People v. Barajas CA5

Filed 9/3/21 P. v. Barajas CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

THE PEOPLE, F081406 Plaintiff and Respondent, (Super. Ct. No. BF179605A) v.

ALAN ANDRE BARAJAS, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Kern County. John W. Lua, Judge. Aurora Elizabeth Bewicke, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and F. Matt Chen, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Franson, Acting P.J., Smith, J. and Meehan, J.

Defendant Alan Andre Barajas stands convicted of making a criminal threat and misdemeanor trespass. On appeal, he contends (1) the evidence was insufficient to support his conviction for trespass, (2) the trial court erred in failing to give a unanimity instruction as to the trespass charge, (3) the prosecutor engaged in misconduct by referring to facts not in evidence, requiring reversal of his criminal threats conviction, and (4) his term of probation must be modified to two years pursuant to Penal Code section 1203.1, subdivision (a),1 as amended by Assembly Bill No. 1950 (2019−2020 Reg. Sess.) (Assembly Bill 1950). The People concede that defendant’s trespass conviction should be reversed, disagree on defendant’s claim of prosecutorial misconduct, and agree that defendant is entitled to relief pursuant to Assembly Bill 1950. We reverse the trespass conviction and modify defendant’s term of probation to two years. As modified, we affirm. PROCEDURAL SUMMARY On June 8, 2020,2 the Kern County District Attorney filed an amended information charging defendant with making a criminal threat (§ 422; count 1) and misdemeanor trespass (§ 602, subd. (m); count 2).3 On June 10, a jury trial commenced. At the close of the People’s case, defendant moved to dismiss counts 1 and 2 for insufficient evidence. The trial court denied defendant’s motion as to both counts. On June 12, the jury found defendant guilty on both counts.

1 All further statutory references are to the Penal Code. 2 All further dates refer to the year 2020 unless otherwise stated. 3 The amended information originally charged misdemeanor trespass as count 3 and misdemeanor unlawfully driving a vehicle onto the property of another (§ 602, subd. (n)) as count 2. However, on June 8, the trial court granted the People’s request to dismiss count 2 as “mischarged” and renumber the misdemeanor trespass as count 2.