Filed 7/22/14 P. v. Varnado CA2/4
                        NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or
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                     IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                            SECOND APPELLATE DISTRICT

                                                         DIVISION FOUR



THE PEOPLE,                                                                   B247622

          Plaintiff and Respondent,                                           (Los Angeles County
                                                                              Super. Ct. No. BA402423)
          v.

ROBERT VARNADO et al.,

          Defendants and Appellants.




          APPEAL from judgments of the Superior Court of Los Angeles County,
Barbara R. Johnson, Judge. Affirmed as to Robert Varnado; modified and affirmed as to
Ivan Matthews.
          Adrian K. Panton, under appointment by the Court of Appeal, for Defendant and
Appellant Robert Varnado.
          Law Offices of James Koester and James Koester, under appointment by the Court
of Appeal, for Defendant and Appellant Ivan Matthews.
          Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Mary Sanchez, Rene Judkiewicz
and William N. Frank, Deputy Attorneys General, for Plaintiff and Respondent.
                                         ______________________________
       Robert Varnado and Ivan Matthews appeal from the judgments entered after their
respective jury convictions of criminal threats, and assault and attempted criminal threats.
Varnado seeks a reversal of his conviction because the court did not instruct the jury to
rely on the translation of the court interpreter and did not hold a hearing to determine
whether translated out-of-court statements were attributable to Varnado. Matthews
contends the prosecution failed to prove the completed prison term element of the prison
prior enhancement in Penal Code section 667.5, subdivision (b)1 and the court should
have stricken rather than stayed the punishment for the gang enhancement. We find no
prejudicial error and affirm the judgment as to Varnado. We agree that the punishment
for Matthews’s gang enhancement should have been stricken and modify the judgment as
to him accordingly.


                      FACTUAL AND PROCEDURAL SUMMARY
       Appellants lived near Daphne Cabrera Cortes’s family, which included her young
son, her mother Nicolasa Cortes,2 and her husband Patrick Weathers. Cabrera’s aunt,
Roxana Carmona, and Carmona’s son J.M. also lived in the vicinity. In the past, Varnado
had threatened to rape Cabrera and had been subject to criminal restraining orders as to
her, Carmona, and J.M.
       On the evening of September 9, 2012, Cabrera heard appellants talk
disrespectfully to her mother, who was in front of the family home with her grandson.
When Cabrera confronted appellants, they insulted her and Varnado threatened to slap
her. Appellants identified themselves as members of the Broadway gang. Cortes asked
J.M. to translate for her because she did not speak English. J.M. translated that Varnado
told him to “shut up” and threatened to kill him. When Cabrera picked up her son and
tried to go back in the house, Varnado told her, “Bitch, I’m going to kill you, your son,


       1
           Statutory references are to the Penal Code, unless otherwise indicated.
       2
       For clarity, we shall refer to Nicolasa Cortes by her surname, Cortes, and to
Daphne Cabrera Cortes by her first surname, Cabrera.
                                               2
your mom, and your husband.” She feared for her own and her family’s safety. Police
were called. In the 911 call, Cabrera mentioned the restraining orders and the threats to
kill her and her son. The officers who arrived at the scene concluded that no crime had
been committed and did not take a report or make an arrest.
       After the officers left, appellants continued to taunt the family. A fight broke out
between Matthews and Weathers, Cabrera’s husband, after Matthews announced the
Broadway gang name. Weathers did not start the fight, but he did not fear Matthews, and
he defended himself. During the fight, Weathers tripped, fell, and cut his lip on a glass
bottle, requiring stitches. Encouraged by Varnado, Matthews threatened to get his gun
and kill Weathers. Matthews ran to his house and returned holding a black object that
resembled a gun. Meanwhile, Weathers had driven off. Cabrera again called 911, this
time to report that a man with a gun was going to kill them. Cabrera and her mother gave
consistent stories to the officers who arrived at the scene. They claimed Varnado had
threatened to kill them, appellants had assaulted Weathers, and Varnado had encouraged
Matthews to kill Weathers.
       Varnado was charged with criminal threats against Cabrera (count 2) and both
appellants were charged with criminal threats (count 3) and assault by means likely to
produce great bodily injury (count 4) against Weathers. (§§ 422, subd. (a); 245(a)(4).)
Another count was added later, charging appellants with attempted criminal threats
against Weathers (count 5). (§§ 422, subd. (a), 664) A gang enhancement was alleged as
to counts 2 and 3. As to counts 4 and 5, it was alleged that Matthews had served a prior
prison term (§ 667.5, subd. (b).) Count 3 was dismissed, and the remaining three counts
renumbered.
       The jury convicted Varnado of criminal threats as to Cabrera and acquitted him of
felony assault and attempted criminal threats as to Weathers. Matthews was found guilty
of felony assault and attempted criminal threats. The court ruled it would strike the
punishment on the bifurcated gang allegations if appellants admitted their truth, which
they did. The court found the prison prior allegation as to Matthews to be true.


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       Varnado was sentenced to two years in prison and the term for the gang allegation
was stricken under section 186.22, subdivision (g). Matthews was sentenced to three
years in prison for the assault, a consecutive four-month term for the criminal threats, and
a one-year term for the prison prior. The term for the gang allegation was stayed even
though the court had earlier stated its intent to strike it.
       This timely appeal followed.


                                        DISCUSSION
                                                I
       Varnado argues the court committed reversible errors in failing to instruct the jury
with CALCRIM No. 121 and to hold a hearing to determine J.M.’s proficiency in
English. Matthews joins in these arguments to the extent they benefit him.
   A. CALCRIM No. 121
       At appellants’ trial, Cortes and Carmona testified through an interpreter. During
Carmona’s testimony, the recording of a 911 call she made in Spanish was played for the
jury. The jury was provided with a transcript that included a certified English translation,
but the court was under the impression that the transcript could not be used without live
interpretation because the jurors would not know when to turn the page. The court told
the jury to listen only “for the emotion, not for the language” and told the prosecutor the
jurors “don’t need to read [the transcript] because it’s not being translated.” Later on, the
transcript was admitted into evidence.
       Varnado argues that by allowing the jury to disregard the English translation of the
recorded 911 call and by failing to instruct the jury with CALCRIM No. 121, the court
implied the jury was free to disregard the English interpretation of Cortes’s and
Carmona’s testimony.
       CALCRIM No. 121 instructs jurors that they must rely on the court interpreter’s
English translation of foreign language testimony, even if they understand the language
spoken by the witness. The bench note recommends giving this instruction whenever a
witness testifies through an interpreter, even though no case has held that the court has a

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sua sponte duty to give it. (Judicial Council of Cal. Crim. Jury Instns. (2014) Bench
Notes to CALCRIM No. 121, p. 20.) In 2014, CALCRIM No. 121 was revised to include
an alternative instruction for foreign language recordings, which requires jurors to rely on
the transcript of the English language translation of the recording. Before the revision,
the bench notes recommended using a similar Ninth Circuit model jury instruction in that
situation. (Ninth Circuit Manual of Model Criminal Jury Instructions (2010) Criminal
Cases, Jury Instruction No. 2.8 [requiring jurors to accept transcript of official English-
language translation of recording]; Judicial Council of Cal. Crim. Jury Instns. (2012)
Bench Notes to CALCRIM No. 121, p. 22.)
       By instructing bilingual jurors not to rely on their own understanding of a
witness’s testimony or a recording if they disagree with the certified translation,
CALCRIM No. 121 ensures that a defendant is convicted only on evidence presented at
trial. (See People v. Cabrera (1991) 230 Cal.App.3d 300, 303–304 [juror committed
misconduct in relying on and sharing her own translation of testimony with other jurors];
see also U.S. v. Fuentes–Montijo (9th Cir. 1995) 68 F.3d 352, 355–356 [restrictions on
bilingual jurors may be “essential” where translation is disputed].)
       An instructional error affecting a defendant’s right to a jury verdict based on the
evidence is reviewable on appeal even absent an objection in the trial court. (See People
v. Hernandez (2009) 180 Cal.App.4th 337, 348, quoting § 1259 [instructional error not
forfeited where it affects defendant’s substantial rights].) We review claims of
instructional error de novo. (People v. Martin (2000) 78 Cal.App.4th 1107, 1111.) We
consider the instructions as a whole, and interpret them ‘“so as to support the judgment
rather than defeat it if they are reasonably susceptible to such interpretation.’ [Citation.]”
(Id. at p. 1112.)
       The court’s ruling that the certified English translation in the transcript of the
recorded 911 call was not evidence without live in-court interpretation of the recording
was not correct, especially since the transcript was later admitted into evidence. But
Varnado’s argument that the court in effect encouraged the jury to disregard the in-court
interpretation of Cortes’s and Carmona’s testimony is not well taken. To the contrary,

                                              5
the court emphasized the importance of in-court interpretation by telling the jury that the
recording “has to be interpreted in English for you to accept it as evidence in this case.”
       Even assuming CALCRIM No. 121 should have been given under the
circumstances, Varnado and Matthews were not deprived of the right to a jury verdict
based on the evidence. The claim that the failure to give CALCRIM No. 121 made
possible Varnado’s, or Matthews’s, conviction based on Cortes’s Spanish-language
testimony is speculative and not supported by the record. The accuracy of the in-court
interpretation of trial testimony is not disputed, and as the prosecutor pointed out in
closing, the testimony of Cortes and Carmona was cumulative of Cabrera’s testimony in
English. (See People v. Cabrera, supra, 230 Cal.App.3d at p. 304 [no prejudice where
discrepancy in translation irrelevant to issues in case].)
       The failure to give the CALCRIM No. 121 instruction does not require reversal of
appellants’ convictions.
   B. Translated Out-of-Court Statements
       Over objection, Cortes was allowed to testify about her nephew J.M.’s translation
of Varnado’s contemporaneous threat to kill J.M. and about J.M.’s claim that Carmona
had told him about Varnado’s threat to kill her. The court concluded Varnado’s threats
were party admissions, and J.M.’s translation was not “the issue” because the accuracy of
his translation went to its weight, not its admissibility. Varnado argues the court
misunderstood the “language conduit theory,” which requires an inquiry into the
qualifications and language skill of a translator of out-of-court statements.
       In Correa v. Superior Court (2002) 27 Cal.4th 444, 457 (Correa), the court
explained that the “language-conduit theory calls for a case-by-case determination
whether, under the particular circumstances of the case, the translated statement fairly
may be considered to be that of the original speaker.” The court adopted the Ninth
Circuit’s approach in U.S. v. Nazemian (9th Cir. 1991) 948 F.2d 522, 527 (Nazemian).
That approach includes consideration of several factors, “such as which party supplied
the interpreter, whether the interpreter had any motive to mislead or distort, the


                                              6
interpreter’s qualifications and language skill, and whether actions taken subsequent to
the conversation were consistent with the statements as translated.” (Correa, at p. 458.)
       Varnado’s argument is limited to one of these factors—the interpreter’s language
skill. He argues that without a hearing to determine J.M.’s proficiency in English, the
language conduit theory did not apply. In Correa, supra, 27 Cal.4th 444, the court noted
that interpreters do not always testify in language conduit theory cases, but “where the
particular facts of a case cast significant doubt upon the accuracy of a translated
[statement], the translator or a witness who heard and understood the untranslated
[statement] must be available for testimony and cross-examination at the . . . hearing
before the [statement] can be admitted.” (Id. at p. 459, quoting U.S. v. Martinez-Gaytan
(5th Cir. 2000) 213 F.3d 890, 891.)
       J.M. did not testify at trial, but over objection based on lack of foundation, Cortes
was allowed to testify that her nephew was fluent in Spanish and English. Varnado
argues this testimony was unreliable because Cortes herself did not speak English.
Evidence of language proficiency may be circumstantial. (See Nazemian, supra, 948
F.2d 522, 548 [although no evidence of translator’s language skills, they were considered
satisfactory over several meetings].) Here, Cortes specifically called 14-year-old J.M. to
translate, and both she and Carmona relied on his translation of what was not a
linguistically challenging conversation. The circumstances do not cast significant doubt
on J.M.’s ability to translate.
       Even assuming J.M.’s statements were not admissible under the language conduit
theory, their admission was harmless error. (See People v. Watson (1956) 46 Cal.2d 818,
836.) The statements did not implicate Matthews, and they were not relevant to whether
Varnado made criminal threats against Cabrera. Cabrera’s own testimony was sufficient
evidence of Varnado’s threats against her. It was corroborated not only by her mother’s
testimony, but also by Cabrera’s first 911 call, during which she complained about the
threats. To undermine Cabrera’s testimony, Varnado relies on the testimony of one of the
officers who responded to that call and who claimed none of the women mentioned any


                                              7
threats. But the officer acknowledged he was unaware that the person who called the
police already had reported the threats.
       We find no reversible error.
                                             II
       Matthews challenges his sentence on two grounds: that the prosecution failed to
prove the completed prison term element of section 667.5, subdivision (b), and that the
court improperly stayed, instead of striking, the punishment for the gang enhancement
under section 186.22, subdivision (g).
   A. Section 667.5, subdivision (b)
       A sentence enhancement under section 667.5, subdivision (b) requires the
prosecution to prove beyond a reasonable doubt that the defendant: “(1) was previously
convicted of a felony; (2) was imprisoned as a result of that conviction; (3) completed
that term of imprisonment; and (4) did not remain free for five years of both prison
custody and the commission of a new offense resulting in a felony conviction.” (People
v. Tenner (1993) 6 Cal.4th 559, 563, 568 (Tenner).) We review the record for substantial
evidence, and in the light most favorable to the judgment. (Id. at p. 567.)
       The records of a penal institution, although preferable, are not the only evidence
that a defendant served a prior prison term. (Tenner, supra, 6 Cal.4th at pp. 563, 567.)
“The admission into evidence of an abstract of judgment and commitment form,
considered in light of the official duty presumption (Evid. Code, § 664), supports an
inference that the official into whose custody defendant was placed upon imposition of
sentence regularly performed his or her duty to convey the defendant to prison (Pen.
Code, § 1216). It is likewise reasonable to infer that prison officials regularly performed
their duty to see that defendant’s sentence was carried out. These reasonable inferences,
together with evidence indicating that defendant was out of custody when he committed
the later offense, support a finding that defendant completed a prior prison term.”
(Tenner, at p. 566.)
       Matthews seeks to distinguish Tenner on the ground that, here, the prosecution did
not introduce an abstract of judgment and commitment form, but rather a certified court

                                             8
docket including a minute order that shows Matthews’ 2009 felony conviction and
sentence to 16 months in prison. The minute order states, “FORTHWITH
COMMITMENT ISSUED,” indicating that a commitment order or abstract of judgment
was issued. (See § 1213; People v. Mitchell (2001) 26 Cal.4th 181, 185 [certified
abstract of judgment constitutes commitment order, which must be issued “forthwith” to
officer whose duty it is to execute judgment].) The fact that Matthews was committed is
substantial evidence that the duty to deliver him to prison had been triggered. Matthews
was free to rebut the presumption that official duty had been regularly performed. (See
Tenner, supra, 6 Cal.4th at p. 566.) He did not. Matthews disagrees with the holding of
the Supreme Court in Tenner that it is reasonable to infer a prison sentence was
completed once a defendant was delivered to prison. That holding is, of course, binding
on this court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
   B. Section 186.22, subdivision (g)
       Matthews argues the court apparently misspoke when it stated that it was
staying the sentence on the gang enhancement in section 186.22, subdivision (b)(1)(B),
under subdivision (g). That provision allows the court to strike the punishment in the
interest of justice. Respondent concedes the trial court was required to either impose or
strike the punishment, but maintains the case must be remanded so the trial court may
exercise its discretion.
       The record is clear that the trial court had agreed to and repeatedly expressed its
intent to strike the punishment for the gang enhancement, as allowed under section
186.22, subdivision (g), if appellants admitted the gang allegations. In Varnado’s case,
the court initially stated the punishment was stayed, then said it was stricken. It is
reasonable to conclude the court similarly misspoke when it purported to stay the same
punishment in Matthews’s case. A remand is unnecessary under these circumstances.
Instead, we modify the judgment to strike Matthews’s punishment for the gang
enhancement. (See § 1260 [appellate court “may . . . modify a judgment or order”].)
       Matthews’s abstract of judgment should be corrected to reflect that the punishment
under section 186.22, subdivision (b)(1)(B) was stricken, not stayed. As respondent

                                              9
notes, Varnado’s abstract of judgment also should be corrected to reflect the stricken
punishment.


                                     DISPOSITION
       The judgment is affirmed as to Varnado. As to Matthews, the judgment is
modified to strike the punishment for the gang enhancement under section 186.22,
subdivision (b)(1)(B), pursuant to subdivision (g), and is otherwise affirmed. Appellants’
abstracts of judgment must be amended to reflect this stricken punishment and forwarded
to the Department of Corrections and Rehabilitation.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                 EPSTEIN, P. J.
We concur:



       WILLHITE, J.



       EDMON, J.




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