1

Filed 11/15/22 P. v. Gonsalves CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

TODD WILLIAM GONSALVES,

Defendant and Appellant.

 A164048

 (Humboldt County

 Super. Ct. No. CR2101527)

Defendant Todd William Gonsalves was convicted after jury trial 

of attempting to make a criminal threat against his girlfriend K.B. and 

of unlawfully possessing a firearm.1 He challenges on appeal his 

conviction and sentence, contending that (i) the trial court should have 

granted a mistrial after his ex-girlfriend D.B. volunteered the 

statement that he had threatened her “so many” times in the past; 

(ii) his admission to two prior strike convictions was invalid because he 

did not expressly waive his constitutional rights to trial by jury and 

confrontation, and his privilege not to incriminate himself; (iii) Penal 

1 Gonsalves was also convicted of a misdemeanor violation of 

Penal Code section 273.6, subdivision (a), as count three. At trial, he 

conceded his liability on this count, and he raises no issue with his 

conviction or sentence as to this count on appeal. Accordingly, we do 

not further discuss this count or the evidence concerning it.
2

Code section 654,2 prohibiting multiple punishments for the same act 

or course of conduct, was violated when the trial court sentenced him 

concurrently for the attempted threat and unlawful gun possession 

convictions, rather than imposing one sentence and staying the other; 

and (iv) if he was in fact sentenced in violation of section 654, this court 

should remand the case to the trial court so that it can exercise its 

discretion to consider which sentence to impose and which to stay

pursuant to a newly enacted statute, Assembly Bill No. 518.

The Attorney General concedes, and we agree, that Gonsalves 

should have been advised of his constitutional rights before the trial 

court accepted his admission to the two prior strike convictions. We 

vacate the judgment and remand for correction of that conceded error, 

but for the reasons discussed below we reject Gonsalves’s other claims 

of error.

BACKGROUND

This case arises factually out of a confrontation between 

Gonsalves and his girlfriend, K.B., in the parking lot of a post office in 

Humboldt on May 20, 2021. We summarize the facts briefly here and 

relate them in more detail as they are relevant to Gonsalves’s legal 

arguments in our discussion of those arguments.

K.B. was accompanying her ex-sister-in-law, S.W., in running 

errands the afternoon of May 20, 2021, when she saw Gonsalves. She 

knew that Gonsalves did not get along with S.W. and did not like it 

when K.B. spent time with S.W. According to a statement K.B. made 

to a police officer that afternoon, she was waiting in her car for S.W. at 

2 All subsequent statutory references are to the Penal Code

except as otherwise noted.
3

the post office when Gonsalves approached her and flashed a gun in his 

waistband by lifting his shirt. Gonsalves told K.B. that because she 

was hanging out with S.W., she had a half-hour to give him $200 that 

he claimed she owed him or Gonsalves would shoot K.B., S.W., and 

K.B.’s children. K.B. also showed the police officer a text stating that 

Gonsalves had a Glock; she said Gonsalves sent it before he walked up 

to her. K.B. later e-mailed the police officer a copy of the text, which 

stated, “Don’t answer and I[’m] grabbing the Glock and coming.” K.B. 

told the officer that she was scared when Gonsalves threatened her, 

S.W., and the children.

Gonsalves was tried on an information accusing him of criminal 

threats in violation of section 422 (count one), with an enhancing 

allegation that he personally used a firearm in committing that crime, 

and accusing him of possessing a firearm while prohibited from doing 

so by reason of a prior felony conviction in violation of section 29800, 

subdivision (a)(1) (count two).

At trial, K.B. offered a significantly different account of her 

encounter with Gonsalves on May 20. She testified that Gonsalves 

confronted her in the post office parking lot about spending time with 

S.W., but he did not have a gun and did not threaten to kill her. 

Instead, when he lifted his shirt, K.B. saw his belt buckle, not a gun, 

and the only threat he made was to end their relationship if she 

continued to hang out with S.W. K.B. denied ever telling an officer that 

Gonsalves had threatened her or that Gonsalves had a gun; in fact, 

K.B. denied speaking with the police officer in person at all. She also 

denied that she was placed in fear by anything Gonsalves said to her 

that day.
4

In light of K.B.’s recantation, the prosecution called the officer 

who took her statement on May 20. Excerpts of the officer’s body 

camera were played for the jury showing K.B.’s May 20 statement 

detailing the threats. And the jury heard jail call recordings where 

Gonsalves pleaded with K.B. to recant her May 20 statement and 

offered her $1,000 to tell the police she was lying.

S.W. did not testify at trial but the jury saw body camera 

excerpts of a statement she made that she saw the outline of a gun in 

Gonsalves’s waistband as he approached K.B.’s car, although she did 

not hear the threats themselves. The jury also heard that no gun was 

ever located on Gonsalves’s person, in his car, or in his home.

Prior to trial, the trial court issued an in limine ruling permitting 

some evidence to be introduced pursuant to Evidence Code section 

1109, subdivision (a)(1). This provision allows the prosecution in a 

domestic violence case to present evidence of prior acts of domestic 

violence to show propensity, subject to the trial court’s power to exclude 

the evidence where its probative value is substantially outweighed by 

its prejudicial effect or undue consumption of time pursuant to 

Evidence Code section 352. In Gonsalves’s trial, the jury heard 

testimony from D.B., a prior girlfriend of Gonsalves’s, that in 2016,

Gonsalves threatened to kill her and her children. D.B. also 

volunteered that Gonsalves had threatened her “so many” times in 

2016; this statement was the subject of a mistrial motion and we 

describe it in further detail in our discussion of Gonsalves’s claim of

error in connection with this motion.

The jury acquitted Gonsalves of count one, making a criminal 

threat in violation of section 422, but it convicted him of the lesser 
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included charge of attempting to make a criminal threat. It found not 

true the use of a firearm allegation in the lesser included charge to 

count one, but it convicted him of count two, possessing a firearm while 

prohibited by a prior felony conviction. 

Following the verdict, Gonsalves admitted that he had suffered 

two prior strikes, but before he made the admission he was not advised 

of his privilege against self-incrimination, his right to a jury trial, or his 

right to confront witnesses against him, and he did not expressly waive 

those rights and privileges. 

At sentencing, the trial court dismissed one prior strike 

allegation. It sentenced Gonsalves to four years in state prison: the 

mid-term of two years on the felon-in-possession conviction, doubled for 

the prior strike, and a concurrent upper term of 18 months on the 

attempted threat conviction, doubled for the prior strike. This appeal 

followed.

DISCUSSION

I. Mistrial Motion

Gonsalves contends that the trial court erred in refusing his 

request for a mistrial after D.B. told the jury that “there [were] so 

many” threats during her relationship with him. We see no abuse of 

discretion here.

A trial court should grant a mistrial “only when a ‘ “party’s 

chances of receiving a fair trial have been irreparably damaged.” ’ ”

(People v. Ayala (2000) 23 Cal.4th 225, 282.) Where a trial court is 

apprised of prejudice to a party that is “incurable by admonition or 

instruction,” a mistrial is proper. (People v. Haskett (1982) 30 Cal.3d 

841, 854.) But “ ‘[w]hether a particular incident is incurably prejudicial 
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is by its nature a speculative matter[.]’ ” (People v. Ledesma (2006) 

39 Cal.4th 641, 683.) The trial court is best positioned to assess the 

impact of the prejudicial testimony and the curative effect of 

instruction in light of all the evidence; accordingly, “ ‘the trial court is 

vested with considerable discretion in ruling on mistrial motions.’ ” 

(Ibid.)

Here, the trial court issued an in limine order permitting the 

prosecution to elicit testimony from D.B. “regarding any criminal 

threats that were made by [Gonsalves] to her” while they were dating,

but excluding testimony about “physical altercations” between 

Gonsalves and D.B. It appears that the prosecution and defense were 

aware of only one incident in 2016 where Gonsalves threatened D.B. 

and her children, which D.B. reported to law enforcement. The 

prosecutor admonished D.B. before her testimony that “we are only 

talking about one instance,” “the 2016 incident regarding threats.” 

D.B. “did seem a little confused,” according to the prosecutor, about 

what she would be testifying about, but the prosecutor “didn’t want to 

tell [D.B.] her testimony” and did not offer further clarification. 

When D.B. was on the witness stand, the prosecutor asked her 

whether Gonsalves had threatened her in 2016, and D.B. affirmed that 

he had. When asked where the “threats” took place, D.B. responded 

that “there [were] so many that I’m not sure exactly which threats 

you’re talking about.” The defense objected and asked to approach. 

After sidebar, the trial court struck D.B.’s answer as nonresponsive. 

The prosecutor continued the examination by asking a more specific 

question: “did you speak with a deputy regarding . . . an instance 

where Mr. Gonsalves made a threat to you?” After D.B. reviewed an 
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incident report to refresh her recollection, she related to the jury that 

Gonsalves threatened to kill her and her children in 2016, and she 

believed him and reported it to the sheriff’s department that evening. 

The prosecution elicited no further details, and the defense did not 

cross-examine D.B.

After testimony concluded that day, the defense moved for a 

mistrial on the grounds that D.B.’s statement about “so many” threats 

left the jury with an impression of “an almost indeterminate number of 

terroristic threats” by Gonsalves, resulting in incurable prejudice. The 

trial court denied the mistrial motion, noting it had struck the 

statement and offering to consider any additional jury instructions or 

curative efforts the parties proposed. No party requested a pinpoint 

instruction. After the evidence closed, the trial court gave the jury the 

pattern instruction concerning evidence, CALCRIM No. 222, which 

instructed them to disregard and not consider for any purpose 

testimony that the court ordered stricken from the record.

The trial court did not abuse its discretion in refusing to order a 

mistrial because it is not reasonably probable that D.B.’s fleeting and 

ambiguous statement had a prejudicial effect.3 While every case must 

be evaluated on its own unique facts, prior cases teach that witnesses’ 

3 Gonsalves contends that D.B.’s volunteered statement exceeded 

the scope of the trial court’s in limine order, which contemplated D.B. 

would testify only to threats she reported to law enforcement in 2016. 

The Attorney General does not concede this point, but we agree with 

Gonsalves that this statement should not have been presented to the 

jury. Before evidence of prior uncharged acts of domestic violence may 

be admitted, the prosecution must disclose the evidence to the 

defendant (Evid. Code, § 1109, subd. (b)), and that did not happen here, 

apparently because the prosecution was unaware of other threats 

Gonsalves allegedly made to D.B.
8

brief references to defendants’ criminal history or incarceration 

typically will not render a trial irreparably unfair. (See People v. 

Collins (2010) 49 Cal.4th 175, 198–199 [no mistrial where witness 

volunteered testimony that defendant was “in Susanville” and “got out” 

shortly before events in the case]; People v. Valdez (2004) 32 Cal.4th 73, 

124–125 [no mistrial where witness mentioned defendant’s time at 

“Chino Institute”]; People v. Bolden (2002) 29 Cal.4th 515, 555 [no 

mistrial where witness said he obtained defendant’s address from the 

“parole office”]; People v. Franklin (2016) 248 Cal.App.4th 938, 954–955 

[no mistrial where three isolated references to probation or prior 

criminal history; trial court gave curative instruction].) That is 

especially true where the trial court acts quickly to address any 

potentially prejudicial testimony. “[I]t is only in the ‘exceptional case’

that any prejudice from an improperly volunteered statement cannot be 

cured by appropriate admonition to the jury.” (Id. at p. 955.) Here, the 

trial court immediately struck the statement and later instructed the 

jury to disregard any testimony struck from the record. We presume 

the jury followed that instruction. (People v. Yeoman (2003) 31 Cal.4th 

93, 139.)

Gonsalves argues that the presumption should not control here 

because D.B.’s emotional testimony was so powerful that the jury could 

not reasonably be expected to disregard it. The record does reflect that 

D.B. was tearful, but it does not suggest there was anything indelible 

or even especially striking about her volunteered statement. To the 

contrary, her reference to “many” threats was immediately followed by 

the trial court’s order striking the testimony, and her subsequent 
9

testimony describing the 2016 reported threat was unembellished and 

brief.

This case is thus dissimilar to the two cases Gonsalves primarily 

relies on in arguing he was incurably prejudiced. In People v. Disa

(2016) 1 Cal.App.5th 654 (Disa), we concluded that the trial court erred 

in admitting under Evidence Code section 1109 extensive evidence 

about the nature of a defendant’s prior attack on his ex-girlfriend, and 

in particular that he planned the attack and lay in wait to carry it out. 

(Disa, at pp. 673–674.) We concluded that the fact of the attack itself 

was probative and admissible concerning the defendant’s propensity to 

commit domestic violence (id. at p. 672), but the “vivid” details the jury 

heard of planning and ambush in that prior attack were inflammatory 

and irrelevant to the purpose for which the evidence was ostensibly 

admitted, i.e. propensity to commit domestic violence (id. at pp. 674–

675). Because a limiting instruction concerning the purpose of that 

evidence “could not erase” the details of the prior attack from jurors’ 

minds, we concluded there was prejudice and reversed the judgment. 

(Id. at p. 675.) In People v. Turner (2021) 73 Cal.App.5th 117 (Turner), 

a sister division concluded that the jury in a homicide case could not 

reasonably be expected to disregard evidence of a different charged 

murder, where the latter charge was initially at issue in the trial but 

was severed at the close of evidence. (Id. at pp. 128–129.) The jury in 

Turner heard about the different charged murder during opening 

statements and throughout the trial, but when the different charged 

murder was severed, they were instructed to disregard the evidence of 

it. (Id. at p. 129.) Turner concluded that it was simply unrealistic to 

expect jurors to follow an instruction to disregard this “shocking” 
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evidence that had been in their minds for a week. (Id. at pp. 129–130.) 

Disa and Turner are unhelpful to Gonsalves’s argument here because 

they are both cases where the jury heard extensive inflammatory and 

irrelevant evidence, unlike this case where the putatively prejudicial 

testimony was brief and immediately stricken.4

We also note that D.B.’s statement—Gonsalves made “so many” 

threats—was ambiguous in that it did not specify that he made 

criminal or violent threats. As used by a lay witness, the word 

“threats” in interpersonal relationships can encompass many kinds of 

conduct and speech, such as the “threat” that K.B. testified Gonsalves 

made to break up with her if she continued to spend time with S.W. 

Even setting aside the presumption that the jury disregarded D.B.’s 

statement about “so many” threats, the statement is still not so striking 

that it is likely to have influenced the jury. Moreover, Gonsalves raises 

no claim of error in the admission of statements from K.B. on the body 

camera footage that Gonsalves sent her “so many texts” containing 

threats, and that he sent threatening texts to her “[e]very time [she

left] his sight.” D.B.’s volunteered statement is not reasonably probable 

to have had any effect on the jury beyond the impression they already 

had from these similar statements by K.B. for which no error is 

claimed.

4 As the Attorney General points out, Disa is not a mistrial case, 

and the inflammatory and irrelevant testimony the jury heard in that 

case was never stricken. We understand Gonsalves’s point in relying 

on Disa to be that the jury cannot always be presumed to follow a 

curative or limiting instruction, but the facts of this case are very 

different from Disa.
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II. Required Advisements and Waivers

After the jury returned its verdict, Gonsalves admitted that he 

had suffered prior strike convictions in 2009 and 1999. As a 

“prophylactic measure,” prior to accepting a guilty plea or an admission 

to a prior conviction allegation that enhances punishment, a trial court 

“must inform the defendant of three constitutional rights—the privilege 

against compulsory self-incrimination, the right to trial by jury, and the 

right to confront one’s accusers—and solicit a personal waiver of each.” 

(People v. Cross (2015) 61 Cal.4th 164, 170.) The record here does not 

reflect that Gonsalves received what is commonly known as the BoykinTahl advisement5 before admitting prior strikes, nor did he expressly 

waive these rights.

Gonsalves contends, and the Attorney General concedes, that the 

Boykin-Tahl advisements and waivers apply to his admission of the 

prior strike convictions, and that reversal is required here. We agree. 

The record is silent as to whether Gonsalves understood the rights he 

waived by admitting the prior strike allegations; we therefore cannot 

say the record “affirmatively shows” that Gonsalves’s admission was 

voluntary and intelligent, as we must to find this error harmless. 

(People v. Cross, supra, 61 Cal.4th at pp. 179–180.) We thus vacate the 

judgment and sentence, which was based on his admission, and remand 

for further proceedings. On remand, Gonsalves should be advised of 

his rights and given the choice either to exercise or waive them.

5 The appellation comes from Boykin v Alabama (1969) 395 U.S. 

238, 243–244, and In re Tahl (1969) 1 Cal.3d 122, 130–133.
12

III. Section 654

The trial court sentenced Gonsalves to four years on the violation 

of section 29800, subdivision (a)(1) (the second count) and to three 

years concurrent on the attempted violation of section 422. Gonsalves 

contends in committing both crimes he was engaged in one indivisible 

course of conduct with a single purpose: threatening K.B. He therefore 

argues that the trial court was obliged to stay one of these concurrent 

terms to avoid punishing him doubly for the same conduct. We reject 

this argument, concluding the trial court’s implied finding that the 

crimes had different objects was supported by substantial evidence.

Section 654, subdivision (a), provides in relevant part that “[a]n 

act or omission that is punishable in different ways by different 

provisions of law may be punished under either of such provisions, but 

in no case shall the act or omission be punished under more than one 

provision.” Thus, “ ‘[i]f only a single act is charged as the basis of the 

multiple convictions, only one conviction can be affirmed[.]’ ” (Neal v. 

State of California (1960) 55 Cal.2d 11, 19 (Neal), overruled in part on 

other grounds by People v. Correa (2012) 54 Cal.4th 331.) Where more 

than a single act is charged, section 654 may still apply if multiple acts 

form a single course of criminal conduct that is incident to one 

objective. (People v. Corpening (2016) 2 Cal.5th 307, 311.) Whether 

multiple acts form a single course of criminal conduct is a factual 

determination, and depends on the intent and objective of the actor. 

(Neal, at p. 19.) If the trial court imposes concurrent terms without 

discussing section 654, it has made an implied factual finding that the 

defendant had more than one criminal intent or objective (People v. 

Osband (1996) 13 Cal.4th 622, 730), and we review that factual finding 
13

for substantial evidence in the light most favorable to the judgment. 

(People v. Jones (2002) 103 Cal.App.4th 1139, 1143 (Jones).)

When a defendant is punished for a crime that involves using a 

gun, and for the separate crime of possessing the gun, the application of 

section 654 “ ‘depends upon the facts and evidence of each individual 

case.’ ” (People v. Bradford (1976) 17 Cal.3d 8, 22 (Bradford).) Where 

the facts show that a defendant possesses a firearm “ ‘only in 

conjunction with the primary offense,’ ” multiple punishments offend 

section 654. (Bradford, at p. 22.) This is illustrated by Bradford: 

when the defendant was stopped by a police officer after robbing a 

bank, he wrested the officer’s gun away from the officer and then shot 

at the officer. (Id. at p. 13.) Because the evidence showed that the 

defendant took possession of the gun only for the purpose of committing 

an assault with it, separate punishments for gun possession and 

assault could not lie. (Id. at pp. 22–23; accord People v. Venegas (1970) 

10 Cal.App.3d 814, 819, 821–822 [defendant who grabbed a gun in a 

struggle and then shot someone with it could not be punished both for 

possession and the shooting].) By contrast, evidence showing that the 

defendant was already in possession of a gun before committing 

another crime with the gun tends to demonstrate multiple criminal 

objectives supporting separate sentences. (See, e.g., People v. Ortiz

(2012) 208 Cal.App.4th 1354, 1378–1379 (Ortiz) [defendant who arrived 

at the scene of a kidnapping already in possession of firearm was 

properly subject to separate punishments]; Jones, supra, 103 

Cal.App.4th at pp. 1147–1148 [defendant who drove to ex-girlfriend’s 
14

home in possession of gun and then shot into the home 15 minutes later 

was properly subject to separate punishments].)6

In this case, evidence showed that K.B. and S.W. saw Gonsalves 

while they were sitting in traffic on their way to the post office. Then 

they went straight to the post office, and K.B. saw Gonsalves turn his 

car into the post office parking lot as well. After S.W. got out of K.B.’s 

car to run an errand inside the post office, Gonsalves approached K.B. 

with the gun. This evidence supports a reasonable inference that 

Gonsalves was already in possession of the gun for some purpose before 

he encountered K.B. and S.W. sitting in traffic, and he 

opportunistically used the gun to threaten K.B. rather than acquiring 

and possessing the gun solely in order to threaten K.B. Viewing this 

evidence in the light most favorable to the judgment, we conclude that 

the trial court’s implicit determination that Gonsalves had separate 

objectives in possessing the gun and threatening K.B. was supported by 

substantial evidence. It therefore did not violate section 654 for the 

trial court to impose concurrent sentences for these two crimes.

6 Our sister Courts of Appeal have sometimes articulated the rule 

that “section 654 is inapplicable when the evidence shows that the 

defendant arrived at the scene of his or her primary crime already in 

possession of the firearm.” (Jones, supra, 103 Cal.App.4th at p. 1145; 

see also Ortiz, supra, 208 Cal.App.4th at p. 1379.) Gonsalves takes 

issue with this rule, contending that it is at odds with our Supreme 

Court’s holding that a case involving multiple acts must always be 

analyzed for section 654 violations using the single objective test that 

Neal articulated. We have no occasion today to decide whether the 

Jones-Ortiz rule controls in all cases. Rather, we follow Bradford’s 

instruction to apply section 654 to the facts and evidence of this case.
15

IV. Assembly Bill No. 518’s Amendment to Section 654

Assembly Bill No. 518, which became effective January 1, 2022, 

amended section 654, subdivision (a). Prior to the amendment, where a 

trial court stayed a sentence under section 654, it was required to give 

effect to the longest sentence and to stay shorter sentences. Under the 

amendment, the trial court may select which sentence to stay. (Legis. 

Counsel’s Dig., Assem. Bill No. 518 (2021–2022 Reg. Sess.).) Gonsalves 

argues that, because one of his sentences should be stayed, we should 

on remand direct the trial court to exercise its newly granted discretion 

as to which sentence to stay. Because we have concluded that the trial 

court’s decision not to stay either sentence was supported by 

substantial evidence, we reject this argument.

DISPOSITION

The judgment and sentence are vacated and the matter is 

remanded for further proceedings in accordance with this opinion.
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_________________________

Van Aken, J.*

We concur:

_________________________

Stewart, Acting P.J.

_________________________

Miller, J.

People v. Gonsalves (A164048)

* Judge of the San Francisco Superior Court, assigned by the Chief 

Justice pursuant to article VI, section 6 of the California Constitution.