People v. Lester CA5

Filed 7/27/22 P. v. Lester 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,
F079801
Plaintiff and Respondent,
(Super. Ct. No. F19902097)
v.

PHILLIP RAY LESTER, OPINION
Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Fresno County. Houry A.
Sanderson, Judge.

Jenny M. Brandt, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and
Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
 INTRODUCTION
Witnesses observed defendant Phillip Ray Lester hit Tauleva Vaielua with a metal
baseball bat, causing him to fall to the ground. While Vaielua was still on the ground,
defendant hit him again. Vaielua suffered physical injuries from the incident. Defendant
claimed he acted out of self-defense because Vaielua had been following defendant with
a long metal pole. A jury convicted defendant of assault with a deadly weapon and found
true that he inflicted great bodily injury. The trial court imposed the upper term of four
years for the assault conviction, plus an additional three years to run consecutively for the
great bodily injury enhancement, for a total aggregate term of seven years’ imprisonment.
On appeal, defendant, who is deaf, alleges multiple claims of error he asserts are
“entwined with [his] disability.” He claims the trial court erred by admitting his
statement to police following the incident because his waiver made pursuant to Miranda
v. Arizona (1966) 384 U.S. 436 (Miranda) was not knowing, voluntary, and intelligent.
Defendant also claims, because he is deaf and was not provided a sign language
interpreter during his interrogation, his statement to police was inadmissible under
Evidence Code section 754, subdivision (k), and his counsel provided ineffective
assistance by failing to object to its admission under this section. (Further undesignated
statutory references are to the Evidence Code.) Next, defendant claims the trial court
denied him due process and a fair trial when it excluded testimony regarding the
circumstances of his statement. Additionally, defendant contends the trial court erred
when it refused to instruct the jury with CALCRIM No. 331, as requested by the defense.
Last, defendant claims cumulative error warrants reversal of his conviction. After
supplemental briefing, the parties agree the matter should be remanded for resentencing
under Penal Code section 1170, subdivision (b), as amended by Assembly Bill No. 567
(2021–2022 Reg. Sess.) (Assembly Bill 567).
We agree the matter should be remanded to the trial court for resentencing, but
otherwise affirm the judgment.

2.
 FACTUAL BACKGROUND
Prosecution evidence
Two witnesses testified they heard loud noises and observed defendant and
Vaielua (described in testimony as the “Hispanic” or “Mexican” man) in the street
circling and going back and forth towards each other like they were going to fight.
Defendant was holding a baseball bat and Vaielua was holding a long metal pole. Both
witnesses saw defendant hit Vaielua with the baseball bat, causing him to fall to the
ground. One witness noted defendant hit Vaielua in the head with the baseball bat. The
other witness observed Vaielua raise the metal pole and swing it at defendant first.
Defendant caught the pole and continued to hit Vaielua with the bat while he was on the
ground.
Two video recordings of the incident from two different angles were played for
the jury. Both videos show defendant and Vaielua moving around each other and going
back and forth towards each other. The videos show Vaielua moving toward defendant,
then defendant hitting him on or near his head with the baseball bat, and Vaielua falling
to the ground. The videos also show defendant hitting Vaielua again while Vaielua was
lying on the ground. Once defendant started hitting Vaielua, witnesses in their vehicles
honked their horns and moved forward towards defendant, who stopped.
Vaielua explained that on the day of the incident he was living in a handmade hut,
which defendant came over to and destroyed with a bat. Vaielua did not know defendant
prior to this incident, never did anything to defendant, and did not know why defendant
destroyed his home. When Vaielua told defendant to stop, he did not stop, but instead
showed Vaielua his bat like he was going to hit him. Vaielua found a steel pole and
picked it up to defend himself. Vaielua then chased defendant down the road for two to
five blocks. Vaielua stated he was following defendant because defendant still had the
bat and Vaielua was looking for people to call the police; he did not want defendant to hit
somebody or to destroy someone else’s hut. Vaielua testified that he did not start the

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fight. Vaielua admitted that he swung the metal pole at defendant, but stated that it was
not to hit him, but to block him and keep him away. According to Vaielua, defendant hit
him first, which he blocked with his pole; but the second time defendant hit him, Vaielua
fell to the ground.
Vaielua stated he was injured as a result of this incident. He received three
separate injuries to his head from being hit by defendant with the bat. Vaielua is now
paralyzed on his right side and requires the use of a wheelchair. Vaielua also suffers
back pain and groin and leg pain, which he did not have before the incident. At the time
of trial, Vaielua was still at the hospital, where he was receiving physical therapy to help
him walk.
Defense evidence
Defendant testified with the assistance of two sign language interpreters.
Defendant stated, on the day of the incident, he rode his bicycle to a store and locked it
outside with a chain. When he came out of the store, he saw two men, one Mexican and
one Black, standing next to his bike. He saw one of them cut the chain on his bike.
Defendant followed the two men as they walked away with his bicycle. When he caught
up with them, defendant confronted them about his bicycle and tried to take it back, but
the Mexican man hit his shoulder with a knife. Defendant said he could not see what the
two men were doing because they were blocking him, but he believed it involved drugs.
Defendant tried to grab his bicycle, but they pushed him away and the Black man left
with his bicycle.
According to defendant, the Mexican man (Vaielua) began facing off with him;
moving whenever defendant moved. Vaielua picked up a metal pole and started
following him. Because Vaielua had a metal pole, defendant picked up a baseball bat he
saw laying around so they would be evenly matched. Defendant left the area, but Vaielua
kept coming after him. According to defendant, he was afraid Vaielua was going to try to
kill him. Defendant testified Vaielua attacked him first, and defendant defended himself

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by grabbing the metal pole and hitting Vaielua with the bat. On cross-examination,
defendant added that he thought Vaielua had hit his head on a rock when he fell to the
ground. Defendant stated he only hit Vaielua one time. When he saw Vaielua on the
ground, defendant became afraid and left him there. Defendant dropped the bat when the
police arrived. He told Detective Eric Hull he hit Vaielua only one time and denied
telling the detective he hit Vaielua two times.
Rebuttal evidence
Detective Hull testified he interviewed defendant following the incident. Before
starting the interview, Detective Hull was informed defendant was deaf and had a hard
time communicating with the initial officer. So, Detective Hull communicated with
defendant in writing. On a pad of paper, Detective Hull wrote, “My name is Detective
Hull, [h]ave you ever been read or read your Miranda rights?” Defendant responded in
writing back, “Okay, I can understand. I’m deaf mute.” Detective Hull wrote out
questions with yes or no responses, but some of defendant’s responses were short
answers as well. Defendant initially told Detective Hull in writing that he hit Vaielua one
time, but later told him he hit Vaielua twice. Defendant pointed to his left arm at the
upper bicep shoulder area that looked like an older scab that may have been picked. The
written communication between Detective Hull and defendant was entered into evidence
as People’s exhibit 20.
Verdict and Sentencing
The jury deliberated for approximately three days, which included a readback of
all the testimony presented at trial. The jury found defendant guilty of assault with a
deadly weapon other than a firearm (Pen. Code, § 245, subd. (a)(1)) and found true that
he inflicted great bodily injury on Vaielua (id., § 12022.7, subd. (a)). After noting
defendant’s background included a lengthy criminal history dating back to young
adulthood, and consisting of four felony convictions, the trial court imposed the upper

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term of four years for the assault conviction, plus three years consecutively for the great
bodily injury enhancement, for a total term of seven years in state prison.
DISCUSSION
I. Admission of Defendant’s Written Statement Did Not Violate the Fifth and
Fourteenth Amendments to the United States Constitution
Defendant contends the trial court erred in admitting his written statements
because he did not knowingly, voluntarily, and intelligently waive his Miranda rights.
Defendant claims the trial court’s error in admitting his statements was prejudicial and
therefore, his conviction should be reversed. We conclude the statements were properly
admitted.
A. Relevant Factual and Procedural History
In pretrial motions in limine, defense counsel requested a section 402 hearing
before admitting any statements defendant made to Detective Hull. The court reviewed
two videotapes of defendant’s interrogation, the transcript of the written communication,
and heard testimony from Detective Hull.
Detective Hull testified defendant was under arrest at the time of questioning and
not free to leave. While waiting to be interrogated, defendant gestured that he wanted to
write. Detective Hull was made aware defendant was deaf; he brought pen and paper in
with him to question defendant. Detective Hull was not certified in sign language and did
not attempt to get a sign language interpreter for defendant. Detective Hull conducted his
interrogation with defendant in writing. He did not ask defendant if defendant was
literate. He presumed that when people can write, they can read.
Before the interview began, Detective Hull allowed defendant to read his Miranda
rights from Detective Hull’s department-issued Miranda card. The card states:
“Miranda Warnings: You have the right to remain silent. Anything you say can and may
be used against you in court. You have the right to talk to a lawyer and have him present
with you while you are being questioned. If you cannot afford to hire a lawyer, one will

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be appointed to represent you before any questioning if you wish. Do you understand
each of these rights I have read to you?”
Detective Hull wrote down a question for defendant on a piece of paper asking if
defendant understood his Miranda rights. Defendant responded by circling the word
“yes” and, according to Detective Hull, affirmatively nodding his head up and down.
Detective Hull did not expressly ask defendant if he waived his Miranda rights, but, after
giving defendant the Miranda rights card to read, Detective Hull asked defendant
whether he wanted to communicate with him about what happened. A video recording of
the interaction between Detective Hull and defendant and the written communication
between them were introduced as exhibits at trial. They discussed the incident in the
written exchange, which is reflected below:1

“[DETECTIVE:] My name is Detective Hull, have you ever been read
or read your Miranda rights?

“[DEFENDANT:] Okay I can understand. [¶] I’m deaf mute.

“[DETECTIVE:] I understand. This card is your Miranda rights. Do
you want to communicate with me about what happened?

“Do you understand each of your Miranda rights? Yes or No.

“[DEFENDANT:] [circles ‘Yes’] Man say try to kille ne kifne.

“[DETECTIVE:] I watched a video of a man with long hair trying to
hit you with a metal pole. Why were you two attacking each other?

“[DEFENDANT:] Men try to store my biker.

“[DETECTIVE:] Stole your bike?

“[DEFENDANT:] Yes.

“[DETECTIVE:] Do you know the other guy you fought?

1See People’s exhibit 20. The original written communication does not distinguish who
wrote what. The court adopts the undisputed designation of what defendant and the detective
wrote, as set forth in Appellant’s Opening Brief and Respondent’s Brief.

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 “[DEFENDANT:] Yes.

“[DETECTIVE:] Why was he attacking you?

“[DEFENDANT:] New my bike from Waltmar.

“[DETECTIVE:] He only attacked you because your bike was from
Wal-Mart?

“[DEFENDANT:] Yes. [¶] Men don’t keke to [mosgsson bike] meth?
Sell my biker.

“[DETECTIVE:] I don’t understand? [¶] In the video I watched, I
seen you hit the other man with a baseball bat.

“[DEFENDANT:] Yes.

“[DETECTIVE:] Why did you hit the other man with the bat? How
many times did you hit him with the bat?

“[DEFENDANT:] 1 Kill to me.

“[DETECTIVE:] You’re saying the other man threatened to kill you?

“[DEFENDANT:] Yes.

“[DETECTIVE:] What exactly was the threat? What did he say?

“[DEFENDANT:] No I don’t know about [for] him.

“[DETECTIVE:] What word is this? [pointing to bracketed word
above]

“[DEFENDANT:] For.

“[DETECTIVE:] In the video I watched, it appeared that you hit the
other man on the head with the baseball bat 2 or 3 times while he was on
the ground.

“[DEFENDANT:] 2.

“[DETECTIVE]: So you are now saying you hit him twice with the
bat? Earlier you stated it was only one time. Are you being entirely
truthful?

“[DEFENDANT:] No.

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 “[DETECTIVE:] What it is you are not being truthful about?

“[DEFENDANT:] Ok.

“[DETECTIVE:] Do you regret hitting that man with a baseball bat?

“[DEFENDANT:] Yes.

“[DETECTIVE:] If you could go back and change what happened
today, would you have walked away or did exactly what you did?

“[DEFENDANT:] No.

“[DETECTIVE:] So you would have walked away?

“[DEFENDANT:] Yes.

“[DETECTIVE:] Are you sorry?

“[DEFENDANT:] Ok.

“[DETECTIVE:] Yes or no?

“[DEFENDANT:] [circles ‘No’]

“[DETECTIVE:] So are you okay with hitting another person 3 times
on the head with a baseball bat?

“[DEFENDANT:] Yes.

“[DETECTIVE:] Do you consider yourself a violent person?

“[DEFENDANT:] No.

“[DETECTIVE:] If you could apologize to the man you hit with the
bat, would you?

“[DEFENDANT:] Yes.

“[DETECTIVE:] The first hit, I understand. But, the two hits while he
was on the ground seemed to be excessive. What do you think?

“[DEFENDANT:] Yes.”

9.
 Defense counsel contended once defendant wrote he is deaf and mute, “the
appropriate response would be to get an interpreter.” He noted the questions were “yes”
or “no.”
After the court watched video footage of the exchange, it explained its primary
concern was whether or not the Miranda rights were properly administered and if there
was a knowing and willing express waiver or agreement to communicate with the
detective. The court explained it “actually also heard the word ‘yes’ or ‘yeah’” come
from defendant in the video. The court noted, “[i]t might not be the clearest of the yeses,
but there was a definite affirmative response verbalized.” The court further noted,
defendant was making other sounds and pointing to his arm.
Accordingly, the court concluded defendant’s Miranda “rights were given to him.
I observed him actually looking at those rights attentively, and he looked at them again
when the officer pointed to it one more time. He started writing and [it] appears he wrote
the words you say that are on the exhibit. And then the officer further wrote down the
communication with him about what happened, and then I observed [defendant] in that
video circle, that very first circle that’s on this document.”
Defense counsel asserted, “The problem is we don’t know what part he’s saying
yes to or no to. He can’t verbalize … or explain or say, ‘I’m confused. I don’t
understand this part of the question’ or ‘that part of the question.’ [¶] [H]e can try to
mumble and be cooperative as he can with law enforcement, but … we don’t know what
he’s saying yes or no to, because we don’t even know if he’s literate.”
The court reiterated its finding the Miranda warnings were properly administered.
It advised defense counsel the issue could be revisited if and when the evidence was
introduced if counsel became aware of additional pertinent authority.

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 B. Standard of Review and Applicable Law
“The Fifth Amendment to the United States Constitution, which applies to the
states by virtue of the Fourteenth Amendment, provides that no person may be compelled
to be a witness against himself or herself.” (People v. Linton (2013) 56 Cal.4th 1146,
1170–1171; accord, Maldonado v. Superior Court (2012) 53 Cal.4th 1112, 1127.) In
Miranda, supra, 384 U.S. 436, the high court “‘adopted a set of prophylactic measures to
protect a suspect’s Fifth Amendment right from the “inherently compelling pressures” of
custodial interrogation.’” (Linton, supra, at p. 1171, quoting Maryland v. Shatzer (2010)
559 U.S. 98, 103; see Miranda, supra, at p. 479; People v. Jackson (2016) 1 Cal.5th 269,
338–339.) Pursuant to Miranda, a suspect “must be warned prior to any questioning that
he has the right to remain silent, that anything he says can be used against him in a court
of law, that he has the right to the presence of an attorney, and that if he cannot afford an
attorney one will be appointed for him prior to any questioning if he so desires.”
(Miranda, supra, at p. 479.)
It is well settled that after a suspect hears and understands these rights, he or she
may waive them. (Maryland v. Shatzer, supra, 559 U.S. at p. 104; Miranda, supra, 384
U.S. at p. 475; People v. Leon (2020) 8 Cal.5th 831, 843; People v. Linton, supra, 56
Cal.4th at p. 1171; People v. Tate (2010) 49 Cal.4th 635, 683.) To establish a valid
Miranda waiver, the prosecution bears the burden of establishing by a preponderance of
the evidence that the waiver was knowing, intelligent, and voluntary under the totality of
the circumstances of the interrogation. (Maryland v. Shatzer, supra, at p. 104; Moran v.
Burbine (1986) 475 U.S. 412, 421; Leon, supra, at p. 843; Linton, supra, at p. 1171;
People v. Williams (2010) 49 Cal.4th 405, 425.)
The question of whether a valid Miranda waiver was given must be determined on
“‘the particular facts and circumstances surrounding that case, including the background,
experience, and conduct of the accused.’” (North Carolina v. Butler (1979) 441 U.S.
369, 374–375, quoting Johnson v. Zerbst (1938) 304 U.S. 458, 464; see United States v.

11.
Washington (1977) 431 U.S. 181, 188.) Language difficulties encountered by a
defendant during custodial interrogation are “one factor” to be considered in determining
whether a defendant knowingly and intelligently waived his or her Miranda rights. (U.S.
v. Garibay (9th Cir. 1998) 143 F.3d 534, 537.)
The waiver need not be an express waiver but may be implied from words and
action. (See Berghuis v. Thompkins (2010) 560 U.S. 370, 384–385 [no formalistic waiver
procedure required in order to relinquish Miranda rights]; North Carolina v. Butler,
supra, 441 U.S. at pp. 373, 375–376 [explicit waiver not required to find defendant
waived Miranda rights].) Where the prosecution shows a Miranda warning was given
and was understood by the accused, an accused’s uncoerced statement establishes an
implied waiver of the right to remain silent. (Berghuis, supra, 560 U.S. at p. 384.) The
Supreme Court has never required Miranda warnings be given in any particular form or
manner. (See, e.g., Missouri v. Seibert (2004) 542 U.S. 600, 611; Duckworth v. Eagan
(1989) 492 U.S. 195, 202; California v. Prysock (1981) 453 U.S. 355, 359; Berghuis,
supra, at p. 385.)
In assessing the validity of a waiver of Miranda rights, a reviewing court must
“conduct an independent review of the trial court’s legal determination” of whether the
Miranda waiver was voluntary, knowing, and intelligent under the totality of
circumstances surrounding the interrogation. (People v. Williams, supra, 49 Cal.4th at p.
425; see People v. Whitson (1998) 17 Cal.4th 229, 236.) By its nature, this standard of
review is not deferential “to a trial court’s granting or denial of a motion to suppress a
statement under Miranda insofar as the trial court’s underlying decision entails a
measurement of the facts against the law.” (People v. Waidla (2000) 22 Cal.4th 690,
730; see People v. McWhorter (2009) 47 Cal.4th 318, 346 [independent review of trial
court’s determination regarding Miranda].)
In reviewing defendant’s claim that his Miranda rights were violated, we accept
the trial court’s resolution of disputed facts and inferences, as well as its evaluation of the

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credibility of witnesses, where supported by substantial evidence. (People v. Leon,
supra, 8 Cal.5th at p. 843; People v. Case (2018) 5 Cal.5th 1, 20; People v. Duff (2014)
58 Cal.4th 527, 551; People v. Hensley (2014) 59 Cal.4th 788, 809 [reviewing court
accepts trial court’s determination of disputed facts if supported by substantial evidence];
People v. Dykes (2009) 46 Cal.4th 731, 751; People v. Davis (2009) 46 Cal.4th 539, 586;
People v. Cruz (2008) 44 Cal.4th 636, 667; People v. Wash (1993) 6 Cal.4th 215, 235;
People v. Kelly (1990) 51 Cal.3d 931, 947.) “‘“‘“We independently determine from the
undisputed facts and the facts properly found by the trial court whether the challenged
statement was illegally obtained.”’” [Citations.]’” (Leon, supra, at p. 843; see Duff,
supra, at p. 551.)
Any erroneous admission of statements obtained in violation of Miranda are
reviewed for prejudice pursuant to Chapman v. California (1967) 386 U.S. 18. Under the
Chapman standard, the reviewing court inquires whether the error may be deemed
harmless beyond a reasonable doubt. (Arizona v. Fulminante (1991) 499 U.S. 279, 310;
People v. Cunningham (2001) 25 Cal.4th 926, 994; Chapman, supra, at p. 24 [the
remaining evidence must establish guilt beyond a reasonable doubt].)
C. Analysis
Defendant contends he did not knowingly, voluntarily and intelligently waive his
Miranda rights. Defendant argues Detective Hull failed to obtain the assistance of a sign
language interpreter, even though Detective Hull knew he was deaf and mute, and
instead, chose to conduct the interrogation in writing. Defendant contends his Miranda
waiver is invalid because it was not clear he was literate and able to understand the
written Miranda advisement. In support, defendant argues his responses to Detective
Hull’s questions were often unintelligible and nonsensical, demonstrating that he could
not have understood his Miranda rights. As such, defendant claims his Miranda rights
were not properly waived, and therefore, his written statements to Detective Hull should

13.
have been suppressed. Defendant contends such error was prejudicial and his conviction
should be reversed.
Here, based upon our independent review of the totality of the circumstances
surrounding the interrogation, we conclude the record supports a finding defendant was
sufficiently able to understand, and he knowingly, voluntarily, and intelligently waived
his Miranda rights.2 (See Maryland v. Shatzer, supra, 559 U.S. at p. 104; Moran v.
Burbine, supra, 475 U.S. at p. 421; People v. Leon, supra, 8 Cal.5th at p. 843; People v.
Linton, supra, 56 Cal.4th at p. 1171; People v. Williams, supra, 49 Cal.4th at p. 425.) In
the video recording, before his interview with Detective Hull began, defendant appears to
gesture he wanted something with which to write. After Detective Hull wrote his first
question to defendant asking if defendant had ever been read his Miranda rights,
defendant responded in writing that he could understand. Detective Hull then handed
defendant the card containing the Miranda advisements. Defendant can be seen on the
video looking at the card. Then, after looking at the card, defendant circled “yes,”
responding to whether he understood his Miranda rights and made an audible sound
when Detective Hull pointed to the question. Although defendant misspelled some words
and had poor grammar, his written answers were generally responsive to the written
questions. Notably, Detective Hull asked defendant what a specific word was and
defendant was able to clarify it by writing “for,” demonstrating he had at least some
ability to read and understand what Detective Hull wrote. On this record, we conclude
the facts and circumstances demonstrate defendant was sufficiently able to read and
understand his Miranda rights. (See U.S. v. Bernard S. (9th Cir. 1986) 795 F.2d 749, 753
[concluding defendant voluntarily, knowingly and intelligently waived Miranda rights
where rights were read and explained to him; he stated he understood each right and

2Since Detective Hull’s interrogation of defendant was recorded, the facts
surrounding his written statements are undisputed and we apply an independent review.
(People v. Leon, supra, 8 Cal.5th at p. 843; People v. Duff, supra, 58 Cal.4th at p. 551.)

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signed a written waiver; and he answered questions in English “and at no time indicated
that he did not understand what was being said to him”]; U.S. v. Martinez (9th Cir. 1978)
588 F.2d 1227, 1234–1235 [noting defendant’s contention he did not understand Miranda
warnings given in different Spanish dialect was “seriously weakened” by fact he
continued to converse with officer who read him warnings]; U.S. v. Gonzales (9th Cir.
1984) 749 F.2d 1329, 1336 [evidence supported conclusion defendant knowingly and
intelligently waived Miranda rights where he was read his rights, appeared to understand
them, read and signed cards explaining his rights in two languages, and continued to
converse with officer thereafter]; People v. Debouver (2016) 1 Cal.App.5th 972, 978
[voluntary and knowing Miranda waiver where defendant signed Miranda waiver,
provided written statement, and answers were responsive to questions asked].)
Additionally, defendant’s lengthy criminal history also supports an inference he was
familiar with, understood, and knowingly and intelligently waived his Miranda rights.
(See People v. Lessie (2010) 47 Cal.4th 1152, 1169 [evidence supported finding
defendant knowingly and voluntarily waived Miranda rights where nothing in record
suggested defendant did not understand them and noting defendant “was no stranger to
the justice system”]; Debouver, supra, at p. 978 [defendant’s familiarity with law
enforcement and experience with criminal justice system supported finding of voluntary
and knowing Miranda waiver]; see generally North Carolina v. Butler, supra, 441 U.S. at
pp. 374–375 [“‘the question of waiver must be determined on ‘the particular facts and
circumstances surrounding that case, including the background, experience, and conduct
of the accused’”]; People v. Mosby (2004) 33 Cal.4th 353, 365 [“‘a defendant’s prior
experience with the criminal justice system’ is, as the United States Supreme Court has
concluded, ‘relevant to the question [of] whether he knowingly waived constitutional
rights’”].)
A suspect’s expressed willingness to answer questions after acknowledging an
understanding of his Miranda rights has itself been held sufficient to constitute an

15.
implied waiver of such rights. (People v. Cruz, supra, 44 Cal.4th at p. 667, citing People
v. Medina (1995) 11 Cal.4th 694, 752; People v. Sully (1991) 53 Cal.3d 1195, 1233.)
Although Detective Hull did not specifically ask defendant if he waived his Miranda
rights, a suspect who desires to waive his Miranda rights and submit to law enforcement
interrogation need not do so with any particular words or phrases. (See Cruz, supra, at p.
667; see also North Carolina v. Butler, supra, 441 U.S. at p. 373.) Here, there is nothing
in the record indicating that defendant’s statement was coerced or involuntary. (See
Moran v. Burbine, supra, 475 U.S. at p. 421 [waiver was voluntary in the sense that it
was the product of a free and deliberate choice rather than intimidation, coercion, or
deception].) Instead, defendant acknowledged he understood his Miranda rights and
demonstrated his willingness to waive those rights and answer questions by nodding his
head in affirmation, circling “yes” to the question if he wished to communicate, and by
then willingly responding to Detective Hull’s written questions. Given “‘the particular
facts and circumstances surrounding [the] case, including the background, experience,
and conduct of the accused’” (North Carolina v. Butler, supra, at p. 374), we find that,
while defendant did not expressly waive his Miranda rights, he did so implicitly by
nodding affirmatively, and “by willingly answering questions after acknowledging that
he understood those rights” (People v. Lessie, supra, 47 Cal.4th at p. 1169).
While it would have been better practice to use a sign language interpreter to
convey the Miranda warnings to a suspect who is deaf, we are aware of no authority for
the proposition that, as a matter of constitutional law, one is always required. Rather,
courts in other jurisdictions have considered the issue on a case-by-case basis. (See, e.g.,
People v. Brannon (Mich.Ct.App. 1992) 194 Mich.App. 121, 129–130 [486 N.W.2d 83,
87–88] [finding valid waiver where warnings were provided to hearing-impaired
defendant in written form]; State v. Perry (Tenn.Crim.App. 1999) 13 S.W.3d 724, 739
[finding valid waiver by deaf defendant where no sign language interpreter was used, but
the defendant understood the written word]; see also Stanley v. Lazaroff (6th Cir. 2003)

16.
82 Fed.Appx. 407, 420–422 [finding valid waiver where officer communicated warnings
to hearing-impaired defendant in “pidgin” sign language]; People v. McBride (Mich.
2008) 480 Mich. 1047, revg. (Mich.Ct.App. 2006) 273 Mich.App. 238 [729 N.W.2d 551]
[finding hearing-impaired defendant validly waived her Miranda rights by signing a
written form, even though the sign language interpreter did not explain the form].)
Although defendant argues English and American Sign Language are two separate
languages, courts have found valid Miranda waivers even when the warnings were not
communicated in the defendant’s primary language where the circumstances indicate the
suspect understood his rights. (See Companeria v. Reid (2d Cir. 1989) 891 F.2d 1014,
1020 [“Even though [defendant’s] proficiency in the English language may have been
limited, it did not prevent him from making a knowing and intelligent waiver of his
constitutional rights”]; U.S. v. Bernard S., supra, 795 F.2d at p. 752; U.S. v. Gonzales,
supra, 749 F.2d at p. 1336 [evidence demonstrated the non-Spanish-speaking officer and
the Spanish-speaking defendant understood each other].) Any language difficulties
encountered by a defendant are considered as a factor in determining if there has been a
valid waiver. (U.S. v. Bernard S., supra, at pp. 751–752; see U.S. v. Heredia-Fernandez
(9th Cir. 1985) 756 F.2d 1412, 1415; see also U.S. v. Martinez (9th Cir. 1978) 588 F.2d
1227, 1234–1235 [argument Miranda warnings were inadequate due to different dialect
of Spanish were weakened by evidence defendant continued to converse with the officer
who read him the warnings]; U.S. v. Gonzales, supra, at pp. 1335–1336 [reviewing
language difficulties in determining whether waiver was valid].) Here, however, the facts
and circumstances, as discussed ante, show defendant understood the written
communication with Detective Hull and continued to communicate with him in writing.
Therefore, there was no evidence of any language difficulty substantial enough to
invalidate the Miranda waiver.
Although defendant argues the detective did nothing to determine whether
defendant was literate, Detective Hull testified he assumed defendant was literate since

17.
he was able to read the questions and provide written answers. Defendant himself wrote
“I can understand,” in response to Detective Hull’s first written question. Defendant also
took his time looking at the Miranda card, and for the most part, was able to provide
responsive answers to Detective Hull’s written questions. Even considering there were
grammatically poor responses, defendant was able to provide clarification on the word
“for” when Detective Hull asked what the word was, supporting an inference he
understood what Detective Hull wrote. Thus, we find no indication Detective Hull
sought to take advantage of defendant by communicating the warnings in written form
rather than using a sign language interpreter. (See Rice v. Cooper (7th Cir. 1998) 148
F.3d 747, 750 [where police have no reason to think the suspect does not understand,
there is nothing that smacks of abusive behavior.].)
The cases defendant cites in support of his argument are inapposite. First, People
v. Barajas (1978) 81 Cal.App.3d 999 is unrelated as it does not involve Miranda, but
whether unintelligent and inaudible portions of a tape recording could be admitted into
evidence. (Barajas, supra, at p. 1012.) People v. Salas (1978) 77 Cal.App.3d 600 is also
irrelevant as it concerns a motion made pursuant to Faretta v. California (1975) 422 U.S.
806 and the defendant’s constitutional right to represent himself. Additionally, the facts
in U.S. v. Garibay, supra, 143 F.3d 534 and Gov’t of Canal Zone v. Gomez (5th Cir.
1978) 566 F.2d 1289 are factually distinguishable from the present case. In Garibay, the
defendant was mainly Spanish speaking, but the agent assumed he was sufficiently
proficient in English to understand and waive his Miranda rights. The defendant’s
inability to understand the oral instructions, coupled with his low IQ, established he could
not have knowingly and intelligently waived his Miranda rights. (Garibay, supra, at pp.
537–538.) Here, unlike in Garibay, Detective Hull knew defendant was deaf and
accommodated him by using written communication. And there was no evidence
introduced at trial regarding defendant’s intelligence level, other than what could be
inferred from his written statements. In Gomez, the Miranda waiver was deemed not

18.
knowing or intelligent because the defendant was unable to read or write or speak
English, and he was from another country and unfamiliar with our laws. (Gomez, supra,
at p. 1292.) Here, unlike in Gomez, defendant never testified he could not read or write,
video evidence shows defendant appearing to read the Miranda card and writing his own
responses, and because of his criminal history, defendant was familiar with our criminal
process.
Rather, this case is more like the facts in Stanley v. Lazaroff, supra, 82 Fed.Appx.
407, where the defendant was deaf but able to communicate with the police officer in
writing. The Stanley court found the defendant’s demeanor indicated he understood the
information being conveyed to him and that his written responses to the officer were
appropriate. The Stanley court noted the defendant answered each question and that not
every question was answered with a “yes,” as the defense suggested was part of deaf
culture. Instead, the defendant also answered “no” to some questions, which supported
the conclusion he was not merely agreeing with everything the officer communicated.
(Id. at p. 420.) Similarly, here, defendant was able to provide short sentence written
responses to the detective’s written questions, as well as both “yes” and “no” responses,
contradicting defendant’s assertion his “yes” answers are just part of deaf culture, even
when yes is not meant. (See ibid.) We note defendant’s demeanor also reflected he
understood and was willing to communicate: he used gestures to indicate he wanted to
use pen and paper to communicate, nodded his head in affirmation, and wrote his own
short sentence responses. (See ibid.) Like in Stanley, defendant and the detective were
communicating effectively, even if imperfectly, during the interrogation and issuance of
the Miranda warnings, which sufficiently demonstrated he understood his Miranda rights
and his waiver was valid. (Stanley, supra, at p. 423.)
The circumstances sufficiently establish defendant understood his Miranda rights
and knowingly, voluntarily, and intelligently chose not to exercise his right to remain
silent. (See, e.g., People v. Parker (2017) 2 Cal.5th 1184, 1216; People v. Cruz, supra,

19.
44 Cal.4th at pp. 668–669; People v. Sully, supra, 53 Cal.3d at p. 1233; People v. Davis,
supra, 29 Cal.3d at pp. 823–826; Stanley v. Lazaroff, supra, 82 Fed.Appx. at p. 423.)
Therefore, we conclude the circumstances surrounding the interrogation reveal both an
uncoerced choice and the requisite level of comprehension to demonstrate defendant
validly waived his Miranda rights. (See Colorado v. Spring (1987) 479 U.S. 564, 573;
Moran v. Burbine, supra, 475 U.S. at p. 421; see, e.g., Parker, supra, at p. 1216.)
Regardless, even assuming a Miranda violation occurred, defendant’s statements
were nonetheless admissible for impeachment purposes. The United States Supreme
Court in Harris v. New York (1971) 401 U.S. 222 (Harris) decided that a statement taken
in violation of Miranda is inadmissible at trial in the prosecution’s case-in-chief but is
admissible to impeach the defendant’s credibility as a witness, so long as the statement
otherwise is voluntary. (Harris, at pp. 225–226; accord, Oregon v. Hass (1975) 420 U.S.
714, 723–724 [a statement taken after the police fail to honor the suspect’s invocation of
the right to counsel during interrogation is admissible for impeachment purposes]; People
v. Hoyt (2020) 8 Cal.5th 892, 970; People v. Demetrulias (2006) 39 Cal.4th 1, 29–30;
People v. Peevy (1998) 17 Cal.4th 1184, 1188 [statement taken in violation of Miranda is
otherwise admissible to impeach the defendant’s credibility as a witness].) Under our
California Constitution, statements taken in violation of Miranda are to be excluded from
evidence only to the extent required by the federal Constitution, thus we are bound to
apply the rules established in Harris and its progeny. (Cal. Const., art. I, § 28, subd. (d);
Peevy, supra, at p. 1188; People v. May (1988) 44 Cal.3d 309, 315.) Here, defendant’s
postarrest statements were not introduced during the People’s case-in-chief but only after
defendant took the stand and gave conflicting testimony regarding the number of times he
hit Vaielua. Therefore, even if there had been a Miranda violation, defendant’s written
statements were admissible for impeachment purposes under Harris.3

3Defense counsel’s ex parte application to expand the scope of appointment to include
preparation and filing of a petition for writ of habeas corpus and for an order authorizing funds to

20.
II. Defendant Forfeited His Claim Under Section 754, Subdivision (k), and Fails
to Demonstrate His Counsel Provided Ineffective Assistance by Failing to
Object to the Admission of Defendant’s Statement under Section 754,
Subdivision (k)
Defendant next claims, because the police did not use a sign language interpreter
when they interrogated him, even though they knew he was deaf, his statement was
inadmissible at trial under section 754, subdivision (k). Defendant also claims he
received ineffective assistance of counsel for his attorney’s failure to object to the
admission of his statement under section 754, in violation of the Sixth and Fourteenth
Amendments of the United Stated Constitution. We find no error.
A. Relevant Factual Background
During the section 402 hearing, defense counsel argued his written statements
should be suppressed because he should have been given a sign language interpreter
during police interrogation. However, when asked for authority by the trial court, he
failed to cite any case law or authority that supported his position.
B. Standard of Review and Applicable Law
1. Section 754
Section 754, subdivision (k) states that “[a] statement, written or oral, made by an
individual who the court finds is deaf or hard of hearing in reply to a question of a peace
officer, or any other person having a law enforcement or prosecutorial function in a

hire an expert is denied. Counsel asserts “the basis of the habeas petition would be that because
trial counsel did seek to suppress [defendant’s] statement on the basis that he was illiterate and
unable to understand the admonishment regarding his Fifth Amendment rights, because an
expert’s evaluation and opinion could have changed the trial court’s decision as to whether to
admit the statement, and because the admitted statement was prejudicial, trial counsel violated
[defendant’s] Sixth and Fourteenth Amendment rights to the effective assistance of counsel.”
Counsel alleges defendant could not “present the instant claim via his direct appeal because it
relies on materials outside of the record,” including defendant’s school records, declarations
from experts in deaf literacy and interactions with police, and statements from trial counsel
regarding his reasons for not calling an expert to testify at trial. However, as the court has
concluded, even if there was a Miranda violation, defendant’s statements were admissible for
impeachment purposes under Harris. Therefore, the court denies counsel’s ex parte application
to expand the scope of appointment to file the petition for writ of habeas corpus.

21.
criminal or quasi-criminal investigation or proceeding, shall not be used against that
individual who is deaf or hard of hearing unless the question was accurately interpreted
and the statement was made knowingly, voluntarily, and intelligently and was accurately
interpreted, or the court finds that either the individual could not have used an interpreter
or an interpreter was not otherwise required by Title II of the federal Americans with
Disabilities Act of 1990 (Public Law 101-336) and federal regulations adopted
thereunder and that the statement was made knowingly, voluntarily, and intelligently.”
2. Ineffective Assistance of Counsel
To establish ineffective assistance of counsel, the defendant must show counsel’s
performance fell below an objective standard of reasonableness under prevailing
professional norms and this conduct was prejudicial to his case, that is, there is a
reasonable probability that, but for counsel’s failings, the result would have been more
favorable to the defendant. (Strickland v. Washington (1984) 466 U.S. 668, 688, 694
(Strickland).)
In evaluating trial counsel’s actions, “a court must indulge a strong presumption
that counsel’s conduct falls within the wide range of reasonable professional assistance.”
(Strickland, supra, 466 U.S. at p. 689; see People v. Dennis (1998) 17 Cal.4th 468, 541.)
Thus, a defendant must overcome the presumption that the challenged action might be
considered sound trial strategy under the circumstances. (Strickland, supra, at p. 689;
People v. Dennis, supra, at p. 541.) “Reasonableness must be assessed through the likely
perspective of counsel at the time.” (People v. Ochoa (1998) 19 Cal.4th 353, 445.) On
direct appeal, when no explanation for counsel’s conduct can be found in the record, “we
must reject the claim on appeal unless counsel was asked for and failed to provide a
satisfactory explanation, or there simply can be no satisfactory explanation.” (People v.
Scott (1997) 15 Cal.4th 1188, 1212; see People v. Hernandez (2004) 33 Cal.4th 1040,
1053.)

22.
 In considering a claim of ineffective assistance of counsel, it is not necessary to
determine “‘whether counsel’s performance was deficient before examining the prejudice
suffered by the defendant as a result of the alleged deficiencies. … If it is easier to
dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which
we expect will often be so, that course should be followed.’” (In re Fields (1990) 51
Cal.3d 1063, 1079, quoting Strickland, supra, 466 U.S. at p. 697; In re Cox (2003) 30
Cal.4th 974, 1019 [same].) To prevail on an ineffective assistance of counsel claim, the
defendant must demonstrate a “reasonable probability” that absent the errors the result
would have been different. (People v. Williams (1997) 16 Cal.4th 153, 215; People v.
Ledesma (1987) 43 Cal.3d 171, 217–218; People v. Mesa (2006) 144 Cal.App.4th 1000,
1008.) “A reasonable probability is a probability sufficient to undermine confidence in
the outcome.” (Strickland, supra, at p. 694; see Ledesma, supra, at p. 218.)
C. Analysis
Initially we note defense counsel failed to object to the admission of defendant’s
statement under section 754. Therefore, the claim that defendant’s statements should
have been excluded under this section is forfeited. (See People v. Fuiava (2012) 53
Cal.4th 622, 721; People v. Partida (2005) 37 Cal.4th 428, 433–434.)
Nor can we conclude defendant has overcome the strong presumption defense
counsel’s failure to object on this basis fell outside the wide range of reasonable
professional assistance. Counsel in this case was not asked for an explanation regarding
why he did not object to the admissibility of defendant’s statement under section 754.
And it is possible counsel’s failure to object was a tactical decision because he did not
believe such a motion had merit. (See People v. Ochoa, supra, 19 Cal.4th at p. 463
[“Representation does not become deficient for failing to make meritless objections”];
People v. Price (1991) 1 Cal.4th 324, 387 [“Counsel does not render ineffective

23.
assistance by failing to make motions or objections that counsel reasonably determines
would be futile”].)
As discussed above, the court had already concluded defendant knowingly,
voluntarily, and intelligently waived his Miranda rights, and his subsequent statements
were admissible on that basis. Defense counsel could have reasonably believed the
court’s holding suggested it did not believe an interpreter was otherwise required by the
federal Americans with Disabilities Act of 1990 (42 U.S.C. § 12101 et seq.) (ADA) and
thus, the court would have held the statement admissible under section 754.
Consequently, defendant fails to demonstrate he received ineffective assistance of
counsel for not objecting to the admission of his statement under section 754. (See
People v. Boyette (2002) 29 Cal.4th 381, 437 [counsel not ineffective for not making a
futile objection].)
Even if trial counsel erred by not objecting to the admission of defendant’s written
statement under section 754, subdivision (k), defendant fails to demonstrate he was
prejudiced as a result. Assuming, arguendo, that the trial court would have sustained
counsel’s objection to the evidence, here, the People’s case comprised testimony from the
victim, two eyewitnesses who observed defendant hitting Vaielua with the baseball bat
after he had fallen to the ground, and video evidence recording the incident showing
defendant hitting Vaielua after he was on the ground. (See Strickland, supra, 466 U.S. at
p. 695 [in assessing prejudice, the court must consider the totality of the evidence].) And
although defendant argues his written statements are prejudicial, in them, defendant also
suggested to the detective that he acted in self-defense, thus supporting his theory of self-
defense. Further, defendant testified at trial and admitted he hit Vaielua with a baseball
bat, reducing potential prejudice and alleged inflammatory impact of his written
statements. Accordingly, we cannot conclude there is a reasonable probability defendant
would have obtained a more favorable result even if counsel had objected and the court
excluded his prior statement on this basis. (See Strickland, supra, at p. 700 [“Failure to

24.
make the required showing of either deficient performance or sufficient prejudice defeats
the ineffectiveness claim”]; see also People v. Jennings (1991) 53 Cal.3d 334, 357.)
In so concluding, we do not agree with defendant that the time the jury spent
deliberating necessarily demonstrates a close call in the case. First, there was no
evidence the jury was ever unable to reach a verdict. (See People v. Walker (1995) 31
Cal.App.4th 432, 438 [no evidence during deliberation that jury was unable to reach a
verdict].) Additionally, the jury requested a readback of all the witness testimony, which
took time for the court reporter to prepare and then to read. (See ibid. [time spent
listening to readback of witnesses’ testimonies should not be included in the time
calculated for deliberations].) While in some cases our Supreme Court has inferred a
close case from unduly lengthy deliberations, we cannot do so under the facts of this
case, which would require more concrete evidence. (See id. at pp. 438–439; e.g., In re
Martin (1987) 44 Cal.3d 1, 51.) Instead, we conclude the length of the deliberations may
be reconciled with the jury’s conscientious performance of its civic duty, rather than its
difficulty in reaching a decision. (See Walker, supra, at p. 439; People v. Gutierrez
(2018) 20 Cal.App.5th 847, 863.)
In sum, even if defendant’s statements to Detective Hull had been excluded, it is
not reasonably probable the result would have been different. (See People v. Williams,
supra, 16 Cal.4th at p. 215; People v. Ledesma, supra, 43 Cal.3d at pp. 217–218; People
v. Mesa, supra, 144 Cal.App.4th at p. 1008.) Consequently, defendant cannot establish a
claim of ineffective assistance of counsel. (See Strickland, supra, 466 U.S. at p. 697;
Williams, supra, at p. 215; Ledesma, supra, at pp. 217–218; Mesa, supra, at p. 1008.)
III. The Trial Court Did Not Err by Excluding Testimony Regarding Defendant’s
Education Level and Language Barriers.
Defendant complains the trial court erroneously excluded evidence about his
education level and language barriers, which he states would have allowed the jury to
fully evaluate the reliability and accuracy of defendant’s statement to police. Defendant

25.
claims the evidence should not have been excluded because it was relevant and probative,
with minimal chance to prejudice the jury. Defendant contends that excluding this
evidence was prejudicial error, requiring reversal of his conviction. We find no error.
A. Relevant Procedural History
On cross-examination, the People asked defendant if he “remember[ed] speaking
to an officer after [he was] arrested on March 26th, 2019?” He replied “Yes. I can’t
believe—I couldn’t—I said I was deaf. I couldn’t understand any written
communication.” The People objected as nonresponsive, the trial court sustained the
objection and struck the answer. During defense counsel’s cross-examination of
Detective Hull, the following colloquy took place:

“[DEFENSE COUNSEL]: Q And are you aware [defendant] was a
deaf mute?

“[DETECTIVE HULL:] A Yes. That was the first thing he wrote to
me.

“Q Are you aware of a lot of deaf mutes are illiterate?

“[THE PROSECUTOR]: Objection. Counsel is testifying. Motion in
limine.

“THE COURT: Just one moment. The objection is sustained.
Counsel, pose a question if you are asking for foundational question.

“[DEFENSE COUNSEL]: Q You mentioned earlier that the way you
communicate with my client was written yes or no questions; is that
correct?

“A I asked him yes or no questions. However his responses were
short sentences as well. Not just yes or no.

“Q Did you ask if my client graduated from the 12th grade?

“[THE PROSECUTOR]: Objection, relevance. Beyond the scope.

“THE COURT: Sustained.

26.
 “[DEFENSE COUNSEL]: Q Did you ask my client his educational
level?

“[THE PROSECUTOR]: Objection, relevance. Beyond the scope.

“THE COURT: On the beyond the scope, it’s sustained. So would
you like to have a side bar, [defense counsel]?

“[DEFENSE COUNSEL]: Yes, Your Honor.

“THE COURT: Be right back, folks. [¶] (Thereupon a brief
conference was held in the hallway, unreported.)”
Back on the record, defense counsel’s cross-examination continued:

“Q Did you ever call for a sign language interpreter?

“A No.

“[THE PROSECUTOR]: Objection, relevance. Motion in limine.

“THE COURT: Sustained.

“[THE PROSECUTOR]: Move to strike.

“THE COURT: Stricken.

“[DEFENSE COUNSEL]: Q Are you familiar with the Americans with
Disability Act?

“[THE PROSECUTOR]: Objection. Calls for—

“THE COURT: Sustained.

“[DEFENSE COUNSEL]: Q What reasonable accommodations were
made for a 61 year old deaf mute?

“[THE PROSECUTOR]: Objection, relevance.

“THE COURT: Counsel, let me see you side bar again, please.
[¶] (Thereupon a brief conference was held in the hallway, unreported.)

“THE COURT: Back on the record again. Status quo remains. The
last objection is sustained. And any answers are stricken if there was any.
You may continue with your questioning, sir.”

27.
 In a subsequent conference outside the presence of the jury, the following
discussion occurred:

“[THE COURT:] Subsequently, in the most recent side bars there
were concerns raised by the People as to [defense counsel]’s cross-
examination of Detective Hull specifically related to what appeared to be
improper questioning based on [defendant’s] inability to properly identify
or understand what was being said or done, which effectively suggests to
the Court there was a Miranda violation legal ground objection. Those
words were not uttered in front of the jurors, but that’s how I read that.
That [defendant] was not afforded the proper translator or didn’t understand
or didn’t have the capacity.

“All of those things are pretrial motions. Not jury matters to be
decided, [defense counsel]. The first time it sounded like you understood
and accepted it. And then, you went right back into the same vein of
inquiries. There was another objection. We had a second side bar, and you
assured the Court that you did not wish to do that. That was not your intent
by bringing up the American Disability Act or the level of education of
[defendant] or his ability to effectively communicate. In any event, the
Court indicated that I would be sustaining that objection and cautioned you
to not return to that subject in that form given that that appeared to be a
Miranda violation and or inappropriate questioning of [defendant], your
client.

“That was the gist of the two side bars in summary. People wish to
[be] heard on those two side bars any further?

“[THE PROSECUTOR]: Your Honor, only that the People believe that
defense directly violated a motion in limine as well as was intentionally
attempting to gain sympathy from the jury in a very inappropriate manner.

“THE COURT: [Defense counsel], would you like to add anything
further about those two matters—or the two side bars I just referenced?

“[DEFENSE COUNSEL]: Yes, Your Honor. I was asking the officer
that—you know, for a thorough, complete investigation it’s important to
ask questions of who, what, why, when, where. So I was asking if there
was effective communication since he was just giving yes or no answers.
The Court said we did the 402 Miranda. All his statements were coming
in. So I wasn’t interested in Miranda issue or preventing any of the
statements coming in. I was trying to make a point that maybe the officer
didn’t do an effective investigation by being able to answer some of these

28.
questions of who, what, why, when, where. And my apologies. Maybe I
didn’t do it in [an] articulate way. My intent is not any way to disregard the
Court’s order or ask any inappropriate questions. I was just trying to—
maybe in an ineffective way or inarticulate way of trying to demonstrate
that maybe the investigation wasn’t as thorough as it could have been
because there wasn’t effective communication about who, what, why,
when, where. Again, my apologies to the Court. That was my intent. It
wasn’t to violate Miranda—disregard the Court’s order. My apologies to
the Court. That was not my intent.

“THE COURT: Counsel, the Court did not sustain the objection as to
who, what, why, when, and where inquiries. Those are valid questions to
ask of an investigator whether or not he marked those off on his
investigation list. Nor did I, if I recall correctly, restrict your ability to ask
the witness of the communication. It became more evident that you were
attempting to introduce improper evidence in front of the jury when you
were asking the officer about [the Americans with Disabilities] Act. When
you were asking him the level of education your client had or has. If the
officer inquired. When your witness—when your own client testified, you
didn’t ask of him if he has any level of education. Those could have been
answered by your own client, and then, you could have argued it during
argument that here is a gentleman who is—and I still don’t know if he has
5th grade education, 11th grade education, some college, some vocation.
No idea. And for you to ask those questions in front of a jury of a witness
knowing that you could have done so in a Miranda violation hearing
pretrial appears to me that you were trying to introduce evidence in front of
the jury that would not be relevant. The effective communication, yes. I
agree. But the level of education is not necessarily connected to effective
discussions or conversations. There are many people who do not have
formal schooling, but are quite effective in their ability to communicate.
There are many people who have 5th grade or lower or no formal schooling
that does not take them outside of effective communication. If anything,
that’s somewhat offensive to a lot of people in earlier generations that
didn’t have the means to go to school and gain higher education. That did
not make them ineffective in their ability to communicate.

“In any event, my ruling stands that that was not appropriate. The
objections were sustained, and the jurors were told to disregard by striking
those answers, if any.”

29.
 B. Applicable Law and Standard of Review
An appellate court applies the abuse of discretion standard of review to any ruling
by a trial court on the admissibility of evidence. (People v. Waidla (2000) 22 Cal.4th
690, 724; e.g., People v. Alvarez (1996) 14 Cal.4th 155, 214–215; People v. Rowland
(1992) 4 Cal.4th 238, 264.) Abuse of discretion occurs when the trial court’s ruling
“‘“falls outside the bounds of reason.”’” (People v. Bradford (1997) 15 Cal.4th 1229,
1315.)
The trial court has broad discretion to determine the relevance of evidence.
(People v. Gurule (2002) 28 Cal.4th 557, 614.) Evidence is relevant if it has any
tendency in reason to prove a disputed material fact. (§ 210; People v. Waidla, supra, 22
Cal.4th at p. 718.)
Section 402, subdivision (b) directs that “in a criminal action, the court shall hear
and determine the question of the admissibility of a confession or admission of the
defendant out of the presence and hearing of the jury if any party so requests.”
“Under the Due Process Clause of the Fourteenth Amendment, criminal
prosecutions must comport with prevailing notions of fundamental fairness. [The United
States Supreme Court has] long interpreted this standard of fairness to require that
criminal defendants be afforded a meaningful opportunity to present a complete defense.”
(California v. Trombetta (1984) 467 U.S. 479, 485.)
C. Analysis
Defendant contends the trial court erroneously prevented him “from introducing
evidence about his education and language barriers, which could have allowed the jury to
fully evaluate the reliability and accuracy of [defendant’s] statement to police.” He
argues the exclusion of such evidence violated his rights to due process, to present a
defense, and to a fair trial. We cannot conclude the court abused its discretion in
excluding the referenced testimony, nor that it violated defendant’s constitutional rights.

30.
 Initially, we find the trial court did not abuse its discretion when it sustained
objections to the challenged evidence. For example, during cross-examination, when the
prosecutor asked defendant whether he remembered speaking to police following his
arrest, defendant responded that he could not understand any written communication.
The objection was properly sustained and stricken as nonresponsive to the question
asked. Additionally, defense counsel was prevented from eliciting answers to the
following questions after the trial court sustained objections: whether the detective was
aware a lot of deaf mutes are illiterate; if the detective asked defendant whether he
graduated from the 12th grade; if the detective asked defendant about his educational
level; whether the detective called for a sign language interpreter; whether the detective
was familiar with the ADA; and what accommodations were made for a 61-year-old deaf
mute. Contrary to defendant’s contention, these questions are not relevant to the disputed
issues at trial. (See § 210; cf. People v. Waidla, supra, 22 Cal.4th at p. 718 [the
testimony had some tendency in reason to prove the disputed material fact].)
Defendant contends that with the excluded testimony, he “could have presented
ample evidence suggesting that the jury should, at the very least, proceed with caution in
basing their conviction on [defendant’s] confession.” However, the excluded testimony
related to the admissibility of defendant’s statements and the validity of his Miranda
waiver. Put differently, these questions bear on the legal issue regarding whether
defendant knowingly, intelligently, and voluntarily waived his Miranda rights, which was
already decided outside the presence of the jury. (See § 402, subd. (b); see also Crane v.
Kentucky (1986) 476 U.S. 683, 688 [these questions go to the purely legal question of
whether it was knowingly and voluntarily made, which is assigned to the trial judge alone
to resolve].) As such, defendant fails to demonstrate the trial court abused its discretion
when it excluded evidence regarding Detective Hull’s knowledge of defendant’s
intelligence or literacy level, language barriers, or the ADA. (See People v. Jordan
(1986) 42 Cal.3d 308, 316 [trial court’s exercise of its discretion “must not be disturbed

31.
on appeal except on a showing that the court exercised its discretion in an arbitrary,
capricious or patently absurd manner”].)
Moreover, we cannot conclude defendant was denied a meaningful opportunity to
present a complete defense. During the trial, defendant took the stand to testify on his
own behalf that he hit Vaielua out of self-defense, explaining Vaielua had been following
him and he was afraid Vaielua was going to kill him. And defense counsel was not
prevented from asking Detective Hull questions relevant to the circumstances of the fight
or his theory of self-defense, such as “Did you ask him who started the fight?” “Did you
ask him how the fight started?” and “Why they were attacking each other.” Notably,
defense counsel did not ask defendant questions regarding his education and literacy level
or language barrier when defendant took the stand. Later, when the prosecutor asked
defendant whether he remembered speaking to police, and defendant’s response that he
could not understand any written communication was stricken as nonresponsive, defense
counsel never asked the court to reopen testimony to follow up on defendant’s response
even though the trial court has discretion to allow the defense to offer additional evidence
to their original case. (Pen. Code, §§ 1093, 1094; People v. Rodriguez (1984) 152
Cal.App.3d 289, 295; People v. Newton (1970) 8 Cal.App.3d 359, 383.)
Further, defendant’s reliance on Crane to argue exclusion of the challenged
testimony from Detective Hull violated his constitutional right to present a complete
defense is misplaced. (See Crane v. Kentucky, supra, 476 U.S. at p. 687; see also
California v. Trombetta, supra, 467 U.S. at p. 485.) “[T]he high court [in Crane] held
that when the prosecution’s case was based on the defendant’s confession, it was error to
preclude the defendant from introducing evidence about the manner in which his
confession was obtained as part of his defense.” (People v. Hoyt, supra, 8 Cal.5th at p.
938; see Crane v. Kentucky, supra, at p. 691.) However, “Crane does not require the
admission of any and all defense-proffered evidence about the circumstances of a
confession, without regard to the ordinary rules of evidence.” (Hoyt, supra, at p. 938.)

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Unlike in Crane, the prosecution’s case was based on more than just defendant’s
statement to Detective Hull. Rather, it included, but was not limited to, video evidence of
the incident giving rise to the charges, the testimony of two eyewitnesses, and the
victim’s testimony. Furthermore, unlike in Crane, here, the defense was not entirely
premised on discrediting defendant’s statement to Detective Hull. Rather, to the extent
he suggested he acted in self-defense, defendant’s statement to Detective Hull was
relatively consistent with his trial testimony. As such, the issue presented in Crane is not
present here. We conclude defendant fails to demonstrate he was denied “a meaningful
opportunity to present a complete defense.” (California v. Trombetta, supra, at p. 485.)
IV. The Trial Court Did Not Violate Defendant’s State and Federal
Constitutional Rights to a Fair Trial and Due Process When It Refused to
Instruct the Jury with CALCRIM No. 331
Defendant claims the trial court erred by refusing to instruct the jury with
CALCRIM No. 331 on “how to assess a witness’s credibility when that person is
disabled or has a language barrier.”
A. Relevant Factual Background
The defense requested the trial court instruct the jury on CALCRIM No. 331. The
defense noted the instruction was “[o]ut of an abundance of caution” because defendant
is deaf and mute and required an American Sign Language interpreter through the trial.
The People objected to the instruction on the basis that testifying using an American Sign
Language interpreter is not different than using a Spanish language interpreter or any
other language interpreter. The People also noted there had not been any evidence
defendant had any actual impairment.
The trial court stated “there was no evidence to suggest that [defendant’s] inability
to converse in words in any language, whether it’s English or another language, in any
form or fashion impaired his ability to communicate. The impairment has to be
something other than not being able to speak the language of the land or this court. And

33.
[defendant] testified. He was communicating with the Court and the jurors using the
assistance of the sign language interpreter.”
Additionally, the trial court pointed out the defense never suggested defendant’s
knowledge of American Sign Language was limited or that he was unable to
communicate with the interpreter. “At no time was there any evidence from [defendant]
that his inability to speak in words with his voice rather than with his hands was
somehow impairing his ability to communicate. At no time was there any evidence of
any limitations because of his difficulty and or natural inability to speak. Certainly, there
was no evidence as to when this situation developed whether it was at birth or thereafter.
There was no evidence.”
B. Standard of Review
An appellate court reviews claims of instructional error de novo and without
deference to the trial court. (People v. Manriquez (2005) 37 Cal.4th 547, 581, 584;
People v. Quarles (2018) 25 Cal.App.5th 631, 634 [refusal to give a requested instruction
is reviewed de novo].)
C. Applicable Law
“A trial court must give a requested instruction only if it is supported by
substantial evidence, that is, evidence sufficient to deserve jury consideration.” (People
v. Marshall (1997) 15 Cal.4th 1, 39.) “‘“[T]here need only be some evidence in the
record that, if believed by the jury, would sufficiently support the suggested inference.”’”
(People v. Byers (2021) 61 Cal.App.5th 447, 456–457; accord, People v. Alexander
(2010) 49 Cal.4th 846, 921.)
In a criminal case in which a person with a developmental disability, or cognitive,
mental, or communication impairment, testifies as a witness, the trial court must, upon
request, instruct the jury to consider all the factors surrounding the person’s testimony,
including the person’s level of cognitive development. (Pen. Code, § 1127g.) In

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addition, the trial court must instruct the jury that, even though the person’s disability or
impairment may cause the person to perform differently as a witness, the difference does
not mean the person is a more or less credible witness. (Ibid.) The trial court must also
instruct the jury not to discount or distrust the person’s testimony solely because of the
person’s disability or impairment. (Ibid.) A trial court fulfills this obligation in
appropriate cases by giving the CALCRIM No. 331 instruction, which tracks the
language of Penal Code section 1127g. (People v. Keeper (2011) 192 Cal.App.4th 511,
520; People v. Byers, supra, 61 Cal.App.5th at p. 456.)
CALCRIM No. 331 reads as follows:

“In evaluating the testimony of a person with a (developmental
disability[,]/ [or] [a] (cognitive[,]/ [or] mental[,]/ [or] communication)
impairment), consider all of the factors surrounding that person’s
testimony, including his or her level of cognitive development.

“Even though a person with a (developmental disability[,]/ [or] [a]
(cognitive[,]/ [or] mental[,]/ [or] communication) impairment)[,] may
perform differently as a witness because of his or her level of cognitive
development, that does not mean he or she is any more or less credible than
another witness.

“You should not discount or distrust the testimony of a person with a
(developmental disability[,]/ [or] [a] (cognitive[,]/ [or] mental [,]/ [or]
communication) impairment)[,] solely because he or she has such (a/an)
(disability/ [or] impairment).”
“CALCRIM No. 331 informs the jury it should not decide whether an individual
with a developmental disability or cognitive impairment is a credible witness based solely
on the disability or impairment. Rather, the instruction advises the jury the level of the
witness’s developmental disability or cognitive impairment is one factor it must consider.
… CALCRIM No. 331 ‘provides sound and rational guidance to the jury in assessing the
credibility of a class of witnesses as to whom “‘traditional assumptions’” may previously
have biased the factfinding process.’” (People v. Catley (2007) 148 Cal.App.4th 500,
508, quoting People v. Gilbert (1992) 5 Cal.App.4th 1372, 1393.)

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 Penal Code section 1127g does not define “developmental disability” or
“cognitive, mental, or communication impairment.” When the meaning of a statute is
unclear, “‘“we look to a variety of extrinsic aids, including the objects to be achieved, the
evils to be remedied, legislative history, the statutory scheme of which the statute is a
part, contemporaneous administrative construction, and questions of public policy.”’”
(People v. Keeper, supra, 192 Cal.App.4th at p. 520; see People v. Ramirez (2009) 45
Cal.4th 980, 987.)
The Legislature enacted Penal Code section 1127g in 2004 as part of an Assembly
Bill that made “‘numerous changes to the Penal Code, Evidence Code, and the Welfare
and Institutions Code to protect dependent persons and the elderly in court.’” (Sen.
Rules. Com., Off. of Sen. Floor Analyses, 3d reading analysis of Assem. Bill No. 20
(2003–2004 Reg. Sess.) as amended Aug. 18, 2004, p. 7.) The bill’s author particularly
sought “‘to protect the rights of crime victims who are dependent on others for their care
because of a developmental disability, traumatic brain injury, or degenerative brain
disease’” by ensuring “‘dependent people who are called upon to testify in a court of law
are given the rights afforded to minors in the same situation.’” (Ibid.; People v. Keeper,
supra, 192 Cal.App.4th at p. 520.)
The Legislative Counsel described the Legislature’s intent more broadly as
“ensur[ing] that people who cannot live independently are treated fairly by the criminal
justice system.” (Legis. Counsel’s Dig., Assem. Bill No. 20 (2003–2004 Reg. Sess.)
chaptered Sept. 28, 2004.) Section 1 of the bill reflects this intent and states the purpose
of the legislation is to protect “the rights of developmentally disabled persons and other
dependent persons who are witnesses in criminal cases ….” (Assem. Bill No. 20 (2003–
2004 Reg. Sess.) § 1; see Stats. 2004, ch. 823, § 1; Historical and Statutory Notes, 29B
pt. 1A West’s Ann. Evid. Code (2011 ed.) foll. § 177, p. 36.)

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 “Dependent persons” in this context are persons whose disability or impairment
substantially restricts their ability to carry out normal activities or to protect their rights.
(§ 177; People v. Keeper, supra, 192 Cal.App.4th at p. 521.)
D. Analysis
Defendant contends that being deaf, by definition, is an impairment. Defendant
argues deaf persons are covered by the ADA, which makes them disabled as a matter of
law. He further notes that “disability” under the ADA is defined as “a physical or mental
impairment that substantially limits one or more major life activities,” which he states
includes hearing. (See 42 U.S.C. § 12102(1)(A), (2)(A).) On this basis, defendant
contends it was error for the trial court to conclude his language impairment was no
different than any other person who required a language interpreter. In support,
defendant cites to scholarly articles regarding bias against the deaf community and
disabled persons. Although defendant contends deaf persons may be misunderstood at
trial due to their expressions and gestures, and that in deaf culture, deaf persons often say
“yes” when they do not mean “yes,” this was not introduced as evidence at trial.
Appellate jurisdiction is limited to the four corners of the record on appeal, which does
not include any evidence defendant had any physical or mental impairment, nor any
evidence of bias against deaf culture. (People v. Waidla, supra, 22 Cal.4th at p. 703, fn.
1; In re Carpenter (1995) 9 Cal.4th 634, 646.)
Defendant’s reliance on People v. Keeper, supra, 192 Cal.App.4th 511 suggesting
defendant is considered a dependent for purposes of this instruction is misplaced. In
Keeper, there was evidence the defendant suffered from depression, posttraumatic stress
disorder, bipolar disorder, a low IQ of 77, and had a learning disability from a
neurological impairment. (Id. at pp. 518519.) As a result, the defendant had difficulty
organizing information, sequencing ideas, and using language for complex reasoning and
planning. (Id. at p. 519.) Even so, the appellate court affirmed the trial court’s decision

37.
not to instruct the jury with CALCRIM No. 331, finding that although the defendant had
mental disorders and a neurological impairment that affected some aspects of his life, “he
did not present any evidence his disorder and impairment caused him to be a dependent
person.” (Keeper, at p. 521.) Here as well, there was no evidence defendant suffered any
mental or physical illness, or evidence he had a low IQ, other than what the jury could
infer from his written communication with Detective Hull.
CALCRIM No. 331 tracks the language of Penal Code section 1127g, which the
Legislature intended “to apply to persons whose developmental disability, or cognitive,
mental, or communication impairment, causes them to be dependent on others for care,”
and did not intend it to apply to individuals who “generally engaged in normal daily
activities without assistance.” (People v. Keeper, supra, 192 Cal.App.4th at p. 521; see
People v. Catley, supra, 148 Cal.App.4th at p. 508 [CALCRIM No. 331 tracks the
language of Pen. Code, § 1127g].) Although defendant claims he cannot live
independently, there was no evidence at trial regarding whether defendant lives on his
own or not, or whether he requires assistance with normal daily activities, to support this
claim.
Even construing Penal Code section 1127g and CALCRIM No. 331 broadly, as
the court did in People v. Byers, supra, 61 Cal.App.5th 447, without limitation to
dependent persons, the evidence does not support an inference defendant had a
“developmental disability” or “cognitive, mental, or communication impairment.” (See
id. at p. 457.) In Byers, the appellate court determined there was sufficient evidence to
warrant CALCRIM No. 331 based on the victim’s erratic behavior in court, refusing to be
sworn in, answering “Is that a threat” to the question if she’d like to be called by her first
name, and her admission that her posttraumatic stress disorder was even worse. While
the Byers court found the victim’s cognitive disabilities were fairly obvious, here, there
was no evidence of any cognitive disability. Although defendant is deaf and mute, he
was able to communicate with Detective Hull through writing and was also able to

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communicate through two American Sign Language interpreters throughout the trial, and
never expressed any difficulties or inability to understand the sign language interpreters.
Therefore, since there was no evidence defendant had a developmental disability, or a
cognitive, mental, or communication impairment, he fails to demonstrate the trial court
erred by refusing to instruct the jury with CALCRIM No. 331. (See People v. Keeper,
supra, 192 Cal.App.4th at p. 521; People v. Marshall, supra, 15 Cal.4th at p. 39.)
Even assuming error, however, we find no prejudice under the harmless error
standard of People v. Watson (1956) 46 Cal.2d 818, 836 (Watson). (People v. Larsen
(2012) 205 Cal.App.4th 810, 829–831; People v. Ervin (2000) 22 Cal.4th 48, 91.) Under
this standard, we may consider the instructions as a whole, the jury’s findings, and the
closing arguments of counsel. (People v. Cain (1995) 10 Cal.4th 1, 35–36; People v. Eid
(2010) 187 Cal.App.4th 859, 883.) Here, the jury was instructed that it must not let “bias,
sympathy, prejudice or public opinion influence [its] decision.” The instruction
explained this included bias based on disability either for or against the witnesses,
attorneys, defendant, or alleged victim. The court’s general instruction was similar to
CALCRIM No. 331’s instruction that the jury should not decide whether an individual
with a developmental disability or cognitive impairment is a credible witness based solely
on the disability or impairment. While it was clear to the jury defendant was deaf based
on undisputed evidence and the fact he was assisted by sign language interpreters during
the trial, there is nothing in the record to suggest the jury used defendant’s inability to
hear or speak verbally to assess his credibility as a witness.
Moreover, we cannot find defendant would have obtained a more favorable
outcome had the instruction been given. (See People v. Moore (2011) 51 Cal.4th 1104,
1130; People v. Brown (1988) 46 Cal.3d 432, 446–447; People v. Breverman (1998) 19
Cal.4th 142, 177, 178.) Under Watson, we consider not “what a reasonable jury could
do, but what such a jury is likely to have done in the absence of the error under
consideration.” (Breverman, p. 177.) “‘In making that evaluation, an appellate court

39.
may consider, among other things, whether the evidence supporting the existing
judgment is so relatively strong, and the evidence supporting a different outcome is so
comparatively weak, that there is no reasonable probability the error of which the
defendant complains affected the result.’” (People v. Russell (2006) 144 Cal.App.4th
1415, 1432, disapproved on other grounds in People v. Covarrubias (2016) 1 Cal.5th
838, 874, fn. 14.) Here, two eyewitnesses testified defendant continued hitting Vaielua
after he had fallen to the ground, which was corroborated by video evidence and
contradicts defendant’s theory that he hit Vaielua out of self-defense. Given the
substantial evidence supporting guilt, we conclude it is not reasonably probable defendant
would have obtained a more favorable outcome had CALCRIM No. 331 been given.
V. No Cumulative Error
Because we have rejected defendant’s claims of prejudicial error, “‘we likewise
conclude that the cumulative effect of these asserted errors was not prejudicial and does
not require reversal.’” (See People v. Byers, supra, 61 Cal.App.5th at pp. 459–460,
quoting People v. Bonilla (2007) 41 Cal.4th 313, 360.)
VI. Remand is Required Under Senate Bill 567
A. Relevant Procedural History
A jury found defendant guilty of assault with a deadly weapon (Pen. Code, § 245,
subd. (a)(1)) and that he personally inflicted great bodily injury on Vaielua (id.,
§ 12022.7, subd. (a)). On August 13, 2019, the trial court imposed the upper term of four
years for the assault conviction, plus a consecutive term of three years for the great bodily
injury enhancement, for a total term of seven years in state prison.
In imposing the upper term, the trial court noted, “[Defendant] is before the Court
for what appears to be for certain his fourth and possibly his fifth felony conviction. And
therefore, the Court will select the upper term of the four years in the 245(a)(1),
enhancement with the three years for 12022.7(a) for a grand total of seven years in state

40.
prison at 15 percent conduct credits.” No certified records of conviction were entered
into evidence or otherwise presented. The trial court stated it was “aware through the
probation report of the extensive criminal history that [defendant] apparently has, which
was not clearly given to the Court.”
B. Applicable Law and Standard of Review
Effective January 1, 2022, Senate Bill 567 amended Penal Code section 1170,
subdivision (b), making the middle term the presumptive sentence for a term of
imprisonment unless certain circumstances exist. Penal Code section 1170, subdivision
(b) now states in part:

“(1) When a judgment of imprisonment is to be imposed and the
statute specifies three possible terms, the court shall, in its sound discretion,
order imposition of a sentence not to exceed the middle term, except as
otherwise provided in paragraph (2).

“(2) The court may impose a sentence exceeding the middle term
only when there are circumstances in aggravation of the crime that justify
the imposition of a term of imprisonment exceeding the middle term, and
the facts underlying those circumstances have been stipulated to by the
defendant, or have been found true beyond a reasonable doubt at trial by the
jury or by the judge in a court trial.…

“(3) Notwithstanding paragraphs (1) and (2), the court may consider
the defendant’s prior convictions in determining sentencing based on a
certified record of conviction without submitting the prior convictions to a
jury. This paragraph does not apply to enhancements imposed on prior
convictions.”
We decide de novo the legal issue of whether defendant should benefit from the
change in the law. (See People v. Lofchie (2014) 229 Cal.App.4th 240, 250; People v.
Monk (2018) 21 Cal.App.5th Supp. 1, 4.)
C. Analysis
Senate Bill 567 became effective January 1, 2022. When the Legislature amends a
statute reducing punishment without stating whether it should be given retroactive effect,
the new law applies in all cases in which the judgment is not yet final. (In re Estrada

41.
(1965) 63 Cal.2d 740, 742.) Estrada’s retroactivity also applies where there are
ameliorative changes in the law that provide a new opportunity for imposition of a lesser
punishment. (See People v. Frahs (2020) 9 Cal.5th 618, 629–631 [Estrada requires
retroactive application of new law providing a new opportunity for imposition of a lesser
punishment—mental health diversion]; People v. Superior Court (Lara) (2018) 4 Cal.5th
299, 308 [Estrada required retroactive application of new law providing a new
opportunity for imposition of a lesser punishment—a juvenile disposition]; People v.
Francis (1969) 71 Cal.2d 66, 76–77 [Estrada required retroactive application of new law
providing an opportunity for imposition of a lesser punishment—misdemeanor
sentencing].) Because Senate Bill 567 makes a lesser punishment possible, and because
the Legislature gave no indication it intended the changes to apply prospectively only, its
ameliorative changes apply retroactively to nonfinal judgments. (People v. Flores (2022)
73 Cal.App.5th 1032, 1039; People v. Lopez (2022) 78 Cal.App.5th 459, 461; People v.
Garcia (2022) 76 Cal.App.5th 887, 902; see People v. Frahs, supra, at p. 634; In re
Estrada, supra, at p. 742; see People v. Esquivel (2021) 11 Cal.5th 671, 677.)

Defendant’s judgment is not yet final since his appeal was still pending when
Senate Bill 567 became effective. (See People v. Babylon (1985) 39 Cal.3d 719, 722; In
re N.D. (2008) 167 Cal.App.4th 885, 891; People v. Shabazz (2015) 237 Cal.App.4th
303, 312.) Therefore, the ameliorative changes under Penal Code section 1170,
subdivision (b) apply to defendant’s judgment.
The trial court imposed the upper term for the assault with a deadly weapon
conviction based on its conclusion this is defendant’s “fourth and possibly his fifth felony
conviction.” It is undisputed this was not a fact found true by the jury or to which
defendant stipulated. And while the court may rely on certified records of criminal
convictions to impose an upper term based on the defendant’s prior convictions,
defendant asserts, and the People concede, the court did not have a certified record before

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it, only the probation report’s summary of defendant’s criminal history. Therefore, it is
necessary to remand the matter for resentencing under Penal Code section 1170,
subdivision (b), as amended. (See People v. Garcia, supra, 76 Cal.App.5th at p. 902.)
We express no view on how the court should exercise its sentencing discretion on
remand.
DISPOSITION
The matter is remanded to the trial court for resentencing under Penal Code
section 1170, subdivision (b), as amended by Senate Bill 567. In all other respects, the
judgment is affirmed.

PEÑA, Acting P. J.
WE CONCUR:

MEEHAN, J.

DE SANTOS, J.

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