Filed 3/8/22 P. v. Plasencia CA2/5

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

PHILLIP PLASENCIA,

Defendant and Appellant.

 B311585

 (Los Angeles County

 Super. Ct. No. VA056390)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Lee W. Tsao, Judge. Affirmed in part, vacated 

in part, and remanded with directions.

Katja Grosch, under appointment by the Court of Appeal, 

for Defendant and Appellant. 

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

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, Zee Rodriguez, Supervising Deputy 

Attorney General, Michael C. Keller and Shezad H. Thakor, 

Deputy Attorneys General, for Plaintiff and Respondent.
2

–––––––––––––––––––––––––––––––––

In his third appeal to this court, defendant and appellant 

Phillip Plasencia contends that the trial court abused its

discretion in resentencing him by (1) imposing the high term in 

the principal count; (2) imposing consecutive sentences; and (3) 

imposing a weapons enhancement on each count. 

On January 1, 2022, after briefing had been completed in 

this case, Senate Bill No. 567 (2021–2022 Reg. Sess.; Stats. 2021, 

ch. 731, § 1.3 (Senate Bill 567)) and Assembly Bill No. 124 (2021–

2022 Reg. Sess.; Stats. 2021, ch. 695, § 5.1), which amended

Penal Code section 1170, became effective. We invited the 

parties to submit supplemental briefing regarding the effect, if 

any, of the amendments to section 1170 on Plasencia’s case.

Plasencia argues, and the People concede,that both bills 

apply retroactively to his case. The People argue that it is not 

necessary for us to decide the merits of Plasencia’s contentions 

relating to Senate Bill 567, because he is entitled to resentencing 

under Assembly Bill 124, and the trial court may revisit all of its 

prior sentencing decisions under the new laws at the 

resentencing hearing. We agree with the People. We vacate 

Plasencia’s nine-year sentence for carjacking in count 7 (Pen. 

Code, § 215, subd. (a)1), and remand the matter for resentencing. 

In all other respects, the judgment is affirmed.

1 All further statutory references are to the Penal Code 

unless otherwise indicated.
3

FACTS2

Prosecution

Cesar Beltran and his brother, Guillermo, lived with 

several extended family members at a residence on McCallum 

Street in South Gate. Around 6:00 p.m. on March 18, 1999, the 

Beltrans and their cousin, Silvano Medina, were in front of the 

residence, washing a car. Plasencia and several other men 

approached, two armed with guns. Plasencia and the others 

forced the Beltrans and Silvano into the house. Inside the 

residence were the Beltrans’ mother, Modesta Terrazas, and their 

sister, Karina Beltran. Plasencia pointed a gun at Modesta and 

Karina and ordered them to the bedroom. An accomplice ordered 

Cesar and Silvano to lie face down on the floor. He then took 

cash from their pockets and a chain from around Cesar’s neck.

Juan Jauregui, whose father owned the McCallum Street 

residence, arrived to collect the rent. When he knocked on the 

front door, a gunman opened it and ordered him inside. 

Plasencia appeared, pointed a pistol at Jauregui’s head, and 

pulled him into the living room. Plasencia ordered Jauregui to lie 

face-down on the floor. After Jauregui complied, he was kicked 

twice in the head. Plasencia declared that he was looking for 

money and “weed.” He and two others went through Jauregui’s 

pockets, removing $40. 

Plasencia moved Jauregui to the main bedroom and 

ordered him to the floor. Jauregui saw Guillermo lying face-down 

2 The statement of facts and procedural history are taken 

from our prior unpublished opinion. (People v. Plasencia (Apr. 

10, 2020, B297440).)
4

on the floor, and Karina sitting on the couch. Two other men 

were laying face-down in the bathroom. Plasencia and two 

accomplices were asking Guillermo about money, drugs, and 

jewelry. At some point Plasencia cocked the slide hammer on his 

pistol and announced that the gun was fully loaded. The robbers 

searched the house, but declared that they had found nothing. 

After securing the victims’ hands with tape, they left.

Cesar and Guillermo were able to free themselves and 

pursue the robbers. Armed with a rifle that had been hidden in 

the house, Guillermo exchanged gunfire with the assailants.

When the shots were fired, Leticia Amezcua was in her car 

at her nearby residence on McCallum Street, preparing to back 

out of the garage. Her two-year-old daughter was with her. In 

the trunk of the vehicle was a bag containing jewelry belonging to 

her mother. Plasencia suddenly appeared, bleeding slightly from 

his forehead. He pointed a pistol at her and demanded the car 

keys. After she complied and removed her daughter from the car, 

Plasencia drove off.

Mrs. Amezcua’s husband, Hugo Amezcua, was walking 

home with their son when he heard gunshots. He saw Plasencia 

driving his wife’s Oldsmobile down the street. Plasencia stopped, 

picked up two men who were walking in the street, and continued 

driving.

Plasencia was 21 years old at the time he committed the 

crimes.

PROCEDURAL HISTORY

The jury found Plasencia guilty of first degree residential 

burglary (§ 459 [count 3]); first degree robbery of Juan Jauregui 
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(§ 211 [count 5]); and carjacking and second degree robbery of 

Amezcua (§§ 215, subd. (a) [count 7], 211 [count 8]). In each 

count, the jury found true the allegation that Plasencia 

personally used a firearm under sections 12022.5, subdivision 

(a)(1) and 12022.53, subdivision (b). In a bifurcated proceeding, 

Plasencia admitted that he suffered a prior serious felony 

conviction within the meaning of section 667, subdivision (a)(1),

and the three strikes law (§§ 667, subds. (b)–(i), 1170.12, subds. 

(a)–(d)), and served a prior prison term within the meaning of 

section 667.5, subdivision (b). The trial court sentenced 

Plasencia to state prison for a term of 47 years 4 months.

On appeal, we ordered the trial court to strike a one-year 

enhancement imposed under section 667.5, subdivision (b), but 

otherwise affirmed the judgment.

In 2018, Plasencia moved to strike as unauthorized a 

firearm enhancement (§ 12022.53, subd. (b)) that was imposed in 

connection with his burglary conviction in count 3. He requested 

full resentencing, including resentencing under Senate Bill Nos. 

620 and 1393, which permit the trial court to strike firearm and 

prior serious felony conviction enhancements in the interest of 

justice. (Sen. Bill No. 620 (2017–2018 Reg. Sess.) § 2; Sen. Bill 

No. 1393 (2017–2018 Reg. Sess.) § 1.)

In 2019, the trial court struck the unauthorized section 

12022.53, subdivision (b) firearm enhancement in count 3, and 

resentenced Plasencia to a term of 44 years 4 months in prison. 

The trial court declined Plasencia’s requests to exercise its 

discretion to strike any other firearm or prior serious felony 

enhancements. It also declined to strike his prior strike 

conviction under People v. Superior Court (Romero) (1996) 13 

Cal.4th 497, 529–530, and did not otherwise reduce his sentence. 
6

The trial court did not strike the section 667.5, subdivision (b) 

enhancement as our prior opinion had instructed.

On appeal from his first resentencing hearing, Plasencia 

contended that the trial court abused its discretion at 

resentencing by (1) relying on Plasencia’s gun use in a prior 

juvenile adjudication as an aggravating factor although there was 

no evidence in the record demonstrating that he had used a gun 

in commission of that offense, and (2) ignoring mitigating 

evidence of his rehabilitation and prospects for success upon 

release. He also contended, and the People conceded, that the 

one-year section 667.5, subdivision (b) prior prison term 

enhancement must be stricken in compliance with our prior 

opinion.

We vacated Plasencia’s sentence and remanded for 

resentencing. We instructed the trial court to resentence 

Plasencia without consideration of his use of a firearm to commit 

his juvenile offense as an aggravating factor. We further 

instructed the trial court to consider Plasencia’s rehabilitation 

and future prospects as mitigating factors. We advised the trial 

court that imposition of the one-year section 667.5, subdivision 

(b) enhancement was unauthorized if imposed on the basis of the 

same prior felony in conjunction with a five-year prior serious 

felony enhancement under section 667, subdivision (a).

At the resentencing hearing, the trial court imposed a total 

sentence of 29 years. The court imposed the upper term of nine 

years on the carjacking count (§ 459 [count 7]); plus ten years for 

the firearm use enhancement in that count. The court imposed a 

consecutive sentence of one year four months on the first degree 

burglary count (§ 459 [count 3]), plus three years four months for 

the associated firearm use enhancement, and a consecutive 
7

sentence of two years on the first degree robbery count (§ 211

[count 5]), plus three years four months for the firearm use 

enhancement attached to that count. The trial court stayed the 

sentence in the second degree robbery count (§ 211 [count 8])

pursuant to section 654. The trial court exercised its discretion to 

strike the prior conviction alleged under the three strikes law 

and section 667, subdivision (a)(1). It did not impose a one-year

section 667.5, subdivision (b) enhancement.

DISCUSSION

At the time that Plasencia was sentenced, the trial court 

had discretion to determine whether imposition of the lower, 

middle, or upper term “best serve[d] the interests of justice.” 

(Former § 1170, subd. (b).) It exercised its discretion thoughtfully 

and appropriately under the laws in place at that time. However, 

on October 8, 2021, while Plasencia’s appeal was pending, the 

Governor signed Senate Bill 567 and Assembly Bill 124, which 

made significant changes to the laws under which Plasencia was 

sentenced. Both bills became effective on January 1, 2022. 

Pursuant to Senate Bill 567, section 1170, former 

subdivision (b) has been amended to require a trial court to 

impose the middle term for any offense with 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 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).) Assembly Bill No. 124

created a presumption in favor of a low prison term when a 
8

defendant is under 26 years of age at the time of the offense.

(Stats. 2021, ch. 695, § 4, adding Pen. Code, § 1016.7; Stats. 2021, 

ch. 695, § 5.1, adding Pen. Code, § 1170, subd. (b)(6)(B).)

“[S]ection 1170, subdivision (b)(6) provides: ‘[U]nless the 

court finds that the aggravating circumstances outweigh the 

mitigating circumstances that imposition of the lower term would 

be contrary to the interests of justice, the court shall order 

imposition of the lower term if any of the following was a 

contributing factor in the commission of the offense: [¶] . . . [¶] (B) 

The person is a youth, or was a youth as defined under 

subdivision (b) of Section 1016.7 at the time of the commission of 

the offense.’ (§ 1170, subd. (b)(6)(B); see § 1016.7, subd. (b) [‘A 

“youth” for purposes of this section includes any person under 26 

years of age on the date the offense was committed’].)” (People v. 

Flores (2022) 73 Cal.App.5th 1032, 1038–1039 (Flores).)

We agree with the parties that the amendments to section 

1170, subdivision (b), apply retroactively in Plasencia’s case 

because they make ameliorative changes in the law, which apply

to all nonfinal convictions. (Flores, supra, 73 Cal.App.5th at

1039; People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 308.) 

“We ‘assume, absent evidence to the contrary, that the 

Legislature intended an “amended statute to apply to all 

defendants whose judgments are not yet final on the statute’s 

operative date.”’ (People v. Lopez (2019) 42 Cal.App.5th 337,

341.) ‘For the purpose of determining the retroactive application 

of an amendment to a criminal statute, the finality of a judgment 

is extended until the time has passed for petitioning for a writ of 

certiorari in the United States Supreme Court.’ (Id. at pp. 341–

342, citing People v. Vieira (2005) 35 Cal.4th 264, 305–306.)” 

(Flores, supra, at p. 1039.)
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It is undisputed that Plasencia was a youth, under the age 

of 26 years old, when he committed the instant crimes. Following 

the enactment of Assembly Bill 124, amended section 1170, 

subdivision (b), obligates the court to consider whether 

Plasencia’s youth was a contributing factor in the commission of 

the offenses, a finding that would require imposition of the lower 

term of imprisonment.

Accordingly, Plasencia’s nine-year upper term sentence in 

count 7 (§ 215, subd. (a) [carjacking]), must be vacated under 

section 1170, subdivision (b), and the matter must be remanded 

for resentencing. Upon remand, the trial court may revisit its 

prior sentencing decisions in light of new legislation, including, 

but not limited to, Senate Bill 567. (People v. Valenzuela (2019) 7 

Cal.5th 415, 424–425 [“[T]he full resentencing rule allows a court 

to revisit all prior sentencing decisions when resentencing a 

defendant”]; accord, People v. Buycks (2018) 5 Cal.5th 857, 893 

[“‘the full resentencing rule’”].)

DISPOSITION

We vacate the nine-year sentence in count 7 and remand 

the matter to the trial court for resentencing. In all other 

respects, the judgment is affirmed.

MOOR, J.

We concur:

BAKER, Acting P. J. KIM, J.