousal abuse

offenses.
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On appeal, defendant challenges his resulting sentence for several reasons. First, 

he contends the trial court wrongly imposed punishment for both the burglary and the 

spousal abuse offenses. He argues that because these offenses involved the same course 

of conduct, the same victim, and the same criminal objective (namely, his objective of 

inflicting bodily injury on his spouse), the court should have stayed the sentence for one 

of these offenses under Penal Code section 654.1 Second, based on recent amendments 

to sections 654 and 1170 that became effective January 1, 2022, he asserts we should 

remand the case to the trial court for resentencing consistent with those amendments. 

Lastly, he contends the trial court wrongly imposed a domestic violence fee that only 

applies in cases, unlike this one, where the court grants probation. The Attorney General, 

for his part, ignores the first issue and concedes the rest. We agree with defendant on all 

counts.

BACKGROUND

On May 18, 2020, defendant arrived at the home of his spouse, Jenifer G. (See 

Cal. Rules of Court, rule 8.90(b)(4) [to protect personal privacy interests, courts may 

omit the last names of victims in criminal proceedings].)2 Although married, defendant

and Jenifer lived in separate residences at the time because of defendant’s abusive 

conduct. Jenifer lived with her mother and four children in Stockton; defendant lived in 

Galt.

On seeing defendant at the door, Jenifer’s mother thought “something wasn’t quite 

right” because defendant “looked very aggressive” and she instructed Jenifer not to open 

the door. Jenifer opened the door anyway and an argument ensued. Defendant sought to 

1 All further statutory references are to the Penal Code.

2

 Undesignated rules references are to the California Rules of Court.
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leave with his nearly one-year-old daughter, whom he shared with Jenifer. But Jenifer, 

believing defendant was drunk, said he could not. Jenifer’s four children stood nearby.

After a brief argument, defendant forced his way into the home and struck Jenifer

on the head three times with a hard object, causing her to fall to the ground. As she fell, 

Jenifer noticed a gun in defendant’s hand and then “everything went black.” Jenifer’s 

mother, who had moved to a separate room to call 911, heard a loud noise coming from 

the living room. Upon hearing the noise, she ran out into the living room where she 

found Jenifer lying on the floor. She observed the front door open and ran outside after 

defendant. Defendant stopped and, a moment later, Jenifer’s mother heard two or three 

gunshots. She returned to the home and observed Jenifer covered in blood.

A jury found defendant guilty on five counts: first degree burglary (§ 459), felony 

infliction of corporal injury on a spouse (§ 273.5, subd. (a)), discharging a firearm in a 

grossly negligent manner (§ 246.3, subd. (a)), being a felon in possession of a firearm 

(§ 29800, subd. (a)(1)), and misdemeanor willful cruelty to a child (§ 273a, subd. (b)). 

With regards to the burglary and corporal injury on a spouse charges, the jury also found 

true allegations that defendant personally used a firearm (§ 12202.5, subd. (a)) and 

personally inflicted great bodily injury to his spouse (§ 12022.7, subd. (e)). The jury

further, on the burglary count, found one other allegation to be true: a person other than 

defendant was present in the home at the time of the burglary (§ 667.5, subd. (c)(21)).

In March 2021, the trial court denied defendant probation and sentenced him to an 

aggregate term of 14 years in state prison, calculated as follows: For count 1, the upper 

term of six years for the burglary, six additional years for the corresponding firearm 

enhancement, 16 additional months for the corresponding great bodily injury 

enhancement, and eight months consecutive on count 4, being a felon in possession of a 

firearm. The court also sentenced defendant to an additional 13 years, to be served 

concurrently, calculated as follows: For count 2, the midterm of three years for inflicting 

corporal injury on a spouse, the midterm of six years for the corresponding firearm 
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enhancement, and the midterm of four years for the great bodily injury enhancement. 

The court sentenced defendant to a two-year concurrent term on count 3, discharging a 

firearm in a grossly negligent manner. With regards to the misdemeanor child cruelty 

charge, the trial court sentenced defendant to one year in county jail, with credit for time 

served; the trial court also ordered defendant to pay various fines, fees, and assessments.

Three months later, in June 2021, the court resentenced defendant to address 

several sentencing errors. It again sentenced him to an aggregate term of 14 years in state 

prison, though it calculated the time somewhat differently than it previously had. It

sentenced him on count 1, the burglary count, to the upper term of six years, four 

additional years for the corresponding firearm enhancement (midterm), and four 

additional years for the corresponding great bodily injury enhancement (midterm). The 

court also sentenced defendant to an additional 11 years, to be served concurrently, 

calculated as follows: On count 2, the midterm of three years for inflicting corporal 

injury on a spouse, four additional years for the corresponding firearm enhancement, and 

four additional years for the corresponding great bodily injury enhancement. The court 

further sentenced defendant on count 3, to the midterm of two years for discharging a 

firearm in a grossly negligent manner, and on count 4, the felon in possession of a firearm 

count, also to the midterm of two years, but it then stayed the sentences imposed in 

counts 3 and 4 pursuant to section 654. The trial court was silent on resentencing as to 

the misdemeanor count.

Defendant filed two timely appeals. He filed the first shortly after the trial court 

sentenced him in March 2021, and he filed the second shortly after the court resentenced 

him in June 2021. Defendant’s two appeals were later consolidated.3

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 The consolidated cases were assigned to this panel on May 5, 2022. 
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DISCUSSION

I. Punishment for Both the Burglary and Spousal Abuse Counts

Defendant first contends the trial court wrongly imposed punishment for both the 

burglary and spousal abuse counts. He asserts that because both counts were based on an 

indivisible course of conduct involving a single victim and a single criminal objective, 

the court should have stayed punishment on the spousal abuse count per section 654. The 

Attorney General’s brief does not address this issue. We agree with defendant. 

At the time of sentencing, section 654, subdivision (a) stated: “An act or omission 

that is punishable in different ways by 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.” (Stats. 1997, 

ch. 410, § 1.) “ ‘Although [the statute] “literally applies only where such punishment 

arises out of multiple statutory violations produced by the ‘same act or omission,’ ” 

[courts] have extended its protection “to cases in which there are several offenses 

committed during ‘a course of conduct deemed to be indivisible in time.’ ” ’ [Citation.]” 

(People v. Ramirez (2006) 39 Cal.4th 398, 478.) Courts will deem several offenses 

committed during a course of conduct to be indivisible when “ ‘ “ ‘all of the offenses 

were incident to one objective.’ ” ’ ” (People v. Jackson (2016) 1 Cal.5th 269, 354.) 

Under those circumstances, absent multiple victims, “ ‘ “ ‘the defendant may be punished 

for any one of such offenses but not for more than one.’ ” ’ [Citation.]” (Ibid.; see 

People v. Deloza (1998) 18 Cal.4th 585, 592 [“Section 654 does not . . . preclude 

multiple punishment when the defendant’s violent act injures different victims”].)

In this case, the prosecution conceded that defendant had the same criminal 

objective for both the burglary and spousal abuse counts—namely, the objective of 

inflicting corporal injury on his wife. In closing argument, the prosecutor argued that the 

intent to support the burglary charge, was to harm Jenifer. The prosecutor also exhibited 

a PowerPoint presentation during closing argument, which included a slide that indicated,
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“To prove that a defendant is guilty of [first degree burglary], the People must prove that: 

[¶] 1. A defendant entered a building; AND [¶] 2. When he entered a building, he 

intended to commit Felony Inflicting Injury on his Spouse.” Tracking the prosecution’s 

theory of burglary, the jury instructions also supported the prosecution’s theory of the 

burglary charge, that defendant entered Jenifer’s home with an intent to commit felony 

inflicting injury on a spouse. The jury was instructed with CALCRIM No. 1700 which, 

in relevant part stated: “To prove the defendant is guilty of this crime, the People must 

prove that: [¶] 1. The defendant entered a building; and [¶] 2. When he entered a 

building he intended to commit Felony Inflicting Injury on a Spouse; and [¶] 3. The 

structure the defendant entered was a noncommercial establishment.”

Under these facts, which firmly establish that defendant harbored the same 

criminal objective for both the burglary and spousal abuse counts, we conclude the court 

should have stayed the sentence on the spousal abuse count under section 654. (See 

People v. Hester (2000) 22 Cal.4th 290, 293-294 [defendant pleaded no contest to 

burglary and felony assault and afterward received a four-year prison term for the 

burglary and a concurrent three-year term for the felony assault; because “ ‘the record 

indisputably establishes that the two offenses were committed with a single intent and 

objective,’ ” “the concurrent three-year sentence for the assault count should have been 

stayed” under § 654].)

II. Recent Amendment to Section 654

Defendant’s next argument concerns a recent amendment to section 654. At the 

time of sentencing, section 654 required the court to “punish[ ] [defendant] under the 

provision that provide[d] for the longest potential term of imprisonment”—which in this 

case, was the burglary count—and then stay the sentence on the spousal abuse count. 

(Stats. 1997, ch. 410, § 1; see also § 461, subd. (a) [first degree burglary carries a 

sentence of up to six years]; § 273.5, subds. (a), (f)(1) [willful infliction of corporal injury 

on a spouse generally carries a sentence of up to four years, but, under certain 
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circumstances, the sentence can be up to five years].) While this appeal was pending, 

Assembly Bill No. 518 (2021-2022 Reg. Sess.), amended section 654 to allow trial courts 

to choose the punishment to impose in these types of cases, stating: “An act or omission 

that is punishable in different ways by different provisions of law may be punished under 

either of such provisions . . . .” (Stats. 2021, ch. 441, § 1, italics added.) Defendant 

contends we must remand to allow the trial court to exercise its newly authorized 

discretion under section 654. The Attorney General agrees, and so do we.

New criminal laws generally operate only prospectively unless the enacting body 

“expressly” declares a contrary intent. (§ 3.) But not always. “[U]nder [In re Estrada

(1965) 63 Cal.2d 740], ‘ “[a]n amendatory statute lessening punishment is presumed to 

apply in all cases not yet reduced to final judgment as of the amendatory statute’s 

effective date” [citation], unless the enacting body “clearly signals its intent to make the 

amendment prospective, by the inclusion of either an express saving clause or its 

equivalent” [citations].’ [Citations.]” (People v. Lara (2019) 6 Cal.5th 1128, 1134; see 

also People v. Nasalga (1996) 12 Cal.4th 784, 789, fn. 5 [“a judgment is not final until 

the time for petitioning for a writ of certiorari in the United States Supreme Court has 

passed”].) 

This presumption favors retroactive application of section 654’s new language in 

this case. The Legislature’s recent changes to section 654, as all parties agree, potentially 

lessen punishment for defendants. And in making these changes, as all parties further 

agree, the Legislature evidenced no intent to have these changes apply prospectively 

only. For these reasons, and because the statutory amendment became effective before 

defendant’s appeal became final, we agree he is entitled to the statute’s ameliorative 

benefit. And because we cannot predict how the trial court would have acted had this 

amendment been in effect at the time of sentencing, we find remand appropriate to allow 

the trial court to exercise its newly authorized discretion under section 654. (See People 
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v. Mani (2022) 74 Cal.App.5th 343, 379-381 [concluding that Assem. Bill No. 518 

applies retroactively and remanding to the trial court for resentencing].) 

III. Recent Amendment to Section 1170

Defendant’s next argument concerns another recent statutory amendment, this 

time involving section 1170. Again, while this appeal was pending, Senate Bill No. 567

(2021-2022 Reg. Sess.) amended section 1170, subdivision (b), providing that a trial 

court may impose an upper term sentence only where there are aggravating circumstances 

that justify the imposition of a term exceeding the middle term and the defendant has 

either stipulated to the facts underlying those circumstances or those facts have been 

found true beyond a reasonable doubt. (§ 1170, subd. (b)(1)-(2); Stats. 2021, ch. 731, 

§ 1, effective Jan. 1, 2022.) In making this determination, the “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.” (§ 1170, subd. (b)(3); 

Stats. 2021, ch. 731, § 1.) “These amendments apply retroactively to [defendant] because 

his conviction was not final when this legislation took effect.” (People v. Flores (2022) 

75 Cal.App.5th 495, 500.) Defendant contends, and the Attorney General concedes,

defendant is entitled to the ameliorative benefit of this statute on remand. We agree.

Under Estrada, we find section 1170’s recent amendment applies retroactively in 

all cases, like defendant’s, not yet reduced to final judgment. The Legislature, as all 

parties agree, offered no indication that it intended its changes to section 1170 to apply 

prospectively only. Although for certain earlier amendments to section 1170, the 

Legislature specified that they should only apply “prospectively” (see § 1170, subd. 

(h)(7)-(8)), it included no similar language for its changes in Senate Bill No. 567. And 

these changes, as all parties further agree, potentially lessen punishment for defendants 

sentenced to the upper term on an offense. For these reasons, we agree section 1170’s 

current statutory language applies retroactively in all nonfinal cases. (See People v. 

Flores (2022) 73 Cal.App.5th 1032, 1039 [“the amended version of section 1170, 
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subdivision (b) that became effective on January 1, 2022, applies retroactively in this 

case as an ameliorative change in the law applicable to all nonfinal convictions on 

appeal”]; People v. Flores, supra, 75 Cal.App.5th at p. 500 [finding similarly].)

Like the parties before us, we find resentencing under section 1170’s current text 

appropriate in this case. We do not intend or imply that remand for resentencing per 

section 1170 applies in all cases, however we believe it is necessary given the particular 

facts of this case. In this case, the record is silent on the justification for imposition of the 

upper term. According to the trial court, it imposed the upper term because it “f[ound]

the aggravating circumstances far outweigh the mitigation” after “[h]aving read and 

considered the probation report and . . . the facts at trial,” but it never detailed the specific 

aggravating circumstances it found. Additionally, the probation report listed aggravating 

factors relating both to the nature of the crime, under rule 4.421(a), and relating to the 

defendant, under rule 4.421(b). If a trial court found true an aggravating fact that it 

believed supported imposition of an upper term sentence, and if a jury necessarily would 

have found that same fact true had it considered the matter, then a reviewing court would 

have not need to remand for resentencing. (See People v. Flores, supra, 75 Cal.App.5th 

at pp. 500-501.) Because, under these circumstances, we cannot say whether a jury 

would have found any of the factors under rule 4.421(a) to be true, or whether the factors 

under 4.421(b) carried more weight to the trial court, we must remand for resentencing. 

(See People v. Avalos (1984) 37 Cal.3d 216, 233 [the reviewing court “must . . . reverse 

where it cannot determine whether [an] improper factor [in aggravation] was 

determinative for the sentencing court”].) 

IV. Domestic Violence Fee

Lastly, defendant contends the trial court wrongly imposed the $500 domestic 

violence fee described in section 1203.097. We agree here as well.

At sentencing, the trial court ordered defendant to pay a “$500 domestic violence 

f[ee] per Penal Code 1203.097(a)(5).” But section 1203.097, subdivision (a) authorizes a 
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court to impose this fee only when the defendant “is granted probation,” and, in this case, 

defendant was not granted probation. For this reason, as the Attorney General concedes, 

the fee is unauthorized and must be stricken.

DISPOSITION

The conviction is affirmed and the sentence is vacated. The matter is remanded to 

the trial court for a full resentencing hearing, consistent with this opinion. Following 

resentencing, the trial court shall prepare an amended abstract of judgment, which omits 

the domestic violence fee under section 1203.097, and forward a certified copy to the 

Department of Corrections and Rehabilitation. 

 /s/

EARL, J.

We concur:

 /s/

HULL, Acting P. J.

 /s/

HOCH, J.