Opinion
B299499
04-29-2020
THE PEOPLE, Plaintiff and Respondent, v. KEVINN EUGENE HOLLAND, Defendant and Appellant.
Sarah M. Javaheri, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Michael C. Keller and Charles J. Sarosy, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. VA150015) APPEAL from a judgment of the Superior Court of Los Angeles County, Roger T. Ito, Judge. Affirmed. Sarah M. Javaheri, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Michael C. Keller and Charles J. Sarosy, Deputy Attorneys General, for Plaintiff and Respondent.
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A jury convicted defendant Kevinn Holland of possessing a firearm in contravention of a restraining order, and the trial court sentenced him as a felon. Evidence at trial showed that defendant threatened his girlfriend's daughter, B.B., while aiming a gun at her knees. The sole issue on appeal is whether the trial court abused its discretion in denying defendant's motion to reduce the offense from a felony to a misdemeanor.
Certain offenses identified as "wobblers," afford a trial court discretion to sentence a defendant as either a felon or a misdemeanant. (People v. Park (2013) 56 Cal.4th 782, 789.) Wobblers involve crimes that vary in their level of seriousness. (Ibid.) Our Supreme Court has made clear that a trial court may consider the circumstances of the offense when deciding whether to sentence a defendant to a felony or misdemeanor. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977 (Alvarez), superseded by statute on other grounds as indicated in People v. Lynall (2015) 233 Cal.App.4th 1102, 1108.)
Here, defendant argues just the opposite. He claims that the circumstances of his offense were irrelevant and because they were irrelevant, the trial court was required to ignore them. Defendant's argument is based on a flawed premise. All of the circumstances surrounding defendant's possession of the firearm were relevant to the trial court's exercise of discretion to sentence him as a felon. The circumstances of the offense assisted the trial court in determining the level of seriousness of the offense. In choosing to sentence defendant as a felon, the trial court properly relied on evidence that defendant did not simply possess a firearm but also threatened B.B. with it.
We affirm the judgment.
PROCEDURAL BACKGROUND
The people charged defendant with purchasing or receiving a firearm with a restraining order in violation of Penal Code section 29825, subdivision (a). Section 29825, subdivision (a) provides: "A person who purchases or receives, or attempts to purchase or receive, a firearm knowing that the person is prohibited from doing so in any jurisdiction by a temporary restraining order or injunction . . . that includes a prohibition from owning or possessing a firearm, is guilty of a public offense . . . " punishable either as a misdemeanor or a felony.
Undesignated statutory citations are to the Penal Code.
Defendant pleaded not guilty.
Prior to trial, defendant orally moved to reduce the section 29825 offense from a felony to a misdemeanor. Defense counsel represented that defendant's "position is that he did not have the gun. The gun in question was recovered under the stairs." (Defense counsel's representation was inconsistent with later undisputed trial testimony.) The prosecutor disputed that characterization, stating that the victim reported defendant pointed the gun at the victim's knees "while ranting." The court denied defendant's motion to reduce the offense to a misdemeanor. Defense counsel made a second oral motion to reduce the offense from a felony to a misdemeanor. The court denied the motion.
Defendant unsuccessfully requested that the trial court exclude B.B.'s testimony from trial. Defense counsel argued that the sole issue was whether defendant possessed a firearm and B.B.'s testimony that defendant held a gun and threatened her was not relevant to that charge. Defense counsel also sought to exclude B.B.'s 911 call in which she reported that defendant threatened her with a gun. The trial court denied defendant's motion, finding the probative value of the evidence outweighed its prejudicial effect.
In his opening statement, defense counsel indicated that defendant and B.B. argued. Defense counsel stated defendant did not "display a gun" or use a gun during the argument. "He never used a gun."
After the close of the prosecution's evidence, defense counsel renewed defendant's motion to reduce the offense from a felony to a misdemeanor. In contrast to his earlier representation, counsel stated, "We're not denying that he was in possession of the weapon." The trial court denied the motion. The court explained: "This is not simple possession. . . . This individual has suffered numerous prior convictions. They [were] misdemeanors previously. On this particular occasion he decided to utilize a firearm in conjunction with an argument he was having with his girlfriend's daughter." "This case in this court's observation would be inappropriate for a misdemeanor."
The probation report indicated that defendant's criminal record included convictions for possession of a controlled substance, being under the influence of a controlled substance, possession of a switchblade knife, and vandalism. The trial court sentenced defendant to two years in county jail. Defendant timely appealed.
Section 1170, subdivision (h)(1) provides: "Except as provided in paragraph (3), a felony punishable pursuant to this subdivision where the term is not specified in the underlying offense shall be punishable by a term of imprisonment in a county jail for 16 months, or two or three years."
FACTUAL BACKGROUND
The prosecution presented the following evidence in defendant's jury trial. Defendant presented no evidence.
A. B.B.'s testimony
In February 2019, defendant lived in a two-bedroom, one-bathroom apartment with his girlfriend and her daughter, B.B. The bathroom had multiple doors, and during the night of February 18, 2019, B.B. locked all the doors. Defendant entered B.B.'s room, holding a gun in his hand. Pointing the gun at B.B.'s knees, defendant told B.B. if she did not unlock the bathroom door, he would enter her room and "fuck her up."
Right after defendant threatened B.B., while she was in the locked bathroom, B.B. called 911. In her 911 call, B.B. stated, "Hi there's a man in my house threatening me with a gun."
During cross-examination, counsel asked B.B. if she had frequent arguments with defendant and she answered affirmatively. B.B. confirmed that defendant held a gun as he stood in the doorway of her room.
B. Police officer testimony
Police officer Preston Wilks testified that just after midnight, he responded to the 911 call B.B. made. Officer Wilks found a semi-automatic handgun underneath a stairway about 10 yards from defendant's residence.
Officer Alyssa Dunn also responded to defendant's residence. She testified that defendant's semi-automatic handgun contained 10 bullets.
C. Stipulation
During trial in front of the jury, the parties stipulated that on October 25, 2018, a superior court judge ordered defendant to not own or possess any firearms. The order was effective through October 24, 2020. Defendant knew of the order.
D. Defendant's pretrial interview
In a pretrial interview, defendant told officers that B.B. returned home and he was asleep. B.B. locked the bathroom door, preventing defendant from entering it. Defendant stated, "I had my knife on me, and that's where she seen that. That's where the—the—never had the gun in my hand pointed at her." According to defendant, B.B. called his knife a gun. Defendant explained that he "never stood at her [B.B.'s] door . . . [¶] . . . with a gun in [his] hand." Defendant denied threatening B.B. He stated, "All I said is that . . . how it's fucked up that about the games that they're playing and shit." Defendant stated that he grabbed the gun when he heard B.B. call 911. Defendant placed the gun in a box near his neighbor's stairs. Defendant stated that he never "pointed a gun" at B.B.
DISCUSSION
On appeal, defendant argues the trial court abused its discretion in denying his motion to reduce the section 29825 offense from a felony to a misdemeanor. According to defendant, the trial court abused its discretion because it considered purported irrelevant evidence-testimony that defendant threatened B.B. when he possessed the firearm.
I. Standard of Review
Defendant has the burden to show that the " 'sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.' " (Alvarez, supra, 14 Cal.4th at pp. 977-978.) This court may not substitute its judgment for that of the trial court. (Id. at p. 978.)
II. The Trial Court Properly Exercised Its Broad Discretion to Determine Whether a Wobbler Constitutes a Felony or a Misdemeanor
The trial court has broad discretion to sentence a defendant convicted of a wobbler to either a felony or misdemeanor. " 'This discretion . . . is neither arbitrary nor capricious, but is an impartial discretion, guided and controlled by fixed legal principles, to be exercised in conformity with the spirit of the law, and in a manner to subserve and not to impede or defeat the ends of substantial justice.' " (Alvarez, supra,14 Cal.4th at p. 977.) "California appellate decisions have indicated the pertinent factors may include those relevant to sentencing decisions, such as the circumstances of the offense, the defendant's appreciation of and attitude toward the offense, and the defendant's character as evidenced by the defendant's behavior and demeanor at the trial." (People v. Mullins (2018) 19 Cal.App.5th 594, 611, italics added.) In addition to considering the circumstances of the offense, the trial court may also consider the defendant's criminal history. (Alvarez, supra, 14 Cal.4th at p. 978; People v. Giminez (1975) 14 Cal.3d 68, 72.)
Here, the trial court properly considered the circumstances of the offense. Defendant's threat to B.B. was a circumstance of the offense; defendant possessed the firearm at the time he threatened B.B. The trial court did not abuse its discretion either in admitting evidence of the events when defendant wielded the gun or in considering those circumstances in exercising its discretion to sentence defendant as a felon.
III. B.B.'s Testimony Was Relevant
Defendant argues that "[t]he issue of whether [he] had a firearm during an argument was completely irrelevant to the case, and was not part of the circumstances of the offense." Defendant believes that the argument was irrelevant because according to him, he admitted to possessing a gun. Defendant's argument is unpersuasive for multiple, independent reasons.
First, defendant mischaracterizes the record. Defendant did not admit to possessing a gun. In his pretrial interview, defendant denied possessing a gun. Defendant claimed that B.B. mistook his knife for a gun. Subsequently, defendant's counsel argued (albeit inaccurately) that the offense should be reduced to a misdemeanor because defendant did not possess a gun. At trial, defendant stipulated to the restraining order, but did not stipulate that he possessed a gun. Defendant did not testify that he possessed a gun; his counsel represented the opposite to jurors. In his opening statement, defense counsel stated that defendant did not "display a gun" or use a gun during the argument. "He never used a gun." The record thus does not support defendant's current argument that he admitted possessing a gun.
Second, even if defendant had conceded the element of possession, his not guilty plea put all elements at issue and permitted the prosecution to prove its case. A not guilty plea put in issue "all of the elements of the charged offenses, including the elements he conceded." (People v. Cowan (2010) 50 Cal.4th 401, 476.) Even if defendant conceded an issue, the prosecution "is still entitled to prove its case." (People v. Steele (2002) 27 Cal.4th 1230, 1243; see People v. Scott (2011) 52 Cal.4th 452, 471 [the prosecution is not required to accept a stipulation if it would deprive "the state's case of its persuasiveness and forcefulness"].) Our Supreme Court recently reaffirmed that the "prosecution is generally entitled to put on relevant evidence, even as to matters that are undisputed." (People v. Case (2018) 5 Cal.5th 1, 31.)
Defendant's reliance on People v. Thompson (1980) 27 Cal.3d 303, 315-317 is misplaced. Thompson does not consider a trial court's discretion to sentence a wobbler as a felony or misdemeanor. In Thompson, the defendant was convicted of first degree murder, attempted first degree murder, two robberies (victims Michael Whalen and June Filice), and one burglary. (Id. at p. 310.) Two weeks after committing those crimes, defendant committed another robbery, this time of Scott Domnie. (Id. at p. 312.) Evidence of the later Domnie robbery was offered to show defendant's intent during the earlier charged robberies. (Id. at p. 314.) Thompson addressed the admission of evidence of the uncharged offense and warned that the evidence may not be used to show a defendant's propensity to engage in criminal conduct. (Id. at p. 316.) Ultimately the high court held that the trial court should have excluded evidence of the Domnie robbery, a robbery that was separate from the charged offenses. (Id. at p. 321.)
Thompson has been overruled to the extent it holds that a not guilty plea is not sufficient to place all elements of the crime at issue. (People v. Scott, supra, 52 Cal.4th at p. 471.)
Here, in contrast to Thompson, the prosecutor did not admit evidence of a separate uncharged offense occurring on a different occasion. Defendant's threat to B.B. was at the time defendant possessed the gun, the charged offense. Defendant's threat was a circumstance of the charged offense.
Defendant also cites People v. Hall (1980) 28 Cal.3d 143, 152. "Hall held that when a prior conviction is pertinent only to ex-felon status as an element of a currently charged offense, the jury may not learn either the fact or the nature of the prior conviction if defendant offers to stipulate he is an ex-felon." (People v. Valentine (1986) 42 Cal.3d 170, 172.) This rule has been superseded by statute. (Ibid.)
Finally, defendant ignores the fact that the trial court also relied on his multiple prior convictions when it exercised its discretion to sentence him as a felon. A trial court may rely on the nature of the offender in exercising its discretion to sentence a defendant to a felony. (Alvarez, supra, 14 Cal.4th at p. 978.) Here, the trial court did not abuse its discretion in considering defendant's misdemeanor history—including drug, possession of a switchblade, and vandalism offenses—in finding that he was not deserving of leniency by a reduction of his felony offense. Even if, for argument's sake only, defendant could demonstrate error in the trial court's reliance on B.B.'s testimony that defendant threatened her while pointing a gun at her, the trial court properly relied on defendant's prior criminal record when it sentenced him as a felon and refused to reduce his crime to a misdemeanor.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
BENDIX, Acting P. J. We concur:
JOHNSON, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.