Filed 5/28/14 P. v. Tafolla CA2/8
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT


THE PEOPLE,                                                          B248400

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. VA123570)
         v.

JOSEPH TAFOLLA,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County, John A.
Torribio, Judge. Affirmed with directions.


         Jeffrey J. Douglas, under appointment by the Court of Appeal, for Defendant and
Appellant.


         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, and Susan Sullivan Pithey,
Deputy Attorney General, for Plaintiff and Respondent.
                                                       ******
       Appellant Joseph Tafolla contends we should reverse his conviction for dissuading
a witness from testifying (Pen. Code, § 136.1, subd. (a)(1))1 because the trial court erred
in admitting certain evidence under Evidence Code section 352. He also asserts the court
erred in limiting his presentence conduct credits. We direct the court to correct an error
in the abstract of judgment but otherwise affirm.
                                            FACTS
1. The Underlying Case: the Velasquez Shooting
       On November 1, 2010, Robert Velasquez was shot to death in Pico Rivera. The
suspects in the case were Michael Barrios, Enrique Medina, and Thomas Arellanes,
members of the Brown Authority gang. Tina Perez gave detectives information about the
Velasquez shooting. She identified the three suspects in photographs and told detectives
she saw the three of them at her house prior to the shooting. The three suspects were
charged with first degree murder. Perez was subpoenaed to testify at their preliminary
hearing and trial. She testified at both.
2. Appellant’s Communications with Perez Regarding the Velasquez Case
       Perez has known appellant and his family since 2003. They lived in the same
neighborhood, and she knew appellant very well. Appellant knew Perez’s son and would
visit her home often. She knew appellant was a member of Brown Authority. Other
members of Brown Authority would also frequent her home. Appellant visited her home
unannounced on December 3, 2011, 11 days before the preliminary hearing in the
Velasquez case. Perez was very nervous about testifying, and she asked appellant what
she should do. She knew Barrios, Medina, and Arellanes, and Barrios in particular had
been to her home on many occasions. She knew Barrios went by the nickname
“Whisper” and Arellanes by the nickname “Soldier.” She was “torn” because she had
known Barrios for many years and it was going to be hard for her to testify against him.



1      Further undesignated statutory references are to the Penal Code.



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She was also concerned about retaliation because she lived in “their area, their
dominion.” Appellant told her to “plead the fifth.”
       Appellant also talked to Perez about another murder case (not the Velasquez case)
in which his sister, Jennifer Tafolla,2 was a defendant. Someone named “Freddy” had
testified at Jennifer’s preliminary hearing. Appellant said he wanted to “kick his ass”
because he had testified. He “hated” Freddy but said “they couldn’t take him out until
the trial was over because it would mess up Jennifer’s case.” Jennifer was also a Brown
Authority member.
       Perez contacted Detective Hank Ortega four days after appellant’s visit. The
detective talked to her in person. She told the detective what appellant said about
pleading the fifth and wanting to “hit” a witness in his sister’s case. Detective Ortega
thought Perez was concerned and seemed nervous. She said she feared for her safety and
felt like appellant was threatening her with the same thing when he talked about “taking
out” Freddy.
       The preliminary hearing in the Velasquez case took place on December 14, 2011.
Prior to the hearing, Perez talked to Detective Wayne Holston about moving out of her
neighborhood, which was in Brown Authority gang territory. He encouraged her to move
because she was “in fear.” But before the hearing, neither Detective Holston nor
Detective Ortega talked to Perez about a governmental entity providing her with funds to
move. After the preliminary hearing, Detective Holston told her he heard about a
program in which the city might purchase the homes of witnesses so that they could
relocate.
       Two days after Perez testified at the preliminary hearing, she received a text
message from appellant. The text read: “Buenos dias. Just wanted 2 touch bases wit u.
I know that I don’t have 2 remind u cuz u no what time it is, but whisp wants me 2


2     Because appellant’s sister shares his surname, we will refer to her by her first
name for the sake of clarity. We do not intend this informality to reflect a lack of respect.



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remind u n e ways. Plead the 5th n tell ur boy the same. Luv u!!!” Perez understood
“whisp” referred to Barrios. “[U]r boy” referred to her son. She understood “plead the
5th” meant “[t]o not say a word.” She testified she did not feel threatened by appellant’s
message.
       Perez contacted Detective Ortega again on December 16, 2011. According to
Perez, she showed him appellant’s text message and asked, “Does this sound like a threat
so I could get money to move out of my home?” She was “laughing like a joke” when
she said this. She was not scared. She wanted funds to help her relocate.
       According to Detective Ortega, they did not speak about a relocation program in
which the government might purchase her house; he was not aware of such a program at
the time. She never asked him whether the text message was enough of a threat to get
relocation funds.
                               PROCEDURAL HISTORY
       The jury found appellant guilty of dissuading a witness from testifying (§ 136.1,
subd. (a)(1)) and found gang allegations to be true (§ 186.22, subd. (b)). The court found
true the allegation of a prior strike under the “Three Strikes” law. (§§ 667, subds. (b)-(i),
1170.12, subds. (a)-(d).) It also found true the allegations that appellant had served three
prior prison terms under section 667.5, subdivision (b).
       For the substantive offense, the court sentenced appellant to the upper term of
three years and doubled the term under the Three Strikes law. (§§ 667, subd. (e)(1),
1170, subd. (h)(1), 1170.12, subd. (c)(1).) It then added a term of five years for the gang
enhancement and a total of three years for the three prior prison terms. (§§ 186.22, subd.
(b)(1)(B), 667.5, subd. (b).) Appellant thus received a total of sentence of 14 years in
state prison. The court awarded him 961 days of presentence credit, consisting of 836
actual days served and 125 days of conduct credits. Appellant timely appealed.
                                      DISCUSSION 
1. Evidence of Jennifer’s Trial
       Appellant contends the court erred in admitting evidence that Jennifer’s trial was
for murder because the specific charge against her was irrelevant. He argues the court

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should have excluded the nature of the charge under Evidence Code section 352 because
the only purpose of informing the jury she was facing murder charges was to inflame and
prejudice the jury. Appellant has forfeited the contention on appeal, but even had he not,
the trial court did not err.
       Appellant objected at trial to evidence that Jennifer “was accused,” arguing there
was no connection between Jennifer’s case and the Velasquez case in which Perez was to
testify. The prosecution argued appellant himself told Perez he was going to “get” the
witness, Freddy, in Jennifer’s case and thus the evidence was relevant for its potential
impact on Perez. The court noted it was considering undue prejudice, but it found the
evidence of Jennifer’s case to be sufficiently probative because it went “to the state of
mind of the recipient.” It overruled appellant’s objection.
       Preliminarily, we note appellant’s argument below was not the same argument he
now makes. In the trial court, appellant objected to a broader category of evidence (any
mention of Jennifer as a criminal defendant). On appeal, appellant objects to a subset of
that evidence (the specific charges against her). The trial court did not expressly rule on
whether the evidence should be sanitized so that “murder” charges were not mentioned.
Appellant never made that specific objection to the court. Generally, we will not review
the question of admissibility in the absence of a specific and timely objection in the trial
court based on the same ground urged on appeal. (People v. Rogers (1978) 21 Cal.3d
542, 548.) Moreover, “when making [an Evidence Code] section 352 objection grounded
upon the existence of an evidentiary alternative, . . . the objecting party [must] identify
the evidentiary alternative with specificity. Otherwise, the trial court will not be fully
apprised of the basis on which exclusion is sought; nor can the trial court conduct a
balancing analysis which involves weighing the probative value of the alternative.”
(People v. Holford (2012) 203 Cal.App.4th 155, 170.) Appellant forfeited his contention
that the court should have sanitized the nature of the charges by failing to argue this
alternative below. “‘A party cannot argue the court erred in failing to conduct an analysis
it was not asked to conduct.’” (Id. at p. 169, italics omitted.)



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       Assuming appellant had not forfeited the contention, we would nevertheless
conclude the court did not err. The court has the discretion to exclude evidence if its
probative value is substantially outweighed by the probability that it will create a
substantial danger of undue prejudice. (Evid. Code, § 352.) We review a trial court’s
determination under Evidence Code section 352 for abuse of discretion. (People v.
Waidla (2000) 22 Cal.4th 690, 724.) Abuse of discretion occurs when “there is a clear
showing the trial court exceeded the bounds of reason, all of the circumstances being
considered.” (People v. DeJesus (1995) 38 Cal.App.4th 1, 32.)
       “Evidence is substantially more prejudicial than probative [citation] if . . . it poses
an intolerable ‘risk to the fairness of the proceedings or the reliability of the
outcome . . . .’” (People v. Waidla, supra, 22 Cal.4th at p. 724.) “‘“Prejudice” as
contemplated by [Evidence Code] section 352 is not so sweeping as to include any
evidence the opponent finds inconvenient. Evidence is not prejudicial, as that term is
used in a section 352 context, merely because it undermines the opponent’s position or
shores up that of the proponent. . . . “‘The “prejudice” referred to in Evidence Code
section 352 applies to evidence which uniquely tends to evoke an emotional bias against
the defendant as an individual and which has very little effect on the issues. . . .[’”] . . .
[“‘T]he statute uses the word in its etymological sense of “prejudging” a person or cause
on the basis of extraneous factors. [Citation.]’ [Citation.]”’” (People v. Doolin (2009)
45 Cal.4th 390, 438-439, citations omitted.)
       Here, the evidence of Jennifer’s case was more probative than prejudicial. As the
court pointed out, the evidence was relevant for its impact on Perez. Appellant told Perez
he wanted to retaliate against the witness in Jennifer’s case and at the same time advised
Perez to plead the fifth as a witness. Perez told Detective Ortega she feared for her safety
after that and felt like the threat against her was similar to the threat against the witness in
Jennifer’s case. The similarity of the cases -- both were against Brown Authority
members, both involved homicide -- was relevant because it would have demonstrated to
Perez that in serious cases, appellant was willing to threaten witnesses with serious



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consequences. The similarity between the cases might also have heightened Perez’s fear.
The type of case in which Jennifer was involved was not just an extraneous factor.
       Appellant argues the nature of the charges against Jennifer served only to inflame
the jury against him. We are not so persuaded. We credit jurors with intelligence and
common sense. (People v. Coddington (2000) 23 Cal.4th 529, 594, overruled on other
grounds by Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) Any chance
the jurors were inflamed against appellant because of something his sister was accused of
doing was slight and did not outweigh the probative value of the evidence. The evidence
did not pose an “intolerable ‘risk to the fairness of the proceedings or the reliability of the
outcome.’” (People v. Waidla, supra, 22 Cal.4th at p. 724.) It is far more likely the
outcome was influenced by evidence that appellant told Perez he wanted to retaliate with
violence against a witness and then told her to “plead the 5th” during the same visit.
2. Sentencing
       Appellant contends the court erred in limiting his presentence conduct credits to
15 percent because there was no jury finding on the facts that disqualified him from
earning full credits. Alternatively, if no jury finding was required, appellant contends we
must remand for an express finding by the court on the disqualifying facts. We disagree
the court erred and reject the need for a remand. Additionally, we note the abstract of
judgment incorrectly states the subdivision under which the court imposed the gang
enhancement, and we therefore correct the abstract.
a. No Requirement of Jury Finding
       Section 2933.1 limits presentence conduct credits to 15 percent of the actual time
served for persons convicted of certain violent felonies (§ 2933.1, subds. (a), (c).),
including “[t]hreats to victims or witnesses, as defined in Section 136.1” (§ 667.5, subd.
(c)(20)). Appellant argues he was convicted under section 136.1, subdivision (a)(1),
while the qualifying violent felony involving “threats to victims or witnesses” is
described by a different subdivision—section 136.1, subdivision (c)(1).
       Section 136.1, subdivision (a)(1), describes a “wobbler” offense. It provides
anyone who “[k]nowingly and maliciously prevents or dissuades any witness or victim

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from attending or giving testimony at any trial, proceeding, or inquiry authorized by law”
is guilty of an offense that may be punished as either a misdemeanor or felony. (§ 136.1,
subd. (a)(1).) The court punished appellant under this subdivision as a felon. Section
136.1, subdivision (c)(1) states any person who commits an act described by subdivision
(a), “[w]here the act is accompanied by force or by an express or implied threat of force
or violence,” is guilty of a felony that carries an increased state prison triad. Subdivision
(c) is the only portion of section 136.1 referring to “threats.” Appellant asserts he was
entitled to a jury finding on whether he threatened Perez within the meaning of
subdivision (c) before the court could use that fact to increase his punishment. He
equates the 15 percent limitation in his presentence credits to an increase in punishment.
       In People v. Garcia (2004) 121 Cal.App.4th 271 (Garcia), the court examined and
rejected the same argument, except that the “violent felony” at issue was first degree
burglary. To limit the defendant’s credits to 15 percent, another person other than an
accomplice had to be present in the residence during the burglary. (Id. at p. 275.) The
defendant argued he was entitled to a jury finding on this fact. He relied on Apprendi v.
New Jersey (2000) 530 U.S. 466 (Apprendi), as does appellant, which held: “Other than
the fact of a prior conviction, any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and proved beyond a
reasonable doubt.” (Id. at p. 490.)
       The Garcia court held that “section 2933.1, subdivision (c)’s limitation on
presentence conduct credits is not a sentencing enhancement,” and it does not operate to
increase maximum sentences for violent felonies. (Garcia, supra, 121 Cal.App.4th at
p. 277.) “Rather, the provisions for presentence conduct credits function as a sentence
‘reduction’ mechanism outside the ambit of Apprendi.” (Ibid.) Accordingly, because
“[l]essening the ‘discount’ for good conduct credit does not increase the penalty beyond
the prescribed maximum punishment[,] [it] does not trigger the right to a jury trial
identified in Apprendi.” (Ibid.) The court further held it was part of the trial court’s
traditional sentencing function to determine whether the defendant’s conviction qualified
as a violent felony. (Id. at p. 278.)

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       The California Supreme Court cited Garcia’s reasoning with approval in People v.
Lara (2012) 54 Cal.4th 896, 901-902 (Lara) and went on to hold that credit disabilities
need not be pleaded and proved to the trier of fact. (Id. at p. 906.) Moreover, the Lara
court noted the cases requiring pleading and proof to the jury of facts that increase a
defendant’s sentence, but the court did “not believe the rule can properly be extended to
require similarly formal determination of the facts that limit a prisoner’s ability to earn
conduct credits.” (Id. at p. 903.)
       In accordance with Garcia and Lara, appellant was not entitled to a jury finding
on whether he committed the qualifying violent felony—that is, whether he used “an
express or implied threat of force or violence” to dissuade Perez. (§ 136.1, subd. (c)(1).)
The court did not err in limiting his credits in the absence of a jury finding.
b. Court’s Implied Finding Sufficient
       Assuming we disagree appellant was entitled to a jury finding, he contends we
must remand for the court to make an express finding that he threatened Perez because
the trial court was unaware it should decide this issue. To the contrary, the record
demonstrates the court was not unaware of the issue. The prosecution’s sentencing
memorandum flagged the 15 percent limitation for those convicted of a “violent felony”
and cited the relevant statutes (§§ 667.5, subd. (c), 2933.1). When the court asked about
presentence credits at the sentencing hearing, defense counsel replied: “836 actual days.
At 15 percent that’s an additional 125 days.” (Italics added.) The court then pronounced
appellant had credit for 836 actual days plus 125 days of conduct credit. Thus, the court
impliedly found appellant had committed a violent felony limiting his credit to 15 percent
of actual time served.
       Appellant cites no authority demonstrating an implied finding was insufficient.
On the other hand, under the doctrine of implied findings, we imply all findings
necessary to support the judgment. (People v. Francis (2002) 98 Cal.App.4th 873, 878.)
A remand is unnecessary.




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c. Correction to Gang Enhancement in Abstract of Judgment
       In the oral pronouncement of sentence, the court stated it was “add[ing] five years
for the 186.22 enhancement,” without expressly identifying the applicable subdivision of
the statute. The abstract of judgment shows appellant received a five-year enhancement
for the gang allegations and cites section 186.22, subdivision (b)(4). Subdivision (b)(4)
provides for an indeterminate term of life imprisonment when defendants are convicted
of certain enumerated felonies. The court did not sentence appellant to an indeterminate
term of life imprisonment. The abstract is thus incorrect in citing section 186.22,
subdivision (b)(4).
       The court sentenced appellant under subdivision (b)(1)(B) of section 186.22,
which provides for an enhancement of five years when the defendant is convicted of a
serious felony. The abstract of judgment should be corrected so that it cites subdivision
(b)(1)(B). (People v. Mitchell (2001) 26 Cal.4th 181, 185 [clerical error in abstract of
judgment may be corrected on appeal].)
                                     DISPOSITION
       The trial court is directed to prepare an amended abstract of judgment that shows
the court imposed the five-year gang enhancement under section 186.22, subdivision
(b)(1)(B). The court shall forward a copy of the amended abstract to the Department of
Corrections and Rehabilitation. In all other respects, the judgment is affirmed.




                                                 FLIER, J.
WE CONCUR:




       RUBIN, Acting P. J.                       GRIMES, J.




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