Opinion
C084939
08-29-2018
THE PEOPLE, Plaintiff and Respondent, v. JASON ADAM HOLTMAN, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. NCR92278, 16CR000936)
Defendant Jason Adam Holtman appeals after a jury found him guilty of several gun-related offenses and found true firearm use allegations pursuant to Penal Code section 12022.5, subdivision (a). On appeal, defendant challenges the sufficiency of the evidence supporting his conviction for assault with a firearm and for making criminal threats.
All further section references are to the Penal Code unless otherwise indicated.
Accordingly, we will affirm defendant's convictions but will remand the case for the trial court to correct several sentencing errors and to exercise its informed discretion when imposing sentence on the gun enhancements.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant lived in a motor home outside Michael Townsend's home and the two had a history of verbal altercations. One night, while Townsend and his son were outside playing with a remote-control car, defendant sped his truck toward Townsend and his son acting like he was going to hit them before swerving to avoid the two. Townsend was angry and yelled at defendant. Defendant responded by backing up his truck in Townsend's direction "in a threatening manner." He then stopped and drove away. Townsend was upset because defendant had made him fear for his and his child's life. He took out his anger on defendant by throwing bricks or rocks through windows of defendant's motor home.
Defendant testified this did not happen. Instead, he was driving in his truck with a female friend when Townsend threw a knife at him through an open window, hitting defendant's friend with the handle of the knife. Defendant stopped his truck and confronted Townsend. Townsend responded by pulling down his pants and shaking his penis at defendant while saying, "What are you going to do? What are you going to do?"
The next morning, Townsend was outside his home getting the mail when he heard defendant inside of his motor home yelling about the windows being broken. Townsend said to defendant, "Are you having a good day, [n]igger?" Defendant, who had recently smoked methamphetamine, came out of the motor home and responded by calling Townsend a "piece of shit" and saying "I've got something for [Townsend]." Defendant said he knew it was Townsend who broke the windows to the motor home and that Townsend and his wife better watch their backs. As defendant yelled at Townsend, he walked back into the motor home.
Townsend explained he used the term "nigger," not because of defendant's race, but to describe "somebody just doing drugs on the side of the road in a Winnebago next to an abandon[ed] house." Defendant is Caucasian.
Townsend had heard defendant had a shotgun and thought defendant may be retrieving it because of defendant's warning. Three seconds after entering his motor home, defendant reemerged with a loaded short-barrel shotgun. He walked over to Townsend with the shotgun lowered and then raised it, pointing the gun at Townsend's face. Defendant did not say anything after emerging from his motor home. To Townsend it appeared defendant was debating about whether to shoot him. Townsend was concerned for his and his family's safety.
Defendant testified he held the shotgun during his interaction with Townsend but never pointed it at him. Defendant also admitted to having previously been convicted of a felony.
Townsend retreated behind a tree in his front yard and took out his cell phone. After unsuccessfully attempting to take pictures of defendant, he eventually was successful in capturing defendant walking away from him with the shotgun slung over his shoulder.
The jury found defendant guilty of assault with a firearm and making a criminal threat, while also finding true personal use of a firearm allegations attached to those counts. The jury found defendant guilty of being a felon in possession of a firearm and of ammunition, and for possessing a short-barrel shotgun. A probation report was prepared for sentencing and outlined several factors in aggravation and no factors in mitigation. At sentencing, defense counsel argued for concurrent sentences on all convictions and corrected the probation report to the extent it indicated defendant had not successfully completed probation. He then submitted on the probation report. The court sentenced defendant to the midterm of three years for assault with a firearm plus 10 years for the firearm enhancement. It imposed a concurrent two years for making a criminal threat but stayed imposition of sentence for the gun enhancement attached to that count. The court also imposed concurrent three-year terms for the possession-related offenses.
Following defendant's sentencing on this case, the court sentenced him for a prior case (2016 case), in which he pled guilty to vehicle theft and vandalism. Defendant pled to these offenses on July 15, 2016, but failed to appear for sentencing a month later. Defendant evaded punishment until his arrest for the firearm-related offenses detailed above. The court imposed a two-year and eight-month term for defendant's 2016 case to be served concurrently to his sentence for the current case. It further imposed four prior prison term enhancements for an aggregate sentence of 17 years. The court awarded defendant 425 days of custody credits to be applied to his 2016 case and awarded no custody credits for the current case.
DISCUSSION
I
Sufficiency Of The Evidence
Defendant brings multiple sufficiency of the evidence claims. He first attacks the evidence supporting his conviction for assault with a firearm, along with the evidence supporting his conviction for criminal threats. We will address each of these contentions in turn with the following general principles of sufficiency of evidence review in mind.
"In assessing a claim of insufficiency of evidence, the reviewing court's task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence -- that is, evidence that is reasonable, credible, and of solid value -- such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) "The standard of review is the same where the prosecution relies primarily on circumstantial evidence. (In re Alexander L. (2007) 149 Cal.App.4th 605, 610.) " 'An appellate court must accept logical inferences that the jury might have drawn from the evidence even if the court would have concluded otherwise.' " (People v. Halvorsen (2007) 42 Cal.4th 379, 419.) Before a verdict may be set aside for insufficiency of the evidence, a party must demonstrate " 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].' " (People v. Bolin (1998) 18 Cal.4th 297, 331.)
A
Sufficient Evidence Supports Defendant's Assault With A Firearm Conviction
" '[S]ection 245, subdivision (a)(2), punishes "[a]ny person who commits an assault upon the person of another with a firearm." Assault is defined as "an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." ' " (People v. Covarrubias (2016) 1 Cal.5th 838, 890.) Assault with a deadly weapon can be committed by pointing a gun at another person (People v. Raviart (2001) 93 Cal.App.4th 258, 263; People v. Laya (1954) 123 Cal.App.2d 7, 16), but a long line of California decisions hold that an assault is not committed by a person merely pointing an unloaded gun in a threatening manner at another person (People v. Rodriguez, supra, 20 Cal.4th at p. 11, fn. 3).
Defendant contends the evidence was lacking here because, although he pointed a loaded shotgun at Townsend, he did not do so in a way that by its nature would directly and probably result in the application of force to another person. Specifically, he argues that because he did not fire the shotgun or swing it at Townsend, the prosecution did not meet its burden. He further contends no evidence showed he intended to discharge the shotgun at Townsend but something prevented him from doing so as required by case law. Defendant's challenge rests on his assumption there are only three theories by which a person may be found guilty of assault with a firearm. These theories include when a defendant fires a gun at a victim, when a defendant points a gun at a victim with the intent to shoot but something prevented the defendant from doing so, and when a defendant points a gun at a victim while demanding the victim do something. We disagree with this argument and its conclusions.
Our Supreme Court in People v. Chance (2008) 44 Cal.4th 1164, held assault occurs when a defendant's actions enable him to inflict a present injury. However, "[t]here is no requirement that the injury would necessarily occur as the very next step in the sequence of events, or without any delay." (Id. at p. 1172.) Instead, when a defendant "equips and positions himself to carry out a battery," an assault is present "if he is capable of inflicting injury on the given occasion, even if some steps remain to be taken, and even if the victim or the surrounding circumstances thwart the infliction of injury." (Ibid.) " 'Once a defendant has attained the means and location to strike immediately he has the "present ability to injure." The fact an intended victim takes effective steps to avoid injury has never been held to negate this "present ability." ' " (Id. at p. 1174.)
Defendant latches on to the court's language that a victim's actions cannot serve to negate a defendant's present ability to injure to argue that, when a defendant has failed to discharge or use the firearm as a bludgeoning device, or force the victim to do something, the prosecution must show the defendant intended to fire the weapon but something prevented him or her from doing so. A recitation of the facts of Chance and the analysis supporting the court's holding shows defendant's reliance on this language is misplaced.
In Chance, sheriff's deputies drove to the defendant's residence to arrest him pursuant to felony warrants. The defendant ran from his residence and an officer pursued him on foot, observing that the defendant was carrying a handgun. The defendant ran around the front end of a trailer and the officer approached but anticipated an ambush. The officer advanced the other direction around the back of the trailer and, after carefully peering around the corner, he saw the defendant facing the front end of the trailer. (People v. Chance, supra, 44 Cal.4th at p. 1168.) The defendant was holding his gun extended forward. The officer trained his weapon on the defendant, who looked back over his shoulder at him. The officer repeatedly told the defendant to drop his weapon, and the officer testified he was in fear for his life and afraid the defendant was going to shoot him at any second. The defendant was arrested and his gun was recovered fully loaded with 15 rounds in the magazine, although the firing chamber held no round. The gun's safety mechanism was off. (Id. at pp. 1168-1169.) A jury found the defendant guilty of assault with a firearm on a peace officer, along with other offenses. (Id. at p. 1169.)
In upholding the conviction, our Supreme Court determined the defendant's loaded weapon and concealment behind the trailer allowed him to strike immediately at the officer. The officer's evasive maneuver did not deprive the defendant of the required " 'present ability' " necessary for conviction of assault. The court rejected the defendant's argument that an assault did not occur because he never pointed his weapon in the officer's direction. That "degree of immediacy" was not necessary. (People v. Chance, supra, 44 Cal.4th at p. 1176.) Instead, the defendant's conduct by positioning himself to strike with a loaded weapon was sufficient to establish the actus reus required for assault. (Ibid.) "Although temporal and spatial considerations are relevant to a defendant's 'present ability' under section 240, it is the ability to inflict injury on the present occasion that is determinative, not whether injury will necessarily be the instantaneous result of the defendant's conduct." (Id. at p. 1171.)
For explanation, our Supreme Court pointed to People v. McMakin (1857) 8 Cal. 547, where the defendant was convicted of assault after he threatened to shoot the victim while pointing a revolver in a perpendicular line with the victim's body, but with the gun pointed downwards so that the shot would have hit the ground had the pistol been fired. (Id. at p. 547.) Our Supreme Court rejected the argument that insufficient evidence supported assault because assault can occur when someone holds up a fist in a menacing manner, draws a sword or bayonet, or presents a gun at a person who was within range. (Id. at p. 548.) Our Supreme Court held that the act of drawing a weapon is generally evidence of an intent to use it. (Id. at p. 549.) Such evidence may be rebutted. In the case of the defendant in McMakin, the court affirmed the judgment because the defendant drew and held a weapon in a position to use while also declaring his intent to do so. (Ibid.)
When determining the sufficiency of the evidence supporting the defendant's conviction for assault with a firearm, the Chance court's analysis focused exclusively on the defendant's actions and not that which prevented the defendant from acting. The court concluded once a defendant "equips and positions himself to carry out a battery," an assault is present "if he is capable of inflicting injury on the given occasion." (People v. Chance, supra, 44 Cal.4th at p. 1172.) Anything that happens after that is irrelevant. (Ibid.) Thus, the prosecution was not required to show that something prevented defendant from pulling the trigger on the shotgun. All the prosecution was required to show was that defendant had the ability to inflict injury on the present occasion and that he had a general criminal intent or willingness to commit the injuring act. (Id. at p. 1171; People v. Colantuono (1994) 7 Cal.4th 206, 217.) We conclude the prosecution met its burden.
Defendant and Townsend were in an ongoing disagreement regarding defendant's motor home and his general behavior, leading the two to have multiple altercations. The day before the offense, defendant drove his truck at a high rate of speed toward Townsend and his son swerving to avoid hitting them. He then put his car in reverse and drove at them again before driving away. Townsend responded by breaking windows to defendant's motor home, angering defendant in preparation for the two's next altercation the following day.
As defendant testified, he approached Townsend with a loaded shotgun during the altercation. Townsend, his wife, and a neighbor testified defendant pointed the shotgun at Townsend. Townsend testified defendant did not say anything while he pointed the gun and it looked as though defendant was debating with himself about whether to pull the trigger. Defendant admitted that at the time he was angry and under the influence of methamphetamine. From this, the evidence established defendant pointed the loaded gun at Townsend out of anger and while under the influence after threatening him and his wife to watch their backs. A jury could reason from defendant's threatening statements, admitted anger, intoxication, and loaded weapon that he was capable and willing to deliver the injuring act.
Although defendant claimed to have shown the gun to Townsend to intimidate him and make Townsend leave him alone, the jury was free to reject this testimony as not credible. Drawing and holding a loaded weapon at someone is evidence defendant was willing to use it. (People v. McMakin, supra, 8 Cal. at p. 549.) The fact that defendant chose not to pull the trigger is but one factor for the jury to consider regarding defendant's willingness at the time he pointed the gun at Townsend. (People v. Chance, supra, 44 Cal.4th at p. 1172.) Once the jury determined defendant was equipped and positioned himself to carry out a battery and he was capable of inflicting injury on the given occasion, defendant met the elements of assault with a firearm. Here, there was substantial evidence from which the jury could conclude defendant met these requirements by pointing the loaded shotgun at Townsend.
Because we conclude the law does not require the prosecutor to prove defendant intended to discharge the shotgun but something prevented him from doing so to sustain a conviction, the trial court did not err when failing to instruct the jury on that theory. (See People v. Edwards (2013) 57 Cal.4th 658, 745 [the court has no obligation to give a legally incorrect instruction].) Accordingly, we reject defendant's instruction error claim premised upon this argument.
B
Sufficient Evidence Supports Defendant's Making Criminal Threats Conviction
A conviction for criminal threats requires proof of five elements: "(1) that the defendant 'willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person,' (2) that the defendant made the threat 'with the specific intent that the statement . . . is to be taken as a threat, even if there is no intent of actually carrying it out,' (3) that the threat -- which may be 'made verbally, in writing, or by means of an electronic communication device' -- was 'on its face and under the circumstances in which it [was] made, . . . so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat,' (4) that the threat actually caused the person threatened 'to be in sustained fear for his or her own safety or for his or her immediate family's safety,' and (5) that the threatened person's fear was 'reasonabl[e]' under the circumstances." (People v. Toledo (2001) 26 Cal.4th 221, 227-228.)
Defendant contends the evidence was lacking because it failed to show his statement that he had something for Townsend was an unequivocal, immediate, and specific threat to commit a crime that would result in death or great bodily injury. Specifically he takes issue with the prosecutor's argument to the jury that defendant's act of retrieving the shotgun after threatening Townsend by stating he had something for him confirmed defendant's intent that his statement be taken as a threat. We disagree.
"Section 422 requires only that the words used be of an immediately threatening nature and convey 'an immediate prospect of execution' . . . even though the threatener may have no intent actually to engage in the threatened conduct." (In re David L. (1991) 234 Cal.App.3d 1655, 1660.) " '[U]nequivocality, unconditionality, immediacy and specificity are not absolutely mandated, but must be sufficiently present in the threat and surrounding circumstances to convey gravity of purpose and immediate prospect of execution to the victim.' " (People v. Bolin, supra, 18 Cal.4th at p. 340.)
"A communication that is ambiguous on its face may nonetheless be found to be a criminal threat if the surrounding circumstances clarify the communication's meaning." (In re George T. (2004) 33 Cal.4th 620, 635.) The threats should be considered together with the surrounding circumstances to determine the true meaning of the words in the threat. (People v. Butler (2000) 85 Cal.App.4th 745, 753.) These circumstances include the defendant's history, "mannerisms, affect, and actions involved in making the threat as well as subsequent actions taken by the defendant." (People v. Solis (2001) 90 Cal.App.4th 1002, 1013.) Although nonverbal conduct alone is insufficient, a combination of words and gestures may constitute a criminal threat. (People v. Franz (2001) 88 Cal.App.4th 1426, 1442-1446.)
The evidence established defendant said he had something for Townsend, added that Townsend and his wife should watch their backs, then went into his motor home and three seconds later came out with a loaded shotgun and pointed it at Townsend. Townsend also knew defendant to own a shotgun and thought he was retrieving it. Given the circumstances, it can reasonably be concluded that defendant's threat was unequivocal, unconditional, immediate, specific, conveyed a gravity of purpose, and an immediate prospect of the threat being executed because it appeared defendant threatened Townsend he would get a shotgun and then did, and further pointed it at Townsend. The jury was not required to disregard defendant's conduct after making the statement that he had something for Townsend. In fact, defendant's retrieval of the shotgun happened in such proximity to the statement that it could be part of the criminal threat itself. A criminal threat may be constituted by both words and gestures, and the jury may take into consideration the entire surrounding circumstances when determining the meaning of the words used in the threat. (People v. Franz, supra, 88 Cal.App.4th at pp. 1442-1446.) When defendant said he had something for Townsend, said Townsend and his wife should watch their backs, and then immediately retrieved a loaded shotgun he pointed at Townsend, it was reasonable for the jury to determine defendant made an unequivocal, immediate, and specific threat to commit a crime that would result in death or great bodily injury by shooting Townsend.
II
The Court Properly Imposed Custody Credits Exclusively Toward The 2016 Case
As described above, defendant was sentenced on two cases at the time of sentencing -- one regarding the offenses tried in this jury trial and the other regarding an unrelated guilty plea after which defendant failed to appear for sentencing. Defendant contends he should have been awarded custody credits toward his sentence in the current case in addition to the custody credits he received toward his sentence in the 2016 case. We disagree.
Section 2900.5, subdivision (b) allows presentence credit to be given "only where the custody to be credited is attributable to proceedings related to the same conduct for which the defendant has been convicted." In People v. Kunath (2012) 203 Cal.App.4th 906, 909 (Kunath), the defendant was arrested for possession of a controlled substance for sale and then "released on bond." He was arrested a short time later for an unrelated possession of a controlled substance and "confined pending trial." (Ibid.) The defendant pled guilty in both cases and was sentenced to concurrent prison terms during a single sentencing hearing. The court rejected the defendant's argument he should receive presentence custody credits in each case for the time he was in custody. (Ibid.)
On appeal, the defendant contended "the trial court erred in refusing to apply presentence custody credits in each case for the time he was simultaneously in presentence custody." (Kunath, supra, 203 Cal.App.4th at p. 909.) The appellate court agreed: "Where . . . the defendant's custody is solely presentence on all charges and he is simultaneously sentenced on all charges to concurrent terms, the policy behind section 2900.5 applies. . . . [¶] Here [the defendant] was in presentence custody on mere charges of crime until he was sentenced simultaneously on both cases." (Id. at p. 911.) The Kunath court distinguished its case from People v. Bruner (1995) 9 Cal.4th 1178, 1193-1194, which held that "where a period of presentence custody stems from multiple, unrelated incidents of misconduct, such custody may not be credited against a subsequent formal term of incarceration if the prisoner has not shown that the conduct which underlies the term to be credited was also a 'but for' cause of the earlier restraint." Thus, "when presentence custody may be concurrently attributable to two or more unrelated acts, and where the defendant has already received credit for such custody in another proceeding, the strict causation rules . . . should apply." (Id. at p. 1180.)
The appellate court in Kunath concluded that because the defendant there was in presentence custody on "mere charges of crime" in both cases, he was entitled to full credit for the time spent in presentence custody in both cases. (Kunath, supra, 203 Cal.App.4th at p. 911.) In doing so, the court clearly recognized that "[s]ection 2900.5, subdivision (b) allows presentence credit to be given 'only where the custody to be credited is attributable to proceedings related to the same conduct for which the defendant has been convicted.' " (Kunath, at p. 909.) Further, "[s]ection 2900.5 does not authorize credit where the pending proceeding has no effect whatever upon a defendant's liberty." (In re Rojas (1979) 23 Cal.3d 152, 156.) The holding in Kunath can be read simply as declaring that charges in an unrelated case alone cannot be justification to deny presentence credit in a case simultaneously pending and which a defendant was concurrently sentenced to in the same proceeding as his unrelated case.
Here, like in Kunath, defendant was concurrently sentenced at a single sentencing hearing in both his 2016 case and his current case. (Kunath, supra, 203 Cal.App.4th at p. 909.) Unlike Kunath, however, defendant was not held in presentence custody for the current offense based solely on unrelated charges. Thus, Kunath is distinguishable and the strict causation rule of Bruner applies. Defendant must show that but for the conduct underlying his current offense he would not have been restrained presentence. (People v. Bruner, supra, 9 Cal.4th at pp. 1193-1194.) Defendant cannot meet his burden. But for defendant's current charges he would have been held pursuant to his earlier guilty plea had he not absconded. Because defendant's presentence custody can be attributed to his earlier guilty plea and that case was credited, he is not entitled to credits against his subsequent formal term of incarceration. (See Ibid.)
III
Sentencing Errors
Defendant argues, and the People concede, the court erred when concurrently sentencing defendant to both possession of a firearm by a felon and possession of ammunition by a felon because the convictions were presumed upon defendant's conduct of possessing a loaded shotgun. We agree and also conclude the court erred in sentencing defendant to a concurrent term for possession of a short-barrel shotgun. (See People v. Jones (2012) 54 Cal.4th. 350, 358 ["[s]ection 654 prohibits multiple punishment for a single physical act that violates different provisions of law"].) While we may modify the judgment, we do not do so here because of recent amendments to the gun enhancement statutes extending the court's discretionary powers to dismiss personal use enhancements to defendants entitled to resentencing. (§ 12022.5, subd. (c).) Because we will remand for the court to resentence defendant to the felon-related possession convictions and the gun enhancements, we will also provide it with an opportunity to clarify whether it intended to stay the imposition of sentence on defendant's criminal threat conviction and related gun enhancement. We note, however, section 654 does not bar the imposition of sentence for an enhancement if it does not bar the imposition of sentence on the substantive offense it enhances. (People v. Wooten (2013) 214 Cal.App.4th 121, 130.) Further, we need not consider defendant's ineffective assistance of counsel claim regarding his counsel's failure to argue for lesser sentences on the gun enhancements; defendant will be provided with this opportunity upon remand.
Defendant does not challenge his counsel's performance as it relates to the sentence imposed on his convictions. --------
DISPOSITION
The judgment is affirmed. The case is remanded for resentencing consistent with this opinion.
/s/_________
Robie, Acting P. J. We concur: /s/_________
Mauro, J. /s/_________
Murray, J.