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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for 

purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, 

Plaintiff and Respondent, 

v.

ROBERT VARNADO et al., 

Defendants and Appellants.

 B247622

 (Los Angeles County

 Super. Ct. No. BA402423)

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.

______________________________
2

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)1and 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,2and 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.
3

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 Englishlanguage 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, 
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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 
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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 
8

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 
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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 
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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.