1

Filed 12/9/14 P. v. Washington CA1/4 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS 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 This opinion has not been certified for publication 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 FOUR 

THE PEOPLE, 

 Plaintiff and Respondent, 

v. 

VINCENT EARL WASHINGTON, 

 Defendant and Appellant. 

 A138877 

 (Contra Costa County 

 Super. Ct. No. 05-12220011) 

I. 

INTRODUCTION 

 Appellant Vincent Earl Washington, convicted by jury verdict of a domestic 

violence offense (Pen. Code, § 273.5, subds. (a), (e)), false imprisonment (§§ 236, 237, 

subd. (a)),1 and dissuading a witness from reporting a crime (§ 136.1, subd. (b)), appeals 

on two grounds: that evidence of prior incidents of domestic violence was erroneously 

admitted under Evidence Code section 1109, and that the dissuading a witness count 

should have been dropped to a misdemeanor (§ 17, subd. (b)). We reject appellant’s 

arguments and affirm the judgment. 

 1

 Undesignated statutory references are to the Penal Code. 
2

II. 

FACTUAL BACKGROUND 

 A. Evidence of Domestic Violence Against Alleged Victim Danielle Carter

 About 5:50 a.m. on September 10, 2012, police responded to a neighbor’s report 

of a domestic quarrel between appellant and his girlfriend, Danielle Carter. Emauni 

Williams, Carter’s 18-year-old next door neighbor, heard appellant order Carter to get 

back into the house, and Carter refused. Reine Turner, a friend who was spending the 

night with Williams, saw a woman approach the front door and saw someone drag her 

into the house by her upper body, although she could not attest it was Carter. Turner also 

heard someone hit someone else during the argument, but she did not report this detail to 

the police. Williams told the police these arguments were a recurring problem. 

 When the police went to Carter’s home to investigate she admitted she had had an 

argument with her boyfriend, but she denied there was any physical violence. She did 

tell the officers, however, that she and her boyfriend were not getting along well and she 

was planning to leave him. The police checked on the safety of Carter’s children and left. 

 Later that morning a “frantic” Carter arrived at the home of a friend in the 

neighborhood, Vicki McGhee, pounding on the door and asking to be allowed inside. 

She had her two children with her, the younger of whom was appellant’s five-month-old 

baby. 

 McGhee allowed them inside and listened to Carter describe her fear that “this 

time” appellant was coming to kill her. Carter told McGhee appellant had beaten her that 

morning “like a dog,” using his belt to strike her legs. Carter showed McGhee the fresh 

bruises and McGhee took cell phone photos. Carter also told McGhee appellant had hit 

her in the eye the week before but there were no visible injuries. Among other things, 

Carter told McGhee that appellant had fathered a child with another woman, and she was 

upset about it. McGhee suggested they call the police but Carter refused. “[Y]ou don’t 

cross Vince,” she said. 

 Carter continued receiving text messages while she was in McGhee’s home and 

she read them to McGhee (although McGhee did not see them). Carter told McGhee 
3

some calls were from appellant and some were from their friends telling her to call 

appellant and not to run off with his baby. McGhee advised Carter to stop reading the 

texts. 

 Carter wanted her mother to come pick her up, but she first wanted to go home to 

get some formula for her baby. Yet she was afraid to go home because she did not know 

if appellant was there, and he carried a nine-millimeter handgun “at all times.” After 

about two hours, Carter decided to call the police and request a civil standby. 

 Deputy Alexandra Clark responded to the request. She was aware there was 

something going on in Carter’s life because she had spoken to Carter’s brother at the high 

school that morning. Clark also knew that a neighbor had filed reports with child 

protective services (CPS), questioning the children’s safety, and CPS had initiated an 

investigation. 

 McGhee told Clark that Carter was suffering domestic abuse, but Carter did not 

want the police involved. After some persuasion by Clark and McGhee, Carter told Clark 

that appellant had hit her with a belt that morning during an argument in which he 

accused Carter of infidelity. She showed Clark the bruises on her legs. Carter said she 

was afraid of appellant because she thought he was using drugs and he carried a ninemillimeter handgun. Carter told Clark that appellant had threatened to kill her and harm 

her family members, and while Clark was present Carter received a text message from 

appellant in which he threatened to shoot the police if they showed up at her house. 

 After Carter’s house had been cleared for safety, Clark accompanied Carter there 

to pick up some things for the baby. While they were in her home, Carter described for 

Clark the domestic dispute that morning, which had begun in the bedroom. Appellant 

threw a Windex bottle at Carter during the argument, but Carter was able to deflect it 

with her arms. When she tried to leave the bedroom, however, appellant blocked her way 

with his body. It was then that he took off his belt, folded it in half, and hit her legs with 

it multiple times. Carter got away from him and ran downstairs to the front door, but he 

followed her, and when she left the home he chased her and dragged her back in by the 

hair. Carter told Clark that appellant had been physically violent on about five prior 
4

occasions. Carter admitted to Clark she had told the police earlier in the day there had 

been no physical abuse. 

 After retrieving some things for the baby, Carter went back to McGhee’s house 

and waited for her mother to arrive. Carter took her children to her aunt’s house to stay 

for a few days. 

 When the police later contacted Carter to discuss the crime, Carter began to cry 

and recanted the story she had earlier told Clark. She claimed she had injured her legs by 

falling down in the garage and landing on a board. Though the officer showed her how 

the welts in the photographs appeared to have been made by a belt, Carter stuck to her 

story that she had fallen on a board. She refused to allow the officer to go into the garage 

to have a look at the board. 

 B. Carter’s Trial Testimony 

 When Carter testified at trial she recanted the stories she had earlier told Clark and 

McGhee. She claimed she had made up the stories of abuse to get back at appellant 

because he told her he was leaving her for another woman. She knew he had a criminal 

record and she figured if he was locked up in jail he could not cheat on her. She 

described how she had fallen through a piece of plywood as she was getting some boxes 

down from a high shelf in the garage and had injured her legs as she extricated them from 

the broken piece of wood. 

 She also testified that when she took her children to McGhee’s house she was just 

trying to get appellant “in trouble” and “make him pay” for hurting her. She admitted 

telling McGhee that appellant had whipped her with a belt and that she was afraid he 

would kill her, but she claimed the stories were fabricated. She also testified her phone 

battery was dead while she was at McGhee’s house and denied receiving any messages 

from appellant. Carter also had not wanted to repeat the false story of abuse to the police, 

but Clark “cornered” her and she confirmed the abuse after the police threatened to take 

away her children if she failed to report it. She claimed it was the officer who refused to 

go look at the board in the garage, not she who refused him entry. 
5

C. Prior Incidents of Violence Against Kristen Dekker

 Kristen Dekker testified for the prosecution under Evidence Code section 1109. 

She had dated appellant for about seven or eight years and had a daughter with him. 

They ended their relationship in 2010. Dekker was a reluctant witness. 

 Dekker’s mother, Gerrie Dekker (Gerrie), also testified for the prosecution. 

Although she had never seen appellant hit Dekker, Dekker had told her about incidents in 

which appellant had struck her, and there had also been police reports of abuse. On one 

occasion Gerrie was in the car with Dekker and Dekker had appellant on her 

speakerphone. Gerrie heard appellant threaten to kill their entire family, so she got a 

restraining order against him. 

 In April 2007 appellant shoved Dekker, causing her to hit her head on the wall, 

which gave her a concussion and a black eye. She did not report the incident to the 

police because she was afraid of appellant. Gerrie noticed Dekker’s black eye, but 

Dekker initially told her she had tripped and hit her face on a doorframe. Several months 

later Dekker told Gerrie that appellant had given her the black eye by shoving her against 

a wall. Dekker told the police about the incident in December 2007 when she called to 

report another threat by appellant, discussed below. 

 In November 2007, appellant struck Dekker in the face during an argument in his 

car over whether she was going to sleep at his house that night. Then he drove off with 

their child in the back seat. A neighbor called the police. Dekker told the responding 

officer that appellant had “slapped her or hit her in the face,” and the officer noticed some 

redness there. But Dekker did not want to press charges. She also told the officer that 

appellant had abused her on seven other occasions. Gerrie later accompanied Dekker to 

the police station to talk to the police about the incident. Dekker told Gerrie appellant 

had threatened to kill her but she forgave him because she loved him. 

 Dekker also called the police in December 2007 to report that appellant, during a 

telephone conversation in which the question of child custody came up, threatened to kill 

her by hitting her in the head with a hammer if she took his daughter away from him. He 

said he might not kill her immediately, but he would catch her later and kill or disable 
6

her. Dekker also told the police that throughout their relationship appellant had choked, 

punched and threatened to kill her. Dekker also related to the officer that in April 2007 

appellant had shoved her into a wall, causing a concussion and a black eye, not 

previously reported to the police.

 Dekker denied at trial that the prior police reports were true and denied that 

appellant gave her a black eye. She claimed she got the black eye in April 2007 by 

tripping on her shoelaces and hitting her face on a doorframe. With respect to the 

November 2007 incident, Dekker testified that she struck appellant first. She neglected 

to tell the police at the time that she was the aggressor because she wanted her daughter 

to be returned to her. She could not recall having told the police that appellant had also 

committed seven other incidents of domestic violence against her. 

 Dekker “guess[ed]” appellant did “[s]lightly” “lay hands on [her]” at some time 

during their relationship, but she always struck the first blow and appellant merely 

responded to her aggression. She did admit there was “prior fighting” between them in 

which appellant had pinned her arms in order to “control” Dekker’s own aggression. But 

she testified that appellant never threatened to kill her or her family. Although she had 

contact with the police concerning domestic violence by appellant, she herself did not 

recall calling the police on him. 

 Appellant was prosecuted for the 2007 offenses, but Dekker refused to cooperate 

with the prosecution. Although she was subpoenaed, she never testified at that trial 

because appellant entered into a negotiated plea, which included admitting the domestic 

violence charges as misdemeanors. 

D. The Verdicts

 After a six-day jury trial, appellant was convicted of the three crimes alleged to 

have been committed against Carter. He was sentenced to six years in prison. 
7

III. 

DISCUSSION 

 A. Admission of Evidence of Domestic Violence Against Dekker 

 Prior to trial, there were cross-motions to admit and to exclude several instances of 

alleged domestic violence under Evidence Code section 1109.2

 The prosecutor sought to 

admit evidence of domestic violence committed by appellant against both Dekker and 

Tiffany Kimmons. In addition to the crimes against Dekker, discussed above, the 

prosecutor alleged appellant had slapped Kimmons on her left cheek during an argument. 

The prosecutor argued the evidence of all of the incidents of prior domestic violence 

should be admitted because the evidence showed appellant’s pattern of controlling 

women and his “propensity” to commit domestic violence against his girlfriends. 

 Defense counsel countered that the prior incidents were inadmissible under 

Evidence Code sections 352 and 1109. He argued the incidents involving Dekker 

occurred in the context of a child custody dispute, the facts were complex and extremely 

prejudicial and included kidnapping, and the incidents involved two different women and 

multiple children. With respect to Kimmons, he argued there had been no conviction, the 

victim denied the incident, and admission of the evidence would result in a mini-trial 

within the trial. 

 After hearing argument, the court excluded the evidence of the alleged incident 

involving Kimmons under Evidence Code section 352 because the offense had not been 

prosecuted and Kimmons repudiated the report. However, the court ruled admissible the 

evidence regarding the various incidents involving Dekker, which was more similar to 

the present case and had resulted in convictions. 

 2

 Section 1109, subdivision (a)(1), provides as follows: “Except as provided in 

subdivision (e) or (f), in a criminal action in which the defendant is accused of an offense 

involving domestic violence, evidence of the defendant’s commission of other domestic 

violence is not made inadmissible by Section 1101 if the evidence is not inadmissible 

pursuant to Section 352.” 
8

 Appellant argues the testimony should have been excluded because (1) the prior 

incidents were not probative of the current offense and were not relevant to the charged 

crimes; (2) the evidence was more prejudicial than probative under Evidence Code 

section 352; and (3) the court failed to weigh probative value against prejudicial effect as 

required by Evidence Code section 352. He claims this was not only an evidentiary error, 

but a violation of the Fifth, Sixth and Fourteenth Amendments. 

 On the issue of admissibility the standard of review is abuse of discretion. (People 

v. Hayes (1990) 52 Cal.3d 577, 617; People v. Johnson (2010) 185 Cal.App.4th 520, 531 

(Johnson).) Under that standard, we reverse only if the court’s ruling “exceeded the 

bounds of reason,” that is, if the ruling was “arbitrary, capricious, or patently absurd.” 

(Ceja v. Department of Transportation (2011) 201 Cal.App.4th 1475, 1481.) 

 We reject out of hand appellant’s claim that the past violence was “not probative 

of the current offense” and not “relevant to the charged crimes.” Evidence of prior 

misconduct is generally inadmissible to prove a defendant’s conduct on a specific 

occasion or to prove his predisposition to commit a crime. (Evid. Code, § 1101, 

subd. (a).) But the reason for excluding such evidence is not that it is irrelevant. Rather, 

the danger is that it has a tendency to bear too heavily on the jury’s assessment of the 

defendant’s guilt. “It may almost be said that it is because of the indubitable relevancy of 

specific bad acts showing the character of the accused that such evidence is excluded. It 

is objectionable not because it has no appreciable probative value but because it has too 

much.” (1A Wigmore, Evidence (Tillers rev. 1983) § 58.2, p. 1212.) Indeed, the 

Supreme Court has recognized this principle, noting that such evidence is excluded not 

because it is irrelevant, but for extrinsic policy reasons, including prejudice to the 

defendant and jury confusion and distraction. (People v. Demetrulias (2006) 39 Cal.4th 

1, 21.) 

 But in certain kinds of cases, such as sex offenses and domestic violence offenses, 

the Legislature has relaxed the rules against character evidence and made prior similar 

misconduct admissible to prove propensity. (Evid. Code, §§ 1108, 1109; People v. 

Villatoro (2012) 54 Cal.4th 1152, 1159.) The legislative history of Evidence Code 
9

section 1109 shows specifically that evidence of prior domestic violence has been 

deemed probative in a case involving a new charge of domestic violence: “Section 1109 

was intended to make admissible a prior incident ‘similar in character to the charged 

domestic violence crime, and which was committed against the victim of the charged 

crime or another similarly situated person.’ (Assem. Com. on Public Safety, Analysis of 

Sen. Bill No. 1876 (1995–1996 Reg. Sess.) June 25, 1996, p. 5 (Assem. Analysis of Sen. 

Bill No. 1876).) Thus, the statute reflects the legislative judgment that in domestic 

violence cases, as in sex crimes, similar prior offenses are ‘uniquely probative’ of guilt in 

a later accusation. (See People v. Britt (2002) 104 Cal.App.4th 500, 505–506 [§ 1108].) 

Indeed, proponents of the bill that became section 1109 argued for admissibility of such 

evidence because of the ‘typically repetitive nature’ of domestic violence.[3]

 (Assem. 

Analysis of Sen. Bill 1876, supra, at pp. 6–7; see also [People v.] Brown [(2000)] 77 

Cal.App.4th [1324,] 1333.) This pattern suggests a psychological dynamic not 

necessarily involved in other types of crimes. (See [People v.] Hoover [(2000)] 77 

Cal.App.4th [1020,] 1027.)” (Johnson, supra, 185 Cal.App.4th at p. 532, second 

fn. omitted.) 

 Although the Supreme Court has not addressed the constitutionality of Evidence 

Code section 1109, the Courts of Appeal have uniformly held that, under the reasoning of 

People v. Falsetta (1999) 21 Cal.4th 903, it does not violate due process. (See, e.g., 

People v. Cabrera (2007) 152 Cal.App.4th 695, 703-704; People v. Rucker (2005) 126 

Cal.App.4th 1107, 1120; People v. Price (2004) 120 Cal.App.4th 224, 239-241.) 

 The principal factor affecting the probative value of an uncharged act under 

Evidence Code section 1109 is its similarity to the charged offense. (Johnson, supra, 185 

Cal.App.4th at p. 531.) Here, there was significant similarity. Carter and Dekker were 

 3

 “ ‘The propensity inference is particularly appropriate in the area of domestic 

violence because on-going violence and abuse is the norm in domestic violence cases. 

Not only is there a great likelihood that any one battering episode is part of a larger 

scheme of dominance and control, that scheme usually escalates in frequency and 

severity. Without the propensity inference, the escalating nature of domestic violence is 

likewise masked.’ (Assem. Analysis of Sen. Bill No. 1876, supra, at p. 3.)” 
10

both intimate partners of appellant and both were mothers of his children. In both 

relationships he lashed out physically against the women during arguments. In Dekker’s 

case there was evidence that he slapped her and drove off with their child, threatened to 

beat her head in with a hammer, and shoved her against a wall on a third occasion, giving 

her a black eye and a concussion. Dekker also told the police that appellant had slapped, 

choked, and threatened her throughout their relationship. She further told them there had 

been seven other incidents of domestic violence which she had not reported.4

 In Carter’s case, appellant beat her with a belt on the legs, pulled her by the hair, 

and slapped her, acts very similar to those involving Dekker. And he also threatened to 

kill both women if they went to the police and threatened the families of both women. 

These similarities are more than sufficient to make the prior incidents with Dekker 

admissible under Evidence Code section 1109. And he did not use a formal weapon with 

either woman, but used his hands or other available means (his belt) to inflict the injuries. 

The absence of formal weapons (such as a gun) means the evidence of his violence 

against Dekker was not so prejudicial as to outweigh its probative value. 

 In spite of the strong evidence of appellant’s guilt in the present case (including 

photographs of Carter’s injuries), both women testified that appellant did not physically 

abuse them, or in Dekker’s case, that she was the aggressor. The testimony of family 

members, friends, neighbors and police helped to establish the facts of abuse against both 

women, and Dekker’s reluctance to testify against appellant helped the jury understand 

why Carter also denied that appellant had abused her. The jury could have inferred that 

 4

 Appellant argues this evidence was “highly prejudicial.” “The word 

‘prejudicial’ is not synonymous with ‘damaging.’ [Citation.] Rather, evidence is unduly 

prejudicial under section 352 only if it ‘ “ ‘uniquely tends to evoke an emotional bias 

against the defendant as an individual and . . . has very little effect on the issues’ ” ’ 

[citation], or if it invites the jury to prejudge ‘ “ ‘a person or cause on the basis of 

extraneous factors’ ” ’ [Citation.] ‘Painting a person faithfully is not, of itself, unfair.’ 

[Citation.]” (Johnson, supra, 185 Cal.App.4th at p. 534.) The complained of evidence 

underscored the repetitive nature of domestic violence, as recognized by the Legislature 

(see fn. 3, ante), but it did not unfairly prejudice appellant within the meaning of 

Evidence Code sections 352 and 1109. 
11

Carter refused to testify against appellant for the same reason Dekker did: appellant had 

threatened both of them with death if they turned him in. Knowing that Dekker was still 

afraid to testify against appellant some six years after the threats had been made could 

help the jury better understand the level of fear the women suffered, and why Carter 

might also be afraid to publicly accuse appellant of having committed violence against 

her. Thus, evidence relating to appellant’s abuse of Dekker was highly relevant to both 

the domestic abuse charge and the dissuading count. 

 We also reject appellant’s contention that the court failed to engage in the 

balancing process required under Evidence Code section 352. That weighing process 

was included in the decision to admit the evidence under Evidence Code section 1109, 

which incorporates the requirements of Evidence Code section 352. (See fn. 2, ante.) 

That the trial court did engage in a balancing process is demonstrated by the fact that it 

excluded evidence of Kimmons’s claim that appellant also struck her, expressly relying 

on Evidence Code section 352. Moreover, a trial judge need not expressly weigh 

prejudice against probative value or even expressly state that he has done so. An 

appellate court can infer an implicit weighing on the basis of record indications. (See 

People v. Padilla (1995) 11 Cal.4th 891, 924; People v. Triplett (1993) 16 Cal.App.4th 

624, 628–629.) The record in this case, which included counsel’s arguments on the 

probative value versus the prejudicial effect of the evidence, clearly shows that the judge 

was aware of the balancing required under the governing statutes and engaged in such a 

process. 

 Appellant’s reliance on People v. Harris (1998) 60 Cal.App.4th 727 (Harris) is 

misplaced. In Harris, the court held a 23-year-old prior sex offense was too remote to be 

admissible under Evidence Code section 1108. (Id. at p. 739.) The defendant in that case 

was a male mental health nurse on trial for sexual battery of two incapacitated and 

mentally troubled women under his care, accused of fondling one patient and orally

copulating another. (Id. at pp. 731–732.) Both incidents were nonviolent, and both 

victims remained “on speaking terms” with Harris afterwards. (Id. at p. 738.) 
12

 The prior conviction, by contrast, had been a brutal rape of Harris’s neighbor, in 

which he had broken into her apartment late at night “while she was sleeping, beat her 

unconscious and used a sharp instrument to rip through the muscles from her vagina to 

her rectum, then stabbed her in the chest with an ice pick, leaving a portion of the pick 

inside her.” (Harris, supra, 60 Cal.App.4th at p. 733.) “Defendant was found hiding 

nearby with ‘blood on his hands, blood on his clothes, blood on his thighs, blood on his 

penis.’ ” (Ibid.) 

 The Court of Appeal reversed the defendant’s conviction finding the evidence 

“was remote, inflammatory and nearly irrelevant and likely to confuse the jury and 

distract it from the consideration of the charged offenses.” (Harris, supra, 60 

Cal.App.4th at p. 741.) Moreover, though the evidence showed the prior offense was a 

brutal rape, Harris was convicted only of burglary with great bodily injury, which could 

have fueled speculation on the jury’s part as to whether he was sufficiently punished for 

the prior offense, and could in turn make the jury more likely to convict on the current 

charges. (Id. at p. 738.) Also, Harris, unlike appellant here, had led a largely 

“unblemished” life for 23 years after the prior rape. (Id. at p. 739.) 

Harris is distinguishable in many regards, including the remoteness of the prior 

conviction and the graphic, violent nature of the evidence relating to the prior offense. In 

contrast, here the prior events were not only more recent than in Harris, but their impact 

was less inflammatory, and the similarity of the prior acts to the charged offenses was 

greater. 

 Appellant argues that admission of the evidence of the prior domestic violence 

violated his federal constitutional right to due process and a fair trial, and therefore, the 

prejudice standard under Chapman v. California (1967) 386 U.S. 18, 24, applies. We 

disagree. The constitutionality of Evidence Code section 1109 has been upheld 

repeatedly. (Johnson, supra, 185 Cal.App.4th at p. 529.) There is nothing peculiar to its 

application in this case that convinces us appellant was deprived of a fundamentally fair 

trial or otherwise subjected to an unconstitutional evidentiary ruling. “Only if there are 

no permissible inferences the jury may draw from the evidence can its admission violate 
13

due process. Even then, the evidence must ‘be of such quality as necessarily prevents a 

fair trial.’ [Citation.] Only under such circumstances can it be inferred that the jury must 

have used the evidence for an improper purpose.” (Jammal v. Van de Kamp (9th Cir. 

1991) 926 F.2d 918, 920, italics omitted.) As discussed above, the propensity inferences 

based on the evidence of prior domestic violence were proper. There was no 

constitutional violation. 

 B. Failure to Reduce Dissuading Conviction to a Misdemeanor 

Prior to sentencing, defense counsel filed a request to reduce the dissuading count 

(§ 136.1, subd. (b)) to a misdemeanor under section 17, subdivision (b). Counsel argued 

that the offense in this case was “minor in nature” because the dissuasion was 

“communicated via text message, and not in person,” appellant “only has five prior 

felony convictions arising out of three criminal cases,” and appellant was “cooperative 

and polite during his trial.” At the sentencing hearing, defense counsel suggested the 

court should sentence appellant to the mitigated term of two years on count one, reduce 

count three to a misdemeanor (which otherwise would constitute a strike (§ 1192.7, 

subd. (c)(37)), and run all sentences concurrently. Defense counsel argued that the crime 

was not so serious that it should burden appellant with a strike conviction that would 

have “serious lifelong consequences.” 

 The trial court denied the motion, reasoning as follows: “All right. Well, with 

respect to the Section 17 motion, that’s fairly serious as a dissuading. Moreover, the 

continued disregard for the protective order while in custody also suggests that a Section 

17 would not be appropriate, as does the defendant’s other criminal history. That motion 

is denied.” 

 A court has broad discretion under section 17, subdivision (b), in deciding whether 

to reduce a wobbler offense to a misdemeanor. (People v. Superior Court (Alvarez)

1997) 14 Cal.4th 968, 974, 977 (Alvarez).) We will not disturb the court’s decision on 

appeal unless the party challenging the decision clearly shows the decision was irrational 

or arbitrary. (Ibid.) Absent such a showing, we presume the court acted to achieve 

legitimate sentencing objectives. (Id. at pp. 977-978.) Its discretionary determination 
14

may not be set aside unless appellant carries the burden of showing the decision was 

irrational or arbitrary. (Ibid.) 

 Dissuading a witness is a wobbler that may be sentenced either as a felony or a 

misdemeanor. (§ 136.1, subd. (b).) Section 17, subdivision (b), grants the trial court 

discretion to sentence a wobbler as a misdemeanor. Factors to be considered in 

exercising its discretion include the nature and circumstances of the offense, the 

defendant’s appreciation of and attitude toward the offense, or traits of character as 

evidenced by the defendant’s behavior and demeanor at trial. (Alvarez, supra, 14 Cal.4th 

at p. 978.) 

 Appellant contends the trial court failed to consider the “individualized 

circumstances in his case,” in particular that the threats were made by way of text 

messages. He also argues that the court disregarded appellant’s “successes on parole, his 

drug problem, and his attempts to address that problem.” But these factors are of little 

persuasive force when weighed against the factors militating against a reduction. 

 The dissuading count was not a minor incident, appellant’s conduct while in 

custody was poor, and appellant’s record was by no means pristine. Appellant, who was 

on bail for a weapons charge at the time of the offense, threatened to kill Carter if she 

turned him in to the police, and threatened to shoot police officers if they came to the 

house. Although a restraining order had issued during the pretrial period forbidding 

appellant to have contact with Carter, appellant in fact made 214 phone calls to Carter 

while in jail. Yet, during his interview with the probation officer, appellant denied 

having any contact with Carter. Appellant had nine felony convictions and five 

misdemeanor convictions as an adult. The probation officer found appellant “has proved, 

by his prior and current history, his disinclination to take responsibility for his own 

behavior, his willingness to blame others for predicaments[,] and a lack of remorse for 

the victim . . . .” 

The trial court took into consideration the relevant factors, including appellant’s 

criminal past and the seriousness of the facts underlying the dissuading count. Its refusal 

to reduce the dissuading count to a misdemeanor was neither irrational nor arbitrary. 
15

IV. 

DISPOSITION

 The judgment is affirmed. 
16

 _________________________ 

 RUVOLO, P. J. 

We concur: 

_________________________ 

REARDON, J. 

_________________________ 

RIVERA, J.