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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

PHILLI P MARTE ROLLINS,

Defendant and Appellant. A161024

(Contra Costa County Super. Ct. No. 0 51822048)

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

year s of probation , a condition of which wa s serving 180 days in jail . On

appeal, d efendant 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 charg ed 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 he r 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 tha t

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

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

the house and, l ater, threatened to kill the victim.

Another time, the couple argued in the living ro om until the victim

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

door and grabbed her arm

, pull ing her from the room. In doing so , the victim

tripped and hurt her ankle.

I n June 2017, the couple argued in the laundry room

. D efendant

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

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

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

right. Shortly t hereafter, 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 . T he victim was in

an other room. Bran d on 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 le ft , but he called

the victim later to arrange to collec t 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

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

asked him to have his mail forward ed , 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 i n early February 2018, defendant and the victim

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

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

Sunday, Brandon

, who was now dating the victim, answered he r phone and

said she was busy before h anging 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

p artially 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 ha d one

.4

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

leave the parking lot but co uld 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, wa s played a t trial

. In it, the victim reported me e t ing 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 tol d 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 d efendant

. She told the

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

her alone.

Police later interviewed defendant and search ed his house. They found

an unloaded firearm registered to defendant, two magazines with no

ammuni tion

, 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 “friend ly” roommates. In May 2017, the victim told5

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 stay ing 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 a gain he would be killed.

D efendant 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 the y took

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

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

.
H e 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 c alling. 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. A fter

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 lice nse in 2016 while living with the victim.

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

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 pull ed a gun on her and threaten ed to kill her. Defendant denied

know ing 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 cho o se

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.

Defenda nt 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 because7

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 getti n’ 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 v i ctim’s boyfriend came to “ see ” or “kill” him, “he’s going to be gone.” He

asked the victim if Br a nd o n was staying with her because he believed she

was lying when she s aid Br a nd o n did not live with her. Defendant believed

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

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

threatened to kill her. He told her to cho o se her words more carefully

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

or listened to by so meone

.
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 servi ng 180 days in county jail. On

September 21 , 2020, defendant appealed.

DISCUSSION

Defendant argues on appeal: (1) the court prejudic ially misinstructed

the jury on CALCRIM No. 1 3 00 ( “ Criminal Threat ” ) because there was8

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 as sistance when his attorney made “material misstatements” during

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

section 1203.1 requires reduc ing his probationary term to two years. We

address these argument s 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 erro r because the evidence was insufficient to prove

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

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.) A n 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.)9

A. Factual Background.

The challenged instruction, CALCRIM No. 1300

, set s forth the

elements of count 1

, making a criminal threat (§ 422). 3 T h is instruction 4

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 t hreat 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 fea r 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 fo r 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 t he 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 p erson’s

household or who regularly lived there within the prior six months

. ” (Italics

added.)

During the jury instruction conference, defense counsel object ed to the

inclusion of the italicized language on the ground s 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]iv en 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 renew ed his

objection

, and the instruction with the italicized language was given.

During summation, the prosecutor discussed each element of count 1

, explain ing 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.” Afterwa rd, “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 a sking, “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 testim ony/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 tha t 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. D efendant 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 credibl y 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 b e considered.

B. Legal Analysis.

Defendant contends the evidence did not suppor t 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 i nstruction, the italicized language is optional, as indicated by the brackets: “The threat actually
caused

_____ < insert name of complaining witness > to be in sustained fear for12

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 pr ior six months

. Accordi ng to d efendant

,
the erroneous language c ontributed to the count 1 verdict. We conclude that

even assuming error, there was no harm

.
I nitial ly , we agree the evidence is insufficient to prove that , based on

defendant’s threat, the victim was reasonably pl aced 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 eith er 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, t here

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].” ( CA LCRIM 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 wo uld 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

defend ant guilty solely on the unsupported theory. ” ( Ibid

. )

Here, ample evidence support ed 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 c onfirm ed the victim

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

interaction with defen dant

, and told her daughter that defendant pulled out a

gun and threatened to kill her

. As such

, there wa s 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 overtur n a jury verdict absent an affirmative

showing of a reasonable probability the defendant was convicted on the

invali d theory]

. )

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

convicted him of making a criminal threat against the vic tim’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

commi tting 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 stand s

because defendant cannot affirmative ly show a reasonable probability that he

was convicted on the invalid theory that he mad e the threat against Brandon

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

, 5 Cal.5 th at p.

169.)

Finally , d efendant’s attempt to rely on juror declarations to prove

otherwise fails. The trial court found these declarations contained impro per
evidence relating to the juror s ’ mental processes, which were in admissible to

impeach the verdict. D efendant 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 (200 8 ) 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 vic tim 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, w hen 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 c ontends the court prejudicially erred in this

case by failing to instruc t on jury unanimity. He reasons th at 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 b een 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 s ingle discrete crime but leaves room

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

defendan t ’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 mere ly

present s the possibility the jury was uncertain as to the exact way defendan t

wa s guilty of making a criminal threat. Indeed, the case built against16

defendant from start to fini sh was based on his threat directed at the victim

,
to kill he r

. 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. A ccordingly, the court w a s not required to

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

F urt her 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 wage d 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 a nd threat ened to kill her

. T h e jury’ s

verdict therefore implie s jurors w ere not di vided o n 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. ’ ” Accord ing 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 reside d in the household.’

(§ 422, subds. (a), (b).)” In addition, defendant contends

— without any17

explanation

— th at 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 as sistance 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

couns el’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 preju dicial, [we] may reject the claim on

that ground without determining whether counsel’s performance was

deficient.” ( People v. Kipp

, supra , 18 C al.4th at p. 366 .)

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

that Brandon moved i n as soon as defendant moved out. W e 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 attach ing 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

, arg ument could have

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

Although the victim di d not testif y that she regularly lived with Brandon, sh e
did testify that s oon after defendant left

, “[Brandon] had stuff at ou r 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

defen se counsel’s statements. ( Lucas, supra , 12 Cal.4th at p. 437.) Hi s
defense was premised on the victim’s relationship with Brandon. Among

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

him out of her house while armed with a gun and threaten ed 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 a round the s ame 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, w e presume the jury followed the court’s

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

the prosecution ha d 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 supportive19

evidence. Thus , even if we assum e 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 require s reduc ing his probationary term

to two years

. He is wrong. 8

A fter 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 pe riod 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 spec ific probation length of

three years. Under Penal Code s ection 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, def ines “ ‘ d omestic 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).)

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

underlying facts of the case involve domestic violence , ev en if the statute

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

Cates (2009) 170 Cal.App.4th 545, 5 48 .)

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

month s ) 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. C ode, § 6211, subd. (c).)

Assembly Bill No. 1950 thus provides no basis for reduc ing 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 Assoc iate Justice of the Court of Appeal, Fifth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.