People v. Newton CA2/6

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Filed 9/22/25 P. v. Newton CA2/6
     NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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has not been certified for publication or ordered published for purposes of rule 8.1115.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

                         SECOND APPELLATE DISTRICT

                                         DIVISION SIX


THE PEOPLE,                                                   2d Crim. No. B334654
                                                           (Super. Ct. No. 2021025973)
     Plaintiff and Respondent,                                  (Ventura County)

v.

TRACY NEWTON, JR.,

     Defendant and Appellant.




      Tracy Newton, Jr. appeals an order of probation granted
following his conviction of stalking, making criminal threats (two
counts), and brandishing an imitation firearm. (Pen. Code,
§§ 646.9, subd. (a), 422, 417.4.)1
      This appeal concerns Newton’s acts, statements,
voicemails, and text messages threatening the mother of his
children. On appeal, Newton raises contentions regarding

         1 All statutory references are to the Penal Code unless

otherwise stated.
evidentiary rulings, jury instructions, and alleged prosecutorial
misconduct, among other arguments. He asserts that the trial
court’s instructional errors and the alleged prosecutorial
misconduct denied him a fair trial, due process of law, and a
unanimous jury verdict, pursuant to the federal and state
Constitutions. We reject these contentions and affirm.
            FACTUAL AND PROCEDURAL HISTORY
       Sarah Ceranek and Newton are parents to two minor
children. In September 2020, Ceranek and the children moved
into her sister’s home. She considered herself separated from
Newton, but she and the children continued to interact with him.
On July 4, 2021, Ceranek and Newton had an argument inside
her vehicle in the presence of the children. Ceranek called the
police from her car.
       From July 4, 2021, until August 13, 2021, Ceranek did not
allow Newton to visit the children. Newton would appear at the
sister’s home and argue with Ceranek. On August 13, 2021,
Newton sent Ceranek text messages telling her that she would
see her dead father soon, and he (Newton) wanted her dead. The
messages were accompanied by a photograph of a firearm held by
a hand with two rings. At trial, the prosecutor introduced the
text messages and the photograph into evidence.
       Newton also left a voicemail for Ceranek stating that he
wanted to cut her throat. On August 19, 2021, Ceranek filed a
police report against Newton to obtain a restraining order.
Subsequently, she obtained an emergency protective order.
       On August 21, 2021, Simi Valley Police Officer Joshua
Mirabella spoke with Ceranek over the telephone and in person.
Ceranek informed Mirabella that she was frightened of Newton
and that he had been harassing her. She also reported that he




                                2
had been previously physically violent with her. Ceranek
provided Mirabella with approximately 43 voicemail messages
Newton had left her during the prior week, a photograph of the
firearm he texted, and surveillance video footage in which
Newton is seen in front of the sister’s home. Ceranek identified
the hand holding the firearm as Newton’s hand, based upon the
rings.
       On September 10, 2021, Newton appeared outside the
sister’s home and told Ceranek he wanted to visit the children.
Ceranek and Newton shouted at each other and Ceranek’s
brother-in-law came outside. Newton then returned to his
vehicle and Ceranek saw a firearm laying on the front seat. On
September 10, 2021, Simi Valley Police Officer James Wismar
responded to a call from Ceranek. She informed him that
Newton approached her and then removed a firearm from his
waistband and held it alongside his body.
       During Newton’s confinement in county jail, he placed
telephone calls to Ceranek. The jail conversations were recorded
and played at trial. During the conversations, Ceranek expressed
fear of Newton.
       Ceranek refused to testify at trial and the trial court
declared that she was legally unavailable pursuant to Evidence
Code section 240. For that reason, Ceranek’s preliminary
examination testimony was read at trial.
       The jury convicted Newton of stalking, making criminal
threats (two counts), and brandishing an imitation firearm.
(§§ 646.9, subd. (a), 422, 417.4.) The trial court suspended
imposition of sentence and placed Newton on felony probation for
36 months with terms and conditions.




                               3
       Newton appeals and raises issues regarding evidentiary
rulings, proof of the imitation firearm, jury instructions, and
asserted prosecutorial misconduct.
                            DISCUSSION
                        Right to Confrontation
       Newton contends that the trial court erred by admitting
into evidence Ceranek’s hearsay statements in violation of his
constitutional rights pursuant to the Sixth Amendment
Confrontation Clause and the California Constitution. (Crawford
v. Washington (2004)
541 U.S. 36, 48
[Sixth Amendment
precludes admission of testimonial statements of a witness who
did not appear at trial unless the witness was unavailable to
testify and the defendant had a prior opportunity for cross-
examination].) Specifically, he objects to Ceranek’s statements to
police officers, the 911 dispatch operator, and to himself during
the jail telephone calls he placed to her.
       The confrontation clause does not prohibit the prosecution
from impeaching the former testimony of its own unavailable
witness with his or her inconsistent statements, providing the
statements are admitted only for impeachment purposes. (People
v. Blacksher (2011)
52 Cal.4th 769, 808
.) Evidence Code sections
1235 and 770 permit admission of a witness’s prior inconsistent
statements.
       Also, a spontaneous statement is admissible as an
exception to the hearsay rule providing certain foundation
requirements are satisfied. (Evid. Code, § 1240.)
       Here Ceranek, an unavailable witness at trial, testified at
the preliminary examination and denied being in fear of Newton.
She stated otherwise to police officers earlier, however, although
she denied making such statements. Thus, the trial court did not




                                4
abuse its discretion by permitting Ceranek’s statements to
Mirabella that she feared Newton – that he would physically
harm her or take the children. Likewise, Ceranek’s statements to
Wismar that she feared Newton because he displayed a firearm,
threatened to kill her, and threatened to take the children, were
admissible as inconsistent statements.
       Ceranek’s 911 telephone call was properly admitted as a
spontaneous statement. (People v. Banos (2009)
178 Cal.App.4th
483, 486-488
[911 call to report ongoing emergency is
nontestimonial statement that does not offend confrontation
rights].) The trial court overruled Newton’s objection after
listening to the call and finding that the call was made within
two minutes of an incident with Newton and that Ceranek stated
that she was shaking during the call.
       The trial court also did not abuse its discretion by
admitting evidence of Ceranek’s statements to Newton made
during their recorded jail conversations. Ceranek admitted that
she feared him during these conversations. These statements
were inconsistent with her testimony at the preliminary
examination.
                       Sufficiency of Evidence
       Newton argues insufficient evidence supports the charge of
brandishing an imitation firearm. Specifically, he contends that
the prosecutor failed to establish that the object was a replica
firearm as opposed to an actual firearm.
       In reviewing the sufficiency of evidence to support a
conviction, we examine the entire record and draw all reasonable
inferences therefrom in favor of the judgment to determine
whether there is reasonable and credible evidence from which a
reasonable trier of fact could find the defendant guilty beyond a




                               5
reasonable doubt. (People v. Collins (2025)
17 Cal.5th 293
, 307;
People v. Thomas (2023)
14 Cal.5th 327
, 377,) We do not
redetermine the weight of the evidence or the credibility of
witnesses. (People v. Albillar (2010)
51 Cal.4th 47, 60
; People v.
Young (2005)
34 Cal.4th 1149, 1181
[“Resolution of conflicts and
inconsistencies in the testimony is the exclusive province of the
trier of fact”].) We must accept logical inferences that the trier of
fact might have drawn from the evidence although we may have
concluded otherwise. (People v. Rivera (2019)
7 Cal.5th 306, 331
.)
“If the circumstances reasonably justify the trier of fact’s
findings, reversal of the judgment is not warranted simply
because the circumstances might also reasonably be reconciled
with a contrary finding.” (Albillar, at p. 60.)
       Prior to the confrontation on September 10, 2021, Newton
sent Ceranek a threatening text message that included a
photograph of a firearm. The trial court admitted the photograph
into evidence. In September 2021, Newton drove to the home
where Ceranek and the children stayed, confronted her outside,
and lifted his shirt to reveal a firearm tucked into his waistband.
Ceranek admitted that the gun appeared to be the same firearm
as in the photograph. This evidence supports Newton’s
conviction of brandishing an imitation firearm. (§ 16700, subd.
(a)(1) [defining “imitation firearm” as a “device that is so
substantially similar in coloration and overall appearance to an
existing firearm as to lead a reasonable person to perceive that
the device is a firearm”]; People v. Radovich (1932)
122 Cal.App.
176, 180-181
[gun offered into evidence need not be positively
identified as the weapon used in committing the crime].)




                                 6
                    Claims of Instructional Error
                                   I.
       Newton argues that the trial court erred by refusing his
instruction that he could not be convicted for the constitutionally
protected activity of visiting his children and their mother. He
asserts that the refusal denied him due process of law, a fair
trial, and the right to present a defense.
       The trial court instructed with the pattern instruction
CALCRIM No. 1301 but refused Newton’s request to add this
bracketed portion of the instruction: “A person is not guilty of
stalking if [his] conduct is constitutionally protected activity.”
       The crime of stalking applies to anyone who “willfully,
maliciously, and repeatedly follows or willfully and maliciously
harasses another person and who makes a credible threat with
the intent to place that person in reasonable fear for their safety,
or the safety of their immediate family.” (§ 646.9, subd. (a).) A
person “harasses” another if he or she “engages in a knowing and
willful course of conduct directed at a specific person that
seriously alarms, annoys, torments, or terrorizes the person, and
that serves no legitimate purpose.” (Id., subd. (e).) A “course of
conduct” involves “two or more acts occurring over a period of
time, however short, evidencing a continuity of purpose.” (Id.,
subd. (f).) Constitutionally protected conduct, however, is not
included within the meaning of a course of conduct. (Ibid.)
       The trial court properly instructed the jury because
Newton’s behavior did not constitute constitutionally protected
activity. (People v. Toledo (2001)
26 Cal.4th 221, 233
[threats to
commit a crime that will result in death or great bodily injury
and are unequivocal, unconditional, immediate, and specific
constitute conduct that falls outside the protection of the




                                 7
Constitution; People v. Borrelli (2000)
77 Cal.App.4th 703, 716
[constitutionally protected activity “does not include the right to
repeatedly invade another person’s constitutional rights of
privacy and the pursuit of happiness through the use of acts and
threats that evidence a pattern of harassment designed to inflict
substantial emotional distress”].)
       Moreover, the instruction as given sufficiently protected
Newton against a jury finding that he violated the law although
he may have been engaging in constitutionally protected
activities. CALCRIM No. 1301 correctly instructed that
harassment that is prohibited by the statute means “a knowing
and willful course of conduct directed at a specific person that
seriously annoys, alarms, torments, or terrorizes the person and
that serves no legitimate purpose.” The course of conduct is also
defined as serving “no legitimate purpose.” If the jury had found
that Newton had a legitimate purpose behind his actions, the
elements of the stalking statute would not have been established.
                                  II.
       Newton claims the unanimity instruction given (CALCRIM
No. 3500 as modified) failed to inform the jury that it must
“conduct a unanimity analysis once per count” concerning the two
charged counts of making criminal threats.
       There is no error. CALCRIM No. 3500 informed the jury:
“You must not find the defendant guilty unless you all agree that
the People have proved that the defendant committed at least one
of these acts for each count, and you all agree on which act he
committed.” During argument, the prosecutor selected these two
statements for the two counts of making criminal threats: “I’m
going to kill you. You’re dead” and “I’m going to cut your throat.”
The felony information charged the two threats as made on




                                8
August 13, 2021, and August 19, 2021. Prior to closing
arguments, the trial court reminded the jury that its verdict on
each count must be unanimous and that each count is a separate
crime. There is not “a reasonable likelihood the jury applied the
challenged instruction in an impermissible manner.” (People v.
Hajek and Vo (2014)
58 Cal.4th 1144, 1220
, overruled on other
grounds by People v. Rangel (2016)
62 Cal.4th 1192, 1216
.)
                                 III.
       Newton also argues that the trial court erred by instructing
with the bracketed portion of CALCRIM No. 358 which states:
“Consider with caution any statement made by [the] defendant
tending to show [his] guilt unless the statement was written or
otherwise recorded.” Newton claims the instruction “directed the
jury to believe [the other] recorded statements as indicative of
[his] guilt without allowing for the possibility that the context of
the statements – such as [his] emotional state or the strained
relationship – could have cast doubt on their seriousness.”
       The complete instruction given, including the bracketed
portion, was proper because Newton made inculpatory
unrecorded statements, such as when he confronted Ceranek in
front of her sister’s home. Moreover, Newton did not object to the
instruction and the record does not disclose whether he requested
it. (People v. Diaz (2015)
60 Cal.4th 1176, 1186
[bracketed
portion of CALCRIM No. 358 should be given only if requested by
defendant and there is evidence of unrecorded out-of-court
incriminating statements].) In any event, the bracketed portion
does not violate federal constitutional rights to due process or
lower the prosecution’s burden of proof. (Diaz, at p. 1195; People
v. Xiong (2020)
54 Cal.App.5th 1046
, 1081.)




                                 9
                 Asserted Prosecutorial Misconduct
       Newton contends that the prosecutor committed prejudicial
misconduct by stating during summation, “I don’t have to prove
that [the gun] was a replica gun. I have to prove to you that
Sarah Ceranek thought it was a gun. . . . So for a replica gun, it’s
whether or not she perceived it as a gun and we know that she
did.”
       Newton has forfeited this claim because he did not object to
this alleged misstatement of law and request a curative
instruction. (People v. Peterson (2020)
10 Cal.5th 409, 464-465
.)
He also fails to show that so doing would have been futile. (Ibid.)
       In any event, section 417.4 is violated when someone
“draws or exhibits an imitation firearm, as defined in subdivision
(a) of Section 16700, in a threatening manner against another in
such a way as to cause a reasonable person apprehension or fear
of bodily harm.” Section 16700, subdivision (a)(1) defines
“imitation firearm” as a toy gun, replica of a firearm “or other
device that is so substantially similar in coloration and overall
appearance to an existing firearm as to lead a reasonable person
to perceive that the device is a firearm.” Here the jury received
instruction with CALCRIM No. 985, defining an imitation
firearm in terms following section 16700, subdivision (a).
       Newton also argues that the prosecutor committed
prejudicial misconduct by stating during summation that “beyond
a reasonable doubt” is “the same burden of proof that is applied
in every single charge in every single case across the United
States from misdemeanor, infraction, court trial, whatever it is.”
He contends that the prosecutor trivialized the burden of proof by
equating it to the standard used in minor administrative matters,




                                10
such as license suspension. (The prosecutor did not mention
administrative proceedings or license suspension hearings.)
       Newton has forfeited this claim because he did not object to
this alleged misstatement of law and request a curative
instruction. (People v.
Peterson, supra,
10 Cal.5th 409, 464-465
.)
“To preserve a claim for review, a defendant must object and ask
that the jury be admonished concerning the misconduct.” (Id. at
p. 464.)
       Forfeiture aside, there is no prejudicial error. The trial
court properly instructed with the pattern instruction regarding
reasonable doubt, both before and after the presentation of
evidence, as well as the instruction that the attorneys’ comments
are not evidence and the instructions must be followed.
(CALCRIM Nos. 200, 220.) The jury received written
instructions prior to commencing deliberations. (People v. Cortez
(2016)
63 Cal.4th 101, 133
[rejecting a misconduct claim
challenging prosecutor’s comments on reasonable doubt because,
in part, the court properly defined reasonable doubt, and jury had
written instructions during deliberations].) The prosecutor also
stated during summation that he had a high burden of proof
which was the beyond a reasonable doubt standard.
       To prevail on a claim of prosecutorial error based on
remarks to the jury, the defendant must show a reasonable
likelihood that the jury understood or applied the complained-of
comments in an improper or erroneous manner. (People v.
Centeno (2014)
60 Cal.4th 659, 667
.) In our assessment of
prosecutorial error, we do not lightly infer that the jury drew the
most damaging rather than the least damaging inferences from
the prosecutor’s statements. (Ibid.; People v. Price (2017)
8
Cal.App.5th 409, 460-461
.) Although a defendant singles out




                                11
words and phrases of claimed misconduct, we view the
statements in the context of the whole argument. (People v.
Dennis (1998)
17 Cal.4th 468, 522
.)
       Newton has not established that the jury understood or
believed the same standard used in license suspension cases – a
preponderance of the evidence – applied here.
                          Cumulative Error
       Finally, Newton contends that cumulative error warrants
reversal. There is no error to cumulate, however, and we reject
this assertion. (People v. Capers (2019)
7 Cal.5th 989, 1017
[cumulative error occurs “when the combined effect of the trial
court’s errors is prejudicial or harmful to the defendant”]; People
v. Lopez (2018)
5 Cal.5th 339, 371
[“Because we have found no
error, there is no cumulative prejudice to evaluate”].)
                           DISPOSITION
       The order of probation is affirmed.
       NOT TO BE PUBLISHED.




                                      GILBERT, P. J.
We concur:



             YEGAN, J.



             BALTODANO. J.




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                 Catherine M. Voelker, Judge

              Superior Court County of Ventura

               ______________________________

      Thomas Owen, under appointment by the Court of Appeal,
for Defendant and Appellant.
      Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Wyatt E. Bloomfield and Seth P. McCutcheon,
Deputy Attorneys General, for Plaintiff and Respondent.