Filed 8/29/13 P. v. Anzalone CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent,

v.
CHRISTINA MARI E ANZALONE, Defendant and Appellant. H035123 (Santa Clara County Super. Ct. No. CC935164)

S TATEMENT OF THE C ASE An information charged defendant Chris tina Marie Anzalone with assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), 1 making a criminal threat (§ 422), vandalism causing less than $400 in damage (§ 594, subd. (a)/(b)(2)(A)), and brandishing a deadly weapon (§ 417, subd. (a)(1)). Th e information alleged th at defendant personally used a knife in committing the assault (§§ 667, 1192.7) and pe rsonally used a knife in making the threat (§ 12022, subd. (b)(1)). A jury acquitted defendant of vandalism, but it otherwise convicted defendant as charged. Th e trial court sentenced defendant to a term of four years and eight months in prison, as follows: three years for the assault conviction, eight months for the criminal threat conviction, and one year for the

1 Subsequent unspecified statutory re ferences are to the Penal Code.2 section 12022, subdivision (b)(1) weapon enhancement. The court also sentenced defendant to a concurrent 30-day term for the brandishing conviction. Defendant appealed. She ar gued that she was denied he r right to a unanimous jury verdict, that the trial court erred in admittin g her prior aggravated assault conviction for impeachment purposes, that the court erroneou sly instructed the jury regarding the prior aggravated assault conviction, and that the court erred in imposing a full-term weapon enhancement and in failing to stay the 30-da y term on the brandishing conviction. We held that there was no valid verdict, and that the error was structural and thus reversible per se. Our Supreme Court reversed, conclu ding that the error was not structural, and that the error was harmless. The Supreme Court remanded the case to this court and directed us to consider defe ndant’s remaining claims. We now conclude that the trial cour t erred in admitting defendant’s prior aggravated assault conviction, but it is not reasonably prob able that the verdict would have been more favorable to defendant absent the error. We further conclude that the court properly instructed th e jury regarding the consider ation of prior convictions. Finally, we conclude that the court erred in imposing a full-term weapon enhancement and in failing to stay the term on the bran dishing conviction, and we accordingly will modify defendant’s sentence. As so modified, the judgment will be affirmed. S TATEMENT OF THE F ACTS The Prosecution’s Evidence On February 22, 2009, Atul Patel was work ing at the front desk at the Hedding Inn in San Jose. At approximately 5:00 p.m., de fendant entered the hotel and asked Patel if she could speak with Leon Wallace, a hotel resident. Patel informed defendant that Wallace was not at the hotel, and he also to ld defendant that sh e could not go into Wallace’s room. Defendant became angry, accused Patel of ly ing, and walked out of the hotel. Approximately three minutes later, de fendant walked back into the hotel and3 knocked over Patel’s compute r. Defendant pulled a knife out of her pocket and told Patel, “I’ll kill you. I’ll hur t you.” Patel was afraid that defendant would use the knife because defendant appeared to ha ve been drinking. Defendant also appeared to be “under the influence of an illicit drug.” Pa tel called 911, and defendant left. Shortly after 5:00 p.m., Richard Malott and his wife, Kimberly Schneider-Malott, went to City Team Ministries to eat dinner. Schneider-Malott exited City Team Ministries, and defendant approached her. Defendant told Schneider-Malott that she could not get a meal because she was drunk. Schneider-Malott gave defendant some bagels. Malott exited City Team Ministries, and he told Schneide r-Malott to come to their truck. Defendant said that she was not finished talking to Schneider-Malott, she yelled and swore at Malott, she accused Ma lott of abusing Schneider-Malott, and she “chest butt[ed]” Malott. Malott believed that defendant was trying to incite a fight. Malott walked away from defe ndant, and defendant ran toward him. Malott turned around, and defendant reached into her pocket. Defendant threw a knife and a bagel at Malott. The knife hit Malott’s chest, causi ng a red mark. Malott picked up the knife, and he and Schneider-Malott got into their truck. Defendant spat on the truck’s windshield and grabbed the truck’s antenna. As Malott drove away, the antenna broke off of the truck. San Jose Police Officer Brandon Kelsoe tr ied to speak with defendant immediately after Malott drove away. Defendant was “too intoxicated and angry” to be interviewed. The Defense Evidence Defendant testified that she pushed over Patel’s computer because she was angry that Patel had lied to her. She denied threat ening Patel, and she denied brandishing the knife at Patel. She explained that the knife was clipped to the thumb hole of her sweatshirt the entire time she was inside the hotel.4 Defendant testified that she went to City Team Ministries in order to get food. She explained that she yelled and swore at Malott because he had been ve rbally abusive to his wife. She admitted that she “was trying to get into a fight with him,” but he “wasn’t taking the bait.” She denied throwing the knife at Malott. She explained that the knife, which was still clipped to the thumb hole of her sweatshirt, “fle w off” and “skidded across the floor” when she moved her arms. She grabbed the tr uck’s antenna in an effort to retrieve her knife from Malott. Defendant testified that she was intoxicate d at the time of the charged crimes. She consumed two to four 40-ounce bottles of ma lt liquor before the charged crimes, and she admitted that her alcohol consum ption affected her “ability to remember the incidents of that day.” She did not remember the majority of her conversation with Schneider-Malott, she did not remember whether Schneider-Mal ott gave her food, she did not remember what Malott said to Schneider-Malott, and she did not remember whether Malott responded to her ye lling and swearing. Defendant admitted that she had a prior co nviction for assault with force likely to cause great bodily injury. Sh e also admitted that she had a prior conviction for vehicle theft. D ISCUSSION Defendant contends that th e judgment must be revers ed because the trial court erred in admitting her prior aggravated assa ult conviction for impe achment purposes and because the court provided misleading instructi ons that improperly invited the jury to use the prior conviction as propens ity evidence. Defendant alte rnatively requests that we modify her sentence, arguing that the cour t erred in imposing a full term for the section 12022, subdivision (b)(1) weapon enha ncement and in failing to stay the term on the brandishing conviction pursuant to section 654.5 The People contend that defendant faile d to object to the admission of the prior aggravated assault conviction, and that she therefore forfeited her claim that the trial court erred in admitting the conviction for im peachment purposes. The People further argue that the instructions unambiguously pr ohibited the jury from construing the prior aggravated assault conviction as propensity evidence. The People concede that defendant’s sentence must be modified. As set forth below, we conclude th at the trial court’s consideration of impermissible factors, ignorance of a material fact, and failure to apply the correct legal standard rendered the admission of the aggr avated assault conviction an abuse of discretion. However, because other proper ly admitted evidence severely discredited defendant’s testimony, we conclude that it is not reasonably probable that the verdict would have been more favorable to defendant ab sent the error. We also conclude that the instructions were not misleadi ng and did not permit the jury to construe defendant’s prior aggravated assault conviction as propensity evidence. Finally, we will modify the sentence in the manner requested by defend ant, and we will affirm the judgment as modified. I. Although The Trial Court Erred In Ad mitting The Prior Conviction, The Error Does Not Require Reversal A. Background Before trial, the prosecutor moved to im peach defendant with prior convictions involving moral turpitude if defendant chose to testify. The trial court noted that defendant had three prior convictions: a felony violation of section 245, subdivision (a)(1), a misdemeanor violatio n of section 10851, and a misdemeanor violation of section 594. The court comment ed that it was “familiar” with defendant’s prior violation of sect ion 245, referring to it as “the ‘c ane’ case.” The court asked the prosecutor whether she was “representing that th e 245(a)(1) is a moral turpitude offense.”6 The prosecutor responded that she believed the section 24 5 conviction was an offense involving moral turpitude. The court asked defense counsel whether he wished to object to the admission of any of defendant’s prior convic tions. Defense counsel responded, “Yes, your honor. The 245(a)(1) conviction from September 15th of 2008 and also the October 19th 2004 conviction of the vandalism. [¶] Beginni ng with the 245 convic tion, I would have no objection if the court were to have the la nguage changed to ‘Ms. Anzalone has been convicted of a felony offense involving mora l turpitude.’ ” Defense counsel argued that the section 245 conviction was “very simila r” to the charged offense, and that introduction of the section 245 conviction woul d therefore be “overly prejudicial” within the meaning of Evidence Code section 352. Th e prosecutor argued, “The case law is well established on the fact that the court has disc retion and it’s not a violation of 352 to allow in crimes that are similar in conduct or even the same as the currently charged crime.” The court responded, “I agree it’s not a viola tion. . . . I’m going to [take a] look at the prior again here. I remember the case, I want to take a look at it. The cane incident.” A discussion then occu rred off the record. The court resumed the hearing and stated, “Back on the record. In looking at the priors that the People are asking to bring in should the defendant testify, they all are moral turpitude offenses and they are recent . . . . [¶] And the 352 analysis, I think it’s far more probative than prejudicial because it shows severe moral turpitude deprivation to commit these types of offenses, and the 245 sp ecifically that the defe nse attorney talked about. I think if it were a 245 with a knife, I certainly would sanitize it not to include a knife. [¶] So I’m going to give the defense an option if they wish to take it simply calling it an assault with a de adly weapon felony or an assault with a deadly weapon felony with the instrument bei ng a cane distinguished from the kni fe in this case. [¶] Did you have any preference on that, those two while you’re thinking about it?”7 Defense counsel responded, “I would . . . have to say damned if I do, damned if I don’t. Six of one, half dozen of the other. Both options are not part icularly palatable.” The court responded, “The thing that I think wo uld make it extremely prejudicial [is] if it was 245 with a knife. Can 245 somebod y with all kinds of things.” The court finally ruled that all three of defendant’s prior convictions were admissible for impeachment purp oses. In issuing the ruling, the court noted, “So now the cases are in my mind. I do believe it’s more probative, it’s important for the DA to have this evidence to show th at [defendant], that if she shoul d testify, show things by these convictions that reflect her morales [ sic ] and judging her credibility as a witness. So under 352 I find it more prob ative than prejudicial.” Despite the court’s comments to the co ntrary, defendant’s prior section 245 conviction was actually a conviction for assau lt with force likely to cause great bodily injury. On direct examination, defendant admitted that she had a “conviction for violation of Penal Code secti on 245(a)(1) which is assault with force likely to cause great bodily injury.” On cross-ex amination, defendant again ad mitted that she had a “prior conviction for assault likely to cause great bodily injury.” B. Defendant’s Claim is Not Forfeited Preliminarily, we must address the issue of forfeiture. The People assert that defendant did not object to the admission of the section 245 conviction, and that defendant merely requested that the trial court sa nitize the conviction. In order to bring an appellate cha llenge to the admissi on of evidence, the defendant must make an objec tion in the trial court. ( People v. Viray (2005) 134 Cal.App.4th 1186, 1209.) Such an objection must “make clear the specific ground of the objection.” (Evid. Code, § 353, subd. (a).) Here, defendant adequately objected to the admission of the section 245 conviction. Wh en the trial court asked defense counsel whether he wished to object to the admission of any of defendant’s prior convictions,8 defense counsel responded, “Yes, your honor. The 245(a)(1) conviction from September 15th of 2008 . . . .” Defens e counsel emphasized that the section 245 conviction was very similar to the charged offense, and that introduction of the conviction would be unduly pr ejudicial within the meaning of Evidence Code section 352. Although defense counsel stated that th ere would be no objection if the trial court sanitized the conviction, this comment does not require us to conclude that defendant failed to object to the admission of the section 245 conviction. In light of the trial court’s refusal to sanitize the convic tion, defense counsel’s comment made clear that defendant maintained the objection to the admission of the section 245 conviction. Accordingly, because defendant adequately objected to the admission of th e conviction, we conclude that defendant’s claim is not forfeited. We now turn to the merits of defendant’s claim. C. Standard of Review The trial court’s ruling regarding the admissibility of a defendant’s prior conviction for impeachment pu rposes is reviewed for abuse of discretion. ( People v. Rowland (1992) 4 Cal.4th 238, 259, fn. 1.) The following principles must guide an appellate court’s abuse of discretion analysis: “ ‘The discretion of a trial judge is not a whimsical, uncontrolled power, but a legal discretion, which is subject to the lim itations of legal principles governing the subject of its action, and to reversal on app eal where no reasonable basis for the action is shown.’ (9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 364, p. 420; see Westside Community for Independent Living, Inc. v. Obledo (1983) 33 Cal.3d 348, 355.) ‘The scope of discretion always resides in the partic ular law being applied, i.e., in the “legal principles governing the subj ect of [the] action . . . .” Action that transgresses the confines of the applicable principles of law is outside the scope of discretion and we call such action an “abuse” of discretion. [Citation.] . . . [¶] The legal principles that govern the subject of discretionary acti on vary greatly with context. [Citation.] They are derived9 from the common law or statutes under which discretion is conferred.’ ( City of Sacramento v. Drew (1989) 207 Cal. App. 3d 1287, 12 97-1298.) To determine if a court abused its discretion, we must thus consider ‘the legal principles and policies that should have guided the court’s actions.’ ( People v. Carmony [(2004)] 33 Cal.4th [367,] 377.)” ( Sargon Enterprises, Inc. v. Univ ersity of Southern California (2012) 55 Cal.4th 747, 773).) D. The Trial Court Abused its Discretion Evidence Code section 788 authorizes ad mission of a prior fe lony conviction for “the purpose of attacking the credibility of a witness.” A felony conviction is admissible under Evidence Code section 788 only if th e felony involves “moral turpitude.” ( People v. Castro (1985) 38 Cal.3d 301, 317 ( Castro ).) The trial court “may admit evidence of a felony conviction to impeach the credibility of a witness if and only if the le ast adjudicated elements of the underlying felony necessarily involve moral turpitude, i.e., the readiness to do evil.” ( People v. Lang (1989) 49 Cal.3d 991, 1053.) “[I]n determining whether a previous felony involves moral turpitude the court can not go behind the conviction and take evidence on or consider the facts and circumstances of the pa rticular offense. Instead, the court must look to the statutory definiti on of the particular crime and only if the least adjudicated element of the crime necessa rily involves moral turpitu de is the prior conviction admissible for impeachment purposes.” ( People v. Bautista (1990) 217 Cal.App.3d 1, 5- 6.) Thus, “anything beyond the least adjudi cated elements may not be examined” by the trial court. ( People v. Lepolo (1997) 55 Cal.App.4t h 85, 89; see also People v. Ardoin (2011) 196 Cal.App.4th 1 02, 120 [“the facts and circ umstances underlying prior offenses are inadmissible for impeachment purposes”].) Evidence Code sections 788 and 352 “pro vide discretion to the trial judge to exclude evidence of prior felo ny convictions when their pr obative value on credibility is10 outweighed by the risk of undue prejudice.” ( People v. Muldrow (1988) 202 Cal.App.3d 636, 644 ( Muldrow ).) “In exercising its discretion, the trial court must consider four factors identified by our Supreme Court in People v. Beagle (1972) 6 Cal.3d 441, 453 (hereafter, Beagle ): (1) Whether the prior conviction reflects adversely on an individual’s honesty or veracity; (2) the nearness or remoteness in time of a prior conviction; (3) whether the pr ior conviction is for the same or substantially similar conduct to the charged offense; and (4) what the effect will be if the defendant does not testify out of fear of being prejudiced beca use of the impeachment by prior convictions.” ( People v. Mendoza (2000) 78 Cal.App.4th 918, 925 ( Mendoza ).) Although the trial court is required to consider the Beagle factors, the factors “need not be rigidly followed.” ( Ibid. ) In order to properly exercise its di scretion in admitting a prior conviction for impeachment purposes, the trial court “ ‘must kn ow and consider all ma terial facts and all legal principles essential to an inform ed, intelligent, and ju st decision.’ ” ( Muldrow,

supra, 202 Cal.App.3d at p. 644.) An “abuse of discretion aris es if the trial court based its decision on impermissible factors [citatio n] or on an incorrect legal standard [citations].” ( People v. Knoller (2007) 41 Cal.4th 139, 156.) In the instant case, the trial court’ s admission of defendant’s section 245 conviction was based on a misunderstanding of the actual conviction that the prosecutor sought to admit. When considering whether to admit defendant’s se ction 245 conviction, the court repeatedly referred to the conviction as an assault with a deadly weapon. The court emphasized that the convic tion would be introduced to th e jury as an assault with a deadly weapon. Contra ry to the court’s statements, th e prior conviction was actually a conviction for assault w ith force likely to cause great bo dily injury. Given the court’s ignorance of the actua l conviction that the prosecutor sought to admit, the court’s admission of the section 245 co nviction cannot be deemed an informed and intelligent11 decision. We therefore must conclude that that the court improperly exercised its discretion in admitting defendant’s sect ion 245 conviction. (See generally Muldrow,

supra, 202 Cal.App.3d at p. 644 [a trial court properly exer cises its discretion when it knows and considers all material facts]; People v. Medina (1980) 107 Cal.App.3d 364, 370 [trial court action undertaken “without fu ll knowledge of all the material facts” was an abuse of discretion].) The foregoing conclusion is supporte d by additional circumstances. The admission of the prior conviction was also ba sed on impermissible factors. The trial court determined that the section 245 c onviction was admissible because it involved “severe moral turpitude depriv ation.” The record shows th at in concluding that the conviction involved su ch moral turpitude, the court went beyond the l east adjudicated elements of the offense and considered th e facts underlying the conviction. The court stated that it was “familiar” with defe ndant’s section 245 conviction. The court repeatedly stated that the section 245 c onviction involved the use of a cane, and it commented that introduction of the conviction would be more prejud icial if it involved the use of a knife. The court then reviewed the records for the section 245 conviction, and it immediately declared the offense to be one involving “severe moral turpitude deprivation.” The only reasonable conclusion to be derived from this record is that the court improperly relied on the facts of the section 245 conviction in determining the degree of moral turpitude associ ated with the offense. The court’s impermissible reliance on the facts of the conviction in maki ng its moral turpitude determination—a determination that constituted th e major factor in the court’s decision to admit the section 245 conviction—further supports our conclusi on that the court improperly exercised its discretion. (See generally Hernandez v. Amcord, Inc. (2013) 215 Cal.App.4th 659, 678 [“evidentiary rulings which are based on a mi sunderstanding of the la w are an abuse of discretion”].)12 Finally, the trial court also failed to ap ply the correct legal standard in admitting the prior conviction. Although the court brie fly considered the nearness in time of the prior section 245 conviction, the c ourt did not consider the remaining Beagle factors. Absent from the court’s comments was a ny discussion of the prior conviction’s relationship to defendant’s honesty and vera city, any appreciation of the circumstance that the prior conviction and the current case both involved violations of section 245, and any consideration of the prior conviction’s eff ect on defendant’s choice to testify. Even if the court’s comments regard ing the moral turpitude associ ated with the prior section 245 conviction could be considered a determ ination of honesty a nd veracity, the court nonetheless improperly relied on the facts unde rlying the conviction in making any such determination regarding honesty and veracity. (See, e.g., Mendoza, supra, 78 Cal.App.4th at p. 925 [consider ing the least adjudicated elemen ts of prior convictions, not the facts of those convictions, in determining whether the co nvictions reflected adversely on honesty and veracity].) Thus , the court’s failure to appl y the correct legal standard additionally supports our conclusion that the court improperly exercise d its discretion. In summary, the trial court’s admission of defendant’s prior s ection 245 conviction was based on a misunderstanding of the actua l conviction that the prosecutor sought to admit, impermissible factors, and an inco rrect legal standard. We therefore must conclude that the court abused its discreti on in admitting the conv iction for impeachment
purposes. E. It is Not Reasonably Probable That the Verdict Would Have Been More Favorable to Defend ant Absent the Error State law error in admitting evidence is ge nerally subject to the prejudice standard articulated in People v. Watson (1956) 46 Cal.2d 818 ( Watson ). ( People v. Partida (2005) 37 Cal.4th 428, 439 ( Partida ).) Accordingly, when a trial court erroneously admits a defendant’s prior fel ony conviction to impeach the defendant’s13 testimony, the reviewing court applies the Watson standard. (See People v. Gurule (2002) 28 Cal.4th 557, 609 ( Gurule ) [applying Watson standard]; Castro, supra, 38 Cal.3d at pp. 318-319 [same].) Under the Watson standard, reversal is required only if “it is reasonably probable th e verdict would have been more favorable to the defendant absent the error.” ( Partida, supra, 37 Cal.4th at p. 439, citing Watson, supra, 46 Cal.2d at p. 836.) Here, it is not reasonably probable that the verdict would have been more favorable to defendant absent the err oneous admission of her prior section 245 conviction. Other properly admitted evidence signifi cantly damaged defendant’s credibility. Copious evid ence established that defendant was intoxicated at the time of the charged crimes: defendant testified that she had consumed two to four 40-ounce bottles of malt liquor and was intoxicated, Pa tel testified that defendant was drunk and appeared to be under the influence of an illicit drug, and Officer Kelsoe testified that defendant was too intoxicated to be interviewed. The evidence further demonstrated that defendant’s intoxication impaired her ability to remember the ev ents surrounding the charged crimes—defendant was unable to recall many pertinent facts, and she specifically testified that her alcohol cons umption undermined her “ability to remember the incidents of that day.” Thus, even if the section 245 co nviction had not been admitted, defendant’s intoxication and resu lting memory impairment likely would have caused the jury to reject defendant’s version of events. (See generally People v. Melton (1988) 44 Cal.3d 713, 737 [intoxication is a basis for impeaching credibility].) Moreover, there was additional evidence that cast doubt upon defendant’s testimony. Defendant does not dispute that the trial court properly adm itted her prior conviction for vehicle theft. Given that “theft crimes ne cessarily involve an element of deceit,” the admission of the vehicle theft conviction se verely damaged defendant’s credibility. ( Gurule, supra , 28 Cal.4th at p. 608.) In light of the strong, properly admitted evidence14 showing defendant’s lack of credibility, we conclude that the ju ry likely would have discredited defendant’s testimony and reached the same verdict even if the trial court had excluded defendant’s prior section 245 conviction. (See generally People v. Williams (1999) 72 Cal.App.4th 1460, 1465 [finding any error in admitting the defendant’s prior conviction for resisting an officer harmless where the defendant was properly subject to impeachment w ith a prior burglary conviction].) Additional circumstances support our conclusion. As discussed infra , the trial court properly instructed the ju ry that prior convictions coul d be considered only for the purpose of evaluating a witness’ s credibility. Thus, contrary to defendant’s assertion, the jury could not have constr ued the section 245 conviction as propensity evidence establishing defendant’s guilt. Indeed, the ju ry acquitted defendant of vandalism, thereby showing that the jury did not convict defend ant on the remaining charges merely because she had a prior section 245 conviction. Thes e circumstances, combined with the properly admitted evidence that sh owed defendant’s lack of credibility , compel us to conclude that the jury very likely would ha ve reached the same verdict even if the trial court had excluded defendant’s section 245 conviction. (See generally Castro, supra, 38 Cal.3d at p. 318 [finding error in admitting the defend ant’s prior conviction harmless, in part, because the jury was instructed to consider the prior convic tion “only for the purpose of determining the credibility of the witness”].) For the foregoing reasons, we conclude th at it is not reasonably probably that the verdict would have been more favorable to defendant absent the admission of her prior section 245 conviction. The error in admitting the section 245 conviction therefore does not warrant reversal.15 II. The Trial Court Properly Instructed The Jury Regarding Consideration Of Prior Felony Convictions Pursuant to CALCRIM No. 316, the tria l court instructed the jury regarding consideration of prior felony convictions, as follows: “If you find th at a witness has been convicted of a felony, you may consider that fact only in evaluating the credibility of the witness’s testimony. The fact of a convicti on does not necessarily destroy or impair a witness’s credibility. It is up to you to decide the weight of that fact and whether that fact makes the witness less believable.” Defendant asserts that th e foregoing instruction was ambiguous and misleading because it did “not distinguish between pr oper impeachment use of a prior, and the improper consideration of the prior as evid ence of propensity to commit the crime.” Defendant therefore contends that the inst ruction improperly invited the jury “to use propensity evidence to rej ect the credibility of [defe ndant’s] testimony.” (Italics omitted.) In support of this argument, she cites People v. Brown (1993) 17 Cal.App.4th 1389 ( Brown ). As explained below, defendan t’s argument is meritless. When a defendant asserts that a jury in struction is ambiguous, a reviewing court considers “whether there is a reasonable lik elihood that the jury misunderstood and misapplied the instruction.” ( People v. Smithey (1999) 20 Cal.4th 9 36, 963.) Here, there is not a reasonable likelihood that the ju ry misunderstood and misapplied CALCRIM No. 316. The instruction explic itly informed the jury that it could consider a prior felony conviction only for the purpose of evaluating credibility. Thus, the plain language of the instruction was unambiguous a nd in no way informed the ju ry that it could construe a prior conviction as propensity evidence. We accordingly cannot conclude that the instruction misled the jury regarding the manner in which it could consider a prior conviction. (See generally People v. Yeoman (2003) 31 Cal.4th 93, 139 [a reviewing16 court presumes that jurors understand and corre ctly follow instructions, especially “where the relevant instructional language seems clear and easy to understand”].) Moreover, to the extent that defendan t contends the trial court should have modified the instruction to specify that pr ior felony convictions cannot be considered evidence of propensity to commit a crime, the claim is not cognizable on appeal. “Generally, a party may not co mplain on appeal that an in struction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.” ( People v. Castaneda (2011) 51 Cal.4th 1292, 1348.) Because de fendant failed to request language that amplified or clarified the trial court’s legally correct instruction, we ca nnot find error in the instruction’s silence regarding the relationship betwee n felony convictions and propen sity to commit a crime. Finally, Brown does not require us to find instructional error. In Brown , the appellate court reversed the defendant’s ch ild molestation convic tion because the trial court erroneously admitted, pursuant to Eviden ce Code section 1101, subdivision (b), the defendant’s prior acts of child molestation as evidence of id entity and as evidence that bolstered the credibility of detectives who testified against the defendant. ( Brown, supra, 17 Cal.App.4th at pp. 1394-1398.) In conclu ding that the defendant was prejudiced by the admission of th e evidence, the Brown court reasoned in part: “[The instructions] erroneously told the jury the evidence might be relevant to the issue of identity. The instructions also ambiguously told the jury th ey could consider the evidence in determining ‘[t]he believability of a witness a nd the weight to be given the testimony of each witness.’ This ambiguous language coul d invite a jury to consider a defendant’s propensity to commit a crime; e.g., the jury could inte rpret the language to mean they could consider the evidence presented as to the other molestations as tending to show [the defendant] was a child molest er and therefore his denial of molesting J. was less believable.” ( Id. at pp. 1397-1398.)17 Defendant’s case is distinguishable from Brown . The issue in Brown was whether the trial court prejudicially erred in adm itting evidence pursuant to Evidence Code section 1101, subdivision (b). Brown did not consider the issu e presented here—whether the trial court properly instru cted the jury regarding felo ny convictions introduced for impeachment purposes. Thus, because “case s are not authority for propositions not considered,” Brown does not require us to find instructional error. ( People v. Ault (2004) 33 Cal.4th 1250, 1267, fn . 10.) Furthermore, even if we relied on the Brown court’s comments regarding the ambiguous nature of th e instruction, we would still conclude that
Brown is inapposite. The Brown instruction employed different language than the instruction in defendant’s case. The Brown instruction permitted th e jury to consider prior convictions in determining not only th e believability of a witness, but also the weight to be afforded to a witness’s testimony. The Brown instruction also informed the jury that prior convictions were relevant to the issue of identity. Here, in contrast, the instruction specifically informed defendant’s jury that prior felony convictions could be considered only for the purpos e of evaluating a witness’ s credibility. Because the Brown instruction employed different language that permitted much broader consideration of felony convictions, the instructi on here is not analogous to the Brown instruction. Brown therefore does not compel us to conclude that the trial court in correctly instructed defendant’s jury. III. Defendant’s Sentence Must Be Modified Defendant contends that s ection 1170.1 requires us to reduce the one-year prison term for the section 12022, subdivision (b)(1 ) weapon enhancement to a term of four months. Defendant additionally argues that the 30-day term for the brandishing conviction must be stayed pur suant to section 654. The Pe ople agree that the sentence should be modified in the fash ion requested by defendant.18 Section 1170.1, subdivision (a) provides, in relevant part: “The subordinate term . . . shall consist of one-third of the middle te rm of imprisonment prescribed for each other felony conviction for which a consecutive te rm of imprisonment is imposed, and shall include one-third of the term imposed for an y specific enhancements applicable to those subordinate offenses.” Here, the crimin al threat conviction and the attendant section 12022, subdivision (b)(1) weapon en hancement comprised th e subordinate term of defendant’s sentence. Thus, section 1170.1 subdivision (a) required the trial court to reduce the prescribed one-yea r term for defendant’s sec tion 12022, subdivision (b)(1) enhancement to a four-month term. We accordingly modify the term to a four-month

term. Section 654, subdivision (a) provides, in re levant part: “An act or omission that is punishable in different ways by different pr ovisions of law shall be punished under the provision that provides for the longest pote ntial term of imprisonm ent, but in no case shall the act or omission be punished under more than one provision.” “[S]ection 654 applies to situations in whic h several offenses are committe d during a course of conduct deemed to be indivisible.” ( People v. Wooten (2013) 214 Cal.App.4th 121, 130.) Here, it is undisputed that defendant’s act of brandishing the knife and her threats against Patel were part of an indivisible course of cond uct. Because defendant was sentenced to an eight-month term for the criminal threat conviction, section 6 54 required the trial court to stay the 30-day term for the brandishing convi ction. We therefore will stay the 30-day

term.19 D ISPOSITION The one-year prison term for the sec tion 12022, subdivis ion (b)(1) weapon enhancement is reduced to a te rm of four months. The 30-d ay term for the brandishing conviction is stayed. As so modi fied, the judgment is affirmed.

__________ _______________ _____________ RUSHING, P.J.

WE CONCUR:

___________________ _________________ PREMO, J.

___________________ _________________ ELIA, J.