Filed 3/15/24 P. v. Moran CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

ANTHONY RAMIREZ 

MORAN,

Defendant and Appellant.

 B319525, B323135

 (Los Angeles County

 Super. Ct. No. TA148155)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Allen Joseph Webster, Jr., Judge. Reversed and 

remanded.

Patrick J. Hoynoski; California Appellate Project, Richard 

Lennon and Olivia Meme, 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, Scott A. Taryle and Daniel C. Chang, 

Deputy Attorneys General, for Plaintiff and Respondent.
2

I. INTRODUCTION

Defendant Anthony Ramirez Moran appeals from a 

judgment of conviction following a jury trial. He contends that:

(1) the trial court erred when it imposed a concurrent sentence on 

one of his counts of conviction, in violation of Penal Code1 section 

654; and (2) he is entitled to the ameliorative benefits of recent 

changes to the sentencing laws, specifically sections 654, 1170, 

and 1385. We reverse defendant’s sentence and remand for 

resentencing.

II. BACKGROUND

A. The Underlying Crimes

On January 31, 2019, defendant, who was then 23 years 

old, was riding as a passenger in a car when he stopped Rene 

Montalvo and asked for the location and the time. When 

Montalvo took his phone out of his pocket, defendant and another 

man got out of the car. The other man started punching 

Montalvo and defendant shot Montalvo beneath his left arm pit. 

Defendant and the other man then took Montalvo’s cell phone, 

which Montalvo had dropped on the ground.

B. Procedural History and Sentencing

As relevant for purposes of this appeal, on July 28, 2021, 

the Los Angeles County District Attorney charged defendant by 

amended information with attempted second degree robbery 

1 Further statutory references are to the Penal Code.
3

(§§ 664, 221, count 2) and assault with a semiautomatic firearm 

(§ 245, subd. (b), count 3).

2 The information also alleged certain 

sentencing enhancements. The jury found defendant guilty of 

counts 2 and 3 and found true a personal use of a firearm 

allegation and a great bodily injury allegation. (§§ 12022.5, 

subds. (a) and (d), 12022.7, subd. (a).)

On August 31, 2021, the trial court sentenced defendant to 

the upper term of nine years for count 3 and added three years 

for the great bodily injury allegation and four years for the 

personal use of a firearm allegation, for a total sentence of 16 

years in state prison. For count 2, the court sentenced defendant 

to the upper term of three years, to be served concurrently with 

the sentence for count 3. The court stayed the personal use of a 

firearm allegation for count 2 pursuant to section 654. Defendant

timely appealed.

III. DISCUSSION

A. Section 1170

Defendant contends that because his conviction is not yet 

final, he is entitled to retroactive application of Senate Bill 

No. 567, which, effective January 1, 2022, made certain 

ameliorative changes to section 1170, subdivision (b). (Stats. 

2021, ch. 731, § 1.3.) Specifically, section 1170, subdivision (b) 

now makes “the middle term the presumptive sentence for a term 

of imprisonment unless certain circumstances exist” and creates 

a “presumption in favor of a low prison term when a defendant is 

2 The District Attorney also charged defendant with three 

other counts, for which the jury returned verdicts of not guilty.
4

under 26 years of age at the time of the offense. [Citations.]” 

(People v. Flores (2022) 73 Cal.App.5th 1032, 1038.)

The Attorney General concedes that defendant is entitled to 

retroactive application of Senate Bill No. 567, and we agree. 

(People v. Jones (2022) 79 Cal.App.5th 37, 45 (Jones).) The 

parties also agree that a remand for resentencing is appropriate.

B. Section 654

Defendant next contends that the trial court erred when it 

imposed the sentence for count 2 to run concurrently with the 

sentence for count 3, in violation of section 654, which prohibits 

the imposition of more than one sentence for the same crime. 

(§ 654.) He also argues that he is entitled to resentencing under 

newly enacted Assembly Bill No. 518, which amended “section 

654, subdivision (a) to provide, in pertinent part: ‘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.’ (Italics added.) Previously, where . . . 

section 654 applied, the sentencing court was required to impose 

the sentence that ‘provides for the longest potential term of 

imprisonment’ and stay execution of the other term. (. . . § 654, 

former subd. (a).) As amended by Assembly Bill [No.] 518 . . . 

section 654 now provides the trial court with discretion to impose 

and execute the sentence of either term, which could result in the 

trial court imposing and executing the shorter sentence rather 

than the longer sentence.” (People v. Mani (2022) 74 Cal.App.5th 

343, 379.)
5

The Attorney General concedes that the trial court erred in 

imposing a concurrent sentence on count 2. He also concedes 

that defendant is entitled to retroactive application of Assembly 

Bill No. 518. (See Jones, supra, 79 Cal.App.5th at p. 45.) The 

concessions are appropriate. Attempted robbery and assault of 

the same victim during the robbery share the same intent and 

thus cannot be punished separately. (In re Henry (1966) 65 

Cal.2d 330, 331; see People v. Mitchell (2016) 4 Cal.App.5th 349, 

354 [“It has long been recognized that where a defendant is 

convicted of robbery and other crimes incidental to the robbery 

such as assault, section 654 precludes punishment for both 

crimes”].) Accordingly, the court erred when it imposed a 

concurrent sentence on count 2. It should instead have stayed 

that sentence pursuant to section 654 as it existed at that time. 

(People v. Dydouangphan (2012) 211 Cal.App.4th 772, 779.)

Despite these concessions, the Attorney General maintains

that a remand for the trial court to exercise its discretion under 

section 654, subdivision (a) is unnecessary because the record 

“‘“clearly indicate[s]”’” that the court would have reached the 

same conclusion—choosing the assault with a semiautomatic 

firearm conviction as the punishable offense—even if it had been 

aware of its discretion. We are already remanding for a full 

resentencing, however, so we need not attempt to decide whether 

the trial court would reach the same conclusion. The trial court 

will be able to decide for itself. (See People v. Valenzuela (2019) 7 

Cal.5th 415, 424–425 [“the full resentencing rule allows a court to 

revisit all prior sentencing decisions when resentencing a 
6

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

supra, 79 Cal.App.5th at p. 46.)3

IV. DISPOSITION

The sentence is vacated and the matter remanded to the 

trial court for a full resentencing consistent with this opinion.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KIM, J.

We concur:

BAKER, Acting P. J.

MOOR, J.

3 Defendant also contends that we should direct the trial 

court, on remand, “to consider the amendments to [section] 1385 

in deciding whether to dismiss any or all of [defendant’s 

sentencing] enhancements[.]” We disagree. The court is capable 

in the first instance of exercising its sentencing authority without 

any such direction.