Filed 10/28/26 P. v. Alfrey CA2/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B345094
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA085529)
v.
ANDREW CHARLES ALFREY,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Daviann L. Mitchell, Judge. Reversed with
directions in part; affirmed in part.
Brad J. Poore, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Nicholas J. Webster and Amanda V. Lopez,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
A jury convicted Andrew Alfrey of, among other offenses,
driving a vehicle without consent, dissuading a witness from
reporting a crime, and first degree residential burglary. The
offenses were based on conduct occurring on several days in
20221 involving Alfrey’s former girlfriend and her son. On
appeal, Alfrey raises instructional, sentencing, and Griffin2 error.
He also contends that the trial court abused its direction by
refusing to reopen the evidence to allow him to testify after he
had waived that right. We agree that prejudicial instructional
error occurred as to count 2 for driving a vehicle without consent.
We therefore reverse the judgment with directions as to that
count but otherwise affirm the judgment.
BACKGROUND
I. Evidence at trial
Beth Debonis and Alfrey dated for over a year, but they
broke up in April. After the break-up, Alfrey sometimes stayed
on Debonis’s property. Based on events occurring on September
18, 28, and 29 involving Debonis and her 19-year-old son, Bodie
Salazar, Alfrey was charged with burglary, robbery, driving a
vehicle without consent, assault with a deadly weapon,
dissuading a witness from reporting a crime, and vandalism.3
1 All date references are to 2022 unless otherwise specified.
2 Griffin v. California (1965) 380 U.S. 609 (Griffin).
3 Debonis died by the time of trial, so her preliminary
hearing testimony was admitted at trial.
2
A. September 18 (counts 1 & 2)
On September 18, Debonis and Alfrey argued, and Alfrey
took Debonis’s car, a 2020 Dodge Durango, without her
permission. Debonis called 911 at 10:22 p.m. At 10:35 p.m., a
deputy sheriff responded to Debonis’s home. In statements
recorded on the deputy’s body cam, Debonis said Alfrey got in her
face during an argument. Salazar tackled Alfrey, they fought,
and Alfrey elbowed Salazar. At some point, Alfrey pulled out a
knife but did not open the blade. Alfrey took Debonis’s car.
Debonis’s testimony about when he brought the car back is
unclear, as she said she got the car back that same day,
September 18, and Alfrey brought the car and/or keys to her the
next day. Salazar said that he was asleep when Alfrey returned
the car, either the next day or that night.
Salazar also testified that he did not remember that day
well, as there had been multiple incidents with Alfrey. But he
did recall an incident where Alfrey elbowed him, Salazar thought
accidentally, after Alfrey argued with Debonis.4
B. September 28 and 29 (counts 5, 6 & 10)
Ten days later, on September 28, Debonis returned home at
about 7:30 p.m. and found Alfrey in her house. Debonis told the
deputy who responded to her house that Alfrey did not live at the
house, he grabbed her, put his hands over her mouth so that she
could not breathe, and would not let Debonis use her phone,
4 Salazar appeared to testify there was another incident on
September 19 where Alfrey took Debonis’s cell phone, Salazar
tackled him, and Alfrey elbowed Salazar in the back.
3
saying he would break the phone if she used it.5 Alfrey slammed
Debonis into a counter, and she hit him. Alfrey said he would kill
Debonis if she did not get back with him and would kill her son if
he came in. Salazar testified that his mother told him to call 911,
although he did not witness the events.
The next day, September 29, Alfrey returned. Alfrey
knocked on the front door and said he wanted to talk. When
Debonis told him she would call 911 if he didn’t leave, Alfrey said
he would break down the door if she called the police, and he
proceeded to break down the front door. Salazar and Debonis ran
into a bedroom, and Salazar armed himself with a pocketknife.
Saying he just wanted to talk, Alfrey broke down the bedroom
door and pulled out a knife. Debonis grabbed her machete.
Alfrey grabbed Debonis’s car keys out of her purse inside the
bedroom and ran outside. Salazar stabbed Alfrey in the shoulder
with a pocketknife. Alfrey scratched Salazar’s arm with a knife.
Debonis and Salazar locked themselves in the vehicle.
Alfrey knifed all the car’s tires, flattening them, and tried to bash
in the windows. As they drove away, Alfrey threw rocks at the
car.
A neighbor saw Alfrey yelling, “ ‘I didn’t mean to hurt you’ ”
at Debonis as she was trying to drive away. Alfrey then wrapped
his shirt around his hand and hit her car, threw rocks at the car,
and ran after Debonis.
A deputy sheriff went to Debonis’s home. Debonis’s car’s
tires were flat, the car’s hood and front end near the headlights
were damaged, the front door to the house was missing wood
5 The deputy’s body cam recorded Debonis’s statements.
4
panels, and Salazar’s arm was scratched. The deputy testified
that each tire cost $100 to $330 to replace.
C. Prior crimes evidence
The prosecution introduced evidence of three prior
incidents of domestic violence involving Debonis and Alfrey.
First, on May 7, 2021, Debonis’s daughter called 911. Her
daughter reported that Debonis and Alfrey were behind a locked
door, but she could hear Debonis telling Alfrey to “put it down,”
Debonis say she was taking something from Alfrey so that he
wouldn’t hurt her, and Debonis threaten to tase Alfrey if he hurt
her (Debonis) again.
Second, on January 16, the police were called to Debonis’s
home. Alfrey had taken Debonis’s phone and threatened to stab
Debonis, Salazar, and the phone with a knife so that they could
not call the police. Alfrey kicked in a bedroom door frame.
Third, on June 6, a plumber working at Debonis’s house
called 911 and reported hearing slapping sounds and screaming.
He went into the house and saw Alfrey, naked. Debonis went
outside with the plumber, who told the dispatcher that Alfrey
kept “running up like he’s gonna be violent.” Alfrey left in
Debonis’s car. As a deputy sheriff was arriving at Debonis’s
home in response, he saw Alfrey driving away. Debonis was
upset and she had bruises to both legs that she said were two
days old.
D. Evidence of Alfrey’s prior conviction
The trial court took judicial notice that on January 12,
2012, Alfrey was convicted of a felony violation of section 136.1,
subdivision (b)(1) in case No. MA054825.
5
E. Expert testimony
Patricia Prickett, a psychotherapist, worked with domestic
violence victims. She testified that the most dangerous time in
abusive relationships is after the victim leaves. Prickett also
testified about the “cycle of violence,” which begins with the
tension building phase, where victims feel as if they are walking
on eggshells, so they adjust their behavior to accommodate their
abuser. Abusive techniques include destroying property and
displaying weapons. The tension building phase is followed by
the battering phase, and then the honeymoon phase, which is an
attempt to draw the victim back in. Victims often minimize
abuse and do not report it to the police.
II. Verdict and sentence
The jury convicted Alfrey of petty theft, a lesser included
offense to robbery (Pen. Code6 § 484; count 1), driving a vehicle
without consent on September 18 (Veh. Code, § 10851, subd. (a);
count 2), dissuading a witness from reporting a crime on or about
September 28 to 29 (§ 136.1, subd. (b)(1); count 5), first degree
residential burglary on September 29 with a person present
(§§ 459, 667.5, subd. (c)(21); count 6), and felony vandalism with
a finding the damage was more than $400 (§ 594, subd. (b)(1);
count 10).7 The jury found not true an allegation that Alfrey was
6 All further undesignated statutory references are to the
Penal Code.
7 The jury acquitted Alfrey of residential burglary on
September 28 (count 3), assault with a deadly weapon on
September 29 (counts 7 [Debonis] & 8 [Salazar]), and attempted
driving a vehicle without consent on September 29 (count 9).
Count 4 was dismissed.
6
armed (Cal. Rules of Court, rule 4.421(a)(2)) as to counts 2, 5, 6,
and 10.
At a bench trial, the trial court found that Alfrey had two
prior strikes within the meaning of the “Three Strikes” law. On
March 3, 2025, the trial court sentenced Alfrey on counts 5 and 6
to consecutive 25-years-to-life terms under that law. The trial
court imposed concurrent terms on the remaining counts,
including two years doubled to four years on counts 2 and 10.
DISCUSSION
I. Instructional error and count 2 for taking a vehicle
Alfrey was charged in count 2 with unlawful taking or
driving a vehicle in violation of Vehicle Code section 10851. The
trial court gave two conflicting instructions on the offense. And,
one of the instructions omitted an element of the crime. The
Attorney General does not dispute that these errors occurred but
disputes they were prejudicial. However, as we now explain, we
agree with Alfrey that these errors require reversal of his
conviction on count 2.
A. General principles and instructions
Vehicle Code section 10851, subdivision (a), provides that
“[a]ny person who drives or takes a vehicle not his or her own,”
without the owner’s consent, “and with intent either to
permanently or temporarily deprive the owner” of the owner’s
“title to or possession of the vehicle, whether with or without
intent to steal the vehicle” is guilty of a public offense.
The statute can be violated in two general ways, by taking
the vehicle (driving theft) or by driving the stolen vehicle after
the theft is complete (posttheft driving). (People v. Calistro
(2017) 12 Cal.App.5th 387, 394–395 (Calistro); accord, People v.
7
Van Orden (2017) 9 Cal.App.5th 1277, 1285.) “The theft of the
vehicle may be considered complete when the driving is not ‘part
of the original taking’ [citation]; when the driving is ‘an act
distinct from the taking’ [citation]; when the driving is ‘for
purposes unconnected with the original taking’ [citation]; ‘when
the driving is no longer part of a “ ‘ “continuous journey away
from the locus of the theft” ’ ” ’ [citation]; or when the driving is
not part of the escape from the scene of the theft.” (Calistro, at
p. 395.)
Posttheft driving “consists of driving a vehicle without the
owner’s consent after the vehicle has been stolen, with the intent
to temporarily or permanently deprive the owner of title or
possession. Where the evidence shows a ‘substantial break’
between the taking and the driving, posttheft driving may give
rise to a conviction under Vehicle Code section 10851 distinct
from any liability for vehicle theft.” (People v. Page (2017) 3
Cal.5th 1175, 1188; accord, People v. Lara (2019) 6 Cal.5th 1128,
1136 (Lara).)
Stealing a vehicle and continuing to drive it after the theft
is complete are separate and distinct violations of Vehicle Code
section 10851, subdivision (a). (Calistro, supra, 12 Cal.App.5th at
p. 395; People v. Van Orden, supra, 9 Cal.App.5th at p. 1285.)
Driving theft is a theft conviction; posttheft driving is not. (Van
Orden, at p. 1286.) “While a theft-based violation of Vehicle Code
section 10851 may be punished as a felony only if the vehicle is
shown to have been worth over $950, a violation committed by
posttheft driving may be charged and sentenced as a felony
regardless of value.” (Lara, supra, 6 Cal.5th at p. 1136,
fn. omitted.)
8
Because the statute can be violated in two ways, the
pattern instruction for unlawful taking or driving a vehicle,
CALCRIM No. 1820, contains two alternatives, one for driving
theft and the second for posttheft driving. The first alternative
instructs that to prove the defendant guilty of unlawful taking or
driving a vehicle, the People must prove “1. The defendant took
someone else’s vehicle without the owner’s consent; 2. When the
defendant took the vehicle, [the defendant] intended to deprive
the owner of possession or ownership of the vehicle for any period
of time; AND 3. The vehicle was worth more than $950.”
(CALCRIM No. 1820.) The second alternative differs as to only
the third element, requiring that “[t]he driving occurred after a
substantial break from the original theft of the vehicle.”
(CALCRIM No. 1820.)
Before opening statement, the trial court here
preinstructed the jury, saying it would read “some preliminary
instructions.” The trial court preinstructed as to count 28 for
“unlawfully taking or driving a vehicle” with the first alternative
form of CALCRIM No. 1820.
Then, before closing argument, the trial court told the jury,
“I will now instruct you on the law that applies to this case.” The
trial court instructed that Alfrey was charged in count 2 “with
unlawfully driving a vehicle, in violation of Vehicle Code
section 10[8]51. To prove [that] the defendant [is] guilty of this
crime, the People must prove that: [¶] One, the defendant drove
someone’s vehicle without the owner’s consent; and, two, when
the defendant drove the vehicle, he intended to deprive the owner
[of] possession or ownership of the vehicle for a[ny] period of
8 The instruction also applied to count 9, but the jury
acquitted Alfrey of that count.
9
time.” (Italics added.) Neither the written nor the oral
instruction contained the third element for posttheft driving, that
the driving occurred after a substantial break from the original
theft of the vehicle.
We review instructional error de novo, assessing whether
the instruction accurately states the law. (People v. Lewis (2023)
14 Cal.5th 876, 900.) Further, we review a challenged instruction
“ ‘ “in the context of the instructions as a whole and the trial
record to determine whether there is a reasonable likelihood the
jury applied the instruction in an impermissible manner.” ’ ”
(Ibid.) “The trial court has a sua sponte duty to instruct the jury
on the essential elements of the charged offense.” (People v.
Merritt (2017) 2 Cal.5th 819, 824.) “All criminal defendants have
the right to ‘a jury determination that the defendant is guilty of
every element of the crime with which [the defendant] is charged,
beyond a reasonable doubt.’ ” (Ibid.)
A trial court’s failure to instruct the jury on an element of
an offense is reviewed under the standard in Chapman v.
California (1967) 386 U.S. 18, 24 (Chapman). (People v. Oyler
(2025) 17 Cal.5th 756, 838; Lara, supra, 6 Cal.5th at p. 1138.)
Under Chapman, we “must reverse the conviction unless, after
examining the entire cause, including the evidence, and
considering all relevant circumstances,” we determine the error
was harmless beyond a reasonable doubt. (People v. Aledamat
(2019) 8 Cal.5th 1, 13.) Merely showing the evidence presented
at trial could support a conviction, however, is not sufficient.
Instructional error is harmless where a reviewing court concludes
beyond a reasonable doubt that the omitted element was
uncontested and supported by overwhelming evidence. (Oyler, at
p. 838.) “ ‘The Attorney General bears the burden of showing
10
that the error was harmless beyond a reasonable doubt.’ ” (Id. at
pp. 838–839.)
B. The instructional error was prejudicial
Although Vehicle Code section 10851 can be violated in
different ways, in their closing, the People argued that Alfrey was
guilty of posttheft driving and did not argue guilt based on a pure
theft theory. Posttheft driving was also the sole theory reflected
in the verdict form, as it referred to the crime of “driving a
vehicle without consent.” (Italics added, capitalization omitted.)
And the Attorney General does not dispute that posttheft driving
was the theory pursued below and presented to the jury in the
verdict form. Accordingly, we review whether the jury would
have understood that was the theory before it, whether the jury
was correctly instructed on that theory, and, if not, whether the
error was harmless.
First, the Attorney General concedes that the trial court
gave two conflicting instructions on count 2, preinstructing the
jury on driving theft and instructing the jury, incompletely, after
the close of evidence on posttheft driving. The Attorney General
nonetheless asserts that the jury would have understood that the
posttheft driving instruction applied because the trial court also
preinstructed the jury that after “you have heard all the evidence
and before the attorneys give their final arguments, I will
instruct you on the law that applies to the case.” Although this
preinstruction is in the written instructions given to the jury, the
Attorney General does not cite to the reporter’s transcript where
the court read it to the jury. In any event, the trial court then
repeated before closing arguments, “I will now instruct you on the
law that applies to this case” and it thereafter instructed on
posttheft driving.
11
By this, the jury certainly would have understood that the
instructions following the trial court’s statement made just before
closing argument applied to the case. But the jury would not
have understood that any instructions preceding that
statement—i.e., the preinstructions—were inapplicable or
irrelevant. There was no clear instruction to that effect. We are
therefore unpersuaded that the trial court’s statements regarding
the “law that applies to this case” were sufficient to inform the
jury that the preinstruction regarding count 2 was irrelevant or
superseded by the post evidence instruction on count 2.
Second, even if the jury assumed that only the post
evidence instructions applied, CALCRIM No. 1820 as given was
incomplete. It instructed the jury that to find Alfrey guilty of
“driving a vehicle” without consent, the People had to prove only
two things: 1. Alfrey took someone else’s vehicle without their
consent, and 2. when Alfrey took the vehicle, he intended to
deprive the owner of possession or ownership of the vehicle for
any period of time. (CALCRIM No. 1820.) The trial court
omitted the third element, that “the driving occurred after a
substantial break from the original theft of the vehicle.”
(CALCRIM No. 1820.) The prosecutor also omitted this third
element when discussing the elements of the offense in closing.
She argued, “Count 2 is the violation of Vehicle Code
section 10851. This is related to actually driving away with her
vehicle that same night. There are two elements related to this
crime: [¶] One is that [Alfrey] drove someone else’s vehicle
without the owner’s consent. There is no issue here. The only
evidence before you is that this is Ms. Debonis’s car. She was
very clear that he stole her car when she was talking to the 9-1-1
operator. She was clear that this was her vehicle. There is no
12
issue there, and there is no issue that this was without her
consent. That is why she called the police. He wasn’t allowed to
take it; [¶] Element 2 is that when the defendant drove, he
intended to deprive the owner of possession of the vehicle. This is
for any period of time, even if it was just a minute, any period of
time. And, essentially, we have that here because he got in the
vehicle, he drove, and he left the location. By the time [the]
police arrived, he still wasn’t back. He didn’t come back with the
keys or the vehicle for roughly five hours later.” CALCRIM
No. 1820 therefore was incomplete, and the prosecutor did not
cure the deficiency in her closing argument. Thus, the jury “could
theoretically have understood guilt to be proved if defendant stole
the vehicle by driving it away from where the owner had parked
it.” (Lara, supra, 6 Cal.5th at p. 1138.)
Finally, we must consider whether the instructional errors
were prejudicial under Chapman. Lara found a similar error
harmless beyond a reasonable doubt. (Lara, supra, 6 Cal.5th at
p. 1138.) In that case, a vehicle was stolen from in front of the
owner’s house, and the defendant was apprehended driving the
vehicle six or seven days later. (Id. at pp. 1132, 1137.) This time
gap “indisputably qualifie[d]” as a substantial break between the
theft and the driving. (Id. at p. 1138; accord, People v. Martell
(2019) 42 Cal.App.5th 225, 235 [five weeks constitutes
substantial break from taking]; People v. Garza (2005) 35 Cal.4th
866, 882 [defendant found in car stolen six days earlier].)
Similarly, in Calistro, supra, 12 Cal.App.5th at page 391, the
victim heard his car being driven away. Five hours later, police
found the defendant sitting in the car at a store five miles from
where it had been taken. (Id. at p. 392.) This too constituted
13
sufficient evidence of a substantial break between the theft and
the driving. (Id. at pp. 402–403.)
The Attorney General asserts that similar strong evidence
of a substantial break of five hours passed here, between Alfrey’s
taking of the car and his return of it. It is unclear, however, on
what evidence the Attorney General bases this assertion. The
prosecutor did argue in closing that five hours elapsed between
the time Alfrey took and returned the vehicle, but argument is
not evidence. (See, e.g., CALCRIM No. 104 [attorneys’ remarks
in opening statements and closing argument are not evidence];
see People v. Nadey (2024) 16 Cal.5th 102, 189.)
Instead, the evidence showed that Alfrey took Debonis’s
vehicle on September 18. Debonis called 911 at 10:22 p.m. At
10:35 p.m., a deputy sheriff was at Debonis’s home in response.9
Debonis’s testimony about when Alfrey returned the car was
unclear, as this colloquy shows:
“Q And now you testified you got your car back on
the 18th—is that correct?—The incident you just
testified about on the 18th. [¶] Is that fair to say?
“A Yeah.
“Q And the next day, the day after, Mr. Alfrey came
back; is that true?
“A Yeah. He brought my car back.
“Q Okay. He gave the keys to you; is that fair to
say?
“A Correct.”
9 Alfrey states in his brief that the 911 call was made at
10:35 p.m., but this is when Debonis gave her statement to the
police.
14
Debonis could be saying Alfrey returned the car the same day he
took it or the next day. She could even have been saying that he
came back with the car and at some point thereafter gave her its
keys. Salazar’s testimony was also ambiguous. He testified that
he was asleep when Alfrey returned the car, either the next day
or that night. And when the prosecutor asked Salazar if
reviewing the body cam video would refresh his recollection about
when the police responded after the vehicle was returned, he said
it was probably around 4:00 a.m. It therefore appears that Alfrey
took the vehicle sometime before 10:22 p.m. on September 18 and
returned the car before 4:00 a.m. on September 19, which could
mean that Alfrey returned it sometime on September 18 or in the
early morning hours of September 19.
Thus, the evidence about how long the break was between
the theft and the return of the vehicle was neither overwhelming
nor uncontested. (See generally People v. Oyler, supra, 17
Cal.5th at p. 838.) While defense counsel did not make any
argument regarding how much time elapsed between the theft
and the vehicle’s return, he did not agree that the substantial-
break element was satisfied. Instead, he focused on Alfrey’s
intent in taking the car, arguing he took it to escape Salazar’s
assault.
The conflicting instructions on count 2, in the absence of a
unanimity instruction, also support reversal.10 In a criminal
case, a jury verdict must be unanimous. (People v. Covarrubias
(2016) 1 Cal.5th 838, 878.) The unanimity requirement typically
10 We need not address the Attorney General’s argument that
Alfrey forfeited any argument of instructional error based on a
failure to give an unanimity instruction. We consider the
argument in the context of prejudice.
15
applies to acts that could have been charged as separate offenses,
such as in Vehicle Code section 10851, subdivision (a). (People v.
Garza, supra, 35 Cal.4th at p. 876.) As we have said, the trial
court gave the driving theft version of the offense at the outset of
the case, which included the element that the value of the stolen
vehicle had to be $950 or more. It then gave the incomplete
posttheft instruction at the close of evidence. Even though the
final instructions did not include the driving theft alternative,
both theories were presented to the jury. It is therefore unclear
that the jury unanimously agreed that Alfrey was guilty of
posttheft driving, even had it been properly instructed on that
crime.
We therefore conclude that the felony conviction for driving
a vehicle must be reversed and the matter remanded to allow the
People to make an election: either retry the offense with
appropriate instructions or dismiss count 2 and vacate the
sentence imposed on that count. (See People v. Martell, supra,
42 Cal.App.5th at pp. 237–239.)
Because we reverse the conviction on count 2, we need not
address Alfrey’s argument that the trial court erred in imposing
multiple punishments on counts 1 and 2.
II. Instructional error and count 5 for dissuading a witness
Alfrey was charged in count 5 with dissuading Debonis
from reporting a crime on or about September 28 through
September 29. The trial court, however, orally and in writing,
gave different dates for when the crime occurred—September 19,
28, and 29. Alfrey now contends that the instructions were thus
in conflict, requiring reversal. We disagree that reversal is
required.
16
The general presumption is that a jury is guided by the
written instructions. (People v. Davis (1995) 10 Cal.4th 463, 542.)
To the extent a discrepancy exists between written and oral
versions of instructions, the written instructions given to the jury
prevail. (People v. Frederickson (2020) 8 Cal.5th 963, 1026.)
Here, the trial court’s oral and written instructions
conflicted. The trial court orally instructed the jurors they had to
agree Alfrey committed the offense of dissuading a witness from
reporting victimization “on September 19.” (Italics added.) But
the written instructions stated that the jury had to agree “the
People have proved specifically that the defendant committed
that offense on September 29.” (Italics added.) The verdict form
stated that Alfrey committed the crime “on or about September
28 – 29.”
Notwithstanding the conflict in dates, the record
establishes that the jury understood it had to agree Alfrey
committed the offense on or about September 28 to September 29.
The verdict form and the written instruction referred to the
correct dates, although the written instruction omitted the 28th.
Also, the jury asked, “Are we determining verdicts for the events
that solely happened on 9/18/22 [¶] 9/28/22 & 9/29/22.” The trial
court responded, “Yes.” Therefore, the jury was told it was
considering events on those days, and not on September 19.
Alfrey, however, appears to argue that the jury could not
base its verdict on conduct taking place “on or about” September
28 to September 29, because there was evidence he committed
distinct acts on those days; therefore, the jury should have been
given a unanimity instruction or the prosecution should have
made an election as to what act constituted the crime. Not so.
“Neither an election nor a unanimity instruction is required when
17
the crime falls within the ‘continuous conduct’ exception.” (People
v. Salvato (1991) 234 Cal.App.3d 872, 882.) That exception
applies to the offense described in section 136.1,
subdivision (b)(1). The section’s focus is on an unlawful goal or
effect, the prevention of reporting a crime, “rather than on any
particular action taken to produce that end.” (Salvato, at p. 883.)
“ ‘Prevent’ and ‘dissuade’ denote conduct which can occur over a
period of time as well as instantaneously. The gravamen of the
offense is the cumulative outcome of any number of acts, any one
of which alone might not be criminal. Thus it falls within the
continuous conduct exception and no election or unanimity
instruction was required.” (Ibid.; accord, People v. Torres (2019)
39 Cal.App.5th 849, 858 [time is not material element of
offense].) Here, there was evidence that on September 28, Alfrey
told Debonis he would break her phone if she tried to use it. On
September 29, he told Debonis he would break down the front
door if she called the police. Thus, the jury properly could convict
Alfrey of trying to dissuade Debonis from reporting a crime over
the course of two days.
Next, Alfrey suggests that the jury would have been
confused because Salazar and the prosecutor referred to events
occurring on September 19, which would have highlighted the
erroneous oral instruction. First, Salazar alluded to an incident
on that day where Alfrey took Debonis’s cell phone, Salazar
tackled him, and Alfrey elbowed Salazar in the back. Salazar
immediately then talked about the 911 call on September 18 and
said, “Now I remember. It’s just too much to remember.” Second,
the prosecutor in closing argument about count 6 for burglary
referred to Alfrey kicking in the front door “on September 19.”
18
Neither Salazar’s nor the prosecutor’s references to
September 19 would have led the jury to believe that any of the
charged offenses, much less count 5, were based on something
occurring that day. Rather, Salazar’s testimony was confusing
and unclear whether he was mixing up that day with September
18. The prosecutor’s brief reference did not concern count 5 and
was, in any event, a clear misstatement. And, as we have said,
the jury’s question demonstrated its understanding that any
event on September 19 was not at issue.
III. Instructional error and count 6 for burglary
Alfrey next contends that the trial court should have given
a unanimity instruction as to count 6 for burglary because there
was evidence he made two entries into Debonis’s house on
September 29: when he kicked down the front door to enter the
house and when he then broke through the bedroom door.
However, as we now explain, the jury did not have to agree on
which entry gave rise to the burglary.
A court must give the unanimity instruction when the
evidence suggests more than one discrete crime, and the
prosecution does not elect which it intends to prove beyond a
reasonable doubt. (People v. Russo (2001) 25 Cal.4th 1124, 1132.)
“[T]he unanimity instruction is appropriate ‘when conviction on a
single count could be based on two or more discrete criminal
events,’ but not ‘where multiple ... acts may form the basis of a
guilty verdict on one discrete criminal event.’ [Citation.] In
deciding whether to give the instruction, the trial court must ask
whether (1) there is a risk the jury may divide on two discrete
crimes and not agree on any particular crime, or (2) the evidence
merely presents the possibility the jury may divide, or be
uncertain, as to the exact way the defendant is guilty of a single
19
discrete crime.” (Id. at p. 1135.) Russo applied this law to
burglary, which requires an entry into a structure with the intent
to commit a theft or felony. (§ 459.) The court said that where
there was evidence of two different entries with burglarious
intent into two different homes, the jury would have to
unanimously find the defendant guilty of at least one of those
acts. (Russo, at pp. 1132–1133.) But if the evidence showed a
single entry but uncertainty as to the exact burglarious intent,
“that uncertainty would involve the theory of the case and not
require the unanimity instruction.” (Id. at p. 1133.)
People v. Taylor (2010) 48 Cal.4th 574 applied Russo. The
evidence was that the burglary occurred when the defendant first
entered the victim’s home and/or when he entered a bedroom
where he committed sexual assaults. (Taylor, at p. 627.) Taylor
acknowledged that a burglary can be committed by entry into a
home with the requisite intent and also by entry with the
requisite intent “from within the home into a bedroom inside the
home.” (Ibid.) “However, this is not to say the evidence in this
case showed the commission of two discrete burglaries requiring
a unanimity instruction. Rather, the evidence and argument on
alternative ‘entries’ bore on the issue of when defendant’s
felonious intent arose—whether before entry into the home
and/or before entry into the back bedroom—and thus concerned
the theory of his liability for a singular burglary.” (Id. at
pp. 627–628.) Because this evidence presented the jury with
different possibilities as to the exact way the defendant was
guilty of a discrete crime, a unanimity instruction was
unnecessary. (Id. at p. 628.)
The same is true here. Where Alfrey “entered” the home—
either at the front door or at the bedroom door—bore on when his
20
felonious intent arose. Thus, this argument concerns the theory
of how a discrete burglary occurred, and not two discrete
burglaries. A unanimity instruction was not required.
In his reply brief, however, Alfrey raises a different
argument: that the jury could have believed he was allowed to be
in the house but not the bedroom. Thus, entry into the house and
into the bedroom were “two discrete and independent acts of
burglary.” This argument, however, was not fully developed in
the opening brief, and we do not consider arguments raised for
the first time in a reply brief. (Reichardt v. Hoffman (1997) 52
Cal.App.4th 754, 764–766.) In any event, there was no evidence
that Alfrey was permitted in some parts of the house but not
others. (See generally People v. Richardson (2004) 117
Cal.App.4th 570, 574–575 [where burglar enters several rooms in
single structure and steals something from each, only one
burglary has occurred unless each room constituted separate,
individualized dwelling].)
IV. Instructional error and CALCRIM No. 375
The trial court admitted evidence that Alfrey had a prior
2012 conviction for dissuading a witness and instructed the jury
with CALCRIM No. 375, which informed the jury how it could
consider that evidence. CALCRIM No. 375, however, did not
specify it concerned the 2012 conviction. Alfrey contends that
this omission was prejudicial error, because the jury might have
believed the instruction referred to other uncharged acts of
domestic violence that the court admitted. We conclude that any
error was harmless.
21
A. Additional background
Under Evidence Code section 1101, subdivision (b), the trial
court took judicial notice that Alfrey had a 2012 felony conviction
for violating section 136.1, subdivision (b)(1). Evidence Code
section 1101 generally prohibits bad character evidence; however,
subdivision (b) of that section states an exception for evidence
relevant to prove, for example, intent. (See generally People v.
Balcom (1994) 7 Cal.4th 414, 422.)
With respect to that 2012 conviction, the trial court
instructed the jury with CALCRIM No. 375 as follows:
“The People presented evidence that [Alfrey]
committed another offense that was not charged in
this case.
“You may consider this evidence only if the People
have proved by a preponderance of the evidence that
[Alfrey] in fact committed the uncharged offense ….
“If the People have not met this burden, you must
disregard this evidence entirely.
“If you decide that [Alfrey] committed the uncharged
offense, you may, but are not required to, consider
that evidence for the limited purpose of deciding
whether: [¶] [Alfrey] acted with the intent to
prevent or discourage Beth Debonis from reporting
victimization in this case.
“Do not consider this evidence for any other purpose.
“Do not conclude from this evidence that [Alfrey] has
a bad character or is disposed to commit crime.
“If you conclude that [Alfrey] committed the
uncharged offense, that conclusion is only one factor
to consider along with all the other evidence. It is not
22
sufficient by itself to prove that [Alfrey] is guilty of
Count 5. The People must still prove each charge
beyond a reasonable doubt.”
In addition to evidence of the 2012 prior conviction, the
trial court admitted evidence under Evidence Code section 1109
that Alfrey had three uncharged incidents of domestic violence.
The section provides that in a criminal action where the
defendant is accused of an offense involving domestic violence,
evidence the defendant committed other domestic violence is not
made inadmissible by Evidence Code section 1101 if the evidence
is not inadmissible pursuant to Evidence Code section 352.
(Evid. Code, § 1109, subd. (a).)
With respect to those uncharged incidents, the trial court
instructed the jury with CALCRIM No. 852A as follows:
“The People presented evidence that [Alfrey]
committed domestic violence that was not charged in
this case.
“Domestic violence means abuse committed against
an adult who is a cohabitant, former cohabitant,
person who dated or is dating [Alfrey], or person who
was or is engaged to [Alfrey].
“Abuse means intentionally or recklessly causing or
attempting to cause bodily injury or placing another
person in reasonable fear of imminent serious bodily
injury to himself or herself or to someone else.
[¶] ... [¶]
“You may consider this evidence only if the People
have proved by a preponderance of the evidence that
[Alfrey] in fact committed the uncharged domestic
violence.…
23
“If the People have not met this burden of proof, you
must disregard this evidence entirely.
“If you decide that [Alfrey] committed the uncharged
domestic violence, you may, but are not required to,
conclude from that evidence that the defendant was
disposed or inclined to commit domestic violence and,
based on that decision, also conclude that [Alfrey]
was likely to commit and did commit Assault with
Deadly Weapon, as charged here. If you conclude
that [Alfrey] committed the uncharged domestic
violence, that conclusion is only one factor to consider
along with all the other evidence. It is not sufficient
by itself to prove that the defendant is guilty of
Assault with Deadly Weapon. The People must still
prove each charge and allegation beyond a reasonable
doubt.”
B. Any instructional error was harmless
At the outset, we note that Alfrey forfeited this
instructional error claim because his defense counsel did not ask
the trial court to modify CALCRIM No. 375. (See, e.g., People v.
Orloff (2016) 2 Cal.App.5th 947, 958.)
But even if Alfrey did not forfeit this claim, and assuming
the trial court did have a duty to modify CALCRIM No. 375 as
Alfrey argues, any error was harmless. As we have said, we
independently review whether instructions correctly state the
law, considering them as a whole. (People v. Lewis, supra, 14
Cal.5th at p. 900.) We review instructional error under either
Chapman, supra, 386 U.S. at page 24, or People v. Watson (1956)
46 Cal.2d 818, 836. The Chapman standard applies to errors of
constitutional dimension and requires reversal unless the
24
reviewing court can conclude beyond a reasonable doubt that the
error did not contribute to the verdict. (Chapman, at p. 24.) The
Watson standard applies to state law errors and requires reversal
if it is reasonably probable the defendant would have obtained a
more favorable result had the error not occurred. (Watson, at
p. 836.)
Under either standard, any error was harmless. The jury
would not have interpreted CALCRIM No. 375 in the manner
Alfrey asserts, to apply to the three prior acts of domestic
violence. Rather, CALCRIM No. 375 stated that the uncharged
offense—singular, not plural—could be considered to determine
whether Alfrey acted with the intent to discourage Debonis from
reporting victimization in this case, as charged in count 5. The
only prior offense that was also for a violation of section 136.1,
subdivision (b)(1), was the 2012 conviction for that crime. Thus,
the 2012 conviction was the only incident directly relevant to
Alfrey’s intent to commit count 5.
The instructions as a whole support this interpretation.
That is, CALCRIM No. 852A stated that it applied to “evidence
that [Alfrey] committed domestic violence that was not charged
in this case.” The only uncharged acts directly involving
domestic violence were those committed on May 7, 2021, January
16, and June 6. The 2012 conviction was for dissuading a witness
from reporting victimization to law enforcement under section
136.1, subdivision (b)(1). Moreover, the prosecutor in her closing
argument did not refer to the prior incidents of domestic violence
while discussing count 5.
For these reasons, we conclude that any error in not
modifying CALCRIM No. 375 to reference the 2012 conviction
specifically was harmless.
25
V. Three Strikes sentencing
The trial court sentenced Alfrey on counts 5, 6, and 10
under the Three Strikes law. Alfrey now contends he did not
receive adequate notice he could be sentenced under that law on
those counts and therefore his Three Strikes sentences violated
his due process rights. We disagree.
A. Additional background
In August 2023, the People filed an information charging
Alfrey with the offenses occurring on September 18, counts 1 and
2. The information also alleged that Alfrey had two prior
convictions for serious or violent felonies subjecting him to
sentencing under the Three Strikes law on both counts. The
information further identified the two convictions, a 2012
conviction under section 136.1 and a 2015 conviction for
section 417.8.
In September 2023, the People filed an information
charging Alfrey with eight offenses arising out of the events on
September 28 and 29. The information alleged that Alfrey had
the same two prior convictions for serious or violent felonies,
subjecting him to sentencing under the Three Strikes law as to
counts 1 through 7.11
On the People’s motion, the trial court consolidated the
cases, and the People filed an information in the consolidated
case in October 2023. The information alleged 10 offenses and
the same Three Strikes allegation as to all counts except count 10
for vandalism. At the reading of the consolidated information,
the People stated that Alfrey’s maximum exposure was 100 years
11 The information excluded count 8 for vandalism from this
allegation.
26
to life, eight years, eight months because of the “two prior
strikes.” The trial court added that Alfrey was looking at “a
minimum of 25 to life,” “some of the charges alone carry 25 to life
so they get you on any of serious or violent felonies, it is 25 to life.
Just on one count, and that if “they find you guilty on the
robbery, the bur[glaries], the assaults, the intimidating a
witness, any of those, it’s 25 to life on any individual one. Not all
of them. One. So if you think you’re to fall on maybe just one of
them, you’re looking at potentially the rest of your life in state
prison subject to any hearings that I would have.”
During trial on November 2, 2023, the People amended the
information to conform to proof, making changes not relevant
here. As relevant here, the amended information alleged the
Three Strikes law only as to counts 1 and 2.
At sentencing, the trial court found that Alfrey suffered the
two prior serious or violent felony convictions, denied his
Romero12 motion, and sentenced him under the Three Strikes law
on counts 2, 5, 6, and 10.
B. Adequate notice of sentencing allegation
The Three Strikes law is a “single comprehensive and
indivisible sentencing scheme” (People v. Garcia (1999) 20
Cal.4th 490, 502) designed “to ensure longer prison sentences and
greater punishment for those who commit a felony and have been
previously convicted of one or more serious or violent felony
offenses” (§ 667, subd. (b)). Under the Three Strikes law, in most
cases a life sentence will not be imposed for a third strike unless
the new felony offense is either violent or serious. (§§ 667,
subd. (e)(2)(C); 1170.12, subd. (c)(2)(C).) Application of the Three
12 People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
27
Strikes law thus is based on a defendant’s conviction status,
which does not change from count to count. (People v. Laanui
(2021) 59 Cal.App.5th 803, 815 (Laanui).)
“A defendant has a due process right to fair notice of any
sentencing allegation that, if proven, will increase the
punishment for a crime.” (In re Vaquera (2024) 15 Cal.5th 706,
717; People v. Mancebo (2002) 27 Cal.4th 735, 747.) Laanui,
supra, 59 Cal.App.5th 803 considered the due process right to fair
notice in the context of the Three Strikes law. In Laanui, at
page 814, the information alleged that sentences on counts 1, 2,
and 3 could be doubled under the Three Strikes law, but it did
not similarly allege the law as to count 6. The trial court
nonetheless applied the Three Strikes law on counts 1 through 3,
and 6. Laanui, at page 818, found that the defendant had fair
notice he would be sentenced under the Three Strikes law on
count 6. The court observed that a “defendant’s prior conviction
status is not based on the circumstances of [the defendant’s]
current offense, and thus ‘does not change from one count to
another.’ ” (Laanui, at p. 817.) The court accordingly held that
“an information invoking the Three Strikes law and alleging a
prior strike, in tandem with the language of the Three Strikes
law itself, provides adequate notice that the prosecution is
charging defendant as a recidivist offender subject to the Three
Strikes sentencing regime on all eligible offenses.” (Ibid.; accord,
People v. Hinojos (2025) 111 Cal.App.5th 19, 36–37; People v.
Morales (2003) 106 Cal.App.4th 445, 456.)
Here, all of the informations alleged that Alfrey had two
prior serious or violent convictions that brought him within the
Three Strikes sentencing scheme. Under Laanui, Alfrey
28
therefore had fair notice he would be sentenced under the Three
Strikes law as to all counts, including counts 5, 6, and 10.
We are unpersuaded by Alfrey’s argument that Laanui is
distinguishable because the prosecutor here removed the Three
Strikes allegations as to all counts except counts 1 and 2 when it
amended the information. Laanui, supra, 59 Cal.App.5th at
page 815, observed that despite the general rule that prosecutors
have discretion to select criminal charges, “ ‘the Three Strikes
law limits that discretion and requires the prosecutor to plead
and prove each prior serious felony conviction.’ ” (See also § 667,
subd. (f)(1) [Three Strikes law “shall be applied in every case in
which a defendant has one or more prior serious or violent felony
convictions”].) A prosecutor may not unilaterally strike a prior
conviction allegation but must move to dismiss it for insufficient
evidence or in the furtherance of justice. (§ 667, subd. (f)(2);
compare with In re Vaquera, supra, 15 Cal.5th at pp. 723–724
[prosecutor has discretion to charge One Strike law].) Thus,
when the prosecutor filed the amended information, the
prosecutor did not have discretion to limit the prior conviction
allegations to certain counts except on a proper motion.
But even if we disagreed with Laanui, a failure to provide
notice in the information may be overcome if the prosecution
otherwise provided actual notice of the sentence it sought by
means other than the information. (In re Vaquera, supra, 15
Cal.5th at pp. 727–728.) Actual notice can take the form of a trial
court’s express indication of what the defendant’s sentence
exposure might be before submission of the case to a jury or the
prosecutor’s statements about the sentence it is seeking. (People
v. Anderson (2020) 9 Cal.5th 946, 964; People v. Houston (2012)
54 Cal.4th 1186, 1227.)
29
Here, the August, September, October, and November 2023
informations all notified Alfrey that the People sought sentencing
under the Three Strikes law. (Compare with People v. Sawyers
(2017) 15 Cal.App.5th 713 [defendant could not be sentenced
under Three Strikes law where information didn’t allege that law
or that burglary was a strike].) And when the People filed the
October 2023 consolidated information, the prosecutor stated that
Alfrey’s maximum exposure was 100 years to life, eight years,
eight months, because of the two prior strikes. The trial court
added that if the jury found him guilty on the “bur[glaries], the
assaults, the intimidating a witness, any of those, it’s 25 to life on
any individual one.” Thus, the trial court and the prosecutor told
Alfrey he was facing Three Strikes sentencing for at least
intimidating a witness (count 5) and burglary (count 6).13 (See,
e.g., People v. Anderson, supra, 9 Cal.5th at p. 964 [suggesting
that had prosecutor told defendant from outset it planned to seek
gun enhancement as to robbery counts, this would have
constituted actual notice].) We therefore conclude that Alfrey
had actual notice he could be sentenced under the Three Strikes
law on all counts.
VI. Section 654 and counts 5 and 6
The trial court imposed consecutive sentences on count 5
for dissuading a witness and count 6 for burglary. Alfrey now
contends that one of those sentences should have been stayed
under section 654.
13 The People also filed a sentencing memorandum, albeit
after Alfrey waived his right to a jury on the prior convictions,
asking that Alfrey be sentenced under the Three Strikes law on
counts 5, 6, and 10.
30
Section 654 provides that an “act or omission” “punishable
in different ways by different provisions of law may be punished
under either of such provisions, but in no case shall the act or
omission be punished under more than one provision.” The
section thus “precludes multiple punishments for a single act or
indivisible course of conduct.” (People v. Hester (2000) 22 Cal.4th
290, 294.) Whether a course of criminal conduct is divisible,
giving rise to more than one act, depends on the actor’s intent
and objective. (People v. Jackson (2016) 1 Cal.5th 269, 354.) If
all offenses were incident to one objective, the defendant may be
punished for only one offense. (Ibid.) But if the defendant
harbored multiple criminal objectives independent of and not
merely incidental to each other, the defendant may be punished
for each statutory violation. (People v. Harrison (1989) 48 Cal.3d
321, 335.)
“Intent and objective are factual questions for the trial
court, which must find evidence to support the existence of a
separate intent and objective for each sentenced offense.” (People
v. Jackson, supra, 1 Cal.5th at p. 354.) “A trial court’s express or
implied determination that two crimes were separate, involving
separate objectives, must be upheld on appeal if supported by
substantial evidence.” (People v. Brents (2012) 53 Cal.4th 599,
618.)
Here, the trial court imposed consecutive sentences on
counts 5 and 6 because, in its words, the section 136.1 violation
“occurred over the course of two days and has nothing to do with
the burglary; its independent purpose. And count 6 occurred on
the 29th. So the 136 charge happened before count 6 ever came
to play.” The trial court further explained that count 5 occurred
when Alfrey intended to kick down the door to Debonis’s home on
31
September 28, and count 6 occurred on September 29, when
Alfrey “intended to scare or hurt the witnesses by breaking into
the bedroom.” The trial court therefore found that, first, Alfrey
harbored multiple independent criminal objectives and, second,
his course of conduct was divisible in time.
Substantial evidence supports the trial court’s first finding,
that Alfrey harbored different intents and objectives as to each
count.14 As we have said, there was evidence count 5 took place
over the course of two days, September 28 and 29. On September
28, Alfrey attacked Debonis and would not let her use her phone,
thereby preventing her from calling the police. On September 29,
Alfrey told Debonis he would break down the front door if she
called 911 and then made good on his threat. As to count 6,
Alfrey broke down the front door, and he then broke down the
door to the bedroom Debonis and Salazar had fled to. This
evidence supported a finding that Alfrey threatened Debonis on
September 28 and/or broke down the front door on September 29
to dissuade her from calling the police. The evidence separately
supported a finding that Alfrey entered the bedroom with the
intent to harm Debonis and/or Salazar. (See, e.g., People v.
Galvez (2011) 195 Cal.App.4th 1253, 1263 [defendant could be
punished for both robbery and witness dissuasion where he
intended to take victim’s phone to prevent 911 call and then beat
victim, who no longer had phone]; People v. Nichols (1994) 29
Cal.App.4th 1651, 1657–1658 [defendant had separate objectives
during two-hour kidnapping during which he threatened to kill
victim if he opened his mouth: intent to kidnap and intent to
dissuade].)
14 Because we so conclude, we need not address the second
ground for the trial court’s ruling.
32
Alfrey, however, argues that the jury’s acquittal on the
assault with a deadly weapon counts arising from the events of
September 29 precluded the trial court from finding he made an
entry with the intent to harm Debonis or Salazar. True, a trial
court is bound by any fact findings necessary to a jury’s verdict.
(See People v. Siko (1988) 45 Cal.3d 820, 826.) However, the
record does not show that the acquittals rested on a factual basis
requiring application of section 654. (See generally People v.
Carter (2019) 34 Cal.App.5th 831, 842–843 [trial court may
generally base § 654 decision on any facts in evidence without
regard to verdicts, unless record reflects single factual basis for
verdict].) The jury was instructed that assault with a deadly
weapon required proof Alfrey did an act with a deadly weapon
that by its nature would directly and probably result in
application of force to a person, he did the act willfully, he was
aware of facts that would lead a reasonable person to realize his
act by its nature would directly and probably result in the
application of force to someone, and defendant had the present
ability to apply force with the weapon. (CALCRIM No. 875.) It is
unclear what element or elements the jury found unproven, but it
could have found significant evidence that Salazar armed himself
with a pocketknife before Alfrey entered the room. This belief,
however, would not negate a finding that Alfrey entered the room
with the specific intent to harm Debonis and Salazar.
Nor do we agree that the prosecutor’s closing argument
limited the trial court’s ability to find Alfrey entered the room
with a felonious intent to harm the occupants. In closing, the
prosecutor said, as to count 6, that the jury had to find Alfrey
entered the home with the intent to commit theft or dissuading a
witness. This brief comment did not establish a factual basis for
33
the jury’s acquittal or otherwise limit the trial court’s fact finding
discretion. In any event, the jury was instructed that Alfrey had
to intend to commit theft, inflicting injury on a former girlfriend
causing traumatic injury, dissuading a witness, or criminal
threats when he entered the structure. (CALCRIM No. 1700.)
Finally, we disagree with Alfrey’s argument that the trial
court’s sentencing decision rests on a misstatement of the
evidence. Alfrey resurrects his arguments that count 5 for
dissuading a witness was based on events occurring on
September 19 and that the jury could not find he dissuaded a
witness on September 28. We have rejected that argument
above.
VII. Griffin error
The parties agree that the prosecutor committed Griffin
error when she said during rebuttal that Alfrey “has refused to
take responsibility for his actions from the beginning of these
incidents until now.” As we now explain, the error was not
prejudicial.
Griffin error occurs when a prosecutor comments on a
defendant’s failure to testify at trial or invocation of the
constitutional right to remain silent. (Griffin, supra, 380 U.S. at
pp. 613–615.) Griffin error requires reversal unless we conclude
that the error was harmless beyond a reasonable doubt under
Chapman, supra, 386 U.S. 18. (See, e.g., People v. Thompson
(2016) 1 Cal.5th 1043, 1118 [applying Chapman to Griffin error].)
“ ‘ “[I]ndirect, brief and mild references to a defendant’s failure to
testify, without any suggestion that an inference of guilt be
drawn therefrom, are uniformly held to constitute harmless
error.” ’ ” (People v. Boyette (2002) 29 Cal.4th 381, 455–456.)
34
Here, the prosecutor’s comment was brief and not a direct
and clear statement about Alfrey’s right not to testify. Rather, a
prosecutor’s similar comment that the defendant should “ ‘stand
up’ ” and “take responsibility for his actions” did not necessarily
refer to testifying, especially in the context of that case. (People
v. Brasure (2008) 42 Cal.4th 1037, 1060.)
Moreover, as soon as the prosecutor made the comment,
defense counsel objected, and, after a sidebar at which the trial
court agreed the prosecutor had improperly commented on
Alfrey’s right to remain silent, the trial court told the jury that
the comment was stricken. It then instructed, “The comments
from the prosecutor about accepting responsibility will be
stricken from the record. [¶] … [E]very one of the citizens of the
United States has a privilege against self-incrimination. You
cannot consider for any reason or purpose at all the fact that the
defendant has exercised that right and therefore you can’t take
anything from that. His actions and conduct are fair game to
talk about, but accepting responsibility, that’s totally
inappropriate. There will be no consideration of that.” The trial
court also instructed the jury with CALCRIM No. 355: “A
defendant has an absolute constitutional right not to testify. He
or she may rely on the state of the evidence and argue that the
People have failed to prove the charges beyond a reasonable
doubt. Do not consider, for any reason at all, [that] the fact that
the defendant did not testify. Do not discuss that fact during
your deliberations or let it influence your decision in any way.”15
We assume the jury followed these instructions. (See, e.g., People
15 The trial court later denied Alfrey’s motion for a new trial,
which included an argument about the Griffin error, citing the
curative instructions.
35
v. Thompson, supra, 1 Cal.5th at p. 1118.) And where, as here,
the instruction “not to consider the comment was immediate,
unequivocal and repeated,” comment on the defendant’s right to
not testify is not prejudicial. (People v. Brasure, supra, 42
Cal.4th at p. 1060.)
Also, immediately after the trial court gave the curative
instruction, the prosecutor said she was “not commenting on
[Alfrey’s] right to not say anything or put any evidence on in this
case. What I am referring to is the defendant taking
responsibility for the crimes he committed—times that he
committed them. There is no evidence that he apologized for
anything except apologizing—Bodie in the fight. There is no
evidence that he went back and repaired any of the property that
he damaged. There is no evidence that he tried to right any of
those wrongs that he committed in this case.” The prosecutor
thus reinforced that Alfrey had the right not to testify.
Alfrey, however, argues that the error was prejudicial in
the context of the other errors he has raised, that Salazar was not
a reliable witness, and that the jury acquitted Alfrey of multiple
offenses. We find this argument unpersuasive in view of the
nature of the comment and the trial court’s immediate and strong
admonishment. Moreover, that the jury acquitted Alfrey of
multiple offenses could be viewed as confirmation the jury was
not prejudiced by the comment.
VIII. Reopening evidence
After Alfrey waived his right to testify and the trial court
had begun instructing the jury, Alfrey moved to reopen the
evidence so that he could testify. The trial court denied the
motion. Alfrey now contends that the trial court violated his due
process right to testify. We disagree.
36
A. Additional background
On November 7, 2023, witnesses testified for the defense.
After, the trial court advised Alfrey of his privilege against self-
incrimination and of his rights to testify and not to testify. Alfrey
responded that he had only had a “little bit” of an opportunity to
discuss whether to testify with his counsel. When defense
counsel asked if they could talk in the breach, the trial court
refused, saying that they had “plenty of time” to discuss and
think about the issue. Alfrey and counsel conferred, and Alfrey
elected not to testify. Back in front of the jury, the trial court
said that both sides had rested and began instructing the jury.
The next morning, defense counsel asked to reopen the
defense case because Alfrey now wanted to testify. The
prosecutor objected that the jury had been mostly instructed and
she was ready to give her closing argument. The trial court
denied the request, noting that the case had been ongoing for
“quite a while,” Alfrey knew that the defense case was starting,
he had the lunch hour and 15 minutes after the afternoon recess
to discuss the issue with counsel, and he had elected not to
testify. Defense counsel responded that Alfrey was under a great
deal of stress, having watched his sister testify in his defense and
the trial court made evidentiary rulings after the People
presented its case that went against him.
B. No abuse of discretion occurred
A criminal defendant has the fundamental right to testify.
(Rock v. Arkansas (1987) 483 U.S. 44, 51–53; People v. Robles
(1970) 2 Cal.3d 205, 214–215.) The defendant must exercise that
right in a timely and adequate manner. (Robles, at p. 215; People
v. Alcala (1992) 4 Cal.4th 742, 805.) Where a defendant asserts
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the right to testify after resting, the demand to testify is deemed
a request to reopen the case to introduce additional evidence.
(People v. Jones (2012) 54 Cal.4th 1, 66; see §§ 1093, 1094.)
A motion to reopen the case to present additional evidence
is addressed to the trial court’s sound discretion. (People v.
Masters (2016) 62 Cal.4th 1019, 1069; People v. Earley (2004) 122
Cal.App.4th 542, 546.) In exercising its discretion, a trial court
must balance the State’s interest in not reopening the evidence
against the defendant’s interest in exercising a fundamental
constitutional right. (Rock v. Arkansas, supra, 483 U.S. at
pp. 55–56 & fn. 11.) To determine whether a trial court abused
its discretion by denying a motion to reopen, we consider four
factors: (1) what stage the proceedings had reached when the
defendant made the motion; (2) whether the defendant was
diligent in presenting the new evidence; (3) the prospect the jury
would give the new evidence undue emphasis; and (4) the
significance of the new evidence. (Masters, at p. 1069.)
Turning to those factors, first, Alfrey moved to reopen his
case after he had expressly waived his right to testify, after he
rested, and after the trial court began instructing the jury.
Alfrey suggests that reopening at this stage of trial would not
have been problematic because the trial court had not finished
instructing the jury and was correcting mistakes in instructions
that had been given. Thus, Alfrey asserts, all instructions should
have been reread anyways. We do not agree. Reopening the case
at this late stage of trial would have required reassessing the
instructions given, possibly adding instructions based on Alfrey’s
testimony, and rethinking closing summations. As the orderly
proceeding of the trial would have been disrupted, this factor
supports the trial court’s ruling. (Compare People v. Marshall
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(1996) 13 Cal.4th 799, 836 [no abuse of discretion in denying
request to reopen made after prosecutor began closing
summation]; with People v. Jones (2003) 30 Cal.4th 1084, 1110–
1111 [trial court abused its discretion in refusing to reopen case
when request made shortly after close of evidence]; People v.
Carter (1957) 48 Cal.2d 737, 757 [trial court improperly denied
motion to reopen made when defendant had just rested,
argument had not begun, and jury had not been instructed].)
Second, Alfrey was not diligent in asking to reopen. Given
that Alfrey wanted to offer his own testimony, the evidence was
not new and obviously available when he waived his right to
testify. (See, e.g., People v. Monterroso (2004) 34 Cal.4th 743, 779
[no error denying motion to reopen where evidence was available
during trial].) Alfrey’s explanation for his change of mind does
not show diligence in making his request. Rather, he linked his
waiver of his right to testify to stress about his sister’s testimony.
However, Alfrey would have known his sister was testifying, and
it is unclear why her testimony in support of his case would have
caused more stress than testimony against him.
Alfrey also suggests that the trial court’s late rulings on
two motions under Evidence Code section 402 made him unable
to properly evaluate his decision not to testify. However, the trial
court ruled on the first, a motion to bifurcate Alfrey’s prior
convictions, on November 1, 2023, six days before Alfrey had to
decide whether to testify. At that time, the trial court informed
Alfrey it would not bifurcate the priors if he testified. The trial
court did rule on the second, a motion to admit evidence Alfrey
was a covered driver on the vehicle’s insurance policy, the same
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day he had to decide whether to testify.16 The trial court
excluded the policy because there was no evidence who added
him, and the defense had no witness to testify about this issue.
Additionally, court excluded the evidence following an Evidence
Code section 352 analysis. Presumably, Alfrey was counting on
this evidence to show he had permission to drive the vehicle.
Even so, that he was a covered driver did not establish he had
permission to drive the vehicle, in view of evidence he did not
own the vehicle, Debonis did not give him permission to take the
vehicle, and he took it after fights with Debonis and/or Salazar.
Third, it was likely the jury would have given the new
evidence undue emphasis because Alfrey’s testimony would have
necessitated reinstruction. (See People v. Rodriguez (1984) 152
Cal.App.3d 289, 295 [reason for due diligence requirement is jury
may give undue weight to evidence admitted close in time to
deliberations].)
Fourth, a defendant’s testimony at his criminal trial may
be “ ‘unique and inherently significant.’ ” (Green v. United States
(1961) 365 U.S. 301, 304.) Alfrey argues that his testimony was
significant because there were only three witnesses to what
happened in the house, and one, Debonis, had died before trial,
and the other, Salazar, was not credible. Debonis’s preliminary
hearing testimony, however, was admitted at trial. And although
Salazar was uncertain or ambiguous at times about, for example,
when events happened, we cannot agree that the jury must have
found him not credible. In any event, they were not the only
16 It is unclear why the motion was not heard earlier,
although the trial court said that Alfrey could have asked it be
addressed earlier and alluded to defense counsel ignoring
documents relevant to the motion.
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witnesses to or evidence of the events. Debonis called 911 around
the time of or during the events, and those calls were admitted.
Also, Debonis’s neighbor heard Alfrey yelling, “ ‘I didn’t mean to
hurt you’ ” at Debonis as she drove away on September 29 and
saw Alfrey hitting the vehicle with his hand as well as throwing
rocks at it. And physical evidence supported the victims’
testimony: the car’s tires were punctured and the front and
bedroom doors were damaged. We therefore cannot find that
Alfrey’s proposed testimony, especially since he has given little
indication of its substance, was significant.
In sum, the Masters factors support the trial court’s ruling.
Accordingly, the trial court did not abuse its discretion by
denying Alfrey’s motion to reopen.
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DISPOSITION
The judgment is reversed and remanded as to count 2 with
the direction to the trial court to allow the People to elect to retry
count 2. If the People elect not to retry count 2, the court shall
dismiss that count and vacate the sentence on count 2. The
judgment is otherwise affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
ASHWORTH. J.*
We concur:
ADAMS, P. J.
HANASONO, J.
* Retired Judge of the El Dorado Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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