Filed 5/28/21 P. v. Hernandez CA2/2

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California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

JESUS ANTONIO HERNANDEZ,

Defendant and Appellant.

 B302875

 (Los Angeles County

 Super. Ct. No. VA148212)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Raul Anthony Sahagun, Judge. Modified 

and affirmed with directions.

Stanley Dale Radtke, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Xavier Becerra and Rob Bonta, Attorneys General,

Matthew Rodriquez, Acting Attorney General, Lance E. Winters, 

Chief Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, Scott A. Taryle, Supervising Deputy 

Attorney General, Colleen M. Tiedemann and Rene Judkiewicz, 

Deputy Attorneys General, for Plaintiff and Respondent.
2

Appellant Jesus Antonio Hernandez was charged with an 

assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1),1

namely a car, on Susan Enciso (Susan), second degree burglary 

(§ 459), and felony vandalism (§ 594, subd. (a)). The burglary 

charge was dismissed when the trial began.

A jury found appellant not guilty of assault but guilty of 

felony vandalism. On November 14, 2019, the imposition of the 

sentence was suspended and appellant was placed on probation 

for five years on the condition he serve 365 days in county jail. 

He received credit for 34 days in custody. Various fines and fees 

were imposed, which are not challenged on appeal. The appeal is 

from the order granting probation, which is deemed a final 

judgment for the purposes of the appeal. (§ 1237, subd. (a).)

We reject appellant’s contentions that the prosecutor 

committed misconduct, that his counsel was ineffective, and that 

the evidence does not support the conviction. However, we agree 

with the claim propounded in appellant’s supplemental brief that 

Assembly Bill No. 1950 (2019–2020 Reg. Sess.) (AB 1950), which 

amended section 1203.1 effective January 1, 2021, to provide that 

the probationary period shall be two years, applies to appellant’s 

case. We reduce the probationary period from five to two years 

and otherwise affirm the judgment.

FACTS

1. The People’s Case

Appellant was employed as a forklift operator by Custom 

Goods in Carson. On Friday, July 13, 2018, around 10 a.m., he 

entered the Nexem Staffing (Nexem) office at 4100 South Street 

in Lakewood. Nexem is an employment agency which recruits 

___________________________________________________________

1 Statutory references are to the Penal Code.
3

workers for employers. The two Nexem employees present when 

appellant entered the office were Susan, a recruiter, and Y.G., 

the branch manager.

Appellant walked up to Y.G., who was at the office counter. 

Appellant appeared to be upset. He asked for his paycheck 

without engaging in any preliminaries. Y.G. asked for his 

identification in order to check if they had his check in the office. 

If any of Nexem’s “associates” (meaning employees) are not going 

to their place of work on Friday, their paycheck will be held at 

Nexem. Y.G. called appellant’s job site and learned that 

appellant’s check was at his job site. Y.G. was told that appellant 

was supposed to report for work but had not showed up. 

According to Y.G., appellant’s job site in Carson is about 25 

minutes of driving time from the Nexem office in Lakewood.

Y.G. told appellant that his check was not at Nexem but 

was at the job site. She told appellant he had two choices. He 

could go to the work site and pick up his check there or he could 

wait until Monday to pick up the check at Nexem, in which case 

the check would have to be redelivered to Nexem that evening 

since Y.G. could not leave the office.

Y.G. could tell from his body language and tone of voice 

that appellant had become more upset. He told Y.G. that he 

needed his “f***” check. Y.G. repeated that since he was supposed 

to be at work today, his check had been sent there. Appellant 

said he didn’t want to go back to the work site because he was 

going to get fired “anyway.” Appellant left the Nexem office. As 

he left, he said, “I see how you people are.” Y.G. watched 

appellant walk to his car and get inside. She returned to her 

desk. Y.G. remarked to Susan that appellant “looked kind of 

upset.”
4

Appellant returned in about 15 minutes. According to 

Susan, he was now really upset and he also seemed very 

frustrated. Y.G. asked him what happened and he said they 

didn’t have his “F*** check.” Y.G. said, “So you’re, like, telling me 

that you went all the way to Carson in ten, 15 minutes, then 

came back?” Appellant replied, “Yeah. Give me my f*** check.” 

Y.G. repeated the two options that appellant had. Appellant 

said, “F*** you people. I want corporate’s number.” Y.G. gave 

him the number. Appellant walked out with a smirk on his face.

Y.G. saw appellant getting into his car, which was a white 

Pontiac minivan. She started walking back to her desk when she 

heard the screech of tires. She saw “his taillights blowing 

through the window.” Appellant’s car hit the printer which was 

by the window.2 The rear of the car entered the building to a 

depth of approximately two feet. The impact of the vehicle 

smashed two large windows and damaged a beam inside the 

office. Debris from the vehicle was left inside the building, 

including a taillight from the car. After the impact, appellant 

“just drove off.” The damages amounted to $9,550.

As appellant was driving away, Y.G. called 911. While Y.G. 

was on the 911 call, a man from the business across the street 

ran into the Nexem office and said he had witnessed the whole 

incident. He had taken a video of it which he showed Y.G.

Sergeant Leon Reynolds of the Los Angeles County

Sheriff’s Department responded to the 911 call. He inspected the 

damage to the premises and interviewed Y.G. and Susan. He 

obtained the minivan’s license plate number from the video. The 

video also showed appellant, whom both Y.G. and Susan

___________________________________________________________

2 The printer was large. It was estimated to weigh 1,500 

pounds.
5

identified as the person who had been in the Nexem office.

Reynolds obtained appellant’s name and address from the 

Department of Motor Vehicles. He drove to appellant’s residence, 

which was in a trailer park.

Reynolds saw the minivan parked in the access road to 

appellant’s trailer. Reynolds took some photographs of the 

minivan, which apparently showed the damage to the vehicle.

Reynolds was approaching the door to appellant’s trailer 

when the door opened and appellant stepped out. Appellant’s 

mother stood in the doorway and then stepped back.

Reynolds asked appellant what his name was. Appellant 

handed him an identification card. Reynolds asked how his or his 

mother’s vehicle had been damaged. Appellant said, “That’s why 

you’re here.” Appellant went on to say that “things are f*** up; 

that he [appellant] was trying to get his check. His girlfriend had 

broken up with him. And he really doesn’t remember anything 

else.” Reynolds placed appellant under arrest.

2. The Defense Case

Appellant took the stand and testified in his own defense. 

He did not do well. His answers were frequently garbled, not 

responsive to the question asked, and from time to time not 

credible. Given that credibility was one of the most important 

issues in this case, appellant did himself much harm by first 

insisting, contrary to all the physical evidence, that he did not 

crash into the building and then reluctantly admitting that this 

actually happened. We cover this in detail below.

We first summarize his testimony on direct examination 

since that was the defense he was trying to mount.

Appellant obtained work as a forklift operator through 

Nexem. He had never picked up his paycheck at Nexem. On the 
6

Tuesday preceding Friday, July 13, 2018, he was told at Custom 

Goods not to come in because there was no work. He did not 

work on Wednesday, Thursday, or Friday. On Friday, July 13, 

2018, he went to Nexem to pick up his check because, not having 

worked since Wednesday, he assumed that his check would be at 

Nexem. Normally he received his paychecks at the worksite from 

Hilda.

When he arrived at Nexem, he said, speaking to a woman, 

“ ‘Good morning. My name is Jesus Hernandez. I’m here to pick 

up a check.’ ” She asked him where he worked. When he told her 

it was in Carson, she replied that there was no company in 

Carson that Nexem was familiar with. Appellant gave the 

woman his identification so she could see if there was a check for 

him. She asked him to give her a second and then gave him back 

his I.D., apparently telling him that his check was at the 

worksite. He said okay and thanked her.

He left and went to the worksite in Carson. He was looking 

for Hilda but could not find her. He went back to Nexem to find 

the lady with the check. At Nexem, he was told that Hilda was at 

the worksite. Appellant felt that the woman at Nexem was not 

helping him. He asked for her name and for the headquarters 

number. Appellant testified that he was not upset, he was “more 

like lost.” He then contradicted himself by testifying that he was 

upset because he wasn’t being helped. He repeatedly denied 

using the “f” word, stating he never used that word.

He got into his car. “I put my seat belt on, turn on the car, 

and I was very in a hurry.” He put the gear in reverse and 

“accelerated slightly a little bit. [¶] . . . I look back forward. I 

put the reverse, I looked back. I look back forward, I accelerated 

backwards, and then I held on to the handle and I couldn’t let go 
7

of the acceleration. My intent was to slide the handle all the way 

down to the ‘D.’ ” The car moved backward at no more than at 

five miles an hour.

When asked whether he realized that there was anything 

wrong, appellant replied that he was shaking. Asked why he was 

shaking, appellant was unable to give a cogent reply.3

He accelerated, trying to put the gear on “D.” He did not 

realize he had backed into a building, he thought he had hit a 

“sidewalk bump.” That scared him a lot. He felt “physically 

embarrassed and scared. Really, really embarrassed.”

“I stopped the car, I looked back and I see no damages. I 

felt as if I make a collision. I didn’t make contact with the—with 

the agency.” There was broken glass from his car. “I looked 

around and I saw everything fine except for myself and being 

embarrassed and feeling helpless, I left.” He did not get out to 

look at the damage because he was embarrassed. He did not 

think he had hit the building.

Appellant admitted that the video showed him driving the 

car.

Although he initially wanted to drive to Carson to pick up 

his check, he wound up going home. At home, he looked at the 

damage to the car and he thought that there was a chance that 

he had made contact with the building. He began to think that 

“cops are gonna be involved” because of the damages to his car.

___________________________________________________________

3 “[Counsel:] Why were you shaking? [¶] [Appellant:] I 

have no idea. I was walking out—as soon as I asked—I don’t 

know her name again—as soon as I asked her for her name and 

the number to headquarters, I wasn’t able to talk I felt—I said, 

thank you, but I said I’m gonna call, thank you, but I wasn’t able 

to say that. I was like—”
8

He was also concerned about the video and thought the video 

might cause the police to look for him. His lawyer asked whether 

he thought he had done something wrong. He replied: “Yes. 

My—my—um, my whole perspective changed as when I was 

aware of—aware of the car damages on mine, I was like, okay, 

there is possibly a chance that I did make contact with the 

agency’s establishment.” When his mother asked him what had 

happened, he kept telling her he didn’t know because he was so 

shaken.

Appellant stated he had never planned to back into the 

building and, when asked whether he had intended to do so, he 

answered no.

Appellant pleaded guilty on June 27, 2018, to one count of 

misdemeanor domestic violence.

Cross-examination brought out very few additional facts. 

For the most part cross-examination amounted to an elaboration 

of appellant’s protestations.

Appellant was 23 years old in July 2018. He has been 

driving since he was 16. He claims not to have been in any traffic 

collisions.

Appellant thought that everything Y.G. had testified to was 

a lie. He denied seeing Y.G. and Susan at the Nexem office. His 

claim that he had not seen Y.G. was particularly unconvincing.4

___________________________________________________________

4 “[Prosecutor:] You didn’t see either one of them or you 

saw one? Which is it? [¶] [Appellant:] Never. I never seen 

anyone. I—I always try to make, well, squinting through the 

glass to try to make contact. I didn’t even know if I was even 

speaking to a woman. [¶] [Prosecutor:] You didn’t know you 

were speaking to a woman? [¶] [Appellant:] Could have been a 

man.”
9

He claimed to have been in a great mood when he initially 

entered the Nexem office.

When the van hit the curb, “[Appellant:] I let go of 

everything. [¶] [Prosecutor:] So now you have lost control of the 

car? [¶] [Appellant:] Completely.” A few moments later, 

appellant stated that he had “malfunctioned. I wasn’t in my 

right state of mind. I was such in a hurry.”

DISCUSSION

I. THE PROSECUTOR DID NOT

COMMIT MISCONDUCT

We note at the outset appellant’s general concession that

trial defense counsel did not object to any of the claimed acts of 

misconduct. As respondent correctly points out, claims of 

prosecutorial misconduct are not preserved for appeal if the 

defendant fails to object and seek a curative admonition, if an 

objection and admonition would have cured the injury. (People v. 

Crew (2003) 31 Cal.4th 822, 839.) However, since appellant also 

claims that his counsel was ineffective because he failed to object 

to various acts of misconduct, we examine the substantive merits 

of appellant’s claims of misconduct. We find that none of the 

claims of misconduct are substantively meritorious.

The basic flaw of all the misconduct claims is that they are 

not supported by the facts of record.

1. The prosecutor did not accuse appellant of lying 

during cross-examination

Appellant contends that instead of questioning him about 

the evidence, the prosecutor “directly accused him of lying.” The 

exchange upon which this contention is based was as follows:

“[Prosecutor:] Okay. You heard the testimony that Ms. 

[Y.G.] said otherwise and that you said, “I 
10

want my fucking check. Give me my fucking 

check.” Is that right? You heard that?

“[Appellant:] I heard them say that. That never happened.

“[Prosecutor:] So you’re saying that that’s a lie?

“[Appellant:] Yes. 

“[Prosecutor:] So, the entire testimony that Ms. [Y.G.] gave 

regarding that first incident is incorrect? Is 

that what you’re saying?

“[Appellant:] What she wrote on her statement—and she 

has spoken up here herself—everything is a lie.

“[Prosecutor:] But. You’re telling the truth? 

“[Appellant:] Yes.

“[Prosecutor:] So you never used any curse words during that 

first incident?

“[Appellant:] No. I have a very professional demeanor. I am 

very respectful.”

Appellant states that “[a]lthough the prosecutor did not use 

the word ‘perjury’ when questioning Mr. Hernandez, that was 

clearly her point.” We do not agree.

Appellant had just accused Y.G. of lying in no uncertain 

terms. According to appellant, “everything is a lie” that Y.G. 

uttered. Specifically, Y.G.’s testimony that appellant had used 

the “f” word in asking for his check was a lie; it “never happened.”

Given this rather explosive testimony, the prosecutor first 

established with one follow-up question that appellant actually 

meant what he said. The next question was also a logical followup in that it made sense to discover whether appellant was 

limiting his opinion to only one part of Y.G.’s testimony or was he

applying it to its entirety. The latter being the case, the 

prosecutor asked appellant if, contrary to Y.G., he was telling the 
11

truth. This was clearly a question (“But. You’re telling the 

truth?”) and not an accusation that appellant was lying. 

Although it is possible that the question was asked with a touch 

of irony,5 it is too much to turn the question on its head and 

conclude it was a charge of perjury. In any event, the question 

actually served appellant’s interests. The question gave 

appellant an opportunity to maintain that he, unlike Y.G., was 

telling the truth. He availed himself of that opportunity and 

stated that he was telling the truth.

Appellant goes on to claim that the question was 

argumentative and was therefore improper. “An argumentative 

question is a speech to the jury masquerading as a question. The 

questioner is not seeking to elicit relevant testimony . . . [t]he 

question may, indeed, be unanswerable.” (People v. Chatman 

(2006) 38 Cal.4th 344, 384.) In this case, the question “But. 

You’re telling the truth?” was an inquiry whether, unlike Y.G., 

appellant was telling the truth. The question was perfectly 

susceptible to an answer, in fact it was an opportunity for 

appellant to maintain that he was telling the truth.

Appellant would like this court to interpret the question 

“But. You’re telling the truth?” as an accusation that appellant 

was committing perjury. This we will not do. The question is 

simple enough, it is straightforward and requires no 

interpretation. It cannot be construed as diametrically opposed 

to its plain text.

___________________________________________________________

5 There is of course no way of knowing what the tone of the 

question was.
12

2. The prosecutor did not ask appellant whether 

other witnesses were lying

We address in the next section appellant’s argument that 

the prosecutor committed misconduct in her closing argument

when she attacked appellant’s credibility. This is an entirely 

different issue from the question whether it was misconduct to 

ask appellant, as a witness on the stand, whether another 

witness was lying.

Appellant contends that the prosecutor asked him “to 

comment on the truthfulness of another witness.” Citing United 

States v. Sanchez (9th Cir. 1999) 176 F.3d 1214, 1220, appellant 

claims that the prosecutor’s questions asking appellant whether 

another witness was lying infringed the jury’s right to make 

those credibility decisions.

The views are divided whether it is improper to ask a 

defendant-witness whether other witnesses were lying. As noted 

in People v. Foster (2003) 111 Cal.App.4th 379, 384–385, some 

jurisdictions have held such questions to be always 

impermissible, other jurisdiction have held such questions not to 

be misconduct, and yet another school of thought is that they are 

proper under limited circumstances and must be considered in 

their context. The cases discussed in Foster, supra, 111 

Cal.App.4th 379 are generally referred to as the “were they lying” 

cases, and we will follow suit. (See People v. Chatman, supra, 38 

Cal.4th at pp. 383–384.)

It was appellant who volunteered that Y.G. was lying. 

When the prosecutor asked whether he had heard Y.G.’s

testimony, it was appellant who said, “I heard them say that. 

That never happened.” Thus, that a witness was lying was a 

matter introduced by appellant, not the prosecutor.
13

The follow-up question by the prosecutor “So you’re saying 

that was a lie?” was just that, an attempt at clarifying what 

appellant’s testimony was. The second follow-up question6 was 

again nothing more than an attempt to clarify what appellant 

was claiming, i.e., was he claiming that only a part or all of Y.G.’s

testimony was false. The question made sense since appellant 

had reacted only to Y.G.’s statement that appellant had told her 

to give him the “f*** check.” At that, the prosecutor did not ask in 

the second question whether Y.G. was lying, she asked whether 

Y.G.’s testimony was “incorrect.”

That Y.G. was lying was brought up by the testifying 

defendant, not the prosecutor, and the two questions the 

prosecutor asked were only follow-up questions to clarify 

appellant’s testimony on this subject. Thus, even under those 

cases that have held that “were they lying” questions addressed 

to a testifying defendant are improper, there simply was no such 

question propounded by the prosecutor. As far as United States 

v. Sanchez, supra, 176 F.3d 1214 is concerned, our Supreme 

Court advises us that in these “were they lying” cases “reliance 

on federal cases is misplaced” because the federal cases involve 

applications of the federal rules of evidence, which are not 

binding on us. (People v. Chatman, supra, 38 Cal.4th at p. 381, 

fn. 15.)

We conclude that the prosecutor did not commit any 

misconduct in the portion of appellant’s cross-examination cited 

by appellant.

___________________________________________________________

6 “So the entire testimony that Ms. [Y.G.] gave regarding 

the first incident is incorrect? [¶] Is that what you’re saying?”
14

3. The prosecutor did not commit misconduct in 

arguing that appellant was not telling the truth

Appellant contends that the prosecutor accused him of 

“chunking up the duces” without any supporting evidence.7 In 

addition, appellant claims that the prosecutor told the jury that 

appellant was lying when he claimed to have gone back to the 

worksite for his check. Appellant also claims the prosecutor 

accused him of lying about not using the “f” word when asking for 

his check.

“A prosecutor engages in misconduct by misstating facts or 

referring to facts not in evidence, but he or she enjoys wide 

latitude in commenting on the evidence, including urging the jury 

to make reasonable inferences and deductions therefrom.” 

(People v. Coffman and Marlow (2004) 34 Cal.4th 1, 95.) 

“Referring to testimony as ‘lies’ is an acceptable practice so long 

as the prosecutor argues inferences based on the evidence and 

not on the prosecutor’s personal belief.” (People v. Sandoval 

(1992) 4 Cal.4th 155, 180.)

Appellant is mistaken when he claims that the prosecutor 

accused him of “chunking up the duces” without referring to the 

evidence. The prosecutor was arguing that if it was really an 

accident, as appellant claimed, he would have stopped and 

___________________________________________________________

7 Our research into what “chunking up the duces” means 

led us to the Neologisms database of Rice University which 

informs us that this can mean giving the peace sign with two 

fingers or declining an invitation to attend a function. As we 

discuss below, given that the prosecutor was arguing that if this 

was an accident, appellant would have stopped to say he was 

sorry, we interpret the prosecutor to be saying that appellant 

chose to leave the site without an explanation, which is certainly 

true.
15

apologized and called the police; and he would have told his 

mother that he had done something wrong, was sorry and asked 

for forgiveness. But that is not what appellant did; he left the 

site without any explanation and failed to tell his mother what 

had happened. As far as lying about going back to the worksite 

was concerned, the prosecutor argued that appellant claimed he 

made the round-trip in 20 minutes, an impossibility, which was 

an indication he was lying. Finally, as far as the “f” word is 

concerned, the prosecutor pointed out that two witnesses testified 

that he did use that word, which again showed he was not telling 

the truth.

The prosecutor based her characterization of appellant as a 

liar on the evidence, and not on her personal beliefs.

Unfortunately, appellant also attacks the prosecutor’s 

argument on grounds that are not supported by the record. Thus, 

appellant states, without citing to the record, that instead “of 

attacking the evidence regarding Mr. Hernandez’s actual defense 

that the vehicle malfunctioned,

[8] the prosecutor simply told the 

jury that Mr. Hernandez’s only defense was to lie.” There is no 

support for this in the record.9

Contrary to appellant’s assertion, it is permissible for a 

prosecutor to argue that a testifying defendant lied, as long as 

___________________________________________________________

8 It takes considerable good will to read this defense into 

appellant’s testimony.

9 After the quoted sentence, the opening brief states: 

“According to the prosecutor, if Mr. Hernandez confirmed the 

prosecution’s theory of the case, he would be found guilty, so he 

obviously lied.” This sentence cites to reporter’s transcript 700,

but there is no support for this sentence in reporter’s transcript

700.
16

this claim is tied to the evidence and not the prosecutor’s 

personal opinion. In arguing from time to time that appellant 

had lied, the prosecutor in this case complied with this standard.

4. The prosecutor did not denigrate defense counsel

During defense counsel’s closing argument, he described an 

experience he had with his father when he was young. They were 

watching a television show on the Audi’s sudden acceleration 

issue. He thought that his father planned to give him “a really 

nice car,” but he ended up with his father’s old diesel Mercedes. 

When counsel backed up the car, it did not initially move, so he 

“floored” the accelerator pedal. To his surprise, “the car lurched 

backwards very, very quickly,” and counsel ended up hitting the 

car behind him. Defense counsel argued:

“I think in our society, especially with what we see in the 

news and on TV and social media, we’re in a state where we feel 

like we make decisions by committee and the majority rules. So 

if 50.5 percent vote for a candidate, that’s the candidate that wins 

and that person is the winner and the other person is an absolute 

loser.”

Counsel asked the jurors to “please respect one another” if 

they disagreed with each other, and to “[u]nderstand that there 

are differences of opinion.” He urged the jurors that if any of 

them have “a fundamental disagreement, you’re entitled to . . . 

stick to your position. You do not have a responsibility of . . .

delivering a verdict either way.”

During the prosecutor’s subsequent rebuttal argument, she 

commented on defense counsel’s closing argument by stating as 

follows:

“You know why you keep hearing about Audi’s and TV 

shows and diesel cars and voting candidates and juror 
17

disagreements? It’s because he stayed clear of his client’s 

statements because he knows it’s a bunch of baloney. He can’t 

get up here with a straight face and say believe what he said 

because it’s beyond what’s true because it makes no sense.”

This was not an attack on defense counsel’s integrity, 

which is the focus of our inquiry. (See People v. Medina (1995) 

11 Cal.4th 694, 759 [reviewing court will determine if prosecutor 

demeaned defense counsel’s integrity].) Rather, the message was 

that defense counsel exercised good judgment in not focusing on 

his client’s testimony and instead spoke of things that had no real 

relationship to the case. Whatever the merits of this observation 

may be, it came across as something of a compliment and 

certainly not as a personal attack on defense counsel.

What concerns us is the sentence “he stayed clear of his 

client’s statement because he knows it’s a bunch of baloney.” It is 

improper for a prosecutor to argue that defense counsel believes 

his client is guilty. (People v. Bell (1989) 49 Cal.3d 502, 537.) 

The foregoing sentence was arguably subject to an objection, even 

if the prosecutor stopped short of saying the defense counsel 

believed his client to be guilty; it was his “statement” that was 

“baloney.” Although an objection could have been interposed, it 

was the better course to let the matter go without an objection. 

An objection would have drawn the jury’s attention to defense 

counsel’s attitude toward the case, which was not a subject that 

held any promise for appellant. It is also very likely that, in the 

end, the objection would have been overruled, which would have 

made matters needlessly worse.

We conclude that the facts simply do not support the claims 

of misconduct.
18

II. THE CONVICTION OF FELONY VANDALISM

IS SUPPORTED BY SUBSTANTIAL EVIDENCE

Appellant contends that there is “insufficient evidence to 

establish that this incident was anything more than [an] 

unfortunate accident. The necessary element of malice in this 

case was not proven beyond a reasonable doubt.”

“The words ‘malice’ and ‘maliciously’ import a wish to vex, 

annoy, or injure another person, or an intent to do a wrongful act, 

established either by proof or presumption of law.” (§ 7, subd. 

(4).) Malice in law may be presumed or implied from the 

intentional doing of the act without justification or excuse or 

mitigating circumstances. (People v. Kurtenbach (2012) 204 

Cal.App.4th 1264, 1282, citing In re V.V. (2011) 51 Cal.4th 1020, 

1028.) Implied malice does not require hatred or enmity toward 

the person injured. (People v. Bender (1945) 27 Cal.2d 164, 180.)

The physical evidence is uncontroverted. The minivan 

driven by appellant crashed into the Nexem office and penetrated 

to a depth of two feet. It was very probable that it was stopped 

by a heavy printer inside the office. The stipulated amount of 

damages done was considerable ($9,550).

The only issue left was whether appellant deliberately and 

intentionally backed into the Nexem office. On this issue, 

appellant did not help himself as a witness. His description of 

the course of the car at the critical moments was vague and 

evasive.10 Although he had the opportunity to say so, he did not 

___________________________________________________________

10 He got into his car. “I put my seat belt on, turn on the 

car, and I was very in a hurry.” He put the gear in reverse and 

“accelerated slightly a little bit. [¶] . . . I look back forward. I 

put the reverse, I looked back. I look back forward, I accelerated 

backwards, and then I held on to the handle and I couldn’t let go 
19

state at this point that it was an accident. Nor did he have an 

explanation for the evident force with which he backed up. If he 

had given a cogent explanation for how it happened that the car 

ended up two feet inside the Nexem office, it is very probable that 

the jury would have exonerated him. As appellant points out, the 

jury did wrestle with the issue of vandalism but, in the end, it 

concluded that appellant had intentionally backed the van into 

the Nexem office.

This conclusion was supported by circumstantial evidence. 

Despite appellant’s protestations, there is evidence from two 

witnesses that he was angry and upset and even abusive in his 

demand for his check and that he left the Nexem office both times 

angry and upset. In fact, it is not too much to say that according 

to the testimony of Y.G. and Susan appellant was not just angry 

but furious when he left Nexem the second time. There is of 

course no way that he could have traveled to the worksite and 

back in 15 minutes, which means that instead of trying to get his 

check, he was nursing his anger. Particularly revealing is that 

he refused to tell his mother what had happened when it was 

plain as day that he had crashed the car into something. If there 

had been any kind of reasonable explanation for what had 

happened, he surely would have told her what that explanation 

was. And, as noted, the lack of a credible explanation by 

appellant of the supposed mechanics of the “accident” is a further 

circumstance that militates against him.

Our task at this point is not to retry the case but to 

determine if there is substantial evidence in the record to sustain 

___________________________________________________________

of the acceleration. My intent was to slide the handle all the way 

down to the ‘D.’ ” The car moved backward at no more than at 

five miles an hour.
20

the judgment. “[I]t is the jury, not the appellate court, which 

must be convinced of his guilt beyond a reasonable doubt. 

[Citation.] We review the entire record in the light most 

favorable to the judgment and affirm the convictions as long as a 

rational trier of fact could have found guilt based on the evidence 

and inferences reasonably drawn therefrom.” (People v. Millwee 

(1998) 18 Cal.4th 96, 132.)

There is direct and uncontroverted evidence that appellant 

crashed into the Nexem office. There is circumstantial evidence 

of malice in the form of his anger, his evasive description of the 

“accident,” his failure to explain the mechanics of the supposed 

failure that caused the van to back into the building and telling 

his mother he didn’t know what happened, which was of course a 

lie. All of these circumstances show that he intentionally backed 

into the building without any justification or excuse, which 

means he acted with malice. (People v. Kurtenbach, supra, 204 

Cal.App.4th at p. 1282.)

III. COUNSEL WAS NOT INEFFECTIVE

Since we have concluded that the prosecutor did not 

commit any acts of misconduct that could have drawn valid 

objections by defense counsel, appellant’s contention that counsel 

was ineffective because he did not lodge any objections to these 

alleged errors is moot. We therefore decline to address this 

contention. (Jordan v. County of Los Angeles (1968) 267 

Cal.App.2d 794, 798 [reviewing court will not consider moot 

point].) We therefore have no reason to conclude anything other 

than that defense counsel was not ineffective.

IV. REVIEW OF THE CONFIDENTIAL FILE

On October 23, 2019, the superior court reviewed a 

confidential file submitted by the People and found that there 
21

was nothing discoverable in that file. We have reviewed that 

sealed file at appellant’s request and confirm that it did not 

contain any discoverable material.

V. IN ACCORDANCE WITH ASSEMBLY BILL 

NO. 1950, THE TERM OF APPELLANT’S 

PROBATION IS REDUCED FROM FIVE YEARS 

TO TWO YEARS

While this appeal was pending, AB 1950 took effect on 

January 1, 2021. (Stats. 2020, ch. 328, § 2.) AB 1950 reduced the 

maximum probation term for most felony offenses to two years.

(§ 1203.1, subds. (a) & (m).) Because the reduction in the length 

of the probation term has an ameliorative effect, we presume that 

our Legislature intended to make its effect retroactive to nonfinal 

convictions in the absence of an express savings clause specifying 

a contrary intent. (In re Estrada (1965) 63 Cal.2d 740, 744–747.)

AB 1950 contains no such savings clause. Therefore, in 

accordance with AB 1950, the maximum term of appellant’s 

probation as to count 3 is now two years. (Accord, People v. Sims

(2021) 59 Cal.App.5th 943, 955–964 [reaching same result]; 

People v. Quinn (2021) 59 Cal.App.5th 874, 884–885 [same].) We 

consequently remand the matter to the trial court to correct the 

minute order governing the length and terms of probation to 

reflect a two-year term of formal probation. Should either the 

respondent or the appellant wish to make further motions 

regarding the length or terms of probation, each may file the 

appropriate motion(s) with the trial court.
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DISPOSITION

The term of probation imposed as to count 3 is reduced 

from five years to two years. The trial court is directed to correct 

the minute order to reflect the imposition of a two-year term of 

formal probation, and to notify the Los Angeles County 

Department of Probation of the change to appellant’s 

probationary term. As modified, the judgment is affirmed.

NOT TO BE PUBLISHED.

LUI, P. J.

We concur:

CHAVEZ, J.

HOFFSTADT, J.