1

Filed 1/12/21 P. v. Shotwell CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

IMMANUEL PRINCE SHOTWELL,

Defendant and Appellant.

C089673

(Super. Ct. No. 17FE019335)

Defendant Immanuel Prince Shotwell appeals from his convictions stemming from

an assault and carjacking, two separate unlawful taking and driving of vehicles, and 

dissuading a witness or victim from reporting a crime or causing a complaint to be 

prosecuted. On appeal, he contends: (1) the trial court erred in denying his motion to

sever the trial of the counts; (2) the trial court erred in excluding evidence that someone 

else assaulted the victim and stole his vehicle; (3) the trial court erred in denying his 

motion for mistrial; (4) the evidence is insufficient to support his conviction for 

dissuading a witness or victim by threat of force; (5) the trial court abused its discretion 
2

in denying his Romero1 motion; (6) the trial court erred in imposing a $5,000 restitution 

fine under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas); and (7) the 

cumulative effect of the errors requires reversal. We will order the trial court to correct 

the abstract of judgment and otherwise affirm. 

FACTUAL AND PROCEDURAL BACKGROUND

A. June 2017 assault and carjacking

During the March and April 2019 trial, W.M. testified that on June 9, 2017, 

defendant came to visit him at his residence in a trailer park. Although W.M. did not 

know defendant by name, W.M. told police he had met defendant twice before. During 

the visit, defendant promised to give W.M. money to replace a counterfeit $100 bill that 

defendant’s girlfriend, Shayna Wimberly, had given to W.M.

2 Defendant was pleasant;

W.M. invited him inside and the two began talking. 

W.M. started working on his motorhome and defendant sat down next to him. 

W.M. agreed to allow defendant to borrow his phone, and defendant got into a heated 

discussion with the person on the other end of the line. Defendant hung up and 

demanded W.M. take him to an undisclosed location. Even though W.M. had previously 

given defendant rides, W.M. refused this time. Defendant then asked if he could use 

W.M.’s truck, but W.M. again said no. In response, defendant picked up a hammer that 

was lying nearby and hit W.M. once in the head. W.M. yelled for help and tried to retreat 

to the back of his motorhome, but defendant again hit him on the head with the hammer. 

W.M. fell to the floor, and his keys fell out of his pocket. Defendant grabbed the keys, 

hit W.M. three or four more times, and ran out of the motorhome. W.M. stumbled out of 

1 People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).

2 Wimberly was defendant’s codefendant during trial. Her case is not at issue in 

this appeal. 
3

his motorhome, watched defendant drive off in W.M.’s truck, and then collapsed. 

Defendant drove through a locked gate to escape the trailer park. 

Police and paramedics arrived around 10:30 p.m. Despite suffering injuries to his 

head and arm from the assault and fall, W.M. refused to go to the hospital for treatment 

because the keys to his motorhome were on the keychain defendant stole, and W.M. 

feared someone would steal his possessions. Photos of W.M.’s injuries were shown to 

the jury. Police found W.M.’s truck the next day at a local train station. 

The night of the incident, W.M. told police the person who had given him the fake 

$100 bill—Wimberly—was the attacker’s “girl.” W.M. confirmed this was a true 

statement during trial. Approximately six weeks after the incident, W.M. met with a 

police detective but was unable to identify defendant in a photo lineup. W.M. identified 

defendant and Wimberly during trial. 

A neighbor of W.M. testified that on the night of the incident he chased a man 

who had run out of W.M.’s motorhome. The man jumped into W.M.’s truck. The 

neighbor reached into the truck to try to pull the key from the ignition, but he had to let 

go when the man started driving away. The neighbor was unable to identify defendant as 

the thief. 

B. June 10, 2017 taking of defendant’s stepfather’s vehicle

Defendant’s mother and stepfather each testified during trial that they were unable 

to recall the events of June 10, 2017, or that they lied to police about the incident during 

the investigation. Mother testified the event was fresher in her mind when she spoke to 

Detective Dave Putnam on August 9, 2017. Mother testified she did not call 911 during 

the incident because it did not seem like stepfather was in danger. 

Putman testified the mother and stepfather were both cooperative during their 

interviews on August 9, 2017. In Putnam’s opinion, the mother did not appear to be 

struggling to remember things during the interview. Transcripts of the interviews were 

provided to the jury, and the jury was shown video excerpts from the interviews. 
4

The stepfather told Putnam he was awoken at 3:30 a.m. on June 10, 2017, when 

defendant arrived at his home. The mother was out of town. Defendant appeared 

“distraught” and was crying. Defendant said he had assaulted someone and told the 

stepfather there were people “coming after him.” Defendant told the stepfather he had 

taken the victim’s car, despite efforts from the victim’s neighbors to stop him and pull 

him out of the car. Defendant said he “should have just killed [the victim].” 

Defendant and the stepfather began arguing. Defendant was holding a knife down 

toward his side and backed the stepfather into a corner. Although the stepfather did not 

believe defendant was threatening him with the knife, he still feared for his safety and the 

safety of his family. The stepfather tried to deescalate the situation and calm defendant 

down. 

In an effort to get defendant out of the family home, the stepfather offered to drop 

defendant off at a light rail station on the stepfather’s way to work. Defendant agreed but 

then refused to leave the vehicle once they arrived. The stepfather decided to bring 

defendant to work with him but asked defendant to leave when they got there. Defendant 

begged for the keys to the stepfather’s car. The stepfather knew that if he gave defendant 

the keys, he would never see the car again. 

Several times during the incident, the stepfather called the mother so she could 

hear. The stepfather was anxious about speaking with the police or testifying, and he 

feared defendant would find out and retaliate. The stepfather told Putnam he was so 

afraid for his safety that he had started the process of moving his family to a different 

home. 

The mother told Putnam that defendant called her just after midnight on June 10, 

2017. He was “crying and frantic” and said he had beaten a man with a hammer. 

Defendant was not sure if the victim was dead or alive, but there was “blood 

everywhere.” He had taken the victim’s car to a train station and planned to light it on 

fire. The mother tried to calm him down, but defendant said he did not want to go to 
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prison. Defendant wanted to call the stepfather, but the mother tried to dissuade him 

from doing so. 

A short time later, the stepfather called the mother, and she overheard a struggle. 

The stepfather sounded “frantic,” and told defendant that he loved him. He pleaded with 

defendant to “put the knife down” and said, “Please don’t do this to us.” The stepfather 

later called the mother again and told her defendant had taken off with his car. 

The stepfather’s car was found in Reno with the engine blown out. When she 

arrived home, the mother found a hole in the bedroom door. A second police officer 

testified that during an interview on June 11, 2017, the stepfather said he heard defendant 

say he had hit someone in the head with a hammer, taken that person’s car, and then 

abandoned it. 

C. October 12, 2017 taking of V.C.’s car

V.C. testified that on October 12, 2017, a man named T.A. brought defendant to 

V.C.’s house to do laundry.3 Defendant grew upset when he was unable to reach his 

girlfriend via phone. Defendant asked V.C. to drive him to meet up with his girlfriend. 

Fearing for her safety, V.C. agreed. On the way, defendant argued with his girlfriend 

over the phone and grew so angry that he punched the dashboard. 

V.C. feared she was being set up. She stopped at a liquor store, left her keys in the 

ignition, and went inside to get some matches. From inside the store, she watched 

defendant drive off in her car. She had not given defendant permission to take her car.4

Later that day, V.C. communicated with defendant by text and Facebook 

Messenger asking him to return her car but he refused. The next day, October 13, V.C. 

saw defendant driving her car. Realizing that he was not going to return it, V.C. called 

3 V.C., a convicted felon and a drug abuser, testified at trial under a grant of 

immunity. 

4 V.C. paid $2,000 for her car. 
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the police that same day to report her car stolen. V.C. waited to call police, stating,

“[W]here I come from, we don’t do that.” V.C. initially lied to the police and said a 

woman named “Nikki” was the last person she saw near her car. 

Defendant communicated to V.C. that she was “out of luck,” and posted on 

Facebook that she was a “rat” and a “snitch” who had threatened to call the police about 

the stolen car. The post had V.C.’s name and photo on it. Defendant warned he “was 

going to do something,” and asked anyone who saw V.C. to “whoop [her].” T.A. reached 

out to V.C. and warned she “should be worried.” 

Police recovered V.C.’s car on October 14, 2017. The radio had been removed 

and the area under the steering wheel had been “ripped up.” 

D. Intimidation of V.C.

Defendant was arrested on October 20, 2017, for stealing V.C.’s car. Within 

hours, defendant called Wimberly multiple times from jail. Recordings of the calls 

between Wimberly and defendant were played for the jury. 

During the first call at 3:33 p.m., Wimberly was traveling by car while defendant 

gave her directions to V.C.’s residence. Wimberly told defendant, “[N]ow I’m . . .

go[ing] over there and try to . . . just holla at her first before I just get her all, you feel me, 

. . . I’m just gonna try to get at her with respect but if she don’t do it then it’s gonna get 

ugly.” 

After Wimberly arrived at V.C.’s house, defendant asked her to make sure V.C.’s 

car was there. While outside V.C.’s house, Wimberly started yelling at V.C. that she 

needed to drop the charges against defendant, saying, “I didn’t come [for a] problem, I 

came here to talk to you real quick. . . . Can you do me one favor blood and please call 

and be dropping charges! Can you do that for me? I’m going to have my baby in two 

months so I need my [man] home. You do that?” During the phone call, defendant asked 

Wimberly to tell V.C. to give her his “stuff” and “clothes.” The first call ended.
7

Defendant called back at 3:50 p.m. Wimberly told V.C., who would only talk to 

Wimberly through the door, that defendant was in jail and asked her to “call and drop the 

charges.” Wimberly asked V.C. if she would call in front of her, but V.C. responded she 

wanted to wait until Wimberly left her home. Wimberly continued, “[S]o, I’m gonna 

leave, and then, um, I’ll just . . . go [and] check your charges, and if the [charges are] still 

on there, then I’m just gonna come back and it’s gonna be a problem. And . . . next time 

I’m not comin’ with no . . . respect, this house gonna get—I’m gonna run up in her 

s[***]. And I’m talking about . . . callin’ Chelsea, Justin, [and] everybody.” Wimberly 

later told defendant she had threatened to break a window unless V.C. came outside to 

talk with her. Wimberly described V.C. as “hella scared.” 

In another call at 4:14 p.m., defendant told Wimberly to give V.C. another half 

hour, and said, “[D]on’t do nothing crazy or stupid.” Wimberly replied she was not, and 

defendant responded, “Let somebody else do that.” Wimberly said, “I’m doing what I 

can,” and defendant replied, “I appreciate it. You’re doing good.” 

The next call was at 5:46 p.m. V.C. told Wimberly that she could not drop the 

charges before trial, but defendant disagreed. Defendant said V.C. should call the district 

attorney’s office and say she had given defendant permission to drive the car and wanted 

to drop the charges. Wimberly explained she had tried to be friendly with V.C., but she 

again said V.C. was “hella scared.” 

Detective Putnam testified V.C. told him a woman named “Nikki” (who V.C. 

knew through T.A.) had set it up for defendant to steal V.C.’s car. The same woman later 

came to V.C.’s house asking to have the charges against defendant dropped. Putnam 

realized the woman was Wimberly. V.C. told Putnam she was not afraid of Wimberly, 

but she “didn’t want to be responsible for something happening to [Wimberly’s] baby.” 

V.C. told Putnam she was concerned because Wimberly and defendant “know a lot of 

people in Del Paso Heights.” V.C. felt she could handle herself with respect to 

Wimberly, but she was worried about defendant. V.C. told Putnam that at first she 
8

considered dropping the charges, but she changed her mind. Putnam testified that V.C. 

appeared “very afraid” and “frantic.” V.C. required Putnam to meet her in a public 

parking lot, so she could flee if Putnam was not actually a police officer. Once V.C. was 

convinced of Putnam’s identity, she “settled down” and talked to him. 

Putnam obtained social media information about both defendant and Wimberly. 

On defendant’s Facebook profile, there was a photo of V.C. with the caption, “Watch out 

for the cop caller a[**] b[ ]. Lame a[** ] b[****].” The photo was posted at 11:20 

a.m. on October 14, 2017, six days before defendant’s arrest.

E. Defense case

A.C., Wimberly’s cousin, testified at trial that in October 2017, defendant arrived 

at her house in a black Honda. A woman who the cousin later identified as V.C. was in 

the passenger seat. The cousin later saw the woman get out of the car and sit down at a 

nearby bus stop. The cousin testified that she watched defendant try to get the woman 

back in the car, but the woman refused. The next day, the cousin learned defendant was 

in jail for stealing the car. 

F. Charges, conviction, Romero motion, and sentencing

In March 2019, defendant was charged with the carjacking of W.M. while using a 

deadly weapon (Pen. Code, §§ 215, subd. (a), 12022, subd. (b)(1);5 count one); assault 

with a deadly weapon on W.M. (§ 245, subd. (a)(1); count two); defacing of property on 

June 9, 2017 (§ 594, subd. (a); count three); unlawful taking and driving of the 

stepfather’s vehicle on June 10, 2017 (Veh. Code, § 10851, subd. (a); count four); 

unlawful taking and driving of V.C.’s vehicle on October 13, 2017 (Veh. Code, § 10851, 

subd. (a); count five); and dissuading witness and victim V.C. on October 20, 2017 

5 Undesignated statutory references are to the Penal Code. 
9

(§ 136.1, subd. (c)(1); count six). It was further alleged defendant had two prior serious 

felony convictions. 

In April 2019, a jury found defendant guilty on all counts and found true that 

defendant personally used a deadly or dangerous weapon with respect to counts one and 

two. In bifurcated proceedings, the trial court found true that defendant had two prior 

strikes and two prior serious felony convictions. 

During the May 2019 sentencing hearing, the trial court denied defendant’s 

Romero motion. The court sentenced defendant to state prison for 52 years to life plus 28

years four months. The abstract of judgment lists defendant’s sentence as 52 years to life 

plus 27 years four months. 

With respect to fines and fees, the probation report recommended imposing the 

maximum restitution fines. Defense counsel argued defendant was indigent and asked 

the court to impose only the minimum fines and fees and not apply any that were not 

mandatory. Counsel did not mention Dueñas, nor did she ask for a hearing to determine 

defendant’s ability to pay any fines and fees. The court imposed various fines and fees, 

including a $5,000 restitution fine (§ 1202.4, subd. (b)). 

DISCUSSION

I

Defendant contends the trial court erred in denying his motion to sever the trial of 

the counts related to the June 9, 2017 assault and carjacking of W.M. (counts one, two, 

and three) from the remaining counts. Defendant argues the evidence was not crossadmissible pursuant to Evidence Code section 1101, subdivision (b) between the cases 

because his violent assault on W.M. was not sufficiently similar to the nonviolent 

unlawful takings of the stepfather’s and V.C.’s vehicles, especially since the stepfather 

and V.C. knew defendant. Defendant further argues the assault on W.M. was highly 

inflammatory and was a weak case due to the lack of eyewitness identification. Finally, 
10

defendant argues that a limiting instruction could not have mitigated the prejudice. 

Defendant’s contentions are without merit.

A. Additional background

Before trial, defendant moved to sever the counts into four separate trials for each 

of the incidents (i.e., one for the charges related to W.M., and one for each of the 

remaining counts). Defendant argued he otherwise would suffer substantial prejudice. 

He further argued: (1) the evidence of the separate incidents was not cross-admissible; 

(2) the circumstances of each incident were dissimilar and failed to establish a common 

plan or scheme; and (3) he would suffer substantial prejudice if the counts were tried 

together, especially since the cases against defendant were weak. Defense counsel noted 

W.M. was unable to identify defendant to police during a photo lineup. In addition, 

defendant noted that his stepfather and V.C. had each given conflicting statements 

regarding whether they had loaned defendant a car during the incidents in June and 

October. Finally, the intimidation of V.C. was supported by the jailhouse phones calls, 

but defendant was never heard threatening V.C. during the calls. Defendant conceded

that if any of the counts should be tried together, it would be those related to V.C. (i.e.,

counts five and six). 

The prosecution argued counts five and six were “extremely intertwined” and that 

the related evidence was cross-admissible. The prosecution further argued the evidence 

related to counts one through three was cross-admissible as to count four because 

defendant went to his stepfather’s house within hours of assaulting W.M. and confessed 

to the incident in the trailer park. The evidence would help the jury understand why the 

stepfather was afraid and had handed defendant the keys to his vehicle. 

The trial court denied the motion to sever. The court noted defendant’s logic, 

namely, that all the cases were weak, differed from the typical argument that a strong 

case was being used to bolster a weak case. The court did not agree that a jury would 

take all the weak cases and turn them into one strong one. The court further noted counts 
11

one through four were connected, given that they were committed within hours. In 

addition, counts five and six were related because the witness intimidation was related to 

the substantive count. Finally, counts one, four, and five were all theft offenses, and four 

and five each appeared to involve whether defendant had permission to take a vehicle. 

The court indicated it would instruct the jury that it would need to consider each case 

individually. In sum, the trial court found, under Evidence Code section 352, the joinder 

of the counts did not result in undue prejudice. 

During trial, the jury was instructed pursuant to CALCRIM No. 3515 that each 

count charged in the case was a separate crime, and that the jury must consider each 

count separately. 

B. Defendant has not forfeited the issue on appeal

The People contend defendant has forfeited the issue because his trial counsel 

sought four separate trials (one for counts one through three, and one more each for 

counts four, five, and six), rather than the two trials defendant now seeks. Given that 

defendant sought severance of the charges during trial, and that the trial court considered 

the relevant factors under section 954, we will proceed to the merits.

C. Analysis

When separate accusatory pleadings assert offenses that are “connected together in 

their commission or, [are] of the same class of crimes or offenses, . . . the court may order 

them to be consolidated. . . .” (§ 954.) The law prefers consolidation or joinder of 

charges because it promotes efficiency. (People v. Merriman (2014) 60 Cal.4th 1, 37.) 

Offenses are of the “same class” when they possess common characteristics or attributes. 

(People v. Leney (1989) 213 Cal.App.3d 265, 269.) We review a trial court’s denial of a 

motion to sever for abuse of discretion, based on the facts known by the trial court at the 

time of its ruling. (People v. Burney (2009) 47 Cal.4th 203, 237.) Where joinder is 

statutorily proper, defendant must make a “clear showing of potential prejudice.” 

(People v. Stanley (2006) 39 Cal.4th 913, 934.)
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The determination of prejudice depends upon the circumstances of each case. In 

noncapital cases, we consider on review the following factors: (1) the cross-admissibility 

of the evidence in separate trials; (2) whether some of the charges are “unusually likely to 

inflame the jury against the defendant”; and (3) whether a “ ‘weak’ case has been joined 

with a ‘strong’ case, or with another ‘weak’ case, so that the ‘spillover’ effect of 

aggregate evidence on several charges might well alter the outcome of some or all of the 

charges.” (People v. Sandoval (1992) 4 Cal.4th 155, 172.) “ ‘The state’s interest in 

joinder gives the court broader discretion in ruling on a motion for severance than it has 

in ruling on admissibility of evidence.’ [Citation.]” (Alcala v. Superior Court (2008) 43 

Cal.4th 1205, 1221.)

Joinder of the W.M. incident and the other charges was proper here under section 

954 because carjacking and vehicle theft charges are of the same class, given that each 

involves the unlawful taking of a vehicle. (§ 215, subd. (a); Veh. Code, § 10851, subd. 

(a); People v. Leney, supra, 213 Cal.App.3d at p. 269 [offenses are of the same class 

when they possess common attributes].) In addition, despite defendant’s contentions, the 

incidents with W.M., the stepfather, and V.C. were sufficiently similar to be crossadmissible on the issue of intent. (See People v. Ewoldt (1994) 7 Cal.4th 380, 402 [“[i]n 

order to be admissible to prove intent, the uncharged misconduct must be sufficiently 

similar to support the inference that the defendant ‘ “probably harbor[ed] the same intent 

in each instance” ’ ”].) In each of the incidents, defendant knew the victim and asked 

him or her for a ride. The stepfather and V.C. complied, and defendant took the vehicle 

in both incidents. W.M. refused, and defendant violently assaulted him and then took his 

vehicle. It would have been reasonable for a trier of fact to infer that defendant harbored 

the same intent to take the victim’s vehicle in each instance when he asked for a ride. 

The court did not err in finding the incidents to be similar.

In addition, we reject defendant’s contention that evidence of the incidents 

involving the stepfather and V.C. was stronger and therefore would bolster the case 
13

against defendant with respect to the incident involving W.M. Although W.M. was 

unable to identify defendant in a photo lineup six weeks after the incident, W.M. 

recognized defendant during the trial. W.M.’s identification of defendant as the assailant 

was corroborated by evidence that, within hours of the assault on W.M., defendant told 

his stepfather that he had assaulted someone by hitting him in the head with a hammer, 

taken the victim’s car, and then abandoned it. Defendant similarly told his mother within 

hours of the incident that he had beaten a man with a hammer. Under the circumstances, 

there is no “ ‘extreme disparity’ ” in the strength of the evidence that would indicate an 

abuse of discretion. (People v. Ybarra (2016) 245 Cal.App.4th 1420, 1437 (Ybarra).)

Moreover, none of the charges were unusually likely to inflame the jury against 

defendant. There was evidence that the stepfather and V.C. each were scared that 

defendant would turn violent during the respective incidents. In addition, W.M. was not 

hospitalized after the assault. Under the circumstances, there was little likelihood that the 

joinder of the W.M. assault and carjacking charges would inflame the jury in its decision 

on the vehicle theft and the dissuading a witness or victim charges. In sum, we conclude 

that defendant has not made the “ ‘ “clear showing of prejudice” ’ ” required to establish 

that the trial court abused its discretion. (Ybarra, supra, 245 Cal.App.4th at p. 1438.)

Even if the trial court was correct at the time to deny severance, reversal is still 

proper if a defendant shows that joinder resulted in “ ‘gross unfairness’ amounting to a 

denial of due process. [Citations.] In determining whether there was such gross 

unfairness, we view the case as it was tried, including a review of the evidence actually 

introduced in the trial . . . and other trial related matters, such as the prosecutor’s closing 

argument.” (Ybarra, supra, 245 Cal.App.4th at p. 1434.) The defendant bears the “ ‘high 

burden’ ” of establishing gross unfairness amounting to a due process violation. (Id. at p.

1438.) A defendant “must demonstrate a ‘reasonable probability’ that the joinder 

affected the jury’s verdicts.” (Ibid.)
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Similar to our analysis concluding the trial court did not abuse its discretion, we 

are not persuaded that defendant has established gross unfairness amounting to a due 

process violation via his arguments about the relative strength and weakness of the cases, 

the cross-admissibility of the evidence, or the likelihood that the charges would inflame 

the jury against defendant. We further note that the jury was properly instructed that each

count in the case was charged as a separate crime, and that it must consider each count 

separately. (See People v. Sanchez (2001) 26 Cal.4th 834, 852 [absent a showing to the 

contrary, jurors are presumed able to understand and to have followed the court’s 

instructions].) Under the circumstances, defendant’s contentions are without merit. 

II

We next turn to defendant’s contention that the trial court erred in excluding 

evidence that someone else assaulted W.M. and stole his vehicle. We disagree.

A. Additional background

Before trial, the prosecutor informed the court that defendant had told his mother 

over the phone that prior to the assault Wimberly had worked as a prostitute and W.M. 

was her client. Neither defense counsel nor the prosecutor indicated that they intended to 

introduce the statement during trial. During trial, defense counsel nevertheless sought to 

introduce the statement, along with a similar statement from the stepfather, arguing it 

would show that Wimberly was engaged in a “business transaction” with W.M. Defense 

counsel argued the evidence showed that T.A. was Wimberly’s pimp because W.M. 

testified that he knew his assailant and was aware that Wimberly was “his [assailant’s] 

girl.” According to defense counsel, it was T.A. who had shown up at W.M.’s 

motorhome to settle the monetary dispute between W.M. and Wimberly. T.A. then 

argued with and assaulted W.M. Defense counsel noted T.A. had been identified by 

V.C., defendant’s mother, and defendant’s stepfather. 

The prosecutor objected to introducing the evidence, arguing no one had 

mentioned T.A. was the assailant. Indeed, the only mention of T.A. was from V.C., who 
15

told police that she met Wimberly through T.A., and when she testified that defendant 

was introduced to her by T.A. The prosecutor also noted that defendant’s mother never 

mentioned a pimp, and his stepfather had only said defendant was at the scene of the 

assault “because . . . one of . . . Wimberly’s tricks [was] there.” 

The trial court denied defendant’s motion to admit the evidence, reasoning that the 

evidence was “far too thin” to raise a reasonable doubt of defendant’s guilt. The 

references to T.A. were “fairly discrete” and “don’t connect specifically with anybody.” 

Instead, the statements “just dump on . . . Wimberly as being a prostitute.” In sum, the 

evidence was more prejudicial than probative. 

B. Analysis

“To be admissible, the third-party [culpability] evidence need not show 

‘substantial proof of a probability’ that the third person committed the act; it need only be 

capable of raising a reasonable doubt of defendant’s guilt. At the same time, we do not 

require that any evidence, however remote, must be admitted to show a third party’s 

possible culpability. . . . [E]vidence of mere motive or opportunity to commit the crime 

in another person, without more, will not suffice to raise a reasonable doubt about a 

defendant’s guilt: there must be direct or circumstantial evidence linking the third person 

to the actual perpetration of the crime.” (People v. Hall (1986) 41 Cal.3d 826, 833.) “In 

assessing an offer of proof relating to such evidence, the court must decide whether the 

evidence could raise a reasonable doubt as to defendant’s guilt and whether it is 

substantially more prejudicial than probative under Evidence Code section 352. 

[Citation.]” (People v. Bradford (1997) 15 Cal.4th 1229, 1325.) We review the trial 

court’s decision for abuse of discretion. (People v. Prince (2007) 40 Cal.4th 1179, 1242.)

The theory that T.A. was Wimberly’s pimp and assaulted W.M. and stole his 

vehicle is speculative at best. Although V.C. told police she knew Wimberly through 

T.A., she never identified T.A. as Wimberly’s pimp. Defendant also never told his 

mother that Wimberly even had a pimp, let alone the pimp’s identity. W.M.’s statement 
16

that Wimberly was the assailant’s “girl” does not imply that T.A. was her pimp because 

during trial W.M. identified defendant, who was Wimberly’s boyfriend, as his assailant. 

W.M. would have been familiar with defendant because he had met defendant twice 

before and had previously given defendant rides. 

Although evidence that Wimberly was a prostitute might have explained why she 

had a monetary dispute with W.M., this is not enough to link T.A. to the commission of 

the crimes. (See People v. Edelbacher (1989) 47 Cal.3d 983, 1018 [“evidence showing 

only a third party’s possible motive is not capable of raising a reasonable doubt of a 

defendant’s guilt and is thus inadmissible”].) The trial court therefore did not abuse its 

discretion in declining to admit the evidence. 

III

Defendant next contends the trial court erred in denying his motion for a mistrial 

after a witness testified that defendant was on parole. Defendant argues the evidence that 

he committed the crimes involving W.M. was weak, and the jury would have been 

prejudiced against him because of his prior crimes. In the alternative, defendant argues 

for the first time on appeal that the prosecutor committed misconduct. We conclude 

defendant has forfeited his claim of prosecutorial misconduct and his remaining claims 

are meritless. 

A. Additional background

Prior to trial, defense counsel moved to exclude evidence that defendant was 

arrested while on parole. The court asked the prosecutor whether she intended to 

introduce such evidence. The prosecutor responded no, but also cautioned that 

defendant’s parole officer was on the witness list, since he was the police officer who 

interviewed defendant’s mother and stepfather. The prosecutor warned that the mother 

and stepfather were likely to be uncooperative witnesses, with the mother believing that 

defendant needed drug counseling rather than criminal prosecution. The stepfather 

similarly indicated he believed much of defendant’s behavior was due to drug abuse. 
17

Before the start of their testimony, defense counsel and the prosecutor each told the 

mother and stepfather that they were not to mention defendant’s prior criminal record or 

any potential drug use. 

During cross-examination, defense counsel asked defendant’s stepfather, “Today 

you told us that at the time around the period of June 2017, that [defendant] actually lived 

at your house. Is that correct?” The stepfather responded, “Correct. He was on parole 

so—I believe he was on parole, so he had an address at our house and the upstairs 

bedroom.” The prosecutor did not raise the issue again during redirect. 

After the stepfather’s testimony finished, defense counsel moved for a mistrial

based on the stepfather’s statement that defendant was on parole at the time of the 

incident. Defense counsel argued she had clearly asked that such information be 

excluded, and it was highly prejudicial to defendant. She further noted, “[W]e met with 

the witness first thing this morning to go over the parameters. Nothing was asked of him 

that would have led him to answer that.” The prosecutor responded that the comment

was unintentional and no one had followed up on the issue. In addition, the prosecutor 

stated that the stepfather had been warned against commenting on the issue, and she 

asked that the testimony be stricken from the record. 

The trial court struck the testimony as nonresponsive but denied defendant’s 

motion for a mistrial. The trial court reasoned the testimony was “volunteered” and did 

not rise to the level of warranting a mistrial. 

B. Analysis

1. Denial of motion for mistrial

A trial court should grant a motion for mistrial “ ‘only when a party’s chances of 

receiving a fair trial have been irreparably damaged.’ ” (People v. Clark (2011) 52 

Cal.4th 856, 990.) Whether a particular incident is so prejudicial that it warrants a 

mistrial “requires a nuanced, fact-based analysis,” which is best performed by the trial 

court. (People v. Chatman (2006) 38 Cal.4th 344, 370.) We review the denial of a 
18

motion for mistrial under the deferential abuse of discretion standard. (Clark, supra, at p. 

990.) As our Supreme Court has explained, a trial court does not abuse its discretion in 

denying a defendant’s motion for mistrial despite a witness’s “brief and isolated” 

reference to the defendant’s incarceration status. (People v. Valdez (2004) 32 Cal.4th 73, 

128.)

As previously discussed, the case against defendant was strong and not closely 

balanced, given that each of the victims identified defendant as the perpetrator. In 

addition, defendant’s credibility was not at issue, since he did not testify. The 

stepfather’s reference to defendant being on parole was isolated and brief, and the court 

struck the testimony from the record. There was no further mention of defendant’s parole 

status before the jury from the witnesses or counsel. The fleeting comment was not 

significant in the context of the entire guilt trial, and the trial court did not abuse its 

discretion in finding that defendant’s chances of receiving a fair trial had not been 

irreparably damaged. 

2. Prosecutorial misconduct

Despite the prosecutor (and defense counsel) warning the stepfather against 

alluding to defendant’s criminal record, defendant now argues the prosecutor committed 

misconduct by failing to take sufficient steps to prevent the stepfather from testifying

about defendant’s parole status in violation of the court’s exclusionary order. Even 

though the testimony arose during cross-examination, defendant argues the prosecutor 

should have done more because the stepfather was known to be uncooperative. 

The People contend defendant has forfeited the claim because he failed to object 

during trial. As courts have explained, “ ‘a defendant may not complain on appeal of 

prosecutorial misconduct unless in a timely fashion—and on the same ground—the 

defendant made an assignment of misconduct and requested that the jury be admonished 

to disregard the impropriety.’ ” (People v. Stanley, supra, 39 Cal.4th at p. 952.) 
19

Defendant responds that his motion for mistrial was adequate to inform the trial 

court that the prosecutor had committed misconduct. We disagree. Defendant’s motion 

was based on the prejudicial nature of the evidence. This would not have indicated to the 

court that defendant took issue with the prosecutor’s conduct, especially since defense 

counsel noted that she and the prosecutor had met with the stepfather the morning of his 

testimony to review “the parameters.” In addition, defense counsel argued “[n]othing 

was asked of [the stepfather] that would have led him to answer that.” Moreover, the 

prosecutor moved to strike the testimony. Defendant has therefore forfeited his claim. 

IV

We turn next to defendant’s contention that his conviction for dissuading a witness 

or victim must be reduced to a misdemeanor because the evidence was insufficient to 

establish that he aided and abetted the intimidation of a witness or victim by an implied 

threat of force. (§ 136.1, subds. (b) & (c).) According to defendant, he never threatened 

V.C. or instructed Wimberly to do so. While he gave Wimberly directions to V.C.’s 

home and told Wimberly to tell V.C. to drop the charges, he also told Wimberly to not do 

anything crazy or stupid. 

In considering a claim of insufficiency of evidence, we view the whole record in 

the light most favorable to the judgment to determine whether it discloses substantial 

evidence, and we do not resolve credibility issues or evidentiary conflicts. (People v. 

Wahidi (2013) 222 Cal.App.4th 802, 804-805, 806 [affirming conviction of dissuading a 

witness where there was a physical altercation and defendant then implored the witness to 

“settle this outside the court”].)

Section 136.1 prohibits any attempt to prevent or dissuade a witness to a crime or 

a victim of a crime from reporting it to a police officer or causing a complaint to be 

prosecuted. (§ 136.1, subds. (b)(1)-(2), (d).) It is immaterial whether anyone was 

actually harmed. (§ 136.1, subd. (d).) The crime is a felony if a defendant knowingly 
20

and maliciously commits the offense by force or by an express or implied threat of force 

or violence upon a witness to, or a victim of, a crime. (§ 136.1, subd. (c).) 

Attempting to dissuade a witness or a victim is a specific intent crime. (People v. 

Young (2005) 34 Cal.4th 1149, 1210.) In determining whether a defendant’s actions or 

statements constitute an attempt to dissuade a witness or victim, the trier of fact must 

consider the circumstances in which the defendant’s statements or actions are made, not 

just the statement or action itself. (People v. Wahidi, supra, 222 Cal.App.4th at p. 806.) 

“If the defendant’s actions or statements are ambiguous, but reasonably may be 

interpreted as intending to achieve the future consequence of dissuading the witness from 

testifying, the offense has been committed. [Citation.]” (Ibid.) 

“To be guilty of a crime as an aider and abettor, a person must ‘aid[ ] the [direct] 

perpetrator by acts or encourage[ ] him [or her] by words or gestures.’ [Citations.]” 

(People v. Lee (2003) 31 Cal.4th 613, 623.) Under a direct theory of aiding and abetting, 

“the person must give such aid or encouragement ‘with knowledge of the criminal 

purpose of the [direct] perpetrator and with an intent or purpose either of committing, or 

of encouraging or facilitating commission of,’ the crime in question. [Citations.] When 

the crime at issue requires a specific intent, in order to be guilty as an aider and abettor 

the person ‘must share the specific intent of the [direct] perpetrator,’ that is to say, the 

person must ‘know[ ] the full extent of the [direct] perpetrator’s criminal purpose and 

[must] give[ ] aid or encouragement with the intent or purpose of facilitating the [direct] 

perpetrator’s commission of the crime.’ ” (Id. at p. 624.)

Contrary to defendant’s contentions, there was evidence that defendant threatened 

V.C. After learning V.C. might call police about the stolen car, defendant communicated 

to her that she was “out of luck.” He also posted on Facebook that she was a “rat” and a 

“snitch,” and warned he “was going to do something.” In addition, he asked anyone who 

saw her to “whoop [her].” A jury could reasonably conclude these statements threatened 

violence, especially since V.C. testified that no one calls the police in her neighborhood, 
21

and Wimberly and defendant “know a lot of people” in the neighborhood. In addition, 

T.A. reached out to V.C. and warned her that she “should be worried.” 

Moreover, a jury could reasonably conclude defendant was encouraging Wimberly 

to threaten V.C. when she went to V.C.’s home. Defendant called Wimberly within 

hours of his arrest and gave her directions to V.C.’s home and described V.C.’s car, and a 

jury could reasonably infer the couple had already talked about what should happen if 

defendant was arrested. Over the next couple of hours, defendant continually instructed 

Wimberly to demand that the scared V.C. drop the charges. He did nothing to stop 

Wimberly when she threatened that it would “get ugly” and “be a problem” if V.C. 

refused to drop the charges. Although defendant at one point urged Wimberly to give 

V.C. more time and not do anything “crazy or stupid,” in the next breath he admonished, 

“Let somebody else do that.” Defendant then told Wimberly she was “doing good.” 

Under the circumstances, a jury could reasonably conclude defendant was expressly or 

impliedly threatening V.C. with violence to dissuade her from cooperating with police, 

and was encouraging Wimberly to do so as well. In sum, defendant’s claims are without 

merit.

V

Defendant contends the trial court abused its discretion in denying his Romero 

motion. We again disagree.

A. Additional background

In May 2019, defendant moved pursuant to Romero to strike one of his strikes. 

Defendant argued he was raised in a neglectful home and his mother had provided him 

with drugs since he was 11 years old. He was only 19 years old when he incurred his 

first strike, a 2007 conviction for first degree burglary. According to defendant, he had 

only entered the unoccupied house, rummaged around, and stolen a burrito because he 

was hungry. After the conviction, defendant remained addicted to drugs and was 

homeless. Defendant similarly argued he incurred his second strike, a 2009 conviction 
22

for first degree burglary, for entering an unoccupied home in 2008. The homeowner 

came home during the burglary and confronted defendant. The homeowner prevented 

defendant from fleeing by chasing and tackling him, and the two began to struggle. 

Defendant stated he began to regularly use heroin during his subsequent 12-year state 

prison sentence. Defendant argued he had previously declined jury trials and accepted 

responsibility for his actions. Although he had requested a jury trial in this case, 

defendant argued he did so because he was innocent. Defendant asked that the court 

strike one or more of his prior strikes so he could participate in his children’s lives. 

During the May 2019 sentencing hearing, the trial court denied defendant’s 

Romero motion. Citing People v. Williams (1998) 17 Cal.4th 148 and People v. Carmony 

(2004) 33 Cal.4th 367, the court noted it was required to “consider whether, in light of 

the nature and circumstances of the present felonies and prior serious felony convictions 

and the particulars of his background, character, and prospects, the defendant may be 

deemed outside the [Three Strikes law’s] spirit in whole or in part” and therefore entitled 

to leniency. With respect to defendant’s prior criminal history, the court found defendant 

was a recidivist. The court noted defendant had been placed on probation in June 2007 

for the first degree burglary conviction, but he promptly violated it in October 2007. 

Defendant committed the second first degree burglary in 2008 while he was still on 

probation for the 2007 burglary. Defendant was on parole for the 2009 conviction when 

he committed the current offenses. 

The court also considered defendant’s current convictions, noting that the crimes 

against W.M. were “callous and violent.” Defendant thought he had killed W.M. and left 

him there for dead. The court found defendant’s “lack of impulse control and 

aggressiveness and violence [to be] striking.” The court also reasoned that the dissuading 

a witness or victim count “displays a certain disrespect for the rule of law [and] the 

justice system.” The court found defendant had engaged in an “overall pattern of 

antisocial behavior” and “appears to be violent.” The court noted it had considered 
23

defendant “as a whole,” including his background and upbringing. However, defendant 

presented a danger to the public. Under the circumstances, defendant was not outside the 

Three Strikes scheme. 

B. Analysis

Defendant argues he falls outside the spirit of the Three Strikes law because he 

became addicted to drugs at an early age, and his early criminality was comprised of 

juvenile and misdemeanor offenses. Defendant also argues he was only 19 years old 

when he committed his first burglary, and the crime was born of hunger. In addition, the 

2007 burglary did not involve any violence. He argues he committed the second burglary 

in 2008 to fund his drug addiction, and he notes the only violence occurred when the 

victim prevented him from fleeing. With respect to the current offenses, defendant notes 

that W.M. was not hospitalized, and none of the other crimes involved injuries. And he 

still would face a lengthy sentence even if the court struck one of the strikes. 

In deciding whether to dismiss a prior strike conviction allegation pursuant to 

Romero and section 1385, a trial court “must consider whether, in light of the nature and 

circumstances of his present felonies and prior serious and/or violent felony convictions, 

and the particulars of his background, character, and prospects, the defendant may be 

deemed outside the [Three Strikes law’s] spirit, in whole or in part, and hence should be 

treated as though he had not previously been convicted of one or more serious and/or 

violent felonies.” (People v. Williams, supra, 17 Cal.4th at p. 161.) The circumstances 

establishing that the criminal falls outside the spirit of the three strikes scheme must be 

extraordinary. (People v. Carmony, supra, 33 Cal.4th at p. 378.) Reversal is justified 

where the trial court was unaware of its discretion to dismiss a prior strike or considered 

impermissible factors in declining to dismiss. (Ibid.)

We find no abuse of discretion. In considering defendant’s motion, the trial court 

was aware of its discretion. It considered the relevant factors pursuant to Williams and 

Carmony, including defendant’s social background, criminal history, and current crimes. 
24

The court reached its decision in conformity with the spirit of the Three Strikes law, and 

its decision was neither irrational nor arbitrary. 

VI

Finally, relying on Dueñas, supra, 30 Cal.App.5th 1157, defendant argues that due 

process requires we remand the matter for a hearing on his ability to pay the $5,000 

restitution fine imposed. Although defendant asserted his indigence during the May 2019 

sentencing hearing, he only asked the court to (1) waive any nonmandatory fines and fees 

and (2) impose the minimum amount. This was insufficient to put the court on notice 

that he was requesting an ability to pay hearing based on the due process considerations 

raised in Dueñas, which had been decided in January 2019, more than four months before 

defendant’s sentencing hearing. We therefore conclude defendant has forfeited the 

issue.6 (See People v. Scott (1994) 9 Cal.4th 331, 351-354 [a defendant must raise a 

sentencing issue in the trial court in order to preserve it on appeal].)

VII

Defendant claims the cumulative effect of errors require reversal. As we have 

found no error, this argument necessarily fails.

VIII

Despite the trial court’s oral pronouncement of defendant’s sentence as 52 years to 

life plus 28 years four months, the abstract of judgment lists defendant’s sentence as 52 

years to life plus 27 years four months. It has long been held that where there is a 

discrepancy between the oral pronouncement of judgment and the abstract of judgment, 

the oral pronouncement controls. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) We 

will order the error corrected.

6 We note that defendant does not argue on appeal that his trial counsel was 

ineffective in failing to object based on Dueñas.
25

DISPOSITION

Consistent with this opinion, the trial court shall prepare an amended abstract of 

judgment and forward a certified copy to the Department of Corrections and 

Rehabilitation. The judgment is otherwise affirmed.

 KRAUSE , J.

We concur:

 ROBIE , Acting P. J.

 MAURO , J.