1

Filed 7/15/22 P. v. Reyes 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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

(Yolo)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

JESUS REYES,

Defendant and Appellant.

C092515

(Super. Ct. No. CRF191808)

Defendant Jesus Reyes beat and falsely imprisoned his girlfriend and told two 

witnesses not to report it. Convicted of domestic violence, false imprisonment, and 

witness dissuasion, and sentenced to an aggregate term of 18 years four months, 

defendant appeals.
2

Defendant now contends (1) the evidence was insufficient to sustain the 

convictions for witness dissuasion (Pen. Code, § 136.1, subd. (b)(1))

1, (2) the trial court 

should have stayed the sentence for false imprisonment under section 654, (3) the trial 

court erred by not staying one of the sentences for witness dissuasion under section 654, 

(4) it was error for the trial court to impose full midterm sentences for the two counts of 

dissuading a witness, (5) the sentence did not comply with newly amended section 1170, 

subdivision (b) (Senate Bill No. 567 (2021-2022 Reg. Sess.)), and (6) the abstract of 

judgment must be corrected to accurately reflect the convictions.

We conclude (1) the evidence was sufficient to sustain the convictions for witness 

dissuasion, (2) it was proper for the trial court not to stay the sentence for false 

imprisonment, (3) the trial court should have stayed the sentence for one of the witness 

dissuasion counts, (4) the trial court did not err by imposing full midterm sentences for 

witness dissuasion, (5) we will vacate the sentence and remand for resentencing under 

newly amended section 1170, subdivision (b), and (5) the abstract of judgment must 

reflect, among other things, that defendant was convicted on two counts of violating 

section 136.1, subdivision (b)(1). 

We will vacate the sentence and remand for resentencing. In all other respects we 

will affirm the judgment.

BACKGROUND

Defendant was in a dating relationship with A.M. With A.M. as a passenger,

defendant drove into the parking lot of an apartment complex in Davis. Seventeen-yearold R.S. and his mother L.D. were in the parking lot and saw defendant and A.M. in the 

car. Defendant was punching and hitting A.M., mainly on her head, as he screamed and 

yelled at her. Defendant also head-butted A.M. and pulled her by the hair. A.M. was 

1 Undesignated statutory citations are to the Penal Code.
3

awake but seemed tired and unresponsive. She opened the passenger door and put her 

foot out, getting her foot stuck in the door when defendant tried to pull her in.

R.S. and L.D. yelled at defendant to let A.M. out of the car. Defendant pointed his 

finger at R.S. and L.D. through the open passenger window and told them to “mind your 

own business,” “shut up about this,” and “don’t tell anyone.” Defendant also used some 

racist language against L.D., who was wearing a head scarf. Defendant’s conduct scared 

R.S. and L.D.

Defendant pulled A.M. into the car and took off, even though A.M.’s foot was 

partially out of the door. R.S. obtained the license plate number.

A jury convicted defendant of domestic violence (§ 273.5, subd. (a) - count one) 

and false imprisonment with force (§§ 236, 237 - count two). The jury also convicted 

defendant of two counts of witness dissuasion (§ 136.1, subd. (b)(1) - counts three and 

four), having acquitted defendant of the greater crime of witness dissuasion by threat 

(§ 136.1, subd. (c)(1)). The trial court found true an allegation that defendant had a prior 

serious felony and strike conviction.

The trial court sentenced defendant to the upper term of four years for domestic 

violence, with a consecutive term of eight months (one-third the middle term) for false 

imprisonment. The trial court also sentenced defendant to a consecutive full middle term 

of two years for count three, witness dissuasion, with a concurrent full middle term of 

two years for count four, witness dissuasion. The trial court doubled the terms based on 

defendant’s prior strike. In addition, the trial court added a consecutive five years for the 

prior serious felony conviction. The aggregate sentence imposed was 18 years four 

months.

DISCUSSION

I
4

Defendant contends the evidence was insufficient to sustain the convictions for 

witness dissuasion (§ 136.1, subd. (b)(1)). Section 136.1, subdivision (b)(1) prohibits 

attempting to dissuade a witness from making a report of victimization to authorities.

When a defendant challenges the sufficiency of the “evidence to support the 

judgment, our review is circumscribed. [Citation.] We review the whole record most 

favorably to the judgment to determine whether there is substantial evidence -- that is, 

evidence that is reasonable, credible, and of solid value -- from which a reasonable trier 

of fact could have made the requisite finding under the governing standard of proof.” 

(In re Jerry M. (1997) 59 Cal.App.4th 289, 298.)

In making his argument, defendant recites the prosecution’s theory of guilt, 

quoting the prosecutor’s closing argument. However, we do not review the prosecution’s 

theory or argument. Instead, we review the sufficiency of the evidence to support the 

conviction under the criminal statute. (People v. Perez (1992) 2 Cal.4th 1117, 1126.) 

“Before a judgment of conviction can be set aside for insufficiency of the evidence to 

support the trier of fact’s verdict, it must clearly appear that upon no hypothesis whatever 

is there sufficient evidence to support it.” (People v. Rehmeyer (1993) 19 Cal.App.4th 

1758.) 

L.D. heard defendant say “mind your own business” to her, but she did not 

remember what else he said. R.S., on the other hand, remembered the gist of what else 

defendant said. R.S. testified: “I don’t remember exactly what he said, but at the end I 

do remember he said one thing [as he drove away], you shut up about this or something 

like that, don’t tell anyone something like that . . . .”

Defendant claims: “The problem with this evidentiary record is that [R.S.] was 

never able to say what words [defendant] said to him that were intended to prevent or 

discourage him from reporting victimization to authorities.” This argument is 

unpersuasive. The gist of what defendant said to L.D. and R.S. was to not report his

attack on A.M. Taken together with the violence of the situation and defendant’s 
5

pointing at and addressing L.D. and R.S. who were demanding that defendant let A.M. 

go, the evidence was sufficient defendant was attempting to dissuade L.D. and R.S. from 

reporting his attack to authorities. Defendant presents no authority for the proposition 

that we must know exactly what defendant said to L.D. and R.S. to uphold his 

convictions for witness dissuasion. And we know of none.

The evidence of witness dissuasion was sufficient.

II

Defendant next contends the trial court should have stayed the term for false 

imprisonment under section 654. Although we will vacate the sentence and remand for 

resentencing on other grounds, we nevertheless discuss this and other sentencing 

contentions to provide guidance to the trial court and parties on remand.

In relevant part, section 654 provides: “An act or omission that is punishable in 

different ways by different provisions of law shall be punished under either of such

provision, but in no case shall the act or omission be punished under more than one 

provision.” (§ 654, subd. (a).)

“[I]t is well settled that section 654 applies not only where there was but one act in 

the ordinary sense, but also where there was a course of conduct which violated more 

than one statute but nevertheless constituted an indivisible transaction. [Citation.] 

Whether a course of conduct is indivisible depends upon the intent and objective of the 

actor. [Citation.] If all the offenses were incident to one objective, the defendant may be 

punished for any one of such offenses but not for more than one. [Citation.]” (People v. 

Perez (1979) 23 Cal.3d 545, 551.) “It is defendant’s intent and objective, not the 

temporal proximity of his offenses, which determine whether the transaction is 

indivisible. [Citations.]” (People v. Harrison (1989) 48 Cal.3d 321, 335 (Harrison).)

“A trial court’s implied finding that a defendant harbored a separate intent and objective 

for each offense will be upheld on appeal if it is supported by substantial evidence. 

[Citation.]” (People v. Blake (1998) 68 Cal.App.4th 509, 512.)
6

In declining to stay the sentence for false imprisonment, the trial court explained: 

“As to Count 2, which is the false imprisonment charge, the Court is not persuaded that 

the sentence for this count should either be stayed under Penal Code 654 or run 

concurrent. While arguably the conduct in the car happened close in time, the conduct 

relating to Count 1 and Count 2 are distinctly different and independent. In Count 1, the 

evidence was that the defendant in more than one way assaulted and injured . . . the 

victim. As to Count 2, the evidence supporting that charge is the victim was trying to 

escape from him and got out of the car, and his conduct to keep her from leaving the car 

prevented her from getting to a place of safety.”

As defendant sees it, the crimes constituted one indivisible transaction. He argues

the two crimes occurred simultaneously and that “[i]t is apparent that [defendant] had a 

single objective and that was to physically assault [A.M.] The physical attack, slaps, 

blows, head butts started when they pulled up next to [L.D. and R.S.] and continued until 

they drove away. During the attack, the door opened and [A.M.’s] shoe emerged in a 

very slow motion. As [defendant] pulled her back closer by the arm he continued hitting 

her, escalating to head butts. There was no break in the attack, while [A.M.] climbed out 

of the car and tried to escape to a point of freedom. [Defendant’s] objective was to beat 

upon [A.M.] and, without any doubt, his motivation in pulling her back closer was to 

continue beating on her.”

We disagree with defendant’s assertion that defendant’s objective in pulling A.M. 

back into the car was necessarily to continue beating her. There is sufficient evidence for 

the trial court to conclude that the intent of the beating (domestic violence) and the intent 

of pulling A.M. back into the car and hurrying away (false imprisonment) were different. 

The trial court properly determined that defendant’s intent in committing false 

imprisonment was separate because he was trying to avoid detection and the 

consequences for the domestic violence. Thus, the evidence was sufficient to support the 

trial court’s conclusion the criminal intents and objectives of the domestic violence and 
7

false imprisonment were separate, and section 654 was inapplicable. (Harrison, supra,

48 Cal.3d at p. 335.) The trial court therefore was not required to apply section 654 and 

stay the sentence for the false imprisonment count.

III

In addition, defendant claims the trial court erred by not staying one of the terms 

for witness dissuasion under section 654.

Defendant was convicted on two counts of witness dissuasion based on the same 

acts, which consisted of pointing at R.S. and L.D., who were standing next to each other,

and saying things like “mind your own business,” “shut up about this,” and “don’t tell 

anyone.” The trial court did not stay either of the sentences for witness dissuasion. 

Instead, it imposed a term for one of the witness dissuasion counts (count 3), consecutive 

to the term for domestic violence, and imposed a concurrent term for the other witness 

dissuasion count (count 4).

As noted, section 654 prohibits multiple punishments for a single act. However, 

when a defendant commits a single act of violence against multiple victims, multiple 

punishments are permitted. This is an exception to section 654’s rule prohibiting 

multiple punishments for a single act. (People v. Neal (1960) 55 Cal.2d 11, 20, 

disapproved on other grounds in People v. Correa (2012) 54 Cal.4th 331, 334.) In 

People v. Hall (2000) 83 Cal.App.4th 1084, 1091, this court surveyed the application of 

the multiple-victim exception to various crimes, and concluded: “[I]n each case where 

the multiple-victim exception was satisfied, the qualifying crime . . . was defined to 

proscribe an act of violence committed against the person.” (Ibid., italics omitted.) The 

question here, therefore, is whether the act of dissuading a witness, which defendant 

directed at both R.S. and L.D., was “an act of violence committed against the person.” 

(Ibid.)

The witness dissuasion in this case did not require proof of an act of violence. 

(§ 136.1, subd. (b)(1).) Although the prosecutor charged defendant with two counts of 
8

witness dissuasion by force or threat of force under subdivision (c)(1) of section 136.1, 

the jury acquitted defendant on a violation of that subdivision and instead convicted 

him of committing the lesser crime of witness dissuasion under section 136.1, 

subdivision (b)(1), which does not require the prosecution to prove any force or threat of 

force.2 Therefore, under Hall, this case does not present a multiple-victim exception to 

section 654 with respect to the two witness dissuasion counts because the definition of 

the crime did not proscribe an act of violence.

Nevertheless, another district of the Court of Appeal extended the multiple-victim 

exception to include not just the statutory definition of the crime but also what happened 

during the commission of the crime. (People v. Newman (2015) 238 Cal.App.4th 103, 

117 (Newman).) According to Newman, “[i]t is the act of violence, not just the statutory 

language, that drives the exception to section 654.” (Ibid., italics omitted.)

In Newman, the defendant robbed the manager of a restaurant. When witnesses

moved toward an exit, the defendant pointed his gun at them and told them not to move, 

thus committing false imprisonment by menace (threat of force) under sections 236 and 

237, in addition to the robbery of the restaurant manager. (Newman, supra, 238 

Cal.App.4th at pp. 106-107, 110.) The trial court chose the robbery for the base term and

imposed a consecutive sentence for the false imprisonment by menace. (Id. at p. 111.)3 

On appeal, the defendant argued the sentence for false imprisonment should have been 

stayed under section 654. (Ibid.) The Court of Appeal disagreed. Although the false 

imprisonment was by menace, not actual bodily violence, the trial court properly applied 

2 Section 136.1, subdivision (b) proscribes “attempt[ing] to prevent or dissuade another 

person . . . who is witness to a crime from . . . [¶] [m]aking any report of that 

victimization to any peace officer . . . .”

3 The jury also convicted defendant on a second count of false imprisonment (Newman, 

supra, 238 Cal.App.4th at p. 111), but that conviction is not material to our discussion.
9

the multiple-victim exception because defendant’s threat of force was an act of violence 

even if the defendant did not apply physical force to the victim of false imprisonment 

under the circumstances of the defendant’s crimes. (Id. at pp. 120-122.)

Newman is distinguishable because, even though the court in Newman looked 

beyond the statutory elements of the crime to the circumstances of the crime, a threat of 

force was an element of the crime. It was the effective threat of force that prompted the 

court to determine that the false imprisonment was an act of violence. (Newman, supra,

238 Cal.App.4th at pp. 121-122.) Here, on the other hand, the witness dissuasion did not 

include a threat of force or other potential violence. The jury concluded only that 

defendant had attempted to dissuade R.S. and L.D. from reporting his crime.

The People argue defendant’s attempt to dissuade R.S. and L.D. inflicted “psychic 

violence” on each of the victims; the conduct scared R.S. and L.D. Therefore, section 

654 did not require the trial court to stay the sentence for one of the witness dissuasion

counts. For this proposition concerning psychic violence, the People rely on People v. 

Solis (2001) 90 Cal.App.4th 1002 (Solis). In that case, the defendant threatened two 

people at the same time by leaving messages on their common answering machine, and 

the victims listened to the messages together. Defendant said he was on his way to their 

apartment and was going to kill the victims. He later set fire to the victims’ apartment 

when they were not there. (Id. at p. 1009.) Defendant was convicted on two counts of 

making a terrorist threat, and the trial court sentenced him to consecutive terms for the 

two counts. (Id. at p. 1020.)

The Court of Appeal in Solis affirmed. It determined section 654 was inapplicable

because there were multiple victims of an act of violence. The court explained that, to 

obtain a conviction for making a terrorist threat, the prosecution was required to prove 

the victim was injured by experiencing “sustained fear.” Thus, making a terrorist threat 

“constitute[d] a crime of psychic violence” that qualified as an act of violence under the 

multiple-victim exception of section 654. (Solis, supra, 90 Cal.App.4th at pp. 1023-
10

1024.) In that case, the act of violence was the statutory element of inflicting sustained 

fear.

The People argue that, because there was evidence R.S. and L.D. were scared by 

defendant, they suffered “psychic violence,” and section 654 does not require a stay. 

Under the circumstances of this case, however, any fear R.S. and L.D. experienced was 

not an element of witness dissuasion. In other words, the commission of the crime was 

not an act of violence against R.S. and L.D. Unlike the conviction in Solis, there was no 

statutory element such as a threat and sustained fear supporting a finding that defendant 

committed an act of violence with regard to the attempted dissuading crimes. Solis is 

therefore distinguishable.

The People assert we should nevertheless rely on the circumstances of the crime, 

without regard to the statutory elements, to conclude there was an act of violence 

resulting in psychic injury to the victims. (Newman, supra, 238 Cal.App.4th at p. 117.) 

Carried to its logical extreme, the argument would extend the multiple-victim exception

to any victim that experienced fear, even if there was no act of violence causing the fear 

or psychic injury. Such an extension would allow the multiple-victim exception to 

swallow the statutory rule prohibiting multiple punishments for a single act. We find no 

authority for such a broad application of the multiple-victim exception. In Newman and 

Solis, the psychic injury was brought on by the threat of force, which was an element of 

the crime, making the crime an act of violence. Here, however, the jury found no threat 

of force.

Even if R.S. and L.D. felt fear when defendant, by a single act, attempted to 

dissuade both of them from reporting his crime, section 654 prohibited multiple 

punishment because the crime was not accomplished by an act of violence. Therefore, 

the trial court should have stayed sentence on one of the witness dissuasion counts. On 

remand for resentencing, the trial court may not impose unstayed sentences for both 

counts of witness dissuasion.
11

IV

Defendant contends the trial court erred by imposing full midterm sentences for 

the two counts of witness dissuasion. His argument is that the trial court may have been 

unaware of its discretion not to impose full midterm sentences and the mere possibility of 

this requires remand.

Section 1170.15 provides that consecutive sentences imposed for dissuading a 

witness are to be imposed as full middle-term sentences, not one third of the middle term. 

However, section 1170.15 “requires the trial court to impose the full middle term of 

imprisonment only if a consecutive sentence is imposed. The section does not require the 

trial court to impose a consecutive sentence, but instead indicates that if the trial court 

chooses consecutive sentencing it must impose a full-term sentence for the witness 

dissuasion count.” (People v. Woodworth (2016) 245 Cal.App.4th 1473, 1479.)

The probation report cited section 1170.15 and stated the trial court “shall” impose 

a full and consecutive middle term for witness dissuasion. The prosecutor also argued

that section 1170.15 required the trial court to impose a full and consecutive middle term 

for witness dissuasion. The probation report and the prosecutor’s argument did not 

acknowledge the holding of Woodworth that section 1170.15 applies to make the 

consecutive term a full middle term only if the trial court chooses to impose a consecutive 

term for witness dissuasion.

At sentencing, the trial court stated: “As to Count 3 and 4, the dissuading a 

witness charge, the Court believes that the sentence for those should run consecutive to 

Counts 1 and 2; however, the Court believes the evidence suggests that the same words 

were used to dissuade both of the witnesses and that concurrent sentencing is appropriate 

for Count 4 and Count 3. That is, 4 would run concurrent to Count 3 but consecutive to

. . . Count 1 and 2.”

The record does not clearly indicate that the trial court was unaware of its 

discretion concerning whether to impose a consecutive sentence. In any event, on 
12

remand for resentencing, the trial court and parties will have the opportunity to address 

the issue if it arises again.

V

In supplemental briefing, defendant contends we must vacate the sentence and 

remand for resentencing under the newly-enacted changes to section 1170 concerning 

determinate sentencing (Senate Bill No. 567). Defendant argues that, because his 

judgment is not final, he is entitled to retroactive application of the amendments to 

section 1170. He further argues we must vacate his sentence and remand this matter so 

the trial court can exercise its sentencing discretion in light of the new legislation.

While this appeal was pending, the Governor signed Senate Bill No. 567, which 

changed the requirements for using aggravating circumstances and altered sentencing 

discretion under section 1170, effective January 1, 2022.4 (Stats. 2021, ch. 731.) Among 

other things, Senate Bill No. 567 amended section 1170 to prohibit upper term sentencing 

unless factors in aggravation are stipulated to by the defendant, proven to a factfinder

beyond a reasonable doubt, or established by a certified record of conviction. (§ 1170, 

subds. (b)(2) and (b)(3).) Senate Bill No. 567 also creates a presumption in favor of the 

low prison term if defendant’s youth or psychological, physical, or childhood trauma 

contributed to the commission of the offense. (§§ 1170, subd. (b)(6)(A) & (B); 1016.7, 

subd. (b).)

4 Three bills amending section 1170 became effective on the same date. (Stats. 2021, 

ch. 695, § 5 (Assem. Bill No. 124), effective Jan. 1, 2022; Stats. 2021, ch. 719, § 2 

(Assem. Bill No. 1540), effective Jan. 1, 2022; Stats. 2021, ch. 731, § 1.3 (Sen. Bill No. 

567), effective Jan. 1, 2022.) Senate Bill No. 567 -- which takes precedence because it 

was enacted last (Gov. Code, § 9605) -- states that if all three bills amending section 1170 

are enacted and become effective on or before January 1, 2022, and Senate Bill No. 567 

is enacted last, then section 1.3 of that bill, which incorporates the amendments proposed 

by Senate Bill No. 567, Assembly Bill No. 124, and Assembly Bill No. 1540, shall 

become operative. (Stats. 2021, ch. 731, § 3.)
13

The People agree the change in the law is ameliorative and applies retroactively 

to defendant’s case, and we do too. (See People v. Flores (2022) 73 Cal.App.5th 1032, 

1038-1039.)

Defendant argues we must vacate the sentence and remand for resentencing 

because the trial court relied on aggravating factors that were not stipulated to or proven 

beyond a reasonable doubt to a factfinder. (§ 1170, subd. (b)(2).) The People do not 

deny that due to the change in the law, the trial court’s sentencing has become erroneous 

under amended section 1170, subdivision (b), but they claim the error was harmless 

beyond a reasonable doubt. They do not dispute that the facts underlying the 

circumstances in aggravation recited by the trial court were not stipulated to by defendant 

and were not found true beyond a reasonable doubt by the jury. (§ 1170, subd. (b)(2).)

Instead, they claim a jury would have inevitably found one of the aggravating factors 

true.

Although at least one court has applied a harmless error analysis under Senate Bill 

No. 567 (People v. Flores (2022) 75 Cal.App.5th 495, 500-501), we need not decide 

whether such an analysis is appropriate because the People’s specific argument is 

inapplicable to this case.

In sentencing defendant on the domestic violence conviction to the upper term of 

four years, doubled to eight years because of a strike prior, the trial court cited four 

aggravating factors: defendant engaged in violent conduct indicating a serious danger to 

society (Cal. Rules of Court, rule 4.421(b)(1));

5 defendant has numerous prior 

convictions and juvenile adjudications (rule 4.421(b)(2)); defendant served a prior prison 

term (rule 4.421(b)(3)); and defendant did not perform satisfactorily on probation or other 

5 Undesignated rule citations are to the California Rules of Court.
14

conditional release (rule 4.421(b)(5)). Defendant also had one mitigating factor -- that 

his most recent prior conviction was in 2008.

The People argue that, even if the trial court relied on aggravating circumstances 

that were not stipulated to or proven beyond a reasonable doubt to a factfinder, “at the 

very least, a jury would have found one of the aggravating factors relied on by the trial 

court true beyond a reasonable doubt” -- that aggravating factor being that defendant 

engaged in violent conduct indicating a serious danger to society.

In making this argument, the People refer to Sixth Amendment jurisprudence and, 

specifically, People v. Sandoval (2007) 41 Cal.4th 825, 839 (Sandoval).) But defendant 

asserts a violation of the amended version of section 1170, subdivision (b), not a violation 

of the Sixth Amendment.

The question in Sandoval was whether the defendant was eligible for upper-term 

sentencing under the Sixth Amendment. The court determined a defendant is eligible for 

upper-term sentencing under the Sixth Amendment if there is one aggravating 

circumstance, because the existence of an aggravating circumstance permits the trial 

court to exercise its discretion to impose the upper term. (Sandoval, supra, 41 Cal.4th at 

839.) Applying a harmless error analysis, the court continued: “By the same reasoning, 

if a reviewing court concludes, beyond a reasonable doubt, that the jury, applying the 

beyond-a-reasonable-doubt standard, unquestionably would have found true at least a 

single aggravating circumstance had it been submitted to the jury, the Sixth Amendment 

error properly may be found harmless.” (Ibid.)

The reasoning in Sandoval is not dispositive here because the question is not 

whether defendant is eligible for upper-term sentencing under the Sixth Amendment. 

Instead, the question is whether the sentencing passes muster under section 1170 as 

amended by Senate Bill No. 567. While a defendant may be eligible for upper-term 

sentencing if, beyond a reasonable doubt, a jury would have unquestionably found true a 

single aggravating circumstance, section 1170, subdivision (b), as amended, changed the 
15

way the trial court must exercise its discretion in determining whether aggravating 

circumstances outweigh mitigating circumstances. If aggravating circumstances, 

properly found, do not justify imposition of the upper term, the trial court must impose, at 

most, the middle term. (§ 1170, subd. (b)(2).) Therefore, saying that a jury would have 

found a single aggravating circumstance beyond a reasonable doubt does not demonstrate 

that a violation of section 1170, subdivision (b) was harmless. At most, it demonstrates a 

violation of the Sixth Amendment was harmless, which is not the issue raised by 

defendant.

The People bear the burden of demonstrating harmless error on appeal. (People v.

Jackson (2014) 58 Cal.4th 724, 748.) Demonstrating that a jury would have found true at 

least one aggravating circumstance if it had been properly proven does not answer 

whether the trial court’s improper reliance on unstipulated and unproven aggravating 

circumstances was harmless. Because the People make no harmless error argument

applicable to the violation of section 1170, subdivision (b), we will vacate the sentence 

and remand for resentencing under the amended version of section 1170, subdivision (b).

VI

Defendant further contends, and the People agree, that the abstract of judgment 

incorrectly describes two of the convictions.

Defendant was acquitted on two counts of violating section 136.1, 

subdivision (c)(1), but convicted on two counts of violating section 136.1, 

subdivision (b)(1). The abstract of judgment, however, lists those convictions as 

violations of section 136.1, subdivision (c)(1). On remand, the abstract of judgment must 

reflect the proper subdivision when the new sentence is imposed. (People v. Mitchell

(2001) 26 Cal.4th 181, 185.)

DISPOSITION
16

The sentence is vacated and the matter remanded for resentencing consistent with 

section 1170, subdivision (b) and with this decision. In all other respects, the judgment is 

affirmed. The abstract of judgment must reflect, among other things, that defendant was 

convicted on two counts of violating section 136.1, subdivision (b)(1).

 /S/

MAURO, J.

We concur:

 /S/

HULL, Acting P. J.

 /S/

RENNER, J.