1

Filed 5/24/22

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

LEONARD CHARLES JONES,

Defendant and Appellant.

A160328

(Alameda County Super. Ct.

No. H56669)

A jury convicted defendant Leonard Jones of attempted murder and 

related charges and enhancements. The trial court sentenced him to 59 years 

in prison. On appeal, Jones argues (1) a jury instruction on eyewitness 

identification evidence rendered his trial fundamentally unfair in violation of 

due process, (2) the court erred by denying his Pitchess1 motion to discover 

information in police personnel files, and (3) the case should be remanded for 

resentencing. The Attorney General agrees a remand for resentencing is 

required in light of legislation that took effect after Jones’s sentencing 

hearing. In the unpublished portion of this opinion, we reject Jones’s 

challenges to his convictions. But as we explain in the published portion of

* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this 

opinion is certified for publication with the exception of parts I.A.3., I.B., 

II.A., and II.B.

1 Pitchess v. Superior Court (1974) 11 Cal.3d 531.
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the opinion, we agree with the parties as to the impact of the new legislation. 

We therefore will remand for resentencing.

I. BACKGROUND

The charges against Jones arose from a shooting that took place in the 

parking lot of a San Leandro apartment complex on the evening of June 16, 

2013. Jones’s defense at trial was that he was misidentified and was not the 

shooter.

A. The Prosecution’s Case

1. Background: Events Prior to the Shooting

In 2013, 16-year-old P.T. lived in the complex with her aunt. Jones’s 

sister, Lyndetta Jones, also lived in the complex, and Jones sometimes visited 

the property.

P.T. testified she had two interactions with Jones at the apartment 

complex prior to the date of the shooting. On the first occasion, Jones

approached P.T. in the parking lot and asked for her name. Because P.T. did

not know Jones and was not interested in him, she gave him a fake name, 

“Nancy.”

On the second occasion, which was about a week before the shooting, 

Jones tried to ask P.T. out. She told him to leave her alone and that she had 

a boyfriend. Jones persisted, and he and P.T. began cursing at each other. 

Jones then pulled out a gun, pointed it at P.T., and told her she should not 

curse at him or she would see what happens.

2. The Shooting

On June 16, 2013, around 9:00 p.m., 22-year-old Gbessaykai Massaquoi 

was with P.T. in his two-door Honda Civic hatchback at the San Leandro 

Marina. Massaquoi was smoking marijuana. P.T. and Massaquoi were 

friends.
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Massaquoi then drove to Hayward and picked up three other friends, 

22-year-old Najeem Mirzada, 21-year-old Sandip Prasad, and 18-year-old 

Cedric Sallie. P.T. sat in the front passenger seat, and Massaquoi’s three 

other friends sat in back.

Massaquoi drove the group back to San Leandro to drop P.T. off at her 

home. He dropped her off at a liquor store near the apartment complex, 

rather than at the complex. Massaquoi testified that he dropped P.T. off 

there only because it was convenient and because P.T. told him to. P.T. 

testified Massaquoi dropped her off there so that her aunt would not see her 

hanging out with an adult man.

After P.T. got out of the car, Massaquoi saw a man walking quickly 

behind her while holding a paper bag that appeared to contain a bottled 

drink. Massaquoi described this male as a fit Black man, five feet nine

inches to five feet 10 inches tall, with short hair, and wearing a white shirt 

and white pants. Cedric Sallie described the man as Black, six feet tall with 

short hair, and no facial hair, and weighing 160 to 170 pounds. Sandip 

Prasad, who had moved to the front seat when P.T. got out of the car,

described the African-American man following P.T. as 25 to 30 years old, six 

feet tall and 160 pounds, with short curly hair, and wearing a white tank top 

with dark jeans. Najeem Mirzada described the fit man following P.T. as 

Black, about six feet to six feet two inches tall, with short hair and in his mid20’s, and wearing a white shirt and light-colored baggie jeans.

P.T. testified Jones was the man following her. Jones came up from 

behind her and got close to her side, about a foot away, and tried talking to 

her. However, given what had happened between them previously, P.T. was 

nervous, scared, walking fast, and not paying attention to Jones’s words. 

P.T. had testified at the preliminary hearing that Jones walked behind her.
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Massaquoi never saw P.T. turn around and look at the man.

Massaquoi testified that the man started out about 14 feet behind P.T., and 

eventually closed the gap to about six to seven feet.

Because Massaquoi believed the man was following P.T., he made a 

U-turn and drove into the apartment complex parking lot, stopping next to 

P.T. and asking her if she was okay. Massaquoi testified that P.T. looked 

scared and did not reply as she kept walking. P.T. testified that she replied 

“ ‘yes’ ” to Massaquoi’s request that she call him after she got to her 

apartment.

After P.T. walked out of view, the man who had been following her 

pulled out a black gun, approached the Honda, and asked if they had a 

problem. Massaquoi’s window was halfway down, and he responded he was 

“ ‘just trying to make sure if she’s okay.’ ” The man replied, “ ‘Oh, yeah I 

know Nancy,’ ” and told them to “bounce” or leave, in an angry tone. 

Massaquoi put the car in reverse and heard five to six gunshots. A bullet 

shattered the car window, and Massaquoi was hit in the ankle and forearm. 

Massaquoi was able to drive to a gas station, where he and Prasad switched 

seats. Prasad then drove to a hospital.

A resident of the complex, Olayo Maradiaga, arrived home and was 

outside his apartment when he saw a Black man arguing with people in a 

car. The man fired three or four shots at the car and ran away. Maradiaga 

told officers he would not be able to identify the shooter because he had been 

very far away (about 60 meters) and it was already nighttime.

Heather Tackett, the property manager for the apartment complex and 

a resident there, was in her apartment on the evening of June 16, 2013, and 

heard gunshots outside. She called 911 and looked out through the blinds on 

her living room window. She saw someone running through the parking lot. 
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Tackett recognized the man as the brother of resident Lyndetta Jones

(although she did not know his name). Tackett had interacted with him on 

about five occasions. Tackett told the 911 operator that she saw a man who 

“ ‘looked like’ ” the brother of one of her residents.

3. The Lineups and Witness Identifications

Sergeant Robert Young of the Alameda County Sheriff’s Department 

conducted a photo lineup on June 17, 2013, the day after the shooting. In the 

lineup, which another officer had prepared, Jones was the number five photo 

in the set of six photos. P.T. identified number five, Jones, as the man who 

had followed her the previous evening. She did not see that person shoot a 

gun.

The four men who were in Massaquoi’s car at the time of the shooting—

Massaquoi, Sallie, Prasad, and Mirzada—were shown the same photo lineup

on June 17, 2013, the day after the shooting. They did not identify any of the 

men in the photo lineup as the shooter. When Sergeant Young asked which 

of the people in the lineup looked “ ‘the closest’ ” to the person who shot into 

the car, Massaquoi chose photo numbers three and six.

Sergeant Young later received a more recent booking photo of Jones

and thought he looked “completely different” from the photo used in the 

June 17 lineup. He used this photo to create a second lineup, this time 

placing Jones’s photo in position number one. Jones was the only person who 

appeared in both the first and second photo lineups.

On July 28, 2013, Sergeant Young met the occupants of the Honda at a 

Starbucks coffee house to show them the second photo lineup. Massaquoi 

selected photo number one (Jones). In August 2014, Massaquoi told a deputy 

district attorney that he chose photo number one on July 28, 2013, because it 

“looked the most like” the shooter. Massaquoi also told the deputy district 
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attorney he was “not very confident” in his selection. At the preliminary 

hearing in September 2014, Massaquoi did not identify Jones as the shooter.

At trial, however, Massaquoi identified Jones as the shooter. He also 

testified he was very confident in his July 28, 2013 selection of Jones’s photo 

as the photo of the man who shot him. He stated he had been unable to 

identify Jones at the preliminary hearing because of differences in Jones’s 

facial hair.

As for the other men in the car, Sandip Prasad made a “partial 

identification” at the second photo lineup, stating, “ ‘The person that shot my

friend looked like number 1 [the photo of Jones], but with darker facial hair 

on the night of the shooting.’ ” Prasad did not identify Jones in court. At the

Starbucks photo lineup, Cedric Sallie was unable to identify anyone other 

than to say that the man in photo five had “similar hair” to the shooter. 

Sallie could not identify Jones in court. Najeem Mirzada did not identify 

Jones at the Starbucks photo lineup or in court.

On July 30, 2013, Heather Tackett participated in a photo lineup. She

pointed to Jones’s photo and told police, “ ‘This is the person I saw.’ ” Tackett 

also identified Jones at trial as the man she saw running away from the area 

of the gunshots on the evening of June 16, 2013.

On July 31, 2013, Olayo Maradiaga participated in a photo lineup and 

picked out Jones’s photo, stating he was “ ‘not a hundred percent sure’ ” 

because the shooter had been “ ‘very far away from him.’ ” Maradiaga 

testified both that he assumed, and did not assume, that the police had a 

suspect when he looked at the photo lineup. He did his best to choose the 

photo of the person “who looked the most like the shooter.” Maradiaga could 

not identify Jones at trial.
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B. The Defense Case

As noted, Jones’s defense was misidentification. Dr. Mitchell Eisen 

testified as an expert in witness memory. Dr. Eisen testified as to various 

factors that can affect the reliability of eyewitness identifications. As to the 

relationship between a witness’s confidence in making an identification and 

the accuracy of that identification, Dr. Eisen testified: “We know that when 

somebody makes a choice, if it’s a fair and unbiased task, that confidence at 

the time of choosing is generally related to accuracy. It’s not perfect, it’s not 

diagnostic, but it’s generally a positive relationship, as well as speed in 

choosing. [¶] However, once you get—in addition to the caveats I gave you if 

it’s an unfair task or if there’s problems with the task that excuse it, more 

importantly, once you get outside of that box, once you get outside of that 

moment of choosing, then confidence isn’t related to accuracy at all.” 

Dr. Eisen later reiterated: “[I]t turns out confidence at the time of the ID 

when it’s a fair task is a decent indicator of accuracy, but then confidence is 

totally unrelated to accuracy once you get outside of that box.”

Jones’s sister Lyndetta Jones lived at the apartment complex in June 

2013, and Jones visited her a few times a week. On the evening of the

shooting, June 16, Ms. Jones arrived home from work as early as 7:45 p.m. 

and as late as around 8:30 p.m. She did not see Jones that night. Ms. Jones 

heard gunshots and went outside to see what had happened.

Jones’s friend Shanay Mallory lived down the street from the

apartment complex, and Jones visited frequently in 2013. Mallory did not 

see Jones on the day of the shooting.

A defense investigator took photos toward the parking lot from the 

window of the apartment where Tackett had lived at the time of the shooting. 

He was unable to see the facial features of people standing about 90 feet 

away at night.
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C. Procedural Background: The Charges, Verdicts, and Sentence

An information filed in October 2014 charged Jones with four counts of 

attempted murder (counts 1–4; Pen. Code,2 §§ 187, subd. (a), 664), i.e., one 

count pertaining to each of the four people in the car at the time of the 

shooting—Massaquoi, Sallie, Prasad, and Mirzada. The information also 

charged Jones with four counts of assault with a semiautomatic firearm 

(counts 5–8; § 245, subd. (b)) (as to the same four people), one count of 

shooting at an occupied vehicle (count 9; § 246), and one count of being a felon 

in possession of a firearm (count 10; § 29800, subd. (a)(1)). The information 

alleged as to the attempted murder counts that Jones personally used and 

intentionally discharged a firearm (§§ 12022.5, subd. (a), 12022.53, subds. (b), 

(c)), and as to the assault charges that he personally used a firearm 

(§ 12022.5, subd. (a)). The information alleged Jones had a prior serious 

felony conviction (§ 667, subd. (a)(1))—a 2004 conviction for carjacking—that 

qualified as a “strike” (§§ 667, subd. (e)(1), 1170.12, subd. (c)(1)), and for 

which he had served a prison term (§ 667.5, former subd. (b)).

In February 2016, the jury found Jones guilty of the attempted murder 

of Massaquoi as charged in count 1 and found true the associated firearm 

enhancements. The jury found Jones not guilty of the attempted murders of 

Sallie, Prasad, and Mirzada as charged in counts 2 through 4. The jury found 

Jones guilty of all four counts of assault with a semiautomatic firearm 

(counts 5 through 8) and the firearm enhancements for those counts, as well 

as the count 9 charge of shooting at an occupied vehicle and the count 10 

charge of being a felon in possession of a firearm. Jones waived his right to a 

jury trial on the prior conviction allegation, and the court found the 

2 Undesignated statutory references are to the Penal Code.
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allegation true. The record does not reflect that the court addressed the prior

prison term enhancement allegation.

On December 16, 2019, nearly four years after the jury verdict, Jones, 

now represented by a different attorney, filed a motion for new trial. On 

February 28, 2020, the court denied the motion for new trial and sentenced 

Jones to 56 years in prison, with credit for 2,398 days of actual time served, 

plus additional conduct credit. Jones appealed.

In April 2020, the court filed amended minutes and an amended 

abstract of judgment revising its sentencing calculations and reflecting that it

had sentenced Jones to 59 years in prison, determined as follows: On the

count 1 attempted murder conviction (§§ 187, subd. (a), 664), the court

imposed the upper term of nine years, doubled to 18 years because of Jones’s 

prior strike (§§ 667, subd. (e)(1), 1170.12, subd. (c)(1)). As to its selection of 

the upper term for count 1, the court had identified several aggravating 

factors at the February 2020 sentencing hearing: (1) the crime involved great 

violence and the threat of great bodily harm; (2) Jones used a weapon during 

the commission of the crime; (3) the victim (Massaquoi) was particularly 

vulnerable; (4) Jones had engaged in violent conduct and posed a serious 

danger to society; (5) he had served a prior prison term; and (6) he was on 

parole when he committed the present crime. The court stated there were no 

factors in mitigation.

The court imposed a consecutive 20-year term for the count 1 

enhancement that during the commission of the attempted murder Jones

personally and intentionally discharged a firearm (§ 12022.53, subd. (c)). As 

to the convictions in counts 6 through 8 for assault with a semiautomatic 

firearm, the court imposed consecutive terms of four years each (§ 245, 

subd. (b)) (one-third of the middle term, doubled due to the prior strike), with 
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consecutive terms of 16 months (one-third of the middle term) on the 

attendant gun-use enhancements (§ 12022.5, subd. (a)). The court imposed a 

consecutive five-year term for Jones’s prior serious felony conviction (§ 667, 

subd. (a)(1)).3 As to the remaining counts of conviction (counts 5, 9, and 10), 

the court imposed middle terms but stayed them pursuant to section 654.

II. DISCUSSION

A. The Inclusion of Witness Certainty as a Factor in the Instruction 

on Eyewitness Identification Evidence Did Not Violate Jones’s 

Due Process Rights

The trial court instructed the jurors with a version of CALCRIM 

No. 315, which listed 14 factors they should consider when evaluating 

eyewitness identification evidence. One of the factors was: “How certain was 

the witness when he or she made an identification?”4

3 The minute order and abstract of judgment incorrectly state this fiveyear term was imposed pursuant to section 667.5, subdivision (b); the fiveyear term for a prior serious felony conviction is authorized by section 667, 

subdivision (a)(1). We will direct that, if the superior court again imposes 

this five-year term on resentencing, the abstract of judgment should reflect 

that the basis for the term is section 667, subdivision (a)(1).

As noted, the information did also allege that Jones had served a prior 

prison term, which would have triggered a one-year enhancement under 

section 667.5, former subdivision (b). That enhancement was not imposed

here, and the prior prison term Jones served for his 2004 carjacking 

conviction no longer provided a basis for a section 667.5, subdivision (b) 

one-year term by the time of Jones’s February 2020 sentencing. (See § 667.5, 

subd. (b), as amended by Stats. 2019, ch. 590, § 1 [authorizing additional 

one-year term only where defendant’s prior prison term was for a sexually 

violent offense].)

4 The instruction stated: “You have heard eyewitness testimony 

identifying the defendant. As with any other witness, you must decide 

whether an eyewitness gave truthful and accurate testimony. [¶] In 
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Jones contends that, by instructing the jury to consider witness 

certainty in assessing eyewitness identification evidence, the court rendered 

his trial fundamentally unfair and thus violated his due process rights. He 

argues the instruction misleadingly suggests a witness’s certainty in making 

an identification is correlated with the accuracy of the identification. We find 

no due process violation on this record.

In People v. Lemcke (2021) 11 Cal.5th 644, 646 (Lemcke), our Supreme 

Court rejected a similar due process claim arising from CALCRIM No. 315. 

The court outlined the governing standard: “ ‘The touchstone of due process 

is fundamental fairness.’ [Citations.] A jury instruction may ‘ “so infuse[] the 

trial with unfairness as to deny due process of law.” ’ [Citation.] However, 

‘ “not every ambiguity, inconsistency, or deficiency in a jury instruction rises 

to the level of a due process violation. The question is ‘ “whether the ailing 

evaluating identification testimony, consider the following questions: [¶] Did

the witness know or have contact with the defendant before the event? 

[¶] How well could the witness see the perpetrator? [¶] What were the 

circumstances affecting the witness’s ability to observe, such as lighting, 

weather conditions, obstructions, distance, and duration of observation? 

[¶] How closely was the witness paying attention? [¶] Was the witness under 

stress when he or she made the observation? [¶] Did the witness give a 

description and how does that description compare to the defendant? [¶] How 

much time passed between the event and the time when the witness

identified the defendant? [¶] Was the witness asked to pick the perpetrator 

out of a group? [¶] Did the witness ever fail to identify the defendant? [¶] Did

the witness ever change his or her mind about the identification? [¶] How 

certain was the witness when he or she made an identification? [¶] Are the 

witness and the defendant of different races? [¶] Was the witness able to 

identify the defendant in a photographic or physical lineup? [¶] Were there 

any other circumstances affecting the witness’s ability to make an accurate 

identification? [¶] The People have the burden of proving beyond a 

reasonable doubt that it was the defendant who committed the crime. If the 

People have not met this burden, you must find the defendant not guilty.” 

(Some punctuation omitted.)
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instruction . . . so infected the entire trial that the resulting conviction 

violates due process.” ’ ” ’ [Citation.] ‘ “It is well established that the 

instruction ‘may not be judged in artificial isolation,’ but must be considered 

in the context of the instructions as a whole and the trial record.” ’ 

[Citations.] ‘ “If the charge as a whole is ambiguous, the question is whether 

there is a ‘ “reasonable likelihood that the jury has applied the challenged 

instruction in a way” that violates the Constitution.’ ” ’ ” (Lemcke, at p. 655.)

As to the challenge in that case, the Lemcke court rejected the claim by 

a defendant there (Rudd) that the witness certainty factor in CALCRIM 

No. 315 violated his due process rights. (Lemcke, supra, 11 Cal.5th at p. 646.) 

The court determined that, when considered in light of the trial record as a 

whole (including expert testimony presented by the defense and other 

instructions given to the jury), inclusion of the certainty factor in CALCRIM 

No. 315 did not render the defendant’s trial fundamentally unfair. (Lemcke,

at pp. 646–647, 661; see People v. Wright (2021) 12 Cal.5th 419, 452–453

[applying Lemcke and rejecting due process challenge to analogous 

instruction, CALJIC No. 2.92].)

Although it found no due process violation, the Lemcke court concluded

that reevaluation of “the certainty instruction” was warranted, because 

empirical research shows that “ ‘eyewitness confidence is generally an 

unreliable indicator of accuracy.’ ” (Lemcke, supra, 11 Cal.5th at p. 647.) The 

court referred the issue to the Judicial Council and its Advisory Committee 

on Criminal Jury Instructions “to evaluate whether or how the instruction 

might be modified to avoid juror confusion regarding the correlation between 

certainty and accuracy.” (Ibid.) Finally, the Supreme Court in Lemcke, 

acting pursuant to its supervisory powers, directed that “until the Judicial 

Council has completed its evaluation, trial courts should omit the certainty 
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factor from CALCRIM No. 315 unless the defendant requests otherwise.” 

(Id. at pp. 647–648.)5

Here, we conclude that, for many of the same reasons present in 

Lemcke, the inclusion of the certainty factor as one of 14 listed in CALCRIM 

No. 315 did not render Jones’s trial fundamentally unfair or violate his due 

process rights.6 As outlined by the Lemcke court, the defendant there argued 

that “instructing the jury to consider an eyewitness’s level of certainty, 

without clarifying the limited correlation between certainty and accuracy, 

violates due process in two ways. First, the instruction ‘lowers the 

prosecution’s burden of proof’ by causing jurors to ‘equat[e] certainty with 

accuracy, when science establishes otherwise.’ Second, the instruction denies 

the defendant ‘a “meaningful opportunity to present a complete defense” ’ as 

to ‘why the identification was flawed . . . .’ ” (Lemcke, supra, 11 Cal.5th at 

p. 657.)

5 We note CALCRIM No. 315 was revised in March 2022 to include the 

certainty question in brackets, a bracketed admonition that a witness’s 

expression of certainty “may not be a reliable indicator of accuracy,” and a 

further set of bracketed factors for the jury to consider when evaluating the 

significance of the witness’s certainty, along with directions as to when each 

of these portions of the instruction should be given. (CALCRIM No. 315

(2022 ed.); id., Bench Notes.)

6 The Attorney General argues Jones forfeited his claim of instructional 

error because his trial counsel did not object to inclusion of the certainty 

factor in CALCRIM No. 315 or ask the court to modify the instruction. (See 

People v. Sánchez (2016) 63 Cal.4th 411, 461–462 [defendant forfeited 

challenge by not requesting modification of analogous instruction, CALJIC 

No. 2.92].) But in light of the Supreme Court’s decision in Lemcke raising 

potential constitutional issues with the eyewitness identification instruction 

(depending on the record), we review the merits of Jones’s contention the 

instruction violated his constitutional rights on the record before us. (See 

§ 1259 [even absent trial objection, appellate court may review claim of 

instructional error that affects defendant’s substantial rights].)
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The Lemcke court rejected both arguments. (Lemcke, supra, 11 Cal.5th 

at pp. 657–660.) As to the burden of proof, the court noted “the instruction 

does not direct the jury that ‘certainty equals accuracy’ ” and does not “state 

that the jury must presume an identification is accurate if the eyewitness has 

expressed certainty.” (Lemcke, supra, at p. 657.) The instruction just lists 

the witness’s level of certainty as one of numerous factors the jury should 

consider when evaluating eyewitness testimony, with the jury free to 

determine what weight to give each factor. (Ibid.) These observations apply 

equally to CALCRIM No. 315 as given in this case.

The Lemcke court noted “the wording of the instruction might cause 

some jurors to infer that certainty is generally correlative of accuracy,” but 

the court emphasized the defendant “was permitted to present expert witness 

testimony to combat that inference.” (Lemcke, supra, 11 Cal.5th at pp. 657–

658.) Dr. Mitchell Eisen (the same expert who testified at Jones’s trial) 

testified in Lemcke “that the only time certainty may be useful in assessing 

accuracy is when the identification is made in close temporal proximity to the 

event and law enforcement has utilized nonsuggestive procedures. According 

to Eisen, ‘outside that window, . . . confidence is not related to accuracy in 

any regard.’ Eisen emphasized that in-trial identification testimony is 

particularly meaningless because it does not ‘reflect[] memory.’ Eisen also 

described the procedures law enforcement should follow to ensure an 

accurate identification and answered a series of hypothetical questions that 

were designed to show those procedures were not followed in this case.” (Id.

at p. 658.)

Also in support of its conclusion that CALCRIM No. 315 did not lower 

the prosecution’s burden of proof, the Lemcke court pointed to the language of 

that instruction and several other instructions given to the jury. CALCRIM 
15

No. 315 did not suggest the jury should ignore Eisen’s expert opinion on 

witness certainty, and in fact the jury “received a separate instruction on 

expert testimony (CALCRIM No. 332) directing that it ‘must consider th[ose] 

opinions.’ (Italics added.)” (Lemcke, supra, 11 Cal.5th at p. 658.) “The jury 

also received a general instruction on witness testimony explaining that 

‘[p]eople sometimes honestly . . . make mistakes about what they remember’

and that the jurors were responsible for ‘judg[ing] the credibility or 

believability of the witnesses.’ The jury ‘thus remained free to exercise its 

collective judgment to reject what it did not find trustworthy or plausible.’ ”

(Ibid.) Finally, the trial court in Lemcke “expressly directed the jury that

Rudd was presumed innocent, and that the prosecution had the burden of 

proving all elements of the crime beyond a reasonable doubt,” a point that 

was reiterated in CALCRIM No. 315 itself as to Rudd’s identity, with the 

instruction specifying: “ ‘The People have the burden of proving beyond a 

reasonable doubt that it was the defendant who committed the crime. If the 

People have not met this burden, you must find the defendant not guilty.’ ” 

(Lemcke, at p. 658.)

The same factors identified in Lemcke are present in this case, and we 

conclude the inclusion of the witness certainty factor in CALCRIM No. 315 

did not lower the prosecution’s burden of proof or otherwise violate due 

process here.7 Dr. Eisen testified at Jones’s trial (as he did in Lemcke) that, 

7 As to the defendant’s second due process argument in Lemcke—that 

CALCRIM No. 315 denied him the opportunity to present a complete defense 

on the issue of identity—the Supreme Court was unpersuaded. (Lemcke, 

supra, 11 Cal.5th at p. 660.) The court noted the defendant there “was 

permitted to put on a vigorous defense on the issue of identity,” including by 

presenting expert testimony, emphasizing that testimony in closing 

argument, and cross-examining the eyewitness about her identification and 
16

except in certain circumstances, a witness’s level of certainty is not related to 

accuracy. (Lemcke, supra, 11 Cal.5th at pp. 657–658.) And the instructions 

highlighted in Lemcke were given here, including (1) CALCRIM No. 332 

(directing the jury to consider the opinions of experts), (2) a general 

instruction on witness credibility (CALCRIM No. 226) that noted people 

sometimes make mistakes about what they remember, and emphasized the 

jury is responsible for assessing credibility, (3) an instruction stating Jones 

was presumed innocent and the prosecution had the burden to prove his guilt 

beyond a reasonable doubt (CALCRIM No. 220), and (4) the language in 

CALCRIM No. 315 itself that reiterated that point specifically as to identity, 

requiring proof beyond a reasonable doubt “that it was the defendant who 

committed the crime.”

Jones argues that, in contrast to Lemcke, the inclusion of the certainty 

factor in CALCRIM No. 315 did render his trial fundamentally unfair and 

thus violated his due process rights. He contends Dr. Eisen “testified less 

definitively” in his case than in Lemcke about the limited correlation of 

witness certainty and accuracy. We disagree. In both Lemcke and the 

present case, Dr. Eisen testified that a witness’s early expression of certainty 

is related to accuracy when the identification procedure is fair and unbiased. 

(Lemcke, supra, 11 Cal.5th at pp. 651–652, 658.) Dr. Eisen also testified

here, similar to his testimony in Lemcke, that certainty is not indicative of 

accuracy when there is a biased procedure or when time has passed since the 

the investigating officers about the lineup procedures. (Ibid.) Here, too, 

Jones was permitted to present expert testimony about witness identification; 

his counsel cross-examined witnesses about the identifications and the lineup 

procedures; and counsel argued the issue of identity to the jury. Jones does 

not appear to argue he was deprived of an opportunity to present a complete 

defense, and any such argument would fail.
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witness’s first identification, because of the “post identification feedback 

effect,” i.e., the bolstering of the witness’s confidence by the progress of the 

investigation (including in some cases the arrest or charging of a suspect) or 

by being told that he or she picked the right person. (Ibid.) We are not 

persuaded by Jones’s suggestion that fine distinctions in the wording used by 

Dr. Eisen in the two cases detracted from these fundamental points.

Jones also notes that, on cross-examination in the present case, the 

prosecutor asked Dr. Eisen about the factors listed in CALCRIM No. 315. 

Dr. Eisen stated the listed factors “are basically studied factors because 

they’re commonsensically related.” Dr. Eisen further stated: “This is what 

the Supreme Court decided in the ’70s, before a lot of this research, 

commonsensically jurors should consider when evaluating eyewitness 

testimony.” Jones is incorrect in suggesting Dr. Eisen’s descriptive 

statements about the factors listed in the pattern instruction somehow 

amounted to an endorsement of them. We do not agree that Dr. Eisen’s 

testimony here was less helpful to the defense than the testimony he 

provided in Lemcke, or that any distinctions between his testimonies on the 

two occasions resulted in a due process violation. The testimony in each case 

allowed the defense to “combat” the possible inference that “some jurors” 

“might” draw from CALCRIM No. 315 “that certainty is generally correlative 

of accuracy.” (Lemcke, supra, 11 Cal.5th at pp. 657–658.)

Jones’s remaining arguments are not persuasive. He contends the 

direction in CALCRIM No. 332 (an instruction cited in Lemcke) that the jury 

is to consider the opinions of experts served here to reinforce the allegedly 

lukewarm nature of Dr. Eisen’s testimony. As discussed, we disagree with 

Jones’s characterization of that testimony. Neither the expert testimony nor 
18

the instruction directing the jury to consider it supports his due process 

claim.

Jones also notes that the prosecutor in closing argument stressed P.T.’s 

and Tackett’s certainty in their identifications, along with Massaquoi’s 

positive identification in court. The prosecutor also mentioned CALCRIM 

No. 315’s certainty factor, along with several of the other factors listed in the 

instruction. Jones suggests this point was argued less forcefully by the 

prosecutor in Lemcke, but (as summarized by the Supreme Court) the 

prosecutor there too noted the sole eyewitness had been consistent in 

identifying the defendants, and pointed to several of the factors in CALCRIM 

No. 315, including the certainty factor. (Lemcke, supra, 11 Cal.5th at p. 652.)

Moreover, as the Attorney General notes, Jones’s trial counsel in his 

summation attacked the reliability of the identifications of Jones and

emphasized the instances where witnesses did not identify him. In this 

context and in light of the record as a whole, we do not agree with Jones that 

the arguably problematic certainty factor (again, one of 14 listed in 

CALCRIM No. 315 for the jurors to consider and weigh as they saw fit) 

infected the entire trial so as to render it fundamentally unfair.

Finally, Jones argues the questions from the jurors (asking for 

readback of P.T.’s and Tackett’s testimony) and the length of their

deliberations (which he calculates at 19 hours) suggest that the case was 

close and that witness certainty “likely played an important role” in the 

jurors’ decision. As the Attorney General notes and as Jones appears to 

acknowledge, the purported closeness of the identification issue would not on 

its own establish a violation of due process. In light of the factors we have 

discussed above—including Dr. Eisen’s testimony, the full set of instructions 
19

given to the jury, and the arguments of counsel—we conclude the inclusion of 

the certainty factor in CALCRIM No. 315 did not violate due process here.

B. Alleged Pitchess Error

Jones argues (1) the court erred by denying his pretrial motion for 

discovery of information in police personnel records pursuant to Pitchess, 

(2) the court erred by denying his new trial motion alleging in part that the 

pretrial Pitchess ruling was error, and (3) to the extent it would not have 

been futile for his trial counsel to renew the Pitchess motion during trial, his 

counsel provided ineffective assistance by failing to do so. We reject these 

arguments.

1. Additional Background

On November 16, 2015, prior to trial, Jones filed a Pitchess motion 

alleging intentional suggestiveness in the photo lineup procedures, through 

either words or actions, by Alameda County Sheriff’s Office Deputies Robert 

Young and Gustavo Mora. County counsel filed an opposition arguing the 

motion was overbroad and otherwise defective, including for failure to file a 

declaration showing good cause for the discovery (see Evid. Code, § 1043, 

subd. (b)(3)). Jones filed a supplemental motion and an accompanying 

declaration of counsel on January 27, 2016. Jones sought disclosure of 

information about “complaints from any and all sources relating to acts of 

violation of constitutional rights, fabrication of charges, fabrication of 

evidence, fabrication of reasonable suspicion and/or probable cause, illegal 

search/seizure; false arrest, perjury, and any other evidence of misconduct 

amounting to moral turpitude . . . .”

Jones alleged (in his initial motion and by incorporation in his 

supplemental motion) that Deputy Young conducted an unfairly suggestive 

second photo lineup with the four occupants of the car, where Jones was the 

only person to appear in both lineups. Jones also suggested improper 
20

influence was placed on Maradiaga, who said on the night of the incident that 

he would not be able to identify the shooter, but then identified Jones in a 

lineup six weeks later. Jones stated Deputy Young asked Deputy Mora to 

conduct the lineup with Maradiaga, who spoke Spanish.

In his supplemental motion, Jones included additional allegations 

about Young. Jones pointed to evidence Heather Tackett had stated (and 

testified at the preliminary hearing) that she made her observations from 

inside her apartment, but in an affidavit for a search warrant for DNA 

evidence, Deputy Young averred that Tackett went outside her apartment 

where she saw Jones, who then drove away in a car. Jones also stated that 

Young would testify Massaquoi had identified Jones at a lineup, but that 

Massaquoi denied having made an identification.

In his declaration in support of the supplemental motion, defense 

counsel stated it would be Jones’s position at trial that Deputy Young 

“conducted a lineup that was purposely suggestive.” But the declaration’s 

principal focus was a broader assertion that Deputy Young’s veracity was a 

significant issue in the case. In that regard, the declaration stated that a 

question at trial would be whether Young falsely represented that Massaquoi 

had identified Jones at the unrecorded second lineup, which Massaquoi 

denied having done. As another example of the importance of Deputy 

Young’s veracity, the declaration pointed to Young’s statement in his search 

warrant affidavit that Tackett was outside her apartment when she saw 

Jones and that she saw him drive away, a version of events that was 

inconsistent with Tackett’s prior testimony.8

8 Paragraphs 5–7 of the declaration set forth these allegations as 

follows: “5. A substantial issue in the case at bar is the veracity of Deputy 

Young. Specifically, at issue will be whether the Deputy falsely represented 
21

Counsel stated in his declaration that evidence of complaints against 

Deputy Young alleging a lack of truthfulness or fabrication of evidence was 

necessary for a proper defense because the evidence would help counsel 

(a) locate witnesses and other evidence that Young had a “character trait for 

a lack of truthfulness to show that he acted in conformity with that character 

trait,” (b) locate witnesses and other evidence that Young had a “character 

trait and propensity for fabricating or embellishing evidence, to show that he 

acted in conformity with that character trait in this case and/or acted 

consistently with that propensity,” (c) properly prepare a cross-examination 

of Young, an essential prosecution witness, with the goal of showing Young 

had “a morally lax character and a propensity to lie and fabricate evidence,” 

and (d) properly assess the credibility of Jones’s potential testimony and that 

of prosecution witnesses such as Tackett. The declaration focused solely on 

Deputy Young and did not include any allegations about Deputy Mora.9

the untap[ed] conversation with eye witness Mr. Massaquoi in which Deputy 

Young claims that Mr. Massaquoi positively identified defendant, and 

Mr. Massaquoi claims to have not done so. [¶] 6. Another specific instance of 

the importan[ce] of Deputy Young’s veracity arise[s] from his alleged false 

statements, written under penalty of perjury, in which he had factual 

assertions about the eye witness account of witness Heather Tackett. In his 

search warrant affidavit, Deputy Young claimed that Ms. Tacket[t] observed 

defendant from outside her residence and saw defendant drive away. 

Ms. Tacket[t] has testified inconsistently with these assertions by the deputy. 

[¶] 7. Defendant has pled not guilty, and has maintained his innocence. It 

will be the defense’s position at trial that Deputy Young conducted a lineup 

that was purposely suggestive and then misrepresented the statements made 

by the witness participants in that lineup. It will also be defendant’s claim at 

trial that Deputy Young’s statements in his affidavit describing 

Ms. Tacket[t]’s account of his identification were false.”

9 It appears the defense had narrowed its focus to Deputy Young by the 

time of the filing of the supplemental motion. The supplemental motion does 

in one spot reiterate the request from the initial motion seeking records about 
22

After hearing argument on the Pitchess motion, the court denied it 

without prejudice. At the hearing, the court and counsel focused on the 

instances of alleged misconduct highlighted by defense counsel in his 

supplemental papers, starting with Deputy Young’s alleged 

misrepresentation in the search warrant affidavit about what Tackett said 

about where she was standing when she saw Jones after hearing the 

gunshots. The court expressed the view that, because Young’s affidavit 

established probable cause to search even without the statements of Tackett, 

the officer may have been “somewhat negligent” at worst.

As to Deputy Young’s statement that Massaquoi had identified Jones in 

the unrecorded second lineup, defense counsel noted at the hearing that 

Massaquoi later told a deputy district attorney that he had not made a 

positive identification. Counsel also noted that at the preliminary hearing, 

Massaquoi did not identify Jones as the shooter. The court suggested 

Massaquoi’s failure to identify Jones (after having reportedly done so in the 

second lineup) might stem from fear of retaliation for testifying. The court 

also emphasized, however, that “[w]e don’t know what [Massaquoi is] going to 

say at trial.” In part for that reason, the court denied the Pitchess motion 

without prejudice.

In his new trial motion filed in December 2019, Jones argued in part 

that the court erred by denying his pretrial Pitchess motion for discovery of 

information from Deputy Young’s personnel file. Jones contended the court 

needed to “remedy that error” by conducting the in camera review it should 

have conducted pretrial and determining whether the defense “was 

Deputies Young and Mora, but the memorandum in support of the 

supplemental motion states that the initial motion was “denied” by the court 

and that Jones is now “seeking the same discovery with respect to Deputy 

Young.” (Italics added.)
23

prejudiced by that error.” At the hearing on the new trial motion, Jones’s 

counsel argued the pretrial Pitchess motion had sufficiently alleged officer 

misconduct to warrant in camera review. The court denied the new trial 

motion without comment.

2. Analysis

Pitchess establishes that “a criminal defendant [can] ‘compel discovery’ 

of certain relevant information in the personnel files of police officers by 

making ‘general allegations which establish some cause for discovery’ of that 

information and by showing how it would support a defense to the charge 

against him.” (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1018–1019 

(Warrick); see Pen. Code, §§ 832.7, 832.8; Evid. Code, §§ 1043–1045.) 

Pursuant to Pitchess discovery procedure, the moving party must file a 

written motion describing the type of records sought, supported by 

“[a]ffidavits showing good cause for the discovery or disclosure sought, setting 

forth the materiality thereof to the subject matter involved in the pending 

litigation and stating upon reasonable belief that the governmental agency 

identified has the records or information from the records.” (Evid. Code, 

§ 1043, subd. (b)(3).) “A motion for discovery of peace officer personnel 

records is addressed to the sound discretion of the trial court, reviewable for 

abuse.” (Alford v. Superior Court (2003) 29 Cal.4th 1033, 1039 (lead opn. of 

Werdegar, J.).)

To establish good cause for in camera review of an officer’s personnel 

records, “defense counsel’s declaration in support of a Pitchess motion must 

propose a defense or defenses to the pending charges. The declaration must 

articulate how the discovery sought may lead to relevant evidence or may 

itself be admissible direct or impeachment evidence [citations] that would 

support those proposed defenses. These requirements ensure that only 

information ‘potentially relevant’ to the defense need be brought by the 
24

custodian of the officer’s records to the court for its examination in chambers. 

[Citations.] [¶] Counsel’s affidavit must also describe a factual scenario 

supporting the claimed officer misconduct. That factual scenario, depending 

on the circumstances of the case, may consist of a denial of the facts asserted 

in the police report.” (Warrick, supra, 35 Cal.4th at pp. 1024–1025.)

“In other cases, the trial court hearing a Pitchess motion will have 

before it defense counsel’s affidavit, and in addition a police report, witness 

statements, or other pertinent documents. The court then determines 

whether defendant’s averments, ‘[v]iewed in conjunction with the police 

reports’ and any other documents, suffice to ‘establish a plausible factual 

foundation’ for the alleged officer misconduct and to ‘articulate a valid theory 

as to how the information sought might be admissible’ at trial. [Citation.] . . . 

What the defendant must present is a specific factual scenario of officer 

misconduct that is plausible when read in light of the pertinent documents.” 

(Warrick, supra, 35 Cal.4th at p. 1025.) “[A] plausible scenario of officer 

misconduct is one that might or could have occurred. Such a scenario is 

plausible because it presents an assertion of specific police misconduct that is 

both internally consistent and supports the defense proposed to the charges.

A defendant must also show how the information sought could lead to or be 

evidence potentially admissible at trial. Such a showing ‘put[s] the court on 

notice’ that the specified officer misconduct ‘will likely be an issue at trial.’ ” 

(Id. at p. 1026.)

Applying these standards here, we first conclude the court’s denial of in 

camera review was not an abuse of discretion as to Deputy Mora. Defense 

counsel’s Pitchess declaration did not allege any misconduct by Mora (or 

mention his name), and the memorandum in support of the supplemental 

Pitchess motion explained the motion was being renewed specifically as to 
25

Deputy Young. We reject the suggestion in Jones’s appellate briefs that the 

court should have reviewed Deputy Mora’s personnel file.

As to Deputy Young, to the extent counsel’s declaration broadly sought 

materials that could be used to impeach Young or challenge his veracity, that 

request does not, in our view, meet the good cause standard outlined in 

Warrick, which requires that requests for information from police personnel 

records be narrowly tailored to the specific officer misconduct alleged in the 

declaration, and in turn that the alleged misconduct must support the 

defense proposed to the charges. (Warrick, supra, 35 Cal.4th at pp. 1024–

1026.) Counsel’s declaration here did not propose a specific defense to the 

charges, stating generally that Jones had pleaded not guilty and maintained 

his innocence. Jones now argues on appeal that the requested materials 

“would have bolstered the defense that appellant was misidentified” and 

would have supported a defense effort to exclude identifications that resulted 

from allegedly faulty lineup procedures, but the declaration that was 

submitted to the trial court did not make that argument. We cannot fault the 

court for not adopting it.

As to alleged misconduct by Young, the declaration stated generally 

that it would be Jones’s position at trial that Young “conducted a lineup that 

was purposely suggestive” (without including details about how the lineup 

was improper, although some information on that point was included in the 

initial Pitchess motion). But the declaration focused principally on two 

allegedly false statements by Young, i.e., (1) Young’s statement that 

Massaquoi positively identified Jones as the shooter in the July 28 photo

lineup (which, at that point, Massaquoi claimed not to have done), and 

(2) Young’s statement in a search warrant affidavit that Tackett saw Jones 

from outside her apartment, which was inconsistent with Tackett’s 
26

preliminary hearing testimony. At the hearing on the Pitchess motion, the 

court (like defense counsel) understandably focused on those alleged 

instances of misconduct, rather than on intentional suggestiveness in the 

lineup.

Young’s allegedly false statement in a search warrant affidavit that 

Tackett went outside her apartment and saw Jones—whether intentionally 

false or, as the trial court believed more likely, the product of negligence—

does not appear to be tethered to any claim about the adequacy of the lineup

procedures used by Young. Similarly, the inconsistency between Young and 

Massaquoi about what was said at the July 28 lineup (i.e., whether 

Massaquoi positively identified Jones as the shooter) does not show the 

lineup procedures themselves were or were not faulty. In these 

circumstances, we conclude the court did not abuse its discretion by 

determining Jones had not made an adequate showing to compel in camera 

review. Jones did not present a “specific factual scenario of officer 

misconduct” that “supports [a] defense proposed to the charges.” (Warrick,

supra, 35 Cal.4th at pp. 1025–1026.)

Finally, although this information of course was not available to the 

trial court when it ruled on the pretrial Pitchess motion, we note that Young’s 

allegedly false pretrial statements about Tackett’s and Massaquoi’s 

statements did not end up being the critical evidence on those points at trial, 

because Tackett and Massaquoi testified about the events in question. 

Tackett testified she was inside her apartment, looked out through the 

blinds, and saw Jones running. Massaquoi identified Jones at trial, and he 

testified he was confident in his identification of Jones at the July 28 lineup.

Because we conclude the court did not err in denying Jones’s pretrial 

Pitchess motion, we also conclude the court did not abuse its discretion when 
27

it denied Jones’s motion for a new trial alleging in part that the pretrial 

Pitchess ruling was error. Jones’s appellate argument that information 

developed during trial supported in camera review does not establish that the

court’s pretrial ruling was an error supporting a grant of a new trial.

Finally, we reject Jones’s claim that his trial counsel provided 

ineffective assistance by failing to renew the Pitchess motion during trial. 

Jones notes that during trial, the parties stipulated that Massaquoi told a 

deputy district attorney that in the July 28 lineup he picked the person who 

“looked most like the suspect out of the six photos,” but that he “was not very 

confident in his selection.” The parties also stipulated that no police report 

indicated that Massaquoi told any officer he saw Jones on the night of the 

shooting, which was relevant because in the same search warrant affidavit 

that included Young’s challenged statement about Tackett, Young arguably 

suggested incorrectly that Massaquoi knew the suspect’s name or had

identified Jones by name.

In our view, these developments, while perhaps bolstering Jones’s 

ability to challenge Young’s veracity generally, did not substantially 

strengthen his prospects of establishing good cause for in camera review of 

police personnel records under the standards outlined above in our discussion 

of the pretrial Pitchess motion. We cannot conclude that counsel, by not 

raising the Pitchess issue again during trial, rendered constitutionally 

deficient performance for purposes of an ineffective assistance of counsel 

claim. (See Strickland v. Washington (1984) 466 U.S. 668, 688 [defendant 

claiming ineffective assistance must show “counsel’s representation fell below 

an objective standard of reasonableness”].)

C. The Need for a Remand for Resentencing

Jones argues in his opening brief that we should remand for 

resentencing because two recent legislative enactments—Senate Bill No. 620
28

and Senate Bill No. 1393 (which took effect in 2018 and 2019, respectively)—

confer discretion on the trial court to strike the firearm and prior serious 

felony enhancements it imposed at sentencing in 2020.

10 In a supplemental 

brief, Jones contends a remand for resentencing is also necessary in light of 

more recent legislation that took effect on January 1, 2022, and modified 

applicable sentencing statutes, specifically sections 1170, subdivision (b), and 

654. The Attorney General agrees the latter set of legislative enactments—

Senate Bill No. 567 and Assembly Bill No. 518—apply retroactively and that 

this court should remand for resentencing.

We conclude that, because of the postsentencing changes in the law 

effected by Senate Bill No. 567 (2021–2022 Reg. Sess.) (Senate Bill 567) and 

Assembly Bill No. 518 (2021–2022 Reg. Sess.) (Assembly Bill 518), a remand 

for a full resentencing is necessary. At that resentencing, Jones may present 

arguments as to any sentencing issue, including as to whether the firearm 

and prior serious felony enhancements should be imposed. We therefore need 

not address the parties’ contentions as to whether the earlier enactments 

that specifically pertain to enhancements (Senate Bill 620 and Senate 

Bill 1393, both of which took effect before Jones was sentenced) would 

themselves provide a basis for a remand for resentencing.

10 Senate Bill No. 620 (2017–2018 Reg. Sess.) (Senate Bill 620), which 

took effect on January 1, 2018, amended sections 12022.5 and 12022.53 to 

provide that a sentencing court has discretion to strike or dismiss the firearm 

enhancements authorized by those sections. (§§ 12022.5, subd. (c), 12022.53, 

subd. (h); Stats. 2017, ch. 682, §§ 1, 2; see People v. Woods (2018) 

19 Cal.App.5th 1080, 1090.) Senate Bill No. 1393 (2017–2018 Reg. Sess.) 

(Senate Bill 1393) became effective a year later, on January 1, 2019, and 

amended sections 667, subdivision (a), and 1385, subdivision (b), to give a 

trial court the authority to strike or dismiss a prior serious felony 

enhancement. (Stats. 2018, ch. 1013, §§ 1, 2; see People v. Stamps (2020) 

9 Cal.5th 685, 702.)
29

Turning to the more recent legislation, Senate Bill 567 amended 

section 1170, subdivision (b), to specify that, when a sentencing court chooses 

a term from a statutory triad, the chosen term shall not exceed the middle 

term, unless the facts supporting the aggravating circumstances are 

(1) established by the defendant’s stipulation to them, (2) proven to a jury (or 

to a court, if jury is waived) beyond a reasonable doubt, or (3) based on prior 

convictions evidenced by a certified record of conviction. (Stats. 2021, ch. 731, 

§§ 1.3, 3(c), adding § 1170, subd. (b)(1)–(3), by amendment.) Jones contends 

the court imposed the upper term for count 1 based on grounds that do not 

meet these requirements. Senate Bill 567 also added a provision that 

requires the court to impose the low term if the defendant’s psychological, 

physical, or childhood trauma was a contributing factor in the commission of 

the offense, “unless the court finds that the aggravating circumstances 

outweigh the mitigating circumstances [so] that imposition of the lower term 

would be contrary to the interests of justice.” (Stats. 2021, ch. 731, §§ 1.3, 

3(c), adding § 1170, subd. (b)(6), by amendment.)11 As to this latter provision, 

11 The parties cite Assembly Bill No. 124 (2021–2022 Reg. Sess.) 

(Assembly Bill 124) as having amended Penal Code section 1170 to add this 

latter provision. As we read the legislation, however, it is Senate Bill 567 

that added subdivision (b)(6) to the statute. (Stats. 2021, ch. 731, §§ 1.3, 

3(c).) Senate Bill 567, Assembly Bill 124, and one other bill (Assembly Bill 

No. 1540 (2021–2022 Reg. Sess.) (Assembly Bill 1540)), all of which were 

introduced in the first year of the 2021–2022 legislative term, proposed 

various changes to the Penal Code, including amendments to section 1170. 

All three bills were passed by the Legislature in September 2021 and 

approved by the Governor on October 8, 2021. (See Stats. 2021, ch. 695, § 5

[Assembly Bill 124], effective Jan. 1, 2022; Stats. 2021, ch. 719, § 2 [Assembly 

Bill 1540], effective Jan. 1, 2022; Stats. 2021, ch. 731, § 1.3 [Senate Bill 567], 

effective Jan. 1, 2022.) The three bills overlapped in that they proposed 

similar but not identical amendments to section 1170. But because Senate 

Bill 567 was the last bill signed by the Governor and bears the highest 
30

Jones states in his supplemental brief that a probation report refers to 

statements by Jones that his father was charged with murdering his mother 

and that Jones dropped out of high school in 12th grade following her death.

Another recent enactment, Assembly Bill 518, amended section 654, 

subdivision (a), to provide in relevant 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.” (Stats. 2021, ch. 441, § 1.) 

Previously, under section 654 “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. [Citation.] . . . [S]ection 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.)

The parties agree aspects of Jones’s sentence are potentially affected by 

these amendments to sections 1170, subdivision (b), and 654. The court, 

applying the pre-Senate Bill 567 version of section 1170, subdivision (b), 

imposed the upper term for the count 1 attempted murder conviction and 

imposed (but stayed) middle terms for counts 5, 9, and 10. And, applying the 

pre-Assembly Bill 518 version of section 654, the court imposed and executed 

the term applicable to attempted murder, while imposing but staying the 

terms applicable to other counts of conviction.

chapter number, its amendments to section 1170 prevail over the 

amendments to that code section specified in the other two bills. (Gov. Code, 

§ 9605, subd. (b); In re Thierry S. (1977) 19 Cal.3d 727, 738–739; People v. 

Banner (2022) 77 Cal.App.5th 226, 243, fn. 2 (conc. & dis. opn. of Detjen, 

Acting P. J.).)
31

We agree with the parties that Jones, whose convictions are not final, is 

entitled to retroactive application of the ameliorative changes effected by 

Senate Bill 567 and Assembly Bill 518. (People v. Flores (2022) 

73 Cal.App.5th 1032, 1039 [“The People correctly concede the amended 

version of section 1170, subdivision (b) that became effective on January 1, 

2022, applies retroactively in this case as an ameliorative change in the law 

applicable to all nonfinal convictions on appeal”]; People v. Mani, supra,

74 Cal.App.5th at p. 379 [“defendant is entitled to [the] ameliorative benefit” 

of Assembly Bill 518’s amendment to section 654]; see People v. Vieira (2005) 

35 Cal.4th 264, 305–306 [conviction is not final while appeal is pending].) 

Remand is therefore necessary for the court to resentence Jones under 

amended sections 1170, subdivision (b), and 654. (Mani, at p. 381; Flores, at 

p. 1039.)

The Attorney General, citing People v. Buycks (2018) 5 Cal.5th 857, 

893, argues the resentencing should be a “ ‘ “full resentencing as to all 

counts.” ’ ” The full resentencing rule described in Buycks dictates that 

“when part of a sentence is stricken on review, on remand for resentencing ‘a 

full resentencing as to all counts is appropriate, so the trial court can exercise 

its sentencing discretion in light of the changed circumstances.’ ” (Buycks, at 

p. 893; People v. Lopez (2020) 56 Cal.App.5th 835, 844–845, review granted 

Jan. 27, 2021, S265936; see People v. Choi (2021) 59 Cal.App.5th 753, 770 

[full resentencing appropriate where certain enhancements were stricken]; 

People v. Burbine (2003) 106 Cal.App.4th 1250, 1259 [full resentencing 

appropriate after the reversal of one or more subordinate counts of a felony 

conviction].) The full resentencing rule also applies to a resentencing that 

occurs pursuant to the recall provisions of section 1170, subdivision (d),

Proposition 36 (Gen. Elec. (Nov. 6, 2012)), or Proposition 47 (Gen. Elec.
32

(Nov. 4, 2014)). (Buycks, at p. 893.) A full resentencing may involve the trial 

court’s revisiting such decisions as the selection of a principal term, whether 

to stay a sentence, whether to impose an upper, middle, or lower term, and 

whether to impose concurrent or consecutive sentences. (People v. Valenzuela

(2019) 7 Cal.5th 415, 424–425.)

We agree with the Attorney General that a full resentencing is 

appropriate here. Although we are not reversing any of Jones’s convictions or 

ruling that a portion of his sentence is invalid (and his sentence has not been 

recalled under the statutory provisions cited above), we conclude the need to 

apply amended sections 1170, subdivision (b), and 654 creates sufficiently 

“ ‘changed circumstances’ ” (People v. Buycks, supra, 5 Cal.5th at p. 893) to 

warrant a full resentencing. Application of the amended statutes will require 

the trial court, at a minimum, to reconsider which triad term to impose for 

certain counts of conviction and which terms to stay under section 654. 

(§§ 654, subd. (a), 1170, subd. (b)(1)–(3), (6).) As part of that process, the 

court should also be free to reconsider any other components of the aggregate 

sentence it crafted in early 2020, which in this case included multiple counts 

of conviction and multiple enhancements. (People v. Ramirez (2019) 

35 Cal.App.5th 55, 64 [“ ‘When a case is remanded for resentencing by an 

appellate court, the trial court is entitled to consider the entire sentencing 

scheme’ ”]; see People v. Burbine, supra, 106 Cal.App.4th at pp. 1257–1258 

[full resentencing appropriate given the “ ‘interlocking nature’ ” and 

“inherently integrated nature” of felony sentencing for a multiple-count 

conviction].) We will remand for a full resentencing.
33

III. DISPOSITION

The convictions are affirmed. The sentence is vacated, and the case is 

remanded for resentencing. If, on resentencing, the court again imposes the 

five-year enhancement for a prior serious felony conviction, the abstract of 

judgment should reflect that enhancement was imposed under section 667, 

subdivision (a)(1), rather than under section 667.5, subdivision (b).

STREETER, Acting P. J.

WE CONCUR:

BROWN, J.

DESAUTELS, J.*

* Judge of the Superior Court of California, County of Alameda, 

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

California Constitution.
People v. Jones - A160328

Trial Court: Superior Court of California, County of Alameda

Trial Judge: Hon. Thomas C. Rogers

Counsel: Law Offices of Shannon Chase and Shannon Chase, 

by appointment of the Court of Appeal Under the 

First District Appellate Project’s Independent Case System, 

for Defendant and Appellant.

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

Attorney General, Jeffrey M. Laurence, Senior Assistant 

Attorney General, Bruce L. Ortega and René A. Chacón, 

Deputy Attorneys General, for Plaintiff and Respondent.