1

Filed 6/29/22 P. v. Rollins CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 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

THE PEOPLE,

Plaintiff and Respondent,

v.

PHILLIP MARTE ROLLINS,

Defendant and Appellant.

 A161024

 (Contra Costa County

 Super. Ct. No. 051822048)

This is an appeal from judgment after a jury convicted defendant 

Phillip Marte Rollins of one count of making a criminal threat while armed 

and one count of attempted false imprisonment. Defendant received three

years of probation, a condition of which was serving 180 days in jail. On 

appeal, defendant contends that the trial court misinstructed the jury on the 

offense of making a criminal threat, the trial court failed to give a required 

instruction on jury unanimity, his attorney rendered ineffective assistance by 

misstating facts during summation, and a change in law requires a reduction 

in the length of his probationary term. We affirm.
2

FACTUAL AND PROCEDURAL BACKGROUND

On November 26, 2018, defendant was charged with making a criminal 

threat (Pen. Code, § 422, subd. (a); count 1)

1 and false imprisonment by 

violence (§§ 236, 237; count 2). As to both counts, it was alleged defendant 

personally used a firearm (§ 12022.5, subd. (a)). A jury trial revealed the 

following facts.

I. Prosecution’s Case.

Defendant lived with the victim and her young daughter from 2015 to 

2017 in a single-family home in Richmond. Their relationship was marred by 

several incidents of violence. One time, defendant became enraged when the 

victim’s cousin knocked too loudly on the door. After the cousin left, 

defendant demanded that the victim and her daughter get in the car so that 

he could take them to the victim’s uncle’s house. Both females were scared 

and did not want to go. During the drive, defendant threatened to shoot at 

the house and, later, threatened to kill the victim.

Another time, the couple argued in the living room until the victim 

retreated to her daughter’s room and shut the door. Defendant opened the 

door and grabbed her arm, pulling her from the room. In doing so, the victim 

tripped and hurt her ankle.

In June 2017, the couple argued in the laundry room. Defendant 

pushed the victim into the dryer and choked her for over a minute, causing 

her neck to hurt for several days. About a week later, the victim’s daughter

told the victim her relationship with defendant was abusive and did not seem 

right. Shortly thereafter, the victim told defendant he had to move out before 

the next school year started in August.

1 Unless otherwise stated, all statutory citations herein are to the Penal 

Code.
3

In early August 2017, defendant was confronted in his bedroom by the 

victim’s friend Brandon, who demanded that he leave. The victim was in 

another room. Brandon told defendant he was no longer welcome in the

victim’s house. Although Brandon used profanity, he was not armed and did 

not threaten defendant. Defendant took nothing when he left, but he called 

the victim later to arrange to collect his belongings.

The next day, the victim met defendant and gave him many of his 

belongings. She also helped him find a new place to live, in a house with 

several roommates. Defendant was uncomfortable receiving mail at his new 

address, so he continued to receive mail at the victim’s house. She repeatedly 

asked him to have his mail forwarded, but he did not do so. Although no 

longer a couple, they continued to meet monthly so defendant could get his 

mail.

On a Saturday in early February 2018, defendant and the victim 

planned to meet, but the victim failed to show up at the arranged time. 

Defendant repeatedly called the victim, but no one answered. Finally, on 

Sunday, Brandon, who was now dating the victim, answered her phone and

said she was busy before hanging up.

The victim and defendant later talked and agreed to meet in the 

parking lot of a large retail store at 6 p.m. on Monday. The victim arrived 

with her daughter. The victim handed him his mail and turned to leave, but 

he told her to stop. Defendant then told her that she could not leave or he 

would kill her. He then demanded to know who answered her phone. He

partially pulled out a handgun for about 30 seconds before giving her a pen 

and paper to write down the person’s name and address.

2 Scared, the victim 

2 The victim’s daughter did not remember seeing the gun; however, her 

mother told her that he had one.
4

wrote down a fictitious name. Afterward, defendant told her that she could 

leave the parking lot but could not go back home. Defendant warned the 

victim that he had people watching her and if she told anyone he would kill 

her.

The victim drove away quickly and called Brandon, who instructed her 

to call 911. This 911 call, recorded on February 5, 2018, was played at trial. 

In it, the victim reported meeting her ex-boyfriend to drop off his mail at the 

store parking lot. Her ex-boyfriend, angry that someone else answered her 

phone, pulled a gun out and (without pointing it) threatened to kill her for 

“playing games . . . .” The victim described the gun as a black handgun that 

he pulled out of his pocket. Defendant told her that he had people watching 

and if she went home or told anyone he would kill her. Afraid, the victim 

went to her uncle’s house.

About an hour later, police interviewed the victim, who described a 

physically and verbally abusive relationship with defendant. She told the 

police that she did not want defendant prosecuted but did want him to leave 

her alone.

Police later interviewed defendant and searched his house. They found

an unloaded firearm registered to defendant, two magazines with no 

ammunition, and a certified record of sale in his bedroom.

II. Defense Case.

Defendant’s friend testified that defendant was “pretty mild-mannered” 

and not violent-natured. Defendant then testified in self-defense, describing 

a course of events that differed from the victim’s account.

According to defendant, he and the victim mutually agreed to end their 

relationship in August 2016. Following bouts of infidelity, the couple began 

living together as “friendly” roommates. In May 2017, the victim told 
5

defendant he would soon need to move out and that she would help him do so 

when the time came.

Around June 2017, the victim started staying away from her house, 

telling defendant she needed space. In July 2017, while the victim was away, 

defendant awoke to three men in his bedroom, two with guns and the other 

with a baseball bat. One of them put a gun to defendant’s head, told him to 

leave, and warned that if he bothered the victim again he would be killed. 

Defendant believed this man was the victim’s new boyfriend, Brandon. 

Defendant, shaken, grabbed his clothes and left. He contacted the victim, 

who denied knowing what happened. She told him not to call the police if he 

wanted her to return his belongings.

The next day, defendant met the victim to collect some belongings. The 

victim admitted one of the men was her new boyfriend and that they took

some of his things. She said she was trying to get them back and purchased 

a hotel room for him. The victim later helped him find a new place to live. 

He moved into the new place on August 1, 2017. She continued to receive his 

mail and met him about every two weeks to give it to him.

In or around February 2018, the former couple agreed to meet on a 

Saturday, but she did not appear or answer her phone. Defendant called her 

once on Saturday and twice on Sunday. Finally, on Sunday, her new 

boyfriend, who sounded like the man with the gun, answered and told

defendant he would kill defendant if he did not stop calling. Defendant hung 

up.

The next day, defendant contacted the victim and arranged to meet her 

at the store parking lot that evening. She arrived with her daughter. 

Bringing up the prior day’s phone call, the victim told defendant it was a 

message from her boyfriend, who would kill defendant if he called again. 
6

Defendant responded, “[I]f he come for me, then he’s going to be gone,”

meaning her boyfriend would die if he came after defendant. After 

exchanging more words, he left.

Defendant denied threatening the victim, having a gun with him, 

demanding that she write down her new boyfriend’s name, or preventing her 

from leaving. He also denied any of the prior acts of violence that the victim

described and insisted there was no physical violence between them.

The victim called defendant two days after the store parking lot

meeting. He suspected the call was being recorded and denied making 

threats toward her.

Defendant received his gun license in 2016 while living with the victim. 

They talked about his intention to buy a gun. In December 2017, after 

defendant bought the gun, he stored it in a locked box with the record of sale.

III. Rebuttal and Surrebuttal.

The prosecutor played a February 7, 2018 pretext phone call the victim 

made to defendant. In this call, the victim said she was scared because 

defendant pulled a gun on her and threatened to kill her. Defendant denied

knowing what she was talking about and said that, to move forward, she 

needed to return his stuff. Defendant accused Brandon of “run[ning] up on 

people with niggas with bats and, uh, get[ting] on the phone and talk[ing] 

reckless.” Defendant warned the victim not to talk “reckless” and to choose 

her words “a little bit better.” He invited the victim to dinner to talk, but she 

refused, asking how they could have dinner when he was threatening to kill 

her. He again denied knowing what she was talking about.

Defendant accused the victim of “lying to me the whole time” and 

“set[ting] me up” by having “[her] dude . . . come get me.” The victim denied 

this. She said that she had to get someone else to ask him to leave because 
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he was refusing to do so. Defendant warned her that Brandon was “ ’bout to 

be gone” and “[h]e’s gone.” Defendant asked if Brandon was “stayin’ over 

there.” Upset that the victim did not reach out to him after Brandon 

answered her phone, defendant said she was “lucky nothin’ happen [sic] right 

then . . . .” Defendant also told her, “He gettin’ at me through you.”

Defendant testified in surrebuttal that he did not know why the victim 

was scared. At the store parking lot, defendant relayed the message that if 

the victim’s boyfriend came to “see” or “kill” him, “he’s going to be gone.” He 

asked the victim if Brandon was staying with her because he believed she 

was lying when she said Brandon did not live with her. Defendant believed 

the pair began their relationship before he moved out. Defendant did not ask 

the victim to explain what she meant by saying he pulled out a gun and 

threatened to kill her. He told her to choose her words more carefully 

because he was frustrated and upset. He believed the call was being recorded 

or listened to by someone.

IV. Verdict, Sentencing and Appeal.

On August 28, 2019, the jury found as to count 1 that defendant was 

guilty of making a criminal threat and that he did not personally use a 

firearm but that he was armed with a firearm when committing the offense. 

As to count 2, the jury found defendant not guilty of false imprisonment but 

guilty of the lesser included offense of attempted false imprisonment. At 

sentencing, the court placed defendant on probation for three years subject to 

terms and conditions, including serving 180 days in county jail. On 

September 21, 2020, defendant appealed.

DISCUSSION

Defendant argues on appeal: (1) the court prejudicially misinstructed 

the jury on CALCRIM No. 1300 (“Criminal Threat”) because there was 
8

insufficient evidence to support it as given; (2) the court prejudicially erred in 

failing to sua sponte instruct on jury unanimity; (3) he received ineffective 

legal assistance when his attorney made “material misstatements” during 

summation (all capitalization and boldface omitted); and (4) newly amended 

section 1203.1 requires reducing his probationary term to two years. We 

address these arguments in turn.

I. No Prejudicial Error in Giving CALCRIM No. 1300.

Defendant argues the court’s giving of CALCRIM No. 1300, Criminal 

Threat, was prejudicial error because the evidence was insufficient to prove 

that (1) Brandon was a member of the victim’s “immediate family” for 

purposes of section 422 or that (2) the victim was reasonably in sustained 

fear for her immediate family’s safety. The following rules govern.

The trial court has a sua sponte duty to provide “proper instructions on 

all of the elements of the charged offenses.” (People v. Lewelling (2017) 16 

Cal.App.5th 276, 295.) An instruction is warranted where there is “some 

evidence in the record that, if believed by the jury, would sufficiently support 

the suggested inference.” (People v. Coffman and Marlow (2004) 34 Cal.4th 

1, 102.) “It is error to give an instruction which, while correctly stating a 

principle of law, has no application to the facts of the case.” (People v. Guiton

(1993) 4 Cal.4th 1116, 1129 (Guiton).) We review the propriety of a trial 

court’s instruction de novo. (People v. Cole (2004) 33 Cal.4th 1158, 1206.)
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A. Factual Background.

The challenged instruction, CALCRIM No. 1300, sets forth the 

elements of count 1, making a criminal threat (§ 422).3 This instruction4

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

the People must prove that: [¶] One, the defendant willfully threatened to 

unlawfully kill or unlawfully cause great bodily injury to [Jane Doe One] or 

members of complaining witness’s immediate family; [¶] Two, the defendant 

made the threat orally or by electronic device or in writing; [¶] Three, the 

defendant intended that his statement be understood as a threat and 

intended that it be communicated to [Jane Doe One]; [¶] Four, the threat was 

so clear, immediate, unconditional and specific that it communicated to [Jane 

Doe One] a serious intention and the immediate prospect that the threat 

would be carried out; [¶] Five, the threat actually caused [Jane Doe One] to 

be in sustained fear for her own safety or for the safety of her immediate 

family; and [¶] Six, [Jane Doe One’s] fear was reasonable under the 

circumstances. [¶] . . . [¶] Immediate family means any spouse, parents and 

3 “[T]o prove a violation of section 422, the prosecution must establish 

all of the following: (1) that the defendant ‘willfully threaten[ed] to commit a 

crime which will result in death or great bodily injury to another person,’ 

(2) that the defendant made the threat ‘with the specific intent that the 

statement . . . is to be taken as a threat, even if there is no intent of actually 

carrying it out,’ (3) that the threat . . . was ‘on its face and under the 

circumstances in which it [was] made, . . . so unequivocal, unconditional, 

immediate, and specific as to convey to the person threatened, a gravity of 

purpose and an immediate prospect of execution of the threat,’ (4) that the 

threat actually caused the person threatened ‘to be in sustained fear for his 

or her own safety or for his or her immediate family’s safety,’ and (5) that the 

threatened person’s fear was ‘reasonabl[e]’ under the circumstances.” (People 

v. Toledo (2001) 26 Cal.4th 221, 227–228.)

4 The trial court record frequently refers to the victim as “Jane Doe 

One” and the victim’s daughter as “Jane Doe Two.”
10

children, any grandchildren, grandparents, brothers and sisters related by 

blood or marriage or any person who regularly lives in the other person’s 

household or who regularly lived there within the prior six months.” (Italics 

added.)

During the jury instruction conference, defense counsel objected to the 

inclusion of the italicized language on the grounds that the victim’s fear “for 

the safety of her immediate family” was not at issue. The court responded 

that it believed the victim testified she feared for the safety of her daughter 

and, “[G]iven her testimony, I’ll go back and look at my notes, but I think this 

was within the scope of what she testified to.” Defendant never renewed his 

objection, and the instruction with the italicized language was given.

During summation, the prosecutor discussed each element of count 1,

explaining defendant made the criminal threat to the victim on February 5, 

2018, when “[h]e told her he was going to kill her. That’s a threat. He 

showed her a gun as he did so. He said, I want to kill you. I’m going to kill 

you. He threatened her more than one time with her life.” The prosecutor 

continued, “[I]t doesn’t really get more clear, immediate, unconditional, and 

specific than, I will kill you. I want to kill you.” Afterward, “she called the

family member first. She called her boyfriend first [before calling 911].” 

“And it actually caused her to be in sustained fear for her own safety or the 

safety of her immediate family. . . . [¶] . . . [¶] . . . [S]he didn’t go home. She 

sped out of the parking lot. She called 911. . . . [¶] . . . She stayed at her 

uncle’s house. . . . That is how frightened she was. That’s how seriously she 

took what the defendant said to her. [¶] And, of course, she was terrified for 

her child. Confronted with a man who is showing her a gun and telling her 

he was going to kill her. Yeah, she was frightened for her daughter.”
11

During deliberations, the jury sent a note to the court asking, “Is 

Brandon considered part of the family”? The court responded, “No.” A few 

hours later, the jury sent another note to the court, stating, “Penal code 422 

[¶] Immediate family item C page 2 see [and] return attached.” The court 

responded, “You must rely on testimony/evidence produced during the trial to 

determine who was and/or who was not living in the household for purposes 

of instruction 1300.”5 Eventually, the jury reached a verdict, finding 

defendant guilty of count 1 and finding not true the allegation that he 

personally used a firearm in committing the crime but true that he was 

armed in doing so.

Defendant moved for a new trial, arguing (inter alia) that the jury 

improperly convicted him under section 422 of making a criminal threat 

against the victim’s boyfriend, Brandon. Defendant submitted sworn 

declarations from juror Nos. 2 and 9, who asserted that they convicted 

defendant based upon a threat he made against Brandon and that the victim 

did not credibly testify that defendant was armed at the time. The court 

denied the motion and rejected the juror declarations, finding they contained 

mental processes that could not properly be considered.

B. Legal Analysis.

Defendant contends the evidence did not support the language in 

CALCRIM No. 1300 requiring the threat to have actually caused the victim 

to be in sustained fear for her own safety or the safety of her immediate 

family.

6 Defendant reasons that, one, the victim never testified his threat 

5 Defendant asserts that the court’s response to this jury question was 

erroneous but does not explain why. We therefore disregard his assertion.

6 In the standard CALCRIM No. 1300 instruction, the italicized 

language is optional, as indicated by the brackets: “The threat actually 

caused _____ <insert name of complaining witness> to be in sustained fear for 
12

caused her to be in sustained fear for her daughter’s safety and, two, there 

was no evidence Brandon was an immediate family member, meaning that he 

regularly lived with her within the prior six months. According to defendant,

the erroneous language contributed to the count 1 verdict. We conclude that 

even assuming error, there was no harm.

Initially, we agree the evidence is insufficient to prove that, based on 

defendant’s threat, the victim was reasonably placed in fear for her 

daughter’s safety. (People v. Cole, supra, 33 Cal.4th at p. 1206.) Section 422 

requires that “the threat must be communicated to the complaining witness 

and cause the complaining witness to be in a state of sustained fear. 

However, this threat, directed toward the complaining witness, must be to 

unlawfully kill or cause great bodily injury to either the complaining witness 

or his or her immediate family member.” (Ayala v. Superior Court (2021) 67 

Cal.App.5th 296, 303.) The only evidence at trial was that defendant pulled a 

gun from his pocket and, without pointing it at the victim, threatened to kill 

her. While the victim testified that she feared for her daughter’s safety, there 

was no evidence defendant threatened to harm her daughter, who was 

waiting in a nearby car.

Nonetheless, we conclude it is not reasonably probable the result would 

have been more favorable to defendant had the error not occurred. (Guiton, 

supra, 4 Cal.4th at p. 1130.) The California Supreme Court instructs, “In

determining whether there was prejudice, the entire record should be

examined, including the facts and the instructions, the arguments of counsel,

any communications from the jury during deliberations, and the entire

verdict. [Citation.] Furthermore, instruction on an unsupported theory is

(his/her) own safety [or for the safety of (his/her) immediate family].” 

(CALCRIM No. 1300.)
13

prejudicial only if that theory became the sole basis of the verdict of guilt; if

the jury based its verdict on the valid ground, or on both the valid and the

invalid ground, there would be no prejudice, for there would be a valid basis

for the verdict. We thus adopt the following test. . . . [T]he appellate court

should affirm the judgment unless a review of the entire record affirmatively

demonstrates a reasonable probability that the jury in fact found the

defendant guilty solely on the unsupported theory.” (Ibid.)

Here, ample evidence supported the prosecutor’s valid theory that 

defendant, armed with a gun, threatened to kill the victim in the store

parking lot on February 5, 2018, and thereby placed her in sustained fear for 

her own life. The victim testified to these precise facts, which were then 

corroborated by the recording of the 911 call she made just after the incident. 

Her daughter’s testimony was also aligned, as it confirmed the victim

returned to the car on February 5, after having what looked like a stressful 

interaction with defendant, and told her daughter that defendant pulled out a 

gun and threatened to kill her. As such, there was no prejudice, as we may 

assume the unsupported theory that the victim was in fear for her daughter’s 

safety was not “the sole basis of the verdict of guilt.” (Guiton, supra, 4 

Cal.4th at p. 1130; see People v. Penunuri (2018) 5 Cal.5th 126, 169 

[reviewing court will not overturn a jury verdict absent an affirmative 

showing of a reasonable probability the defendant was convicted on the 

invalid theory].)

This same record defeats defendant’s claim that the jury improperly 

convicted him of making a criminal threat against the victim’s boyfriend, 

Brandon. The prosecutor never raised this theory at trial.7 Further, in

7 As defendant mentions, the prosecutor referred to Brandon as the 

victim’s “family member” in summation. The prosecutor did so just one time, 
14

finding defendant guilty, the jury found true that he was armed while

committing the crime. The only evidence of defendant’s being armed was on 

February 5, 2018, in the store parking lot. The victim’s testimony, 

corroborated by the 911 call, made clear that defendant threatened to kill 

her, and no one else, on February 5. Thus, as before, the jury verdict stands

because defendant cannot affirmatively show a reasonable probability that he

was convicted on the invalid theory that he made the threat against Brandon. 

(Guiton, supra, 4 Cal.4th at p. 1130; People v. Penunuri, supra, 5 Cal.5th at p.

169.)

Finally, defendant’s attempt to rely on juror declarations to prove 

otherwise fails. The trial court found these declarations contained improper 

evidence relating to the jurors’ mental processes, which were inadmissible to 

impeach the verdict. Defendant makes no attempt to prove the court’s 

finding was erroneous. Nor could he. The California Supreme Court has long 

held that “ ‘ “[a] verdict may not be impeached by inquiry into the juror’s 

mental or subjective reasoning processes, and evidence of what the juror ‘felt’ 

or how he understood the trial court’s instructions is not competent. 

([Citations]; Evid. Code, § 1150, subd. (a).)” ’ ” (People v. Lindberg (2008) 45

Cal.4th 1, 53.) We thus agree with the court that the jurors’ declarations

should not be considered.

in explaining that after being threatened by defendant, the victim called

Brandon before she called the police. Yet, in explaining each element of 

count 1, the prosecutor made clear the criminal threat was directed at the 

victim, not Brandon. Moreover, when the jury asked the court during 

deliberations whether Brandon was the victim’s family member, the court 

responded, “No.” On this record, the court’s reference to Brandon as a “family 

member” could not have confused the jury while it was deliberating on 

count 1.
15

II. No Sua Sponte Duty to Instruct on Juror Unanimity.

“In a criminal case, ‘the jury must agree unanimously the defendant is 

guilty of a specific crime.’ ” (People v. Covarrubias (2016) 1 Cal.5th 838, 877–

878 (Covarrubias).) Defendant contends the court prejudicially erred in this 

case by failing to instruct on jury unanimity. He reasons that jurors could 

have found him guilty of making a criminal threat based on either a threat he 

made against the victim or a threat he made against Brandon. We consider 

de novo whether a unanimity instruction should have been given in a 

particular case. (People v. Hernandez (2013) 217 Cal.App.4th 559, 568.) 

Having done so, we reject his argument.

“ ‘[C]ases have long held that when the evidence suggests more than

one discrete crime, either the prosecution must elect among the crimes or the

court must require the jury to agree on the same criminal act.’ [Citation.] 

Yet ‘where the evidence shows only a single discrete crime but leaves room

for disagreement as to exactly how that crime was committed or what the

defendant’s precise role was, the jury need not unanimously agree on the

basis or, as the cases often put it, the ‘theory’ whereby the defendant is

guilty.’ [Citation.] ‘In deciding whether to give the instruction, the trial

court must ask whether (1) there is a risk the jury may divide on two discrete

crimes and not agree on any particular crime, or (2) the evidence merely

presents the possibility the jury may divide, or be uncertain, as to the exact

way the defendant is guilty of a single discrete crime. In the first situation,

but not the second, it should give the unanimity instruction.’ [Citation.]” 

(Covarrubias, supra, 1 Cal.5th at pp. 877–878.)

Our case comports with the second situation: The evidence merely

presents the possibility the jury was uncertain as to the exact way defendant 

was guilty of making a criminal threat. Indeed, the case built against 
16

defendant from start to finish was based on his threat directed at the victim,

to kill her. Defendant was charged with making a criminal threat against 

the victim; the victim testified unequivocally that defendant threatened her; 

and the prosecutor argued to the jury the basis for count 1 was the threat 

defendant made against the victim. Thus, while Brandon may have triggered 

the threat, he was not its target. Accordingly, the court was not required to 

give a unanimity instruction. (Covarrubias, supra, 1 Cal.5th at p. 878.)

Further weighing against the need for a unanimity instruction is the 

fact that the jury found defendant was armed while making the criminal 

threat. The only evidence at trial supporting this finding related to the 

February 5, 2018 incident at the store parking lot. There is no evidence of 

any threat being waged against Brandon during this incident. On the 

contrary, as explained ante, the evidence proved that on February 5, 2018, 

defendant showed the victim his gun and threatened to kill her. The jury’s 

verdict therefore implies jurors were not divided on the crime defendant 

committed. Rather, they agreed he made a criminal threat, while armed,

against the victim. Thus, no unanimity instruction was necessary. (See 

Covarrubias, supra, 1 Cal.5th at p. 878.)

III. No Ineffective Assistance of Counsel.

Defendant next argues that his attorney violated his right to effective 

assistance from counsel by making material misstatements in summation. 

Specifically, defendant faults his counsel for twice stating, “ ‘As soon as 

[defendant] moved out, Brandon moved in.’ ” According to defendant, his 

attorney’s statements “would have . . . misled [one or more jurors] in 

assessing whether or not Brandon was a member of [the victim’s] ‘immediate 

family’ ‘who within the prior six months, regularly resided in the household.’ 

(§ 422, subds. (a), (b).)” In addition, defendant contends—without any 
17

explanation—that his attorney’s statements served to lessen the 

prosecution’s burden of proof and erode jurors’ confidence in the strength of 

his case.

To prevail on a claim of ineffective assistance of counsel, the “defendant 

must show counsel’s performance fell below a standard of reasonable 

competence, and that prejudice resulted.” (People v. Anderson (2001) 25 

Cal.4th 543, 569.) “Prejudice” in this context occurs only where defense 

counsel’s deficient performance “ ‘so undermined the proper functioning of the 

adversarial process’ ” that the outcome cannot be deemed reliable. (People v. 

Kipp (1998) 18 Cal.4th 349, 366, quoting Strickland v. Washington (1984) 466 

U.S. 668, 686 (Strickland).)

Under this standard, defendant must overcome a strong presumption

that his counsel’s conduct was sound legal strategy or otherwise within the 

wide range of reasonable professional assistance. (People v. Bunyard (1988) 

45 Cal.3d 1189, 1215.) “Defendant’s burden is difficult to carry on direct 

appeal, as we have observed: ‘ “Reviewing courts will reverse convictions [on 

direct appeal] on the ground of inadequate counsel only if the record on 

appeal affirmatively discloses that counsel had no rational tactical purpose 

for [his or her] act or omission.” ’ [Citation.]” (People v. Lucas (1995) 12 

Cal.4th 415, 437 (Lucas).) Moreover, if “defendant has failed to show that the 

challenged actions of counsel were prejudicial, [we] may reject the claim on 

that ground without determining whether counsel’s performance was 

deficient.” (People v. Kipp, supra, 18 Cal.4th at p. 366.)

Here, the record does not disclose why defendant’s counsel twice stated 

that Brandon moved in as soon as defendant moved out. We therefore 

reverse only if there is no rational tactical reason for his counsel’s conduct. 

(Lucas, supra, 12 Cal.4th at p. 437.) This standard is not met here.
18

First, in light of the strong presumption of reasonableness attaching to 

the attorney’s actions, we conclude the challenged statements were fair 

comments on the evidence. (See People v. Ledesma (2006) 39 Cal.4th 641, 

748 [“mere circumstance that a different, or better, argument could have 

been made is not a sufficient basis for finding deficient performance”].) 

Although the victim did not testify that she regularly lived with Brandon, she 

did testify that soon after defendant left, “[Brandon] had stuff at our house, 

like jackets and sometimes shoes,” and sometimes stayed over for a few days.

Moreover, it cannot be said “no rational tactical reason” existed for 

defense counsel’s statements. (Lucas, supra, 12 Cal.4th at p. 437.) His 

defense was premised on the victim’s relationship with Brandon. Among 

other things, he claimed the victim lied about the fact that Brandon kicked 

him out of her house while armed with a gun and threatened to kill him if he 

bothered her again. Defendant also explained that when, during the pretext 

phone call, he told the victim Brandon was “going to be gone,” he meant that 

if Brandon came after him, defendant would respond. Given defendant’s 

testimony, his counsel had a tactical reason to point out that Brandon moved 

in with the victim around the same time defendant was moving out.

In any event, as mentioned, the Strickland standard has two prongs: 

deficient performance by counsel and prejudice. (People v. Kipp, supra, 18 

Cal.4th at p. 366.) Here, we presume the jury followed the court’s 

instructions that, one, “[n]othing that the attorneys say is evidence” and, two, 

the prosecution had the burden to prove the making of a criminal threat by 

proof beyond a reasonable doubt. (People v. Daveggio and Michaud (2018) 4 

Cal.5th 790, 853.) While defendant claims the jury likely held the prosecutor 

to a lesser burden based on his counsel’s statements, he offers no supportive 
19

evidence. Thus, even if we assume counsel misspoke, on this record there 

was no harm. (Strickland, supra, 466 U.S. at p. 686.)

IV. The three-year probationary period stands.

In supplemental briefing, defendant argues Assembly Bill No. 1950 

applies retroactively to his case and requires reducing his probationary term 

to two years. He is wrong.8

After sentencing, the Legislature passed Assembly Bill No. 1950, which 

amended section 1203.1 as of January 1, 2022, to limit to two years the 

maximum period of probation for most felonies. (§ 1203.1, subd. (a), as 

amended by Stats. 2020, ch. 328, § 2, No. 5B Deering’s Adv. Legis. Service, p. 

58.) However, there are exceptions to this limit, including where, as here, the 

underlying offense involves domestic violence. Specifically, the new version 

of section 1203.1 states that the “two-year probation limit in subdivision (a)

shall not apply to: [¶] (1) An offense listed in subdivision (c) of Section 667.5

and an offense that includes specific probation lengths within its provisions.

For these offenses, the court, or judge thereof, in the order granting

probation, may suspend the imposing or the execution of the sentence and

may direct that the suspension may continue for a period of time not

exceeding the maximum possible term of the sentence and under conditions

as it shall determine. All other provisions of subdivision (a) shall apply.” 

(§ 1203.1, subd. (l)(1), italics added.)

8 The parties agree the amended version of section 1203.1 applies 

retroactively as an ameliorative change in the law applicable to all nonfinal 

convictions on appeal. (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 

308.) We agree, too. (People v. Faial (2022) 75 Cal.App.5th 738, 743 

[“Appellate courts are so far unanimous in holding that Assembly Bill 1950 

applies retroactively to defendants who were serving a term of probation 

when the legislation became effective on January 1, 2021”].)
20

Here, defendant’s crimes are subject to a specific probation length of 

three years. Under Penal Code section 1203.097: “If a person is granted

probation for a crime in which the victim is a person defined in Section 6211

of the Family Code, the terms of probation shall include . . . : [¶] (1) A

minimum period of probation of 36 months, which may include a period of

summary probation as appropriate.” (§ 1203.097, subd. (a)(1).) Family Code

section 6211, in turn, defines “ ‘domestic violence’ ” as “abuse perpetrated 

against . . . : [¶] . . . [¶] (c) [a] person with whom the respondent is having or 

has had a dating or engagement relationship.” (Fam. Code, § 6211, subd. (c).) 

“Section 1203.097 applies to any person placed on probation for a crime if the

underlying facts of the case involve domestic violence, even if the statute 

defining the crime does not specifically refer to domestic violence.” (People v.

Cates (2009) 170 Cal.App.4th 545, 548.)

Applying this statutory scheme, defendant is subject to three years (36

months) of probation because he committed crimes of abuse against the

victim, a person with whom he had a dating relationship. (Pen. Code,

§§ 1203.1, subd. (l), 1203.097, subd. (a)(1); Fam. Code, § 6211, subd. (c).)

Assembly Bill No. 1950 thus provides no basis for reducing his probationary

term.

DISPOSITION

The judgment is affirmed.
21

_________________________

Jackson, P. J.

WE CONCUR:

_________________________

Simons, J.

_________________________

Wiseman, J.*

A161024/People v. Phillip Marte Rollins

* Retired Associate Justice of the Court of Appeal, Fifth Appellate 

District, assigned by the Chief Justice pursuant to article VI, section 6 of the 

California Constitution.