People v. Gaytan CA5

Filed 6/10/22 P. v. Gaytan CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,
F080702
Plaintiff and Respondent,
(Super. Ct. No. 19CMS0333)
v.

JESUS VINCENT GAYTAN, JR., OPINION
Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Kings County. Valerie R.
Chrissakis, Judge.
Jonathan D. Roberts, under appointment by the Court of Appeal, for Defendant
and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and
Robert C. Nash, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Appellant Jesus Vincent Gaytan, Jr., was arrested following his ex-girlfriend’s
report to the police that he went to her house and attacked her. Approximately two days
after his arrest, appellant made several calls to his ex-girlfriend from jail, telling her to
“drop the charges please” because he was scared for his safety in jail. A jury convicted
appellant of unlawfully attempting to prevent and dissuade a victim or witness of a crime
from causing a complaint, indictment, information, probation and parole violation to be
sought and prosecuted and assisting in the prosecution thereof (Pen. Code,1 § 136.1,
subd. (b)(2); count 3) and a misdemeanor count of disobeying a court order (§ 166,
subd. (a)(4); count 4). In a bifurcated court trial, the court found true that appellant had
suffered two prior strikes (§§ 1170.12, subds. (a)–(d), 667, subds. (b)–(i)), two prior
prison terms (§ 667.5, subd. (b)), and two prior serious felonies (§ 667, subd. (a)(1)). The
court sentenced appellant to the upper term of three years as to count 3, five years each
for the prior serious felony enhancements, and 180 days to be served concurrently as to
count 4, for a total prison sentence of 13 years. The court stayed the two one-year terms
for the prior prison term enhancements.
Appellant raises several contentions that he asserts necessitate reversal of his
conviction on count 3. First, he contends the evidence was insufficient to support the
conviction because, according to appellant, section 136.1, subdivision (b)(2)
(§ 136.1(b)(2)) does not apply to attempts to dissuade a victim that occur after the victim
has made a report and an arrest has been made. He contends that to interpret the statute
in a way to encompass attempts to dissuade that occur after a victim has reported a crime
is contrary to relevant case law as well as the language of the statute and raises due
process, equal protection, free speech, and vagueness issues both facially and as applied
to him. Appellant also contends the court misinstructed the jury as to the elements of
section 136.1(b)(2) because the pattern instruction used in the present case, CALCRIM
No. 2622, misstates the law.
Appellant further contends the court erred by denying a motion for mistrial made
on the ground he was incurably prejudiced by brief references to his criminal history and

1 All further undesignated statutory references are to the Penal Code.

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parole status and by failing to sanitize appellant’s prior convictions admitted during his
testimony, and the prior prison term enhancements should be stricken pursuant to Senate
Bill No. 136 (2019-2020 Reg. Sess.).
We strike appellant’s prior prison term enhancements and affirm the judgment in
all other respects.
FACTS
Appellant was charged with injuring a domestic partner (§ 273.5, subd. (a);
count 1); first degree burglary (§ 459; count 2); unlawfully attempting to prevent and
dissuade a victim or witness of a crime from causing a complaint, indictment,
information, probation and parole violation to be sought and prosecuted and assisting in
the prosecution thereof (§ 136.1(b)(2); count 3); and a misdemeanor count of disobeying
a court order (§ 166, subd. (a)(4); count 4). The jury acquitted appellant of counts 1 and
2 and convicted him of counts 3 and 4. We include the facts presented at trial underlying
counts 1 and 2 as they are relevant to understanding counts 3 and 4 and to our analysis of
appellant’s claims on appeal.
Counts 1 and 2: The Offenses Underlying the Dissuasion Count
Allyshia Sandoval testified she dated appellant on and off from 2015 until they
broke up in January 2019. At the time they broke up, Sandoval was pregnant with
appellant’s child. Sandoval stated the reason they broke up was because appellant had
cheated. While appellant and Sandoval were together, he lived with her part time and
had belongings at her house, which, around the day after they broke up, Sandoval threw
out of the house. A few days later, on January 22, 2019, she and appellant were texting
about the baby. Appellant began to ask her for his belongings, and she informed him that
she threw them out.
Later that evening, appellant went to Sandoval’s apartment and knocked on the
door. He eventually stopped and attempted to enter her apartment through the kitchen
window but was unsuccessful. Sandoval called the police and then heard banging on the

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door. At some point, she believed appellant had gone so she cracked the door to go
check on her neighbor, Ashley Karasti. When she did so, appellant’s new girlfriend
kicked the door in. Appellant was on Sandoval’s porch. According to Sandoval,
appellant’s girlfriend attacked Sandoval, and appellant joined her. They both hit and
kicked Sandoval. Sandoval yelled for help from Karasti, who subsequently went over.
Karasti testified that on the night in question, she saw appellant and appellant’s
girlfriend approaching the door to Sandoval’s apartment. She eventually heard noises
and went to Sandoval’s apartment. Sandoval’s door was wide open, and Karasti saw
appellant on top of Sandoval punching her and holding her down. Karasti ran up to him
and asked him to get off Sandoval. Karasti testified that both appellant and appellant’s
girlfriend were “attacking” Sandoval. Appellant and his girlfriend eventually left in a
vehicle being driven by a third party.
The officer who responded to the scene contacted Sandoval and Karasti. Sandoval
had visible injuries to her face and head. Sandoval and Karasti identified appellant and
his girlfriend as the perpetrators and indicated they had already left the scene. Sandoval
obtained an emergency protective order against appellant based on the incident.
Detective Osvaldo Maldonado testified appellant was found and taken into
custody three to four days after the incident. Maldonado served appellant with the
emergency protective order and spoke to him about the incident. Appellant admitted to
Maldonado he had had a text exchange with Sandoval on the night of the incident and
was aware Sandoval reported he and his new girlfriend attacked her. Appellant, however,
denied going to Sandoval’s apartment and denied the entire incident happened. He stated
he was at his mother’s house in Hanford and it would have been impossible to get to
Sandoval’s home because he did not have a car. Appellant did not have an explanation as
to how Sandoval got injured.
Appellant testified in his defense and admitted he went to Sandoval’s apartment on
the night in question in order to get his belongings. He had been with his new girlfriend

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at his grandmother’s house. His girlfriend was waiting for a ride to take her home, and
he asked the ride to take him to Sandoval’s apartment. Appellant knocked on Sandoval’s
door, and Sandoval refused to give appellant his belongings, so he decided to leave.
When he got back to the car, his girlfriend stated that she would get appellant’s
belongings and she proceeded to bang on and kick Sandoval’s door. Appellant followed
her but remained on the porch. Eventually, Sandoval opened the door, and appellant’s
girlfriend pushed the door open and assaulted Sandoval. Appellant just “st[ood] back
watching.” When asked why he told Maldonado he was not present during the incident,
appellant explained “five year old[s]” deny doing something when they are caught “red
handed,” and adults do so as well. He further explained “from previous encounters, I just
know to just deny any accountability.” Appellant testified he had been convicted of two
previous felonies and pled guilty to both “because I knew I was guilty of these crimes.”
Counts 3 and 4: Dissuasion and Violation of the Restraining Order
Approximately two days after appellant was arrested, he made a series of phone
calls from jail to Sandoval. The calls were played for the jury. The first was on
January 26, 2019, at 3:52 p.m., which Sandoval did not accept. The next day, January 27,
2019, at 11:46 a.m., appellant called again, and Sandoval did not accept. One minute
later, at 11:47 a.m., appellant called again, and Sandoval answered. When she answered,
appellant said:

“Dude I’m not gonna ‒ I’m not fuckin’ around right now dude, like, if I hit
this pod dude, they will ‒ they are gonna fuckin’ whack me. I need you to
drop these charges please. I’m not fuck‒”
Sandoval then ended the call. At 11:51 a.m., appellant called again, and said:

“Dude I’m – I’m sorry for what I did or for what I didn’t do but I don’t
deserve this dude. I understand what I did was wrong. It was fucked to
you but dude, like, I don’t deserve this. You know what I’m sayin’. I don’t
deserve my life to be fuckin’ taken away from me in here out of all fuckin’
places dude.”

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Sandoval hung up the call. At 12:00 p.m., appellant called again. When she answered,
they had the following conversation:

“[APPELLANT]: Dude please I’m begging you. Let me get the
repercussions that I need from out there, not in here.
Please. Dude as soon as I hit that fuckin’ pod dude
I’m done. Does that mean anything? Doesn’t that
mean anything to you at all, anything?

“[SANDOVAL]: My baby’s life didn’t mean anything to you.

[APPELLANT]: So then you’re just gonna let me just get killed in here
huh? That’s what you’re gonna let happen to me? Just
gonna get killed in here? You know what, I’m – I’m
sorry. I truly am. You know, I guess this will be the
last conversation anyone will ever fuckin’ hear from
me. I truly am sorry.”
The call then ended.
The prosecution also entered the emergency protective order into evidence. It
restrained appellant from contacting Sandoval either directly or indirectly. During his
testimony, appellant admitted to violating the protective order by calling Sandoval from
jail.
DISCUSSION
I. Sufficiency of the Evidence—Count 3
Section 136.1(b)(2) prohibits attempting to prevent or dissuade any victim or
witness of a crime from “[c]ausing a complaint, indictment, information, probation or
parole violation to be sought and prosecuted, and assisting in the prosecution thereof.”
(§ 136.1(b)(2).)
Appellant contends the evidence was insufficient to support his conviction under
section 136.1(b)(2) because the statute only applies to attempts to prevent or dissuade a
witness or victim from making an initial report. We disagree with appellant’s claim and
conclude sufficient evidence supported his conviction.

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 In assessing sufficiency of the evidence claims, “we review the whole record to
determine whether any rational trier of fact could have found the essential elements of the
crime or special circumstances beyond a reasonable doubt.” (People v. Zamudio (2008)
43 Cal.4th 327, 357.) We look for substantial evidence, which is evidence that is
reasonable, credible, and of solid value. (Ibid.) We review the evidence “in the light
most favorable to the prosecution and presume in support of the judgment the existence
of every fact the jury could reasonably have deduced from the evidence.” (Ibid.)
We review issues of statutory construction de novo. (People v. Gonzales (2018)
6 Cal.5th 44, 49.) Our goal is to determine the legislative intent of the statute. “Because
the statutory language is generally the most reliable indicator of that intent, we look first
at the words themselves, giving them their usual and ordinary meaning.” (Alford v.
Superior Court (2003) 29 Cal.4th 1033, 1040.) When the statutory language is
unambiguous, its plain meaning controls. We also “generally must ‘accord[]
significance, if possible, to every word, phrase and sentence in pursuance of the
legislative purpose,’ and [the California Supreme Court] ha[s] warned that ‘[a]
construction making some words surplusage is to be avoided.’ ” (People v. Valencia
(2017) 3 Cal.5th 347, 357.) Where the language supports more than one reasonable
construction, we may look to extrinsic aids, including the legislative history, for
additional guidance. (People v. Ruiz (2018) 4 Cal.5th 1100, 1105–1106.) Finally, in
exceedingly rare situations, the literal meaning of the statutory language may be
disregarded to avoid absurd results. (People v. Bell (2015) 241 Cal.App.4th 315, 351.)
In applying the above principles, we conclude that section 136.1(b)(2) is not
limited to “pre-reporting” attempts to dissuade, as appellant suggests. The plain language
of the statute in no way indicates the prohibited conduct must take place before a witness
or victim makes an initial report. Appellant asserts, however, and bases several of his
contentions on this assertion, that the statute only applies to initial reports because the
only way a witness can, in his words, “cause” a prosecution to be “sought” is by making

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an initial report. In making this assertion, appellant excludes key words from the statute,
and does so repeatedly throughout his briefing. The problem with appellant’s claim is
that the statute does not prohibit behavior dissuading a witness from causing a
prosecution simply to be “sought,” but “sought and prosecuted” “and assisting in the
prosecution thereof.” Appellant’s oversight of this language is significant, as this
language represents clear intent to include more than just an initial report of a crime, and
appellant’s interpretation renders the words “and prosecuted” and “and assisting in the
prosecution thereof” surplusage.
Further harmful to appellant’s claim is that courts have reasonably interpreted
“sought and prosecuted” as “filed.” As the court in People v. Reynoza (2022)
75 Cal.App.5th 181, review granted May 11, 2022, S273797 (Reynoza), recently
explained: “[T]he legislative history makes clear that legislators understood [the term
‘sought and prosecuted’] to refer to the filing of a[n accusatory pleading]. The bill
analysis generated by the Assembly Committee on Criminal Justice described this
subdivision as ‘covering the prevention or dissuasion or attempts from … [c]ausing an
accusatory pleading to be filed, or parole or probation report sought.’ [Citation.]
Similarly, the report of the Senate Committee on Judiciary described the subdivision as
making it a crime ‘to dissuade or attempt to dissuade a person from … [c]ausing an
accusatory pleading to be filed.’ ” (Id. at pp. 188‒189; see People v. Brown (2016)
6 Cal.App.5th 1074, 1082 (Brown) [“the prevention [charged in a § 136.1(b)(2)
prosecution] must occur before the relevant charging document has been filed”].2)
Appellant’s claim that section 136.1(b)(2) only applies to attempts of dissuasion cannot
be reconciled with this reasonable interpretation. The filing of a charging document

2 Appellant criticizes Brown’s interpretation of “sought and prosecuted” to mean
filed, but his argument is based on his repeated insistence “sought” does not mean
“filed.” Appellant, as we have stated in the body of the opinion, ignores the full phrase
“sought and prosecuted,” and we reject appellant’s criticism of Brown on this point.

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necessarily happens after an initial report has been made. This is particularly illustrated
by the fact that one of the documents listed in the statute is an information, which, by
statute, can only be filed after a complaint has been filed and a preliminary hearing has
been held, and the court has held the defendant to answer to the charges. (§ 738.)3
While we agree that “sought and prosecuted” means “filed,” under
section 136.1(b)(2), we note that what is relevant is not whether a complaint, indictment,
information, or any other charging document actually is filed or even contemplated, it is
whether the defendant acted with the specific intent to prevent or dissuade the witness
from “causing a complaint, indictment, information … to be sought and prosecuted, and
assisting in the prosecution thereof.” (§ 136.1(b)(2).) The Brown court explains this
aspect of the offense by stating, “Because preventing prosecution can be committed by a
mere attempt to prevent prosecution, presumably it could be committed after the charging
document was filed, as long as the defendant did not know the charging document had
been filed and still intended to prevent it from being filed.” (Brown, supra,
6 Cal.App.5th at p. 1082, fn. 3; Reynoza, supra, 75 Cal.App.5th at p. 189, quoting
Brown.) Of course, on the other hand, where the charged conduct takes place after a
charging document has been filed, and there is no evidence the defendant did not know
and no evidence the defendant had the intent to dissuade a witness from causing any
other charging document or an amended charging document to be filed, he or she cannot
be convicted of section 136.1(b)(2). (See Reynoza, at pp. 186‒187.)4

3 “Before an information is filed there must be a preliminary examination of the
case against the defendant and an order holding him to answer made under Section 872.
The proceeding for a preliminary examination must be commenced by written complaint,
as provided elsewhere in this code.” (§ 738.)
4 The Supreme Court has recently granted review of Reynoza to address the issue:
“Does Penal Code section 136.1, subdivision (b)(2), which prohibits dissuading or
attempting to dissuade a victim or witness from causing a charging document ‘to be
sought and prosecuted, and assisting in the prosecution thereof,’ encompass attempts to
dissuade a victim or witness after a charging document has been filed?”

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 Appellant asserts that Brown’s focus on when a charging document is filed creates
due process and equal protection issues because the filing of a charging document is an
event over which neither the defendant nor the witness/victim has any control, and as
such, we must read section 136.1(b)(2) as applying to “pre-reporting” attempts at
dissuasion only. In making these arguments, appellant is singularly focused on the
timing of the filing of the charging document and does not take into account the statute in
its entirety, particularly, its intent element. In focusing on the timing of the filing of the
charging document, Brown and later Reynoza appear to be highlighting that the statute is
intended to target conduct related to a specific stage in the prosecutorial process—the
filing of a charging document. Since the perpetrator must intend to prevent a witness or
victim from causing a charging document to be filed, the conduct must, incidentally, take
place before that point. Neither court, nor do we, however, suggest that any attempt
characterized as dissuasion occurring before a charging document is filed is a violation of
the statute based solely on the fact it takes place before the filing. The defendant’s intent
must be to prevent prosecution. Similarly, simply because a charging document is filed
does not mean that the statute cannot be violated if the defendant harbors the requisite
intent. Again, the focus is on the intent of the perpetrator, an element that appellant
overlooks to the detriment of his claim.
We find no due process issue arises from not limiting section 136.1(b)(2) solely to
attempts to dissuade initial reports because, as we have stated, the relevant issue is not
whether the charging document has actually been filed, but the defendant’s subjective
belief as to whether it has been, in addition to his intent to prevent it from being filed. In
any event, as respondent points out, any member of the public, including criminal
suspects and those in custody, can readily ascertain whether a charging document has
been filed against them. Accordingly, appellant’s claim that due process is implicated
because a defendant cannot know whether he or she is violating the statute because he “is
in no position to know whether a complaint has been filed … or not” is without merit.

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 For similar reasons, we reject appellant’s contention that an interpretation of
“sought and prosecuted” as “filed,” raises equal protection issues. He contends the
statute creates unequal treatment of two similarly situated groups: (1) a defendant who
believes a charging document has not been filed and attempts to dissuade a witness in
violation of the statute; and (2) a defendant who believes a charging document has been
filed and makes the same attempt to dissuade a witness, thus believing he or she is
committing not a potentially felony violation of section 136.1(b)(2), but a misdemeanor
violation of section 137, subdivision (c), inducing a witness to “withhold true material
information pertaining to a crime from, a law enforcement official.” Appellant has not
met the threshold requirement of an equal protection claim that the statute has “ ‘adopted
a classification that affects two or more similarly situated groups in an unequal
manner.’ ” (People v. McKee (2010) 47 Cal.4th 1172, 1202.) Section 136.1(b)(2) does
not affect a person who believes a charging document has already been filed because they
cannot by the plain language of the statute have the intent required to prevent it from
being filed.
Appellant also argues the placement of section 136.1(b)(2) in relation to section
136.1, subdivision (b)(1) (§ 136.1(b)(1)) and (b)(3) (§ 136.1(b)(3)) compels an
interpretation that section 136.1(b)(2) only applies to “pre-reporting” attempts to
dissuade. Section 136.1, subdivision (b) (§ 136.1(b)) reads as follows:

“(b) Except as provided in subdivision (c), every person who attempts to
prevent or dissuade another person who has been the victim of a crime or
who is witness to a crime from doing any of the following is guilty of a
public offense and shall be punished by imprisonment in a county jail for
not more than one year or in the state prison:

“(1) Making any report of that victimization to any peace officer or state or
local law enforcement officer or probation or parole or correctional officer
or prosecuting agency or to any judge.

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 “(2) Causing a complaint, indictment, information, probation or parole
violation to be sought and prosecuted, and assisting in the prosecution
thereof.

“(3) Arresting or causing or seeking the arrest of any person in connection
with that victimization.”
Appellant argues that section 136.1(b)(1) and (b)(3) “clearly apply to pre-reporting acts
of dissuasion”; therefore, as appellant reasons, section 136.1(b)(2) must too. Because we
find appellant’s claim to be defeated by the plain language of the statute, we reject
appellant’s claim at the outset, but it also fails because his premise is not true. While we
agree that section 136.1(b)(1) clearly refers to making a report, in our view, section
136.1(b)(3) does not necessarily encompass an initial report, and certainly does not
“clearly” do so. Just to present one hypothetical, a defendant could reasonably be guilty
of section 136.1(b)(3) where a victim of an assault calls the police and makes an initial
report, but the defendant attempts to dissuade them from causing that defendant’s arrest
before the police arrive.
Appellant also argues we should “follow” cases which he contends have
characterized section 136.1(b) in its entirety as applying to attempts to dissuade initial
reports to law enforcement, primarily People v. Fernandez (2003) 106 Cal.App.4th 943
(Fernandez), People v. Navarro (2013) 212 Cal.App.4th 1336 (Navarro), and People v.
Brackins (2019) 37 Cal.App.5th 56 (Brackins). None of these cases assist appellant.
In Fernandez, the court held that section 136.1(b)(1), which penalizes attempts to
prevent or dissuade a victim or witness from “[m]aking any report of that victimization to
any peace officer or state or local law enforcement officer or probation or parole or
correctional officer or prosecuting agency or to any judge,” does not include an attempt
to influence a victim’s testimony at a preliminary hearing. Fernandez declined to
interpret section 136.1(b)(1) as punishing “efforts to prevent or influence testimony”
when it did not “do so expressly” and other statutes covered such conduct. (Fernandez,
supra, 106 Cal.App.4th at p. 950, italics added.) In conducting its analysis of section

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136.1(b)(1), Fernandez stated that “section 136.1, subdivision (b) punishes a defendant’s
pre-arrest efforts to prevent a crime from being reported to the authorities.” (Fernandez,
at p. 950.)5
In Navarro, the appellate court addressed a freedom of speech challenge to
section 136.1(b)(1), and in analyzing and ultimately rejecting the claim, it relied on
identifying a strong government interest in “supporting and protecting citizens who wish
to report violations of its criminal laws.” (Navarro, supra, 212 Cal.App.4th at p. 1349.)
The court also stated in its analysis that “[s]ection 136.1, subdivision (b) protects and
supports persons seeking to report crimes,” and “does not single out or target speech, but
proscribes any conduct geared toward impeding a person from reporting a crime.” (Id. at
pp. 1349, 1350.)
In Brackins, the defendant was charged with a violation of section 136.1(b)(1) but
requested a modification of the jury instructions to include a malice element, which is an
element of section 136.1, subdivision (a)—dissuading a victim or witness from attending
or giving testimony at a trial. (Brackins, supra, 37 Cal.App.5th at pp. 64‒65.) The
appellate court rejected the defendant’s argument that there was “ ‘no logic’ ” to the
Legislature’s omission of a malice element from section 136.1(b). (Brackins, at p. 65.)
The appellate court reasoned that the omission of the malice element from section

5 We note that in making this statement, Fernandez relied on People v. Hallock
(1989) 208 Cal.App.3d 595, where the defendant was charged with “by means of force
and threats of unlawful injury to person and damage to the property of herself and
another, from making a report of such victimization to a peace officer, state and local law
enforcement officer, probation, parole, and correctional officer, prosecuting agency, and
judge; and arresting and causing and seeking the arrest of a person in connection with
such victimization, in violation of Section 136.1(c)(1) of the Penal Code” (Hallock, at
pp. 605‒606, italics added) or, simply stated, section 136.1(b)(1) and (b)(2) by means of
force and threats. The jury was instructed, however, with language from section 136.1,
subdivision (a), dissuading a witness from giving testimony. In comparing the charges
with the jury instructions, the court used section 136.1(b) as shorthand when referring to
the charges. (Hallock, at pp. 595, 605‒607.) Hallock did not address section 136.1(b)(2).

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136.1(b) was reasonable because in including a malice element in section 136.1,
subdivision (a), it may have been concerned, for example, about potentially criminalizing
an employer who intentionally prevented an employee from testifying at trial without a
malicious desire to thwart the administration of justice. (Brackins, at p. 67.) “Section
136.1, subdivision (b),” on the other hand, according to the Brackins court “requires the
perpetrator to intend to prevent a crime from even being reported by a victim or witness.”
(Ibid.)
Fernandez, Navarro, and Brackins do not advance and actually tend to harm
appellant’s claim. First, none of these cases construed the statute at issue or addressed
the specific question presented by appellant. Thus, we do not consider any general
statements contained in these cases that section 136.1(b) relates to attempts to dissuade a
witness from reporting a crime to stand for the proposition that section 136.1(b)(2) only
relates to the initial report of a crime. For this proposition, these statements are dictum.
(See In re Chavez (2003) 30 Cal.4th 643, 656 [a decision is authority only for points
actually considered and decided].)
Appellant acknowledges that Fernandez, Navarro, and Brackins do not squarely
address section 136.1(b)(2), but insists the analysis conducted within them are persuasive
as to his argument. We disagree. We do not view anything in these cases as precluding
us from interpreting section 136.1(b)(2) as we have, in accordance with its plain
language, nor compel us to limit section 136.1(b)(2) to attempts to dissuade a witness
from making an initial report.
We acknowledge that section 136.1 is one of a number of statutes in part I, title 7,
chapter 6 of the Penal Code, “which establishes a detailed and comprehensive statutory
scheme for penalizing the falsification of evidence and efforts to bribe, influence,
intimidate or threaten witnesses.” (Fernandez, supra, 106 Cal.App.4th at p. 948.) We
further acknowledge that Fernandez and other cases relied on by Fernandez interpreting
these statutes, have limited them according to their specific language in order to avoid

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overlap in their application. (Id. at p. 950; People v. Womack (1995) 40 Cal.App.4th 926,
931; People v. Hallock, supra, 208 Cal.App.3d at p. 607.) We do not agree with
appellant’s contention, however, that by applying this principle to section 136.1(b)(2), we
must conclude it only applies to attempts at dissuading an initial report. The analysis in
Fernandez tends to undermine appellant’s position. The court in Fernandez explained in
the context of the issue before it: “[W]hen the Legislature intends to penalize an effort to
influence or prevent testimony, or an effort to prevent the defendant from appearing in
court, it does so explicitly. Section 136.1, subdivision (b)(1) makes no reference to
testimony or courtroom appearances.” (Fernandez, at p. 949, 2nd italics added.)
“Section 136.1, subdivision (b)(1) should not be construed to punish efforts to prevent or
influence testimony when it does not do so expressly, and there are other statutes within
the same scheme that cover such conduct.” (Id. at p. 950, italics added.) The same
applies here; it does not follow that section 136.1(b)(2) was intended to apply to
dissuading an initial report because section 136.1(b)(1) expressly refers to “making a
report.” Had the Legislature intended section 136.1(b)(2) to only apply to initial reports,
we believe it would have done so expressly. “Where the Legislature makes express
statutory distinctions, ‘ “we must presume it did so deliberately, giving effect to the
distinctions, unless the whole scheme reveals the distinction is unintended. This concept
merely restates another statutory construction canon: we presume the Legislature
intended everything in a statutory scheme, and we should not read statutes to omit
expressed language or include omitted language.” ’ ” (In re Dakota H. (2005)
132 Cal.App.4th 212, 225–226.)
Appellant insists that the analyses in Navarro and Brackins assist him because, as
he asserts, they are dependent upon an interpretation that section 136.1(b) relates to initial
reports. For example, appellant finds significant that the Navarro court rejected the
appellant’s free speech challenge in part because the state has a strong interest in
witnesses and victims reporting crimes to law enforcement. Similarly, the Brackins court

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noted that because section 136.1(b)(1) required the defendant to have the specific intent
to prevent a witness or victim from making a report, there was no danger that a defendant
was doing so for a purpose other than to interfere with the prosecutorial process.
Appellant’s reliance on Navarro and Brackins is misplaced. Any reference to
initial reports to law enforcement were relevant to their analysis because they were
discussing section 136.1(b)(1), which expressly discusses initial reports to law
enforcement. These references do not persuade us that the Navarro and Brackins courts’
analyses of section 136.1(b)(1) limit section 136.1(b)(2) to attempts to dissuade an initial
report. Rather, in considering the analysis conducted in these cases, we find it can readily
be extended to the conduct section 136.1(b)(2) is intended to target. Similar to the state’s
interest in protecting those who wish to report crimes in Navarro, the strong state interest
in key witnesses and victims from participating so that a charging document can be filed
is an equally compelling interest affecting the early stages of a criminal prosecution that
justifies any alleged limit on speech the statute effects. And like in Brackins, section
136.1(b)(2) requires a specific intent to prevent a charging document from being filed,
which is a direct intent to interfere with the prosecutorial process and, like the court
reasoned in Brackins, eliminates the need for a malice requirement.
In summary, we reject appellant’s claim that section 136.1(b)(2) applies only to
attempts to dissuade a witness from making an initial report. It is belied by the plain
language of the statute and reasonable interpretations by other courts. Appellant’s
arguments that the principles of statutory construction and potential issues with due
process and equal protection compel us to read the statute as appellant asks are without
merit. Finally, the cases appellant cites—particularly Fernandez, Navarro, and
Brackins—are not persuasive to appellant’s argument, and in our view, further support
our ultimate conclusion.
We conclude appellant’s conviction is supported by substantial evidence.
Appellant called Sandoval, pleaded with her to “drop the charges,” with the expectation

16.
that her doing so would result in him being released from jail. The jury could reasonably
infer from his statements he had the requisite intent to dissuade Sandoval from causing a
charging document to be filed and assisting in its prosecution so that he would not face
criminal action. We reject appellant’s contention the People were required to provide
evidence that a charging document had not been filed, as the focus, as we have explained
at length, is the defendant’s intent. We reject appellant’s contention that his wording
“drop the charges” indicated he believed charges already had been filed and thus meant
he could not have had the requisite intent. In reviewing the evidence in the light most
favorable to the judgment, we conclude a reasonable interpretation of appellant’s
statement does not necessarily include his belief that a charging document had been
formally filed but rather an acknowledgement that Sandoval had made a report that
resulted in his arrest, frequently referred to colloquially as “pressing charges,” and
therefore that “charges” were pending against him. The jury was not presented with
evidence that appellant had been arraigned or had any knowledge of a charging document
being filed. Such evidence would have been impossible to present because, in reality, the
complaint was not filed until the day after appellant made the majority of his phone calls
to Sandoval. Based on the facts of the case, the jury could have reasonably believed
appellant intended to have Sandoval perform some action to fully exculpate appellant
such as recanting or changing her report or notifying the police or prosecutor she would
not be cooperating any further. This was sufficient to support appellant’s conviction.
II. Section 136.1(b)(2) Alleged Constitutional Violations
Appellant contends several constitutional issues arise from interpreting
section 136.1(b)(2) in a way that does not limit it to “pre-reporting” attempts at
dissuasion, none of which he raised in the trial court. Nonetheless, we will consider them
on their merits. “All issues, even those involving an alleged constitutional violation, are
subject to the rule of forfeiture, and a defendant’s failure to raise the issue before the trial
court will generally result in the appellate court’s refusal to consider it.” (Navarro,

17.
supra, 212 Cal.App.4th at p. 1347, fn. 9.) Notwithstanding this rule, we will consider the
issue for the first time on appeal because the argument “[is] legal, [is] based on
undisputed evidence, and center[s] on review of abstract and generalized legal concepts.”
(Ibid.) We reject each of his constitutional claims.
A. Free Speech
Appellant argues that a construction of the statute to apply to post-reporting acts of
dissuasion violates his rights to freedom of speech and expression, arguing that extending
the statute to apply to post-reporting conduct is not narrowly tailored enough to achieve a
government purpose. We disagree.
“The First Amendment, applicable to the States through the Fourteenth
Amendment, provides that ‘Congress shall make no law … abridging the freedom of
speech.’ The hallmark of the protection of free speech is to allow ‘free trade in ideas’—
even ideas that the overwhelming majority of people might find distasteful or
discomforting. [Citations.] Thus, the First Amendment ‘ordinarily’ denies a State ‘the
power to prohibit dissemination of social, economic and political doctrine which a vast
majority of its citizens believes to be false and fraught with evil consequence.’ ”
(Virginia v. Black (2003) 538 U.S. 343, 358.)
In Navarro, the appellate court considered a free speech facial challenge to
section 136.1(b)(1). The Navarro court rejected the challenge in part because the
statute’s “focus on the mental state of the perpetrator and his or her intent to affect or
influence a potential witness’s or victim’s report limits the statute’s reach by
distinguishing culpable conduct from innocent conversation and restrains use of its
provisions to inhibit protected speech.” (Navarro, supra, 212 Cal.App.4th at p. 1351.)
Accordingly, “[o]rdinary citizens discussing the criminal justice system and the pros and
cons of becoming involved in a police investigation would not run afoul of the law.” (Id.
at p. 1352, fn. omitted.) We agree with Navarro and believe the same reasoning applies
to section 136.1(b)(2), as the statute contains a specific intent element that the conduct

18.
must be intended to prevent a charging document to be filed. We reject appellant’s
assertion that Navarro was dependent upon and must be limited to its identification of the
government interest implicated by the statute as protecting people who wish to report a
crime, and as we have stated in our discussion of Navarro in Part I, ante, find the
governmental interest protecting key witnesses or victims who wish to cooperate in
initiating the prosecution of a crime to be equally compelling. Accordingly, we disagree
with appellant’s claims that our reading of section 136.1(b)(2) is not narrow enough so as
to prevent a risk of criminalizing protected speech and conclude the statute does not
facially violate the constitutional guarantee of free speech.
We also disagree with appellant that, as applied to him, the statute violates his
right to freedom of speech or expression. He contends his statement was “an expression
of his emotions and frustration with his situation, rather than any legitimate attempt to
interfere with the prosecutorial process.” We disagree. Appellant made several phone
calls to Sandoval, in violation of a protective order, ignoring her attempts to end the calls
without speaking to him. He pleaded with her to “drop the charges” so that he would not
be killed in jail. He repeatedly told her he would lose his life if he were to remain in jail
and was “begging” her. When she responded in a way suggesting she would not do
anything to help, he responded, “So then you’re just gonna let me just get killed in here
huh? That’s what you’re gonna let happen to me?” It is abundantly clear from the
circumstances of the present case that appellant was attempting to get Sandoval to take
some action to get him out of jail by attempting to appeal to her emotions by suggesting
if she did not, he would die. This was not a mere expression of frustration, but a clear
attempt to keep Sandoval from cooperating with the prosecution so that a charging
document could be filed.

19.
 B. Vagueness
Appellant also argues section 136.1(b)(2) does not provide adequate notice of the
prohibited conduct and is therefore unconstitutionally vague in violation of his due
process right. We disagree.
“ ‘The constitutional interest implicated in questions of statutory vagueness is that
no person be deprived of “life, liberty, or property, without due process of law,” as
assured by both the federal Constitution (U.S. Const., Amends. V, XIV) and the
California Constitution (Cal. Const., art. I, § 7). “ ‘Under both Constitutions, due process
of law in this context requires two elements: a criminal statute must “ ‘be definite
enough to provide (1) a standard of conduct for those whose activities are proscribed and
(2) a standard for police enforcement and for ascertainment of guilt.’ ” ’ ” (People v.
Morgan (2007) 42 Cal.4th 593, 605.) The California Supreme Court “has recognized
‘the strong presumption that legislative enactments “must be upheld unless their
unconstitutionality clearly, positively, and unmistakably appears. [Citations.] A statute
… cannot be held void for uncertainty if any reasonable and practical construction can be
given to its language.” ’ ” (Ibid.) “Therefore, ‘a party must do more than identify some
instances in which the application of the statute may be uncertain or ambiguous; he must
demonstrate that “the law is impermissibly vague in all of its applications.” ’ ” (Id. at
pp. 605‒606.) “Stated differently, ‘ “[a] statute is not void simply because there may be
difficulty in determining whether some marginal or hypothetical act is covered by its
language.” ’ ” (Id. at p. 606.)
Appellant contends that “it is not at all clear what it means to dissuade a witness
from ‘causing’ a complaint, (etc.) ‘to be sought.’ ” He points out that because the
Fernandez, Navarro, and Brackins courts have interpreted section 136.1(b) as a whole to
apply to “pre-reporting acts of dissuasion” and other courts, such as Brown, have not
done so, disagreements between the courts have arisen that demonstrate it would not be
possible for the average person to adequately understand what section 136.1(b)(2)

20.
prohibits. We disagree for many of the reasons we have already discussed. First, in
arguing it is not clear what it means to cause a charging document to be “sought,”
appellant again leaves out key words in the statute. Second, appellant overstates any
disagreement between the Courts of Appeal.6 As we have explained, we conclude the
statute is clear—it prohibits attempts at preventing a witness or victim from causing a
charging document to be filed and assisting in the prosecution thereof—this covers for
example the conduct here, where appellant is attempting to persuade the sole victim in a

6 One case appellant discusses at length and uses as an example of the
disagreements between different appellate courts that we have not so far addressed is
People v. Velazquez (2011) 201 Cal.App.4th 219. In Velazquez, the defendant was
convicted of three violations of section 136.1(b)(2) for telling a victim of a crime to drop
the charges against his fellow gang member. He argued on appeal that section
136.1(b)(2) was limited to prearrest efforts to prevent a crime from being reported,
relying on Fernandez. Velazquez rejected the defendant’s reliance on Fernandez but, in
doing so, commented that “Subdivision (b)(2) clearly encompasses more than prearrest
efforts to dissuade, inasmuch as it includes attempts to dissuade a victim from causing a
complaint or information to be prosecuted or assisting in that prosecution.” (Velazquez,
at pp. 232‒233, italics added.) Appellant criticizes Velazquez for suggesting the statute
could be violated either by causing a charging document to be filed “or” assisting in the
prosecution, which could allow a prosecution under section 136.1(b)(2) at any stage of
the prosecution, which is not a sufficiently narrow reading of the statute.
The Reynoza court made a similar criticism of Velazquez. We agree with this
criticism to an extent. The statute clearly contains the conjunctive “and” between the
phrase “causing [a charging document] to be sought and prosecuted” and the phrase
“assisting in the prosecution thereof,” which cannot be ignored or interpreted as the
disjunctive “or.” We do not agree, however, that Reynoza’s criticism of Velazquez
represents a disagreement that compels us to accept appellant’s claim the statute is
unconstitutionally vague. We do not believe the Velazquez court relied on the disjunctive
use of the statute in the case before it, as we note that although the arraignment in that
case had been held, there was no evidence a preliminary hearing had been held and,
therefore, no evidence an information had been filed. The issue before the court in
Velazquez was whether the statute applies to the timeframe before an arrest, not the
specific issue appellant raises here. We do not disagree with the Velazquez court’s
conclusion but, to the extent it reads the statute in a disjunctive form rather than
conjunctive form, we respectfully disagree, as such a reading is at odds with the plain
language of the statute.

21.
crime to prevent the filing of a charging document, so as to prevent altogether the
prosecution of an alleged crime.
Appellant also contends the statute is unconstitutionally vague as applied to the
facts of this case because he “would not have understood that his post-arrest call to
Sandoval would constitute an attempt to dissuade Sandoval from ‘causing’ a complaint
‘to be sought[,]’ ” contending Sandoval had already caused a complaint to be “sought.”
Appellant again fails to read the statute in its entirety and ignores the rest of the phrase—
“sought and prosecuted.” As we have stated, the reasonable interpretation of “sought and
prosecuted” includes the filing of the relevant charging document and thus extends to
postreporting attempts at dissuasion and clearly encompassed the behavior here.
III. Jury Instructions
The jury was instructed with the pattern instruction for dissuading a witness from
prosecuting a crime—CALCRIM No. 2622—as follows:

“The defendant is charged in Count 3 with dissuading a witness in violation
of Penal Code section 136.1(b)(2).

“To prove that the defendant is guilty of this crime, the People must prove
that:

“1. The defendant tried to prevent or discourage Allyshia
Sandoval from cooperating or providing information so that a
complaint, indictment or information could be sought and
prosecuted. and from helping to prosecute that action;

“2. Allyshia Sandoval was a crime victim;

AND

“3. The defendant knew he was trying to prevent or dissuade
Allyshia Sandoval from cooperating or providing information
so that a complaint, indictment or information could be
sought and prosecuted, and from helping to prosecute that
action and intended to do so.

22.
 “A person is a crime victim if there is reason to believe that a federal or
state crime is being or has been committed or attempted against him or her.

“It is not a defense that the defendant was not successful in preventing or
discouraging the crime victim.

“It is not a defense that no one was actually physically injured or otherwise
intimidated.”
Though appellant did not object to the instruction at trial, we will consider the merits of
his claim, as he contends the trial court misinstructed the jury on the elements of the
offense. Defendants may assert instructional error on appeal when it affects their
substantial rights. (§ 1259 [“appellate court may … review any instruction given, refused
or modified … if the substantial rights of the defendant were affected thereby”]; People
v. Coffman and Marlow (2004) 34 Cal.4th 1, 103, fn. 34 [permitting a defendant to raise
instructional error in accomplice instructions where the defendant did not object to
instruction at trial].) “ ‘[T]he trial court’s duty to fully and correctly instruct the jury on
the basic principles of law relevant to the issues raised by the evidence in a criminal case
is so important that it cannot be nullified by defense counsel’s negligent or mistaken
failure to object to an erroneous instruction or the failure to request an appropriate
instruction. [Citation.]’ (People v. Avalos (1984) 37 Cal.3d 216, 229.)” (People v.
Johnson (2016) 243 Cal.App.4th 1247, 1267.)
“We review de novo whether jury instructions state the law correctly.” (People v.
Jackson (2010) 190 Cal.App.4th 918, 923.) “ ‘When an appellate court addresses a claim
of jury misinstruction, it must assess the instructions as a whole, viewing the challenged
instruction in context with other instructions, in order to determine if there was a
reasonable likelihood the jury applied the challenged instruction in an impermissible
manner.’ ” (People v. Jennings (2010) 50 Cal.4th 616, 677.) “ ‘[W]e presume the jury
understood and followed the court’s instructions.’ ” (People v. Erskine (2019) 7 Cal.5th
279, 303.) If possible, we interpret the instructions “so as to support the judgment rather

23.
than defeat it if they are reasonably susceptible to such interpretation.” (People v.
Laskiewicz (1986) 176 Cal.App.3d 1254, 1258.)
Appellant contends that by replacing the word “causing” from the statutory
language with “cooperating or providing information,” the instruction is erroneous in two
ways. First, appellant contends, the language is inconsistent with a statement in Brown
where the court explained that “ ‘the victim must be so central to the case as to be able to
cause the filing. Plenty of persons with material information about a crime are
nevertheless not so central to it as to be in a position to cause, rather than merely assist,
the prosecution.’ ” Second, appellant contends the word “causing” implies a temporal
element which requires the conduct to have occurred at a time where it would have been
possible to stop the prosecution from occurring.
We disagree that the CALCRIM pattern language changes the statute in a way that
misstates the law. In making his argument, appellant ignores the full phrase that has
replaced the word “causing” in the statute—“cooperating or providing information so
that a complaint, indictment, or information could be sought and prosecuted….” The “so
that … could be” language alleviates the issues presented by appellant, as they, in our
view, fully encompass the meaning of “cause.” The combination of “so that” and “could
be” implies that Sandoval must have been reasonably central to the case that she could
stop the prosecution and that the attempt must have occurred at a time before one of the
named charging documents had been filed. It is not reasonably likely the jury would not
have understood this concept from the instructions provided.
IV. Mistrial Motion Denial
A. Relevant Background
During jury selection, one of the prospective jurors indicated she was a probation
officer and was not familiar specifically with appellant but was perhaps familiar with his
family members. When the prospective jurors were later asked whether they had any
legal training or experience, this prospective juror responded that she had written

24.
numerous presentence investigation reports for the court and had assisted in proofing and
editing sentencing reports. The court then asked, “And let me just clarify on the record,
have you ever written a sentencing report or had any other contact in any way with this
defendant—with [appellant]?” The prospective juror responded, “I’m not sure. Gaytan
sounds very familiar, but like I said, I—there is a lot of Gaytans locally, so he does not
look familiar to me.” The prospective juror went on to say she could not be sure she had
not.
At the next break, counsel lodged an objection to the way the court asked the
question, arguing the court “may have inadvertently prejudiced the jury by implying
[appellant] has suffered prior convictions and has required probation reports to be written
by the probation department.” The court indicated it would give the jury a limiting
instruction and asked whether counsel thought doing so would draw too much attention
to the issue. Defense counsel stated he did not object to the instruction being given.
When the prospective jurors were back in the courtroom, the court instructed them
as follows: “I just want to remind you all as we head into more questioning at this time
that nothing said by the Court, counsel, or any other potential jurors during this voir dire
process is evidence in this case and should not be used as such during any deliberations in
this case.”7
During Maldonado’s testimony at trial, when outlining his attempt to locate
appellant, he stated he spoke to appellant’s “parole agent.” Defense counsel objected.
Following a bench conference, the court struck Maldonado’s answer and instructed the
jury to disregard it.
Five minutes later, Maldonado testified that as part of his investigation he spoke to
appellant in a “parole building.” Counsel again objected. The court struck the answer

7 The prospective juror was excused. Appellant contends it is difficult to tell from
the record how many ultimately-seated jurors were present for the exchange, but
estimates it was at least seven.

25.
and instructed the jury to disregard the answer. The court subsequently called the lunch
recess.
Following lunch, before the court called the jury back into the courtroom, defense
counsel moved for a mistrial based on Maldonado’s two suggestions appellant was on
parole. After hearing arguments from counsel, the court denied the motion, concluding
that appellant’s chances of receiving a fair trial had not been irreparably damaged
because curative admonitions had been given to the jury. The court noted that if there
were to be another mention of appellant’s criminal history, it would likely grant a mistrial
motion.
B. Analysis
Appellant contends the court erred by denying appellant’s mistrial motion based
on the aforementioned brief references to his criminal history. We disagree.
“[A] motion for mistrial should be granted only when ‘ “a party’s chances of
receiving a fair trial have been irreparably damaged.” ’ ” (People v. Ayala (2000)
23 Cal.4th 225, 282.) The court should grant a motion for mistrial if prejudice to the
defendant arises that is “ ‘ “incurable by admonition or instruction.” ’ ” (People v.
Franklin (2016) 248 Cal.App.4th 938, 955.) “[I]t is only in the ‘exceptional case’ that
any prejudice from an improperly volunteered statement cannot be cured by appropriate
admonition to the jury.” (Ibid.) A trial court’s ruling to deny a motion for mistrial is
reviewed on appeal under the abuse of discretion standard. (People v. Maury (2003)
30 Cal.4th 342, 434.)
We conclude the court did not abuse its discretion by denying the mistrial motion.
The brief and ambiguous references to appellant’s potential interaction with probation or
parole were stricken from the record and the jury was admonished not to consider them.
Our Supreme Court has repeatedly found any prejudice arising from brief and ambiguous
references to a defendant’s past criminality can be cured by appropriate admonition to the
jury and thus does not result in an error of constitutional magnitude. (See, e.g., People v.

26.
Collins (2010) 49 Cal.4th 175, 199 [a “brief and ambiguous” reference to a defendant’s
arrest and being in jail was curable by admonition]; People v. Avila (2006) 38 Cal.4th
491, 572‒574 [any prejudice arising from witness’s statement the defendant had “barely
got[ten] out of prison” at the time of the offense was cured by admonition to “ ‘disregard
that testimony and treat it as though you had never heard it. You shall not consider it for
any purpose. In your deliberations you may not discuss or consider it’ ”]; People v.
Valdez (2004) 32 Cal.4th 73, 128 [“brief and isolated” statement by witness that he had
interviewed the defendant in jail did not warrant mistrial].)
Here, though appellant points out three references to probation or parole, we
conclude, even in their totality, they were brief and ambiguous enough so as to be cured
by the admonitions given by the trial court. The question by the trial court during jury
selection was vague as to appellant’s criminal history, directed solely at one prospective
juror, and the prospective juror indicated she did not believe she had prepared any
sentencing reports for appellant. In context, it is unlikely the seated jurors who were
present during the exchange put much emphasis on the questioning particularly in light of
the trial court’s admonition. The trial references to parole were offhanded remarks made
voluntarily by the witness and struck from the record by the trial court. The prosecutor
did not bring up the references again and did not improperly use them to argue appellant
was guilty. (Cf. People v. Garcia (2014) 229 Cal.App.4th 302, 312 [improper reference
to the defendant’s sexual orientation in a sex abuse trial was a violation of the
defendant’s due process rights where prosecutor used it to argue guilt].) They did not
contain any details or even suggest appellant had suffered a criminal conviction; rather,
as respondent points out, the references only suggested appellant had some interaction
with parole.
We note that appellant cites several cases where evidence the defendant had been
charged with or convicted of a prior crime was deemed incurable by admonition to the
jury to disregard the evidence, such as People v. Figuieredo (1955) 130 Cal.App.2d 498,

27.
505‒506 [where a trial court denied defense counsel’s motion to strike a police officer’s
references to the defendant having been in San Quentin, the defendant was deprived of a
fair trial], People v. Ozuna (1963) 213 Cal.App.2d 338, 341‒342 [a witness’s reference to
the defendant as an “ex-convict” was not curable by admonition], and People v. Allen
(1978) 77 Cal.App.3d 924, 934‒935 [the trial court erred in failing to grant the
defendant’s motion for mistrial after a witness testified appellant was “on parole” despite
having stricken the testimony and admonished the jury]. These cases do not assist
appellant. These cases all predate more recent controlling California Supreme Court
precedent8 that establishes brief and ambiguous references to prior criminality are curable
by admonition. We also find these cases distinguishable because there the witnesses
disclosed prior felony charges or convictions; here, as respondent correctly points out, the
references in the present case only suggested appellant had some interaction with parole.
Even if we were to find error, we conclude any error was harmless under any
standard. Appellant discusses at length in his briefing how references to criminal history
can prejudice a defendant because of “two distinct tendencies of juries”: (1) “the
tendency to convict a man of the crime charged, not because he is guilty of that offense,
but because evidence introduced indicates that he is a ‘bad man’ who should be
incarcerated regardless of his present guilt”; and (2) “the tendency to infer that because
the accused committed one crime, he is likely to have committed [the] crime charged.”
Here, the jury found appellant not guilty of counts 1 and 2, the domestic violence
and burglary charges. The victim, as well as a percipient witness, testified to these
offenses, and appellant was recorded making statements to Sandoval such as he was sorry
for “what [he] did” and that it was “wrong” and “f[...]ed,” which could have reasonably
been interpreted to connote consciousness of guilt. Detective Maldonado testified

8 See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [decisions
of the California Supreme Court are binding upon and must be followed by all state
courts of California.]

28.
appellant denied being present at the scene altogether. During trial, appellant was
impeached by the statement he gave Maldonado, and testified he was present at the time
of the assault but did not enter Sandoval’s home or participate in the physical assault
against her. All this to say—we note that in our review of the cold record—the People’s
evidence of guilt was more than sufficient to support convictions in counts 1 and 2, but in
context of the totality of the evidence presented to the jury, the jury clearly credited
appellant’s testimony over the other witnesses. Given the jury’s verdicts, it is clear none
of the alleged undue prejudice appellant identifies was present in this case. The jury
clearly did not base its verdicts on their assumption that appellant was a “bad man” or
that he was guilty of all crimes charged just because he had a criminal history.
V. Refusal to Sanitize Criminal Convictions For Impeachment
A. Relevant Background
Following the prosecution’s case-in-chief, defense counsel announced appellant’s
decision to testify. Counsel asserted the decision was based on the court’s denial of his
mistrial motion, explaining that the defense felt the “damage has already been done” with
regard to any prejudice the jury had toward appellant due to his criminal history.
At that point, the prosecutor moved to unbifurcate the trial. In response, appellant
requested the court to “sanitize” appellant’s priors during his testimony. Counsel
requested the prior offenses be only referred to by their statutory numbers and not by
their “common names,” as they were “highly prejudicial.”
The trial court heard argument on the issue and determined that because appellant
was choosing to testify, the trial would be unbifurcated. The court found the admission
of appellant’s two prior convictions was appropriate for impeachment purposes and that
the use of the common names was not unduly prejudicial as they were different than the
crimes charged in the case.

29.
 During direct examination, appellant admitted to being convicted of carjacking
and evading law enforcement in 2009 and assault with a deadly weapon in 2015. He
testified to pleading guilty to the crimes because he “knew [he] was guilty.”
B. Analysis
Appellant contends the court erred by declining to sanitize his prior convictions to
be used for impeachment to exclude the use of the crimes’ common names. We disagree.
A witness’s felony convictions involving moral turpitude are admissible for
impeachment purposes, subject to the court’s discretion under Evidence Code
section 352. (Evid. Code, § 788; People v. Wheeler (1992) 4 Cal.4th 284, 296; People v.
Castro (1985) 38 Cal.3d 301, 306–307, 312.) A trial court may exercise its discretion to
sanitize the descriptions of prior convictions where the nature of the unsanitized prior
convictions would be more prejudicial than probative of the witness’s credibility (Castro,
at pp. 305–306; People v. Massey (1987) 192 Cal.App.3d 819, 825), such as where the
impeaching offenses are similar or identical to the current charges (People v. Foreman
(1985) 174 Cal.App.3d 175). We review the trial court’s ruling on whether to exclude
impeachment evidence under Evidence Code section 352 for abuse of discretion. (People
v. Green (1995) 34 Cal.App.4th 165, 182–183.)
Appellant concedes the felonies were crimes involving moral turpitude and thus,
according to his brief, “plainly admissible,” but contends the names of the offenses were
irrelevant because they did not have to do with honesty or veracity and, for that reason,
the risk of undue prejudice outweighed the probative value.
The court did not abuse its discretion in refusing to sanitize the carjacking,
evading law enforcement, and assault with a deadly weapon convictions. The crimes
were probative to appellant’s credibility as crimes of moral turpitude. Further, as the
court stated, because they were not substantially similar to the crime charged, they were

30.
not unduly prejudicial.9 Indeed, had the jury not been informed of the nature of the prior
offenses, they may have speculated about them to appellant’s detriment. (See People v.
Massey, supra, 192 Cal.App.3d at p. 825.) Further, the court instructed the jury that if it
determined appellant had been convicted of a felony, they “may consider that fact only in
evaluating the credibility of the Defendant’s testimony” and to “consider that evidence
only for that purpose and for no other.” (CALCRIM No. 303.)
Finally, as with the denial of the mistrial motion, under any standard, we find any
error harmless given the jury’s verdict. As we have explained, given its verdict, the jury
was clearly not unduly prejudiced against appellant based on his prior criminal history.
VI. Section 667.5, Subdivision (b) Enhancements
In October 2019, the Legislature passed Senate Bill No. 136 (2019-2020 Reg.
Sess.), amending section 667.5, subdivision (b) to state that a one-year term under that
section shall only be imposed “for each prior separate prison term for a sexually violent
offense ….” (Stats. 2019, ch. 590, § 1.) Thus, Senate Bill No. 136 eliminated the prior
prison term enhancement except in cases involving sexually violent offenses. The law
went into effect on January 1, 2020. Appellant argues his one-year prior prison term
enhancements must be stricken, and respondent agrees.
Effective January 1, 2022, Senate Bill No. 483 (2021-2022 Reg. Sess.) added
section 1171.1, which provides that a section 667.5, subdivision (b) sentence
enhancement imposed prior to January 1, 2020, except for one imposed for a prior
sexually violent offense, is “legally invalid.” (Stats. 2021, ch. 728, § 3.) Here, as
appellant’s prior prison terms were not imposed for sexually violent offenses, the

9 We acknowledge that in making its ruling, the court relied in part on the fact the
trial would be unbifurcated, when in reality, it was ultimately bifurcated. However,
because the court also relied on an independent analysis of the potential undue prejudice,
this did not constitute error under the circumstances of the case.

31.
section 667.5, subdivision (b) enhancements imposed in this case are invalid and must be
stricken.
DISPOSITION
We strike the one-year section 667.5, subdivision (b) enhancements. The court
shall direct an amended abstract of judgment to be prepared and forwarded to the
appropriate authorities. In all other respects, the judgment is affirmed.

DE SANTOS, J.

WE CONCUR:

LEVY, Acting P. J.

MEEHAN, J.

32.