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Filed 8/3/22 P. v. Newens 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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

(Butte)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

JOSHUA DANIEL NEWENS,

Defendant and Appellant.

C094163

(Super. Ct. No. 19CF06083)

A jury found defendant Joshua Daniel Newens guilty of two counts of robbery 

(Pen. Code, § 211—counts 1 & 2)

1 and four counts of criminal threats. (§ 422, subd. 

(a)—counts 3-6.) In a bifurcated proceeding, the trial court found true the enhancement 

allegations that defendant had suffered two prior strike convictions (§§ 667, subd. (d), 

1170.12, subd. (b)) and that defendant had suffered two prior serious felony convictions. 

1 Undesignated statutory references are to the Penal Code.
2

(§ 667, subd. (a).) The trial court ultimately granted defendant’s request to strike one of 

the prior strikes and both of the serious prior felony convictions. It then sentenced 

defendant to an aggregate prison term of 13 years four months, comprised of consecutive 

terms of varying lengths for each of defendant’s substantive offenses. 

Defendant argues on appeal that reversal and remand is required because: (1) the 

application of section 654 required the staying of two terms for which he received

consecutive sentences, and in light of the passage of Assembly Bill No. 518 (2021-2022

Reg. Sess.), remand is required for resentencing to allow the trial court to determine 

which terms to stay; (2) defendant is entitled to resentencing in light of the passage of

Assembly Bill No. 124 (2021-2022 Reg. Sess.) to allow defendant the benefit of changes 

made to section 1170; and (3) the trial court failed to conduct an ability to pay hearing 

before imposing “mandatory” fines and fees, in violation of the constitution as explained 

in People v. Dueñas (2019) 30 Cal.App.5th 1157. 

The People concede that the trial court erred in failing to stay two of the criminal 

threats terms under former section 654 and that remand for a full resentencing is required 

so that the trial court may elect which terms to stay in light of legislative amendments to 

section 654 vesting the court with new authority. The People further argue, and 

defendant accepts, that his remaining issues on appeal may be brought to the trial court’s 

attention at the resentencing hearing on remand. We accept the parties’ concession and 

will remand this matter for a full resentencing hearing.2 

2

In so doing, we note defendant may wish to focus his efforts vis-à-vis the statutory 

changes to section 1170 brought about by Senate Bill No. 567 (2021-2022 Reg. Sess.) 

(Stats. 2021, ch. 731, § 1.3), rather than Assembly Bill No. 124 (2021-2022 Reg. Sess.) 

(Stats. 2021, ch. 695, § 5.3), given that Senate Bill No. 567 bears the higher chapter 

number and thus controls over the earlier passed bill. (Gov. Code, §§ 9510, 9605, subd.

(b); In re Thierry S. (1977) 19 Cal.3d 727, 738-739.) 
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Under section 654, a defendant who violates multiple laws in a single course of 

action may be charged with and convicted of distinct crimes but sentenced for only one 

offense; sentence on the other offenses is imposed, but stayed. (People v. Sek (2022) 74 

Cal.App.5th 657, 673; People v. Mendoza (2022) 74 Cal.App.5th 843, 862.) Former 

section 654 required the trial court to impose a sentence based on the offense with the 

longest prison term. (Mendoza, supra, at p. 862; Sek, supra, at p. 673.) Assembly Bill 

No. 518 (Stats. 2021, ch. 441, § 1) amended section 654 to “remove[ ] the requirement to 

impose the longest prison term” (Sek, at p. 673) in order “to give trial courts discretion in 

selecting the punished offense for conduct punishable under multiple provisions of law.” 

(Mendoza, at pp. 861-862.) Section 654, subdivision (a) now provides: “An act or 

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

punished under either of such provisions, but in no case shall the act or omission be 

punished under more than one provision.” These amendments, which could result in the 

imposition of a shorter sentence, apply retroactively to defendant’s nonfinal judgment. 

(People v. Mani (2022) 74 Cal.App.5th 343, 379-380; Sek, at p. 673.)

Here, the parties agree that defendant made criminal threats against two different 

bank employees in furtherance of his robbing them. We concur with the parties that 

punishing defendant for both the criminal threats (counts 3 & 4) and the robbery counts 

effectuated by those criminal threats (counts 1 & 2) would run afoul of section 654’s 

prohibition on multiple punishment.3(People v. Mitchell (2016) 4 Cal.App.5th 349, 353-

354 [section 654 precludes punishment for both robbery and crimes incidental to and/or 

facilitating the robbery].) Moreover, we concur that it would be inappropriate for this 

court to stay criminal threats counts 3 and 4, as it is unclear what the trial court would do 

3 Here, defendant accomplished the robberies described in counts 1 and 2 by 

demanding money and verbally threatening that he had a bomb and was not afraid to kill 

everyone. 
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with its newfound discretion. Accordingly, we will vacate defendant’s sentence and 

remand this matter for the trial court to conduct a full resentencing wherein the court may

consider its sentencing choices anew, including which counts to stay in light of amended 

section 654. (See, e.g., People v. Buycks (2018) 5 Cal.5th 857, 893; People v. Jones

(2022) 79 Cal.App.5th 37, 46 [statutory changes to sections 1170, subdivision (b) and 

654 warrant a full resentencing hearing].)

DISPOSITION

Defendant’s sentence is vacated and the matter remanded for a full resentencing 

hearing consistent with this decision. The judgment of conviction is otherwise affirmed. 

 KRAUSE , J.

We concur:

 ROBIE , Acting P. J.

 HULL , J.