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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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,

Plaintiff and Respondent,

v.

ROBERT ALLEN HAMMOND,

Defendant and Appellant.

F064020

(Super. Ct. No. VCF256413)

OPINION

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-
2.

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.
3.

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 
4.

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 
5.

told defendant he was crazy and told him to leave. Defendant and Taylor were face-toface 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, 
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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 
7.

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 
8.

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 
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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 

 

2

It appears the proposed instruction initially read as follows: ―During the trial, certain 

evidence was admitted for a limited purpose. Specifically, evidence regarding [defendant]‘s 
10.

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.‖
11.

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.)
12.

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 
13.

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 
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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 
15.

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).)
16.

―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 
17.

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.)
18.

―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.
19.

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.