Filed 1/12/21 P. v. Shotwell 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Sacramento)
----
THE PEOPLE, C089673
Plaintiff and Respondent, (Super. Ct. No. 17FE019335)
v.
IMMANUEL PRINCE SHOTWELL,
Defendant and Appellant.
Defendant Immanuel Prince Shotwell appeals from his convictions stemming from
an assault and carjacking, two separate unlawful taking and driving of vehicles, and
dissuading a witness or victim from reporting a crime or causing a complaint to be
prosecuted. On appeal, he contends: (1) the trial court erred in denying his motion to
sever the trial of the counts; (2) the trial court erred in excluding evidence that someone
else assaulted the victim and stole his vehicle; (3) the trial court erred in denying his
motion for mistrial; (4) the evidence is insufficient to support his conviction for
dissuading a witness or victim by threat of force; (5) the trial court abused its discretion
1
in denying his Romero1 motion; (6) the trial court erred in imposing a $5,000 restitution
fine under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas); and (7) the
cumulative effect of the errors requires reversal. We will order the trial court to correct
the abstract of judgment and otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. June 2017 assault and carjacking
During the March and April 2019 trial, W.M. testified that on June 9, 2017,
defendant came to visit him at his residence in a trailer park. Although W.M. did not
know defendant by name, W.M. told police he had met defendant twice before. During
the visit, defendant promised to give W.M. money to replace a counterfeit $100 bill that
defendant’s girlfriend, Shayna Wimberly, had given to W.M.2 Defendant was pleasant;
W.M. invited him inside and the two began talking.
W.M. started working on his motorhome and defendant sat down next to him.
W.M. agreed to allow defendant to borrow his phone, and defendant got into a heated
discussion with the person on the other end of the line. Defendant hung up and
demanded W.M. take him to an undisclosed location. Even though W.M. had previously
given defendant rides, W.M. refused this time. Defendant then asked if he could use
W.M.’s truck, but W.M. again said no. In response, defendant picked up a hammer that
was lying nearby and hit W.M. once in the head. W.M. yelled for help and tried to retreat
to the back of his motorhome, but defendant again hit him on the head with the hammer.
W.M. fell to the floor, and his keys fell out of his pocket. Defendant grabbed the keys,
hit W.M. three or four more times, and ran out of the motorhome. W.M. stumbled out of
1 People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
2 Wimberly was defendant’s codefendant during trial. Her case is not at issue in
this appeal.
2
his motorhome, watched defendant drive off in W.M.’s truck, and then collapsed.
Defendant drove through a locked gate to escape the trailer park.
Police and paramedics arrived around 10:30 p.m. Despite suffering injuries to his
head and arm from the assault and fall, W.M. refused to go to the hospital for treatment
because the keys to his motorhome were on the keychain defendant stole, and W.M.
feared someone would steal his possessions. Photos of W.M.’s injuries were shown to
the jury. Police found W.M.’s truck the next day at a local train station.
The night of the incident, W.M. told police the person who had given him the fake
$100 bill—Wimberly—was the attacker’s “girl.” W.M. confirmed this was a true
statement during trial. Approximately six weeks after the incident, W.M. met with a
police detective but was unable to identify defendant in a photo lineup. W.M. identified
defendant and Wimberly during trial.
A neighbor of W.M. testified that on the night of the incident he chased a man
who had run out of W.M.’s motorhome. The man jumped into W.M.’s truck. The
neighbor reached into the truck to try to pull the key from the ignition, but he had to let
go when the man started driving away. The neighbor was unable to identify defendant as
the thief.
B. June 10, 2017 taking of defendant’s stepfather’s vehicle
Defendant’s mother and stepfather each testified during trial that they were unable
to recall the events of June 10, 2017, or that they lied to police about the incident during
the investigation. Mother testified the event was fresher in her mind when she spoke to
Detective Dave Putnam on August 9, 2017. Mother testified she did not call 911 during
the incident because it did not seem like stepfather was in danger.
Putman testified the mother and stepfather were both cooperative during their
interviews on August 9, 2017. In Putnam’s opinion, the mother did not appear to be
struggling to remember things during the interview. Transcripts of the interviews were
provided to the jury, and the jury was shown video excerpts from the interviews.
3
The stepfather told Putnam he was awoken at 3:30 a.m. on June 10, 2017, when
defendant arrived at his home. The mother was out of town. Defendant appeared
“distraught” and was crying. Defendant said he had assaulted someone and told the
stepfather there were people “coming after him.” Defendant told the stepfather he had
taken the victim’s car, despite efforts from the victim’s neighbors to stop him and pull
him out of the car. Defendant said he “should have just killed [the victim].”
Defendant and the stepfather began arguing. Defendant was holding a knife down
toward his side and backed the stepfather into a corner. Although the stepfather did not
believe defendant was threatening him with the knife, he still feared for his safety and the
safety of his family. The stepfather tried to deescalate the situation and calm defendant
down.
In an effort to get defendant out of the family home, the stepfather offered to drop
defendant off at a light rail station on the stepfather’s way to work. Defendant agreed but
then refused to leave the vehicle once they arrived. The stepfather decided to bring
defendant to work with him but asked defendant to leave when they got there. Defendant
begged for the keys to the stepfather’s car. The stepfather knew that if he gave defendant
the keys, he would never see the car again.
Several times during the incident, the stepfather called the mother so she could
hear. The stepfather was anxious about speaking with the police or testifying, and he
feared defendant would find out and retaliate. The stepfather told Putnam he was so
afraid for his safety that he had started the process of moving his family to a different
home.
The mother told Putnam that defendant called her just after midnight on June 10,
2017. He was “crying and frantic” and said he had beaten a man with a hammer.
Defendant was not sure if the victim was dead or alive, but there was “blood
everywhere.” He had taken the victim’s car to a train station and planned to light it on
fire. The mother tried to calm him down, but defendant said he did not want to go to
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prison. Defendant wanted to call the stepfather, but the mother tried to dissuade him
from doing so.
A short time later, the stepfather called the mother, and she overheard a struggle.
The stepfather sounded “frantic,” and told defendant that he loved him. He pleaded with
defendant to “put the knife down” and said, “Please don’t do this to us.” The stepfather
later called the mother again and told her defendant had taken off with his car.
The stepfather’s car was found in Reno with the engine blown out. When she
arrived home, the mother found a hole in the bedroom door. A second police officer
testified that during an interview on June 11, 2017, the stepfather said he heard defendant
say he had hit someone in the head with a hammer, taken that person’s car, and then
abandoned it.
C. October 12, 2017 taking of V.C.’s car
V.C. testified that on October 12, 2017, a man named T.A. brought defendant to
V.C.’s house to do laundry.3 Defendant grew upset when he was unable to reach his
girlfriend via phone. Defendant asked V.C. to drive him to meet up with his girlfriend.
Fearing for her safety, V.C. agreed. On the way, defendant argued with his girlfriend
over the phone and grew so angry that he punched the dashboard.
V.C. feared she was being set up. She stopped at a liquor store, left her keys in the
ignition, and went inside to get some matches. From inside the store, she watched
defendant drive off in her car. She had not given defendant permission to take her car.4
Later that day, V.C. communicated with defendant by text and Facebook
Messenger asking him to return her car but he refused. The next day, October 13, V.C.
saw defendant driving her car. Realizing that he was not going to return it, V.C. called
3 V.C., a convicted felon and a drug abuser, testified at trial under a grant of
immunity.
4 V.C. paid $2,000 for her car.
5
the police that same day to report her car stolen. V.C. waited to call police, stating,
“[W]here I come from, we don’t do that.” V.C. initially lied to the police and said a
woman named “Nikki” was the last person she saw near her car.
Defendant communicated to V.C. that she was “out of luck,” and posted on
Facebook that she was a “rat” and a “snitch” who had threatened to call the police about
the stolen car. The post had V.C.’s name and photo on it. Defendant warned he “was
going to do something,” and asked anyone who saw V.C. to “whoop [her].” T.A. reached
out to V.C. and warned she “should be worried.”
Police recovered V.C.’s car on October 14, 2017. The radio had been removed
and the area under the steering wheel had been “ripped up.”
D. Intimidation of V.C.
Defendant was arrested on October 20, 2017, for stealing V.C.’s car. Within
hours, defendant called Wimberly multiple times from jail. Recordings of the calls
between Wimberly and defendant were played for the jury.
During the first call at 3:33 p.m., Wimberly was traveling by car while defendant
gave her directions to V.C.’s residence. Wimberly told defendant, “[N]ow I’m . . .
go[ing] over there and try to . . . just holla at her first before I just get her all, you feel me,
. . . I’m just gonna try to get at her with respect but if she don’t do it then it’s gonna get
ugly.”
After Wimberly arrived at V.C.’s house, defendant asked her to make sure V.C.’s
car was there. While outside V.C.’s house, Wimberly started yelling at V.C. that she
needed to drop the charges against defendant, saying, “I didn’t come [for a] problem, I
came here to talk to you real quick. . . . Can you do me one favor blood and please call
and be dropping charges! Can you do that for me? I’m going to have my baby in two
months so I need my [man] home. You do that?” During the phone call, defendant asked
Wimberly to tell V.C. to give her his “stuff” and “clothes.” The first call ended.
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Defendant called back at 3:50 p.m. Wimberly told V.C., who would only talk to
Wimberly through the door, that defendant was in jail and asked her to “call and drop the
charges.” Wimberly asked V.C. if she would call in front of her, but V.C. responded she
wanted to wait until Wimberly left her home. Wimberly continued, “[S]o, I’m gonna
leave, and then, um, I’ll just . . . go [and] check your charges, and if the [charges are] still
on there, then I’m just gonna come back and it’s gonna be a problem. And . . . next time
I’m not comin’ with no . . . respect, this house gonna get—I’m gonna run up in her
s[***]. And I’m talking about . . . callin’ Chelsea, Justin, [and] everybody.” Wimberly
later told defendant she had threatened to break a window unless V.C. came outside to
talk with her. Wimberly described V.C. as “hella scared.”
In another call at 4:14 p.m., defendant told Wimberly to give V.C. another half
hour, and said, “[D]on’t do nothing crazy or stupid.” Wimberly replied she was not, and
defendant responded, “Let somebody else do that.” Wimberly said, “I’m doing what I
can,” and defendant replied, “I appreciate it. You’re doing good.”
The next call was at 5:46 p.m. V.C. told Wimberly that she could not drop the
charges before trial, but defendant disagreed. Defendant said V.C. should call the district
attorney’s office and say she had given defendant permission to drive the car and wanted
to drop the charges. Wimberly explained she had tried to be friendly with V.C., but she
again said V.C. was “hella scared.”
Detective Putnam testified V.C. told him a woman named “Nikki” (who V.C.
knew through T.A.) had set it up for defendant to steal V.C.’s car. The same woman later
came to V.C.’s house asking to have the charges against defendant dropped. Putnam
realized the woman was Wimberly. V.C. told Putnam she was not afraid of Wimberly,
but she “didn’t want to be responsible for something happening to [Wimberly’s] baby.”
V.C. told Putnam she was concerned because Wimberly and defendant “know a lot of
people in Del Paso Heights.” V.C. felt she could handle herself with respect to
Wimberly, but she was worried about defendant. V.C. told Putnam that at first she
7
considered dropping the charges, but she changed her mind. Putnam testified that V.C.
appeared “very afraid” and “frantic.” V.C. required Putnam to meet her in a public
parking lot, so she could flee if Putnam was not actually a police officer. Once V.C. was
convinced of Putnam’s identity, she “settled down” and talked to him.
Putnam obtained social media information about both defendant and Wimberly.
On defendant’s Facebook profile, there was a photo of V.C. with the caption, “Watch out
for the cop caller a[**] b[****]. Lame a[**] b[****].” The photo was posted at 11:20
a.m. on October 14, 2017, six days before defendant’s arrest.
E. Defense case
A.C., Wimberly’s cousin, testified at trial that in October 2017, defendant arrived
at her house in a black Honda. A woman who the cousin later identified as V.C. was in
the passenger seat. The cousin later saw the woman get out of the car and sit down at a
nearby bus stop. The cousin testified that she watched defendant try to get the woman
back in the car, but the woman refused. The next day, the cousin learned defendant was
in jail for stealing the car.
F. Charges, conviction, Romero motion, and sentencing
In March 2019, defendant was charged with the carjacking of W.M. while using a
deadly weapon (Pen. Code, §§ 215, subd. (a), 12022, subd. (b)(1);5 count one); assault
with a deadly weapon on W.M. (§ 245, subd. (a)(1); count two); defacing of property on
June 9, 2017 (§ 594, subd. (a); count three); unlawful taking and driving of the
stepfather’s vehicle on June 10, 2017 (Veh. Code, § 10851, subd. (a); count four);
unlawful taking and driving of V.C.’s vehicle on October 13, 2017 (Veh. Code, § 10851,
subd. (a); count five); and dissuading witness and victim V.C. on October 20, 2017
5 Undesignated statutory references are to the Penal Code.
8
(§ 136.1, subd. (c)(1); count six). It was further alleged defendant had two prior serious
felony convictions.
In April 2019, a jury found defendant guilty on all counts and found true that
defendant personally used a deadly or dangerous weapon with respect to counts one and
two. In bifurcated proceedings, the trial court found true that defendant had two prior
strikes and two prior serious felony convictions.
During the May 2019 sentencing hearing, the trial court denied defendant’s
Romero motion. The court sentenced defendant to state prison for 52 years to life plus 28
years four months. The abstract of judgment lists defendant’s sentence as 52 years to life
plus 27 years four months.
With respect to fines and fees, the probation report recommended imposing the
maximum restitution fines. Defense counsel argued defendant was indigent and asked
the court to impose only the minimum fines and fees and not apply any that were not
mandatory. Counsel did not mention Dueñas, nor did she ask for a hearing to determine
defendant’s ability to pay any fines and fees. The court imposed various fines and fees,
including a $5,000 restitution fine (§ 1202.4, subd. (b)).
DISCUSSION
I
Defendant contends the trial court erred in denying his motion to sever the trial of
the counts related to the June 9, 2017 assault and carjacking of W.M. (counts one, two,
and three) from the remaining counts. Defendant argues the evidence was not cross-
admissible pursuant to Evidence Code section 1101, subdivision (b) between the cases
because his violent assault on W.M. was not sufficiently similar to the nonviolent
unlawful takings of the stepfather’s and V.C.’s vehicles, especially since the stepfather
and V.C. knew defendant. Defendant further argues the assault on W.M. was highly
inflammatory and was a weak case due to the lack of eyewitness identification. Finally,
9
defendant argues that a limiting instruction could not have mitigated the prejudice.
Defendant’s contentions are without merit.
A. Additional background
Before trial, defendant moved to sever the counts into four separate trials for each
of the incidents (i.e., one for the charges related to W.M., and one for each of the
remaining counts). Defendant argued he otherwise would suffer substantial prejudice.
He further argued: (1) the evidence of the separate incidents was not cross-admissible;
(2) the circumstances of each incident were dissimilar and failed to establish a common
plan or scheme; and (3) he would suffer substantial prejudice if the counts were tried
together, especially since the cases against defendant were weak. Defense counsel noted
W.M. was unable to identify defendant to police during a photo lineup. In addition,
defendant noted that his stepfather and V.C. had each given conflicting statements
regarding whether they had loaned defendant a car during the incidents in June and
October. Finally, the intimidation of V.C. was supported by the jailhouse phones calls,
but defendant was never heard threatening V.C. during the calls. Defendant conceded
that if any of the counts should be tried together, it would be those related to V.C. (i.e.,
counts five and six).
The prosecution argued counts five and six were “extremely intertwined” and that
the related evidence was cross-admissible. The prosecution further argued the evidence
related to counts one through three was cross-admissible as to count four because
defendant went to his stepfather’s house within hours of assaulting W.M. and confessed
to the incident in the trailer park. The evidence would help the jury understand why the
stepfather was afraid and had handed defendant the keys to his vehicle.
The trial court denied the motion to sever. The court noted defendant’s logic,
namely, that all the cases were weak, differed from the typical argument that a strong
case was being used to bolster a weak case. The court did not agree that a jury would
take all the weak cases and turn them into one strong one. The court further noted counts
10
one through four were connected, given that they were committed within hours. In
addition, counts five and six were related because the witness intimidation was related to
the substantive count. Finally, counts one, four, and five were all theft offenses, and four
and five each appeared to involve whether defendant had permission to take a vehicle.
The court indicated it would instruct the jury that it would need to consider each case
individually. In sum, the trial court found, under Evidence Code section 352, the joinder
of the counts did not result in undue prejudice.
During trial, the jury was instructed pursuant to CALCRIM No. 3515 that each
count charged in the case was a separate crime, and that the jury must consider each
count separately.
B. Defendant has not forfeited the issue on appeal
The People contend defendant has forfeited the issue because his trial counsel
sought four separate trials (one for counts one through three, and one more each for
counts four, five, and six), rather than the two trials defendant now seeks. Given that
defendant sought severance of the charges during trial, and that the trial court considered
the relevant factors under section 954, we will proceed to the merits.
C. Analysis
When separate accusatory pleadings assert offenses that are “connected together in
their commission or, [are] of the same class of crimes or offenses, . . . the court may order
them to be consolidated. . . .” (§ 954.) The law prefers consolidation or joinder of
charges because it promotes efficiency. (People v. Merriman (2014) 60 Cal.4th 1, 37.)
Offenses are of the “same class” when they possess common characteristics or attributes.
(People v. Leney (1989) 213 Cal.App.3d 265, 269.) We review a trial court’s denial of a
motion to sever for abuse of discretion, based on the facts known by the trial court at the
time of its ruling. (People v. Burney (2009) 47 Cal.4th 203, 237.) Where joinder is
statutorily proper, defendant must make a “clear showing of potential prejudice.”
(People v. Stanley (2006) 39 Cal.4th 913, 934.)
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The determination of prejudice depends upon the circumstances of each case. In
noncapital cases, we consider on review the following factors: (1) the cross-admissibility
of the evidence in separate trials; (2) whether some of the charges are “unusually likely to
inflame the jury against the defendant”; and (3) whether a “ ‘weak’ case has been joined
with a ‘strong’ case, or with another ‘weak’ case, so that the ‘spillover’ effect of
aggregate evidence on several charges might well alter the outcome of some or all of the
charges.” (People v. Sandoval (1992) 4 Cal.4th 155, 172.) “ ‘The state’s interest in
joinder gives the court broader discretion in ruling on a motion for severance than it has
in ruling on admissibility of evidence.’ [Citation.]” (Alcala v. Superior Court (2008) 43
Cal.4th 1205, 1221.)
Joinder of the W.M. incident and the other charges was proper here under section
954 because carjacking and vehicle theft charges are of the same class, given that each
involves the unlawful taking of a vehicle. (§ 215, subd. (a); Veh. Code, § 10851, subd.
(a); People v. Leney, supra, 213 Cal.App.3d at p. 269 [offenses are of the same class
when they possess common attributes].) In addition, despite defendant’s contentions, the
incidents with W.M., the stepfather, and V.C. were sufficiently similar to be cross-
admissible on the issue of intent. (See People v. Ewoldt (1994) 7 Cal.4th 380, 402 [“[i]n
order to be admissible to prove intent, the uncharged misconduct must be sufficiently
similar to support the inference that the defendant ‘ “probably harbor[ed] the same intent
in each instance” ’ ”].) In each of the incidents, defendant knew the victim and asked
him or her for a ride. The stepfather and V.C. complied, and defendant took the vehicle
in both incidents. W.M. refused, and defendant violently assaulted him and then took his
vehicle. It would have been reasonable for a trier of fact to infer that defendant harbored
the same intent to take the victim’s vehicle in each instance when he asked for a ride.
The court did not err in finding the incidents to be similar.
In addition, we reject defendant’s contention that evidence of the incidents
involving the stepfather and V.C. was stronger and therefore would bolster the case
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against defendant with respect to the incident involving W.M. Although W.M. was
unable to identify defendant in a photo lineup six weeks after the incident, W.M.
recognized defendant during the trial. W.M.’s identification of defendant as the assailant
was corroborated by evidence that, within hours of the assault on W.M., defendant told
his stepfather that he had assaulted someone by hitting him in the head with a hammer,
taken the victim’s car, and then abandoned it. Defendant similarly told his mother within
hours of the incident that he had beaten a man with a hammer. Under the circumstances,
there is no “ ‘extreme disparity’ ” in the strength of the evidence that would indicate an
abuse of discretion. (People v. Ybarra (2016) 245 Cal.App.4th 1420, 1437 (Ybarra).)
Moreover, none of the charges were unusually likely to inflame the jury against
defendant. There was evidence that the stepfather and V.C. each were scared that
defendant would turn violent during the respective incidents. In addition, W.M. was not
hospitalized after the assault. Under the circumstances, there was little likelihood that the
joinder of the W.M. assault and carjacking charges would inflame the jury in its decision
on the vehicle theft and the dissuading a witness or victim charges. In sum, we conclude
that defendant has not made the “ ‘ “clear showing of prejudice” ’ ” required to establish
that the trial court abused its discretion. (Ybarra, supra, 245 Cal.App.4th at p. 1438.)
Even if the trial court was correct at the time to deny severance, reversal is still
proper if a defendant shows that joinder resulted in “ ‘gross unfairness’ amounting to a
denial of due process. [Citations.] In determining whether there was such gross
unfairness, we view the case as it was tried, including a review of the evidence actually
introduced in the trial . . . and other trial related matters, such as the prosecutor’s closing
argument.” (Ybarra, supra, 245 Cal.App.4th at p. 1434.) The defendant bears the “ ‘high
burden’ ” of establishing gross unfairness amounting to a due process violation. (Id. at p.
1438.) A defendant “must demonstrate a ‘reasonable probability’ that the joinder
affected the jury’s verdicts.” (Ibid.)
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Similar to our analysis concluding the trial court did not abuse its discretion, we
are not persuaded that defendant has established gross unfairness amounting to a due
process violation via his arguments about the relative strength and weakness of the cases,
the cross-admissibility of the evidence, or the likelihood that the charges would inflame
the jury against defendant. We further note that the jury was properly instructed that each
count in the case was charged as a separate crime, and that it must consider each count
separately. (See People v. Sanchez (2001) 26 Cal.4th 834, 852 [absent a showing to the
contrary, jurors are presumed able to understand and to have followed the court’s
instructions].) Under the circumstances, defendant’s contentions are without merit.
II
We next turn to defendant’s contention that the trial court erred in excluding
evidence that someone else assaulted W.M. and stole his vehicle. We disagree.
A. Additional background
Before trial, the prosecutor informed the court that defendant had told his mother
over the phone that prior to the assault Wimberly had worked as a prostitute and W.M.
was her client. Neither defense counsel nor the prosecutor indicated that they intended to
introduce the statement during trial. During trial, defense counsel nevertheless sought to
introduce the statement, along with a similar statement from the stepfather, arguing it
would show that Wimberly was engaged in a “business transaction” with W.M. Defense
counsel argued the evidence showed that T.A. was Wimberly’s pimp because W.M.
testified that he knew his assailant and was aware that Wimberly was “his [assailant’s]
girl.” According to defense counsel, it was T.A. who had shown up at W.M.’s
motorhome to settle the monetary dispute between W.M. and Wimberly. T.A. then
argued with and assaulted W.M. Defense counsel noted T.A. had been identified by
V.C., defendant’s mother, and defendant’s stepfather.
The prosecutor objected to introducing the evidence, arguing no one had
mentioned T.A. was the assailant. Indeed, the only mention of T.A. was from V.C., who
14
told police that she met Wimberly through T.A., and when she testified that defendant
was introduced to her by T.A. The prosecutor also noted that defendant’s mother never
mentioned a pimp, and his stepfather had only said defendant was at the scene of the
assault “because . . . one of . . . Wimberly’s tricks [was] there.”
The trial court denied defendant’s motion to admit the evidence, reasoning that the
evidence was “far too thin” to raise a reasonable doubt of defendant’s guilt. The
references to T.A. were “fairly discrete” and “don’t connect specifically with anybody.”
Instead, the statements “just dump on . . . Wimberly as being a prostitute.” In sum, the
evidence was more prejudicial than probative.
B. Analysis
“To be admissible, the third-party [culpability] evidence need not show
‘substantial proof of a probability’ that the third person committed the act; it need only be
capable of raising a reasonable doubt of defendant’s guilt. At the same time, we do not
require that any evidence, however remote, must be admitted to show a third party’s
possible culpability. . . . [E]vidence of mere motive or opportunity to commit the crime
in another person, without more, will not suffice to raise a reasonable doubt about a
defendant’s guilt: there must be direct or circumstantial evidence linking the third person
to the actual perpetration of the crime.” (People v. Hall (1986) 41 Cal.3d 826, 833.) “In
assessing an offer of proof relating to such evidence, the court must decide whether the
evidence could raise a reasonable doubt as to defendant’s guilt and whether it is
substantially more prejudicial than probative under Evidence Code section 352.
[Citation.]” (People v. Bradford (1997) 15 Cal.4th 1229, 1325.) We review the trial
court’s decision for abuse of discretion. (People v. Prince (2007) 40 Cal.4th 1179, 1242.)
The theory that T.A. was Wimberly’s pimp and assaulted W.M. and stole his
vehicle is speculative at best. Although V.C. told police she knew Wimberly through
T.A., she never identified T.A. as Wimberly’s pimp. Defendant also never told his
mother that Wimberly even had a pimp, let alone the pimp’s identity. W.M.’s statement
15
that Wimberly was the assailant’s “girl” does not imply that T.A. was her pimp because
during trial W.M. identified defendant, who was Wimberly’s boyfriend, as his assailant.
W.M. would have been familiar with defendant because he had met defendant twice
before and had previously given defendant rides.
Although evidence that Wimberly was a prostitute might have explained why she
had a monetary dispute with W.M., this is not enough to link T.A. to the commission of
the crimes. (See People v. Edelbacher (1989) 47 Cal.3d 983, 1018 [“evidence showing
only a third party’s possible motive is not capable of raising a reasonable doubt of a
defendant’s guilt and is thus inadmissible”].) The trial court therefore did not abuse its
discretion in declining to admit the evidence.
III
Defendant next contends the trial court erred in denying his motion for a mistrial
after a witness testified that defendant was on parole. Defendant argues the evidence that
he committed the crimes involving W.M. was weak, and the jury would have been
prejudiced against him because of his prior crimes. In the alternative, defendant argues
for the first time on appeal that the prosecutor committed misconduct. We conclude
defendant has forfeited his claim of prosecutorial misconduct and his remaining claims
are meritless.
A. Additional background
Prior to trial, defense counsel moved to exclude evidence that defendant was
arrested while on parole. The court asked the prosecutor whether she intended to
introduce such evidence. The prosecutor responded no, but also cautioned that
defendant’s parole officer was on the witness list, since he was the police officer who
interviewed defendant’s mother and stepfather. The prosecutor warned that the mother
and stepfather were likely to be uncooperative witnesses, with the mother believing that
defendant needed drug counseling rather than criminal prosecution. The stepfather
similarly indicated he believed much of defendant’s behavior was due to drug abuse.
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Before the start of their testimony, defense counsel and the prosecutor each told the
mother and stepfather that they were not to mention defendant’s prior criminal record or
any potential drug use.
During cross-examination, defense counsel asked defendant’s stepfather, “Today
you told us that at the time around the period of June 2017, that [defendant] actually lived
at your house. Is that correct?” The stepfather responded, “Correct. He was on parole
so—I believe he was on parole, so he had an address at our house and the upstairs
bedroom.” The prosecutor did not raise the issue again during redirect.
After the stepfather’s testimony finished, defense counsel moved for a mistrial
based on the stepfather’s statement that defendant was on parole at the time of the
incident. Defense counsel argued she had clearly asked that such information be
excluded, and it was highly prejudicial to defendant. She further noted, “[W]e met with
the witness first thing this morning to go over the parameters. Nothing was asked of him
that would have led him to answer that.” The prosecutor responded that the comment
was unintentional and no one had followed up on the issue. In addition, the prosecutor
stated that the stepfather had been warned against commenting on the issue, and she
asked that the testimony be stricken from the record.
The trial court struck the testimony as nonresponsive but denied defendant’s
motion for a mistrial. The trial court reasoned the testimony was “volunteered” and did
not rise to the level of warranting a mistrial.
B. Analysis
1. Denial of motion for mistrial
A trial court should grant a motion for mistrial “ ‘only when a party’s chances of
receiving a fair trial have been irreparably damaged.’ ” (People v. Clark (2011) 52
Cal.4th 856, 990.) Whether a particular incident is so prejudicial that it warrants a
mistrial “requires a nuanced, fact-based analysis,” which is best performed by the trial
court. (People v. Chatman (2006) 38 Cal.4th 344, 370.) We review the denial of a
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motion for mistrial under the deferential abuse of discretion standard. (Clark, supra, at p.
990.) As our Supreme Court has explained, a trial court does not abuse its discretion in
denying a defendant’s motion for mistrial despite a witness’s “brief and isolated”
reference to the defendant’s incarceration status. (People v. Valdez (2004) 32 Cal.4th 73,
128.)
As previously discussed, the case against defendant was strong and not closely
balanced, given that each of the victims identified defendant as the perpetrator. In
addition, defendant’s credibility was not at issue, since he did not testify. The
stepfather’s reference to defendant being on parole was isolated and brief, and the court
struck the testimony from the record. There was no further mention of defendant’s parole
status before the jury from the witnesses or counsel. The fleeting comment was not
significant in the context of the entire guilt trial, and the trial court did not abuse its
discretion in finding that defendant’s chances of receiving a fair trial had not been
irreparably damaged.
2. Prosecutorial misconduct
Despite the prosecutor (and defense counsel) warning the stepfather against
alluding to defendant’s criminal record, defendant now argues the prosecutor committed
misconduct by failing to take sufficient steps to prevent the stepfather from testifying
about defendant’s parole status in violation of the court’s exclusionary order. Even
though the testimony arose during cross-examination, defendant argues the prosecutor
should have done more because the stepfather was known to be uncooperative.
The People contend defendant has forfeited the claim because he failed to object
during trial. As courts have explained, “ ‘a defendant may not complain on appeal of
prosecutorial misconduct unless in a timely fashion—and on the same ground—the
defendant made an assignment of misconduct and requested that the jury be admonished
to disregard the impropriety.’ ” (People v. Stanley, supra, 39 Cal.4th at p. 952.)
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Defendant responds that his motion for mistrial was adequate to inform the trial
court that the prosecutor had committed misconduct. We disagree. Defendant’s motion
was based on the prejudicial nature of the evidence. This would not have indicated to the
court that defendant took issue with the prosecutor’s conduct, especially since defense
counsel noted that she and the prosecutor had met with the stepfather the morning of his
testimony to review “the parameters.” In addition, defense counsel argued “[n]othing
was asked of [the stepfather] that would have led him to answer that.” Moreover, the
prosecutor moved to strike the testimony. Defendant has therefore forfeited his claim.
IV
We turn next to defendant’s contention that his conviction for dissuading a witness
or victim must be reduced to a misdemeanor because the evidence was insufficient to
establish that he aided and abetted the intimidation of a witness or victim by an implied
threat of force. (§ 136.1, subds. (b) & (c).) According to defendant, he never threatened
V.C. or instructed Wimberly to do so. While he gave Wimberly directions to V.C.’s
home and told Wimberly to tell V.C. to drop the charges, he also told Wimberly to not do
anything crazy or stupid.
In considering a claim of insufficiency of evidence, we view the whole record in
the light most favorable to the judgment to determine whether it discloses substantial
evidence, and we do not resolve credibility issues or evidentiary conflicts. (People v.
Wahidi (2013) 222 Cal.App.4th 802, 804-805, 806 [affirming conviction of dissuading a
witness where there was a physical altercation and defendant then implored the witness to
“settle this outside the court”].)
Section 136.1 prohibits any attempt to prevent or dissuade a witness to a crime or
a victim of a crime from reporting it to a police officer or causing a complaint to be
prosecuted. (§ 136.1, subds. (b)(1)-(2), (d).) It is immaterial whether anyone was
actually harmed. (§ 136.1, subd. (d).) The crime is a felony if a defendant knowingly
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and maliciously commits the offense by force or by an express or implied threat of force
or violence upon a witness to, or a victim of, a crime. (§ 136.1, subd. (c).)
Attempting to dissuade a witness or a victim is a specific intent crime. (People v.
Young (2005) 34 Cal.4th 1149, 1210.) In determining whether a defendant’s actions or
statements constitute an attempt to dissuade a witness or victim, the trier of fact must
consider the circumstances in which the defendant’s statements or actions are made, not
just the statement or action itself. (People v. Wahidi, supra, 222 Cal.App.4th at p. 806.)
“If the defendant’s actions or statements are ambiguous, but reasonably may be
interpreted as intending to achieve the future consequence of dissuading the witness from
testifying, the offense has been committed. [Citation.]” (Ibid.)
“To be guilty of a crime as an aider and abettor, a person must ‘aid[ ] the [direct]
perpetrator by acts or encourage[ ] him [or her] by words or gestures.’ [Citations.]”
(People v. Lee (2003) 31 Cal.4th 613, 623.) Under a direct theory of aiding and abetting,
“the person must give such aid or encouragement ‘with knowledge of the criminal
purpose of the [direct] perpetrator and with an intent or purpose either of committing, or
of encouraging or facilitating commission of,’ the crime in question. [Citations.] When
the crime at issue requires a specific intent, in order to be guilty as an aider and abettor
the person ‘must share the specific intent of the [direct] perpetrator,’ that is to say, the
person must ‘know[ ] the full extent of the [direct] perpetrator’s criminal purpose and
[must] give[ ] aid or encouragement with the intent or purpose of facilitating the [direct]
perpetrator’s commission of the crime.’ ” (Id. at p. 624.)
Contrary to defendant’s contentions, there was evidence that defendant threatened
V.C. After learning V.C. might call police about the stolen car, defendant communicated
to her that she was “out of luck.” He also posted on Facebook that she was a “rat” and a
“snitch,” and warned he “was going to do something.” In addition, he asked anyone who
saw her to “whoop [her].” A jury could reasonably conclude these statements threatened
violence, especially since V.C. testified that no one calls the police in her neighborhood,
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and Wimberly and defendant “know a lot of people” in the neighborhood. In addition,
T.A. reached out to V.C. and warned her that she “should be worried.”
Moreover, a jury could reasonably conclude defendant was encouraging Wimberly
to threaten V.C. when she went to V.C.’s home. Defendant called Wimberly within
hours of his arrest and gave her directions to V.C.’s home and described V.C.’s car, and a
jury could reasonably infer the couple had already talked about what should happen if
defendant was arrested. Over the next couple of hours, defendant continually instructed
Wimberly to demand that the scared V.C. drop the charges. He did nothing to stop
Wimberly when she threatened that it would “get ugly” and “be a problem” if V.C.
refused to drop the charges. Although defendant at one point urged Wimberly to give
V.C. more time and not do anything “crazy or stupid,” in the next breath he admonished,
“Let somebody else do that.” Defendant then told Wimberly she was “doing good.”
Under the circumstances, a jury could reasonably conclude defendant was expressly or
impliedly threatening V.C. with violence to dissuade her from cooperating with police,
and was encouraging Wimberly to do so as well. In sum, defendant’s claims are without
merit.
V
Defendant contends the trial court abused its discretion in denying his Romero
motion. We again disagree.
A. Additional background
In May 2019, defendant moved pursuant to Romero to strike one of his strikes.
Defendant argued he was raised in a neglectful home and his mother had provided him
with drugs since he was 11 years old. He was only 19 years old when he incurred his
first strike, a 2007 conviction for first degree burglary. According to defendant, he had
only entered the unoccupied house, rummaged around, and stolen a burrito because he
was hungry. After the conviction, defendant remained addicted to drugs and was
homeless. Defendant similarly argued he incurred his second strike, a 2009 conviction
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for first degree burglary, for entering an unoccupied home in 2008. The homeowner
came home during the burglary and confronted defendant. The homeowner prevented
defendant from fleeing by chasing and tackling him, and the two began to struggle.
Defendant stated he began to regularly use heroin during his subsequent 12-year state
prison sentence. Defendant argued he had previously declined jury trials and accepted
responsibility for his actions. Although he had requested a jury trial in this case,
defendant argued he did so because he was innocent. Defendant asked that the court
strike one or more of his prior strikes so he could participate in his children’s lives.
During the May 2019 sentencing hearing, the trial court denied defendant’s
Romero motion. Citing People v. Williams (1998) 17 Cal.4th 148 and People v. Carmony
(2004) 33 Cal.4th 367, the court noted it was required to “consider whether, in light of
the nature and circumstances of the present felonies and prior serious felony convictions
and the particulars of his background, character, and prospects, the defendant may be
deemed outside the [Three Strikes law’s] spirit in whole or in part” and therefore entitled
to leniency. With respect to defendant’s prior criminal history, the court found defendant
was a recidivist. The court noted defendant had been placed on probation in June 2007
for the first degree burglary conviction, but he promptly violated it in October 2007.
Defendant committed the second first degree burglary in 2008 while he was still on
probation for the 2007 burglary. Defendant was on parole for the 2009 conviction when
he committed the current offenses.
The court also considered defendant’s current convictions, noting that the crimes
against W.M. were “callous and violent.” Defendant thought he had killed W.M. and left
him there for dead. The court found defendant’s “lack of impulse control and
aggressiveness and violence [to be] striking.” The court also reasoned that the dissuading
a witness or victim count “displays a certain disrespect for the rule of law [and] the
justice system.” The court found defendant had engaged in an “overall pattern of
antisocial behavior” and “appears to be violent.” The court noted it had considered
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defendant “as a whole,” including his background and upbringing. However, defendant
presented a danger to the public. Under the circumstances, defendant was not outside the
Three Strikes scheme.
B. Analysis
Defendant argues he falls outside the spirit of the Three Strikes law because he
became addicted to drugs at an early age, and his early criminality was comprised of
juvenile and misdemeanor offenses. Defendant also argues he was only 19 years old
when he committed his first burglary, and the crime was born of hunger. In addition, the
2007 burglary did not involve any violence. He argues he committed the second burglary
in 2008 to fund his drug addiction, and he notes the only violence occurred when the
victim prevented him from fleeing. With respect to the current offenses, defendant notes
that W.M. was not hospitalized, and none of the other crimes involved injuries. And he
still would face a lengthy sentence even if the court struck one of the strikes.
In deciding whether to dismiss a prior strike conviction allegation pursuant to
Romero and section 1385, a trial court “must consider whether, in light of the nature and
circumstances of his present felonies and prior serious and/or violent felony convictions,
and the particulars of his background, character, and prospects, the defendant may be
deemed outside the [Three Strikes law’s] spirit, in whole or in part, and hence should be
treated as though he had not previously been convicted of one or more serious and/or
violent felonies.” (People v. Williams, supra, 17 Cal.4th at p. 161.) The circumstances
establishing that the criminal falls outside the spirit of the three strikes scheme must be
extraordinary. (People v. Carmony, supra, 33 Cal.4th at p. 378.) Reversal is justified
where the trial court was unaware of its discretion to dismiss a prior strike or considered
impermissible factors in declining to dismiss. (Ibid.)
We find no abuse of discretion. In considering defendant’s motion, the trial court
was aware of its discretion. It considered the relevant factors pursuant to Williams and
Carmony, including defendant’s social background, criminal history, and current crimes.
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The court reached its decision in conformity with the spirit of the Three Strikes law, and
its decision was neither irrational nor arbitrary.
VI
Finally, relying on Dueñas, supra, 30 Cal.App.5th 1157, defendant argues that due
process requires we remand the matter for a hearing on his ability to pay the $5,000
restitution fine imposed. Although defendant asserted his indigence during the May 2019
sentencing hearing, he only asked the court to (1) waive any nonmandatory fines and fees
and (2) impose the minimum amount. This was insufficient to put the court on notice
that he was requesting an ability to pay hearing based on the due process considerations
raised in Dueñas, which had been decided in January 2019, more than four months before
defendant’s sentencing hearing. We therefore conclude defendant has forfeited the
issue.6 (See People v. Scott (1994) 9 Cal.4th 331, 351-354 [a defendant must raise a
sentencing issue in the trial court in order to preserve it on appeal].)
VII
Defendant claims the cumulative effect of errors require reversal. As we have
found no error, this argument necessarily fails.
VIII
Despite the trial court’s oral pronouncement of defendant’s sentence as 52 years to
life plus 28 years four months, the abstract of judgment lists defendant’s sentence as 52
years to life plus 27 years four months. It has long been held that where there is a
discrepancy between the oral pronouncement of judgment and the abstract of judgment,
the oral pronouncement controls. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) We
will order the error corrected.
6 We note that defendant does not argue on appeal that his trial counsel was
ineffective in failing to object based on Dueñas.
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DISPOSITION
Consistent with this opinion, the trial court shall prepare an amended abstract of
judgment and forward a certified copy to the Department of Corrections and
Rehabilitation. The judgment is otherwise affirmed.
KRAUSE , J.
We concur:
ROBIE , Acting P. J.
MAURO , J.
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