People v. Romero-Guzman CA1/1

Filed 3/1/24 P. v. Romero-Guzman CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,
Plaintiff and Respondent, A166209

v. (San Mateo County
JAIRO NICOLAS ROMERO- Super. Ct. No.
GUZMAN, 22SF002121A)
Defendant and Appellant.

After a jury convicted defendant Jairo Nicolas Romero-Guzman of one
count of being a felon in possession of ammunition (Pen. Code, § 30305, subd.
(a)(1)),1 the trial court sentenced him to the middle term of two years. On
appeal, defendant contends the trial court abused its discretion by
(1) excluding testimony there was a store which sold firearms and
ammunition several blocks from where he was arrested, which he maintains
supports his “justifiable possession” defense; (2) denying his request to
further sanitize a prior conviction of possession of a firearm by a felon used
for impeachment purposes; and (3) declining to sentence him to the lower
term pursuant to section 1170, subdivision (b)(6).

All further statutory references are to the Penal Code unless
1

otherwise indicated.

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 We affirm defendant’s conviction but remand to allow the court to
exercise its discretion on whether to sentence defendant to the low term.
BACKGROUND
The San Mateo District Attorney filed an information charging
defendant with one count of possession of ammunition by a felon, a felony
(§ 30305, subd. (a)(1)) and alleging defendant had sustained several prior
felony convictions (§ 1203, subd. (e)(4)).
At trial, San Mateo County Deputy Sheriff Joseph Venikov testified
that while he was patrolling in his car around 1:00 a.m., he saw defendant
walking down El Camino Real in San Carlos. Venikov did not see defendant
“doing anything wrong” but recognized him from “previous contacts.”
Venikov pulled over and “engaged in conversation” with defendant. During
this conversation, Venikov asked defendant if he had “anything illegal on his
person.” Defendant said he had bullets in his pocket, so Venikov asked if he
“would consent to a search.” Defendant agreed, and Venikov found 10 loose,
.45-caliber hollow point bullets in defendant’s right pocket. The rounds
appeared to be “in working order, did not appear to be fired, intact,” meaning
the “bullet itself was not detached from the shell casing.” Venikov did not
find any ammunition or firearms in defendant’s backpack.
Defendant testified that as he was walking down El Camino Real, he
“found some ammunition” “[r]ight on the sidewalk,” about a block away from
where he encountered Deputy Venikov. He picked up the “hollow tip” bullets
and put them in his pocket so that “little kids couldn’t play with them.” He
planned on throwing the ammunition away, but he had not yet found a trash
can when he encountered Venikov. The deputy did not ask if he had
“anything illegal” on him. Rather, defendant, “unprompted” and voluntarily,

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told Venikov he had the bullets in his pocket so Venikov “could throw them
away.”
The jury found defendant guilty of the charged offense, defendant
admitted the prior convictions, and the trial court sentenced him to the
midterm of two years.
DISCUSSION
Excluding Witness Testimony2
Prior to trial defendant moved to allow testimony by Jason Yoakum, a
private investigator and former law enforcement officer. Defense counsel
stated Yoakum would testify “there is a store three blocks away or three and
a half blocks away from where [defendant] was detained that sells guns and
ammunition.” Yoakum had gone to the store and “observed guns and
ammunition” similar to the type found on defendant. Counsel maintained
the testimony was relevant to “either a justifiable-possession defense or a
momentary-possession defense because it would go to the element that the
ammunition was found”; his testimony would provide “an explanation as to
why the ammunition might be there, namely that some customer dropped it
on the way out or on the way in.”

2 Our standard of review of a trial court’s ruling excluding evidence is
well established. “We review the trial court’s rulings regarding the
admissibility of the evidence for an abuse of discretion. [Citation.] A trial
court’s decision to admit or exclude evidence ‘ “ ‘will not be disturbed unless
there is a showing that the trial court acted in an arbitrary, capricious, or
absurd manner resulting in a miscarriage of justice.’ ” ’ [Citations.] ‘This
standard of review affords considerable deference to the trial court provided
that the court acted in accordance with the governing rules of law. We
presume that the court properly applied the law and acted within its
discretion unless the appellant affirmatively shows otherwise.’ ” (People v.
Mataele (2022) 13 Cal.5th 372, 413–414 (Mataele).)

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 The prosecutor responded that Yoakum’s testimony was “overly
speculative given the number of links in that chain of inferences necessary
for that to actually go to that defense, which is that there is no evidence and
there will be no evidence solicited that this ammunition came from that store,
that anyone dropped ammunition, that is where the defendant found it.
There’s no evidence that the defendant found it outside the store. Given how
speculative this evidence is, any probative value that it might have is
substantially outweighed by the risk of confusing the issues for the jury, and
it turns into a mini trial about whether or not someone was negligent for
dropping bullets when we don’t even know if those are the bullets in this
case.” He further asserted “all of the statements contained in [Yoakum’s]
report are hearsay statements of third parties that are not named; so I’m not
sure how that can come in.” The court denied defendant’s motion and
excluded Yoakum’s testimony and report, ruling it was “irrelevant that an
ammo store is three and a half blocks away from where the defendant was
detained absent any evidence that someone from that store, either an
employee or a customer, actually lost ammunition in the area between where
that store is and where the defendant was detained or any further evidence
that may be introduced in the record that draws a connection to the . . .
ammo and gun store. It is irrelevant. And with that, there doesn’t need to be
[an Evidence Code section] 352 analysis. But having said that, it would be a
tremendous distraction from the focus of what the jury should be deciding
unless there is the kind of evidence that I just made reference to. So it is
purely speculative, which makes it irrelevant. And absent anything else that
is adduced during the course of the trial, I’m not going to allow Mr. Yoakum
to testify. . . . Should something be introduced during the trial that makes it
in your position . . . a nexus having been established, then ask to approach

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before any attempt to call this witness, and we will have further hearing on
it.”
“ ‘Only relevant evidence is admissible (Evid. Code, §§ 210, 350), and all
relevant evidence is admissible unless excluded under the federal or state
Constitutions or by statute. (Evid. Code, § 351. . . .)’ ” (People v. Cowan
(2010) 50 Cal.4th 401, 482.) “ ‘Relevant evidence is evidence “having any
tendency in reason to prove or disprove any disputed fact that is of
consequence to the determination of the action.” ’ ” (Mataele, supra,
13 Cal.5th at p. 413.) “ ‘The proponent of proffered testimony has the burden
of establishing its relevance,’ ” and the evidence is “ ‘properly excluded when
the proponent fails to make an adequate offer of proof regarding the
relevance or admissibility of the evidence.’ ” (Ibid.)
“ ‘Under Evidence Code section 352, a trial court may exclude otherwise
relevant evidence when its probative value is substantially outweighed by
concerns of undue prejudice, confusion, or consumption of time.’ ” (Mataele,
supra, 13 Cal.5th at p. 413.)
Section 30305, under which defendant was prosecuted, prohibits the
possession of ammunition by certain persons. (§ 30305, subd. (a)(1).)
However, it also provides for a defense, stating a violation of subdivision (a)
“is justifiable” where (1) the “person found the ammunition or reloaded
ammunition or took the ammunition or reloaded ammunition from a person
who was committing a crime against the person who found or took the
ammunition or reloaded ammunition”; (2) “The person possessed the
ammunition or reloaded ammunition no longer than was necessary to deliver
or transport the ammunition or reloaded ammunition to a law enforcement
agency for that agency’s disposition according to law”; and (3) the person is
prohibited from possessing any ammunition. (Id., subd. (c)(1)–(3); see

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generally CALCRIM No. 2591 [setting forth elements of “Justifiable
Possession” defense which defendant bears the burden of proving by a
preponderance of the evidence (italics & boldface omitted)].)
Defendant maintains Yoakum’s testimony was highly relevant to his
defense that his possession of the ammunition was “justifiable,” and
specifically, would have bolstered his testimony that he found the bullets on
the sidewalk.
Yoakum’s report stated he had located a “firearms retail business . . .
approximately three and a half blocks away” from where defendant was
arrested, that the business sold a type of .45-caliber hollow point bullet, and
that “sometimes people brought ammunition to the store [to sell] carried in a
zip-lock bag.”
However, as the trial court pointed out, there was no evidence that the
business sold, or any customer had brought into the store to sell, the exact
type of ammunition defendant claimed he found. And even if there was any
evidence suggesting the store sold the exact type of ammunition defendant
possessed, or that a customer had brought the exact type of ammunition to
the store to sell, there was no evidence any employee or customer had ever,
let alone in the relevant time frame, dropped or lost any ammunition, let
alone the exact type defendant possessed, and anywhere near where
defendant claimed to have found the bullets.
In short, there simply was no evidentiary “nexus” between the
proffered evidence and the asserted defense absent multiple speculative
inferences. “ ‘[E]vidence which produces only speculative inferences is
irrelevant evidence.’ ” (People v. Babbitt (1988) 45 Cal.3d 660, 682; People v.
Stitely (2005) 35 Cal.4th 514, 549–550 [“Speculative inferences are, of course,
irrelevant.”]; People v. Williams (2018) 23 Cal.App.5th 396, 416.) Although,

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the trial court is “vested with wide discretion in determining the relevance of
evidence,” it “has no discretion to admit irrelevant evidence.” (Babbitt, at
p. 681; Williams, at p. 416.)
Defendant nevertheless claims the prosecutor’s closing argument shows
that Yoakum’s testimony was “directly relevant.”
During closing, the prosecutor first discussed the evidence in
connection with the elements of the offense. He then addressed what he
“anticipate[d] the defense is going to be . . . justified possession.” The
prosecutor asserted defendant could not establish the requirements of the
defense because he had testified he “was not . . . looking for law enforcement
to dispose of this property” but rather, a trash can. He next asked the jury to
consider whether it was “reasonable to believe” defendant’s version of events:
whether it was more likely defendant had immediately volunteered that he
possessed the ammunition—as he had testified at trial—or whether he had
“told the police he had bullets . . . [only after being] asked if he had anything
illegal,” as Deputy Venikov had testified; whether it was reasonable that
defendant found the bullets on the El Camino Real sidewalk several blocks
“mere seconds” before Venikov arrived.
The prosecutor then argued, “The defendant testified. And he claimed
that he found the bullets like a block or two away [presumably from where he
was arrested] on El Camino. You’ll have this exhibit when you’re
deliberating. That’s El Camino. One or two blocks away from Olive [where
defendant was arrested]. Was it in front of the hospital? Was it in front of—I
think there’s a ‘Java’ Juice right there. Is it in front of the pizza store? It
strains credibility that a neat stack of bullets is just sitting there in the
center of the sidewalk in a major area and that he just sat there picking them
up for two to three minutes, and then a second later, a deputy arrives. It’s

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too convenient. It’s not reasonable because, again, you look at it was the
totality of the circumstances, all of the evidence.”3 The prosecutor also
pointed out Deputy Venikov had testified that in his two years patrolling the
area, he “never found a single bullet.”
That the prosecutor made passing references to some of the businesses
on and around El Camino Real does not make the proffered testimony by
Yoakum any less speculative. Furthermore, the gist of the prosecutor’s
argument was that it was unreasonable to suppose 10 .45-caliber bullets
would have been sitting on a sidewalk in a busy business corridor, and
ticking off some of the businesses in the immediate vicinity of his arrest only
underscored that defendant could not even identify the exact location on El
Camino Real where he purportedly found the ammunition.
But even assuming Yoakum’s testimony had some marginal relevance,
it is apparent the trial court was also of the view it was excludable under
Evidence Code section 352.4 As we have recited, the prosecutor argued the
evidence should also be excluded under Evidence Code section 352, and the
court observed “it would be a tremendous distraction from the focus of what
the jury should be deciding unless there [was] evidence” of a “nexus having
been established,” that “either an employee or a customer, actually lost
ammunition in the area between where that store is and where the defendant

3The prosecutor referred to an exhibit depicting a “major area” that
was within one or two blocks of where defendant was detained on El Camino
Real. Defendant made no objection to the exhibit, and it was admitted into
evidence.
4 Evidence Code section 352 provides, “The court in its discretion may
exclude evidence if its probative value is substantially outweighed by the
probability that its admission will (a) necessitate undue consumption of time
or (b) create substantial danger of undue prejudice, of confusing the issues, or
of misleading the jury.”

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was detained or any further evidence that may be introduced in the record
that draws a connection to the . . . ammo and gun store.” This conclusion was
not an abuse of discretion.5
Finally, any abuse of discretion in excluding the testimony was not
prejudicial. As a preliminary matter in this regard, defendant maintains
excluding the evidence compromised his constitutional right to present a
defense, rendering his trial fundamentally unfair, and requiring an
assessment of prejudice under Chapman v. California (1967) 386 U.S. 18, 24
(Chapman). The trial court did not deny defendant the right to present a
defense: Defendant testified he found the bullets and planned to throw them
away in a trash can but had not yet come across one. And defense counsel
argued defendant found the ammunition and “his initial intent was to throw
it in a trash can” but “[o]nce the law enforcement agent approached him, he
immediately told the law enforcement agent that he had ammunition in his
pocket.” In short, the trial court’s “ruling did not constitute a refusal to allow
defendant to present a defense, but merely rejected certain evidence
concerning the defense.” (People v. Bradford (1997) 15 Cal.4th 1229, 1325.)
Accordingly, the proper standard for assessing prejudice is that enunciated in

5 Defendant points out the Attorney General did not separately
address his assertion that the trial court’s Evidence Code section 352
determination was also an abuse of discretion and claims the Attorney
General thus conceded the point. However, defendant also acknowledges we
do not always interpret a party’s failure to respond to an argument as a
concession or a forfeiture. (People v. Hill (1992) 3 Cal.4th 959, 995, fn. 3
[declining to “find a waiver based on nothing more than respondent’s failure
to respond”], overruled on another ground as stated in Price v. Superior Court
(2001) 25 Cal.4th 1046, 1069, fn. 13; see Griffin v. The Haunted Hotel, Inc.
(2015) 242 Cal.App.4th 490, 505 [“even a respondent’s complete failure to
address an appellant’s argument does not require us to treat the failure to
respond as a concession the argument has merit”].)

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People v. Watson (1956) 46 Cal.2d 818, 836 (Watson). (See People v. Fudge
(1994) 7 Cal.4th 1075, 1102–1103.)
Nor can defendant establish prejudice under Watson. He testified, and
additionally concedes on appeal, that he knowingly possessed ammunition—
thereby satisfying two elements necessary for a section 30305 conviction.
(§ 30305, subd. (a); CALCRIM No. 2591.) Additionally, the parties stipulated
to the third element—that he is a person prohibited from possessing
ammunition. Thus, the only question was whether defendant proved by a
preponderance of the evidence that his possession was “justifiable” as defined
in the statute. (See § 30305, subds. (c)–(d); see generally CALCRIM No.
2591.)
Yoakum’s testimony was so speculative it is not reasonably probable
defendant would have succeeded on his “justifiable” defense had the
testimony been allowed. The testimony did not begin to establish that
defendant happened to find the 10, .45-caliber hollow point bullets in the
middle of a sidewalk he traveled, or that he possessed the bullets no longer
than was necessary to deliver them to law enforcement for disposal—the two
facts he had to prove to succeed on the defense. (See § 30305, subds. (c)–(d).)
Defendant’s reliance on People v. Minifie (1996) 13 Cal.4th 1055
(Minifie) is misplaced. In Minifie, the defendant was charged with
“assaultive crimes” and claimed self-defense. (Id. at p. 1060.) He wanted to
present “substantial evidence of third party threats.” The trial court
excluded the evidence as inadmissible character evidence and as
substantially more prejudicial than probative because the evidence would
consume an undue amount of time and confuse the jury. (Id. at pp. 1060,
1062–1063.) The Court of Appeal concluded, and the Supreme Court agreed,
the “evidence of third party threats [was] admissible to support a claim of

10
self-defense if there is also evidence from which the jury may find that the
defendant reasonably associated the victim with those threats.” (Id. at
pp. 1060, 1065.)
Although “the question [was] close,” the Supreme Court also agreed
excluding the evidence was prejudicial. While “the claim of self-defense was
not compelling,” without the excluded evidence “defense counsel could argue
. . . only that [the initial aggressor] was a friend of a person defendant had
killed, and defendant thought the unarmed [aggressor and victim] was about
to hit him with a crutch.” (Minifie, supra, 13 Cal.4th at p. 1071.) The
excluded evidence “was central to the defense” because it “would have
strengthened the defense considerably: defendant could have argued that [the
initial aggressor’s] ‘crowd’ had in fact killed his friend and threatened that
defendant would be ‘next.’ The jury might find these circumstances justified
a stronger reaction to [the victim’s] punch than would otherwise be
reasonable.” (Ibid.) The high court went on to say the prosecutor’s argument
“tip[ped] the scale in favor of finding prejudice.” (Ibid.) He had argued to the
jury that the defendant was “ ‘trying to create this aura that there is this big
conspiracy, this big fear, this big threat out there that if [he] shows his face in
West County, he’s going to get hurt or killed. There’s no evidence of that. . . .
There’s no doubt that there’s bad blood between [the victim and
defendant]. . . . But to enhance it, to heighten it to the point that it fits into
the contrived self-defense that they’re trying to have you believe is
preposterous because it’s not supported by the evidence.’ ” (Ibid.) However,
the “reason there was ‘no evidence’ and the ‘contrived’ defense was ‘not
supported by the evidence,’ ” said the court, “[was] easily explained. The
missing evidence was erroneously excluded. This argument demonstrates
that the excluded evidence was not minor, but critical to the jury’s proper

11
understanding of the case. It is, therefore, reasonably probable the error
affected the verdict adversely to defendant.” (Id. at p. 1072.)
What defendant here overlooks is that in Minifie the high court said
the evidence of third-party threats was admissible “to support a claim of self-
defense if there is also evidence from which the jury may find that the
defendant reasonably associated the victim with those threats.” (Minifie,
supra, 13 Cal.4th at p. 1060, italics added.) In other words, in that case,
there was a nexus between the proffered evidence and the defense. Here, as
we have explained, there was not. And unlike in Minifie the prosecutor’s
closing argument here did not “tip the scales” because his argument did not,
and could not, make the proffered testimony any less speculative.
Prior Convictions
Prior to trial, the prosecution sought to admit evidence of defendant’s
felony convictions from 2010, 2012, and 2017 for impeachment purposes.
Defendant, in turn, moved to exclude and/or sanitize the convictions.
At the hearing on the matter, the trial court stated, “looking at the
recency of [the] convictions,” it would “not be of mind that all of the prior
convictions should be admitted.” Ultimately, the court ruled it intended to
exclude the 2010 conviction, but was prepared to allow impeachment with the
2012 conviction for possession of a firearm for the benefit of a criminal street
gang and the 2017 conviction for vandalism. However, with respect to the
2012 conviction, the court concluded it would be “substantially prejudicial to
allow the prosecution to impeach the defendant [specifically] with the 186.22
gang conviction” and sanitized that portion of the conviction.
Defense counsel asked that the 2012 conviction be further sanitized to
read generally that defendant was “ ‘convicted of a felony on this day.’ ” The
prosecutor did not “believe that sanitizing is appropriate in this instance. I

12
do believe they are different charges, and it’s also the prosecution’s duty to
put on their case, and the defense can’t essentially control that.”
The court granted the defense request in part, stating that if
“defendant testifies and offers a defense . . . that the possession of this
ammunition was transitory, it was his intention to dispose of it and/or
anything along those lines, which, in your motions in limine, support what
you are going to be asking for which are jury instructions along those lines, I
will allow the nature of that conviction to be introduced. If he does not testify
in such a way as you have proposed in your motions in limine, then that
conviction will need to be sanitized to only reflect that it is a felony conviction
out of San Mateo from October 10, 2012. . . .”
“A witness may be impeached with any prior conduct involving moral
turpitude whether or not it resulted in a felony conviction. . . .” (People v.
Clark (2011) 52 Cal.4th 856, 931.) Evidence Code sections 788 and 352
govern the admissibility of felony convictions for impeachment. (People v.
Mendoza (2000) 78 Cal.App.4th 918, 925.) Evidence Code section 788 allows
admission of felonies for “the purpose of attacking the credibility of a
witness,” while Evidence Code section 352 gives the trial court discretion to
assess whether the evidence is more prejudicial than probative. (See People
v. Dyer (1988) 45 Cal.3d 26, 73.) The trial court’s exercise of discretion
“ ‘must not be disturbed on appeal except on a showing that the court
exercised its discretion in an arbitrary, capricious or patently absurd manner
that resulted in a manifest miscarriage of justice.’ ” (People v. Rodrigues
(1994) 8 Cal.4th 1060, 1124–1125, abrogated on another ground as stated in
People v. Leon (2020) 8 Cal.5th 831, 848.)
“ ‘Evidence of prior felony convictions offered for this purpose is
restricted to the name or type of crime and the date and place of conviction.’ ”

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(People v. Gutierrez (2018) 28 Cal.App.5th 85, 88–89.) A court’s
determination of whether to sanitize a prior conviction is guided by four
factors: “(1) Whether the prior conviction reflects adversely on an
individual’s honesty or veracity; (2) the nearness or remoteness in time of the
prior conviction; (3) whether the prior conviction is for the same or
substantially similar conduct to the charged offense; and (4) what the effect
will be if the defendant does not testify out of fear of being prejudiced because
of impeachment by prior convictions. [Citation.] However, these factors need
not be rigidly followed.” (People v. Muldrow (1988) 202 Cal.App.3d 636, 644.)
Defendant “does not contend that the evidence of his convictions should
have been excluded altogether” nor does he dispute that a conviction for being
a felon in possession of a firearm is a crime evincing moral turpitude nor that
the crime was too remote. Rather, he maintains the nature of his prior
offense was irrelevant to impeach his credibility and the similarity of the
offense was prejudicial because it gave the impression he is a “bad man who
illegally possesses guns.”
It was not an abuse of discretion to refuse to further sanitize
defendant’s 2012 conviction. Simply referring to an unspecified felony might
have led the jury to speculate on the severity of the conviction, especially in
light of the fact that defendant does not contend the trial court erred in
failing to sanitize his vandalism conviction. As our Supreme Court has
recognized, sanitization presents a defendant with a “archetypal Hobson’s
choice of (1) remaining silent on the point and subjecting himself to . . .
improper speculation by the jury, or (2) divulging the nature of his prior
conviction and incurring an equally grave risk that the jury will draw an
impermissible inference of guilt. Either way leads to prejudice. . . .” (People
v. Rollo (1977) 20 Cal.3d 109, 120, superseded by constitutional amendment

14
on other grounds as stated in People v. Castro (1985) 38 Cal.3d 301, 307–308,
312–313.)
The felon-in-possession-of a firearm conviction was not identical to the
charged offense, but it was similar. However, “Prior convictions for the
identical offense are not automatically excluded,” rather the “ ‘identity or
similarity of current and impeaching offenses is just one factor to be
considered by the trial court in exercising discretion.’ ” (People v. Green
(1995) 34 Cal.App.4th 165, 183, quoting People v. Castro (1986)
186 Cal.App.3d 1211, 1216.)
It is clear the trial court was aware of its discretion and exercised it.
The court ruled the 2010 conviction was too remote and the gang reference in
the 2012 conviction was too prejudicial. Based on the record before us, we
cannot say the court acted in an arbitrary, capricious, or patently absurd
manner in declining to further sanitize the 2012 conviction.
Even assuming the trial court abused its discretion by failing to further
sanitize the 2012 conviction, the error was harmless. We again reject
defendant’s claim that the trial court’s evidentiary ruling “violated [his]
rights to due process and a fair trial” thus requiring prejudicial review under
Chapman, supra, 386 U.S. 18. The court’s refusal to sanitize the prior did
not deter defendant from testifying or presenting his defense. (See Watson,
supra, 46 Cal.2d at p. 836; People v. Collins (1986) 42 Cal.3d 378, 390–391.)
Applying the Watson standard, we observe that any danger of undue
prejudice posed by the admission of the partially sanitized 2012 firearm
conviction was mitigated by the trial court’s instruction to the jury that “The
evidence that the defendant was previously convicted of [being a] felon in
possession of a firearm, (a felony) and felony vandalism, are admitted solely
to assist you in evaluating the witness’ credibility. You are not to consider

15
this evidence for any other purpose.” We must presume, of course, that the
jurors followed the court’s instructions. (People v. Avila (2006) 38 Cal.4th
491, 574.)
People v. Allen (1978) 77 Cal.App.3d 924 (Allen), which defendant cites,
is distinguishable. In that case, the defendant and a cohort, who was a
minor, committed an armed robbery. (Id. at p. 928.) On rebuttal, the
prosecution called the minor’s mother to testify, expecting she would testify
that the defendant’s sister, who had testified for the defense, had told her she
was willing to lie in court for her brother. Unexpectedly, the minor’s mother
testified the defendant’s sister had said the defendant “ ‘was on parole and he
couldn’t stand another beef.’ ” (Id. at p. 934.) The trial court ordered the
answer stricken and immediately admonished the jury to disregard the
testimony (id. at pp. 934–935) but denied the defendant’s motion for mistrial.
(Id. at p. 929, fn. 5.) The Court of Appeal reversed. (Id. at p. 935.)
There was no dispute, said the appellate court, that the mother’s
testimony had not been proffered, and could not be proffered, for
impeachment because “the [defendant’s] parole was the result of a prior
juvenile adjudication which [by statute] cannot be deemed a conviction of a
crime for any purpose.” (Allen, supra, 77 Cal.App.3d at p. 934; see Welf. &
Inst. Code, § 203 [“order adjudging a minor to be a ward of the juvenile court
shall not be deemed a conviction of a crime for any purpose”].) And while it
must generally be presumed the jury has followed instructions, there are
“exceptional circumstances” where that presumption must give way. (Allen,
at pp. 934–935.) The court concluded such was the case before it, given that
the record “reveal[ed] an extremely close case in which the jury had to make
its fact determination based upon the credibility of the [defendant] and his
witnesses and on the credibility of the prosecution’s witnesses.” (Id. at

16
p. 935.) Accordingly, it was “reasonably probable that a result more favorable
to [the defendant] would have been reached had the prejudicial information
of [his] parole status not been divulged to the jury.” (Ibid.)
Here, unlike in Allen, there was no statutory impediment to using
defendant’s 2012 felon in possession of a firearm conviction for impeachment.
Nor was the conviction the lone conviction used for impeachment, such that it
had particular prominence, in contrast to Allen, where the only evidence of
prior criminal conduct by the defendant appears to have been the unexpected
witness testimony. While it is true the jury had to determine whether to
credit defendant’s testimony that he had found the 10 .45 caliber bullets on
the El Camino Real sidewalk only minutes before encountering Deputy
Venikov and, on seeing Venikov, immediately changed his objective from
finding a trash can to delivering the ammunition to law enforcement for
disposal, the record was not “extremely close” warranting departure from the
presumption that the jury was able to follow the court’s instructions.6
Sentencing
Before sentencing, the trial court considered the probation report, the
defendant’s sentencing memorandum with an attached report by a social
worker who had twice interviewed defendant, and the prosecution’s
sentencing memorandum.
The probation report recommended denial of probation and a prison
sentence. The department noted defendant’s criminal history dated back to
when he was 18 years old and included 13 convictions for various offenses
and two prison sentences. Additionally, his latest parole release included

6Given our conclusion that the trial court did not abuse its discretion
in making the challenged evidentiary rulings, we need not and do not,
address defendant’s contention of cumulative error.

17
continuing violations until parole was eventually terminated in 2017. During
the interview with the probation officer, defendant “denied any sort of
substance abuse,” “denied ever suffering from a mental health issue,” and
“denied any prior or current gang affiliations,” instead presenting “himself as
a law-abiding person with good intentions.” The officer noted this was in
direct contrast to information contained in a prior probation report, where
defendant “reported he had a history of substance abuse, mental health
diagnosis, and gang association.”
In regard to his family background, defendant reported his parents had
divorced when he was nine years old, but declined to speak on the matter,
stating “his parents’ relationship issues did not concern him.” He denied
suffering any type of abuse during his childhood, and denied ever having
been diagnosed with a mental health issue or being prescribed any
medication. Again, this was in direct contrast to other probation records in
which defendant indicated his parents’ divorce had been “very difficult for
him and a source of depression,” that he had been previously “diagnosed with
depression, bipolar disorder, and schizophrenia and was prescribed
medication.” When asked about the “previous statements to . . . probation . . .
concerning his mental health diagnosis and treatment,” defendant “denied
ever suffering from any sort of mental health condition and indicated he
could not recall being prescribed any medication.”
Defendant denied any substance abuse or treatment history, only
admitting to twice drinking alcohol. When confronted with his past “arrests
for possession of a controlled substance,” defendant “admitted he was in
possession of methamphetamine” but denied he had used the drug. He also
then admitted he had “used cocaine and ecstasy regularly since the age of 15”

18
and that he had completed “18 months of [an] outpatient substance abuse
treatment program.”
The probation department concluded that under California Rules of
Court, rule 4.423 there were “no mitigating circumstances.”7
Defendant’s sentencing memorandum requested the court reduce the
felony conviction to a misdemeanor or to “grant the mitigated” term of 16
months. At no point did defendant expressly claim a presumptive lower term
was warranted pursuant to section 1170, subdivision (b)(6). However,
defendant argued granting the mitigated term was “appropriate given [his]
extensive mental illness and the link between that illness and his actions in
this case.” He cited to a social worker report attached to the memorandum,
which “discussed extensively” defendant’s “untreated childhood and
adulthood traumas compounded by self-medication through illicit drugs”;
that defendant reported “hearing voices daily and having auditory and visual
hallucinations”; that defendant had stated he had told the “Sherriff Deputy
that he believed the bullets were ‘bewitched’ and thus dangerous to children”
and “repeatedly made references to ‘demonic spirits’ interacting with these
bullets” indicating defendant’s actions were “driven by his mental health

7 Mitigating factors include, among other things, that “defendant was
suffering from a mental or physical condition that significantly reduced
culpability for the crime” or “defendant experienced psychological, physical,
or childhood trauma, including, but not limited to, abuse, neglect,
exploitation, or sexual violence and it was a factor in the commission of the
crime.” (Cal. Rules of Court, rule 4.423(b)(2)–(3).)

19
disorder”8; and the social worker’s belief that defendant “likely suffers from
undiagnosed schizophrenia.”9
The People’s sentencing memorandum urged the court to impose the
midterm of two years. The memorandum did not address any factors in
mitigation or address any of the claims of mental illness or trauma. Rather,
the People stated defendant was ineligible for probation based on
section 1203, subdivision (e)(4).10
At the sentencing hearing, defense counsel informed the court
defendant was “prepared to explore treatment options.” Counsel reiterated
defendant was “having delusions about these bullets, being bewitched, and

8 Defendant stated in his memorandum that he had “made a series of
strange statements indicating his belief that the bullets were bewitched. [¶]
‘Yes sir, on the sidewalk and I picked it up because um it might have had
something it might have been bewitched or something and a kind of position,
so excuse me, I had to contact our demonic spirits and help me defuse this so
I wouldn’t destroy anything of the ground so, witching me hell of bad, like,
you know, I had to contact demonic spirits, to defuse these, so I can pick them
up and put them in my pocket and throw them away.’ ”
9 In the interviews with the social worker, defendant reported “adverse
childhood experiences,” including physical, emotional, and mental abuse by
his father, assault by a cousin and emotional abuse by his mother;
experiencing homelessness; gang association; and mental health issues,
including threats of self-harm. He also reported he had been diagnosed with
depression although he could not recall “who diagnosed him or where he was
diagnosed.” The social worker opined defendant’s mental health issues were
“align[ed] with an individual who would be diagnosed with schizophrenia”
and had been “exacerbated” by his substance abuse use. Finally, defendant
reported “an extensive history of substance use.”
10 Section 1203, subdivision (e)(4) provides, “Except in unusual cases in
which the interests of justice would best be served if the person is granted
probation, probation shall not be granted” to “Any person who has been
previously convicted twice in this state of a felony or in any other place of a
public offense which, if committed in this state, would have been punishable
as a felony.”

20
that [someone] was telling him to pick them up,” and he “has underlying
issues of schizophrenia.” Counsel then stated defendant’s mother was in
court and “can talk a little bit more.” The trial court responded, “I don’t need
any further information,” and defense counsel submitted.
The prosecutor submitted on the papers.
The court began by stating defendant had a lack of positive history of
probation and “did not seem to take [his] interview with the probation officer
. . . seriously.” The court noted “the stark contrast between the information
that you provided to the probation officer as opposed to what you provided to
. . . [the] social worker. [¶] . . . [¶] They cannot be reconciled. And what it
reflects upon is your inability to tell the truth.” The court continued, that
defendant had been “consistently dishonest with the probation officer,”
pointing to, for example, that defendant “denied any substance abuse history
at all, which is remarkable because you also acknowledge that you have
previously completed . . . a substance abuse treatment program.”
Additionally, defendant’s “criminal history is replete with continued
violations of the law. It’s pretty amazing. While I’m here to sentence you on
a felony, you have five or six pending open cases because rehabilitation hasn’t
worked with you thus far.” The court, citing section 1203, subdivision (e)(4),
then stated barring unusual circumstances, not present in this case,
defendant was not eligible for probation and sentenced him to the midterm of
two years. In making its sentencing determination, the court made no
reference to section 1170, subdivision (b)(6).
Senate Bill No. 567 (2021–2022 Reg. Sess.) (Senate Bill 567), which
took effect on January 1, 2022, “ ‘amended section 1170, subdivision (b) to
specify that, when a sentencing court chooses a term from a statutory triad,
the chosen term shall not exceed the middle term, unless the facts supporting

21
the aggravating circumstances are (1) established by the defendant’s
stipulation to them, (2) proven to a jury (or to a court, if jury is waived)
beyond a reasonable doubt, or (3) based on prior convictions evidenced by a
certified record of conviction. (Stats. 2021, ch. 731, §§ 1.3, 3(c), adding Pen.
Code, § 1170, subd. (b)(1)–(3), by amendment.)’ [Citation.] . . .
“In addition, Senate Bill 567 ‘added a provision that requires the court
to impose the low term if . . . the defendant’s psychological, physical, or
childhood trauma was a contributing factor in the commission of the offense,
“unless the court finds that the aggravating circumstances outweigh the
mitigating circumstances [so] that imposition of the lower term would be
contrary to the interests of justice.” (Stats. 2021, ch. 731, § 1.3, adding Pen.
Code, § 1170, subd. (b)(6), by amendment; see Stats. 2021, ch. 731, § 3(c).)’ ”
(People v. Bautista-Castanon (2023) 89 Cal.App.5th 922, 927.)
We review the sentencing court’s choice of term for abuse of discretion.
(People v. Panozo (2021) 59 Cal.App.5th 825, 837 (Panozo).) However, a
failure to exercise discretion may constitute an abuse of that discretion.
(Ibid.)
Defendant contends the “record as a whole unambiguously shows that
[his] middle term sentence is based on the trial court’s misunderstanding of
the law.” (Capitalization & boldface omitted.) He contends amendments to
section 1170 established “a presumptive mandate to impose the lower term
for a class of persons who, like [him], have suffered [trauma] . . . when such
trauma is a contributing factor to the crime,” and here the trial court imposed
the midterm without even mentioning his history of “significant . . . trauma.”
Specifically, defendant claims “the record and counsel’s arguments”—that
defendant’s underlying trauma and mental health issues, including delusions
that the bullets were “bewitched, and that Christopher was telling him to

22
pick them up”—“trigger[ed] section 1170, subdivision (b)(6)’s presumptive
mandate to impose the lower term.”
The Attorney General concedes this “[a]rguably . . . would support a
finding that [defendant’s] psychological trauma had contributed to his
commission of this offense.” However, he points out the “trial court noted,
[defendant’s] disclosure lacked credibility,” and therefore concludes defendant
did not meet “his burden of making an initial showing that he was entitled to
the lower term presumption on the basis of credible evidence that his
traumatic experiences were a contributing factor in his commission of the
charged offenses.” The Attorney General relies on People v. Fredrickson
(2023) 90 Cal.App.5th 984 (Fredrickson).
In Fredrickson, Division Five of this court held the trial “court was not
required to make an express finding” as to the section 1170, subdivision (b)(6)
presumption “because nothing in the record show[ed] [defendant’s] youth was
a ‘contributing factor’ in the commission of the underlying offense.”
(Fredrickson, supra, 90 Cal.App.5th at p. 987.) Although, the defendant was
23 years old at the time of the offense, and thereby a “youth” for statutory
purposes, there simply was “no clear indication” in the probation reports,
sentencing memoranda, letters submitted on defendant’s behalf or arguments
made by counsel that her “youth was a contributing factor” in the offense.
(Id. at pp. 987, 994.)
Initially, we note, as did the court in Fredrickson, that “Prior caselaw
does not clarify what initial showing would be sufficient to obligate a trial
court to make an express finding regarding the Section 1170(b)(6)(B) lower
term presumption.” At least one court has “variously referred to an ‘initial
showing,’ a ‘prima facie showing,’ and a ‘preliminary showing.’ ”
(Fredrickson, supra, 90 Cal.App.5th at p. 994, quoting People v. Bruhn (1989)

23
210 Cal.App.3d 1195, 1199–1200.) Another court found “there was sufficient
showing . . . where ‘defense counsel argued extensively at sentencing that his
client’s crimes were the byproduct of his military service.’ ” (Fredrickson, at
p. 994, quoting Panozo, supra, 59 Cal.App.5th at p. 837.) The Fredrickson
court offered—without deciding—that “an initial showing has been made
when the record and/or arguments are sufficient to put a trial court on notice
that a defendant’s youth may have been a contributing factor in commission
of the underlying offense.” (Fredrickson, at p. 994.) We agree this is a
reasonable construction.
However, unlike in Fredrickson, defense counsel here did attempt to
characterize defendant’s mental illness as a contributing factor to his offense
when he argued defendant’s underlying trauma and mental health issues,
including delusions that the bullets were “bewitched, and that Christopher
was telling him to pick them up,” contributed to his criminal conduct.
Accordingly, the trial court was “on notice” that defendant’s mental illness
“may have been a contributing factor in the commission of the underlying
offense.” (Fredrickson, supra, 59 Cal.App.5th at p. 994.)
It is true the trial court found defendant lacked credibility, citing his
“consistent[] dishonest[y]” to the probation officer and his “inability to tell the
truth” as evinced by the marked difference between his interviews with the
probation officer and the social worker. However, the court did not consider
how this weighed in the context of section 1170, subdivision (b)(6). For
example, the trial court could have—as the Attorney General suggests—not
credited defendant’s disclosures at all, meaning the trial court did not believe
defendant suffered from a mental illness or that if he did, it was not a
contributing factor to the charged offense. Or, the court’s comments could
demonstrate only that the court did not find defendant’s mental health

24
issues, if any and whatever their source, were a mitigating factor that
“significantly reduced culpability for the crime.” (Cal. Rules of Court, rule
4.423(b)(2).)
As relevant here, amended section 1170, subdivision (b)(6)(A) requires
imposition of a lower term if defendant’s psychological or childhood trauma
was a “contributing factor” to the commission of the crime. Because “mental
illness may underlay a crime without also significantly reducing culpability,”
the fact that the trial court found defendant’s “mental illness was not a
significant factor in the crime does not subsume a finding it was a lesser
contributing factor.” (People v. Banner (2022) 77 Cal.App.5th 226, 241–242;
id. at p. 242 [“not finding mental illness a mitigating factor under the
California Rules of Court does not preclude a separate finding psychological
trauma is a contributing factor to the crime under section 1170, subdivision
(b)(6)”].)
Thus, while the trial court’s comments strongly suggest it would not
find defendant’s alleged mental health and psychological issues, or childhood
trauma to be a mitigating factor under the California Rules of Court, those
comments do not “clearly indicate” that it would not find defendant’s trauma
or mental illness to be a contributing factor under section 1170,
subdivision (b)(6)(A). (See Panozo, supra, 59 Cal.App.5th at p. 840 [it was “at
the very least, ambiguous as to whether the trial court was aware of its
statutory obligations” to “consider the defendant’s service-related
[posttraumatic stress disorder] as a mitigating circumstance” in evaluating
whether to grant probation under section 1170.9 and in selecting the
appropriate determinate term under section 1170.91].)
The Attorney General maintains that even assuming the trial court
misapprehended its sentencing obligation under section 1170, subdivision

25
(b)(6)(A), the error was harmless, and remand is unnecessary “because it is
reasonably probable that the trial court would have declined to impose the
lower term in light of the circumstances in aggravation.” (See Watson, supra,
46 Cal.2d 818.) Respondent notes “ ‘Only a single aggravating factor is
required to impose the upper term,’ ” and here, at the sentencing hearing,
“the prosecutor submitted circumstances in aggravation that outweighed
those in mitigation.” However, sentencing courts have wide discretion in
weighing circumstances in aggravation and mitigation and may balance them
against the others in qualitative as well as quantitative terms. (People v. Roe
(1983) 148 Cal.App.3d 112, 119.) Absent a clear showing the court’s
sentencing would be the same, it is most appropriate to remand (People v.
Gutierrez (2014) 58 Cal.4th 1354, 1391 [remand unnecessary when
sentencing court’s statement “clearly indicate” it would impose same sentence
under new law]), so that the trial court can exercise its discretion to decide
whether defendant’s psychological or childhood trauma was a contributing
factor to his commission of the offenses and, if so, whether “the lower term
would be contrary to the interests of justice.” (§ 1170, subd. (b)(6); Banner,
supra, 77 Cal.App.5th at p. 242.) We express no view on how the court
should exercise its discretion, but remand to allow for development of the
record on the relevant issues and resentencing.
DISPOSITION
Defendant’s conviction of violating section 30305, subdivision (a)(1) is
AFFIRMED. His midterm, two-year sentence, however, is REVERSED and
the matter remanded for further sentencing proceedings consistent with this
opinion.

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 _________________________
Banke, J.

We concur:

_________________________
Humes, P.J.

_________________________
Langhorne, J.

A166209, People v. Romero-Guzman

27