Filed 7/16/13 P. v. Hammond 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FIFTH APPELLATE DISTRICT


THE PEOPLE,
                                                                                           F064020
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. VCF256413)
                   v.

ROBERT ALLEN HAMMOND,                                                                    OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Tulare County. Gerald F.
Sevier, Judge.

         Gabriel Bassan, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna, Rebecca
Whitfield, and Charity Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
       Defendant Robert Allen Hammond was charged with assault with a deadly
weapon (Pen. Code,1 § 245, subd. (a)(1)) with a special allegation that he personally used
a deadly weapon in the commission of the offense (§ 969f), two counts of making
criminal threats (§ 422) with a special allegation that defendant personally used a deadly
weapon during the commission of the offenses (§ 12022, subd. (b)(1)), dissuading a
witness from reporting a crime (§ 136.1, subd. (b)(1)), assault by means likely to produce
great bodily injury (§ 245, subd. (a)(1)), corporal injury to a spouse (§ 273.5, subd. (a)),
and resisting a peace officer (§ 148, subd. (a)(1)). Prior to trial, defendant pled no contest
to the resisting arrest charge. After trial, the jury found defendant guilty of the criminal
threats and dissuading a witness charges, but found defendant not guilty of the remaining
charges and allegations. The jury also acquitted defendant of all lesser included offenses
with the exception of simple assault (§ 240) as it related to the assault by means likely to
produce great bodily injury charge; as to that lesser offense, the jury declared it was
hopelessly deadlocked and the trial court declared a mistrial. The prosecution
subsequently dismissed that count.
       The trial court sentenced defendant to a total term of three years four months,
consisting of a two-year term for one of the criminal threats charges and consecutive
eight-month sentences for each of the remaining charges. Execution of the sentence was
suspended and defendant was placed on probation for a three-year term with the
condition that he serve 365 days in the county jail.
       Defendant appealed and contends the trial court committed prejudicial error as
follows: (1) by admitting evidence relating to marital infidelity that was irrelevant and
unduly prejudicial, (2) by instructing the jury that evidence could be used to establish his
state of mind, and (3) by sentencing him to consecutive terms on the criminal threats and
dissuading a witness charges. In addition, he claims that the prospective application of


       1All   further references are to the Penal Code unless otherwise indicated.



                                                 2.
recent amendments to section 4019 violate principles of equal protection and that he is
entitled to additional conduct credits. We agree the trial court erred in sentencing
defendant on both the criminal threat and dissuading a witness charges as they relate to
the same act and same victim. We reject defendant‘s remaining contentions.
                                          FACTS
       Defendant and Melissa Hammond (Melissa) were married on April 1, 2011. The
two lived together in their home along with Melissa‘s son, Joshua Taylor, and his two
children. Taylor and his children had moved into the home approximately two weeks
before the incident at issue.
       During the morning hours of August 13, 2011, defendant sent Melissa a text
message asking to talk to her about some marital issues. Melissa agreed to talk to him
and the two went into the backyard after defendant returned home from some early
morning errands. While outside, the two began to argue over an accusation Melissa made
to defendant about his infidelity. The argument became heated. During the argument,
defendant destroyed some items from within the home and also smashed Melissa‘s
wedding ring with a hammer. Defendant then accused Melissa of having sex with
Taylor. Specifically defendant said, ―‗Are you fucking your son?‘‖ and then stated, ―‗I
think you are because I‘m not getting any pussy. I think there‘s some fucking incest
going on.‘‖ Melissa told defendant not to let Taylor hear such an accusation or he would
―cause trouble.‖
       Defendant went inside the home to confront Taylor, locking Melissa outside.
Melissa retrieved her keys and went inside after defendant, finding him in Taylor‘s room
accusing him of sleeping with Melissa. Taylor told defendant to leave the room so as not
to wake his sleeping children. Melissa turned briefly and when she looked back she saw
defendant punch Taylor in the face.
       Defendant and Taylor then began to wrestle in the hallway and Taylor yelled for
Melissa to call 911. Melissa turned to find a phone and heard glass breaking. When she


                                             3.
looked back, Melissa saw Taylor on all fours on the ground with glass on his body.
Defendant was standing over Taylor, beating him. Melissa attempted to intervene by
running into defendant. In response, defendant struck Melissa in the head, pulled her
down by her hair, and began striking her on her legs. During the altercation, Melissa
scratched defendant‘s face in an effort to stop him from hitting Taylor.
       While defendant was hitting Melissa, Taylor escaped and ran outside. Defendant
chased after Taylor, at one point grabbing him by the shirt and ripping it off his body.
Once outside, defendant continued to attack Taylor, who was on the ground trying to
protect his head. At that point, Melissa ran back inside to the kitchen looking for her
phone so she could call the police.
       Melissa was in the kitchen and Taylor ran by, yelling for her to call the police.
Defendant also ran by the kitchen but Melissa was able to stop him and asked him why
he was doing this. Defendant entered the kitchen and said ―this is your fault, why
couldn‘t you just believe me. You should have just believed me.‖ Defendant pushed
Melissa up against the sink. About that time, Taylor yelled at Melissa to get away from
defendant and stated either he had or was just about to call the police. Defendant
responded, ―if you call the cops … I will kill you and your cunt ass mom.‖ Melissa went
toward Taylor when defendant picked up a knife that was on the counter and made a
jabbing motion with it toward Taylor, coming within inches of him. Melissa was
between Taylor and defendant, and defendant reached over Melissa in an effort to attack
Taylor. Subsequently, defendant dropped the knife and told Taylor ―let me talk to you,
bitch‖ and chased Taylor outside again.
       Melissa followed, and defendant ultimately ran back inside, locking the door. As
a result of the incident Melissa suffered a lump on her head, had some of her hair torn
out, and had bruising on her legs and arm.
       Taylor testified that on the day in question he was in his room with his sleeping
children when defendant barged in and accused him of having sex with Melissa. Taylor


                                             4.
told defendant he was crazy and told him to leave. Defendant and Taylor were face-to-
face and defendant made a reaching motion toward Taylor‘s sleeping son. Taylor pushed
defendant‘s arms away from the child and told him to stop. At that point defendant
punched Taylor in the face and the two began to wrestle in the hallway. While on the
ground in the hall, defendant beat Taylor, punching him in the head, neck, ribs, and back.
When Taylor tried to get up to run, he felt defendant hit him with a picture frame and felt
glass break on the back of his head. The two rolled around on the floor exchanging
punches while Taylor yelled for Melissa to call the police.
       Taylor then saw Melissa attempt to intervene and saw defendant strike Melissa.
He saw defendant pull Melissa by the hair and punch her in her legs. Taylor was able to
get up and run outside but defendant followed. Once outside, defendant was able to catch
Taylor and again began beating him while Taylor was on the ground trying to protect
himself. Taylor was able to get up and run back inside to look for his phone to call the
police. Taylor went into his room and when he came out he met defendant in the
hallway. Once again Taylor went to the ground while defendant continued to beat him.
Taylor was able to get away and run into the kitchen where he found Melissa. Defendant
followed him into the kitchen and began arguing with Melissa while Taylor left the room
to look for his phone. When Taylor returned to the kitchen, he saw defendant and
Melissa arguing. Taylor told defendant that he was calling the police and defendant said
―‗if you call the cops, I‘ll kill you and your cunt ass mom‘‖ and grabbed a knife and
began making stabbing motions toward him over Melissa.
       Defendant dropped the knife and told Taylor ―come here, you little bitch, let me
talk to you.‖ Taylor went outside and defendant followed, telling him not to call the
police. Defendant then said if Taylor was going to call the police, then he would as well.
While on the phone with the police, defendant attempted to assault Taylor again.
Defendant ran inside the house and locked the door. Fearing for his children‘s safety,




                                            5.
Taylor went to the front of the house and kicked open the front door. While Taylor was
on the phone with the dispatcher, he noticed that defendant was also calling the police.
       Taylor stated that the only time he ever punched defendant during the fight was
after defendant hit him with the picture frame. Other than that incident, Taylor never
punched defendant. As a result of the incident Taylor sustained scratches to his back and
neck, lumps to the back of his head, lacerations to his ear, knee and foot injuries, a
slightly black eye, and bruising to his ribs. He did not require any medical treatment.
       Police Sergeant Derrick Porter was dispatched to the home at approximately 11:30
a.m. He spoke to defendant who was calm at the time and to Melissa who was very upset
and shaking. He found picture frames and glass on the floor of the home and a knife on
the kitchen counter. Although Sergeant Porter collected the knife, he did not have it
analyzed for fingerprints. He did not see any injuries to Melissa‘s head, but did notice an
injury to her arm. Defendant had scratches to his face, neck, and back.
       Police Officer Ryan Willcutt also responded to defendant‘s home. He noted that
Taylor was out of breath and had swelling and a cut to his left eye. In addition he had red
marks, scratches, and bruises to his back, ribs, and upper torso. He also had an injury to
his right ear which appeared consistent with being cut by glass. Defendant did not have
any injuries to his head, but did have scratches to his face, a cut on his hand, scrapes on
his leg, and redness on his forearm.
Defense Case
       Defendant testified that prior to the incident, he and Melissa were having problems
in their marriage, and Melissa had accused him of infidelity. Once Taylor moved into the
home, defendant noted there was no longer a physical relationship between him and his
wife. On the date in question, he talked to Melissa about their marriage and ultimately
asked her if she wanted a divorce. She responded that she did and threw her ring at him.
Defendant smashed the ring with a hammer and shortly thereafter accused Melissa of
sleeping with Taylor. Melissa challenged defendant to ask that question to Taylor, noting


                                             6.
that Taylor would ―probably knock your f‘ing teeth out of your head‖ for making such an
accusation.
       Defendant went to Taylor‘s room and told him they needed to talk. He asked
Taylor to leave the room since the children were sleeping, but Taylor refused. When
defendant asked Taylor if he was sleeping with Melissa, Taylor attacked him, knocking
him into the hallway. Taylor then began beating defendant and defendant began to
defend himself. During the fight, Taylor struck defendant with the picture frame,
breaking the glass. The fight continued. Eventually, defendant followed Taylor into the
backyard. Taylor was running from defendant and defendant was telling him he wanted
to talk. In the backyard the two got into a tussle and, eventually, Taylor went back into
the house.
       Defendant followed and went into the kitchen where he found Melissa and Taylor.
While in the kitchen, Taylor picked up a knife from the counter and began making
jabbing motions toward defendant. Melissa was between Taylor and defendant, and
defendant used Melissa as a shield so that Taylor would not stab him. Taylor threw the
knife down and all three proceeded to the backyard where Taylor called 911. Defendant
also attempted to call 911 but Taylor slapped the phone from his hand. Defendant
retrieved his phone and was able to call the police as well.
       As a result of the fight defendant suffered cuts to his face, as well as redness to his
chest, shoulders, and stomach. Defendant did not know how Melissa received any
injuries. He testified that he never struck her intentionally, but speculated that she could
have been injured when she tried to break up the fight. Defendant denied ever making
any threats to Melissa or Taylor. He admitted hitting Taylor, but only in self-defense.
       Defendant denied being unfaithful to his wife in a physical manner although he
did admit to speaking to other women. Defendant stated that during the argument he was
hurt as he felt his marriage was ending. When defendant smashed Melissa‘s ring and




                                              7.
destroyed items within the house, he did that out of hurt rather than anger, although he
admitted he was ―probably‖ a little angry.
                                      DISCUSSION
I.     The Trial Court Properly Admitted Evidence of Defendant’s Alleged
       Infidelity
       Defendant argues admission of evidence that Melissa accused him of infidelity
was irrelevant and highly prejudicial. Further, he argues the limiting instruction
permitting the jury to consider the evidence for his state of mind was improper and
prejudicial. We find no error in the admission of the evidence and the limiting instruction
to the jury. Consequently, we need not consider defendant‘s alternative contention that
trial counsel was ineffective.
Procedural background
       Before trial, the defense moved to exclude any evidence relating to prior alleged
acts of infidelity, claiming the evidence had ―no probative value‖ and was highly
prejudicial. In preliminary discussions of the issue, the prosecution argued the
accusations leading up to the physical fight were relevant to explain defendant‘s conduct
of accusing Taylor of having sex with Melissa. The prosecutor explained the argument
began because of ―defendant‘s infidelity, and that‘s when he accused [Melissa] of
sleeping with her son, and that we feel is relevant to come into the trial.‖ As the
prosecutor made clear, it was defendant‘s accusation that Taylor and Melissa were
sleeping together that caused the physical fight at issue. Both parties and the court agreed
that this accusation was in fact relevant to the trial and defendant does not seem to
dispute that relevancy on appeal.
       The prosecutor further pointed out that defendant‘s alleged infidelity was also
relevant because it was the basis for the argument, and it was the accusation of
defendant‘s infidelity that precipitated defendant‘s accusation against Melissa and Taylor.
The court initially questioned the relevance, noting ―so there‘s an argument. The reason



                                             8.
for the argument seems inconsequential unless somehow it’s tied to the assertions that
[defendant] allegedly is making about his wife and Mr. Taylor.‖ (Italics added.) The
prosecutor argued that was exactly why the statements were relevant, that the accusation
of defendant‘s infidelity led to the accusation that Melissa and Taylor were involved in a
sexual relationship. Furthermore, the prosecutor pointed to Melissa‘s testimony from the
preliminary hearing explaining that defendant himself referenced this accusation during
the actual assault, telling her ―‗This is your fault. Why didn‘t you just believe me?‘‖
These statements occurred immediately before the threat. The court took the matter
under submission.
       When the court reconvened, it inquired into when the accusation of infidelity took
place in relation to the assault. The prosecutor explained that defendant and Melissa
were discussing that issue when defendant accused her of having sex with Taylor. The
prosecutor also directed the court to portions of the preliminary hearing transcript where
Melissa referenced the issue of infidelity in relation to the assault and threats in this case.
The court then announced its tentative ruling, noting that ―it seems as if it‘s reflective on
some part of [defendant‘s] state of mind and … that it‘s relevant circumstantial evidence
as to other issues. [¶] That‘s … what it seems at first blush. I will take a look at the
testimony.‖ The prosecutor clarified that the evidence would also go to defendant‘s
motive in addition to his state of mind, and the court acknowledged it understood the
argument. The following day after reviewing the testimony at the preliminary hearing,
the trial court ruled that the evidence of the infidelity was admissible, finding it was an
integral part of the argument and invited counsel to propose a limiting instruction.
       During the instruction conference, the defense proposed using CALCRIM
No. 303, the limited purpose instruction, as to the evidence relating to defendant‘s
infidelity. The court stated it would give the instruction as proposed.2 While reading the

       2Itappears the proposed instruction initially read as follows: ―During the trial, certain
evidence was admitted for a limited purpose. Specifically, evidence regarding [defendant]‘s


                                                9.
proposed instruction to the jury, the court stopped and had a sidebar conference with the
parties. During that discussion, the court noted that part of the reason the court admitted
the evidence was to show defendant‘s state of mind during the argument, which was not
reflected in the proposed instruction. The court then modified the instruction to allow the
jury to consider the evidence for that purpose. Defense counsel seemed to concede that
was part of the purpose for which the evidence was admitted.3
          Defendant argues the evidence of his alleged infidelity was admitted solely for the
purpose of explaining the context of the underlying argument. We disagree with this
premise. As is apparent from the entire in limine discussion, the ruling, and the court‘s
comments during the instruction, the evidence was admitted for two reasons: (1) to show
the context of the argument, specifically, how defendant came to accuse Melissa and
Taylor of engaging in sexual relations, and (2) to demonstrate his state of mind at the
time of the offense. Keeping these purposes in mind, we now turn to the propriety of this
ruling.
Analysis
          The trial court admitted the evidence of defendant‘s infidelity to show the context
of the argument and to show defendant‘s state of mind. This ruling was not error.
Defendant argues the subject of the argument was inconsequential, therefore, the
evidence was irrelevant. Further, he contends, allegations of his infidelity were irrelevant
to his state of mind at the time of the offense. Defendant is mistaken on both points.

alleged actions with other women was admitted to show the context of his argument with
Melissa Hammond. You may consider that evidence only for that purpose and for no other.‖
          3The following   exchange took place during the sidebar:
          ―THE COURT: Actually, part of the reason I admitted that was to show his state of mind.
          ―[DEFENSE COUNSEL]: Okay.
          ―THE COURT: So—
          ―[DEFENSE COUNSEL]: That‘s fine.
          ―THE COURT: —so add in state of mind? Okay.‖



                                                  10.
       Evidence Code section 351 provides that ―all relevant evidence is admissible,‖
unless it is otherwise prohibited. Relevant evidence is defined as evidence ―having any
tendency in reason to prove or disprove any disputed fact that is of consequence to the
determination of the action.‖ (Evid. Code, § 210.) ―Evidence is relevant if it tends
‗―logically, naturally, and by reasonable inference‖ to establish material facts such as
identity, intent, or motive.‘‖ (People v. Williams (2008) 43 Cal.4th 584, 633-634.) A
trial court enjoys broad discretion in determining the relevancy of evidence. (People v.
Cash (2002) 28 Cal.4th 703, 727.) We review a trial court‘s rulings on relevance and the
admissibility of evidence for abuse of discretion. (People v. Aguilar (2010) 181
Cal.App.4th 966, 973.)
       Defendant argues that in addition to being irrelevant the evidence was also unduly
prejudicial under Evidence Code section 352. Similar to the determination of relevance,
the trial court has broad discretion in determining ―whether the probative value of
particular evidence is outweighed by concerns of undue prejudice, confusion or
consumption of time‖ under Evidence Code section 352. (People v. Rodrigues (1994) 8
Cal.4th 1060, 1124.) The court‘s ruling under this section will be upheld unless it
constitutes an abuse of discretion. (Id. at p. 1124.) Under this deferential standard of
review, a trial court‘s ruling will ―‗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.‘‖ (Ibid.)
       Reviewing the evidence under the above standards, it is clear the trial court did not
abuse its discretion in permitting the evidence of defendant‘s infidelity on the limited
issues of providing the context of the argument and on the issue of defendant‘s state of
mind. Evidence of infidelity is admissible when relevant to prove the state of the marital
relationship and therefore to prove a motive to commit the underlying crime. (People v.
Houston (2005) 130 Cal.App.4th 279, 307.)




                                             11.
       Here the evidence was admitted to explain the context of the argument as well as
defendant‘s state of mind at the time of the offense. It is apparent the argument began
over the allegation of defendant‘s infidelity. In response, defendant accused Melissa of
being unfaithful and of incest. He then accused Taylor of having a sexual relationship
with Melissa, which was the direct cause of the physical altercation. Therefore, the
allegation of infidelity was the precipitating event of the offenses at issue and tended to
explain why defendant accused Taylor of sexual relations with Melissa. Thus, the
argument was so intertwined with the physical fight that they could not be separated from
each other. In this context, the reason for the fight is relevant.
       Defendant argues the subject of the argument itself was irrelevant because there
was no dispute that an argument took place. We disagree. As trial counsel conceded,
defendant‘s accusation against Taylor was, in fact, relevant to the subsequent conduct.
Likewise, the accusation that precipitated defendant‘s conduct was relevant to explain the
context of the argument and defendant‘s subsequent actions. This is apparent from the
fact that during the physical fight and immediately preceding the threats defendant
references the allegation himself by telling Melissa that the fight was her fault and she
should have just believed him. This demonstrates the underlying accusation of infidelity
was inextricably intertwined with what happened afterward.
       On this point, People v. McKinnon (2011) 52 Cal.4th 610 is instructive. There, the
defendant was convicted of murder after evidence established he walked up to the victim
and shot him after stating, ―‗This is for Scotty.‘‖ (Id. at p. 655.) During trial, gang
evidence was introduced to show the defendant‘s motive and intent for murdering the
victim and to give meaning to the defendant‘s statement. (Ibid.) The California Supreme
Court held the trial court‘s admission of the evidence was proper as it was probative of
the defendant‘s motive for the shooting and explained his statement. Further, the court
found the evidence was not unduly prejudicial as it focused on the reason the defendant
may have wanted to kill the victim. (Id. at p. 656.) Likewise here, the evidence of


                                              12.
Melissa‘s accusation that defendant had been unfaithful provided a context for the
argument as well as defendant‘s specific statements during the crime.
       In addition, the evidence had a tendency to demonstrate defendant‘s state of mind
during the crimes. To establish a violation of section 422, the prosecution must prove,
among other things, ―that the defendant made the threat ‗with the specific intent that the
statement … is to be taken as a threat, even if there is no intent of actually carrying it
out.‘‖ (People v. Toledo (2001) 26 Cal.4th 221, 228.) ―A defendant‘s intent is rarely
susceptible of direct proof, and may be inferred from the facts and circumstances
surrounding the offense.‖ (People v. Felix (2009) 172 Cal.App.4th 1618, 1624.)
       Despite defendant‘s argument to the contrary, it is apparent defendant‘s state of
mind was relevant to the charged offenses. The evidence that Melissa accused defendant
of cheating was circumstantial evidence of his state of mind, which is relevant to the
charges in the case. It explains the situation and the reason defendant threatened the
victims. It also tended to show that defendant was angry. Of course, his anger was
relevant as to whether he made the threats in issue.
       Melissa accused defendant of cheating and, in response, he accused Melissa of
having sexual relations with Taylor. Next, defendant confronted Taylor and a physical
fight ensued. At that point, defendant blamed Melissa for starting the fight, he told her
the situation was her fault and had she just believed him, the fight would not have
happened. He then made the threat that he would kill the victims. The circumstantial
evidence of defendant‘s anger toward Melissa at the time as well as his intent to make the
threat had some tendency to prove that defendant was so upset with Melissa that he
intended for his threat to be taken as a threat. Therefore, the evidence was relevant to
defendant‘s state of mind at the time of the offense.
       Defendant further argues the evidence was unduly prejudicial, amounting to an
attack on his character. In support of his argument, he relies upon Winfred D. v. Michelin
North America, Inc. (2008) 165 Cal.App.4th 1011. That case is inapposite. In Winfred


                                             13.
D., the plaintiff sued the defendant tire company, alleging a tire defect caused an accident
leaving the plaintiff severely injured. (Id. at p. 1014.) The defense claimed the accident
was not caused by a tire defect, but rather from the plaintiff‘s action in overloading the
vehicle. (Ibid.) During the trial, the defendants were permitted to introduce evidence
that the plaintiff had an affair while married to his first wife, he later married his mistress
without divorcing his first wife, and that he subsequently had an affair with yet another
woman, resulting in the birth of two children. (Ibid.)
       The appellate court held the admission of such evidence was irrelevant to the
underlying proceedings, and to the extent that it could be considered relevant, the
probative value was far outweighed by its prejudicial impact resulting in a miscarriage of
justice. (Winfred D. v. Michelin North America, Inc., supra, 165 Cal.App.4th at p. 1014.)
As is relevant to our discussion here, the defendants sought to introduce the evidence to
explain the plaintiff‘s motive to overload the van. The defendants theorized the plaintiff
had an incentive to overload the van so he could make more money because he had two
families to support. (Id. at p. 1037.) The appellate court recognized that such evidence
could be relevant to establish his financial condition; however, virtually no financial
evidence was presented in that case. (Ibid.) Based upon the evidence, probative value
was quite weak, while the prejudicial impact was significant. (Id. at pp. 1037-1038.) As
the court explained, ―[f]rom start to finish, [the defendants] painted [the plaintiff] as a
liar, cheater, womanizer, and man of low morals based principally, if not solely, on what
we have concluded was inadmissible evidence.‖ (Id. at p. 1038.)
       Unlike the situation in Winfred D., the evidence here was in fact probative of
defendant‘s state of mind at the time he committed the crimes and provided the context
for both the argument and for defendant‘s statements during the argument. Also unlike
Winfred D., the evidence here was not unduly prejudicial. The evidence consisted only
of Melissa‘s statements that she believed defendant was having an affair and her
testimony that he had admitted certain conduct to her. Defendant also testified Melissa


                                              14.
had accused him of being unfaithful, and he conceded he had spoken to other women and
admitted that to her. No collateral evidence of any infidelity was ever produced at trial,
nor was there any coordinated and pervasive attack on his character. It certainly was not
akin to the pervasive use of the evidence as in Winfred D. Indeed, the prosecution never
commented on the alleged infidelity in either its closing or rebuttal arguments.
Considering the relevancy of the evidence as stated above and the limited prejudicial
impact, we cannot find the admission of the evidence was so arbitrary, capricious, or
patently absurd as to constitute an abuse of discretion.
       Defendant goes on to contend the trial court erred by modifying the proposed
limiting instruction and allowing the jury to consider the evidence relating to infidelity
for defendant‘s state of mind. However, as we have already explained, the evidence was
properly admitted as relevant to defendant‘s state of mind. The trial court‘s modification
of the instruction simply reflected the proper purpose of the evidence. Indeed, defendant
does not contend the instruction itself was somehow flawed; rather, his argument rests
solely upon his contention the jury should not have been allowed to consider the evidence
in relation to his state of mind. As the instruction properly limited the use of the
evidence, we find no error.
II.    Defendant Cannot Be Sentenced for Both Criminal Threats and Dissuading a
       Witness Pursuant to Section 654.
       Defendant contends his convictions for criminal threats against Taylor and
dissuading him as a witness are based upon the same conduct and are both incident to the
same intent and objective. He concludes he may not be separately punished for both
crimes under section 654. We agree.
       Section 654 provides in pertinent part:

       ―An act or omission that is punishable in different ways by different
       provisions of law shall be punished under the provision that provides for
       the longest potential term of imprisonment, but in no case shall the act or
       omission be punished under more than one provision.‖ (§ 654, subd. (a).)



                                             15.
―The purpose of section 654 is to prevent multiple punishment for a single act or
omission, even though that act or omission violates more than one statute and thus
constitutes more than one crime. Although the distinct crimes may be charged in
separate counts and may result in multiple verdicts of guilt, the trial court may impose
sentence for only one offense—the one carrying the highest punishment. [Citation.]‖
(People v. Liu (1996) 46 Cal.App.4th 1119, 1135.)

              ―If all the offenses are incidental to one objective, the defendant may
       be punished for any one of them, but not for more than one. On the other
       hand, if the evidence discloses that a defendant entertained multiple
       criminal objectives which were independent of and not merely incidental to
       each other, the trial court may impose punishment for independent
       violations committed in pursuit of each objective even though the violations
       shared common acts or were parts of an otherwise indivisible course of
       conduct.‖ (People v. Liu, supra, 46 Cal.App.4th at p. 1135.)
Section 654 ―does not allow any multiple punishment, including either concurrent or
consecutive sentences.‖ (People v. Deloza (1998) 18 Cal.4th 585, 592.)
       Here, defendant was convicted of criminal threats and dissuading a witness for a
single act. The conduct that was the subject of the crimes was defendant‘s statement to
the victims that ―‗if you call the cops … I will kill you and your cunt ass mom.‘‖
Defendant‘s threat was made expressly contingent upon calling the police, thus it is
obvious the threat was incidental to the main purpose of dissuading Taylor from calling
the police.
       Indeed, other courts have made the same finding on similar facts. In People v.
Mendoza (1997) 59 Cal.App.4th 1333, 1346, superseded by statute on other grounds as
stated in People v. Franz (2001) 88 Cal.App.4th 1426, 1442, the court held that the
defendant could not be sentenced for both making a threat and dissuading a witness based
upon the same threat against a witness who had previously testified against his brother.
Likewise, in People v. Louie (2012) 203 Cal.App.4th 388, 394, 399, the court held that
the defendant‘s act of pointing a gun at the victim, calling her ―a cop-calling bitch,‖ and



                                            16.
threatening her constituted a single act within the meaning of section 654 and, therefore,
he could not be punished for both crimes.
       Because defendant‘s actions of threatening and dissuading Taylor consisted of a
single act with a single intent and objective, he cannot be sentenced for both offenses.
(People v. Mendoza, supra, 59 Cal.App.4th at p. 1346; People v. Louie, supra, 203
Cal.App.4th at p. 399.) Consequently, the sentence on count 4 must be stayed pursuant to
section 654.4
III.   Defendant Was Awarded the Proper Amount of Conduct Credits
       Defendant contends he should be awarded additional presentence credits based
upon the amendments to section 4019 that became operative on October 1, 2011. He
argues failure to award retroactive credit constitutes a violation of equal protection
principles. He further argues he should receive enhanced credits for the actual time spent
in custody after October 1, 2011, claiming the statutory language is ambiguous. This
court has previously addressed, and rejected, the specific arguments raised by defendant
in our decision in People v. Ellis (2012) 207 Cal.App.4th 1546 (Ellis), and thus we reject
them again here. (See also People v. Brown (2012) 54 Cal.4th 314; People v. Kennedy
(2012) 209 Cal.App.4th 385.)
       Section 4019, subdivision (h) specifically states that the changes increasing the
amount of conduct credits apply prospectively only. In Ellis, we concluded the intent of
the Legislature ―was to have the enhanced rate apply only to those defendants who
committed their crimes on or after October 1, 2011. [Citation.]‖ (Ellis, supra, 207
Cal.App.4th at p. 1553.) It is undisputed that defendant committed his offenses well
before this date.


       4Although  defendant was ultimately placed on probation in this case, we note the trial
court actually imposed the sentence but suspended its execution prior to placing defendant on
probation, thus making the issue ripe for review. (See People v. Fry (1993) 19 Cal.App.4th
1334, 1340.)



                                               17.
       ―The concept of equal protection recognizes that persons who are similarly
situated with respect to a law‘s legitimate purposes must be treated equally. [Citation.]‖
(People v. Brown, supra, 54 Cal.4th at p. 328.) Reviewing courts determine whether
groups are ―similarly situated‖ in the specific context of the law being challenged, not
whether the groups are ―similarly situated‖ in all respects. (Ellis, supra, 207 Cal.App.4th
at p. 1551.)
       In People v. Brown, the California Supreme Court noted that the purpose of
section 4019 is to authorize incentives for good behavior.5 This goal is not served ―‗by
rewarding prisoners who served time before the incentives took effect and thus could not
have modified their behavior in response….‘‖ (Ellis, supra, 207 Cal.App.4th at p. 1551,
quoting People v. Brown, supra, 54 Cal.4th at pp. 328–329.) Therefore, prisoners who
served time before and after amendments to section 4019 are not ―similarly situated‖ for
equal protection purposes. (Ellis, supra, at p. 1551.) Because defendant fails to show
section 4019 treats ―similarly situated‖ groups unequally, he asserts no cognizable equal
protection claim.6

       5People  v. Brown dealt with a different amendment to section 4019 but we apply its
reasoning to the October 1, 2011, amendments to section 4019 that are at issue here. (See Ellis,
supra, 207 Cal.App.4th at pp. 1551–1552.)
       6Defendant    does not seem to make an equal protection claim for the time served only
after October 1, 2011, the date upon which the amended section 4019 took effect. To the extent
that defendant can be considered to make that claim, we note the court in People v. Rajanayagam
(2012) 211 Cal.App.4th 42 rejected a similar claim. Although the Rajanayagam court found that
defendants who served time in jail on or after October 1, 2011, regardless of the date they
committed their offenses were indeed similarly situated for purposes of equal protection, the
court nevertheless held there was no equal protection violation as there was a rational basis for
the legislative classification. (Id. at pp. 53-56.) As the court explained, the legislative purpose
behind the amendment at issue is ―‗to reduce recidivism and improve public safety, while at the
same time reducing corrections and related criminal justice spending.‘‖ (Id. at p. 55.) The court
concluded ―the classification in question does bear a rational relationship to cost savings.‖
(Ibid.) Therefore, the defendant‘s equal protection rights were not violated. (Id. at p. 56.)
Assuming defendant is making a similar argument here and assuming this court were to agree
with Rajanayagam that the two groups in that situation are similarly situated, we would agree
there is a rational basis for the classification. Thus, we find no equal protection violation.



                                               18.
       Likewise, defendant‘s argument that he is entitled to enhanced conduct credits for
the period between October 1, 2011, and the date he was subsequently sentenced was
considered and rejected in Ellis. As we explained in Ellis, the statutory language on this
point is not ambiguous. (Ellis, supra, 207 Cal.App.4th at pp. 1552-1553.) Thus, for the
reasons stated in Ellis, we reject defendant‘s claim.
                                       DISPOSITION
       The judgment is modified to stay the term on count 4, dissuading a witness
(§ 136.1 subd. (b)), pursuant to section 654.7 The trial court is ordered to amend the
sentencing minute order reflecting this modification. In all other respects, the judgment
is affirmed.
                                                            ___________________________
                                                                                PEÑA, J.
WE CONCUR:


 ________________________________
KANE, Acting P.J.


 ________________________________
FRANSON, J.




       7As  the trial court suspended execution of sentence and placed defendant on probation,
this modification will only affect defendant if he subsequently violates probation and is
sentenced to prison.



                                              19.
