Opinion
F075223
12-03-2019
THE PEOPLE, Plaintiff and Respondent, v. LUIS ALBERT MACIAS, Defendant and Appellant.
Han N. Tran, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. Martinez, and Amanda D. Cary, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. MF011504A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. John W. Lua, Judge. Han N. Tran, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. Martinez, and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Defendant Luis Albert Macias was convicted by a jury of attempted murder of a peace officer, two counts of assault with a firearm on a peace officer, resisting arrest, and making a criminal threat. On appeal, he contends: (1) there was insufficient evidence to support the criminal threats conviction; (2) the modified jury instruction given on the assault with a firearm on a peace officer charges violated his rights to due process and a fair trial; (3) the trial court erred in granting joinder and denying his motion to sever the charges; and (4) his sentence should be vacated and this matter remanded for resentencing in light of the newly adopted modifications to Penal Code sections 12022.5 and 12022.53.
All unspecified statutory references are to the Penal Code.
We agree with Macias's first and fourth contentions only. Accordingly, we reverse his conviction on count 1, vacate his sentence, and remand for resentencing and for the trial court to exercise its discretion pursuant to the newly amended section 12022.5, subdivision (c) and section 12022.53, subdivision (h).
STATEMENT OF THE CASE
On October 15, 2015, the Kern County District Attorney filed a consolidated information charging Macias with one count of making a criminal threat (§ 422; count 1); one count of discharging a firearm at a motor vehicle (§ 246; count 2); two counts of assault with a firearm (§ 245, subd. (a)(2); counts 3 & 4); one count of premeditated attempted murder of a peace officer (§§ 664, 187, subd. (a); count 5); two counts of assault with a semiautomatic firearm on a peace officer (§ 245, subd. (d)(2); counts 6 & 7); one count of resisting an executive officer by force or violence (§ 69; count 8); and one count of brandishing a firearm to avoid arrest (§ 417.8; count 9). The information further alleged Macias was armed with a firearm during the commission of count 1 (§ 12022, subd. (a)(1)), personally used a firearm during the commission of counts 1 and 8 (§ 12022.5, subd. (a)), and intentionally and personally discharged a firearm during the commission of counts 5, 6, and 7 (§ 12022.53, subd. (c)).
A jury found Macias guilty of counts 1, 5, 6, 7, 8, and 9, and not guilty of counts 2, 3, and 4. The jury found true the firearm enhancements on counts 1, 5, 6, and 8, but found not true the firearm discharge enhancement as to count 7.
At the sentencing hearing on February 24, 2017, the court imposed a sentence of 15 years to life for the attempted murder in count 5, plus 20 years for the discharge of a firearm enhancement. The court imposed an additional seven years for the assault with a firearm on a peace officer in count 7, to be served consecutively to the term in count 5. The court also imposed eight months for the criminal threats conviction in count 1, plus 16 months for the firearm use enhancement, to be served consecutively to the term in count 7. Sentencing on the remaining counts and enhancements was stayed. Macias's total term was 15 years to life, plus 29 years. He timely appealed.
FACTS
I. Prosecution Evidence
A. Christopher Cragg and Lee Hall Incidents (November 2014)
1. Early November 2014 Incident
Christopher Cragg's grandfather, Lee Hall, owned a large tract of land in the desert in Rosamond. The property contained a three-bedroom modular home and two full storage containers. Cragg and Hall would check on the property regularly to make sure things had not been stolen or vandalized.
Lee Hall was 87 years old at the time of trial.
In early November 2014, Cragg and Hall went to the property and saw a fence had been torn down, the locks on the storage containers had been cut, and items inside the containers had been stolen. As Cragg and Hall drove away from the property, they saw a pickup truck stopped on the side of the road and parked behind some sagebrush no more than a quarter of a mile away from the property. As Cragg and Hall continued down the road, the pickup would move forward and backward trying to stay hidden in the brush. Hall, who was driving, parked alongside the pickup, but facing the opposite direction. Both Cragg and Hall exited. Hall came up to the driver's side door of the pickup as Cragg stood closer to the back tires of the pickup.
Hall recognized the driver of the pickup as a man he knew as "Louie," and Cragg was able to identify Macias in court as the pickup's driver. Cragg commented the tires on Macias's pickup appeared to match the tire tracks he had seen on Hall's property. Cragg then accused Macias of stealing items from Hall's property.
Hall asked Macias, "Can I help you?" Macias said, "No." Hall then asked, "Well, what are you doing?" Macias responded, "None of your fucking business." Macias, who remained seated in his pickup, then pulled out a handgun and pointed it in Hall's face and said, "I'll blow your fucking head off." Cragg then called 911, and Macias drove away during Cragg's 911 call.
The 911 call was played for the jury. The call was three minutes and 49 seconds in duration and began with Cragg telling the dispatcher that he and Hall needed a sheriff out at their location because they had caught someone "ripping [them] off." Cragg and the dispatcher went back and forth for about a minute trying to pinpoint Cragg and Hall's location. At one minute and nine seconds into the call, Cragg said, "The guy's got a gun on us." Exactly 10 seconds later, Cragg said, "And now he's driving away." Over the next two minutes of the phone call, the dispatcher asked Cragg a series of questions, including what the suspect took, whether the suspect had the gun while he was taking the items, what the suspect looked like, what the gun looked like, and in which direction the suspect went. Cragg answered all of the dispatcher's questions. The dispatcher then asked if Cragg and Hall were okay, and Cragg said, "Yeah, we're fine. He left. We're fine." The dispatcher asked Cragg to confirm the suspect's license plate number, and said, "We're going to get somebody out there, okay? If he comes back before we get there, you let us know, okay?" Cragg responded, "Will do. Thank you so much." Cragg and the dispatcher said goodbye and the call ended.
Cragg answered this question, "No. We caught him coming out and we blocked him in and then he pulled a gun on us." However, Cragg clarified at trial that they in fact did not block Macias in.
After Macias drove away, Cragg and Hall got back into their vehicle and followed Macias to a nearby residence. Macias got out of his pickup, ran into the yard, and said, "See, no gun," before taking off on foot into the desert.
2. November 20, 2014 Incident
On November 20, 2014, Cragg and Hall again checked on Hall's property. Cragg testified he was driving away from the property when he saw Macias driving his pickup in the opposite direction on the same road. Cragg made a U-turn and followed Macias. Macias then shot several rounds at their vehicle, one of which hit the radiator and caused the vehicle to stop running. Hall, however, testified that Macias was driving toward them and then stopped his pickup and began shooting at the front of their vehicle. Cragg later reported this incident to the sheriff's department and showed the deputies the damage to their vehicle.
B. July 28, 2015 Shootout and Standoff
On July 28, 2015, sheriff's deputies learned Macias was possibly at his father's property near Tehachapi Willow Springs. The property was a large compound with several buildings that formerly was a plant nursery. Several deputies planned to arrest Macias on a felony warrant relating to the Cragg and Hall incidents.
Deputies Skidmore, Escobedo, Juden, Vasquez, and Coleman and Sergeant Anton responded to the compound. Macias's father was present and gave the deputies permission to search the compound. After the deputies had searched all the other buildings, the only building left to search was a singlewide trailer. When Escobedo knocked on the trailer door, a Hispanic male opened the door and walked out. The man said Macias was inside and indicated he had a gun.
Escobedo and Coleman positioned themselves on the west side of the trailer, while Vasquez and two other deputies went to the east side of the trailer. As Vasquez approached the window on the east side of the trailer, he heard someone banging on the window and the window shattering. Vasquez did not know by what means the window was shattered. Escobedo and Coleman also heard glass break, and the two of them ran over to the east side of the trailer. After hearing glass break, Escobedo heard someone yell, "He has a gun." Coleman saw a gun protruding out of the window toward Vasquez, and he heard Vasquez giving Macias commands to show his hands and drop the gun.
As Vasquez got closer to the broken window, he saw Macias in the window pointing a black handgun at him. Macias was about 15 to 25 feet away from Vasquez. Believing he was about to be shot, Vasquez brought his M-16 rifle up to his shoulder, aimed it at Macias, and pulled the trigger to fire, but the rifle did not fire because the magazine had fallen out. Vasquez then yelled "gun" and retreated to the south end of the trailer.
After Macias disappeared from view, Coleman and Escobedo retreated to their former positions on the west side of the trailer. Macias then forced open a boarded-up door of the trailer. Coleman commanded, "Sheriff's office, let me see your hands." Macias poked his head out and looked in Coleman's direction, and then quickly went back inside. Macias reappeared, pointed a black handgun at Coleman, and began tracking Coleman. Macias then fired one round at Coleman. Coleman returned fire and hit Macias in the shoulder. Escobedo also fired several rounds from his shotgun into the trailer through the backside of the trailer door, hitting Macias multiple times.
Macias retreated into the trailer and a several-hour standoff ensued before Macias surrendered. A black Colt 1911 .45-caliber semiautomatic Delta Gold Cup handgun was found inside the trailer.
When interviewed by deputies at the hospital the next day, Macias admitted he knew he had an outstanding felony arrest warrant. Regarding the shootout with deputies, Macias said he was exiting the rear door of the trailer with a gun in his hand, but he was shot before he even had the chance to point the gun at the deputies or to put it down. He denied ever pointing the gun at the deputies.
II. Defense Evidence
Macias testified in his own defense. He confirmed the black semiautomatic handgun shown to the jury multiple times was his. He said there was a shooting range about two to two and a half miles from his father's property that he visited every time he went out to the desert. He also sometimes shot on his dad's property.
As to the first incident in early November 2014 involving Cragg and Hall, Macias said Cragg and Hall approached him when he was sitting in his pickup on the side of the road. Cragg told Hall that Macias had been stealing from them. They argued for a minute or two and Macias told them they were "F'ing crazy." Cragg and Hall called the police and Macias drove off.
Regarding the later incident in November 2014 with Cragg and Hall, Macias said he was driving his pickup and noticed Cragg and Hall following him. He stopped and waited for them to get closer so he could ask them why they were following him. Macias was walking toward them when Hall shot at Macias a couple of times with a rifle. Macias got back into his pickup and Cragg and Hall followed him. Macias turned and shot at their vehicle as Macias continued driving. He said he was in fear for his life and shot at their radiator so they would not be able to continue following him.
Regarding the shootout with deputies, Macias said he was watching television in the trailer with one of his dad's workers when he saw sheriff's vehicles pull up to the trailer. He heard knocks on the door and realized multiple deputies were outside. Macias tried to flee by running out through the back window. He kicked out the window with his feet and saw two deputies standing outside of the window with guns. He was holding his gun, which he said was "cocked and loaded," at the time he kicked out the window. However, he denied attempting to fire at deputies.
Macias then paced back and forth in the hallway thinking about what to do. He decided to open the side door to throw his gun to the deputies to show them he was not armed. He was shot when he opened the door, and he said his "muscles locked" and his gun fired. He said he never pointed his gun at Coleman.
Macias said he was either asleep or on medication when the deputies spoke with him in the hospital the next day.
DISCUSSION
I. Criminal Threats
Macias was convicted in count 1 of making a criminal threat (§ 422) to Hall when he put a gun in Hall's face and told him he would "blow his fucking head off." Macias contends there was insufficient evidence Hall was placed in sustained fear and therefore the conviction should be reversed. We agree.
A. Applicable Law
"[W]hen a conviction is challenged on appeal for insufficient evidence to support it, we apply the substantial evidence standard of review. [Citations.] In applying that substantial evidence standard, we review the whole record in the light most favorable to the judgment to determine whether there is substantial evidence to support the conviction. [Citations.] Substantial evidence is evidence that is reasonable, credible, and of solid value such that a rational trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Jacobo (2019) 37 Cal.App.5th 32, 41-42.) The record must "reasonably justify the jury's findings" in order for us to uphold the verdict. (People v. Ceja (1993) 4 Cal.4th 1134, 1139.) "We draw all reasonable inferences in favor of the verdict, and presume the existence of every fact the jury could reasonably deduce from the evidence that supports its findings." (People v. Franklin (2016) 248 Cal.App.4th 938, 947.)
We may not, however, " 'go beyond inference and into the realm of speculation in order to find support for a judgment. A finding ... which is merely the product of conjecture and surmise may not be affirmed.' " (People v. Memro (1985) 38 Cal.3d 658, 695, overruled on other grounds by People v. Gaines (2009) 46 Cal.4th 172, 181, fn. 2.) " '[E]vidence which merely raises a strong suspicion of the defendant's guilt is not sufficient to support a conviction. Suspicion is not evidence; it merely raises a possibility, and this is not a sufficient basis for an inference of fact.' " (People v. Thompson (1980) 27 Cal.3d 303, 324.) Indeed, "[a] trier of fact may rely on inference to support a conviction only if those inferences are 'of such substantiality that a reasonable trier of fact could determine beyond a reasonable doubt' that the inferred facts are true." (People v. Rios (2013) 222 Cal.App.4th 542, 564.)
Section 422 requires proof of the following elements to establish a criminal threat: (1) the defendant willfully threatened to commit a crime that would result in death or great bodily injury to another person; (2) the defendant made the threat with the specific intent that the statement be taken as a threat, even if he had no intent to actually carry it out; (3) the threat 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) 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) the threatened person's fear was reasonable under the circumstances. (§ 422; People v. Toledo (2001) 26 Cal.4th 221, 227-228.)
Macias contests only the fourth element, namely, whether his threat caused Hall to be in sustained fear for his own safety. (§ 422, subd. (a).) "[P]roof of a mental element in the victim" is required to sustain a conviction under section 422. (People v. Allen (1995) 33 Cal.App.4th 1149, 1156.) The person threatened "must actually be in sustained fear." (In re Ricky T. (2001) 87 Cal.App.4th 1132, 1140 (Ricky T.).) While statutorily undefined, sustained fear has been interpreted by courts as "a period of time 'that extends beyond what is momentary, fleeting, or transitory.' " (Id. at p. 1140; see People v. Wilson (2015) 234 Cal.App.4th 193, 201.) Stated another way, the experience of fear must last "beyond the moments of the encounter" to constitute a violation of section 422. (Ricky T., at p. 1140.) Indeed, if any experience of fear, however brief, could constitute a "sustained" experience, then the word "sustained" would be superfluous in the statute. (Ibid.)
B. Analysis
Hall testified he was "scared" when Macias put a gun in his face and said he would blow his head off. However, no evidence, direct or circumstantial, was presented that Hall's fear continued after Macias ended the encounter by driving away. In fact, Hall immediately got back into his own vehicle and gave chase to Macias, and this, if anything, suggested a lack of sustained fear. Also, Cragg told the 911 dispatcher he and Hall were "fine" after Macias had driven away, which tended to show the threat was no longer present after Macias drove away. Moreover, Cragg's tone of voice remained relatively calm throughout the duration of the call.
The record does not establish exactly how much time elapsed from when the threat was made to when Macias drove away. The People emphasize that sustained fear does not require a minimum amount of time and that having a gun pointed in one's face is a very frightening experience regardless of the duration of the encounter, and thus Hall must have experienced sustained fear. However, the People point to no evidence that Hall experienced sustained fear either during or after the encounter. The existence of sustained fear can be inferred from proven facts, but we cannot go beyond inference and into the realm of speculation. Hall did not testify how long he experienced fear—let alone whether his fear persisted after Macias drove away—and nothing about his conduct once Macias drove away gave any indication he was still afraid. It would therefore be speculation to find on this record that Hall was placed in sustained fear.
People v. Fierro (2010) 180 Cal.App.4th 1342 (Fierro), a criminal threats case cited by the People in support of their position, is factually distinguishable. In that case, the defendant and the victim had a verbal altercation at a gas station. (Id. at pp. 1344-1345.) After the confrontation ended, the victim was in his car at the station when the defendant walked up to the victim's passenger-side window and lifted his shirt to expose what the victim believed was a holstered gun, but was actually a holstered knife. (Id. at pp. 1345-1346.) The defendant told the victim, "I should kill you. I will kill you." The defendant also said he ought to kill him "right now." (Id. at p. 1346.) Security videotape captured the encounter, and testimony established the knife was displayed for about a minute. (Id. at p. 1349, fn. 5.) The victim testified that, during the minute or so the weapon was displayed, he was "in fear for [his] life" and was "afraid of losing [his] life that day." (Id. at p. 1346.) The encounter ended with the defendant ordering the victim to leave. (Ibid.) Within about 15 minutes of driving away from the gas station, the victim called 911 from the freeway and told the operator he was scared. (Ibid.)
The defendant in Fierro was convicted after trial of making a criminal threat. (Fierro, supra, 180 Cal.App.4th at p. 1344.) He challenged his conviction on appeal on the ground of insufficient evidence, but the Court of Appeal affirmed, noting the victim "testified clearly and more than once that he was horribly scared, and his fright was not fleeting." (Id. at p. 1348.) "The fear lasted not only through the minute or so that [defendant] stood there exposing his weapon, but for up to fifteen minutes after [the victim] drove away." (Ibid.) The court also quoted from People v. Allen (1995) 33 Cal.App.4th 1149, 1156 (Allen): "When one believes he is about to die, a minute is longer than 'momentary, fleeting or transitory.' " (Fierro, at p. 1349.)
The facts in the instant case are incomparable. Unlike in Fierro, there is no evidence in the instant case indicating how long the weapon was displayed, how long the encounter lasted, or how long Hall was in fear. In Fierro, the encounter evidently lasted about a minute, but, more importantly, the victim testified to being in fear for at least about 15 minutes. Conversely, the evidence here is that Hall was scared for at least a moment, but there is no evidence he was scared any longer than that. Since there is no evidence Hall's fear lasted longer than a moment, much less a minute, the People's citation to the above quote from Allen, supra, 33 Cal.App.4th at page 1156—that "a minute is longer than 'momentary, fleeting or transitory' "—is inapposite. Moreover, if there is no evidence the victim was in fear for longer than a moment, the duration of the encounter is of no import.
The People also argue fear and courage are not mutually exclusive emotions and the jury reasonably could have viewed Hall's pursuit of Macias as an act of courage performed in spite of fear. Fear and courage indeed can coexist, but here there is no evidence Hall experienced sustained fear.
We conclude there was insufficient evidence Hall was placed in sustained fear and Macias's conviction on count 1 must be reversed.
II. Jury Instruction
Macias was charged in counts 6 and 7 with assault with a firearm on a peace officer (§ 245, subd. (d)(2)) against Coleman and Vasquez, respectively. The jury was instructed with the standard CALCRIM No. 860 instruction, modified with an additional sentence. The six enumerated elements of CALCRIM No. 860 plus the one-sentence modification read as follows:
"The defendant is charged in Counts 6 and 7 with assault with a semiautomatic firearm on a peace officer in violation of Penal Code section 245.
"To prove that the defendant is guilty of this crime, the People must prove that:
"1. The defendant did an act with a semiautomatic firearm that by its nature would directly and probably result in the application of force to a person;
"2. The defendant did that act willfully;
"3. When the defendant acted, he was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone;
"4. When the defendant acted, he had the present ability to apply force with a semiautomatic firearm to a person;
"5. When the defendant acted, the person assaulted was lawfully performing his duties as a peace officer;
"AND
"6. When the defendant acted, he knew or reasonably should have known that the person assaulted was a peace officer who was performing his duties. [¶] ... [¶]
"To willfully point a loaded firearm in a threatening manner at another person constitutes an assault." (Italics added.)
This modification was also included in the CALCRIM No. 875 instruction for the assault with a firearm charges (§ 245, subd. (a)(2)) in counts 3 and 4, of which Macias was acquitted. Accordingly, Macias says in his brief that his argument with respect to this issue will be limited to the instruction for counts 6 and 7. However, he actually limits his argument to count 7, the assault against Vasquez. He also concludes his argument of this issue by requesting that we reverse as to count 7; no mention of count 6 is made. We take it that Macias only claims error with respect to count 7 and not count 6 and we therefore limit our analysis accordingly.
Macias contends the modification was error because it effectively usurped the jury's function and directed a verdict on three of the statutory elements of the crime, namely elements one, three, and four. He contends he was thereby deprived of his rights to due process and to a jury trial. The People concede the error but argue it was nonprejudicial. We agree with the People.
A. The Modification Was Erroneous
Due process "protects [a criminal defendant] against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." (In re Winship (1970) 397 U.S. 358, 364.) "[A] trial judge 'may not direct a verdict of guilty no matter how conclusive the evidence.' " (People v. Figueroa (1986) 41 Cal.3d 714, 724 (Figueroa), quoting Brotherhood of Carpenters v. United States (1947) 330 U.S. 395, 408.) "The prohibition against directed verdicts 'includes perforce situations in which the judge's instructions fall short of directing a guilty verdict but which nevertheless have the effect of doing so by eliminating other relevant considerations if the jury finds one fact to be true.' " (Figueroa, at p. 724.) " '[N]o fact, not even an undisputed fact, may be determined by the judge.' " (Ibid.)
Here, the parties agree the modification impermissibly reduced the prosecution's burden of proving elements one, three, and four of assault with a firearm on a peace officer, as laid out in CALCRIM No. 860. The modification, as phrased, allowed the jury to find these elements satisfied if they merely found Macias willfully pointed a loaded firearm at Vasquez in a threatening manner.
B. The Error Was Nonprejudicial Under Chapman
The standard of review for this type of instructional error is "harmless beyond a reasonable doubt" under Chapman v. California (1967) 386 U.S. 18, 21 (Chapman). (See People v. Beltran (1989) 210 Cal.App.3d 1295, 1308 (Beltran).) Under Chapman, the People must demonstrate the error was harmless beyond a reasonable doubt, which is to say that the error "did not contribute to the verdict obtained." (Chapman, at p. 24.) " 'To say that an error did not contribute to the verdict is ... to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.' " (People v. Hudson (2006) 38 Cal.4th 1002, 1013.)
The United States Supreme Court in Pope v. Illinois (1987) 481 U.S. 497 (Pope) elucidated the Chapman standard as it applies to erroneous jury instructions. In Pope, which involved a prosecution for sale of obscene materials, the trial court's community standards instruction regarding value violated the objective standard constitutionally required. (Id. at pp. 500-501.) Nevertheless, the court held there was "no reason to require a retrial if it can be said beyond a reasonable doubt that the jury's verdict ... was not affected by the erroneous instruction." (Id. at p. 502.) The court concluded, "While it was error to instruct the juries to use a state community standard in considering the value question, if a reviewing court concludes that no rational juror, if properly instructed, could find value in the magazines, the convictions should stand." (Id. at p. 503.)
This court's decision in Beltran is also instructive to our analysis. The defendant in that case shot the victim in the arm and face, shattering a bone in her arm and severely wounding her face. (Beltran, supra, 210 Cal.App.3d at p. 1299.) Accompanying a charge of attempted murder was an allegation the defendant intentionally inflicted great bodily injury under section 12022.7. (Id. at pp. 1297-1298.) The jury was instructed that "[a] bone fracture constitutes substantial and significant physical injury within the meaning of ... section 12022.7." (Id. at p. 1302.) We held the instruction was improper because it impermissibly reduced the prosecution's burden of proving the victim sustained great bodily injury under section 12022.7, but we nevertheless concluded the error was nonprejudicial because "[u]nder the facts of [the] case it [was] inconceivable that the jury, without receiving the erroneous instruction, would have concluded [the victim] did not sustain 'great bodily injury.' " (Id. at p. 1308.) We further found there was "no evidence in the record to support a finding that [the victim's] physical injuries were anything but 'significant or substantial ....' Therefore, there was no material issue of fact ... for the jury to determine, and the instructional error was harmless." (Ibid.)
In this case, we find the evidence to be of such convincing force that it is inconceivable the jury would have acquitted Macias of assault with a firearm upon Vasquez absent the erroneous modification. As to element one of CALCRIM No. 860, it is inconceivable the jury would find that Macias willfully pointed a loaded firearm at Vasquez in a threatening manner, but determine this was not an act that "by its nature would directly and probably result in the application of force to a person." To put it conversely, if willfully pointing a loaded firearm at someone in a threatening manner is not an act that by its nature would directly and probably result in the application of force to that person, it is hard to conceive of what is. (See People v. Miceli (2002) 104 Cal.App.4th 256, 269.)
We note CALCRIM No. 860 defines a willful act as one that is done "willingly" or "on purpose."
As to element three, we find it inconceivable the jury would find Macias was not aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone. For one, Macias testified he knew the gun was cocked and loaded, and he said he had shot the gun at the gun range and on his father's property. He therefore unquestionably knew how to shoot the gun and knew it was operable. He also admitted he was aware deputies were outside of the trailer before he kicked out the back window.
As to element four, we also find it inconceivable the jury would find Macias did not have the "present ability to apply force to [Vasquez]." Macias himself testified he was holding the cocked and loaded gun in his hand at the time he kicked out the back window, and he knew there were officers standing outside. Additionally, in connection with the charge of attempted murder of Coleman, the jury found true the allegation that Macias discharged his gun at Coleman. It would be inconsistent for the jury to believe Macias fired a gun at Coleman but did not have the present ability to fire the same gun at Vasquez just a short time earlier. Moreover, when Macias was asked at trial how quickly he could fire the gun if he wanted to try to fire at something, he responded, "Very quick."
In our view, the instructional error was unimportant in relation to everything else the jury considered on the issue, as revealed in the record, and thus it is inconceivable the jury would have acquitted on count 7 absent the error. We therefore conclude the instructional error was harmless beyond a reasonable doubt.
III. Motion to Consolidate and Motion to Sever
The trial court granted the prosecution's pretrial motion to consolidate the charges arising from the Cragg and Hall incidents with those arising from the shootout. Macias subsequently moved, in limine, for severance. In denying severance, the court ruled:
"It appears to the Court that these allegations are within the same class of crimes and that it is proper for judicial economy and so forth to join such crimes when joinder is available.
"On considering cross-admissibility, the Court also is aware that cross-admissibility is not dispositive of the issue and that there can be circumstances wherein cross-admissibility would not be applicable, yet joinder is still appropriate.
"The Court does find that, given the information that's been provided by both counsel in this case, there would be a great deal of cross-admissibility both ways, assuming that both—that this case was severed.
"As far as intent, knowledge, absence of mistake, and motive, those are just a few that the court can consider as character evidence that would be proper under [Evidence Code section] 1101[, subdivision ](b) and not restricted or excluded under [Evidence Code section] 1101[, subdivision](a) as it relates to the facts and circumstances as represented in both cases."
Macias contends the trial court abused its discretion by consolidating—and then refusing to sever—the charges arising from the Cragg and Hall incidents and those arising from the shootout. He asserts the error deprived him of his rights to due process and a fair trial under the Fifth and Fourteenth Amendments. We find no error.
A. Discussion
Section 954 provides that "[a]n accusatory pleading may charge ... two or more different offenses of the same class of crimes or offenses, under separate counts, ... provided, that the court in which a case is triable, in the interests of justice and for good cause shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately or divided into two or more groups and each of said groups tried separately."
"Whether offenses properly are joined pursuant to section 954 is a question of law and is subject to independent review on appeal ...." (People v. Cunningham (2001) 25 Cal.4th 926, 984.) Because eight of the nine charged offenses in this case were assaultive crimes and thus belonged to the same class of crimes, the statutory requirements for joinder were met and the trial court's consolidation of the charges was proper. (People v. Walker (1988) 47 Cal.3d 605, 622 [all assaultive crimes against the person are considered to be of the same class].)
" 'When ... the statutory requirements for joinder are met, a defendant must make a clear showing of prejudice to establish that the trial court abused its discretion in denying the defendant's severance motion.' " (People v. Grant (2003) 113 Cal.App.4th 579, 586.) " 'The determination of prejudice is necessarily dependent on the particular circumstances of each individual case, but certain criteria have emerged to provide guidance in ruling upon and reviewing a motion to sever trial.' [Citation.] Refusal to sever may be an abuse of discretion where: (1) evidence on the crimes to be jointly tried would not be cross-admissible in separate trials; (2) certain of the charges are unusually likely to inflame the jury against the defendant; (3) a 'weak' case has been joined with a 'strong' case, or with another 'weak' case, so that the 'spillover' effect of aggregate evidence on several charges might well alter the outcome of some or all of the charges; and (4) any one of the charges carries the death penalty or joinder of them turns the matter into a capital case." (People v. Sandoval (1992) 4 Cal.4th 155, 172-173 (Sandoval).)
Denial of a severance motion amounts to an abuse of discretion only if the ruling "exceeds the bounds of reason, all of the circumstances being considered." (People v. Giminez (1975) 14 Cal.3d 68, 72; accord, People v. Soper (2009) 45 Cal.4th 759, 774 (Soper).) "A pretrial ruling denying severance that is not an abuse of discretion can be reversed on appeal only if joinder is so grossly unfair as to deny the defendant due process." (People v. Cook (2006) 39 Cal.4th 566, 581.) "Even if the court abused its discretion in refusing to sever, reversal is unwarranted unless, to a reasonable probability, defendant would have received a more favorable result in a separate trial." (People v. Avila (2006) 38 Cal.4th 491, 575.)
1. Cross-admissibility
We consider first whether the evidence from the two groups of offenses (i.e. those arising from the Cragg and Hall incident, and those arising from the shootout) would have been cross-admissible had the two groups of offenses been separately tried. (Soper, supra, 45 Cal.4th at pp. 774-775.) "If the evidence would have been cross-admissible, then joinder of the charges was not prejudicial." (People v. Thomas (2012) 53 Cal.4th 771, 798.) " '[T]he issue of cross-admissibility "is not cross-admissibility of the charged offenses but rather the admissibility of relevant evidence" that tends to prove a disputed fact. [Citations.]' [Citation.] Thus, ... ' "complete (or so-called two-way) cross-admissibility is not required. In other words, it may be sufficient, for example, if evidence underlying charge 'B' is admissible in the trial of charge 'A'—even though evidence underlying charge 'A' may not be similarly admissible in the trial of charge 'B.' " ' " (People v. Capistrano (2014) 59 Cal.4th 830, 849, overruled on another ground in People v. Hardy (2018) 5 Cal.5th 56, 104.)
"Whether the evidence of other crimes would have been admissible in separate trials on the others is governed by Evidence Code section 1101, subdivision (b), which permits admission of other uncharged acts when offered as evidence of a defendant's motive, common scheme or plan, preparation, intent, knowledge, identity, or absence of mistake or accident in the charged crimes." (People v. Lucas (2014) 60 Cal.4th 153, 214-215, disapproved on another ground in People v. Romero and Self (2015) 62 Cal.4th 1, 53-54, fn. 19.) "In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant ' "probably harbor[ed] the same intent in each instance." ' " (People v. Lindberg (2008) 45 Cal.4th 1, 23.) For a prior crime to be admissible to prove motive, there must be a direct logical nexus between the prior crime and the current one. (People v. Demetrulias (2006) 39 Cal.4th 1, 15.)
Here, if the charges arising from the shootout had been tried separately, evidence that Macias had purportedly committed multiple violent felonies against Cragg and Hall at an earlier date would be admissible to prove a motive to escape on the day of the shootout. Specifically, the evidence would tend to prove Macias knew on the day of the shootout he was wanted for serious felonies, which would explain his motive to escape from the trailer when he realized deputies were outside. There would thus be a direct nexus between the Cragg and Hall incidents and the shootout. Furthermore, evidence of this motive would work against a claim by Macias that his pointing a gun at Vasquez and his shooting at Coleman were accidental.
Even if we determined the underlying charges would not be cross-admissible in hypothetical separate trials, "that determination would not itself establish prejudice or an abuse of discretion by the trial court in declining to sever properly joined charges." (Soper, supra, 45 Cal.4th at p. 775; accord, Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1221-1222; see § 954.1.) Thus, we return to the three other factors pertinent to the prejudice analysis: whether one or more of the charges was especially likely to inflame the jury against him, whether the consolidation of the charges resulted in a spillover effect in which evidence from stronger charges was used to bolster the evidence on weaker charges, and whether one of the charges carries the death penalty or joinder turns the matter into a capital case. (Sandoval, supra, 4 Cal.4th at pp. 172-173.) The third of these factors is not applicable here, but the other two are and we discuss them below.
Section 954.1 provides: "In cases in which two or more different offenses of the same class of crimes or offenses have been charged together in the same accusatory pleading, or where two or more accusatory pleadings charging offenses of the same class of crimes or offenses have been consolidated, evidence concerning one offense or offenses need not be admissible as to the other offense or offenses before the jointly charged offenses may be tried together before the same trier of fact."
2. Other Factors Relevant to Severance
First, Macias has not shown that one or more of the charges was especially likely to inflame the jury against him. Macias argues the charges arising from the shootout were likely to inflame the jury because the victims were peace officers. We disagree, given that an elderly man, a vulnerable victim, was one of the alleged victims in the other group of charges. Furthermore, the allegations from the Cragg and Hall incidents, on the one hand, and from the shootout, on the other, were equally outrageous in that they involved unprovoked assaultive crimes with a firearm. Additionally, Macias did not injure or kill anyone in any of the three incidents.
Second, Macias argues the consolidation of the charges resulted in a spillover effect in which evidence from stronger charges was used to bolster the evidence on weaker charges. Specifically, he argues the evidence for the shootout charges was stronger than the evidence for the Cragg and Hall charges because the former charges involved independent witnesses and scientific evidence, whereas the latter charges did not. We disagree with Macias's assessment of the comparative strength of the evidence, but in any event, there did not seem to be a spillover effect. Macias was charged with four crimes arising from the Cragg and Hall incidents but was only convicted of one of them—making a criminal threat (count 1), arguably the least serious of the four. Macias was acquitted of the other three crimes, namely one count of shooting at an occupied vehicle and two counts of assault with a firearm, all three of which arose from the second incident in November 2014 with Cragg and Hall. This demonstrates the jurors were capable of differentiating, and in fact, did differentiate, among the various charges, allegations, and evidence. (See People v. Jones (2013) 57 Cal.4th 899, 927.) It also demonstrates the jurors did not impermissibly cumulate evidence or assume that because Macias was guilty of pointing a gun at one peace officer and shooting at another, he must have been guilty of shooting at Cragg and Hall. Considering the acquittals on counts 2, 3, and 4 and the independent strength of the evidence on count 1, we do not see how there was a spillover effect.
With respect to the criminal threats conviction, the jury also found true the allegations Macias was personally armed with a firearm (§ 12022, subd. (a)(1)) and that he personally used a firearm in the commission of the crime (§ 12022.5, subd. (a)).
The burden is on Macias to persuade us that the benefits of joinder, discussed at length in Soper, supra, 45 Cal.4th at pages 781 through 782, were outweighed by a substantial danger of undue prejudice. (Sandoval, supra, 4 Cal.4th at p. 173.) We do not believe there was a danger of undue prejudice because evidence would have been cross-admissible in separate trials, none of the charges were particularly inflammatory, and there was no risk of a spillover effect. Macias has not met this burden, and so it follows that the trial court did not abuse its discretion in consolidating—and in refusing to sever—the charges arising from the Cragg and Hall incidents and the charges arising from the shootout with deputies.
" '[E]ven if a trial court's ruling on a motion to sever is correct at the time it was made, a reviewing court still must determine whether, in the end, the joinder of counts ... for trial resulted in gross unfairness depriving the defendant of due process of law.' " (Soper, supra, 45 Cal.4th at p. 783.) This final step of the analysis is necessary because sometimes a trial will result in gross unfairness even though joinder was initially proper. (People v. Grant (2003) 113 Cal.App.4th 579, 586.) We have reviewed the record and find no gross unfairness—or any unfairness at all—depriving Macias of due process of law. As we have already explained, evidence from the Cragg and Hall incidents would have been admissible in a hypothetical separate trial of the charges arising from the shootout. Additionally, none of the charges—nor any of the evidence—turned out to be especially inflammatory, and there was apparently no spillover effect as the jury acquitted Macias of three of the four crimes from the Cragg and Hall incidents and convicted him only of the least serious one. Thus, not only was there no risk of unfair prejudice at the time the trial court denied Macias's motion to sever, the trial did not result in gross unfairness.
Macias also contends on appeal the trial court erred by not giving any instruction to the jury regarding the use of other charged crimes evidence. However, Macias admits his trial counsel did not make a request for such an instruction, and Macias does not argue here that his trial counsel was ineffective for failing to do so. The issue is thus forfeited. (People v. Turner (2002) 96 Cal.App.4th 1409, 1412.) But even if the issue were properly before us, it would not affect the outcome.
IV. Firearm Enhancements
Macias contends the section 12022.5 enhancements imposed in counts 1 and 8 and the section 12022.53 enhancements imposed in counts 5 and 6 must be vacated and remanded for the court to exercise its discretion under newly amended section 12022.5, subdivision (c) and section 12022.53, subdivision (h) to strike those enhancements. We agree.
At the time of Macias's sentencing, sections 12022.5, subdivision (c) and 12022.53, subdivision (h) stated, "Notwithstanding Section 1385 or any other provisions of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section." (Former §§ 12022.5, subd. (c); 12022.53, subd. (h).) However, on October 11, 2017, after Macias's sentencing, Senate Bill No. 620 was signed by the Governor, amending those two sections as of January 1, 2018, to read as follows: "The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law." (Stats. 2017, ch. 682, §§ 1, 2.) Furthermore, multiple appellate decisions have already concluded that Senate Bill No. 620 applies retroactively to non-final judgments. (See, e.g., People v. Chavez (2018) 22 Cal.App.5th 663, 712 (Chavez); People v. Woods (2018) 19 Cal.App.5th 1080, 1090-1091; People v. Robbins (2018) 19 Cal.App.5th 660, 678-679.)
Notwithstanding Senate Bill No. 620's retroactivity, we need not remand if the "record shows that the trial court clearly indicated when it originally sentenced [Macias] that it would not in any event have stricken a firearm enhancement[s]." (People v. McDaniels (2018) 22 Cal.App.4th 420, 425; Chavez, supra, 22 Cal.App.4th at p. 713.) The People argue the record contains this clear indication by the trial court, but we disagree.
In this case, the record does not clearly indicate the trial court would have refused to strike one or more of the firearm enhancements if it had the discretion to do so at the time of Macias's sentencing. For one, the trial court did not sentence Macias to the maximum amount of time in prison, despite believing a longer sentence was warranted. The trial court found no factors in mitigation and noted that Macias had "consistently accumulated convictions" over the past several years and had several probation violations, bench warrants, and failures to appear. As to factors in aggravation, the court found Macias's prior convictions were numerous and his prior performance on misdemeanor probation and drug diversion was unsatisfactory. The court found imposition of consecutive sentencing appropriate under the facts of this case. The court also believed imposition of the upper term with respect to count 7 (assault with a firearm on a peace officer) was warranted. Despite all of this, the court, in an apparent act of leniency, chose to impose the middle term on count 7 instead of the aggravated term.
We note that Macias had never suffered a felony conviction prior to this case.
Furthermore, the court made no express statement indicating it would not have exercised its discretion to impose a lesser sentence if it had the discretion to do so. In fact, it appears the court imposed the firearm enhancements simply as a matter of course. This is different than in People v. Gutierrez (1996) 48 Cal.App.4th 1894, where the trial court made clear it would not have exercised its discretion to impose a lesser sentence even if it had discretion to do so, by stating the defendant was " 'the kind of individual the law was intended to keep off the street as long as possible.' " (Id. at p. 1896.)
Thus, remand is proper here because the record does not clearly indicate the court would have declined to strike one or more of the firearm enhancements if it had the discretion to do so at the time of Macias's sentencing. We express no opinion regarding how the trial court should exercise its discretion on remand.
DISPOSITION
The conviction in count 1 for violation of section 422 (criminal threats) is reversed. The sentence is vacated and the matter is remanded for resentencing and for the trial court to exercise its discretion pursuant to the newly amended section 12022.5, subdivision (c) and section 12022.53, subdivision (h). In all other respects, the judgment is affirmed.
/s/_________
SNAUFFER, J. I CONCUR: /s/_________
SMITH, J. POOCHIGIAN, Acting P.J., dissenting.
I respectfully dissent from the conclusion in the majority opinion that there is insufficient evidence as a matter of law to support defendant's conviction in count 1 for criminal threats in violation of Penal Code section 422 based on the first incident where defendant pointed the gun at Hall's face and threatened to blow off his head. (Maj. opn., ante, at p. 12.) I believe there is substantial evidence to support the jury's implicit finding that Hall was in "sustained fear" from defendant's threat. (§ 422, subd. (a).)
All further statutory citations are to the Penal Code unless otherwise stated.
"Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendant's guilt beyond a reasonable doubt. ' "If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment." ' [Citations.]" (People v. Bean (1988) 46 Cal.3d 919, 932-933; People v. Zaragoza (2016) 1 Cal.5th 21, 44.)
The phrase "sustained fear" has been defined as "a period of time that extends beyond what is momentary, fleeting, or transitory." (People v. Allen (1995) 33 Cal.App.4th 1149, 1156.) At one end of the spectrum is In re Ricky T. (2001) 87 Cal.App.4th 1132, where there was insufficient evidence of sustained fear when a minor threatened to "get" a teacher after the teacher inadvertently hit him with a classroom door. (Id. at pp. 1135-1136.) Ricky T. rejected the argument "that even momentary fear can support a finding of sustained fear within the meaning of section 422." (Id. at p. 1140.) The teacher said he felt threatened, but the police were not notified until the following day and "[a]pparently, fear did not exist beyond the moments of the encounter." (Ibid.)
In contrast to Ricky T. is People v. Allen, supra, 33 Cal.App.4th 1149, that held: "Fifteen minutes of fear of a defendant who is armed, mobile, and at large, and who has threatened to kill the victim and her daughter, is more than sufficient to constitute 'sustained' fear for purposes of this element of section 422." (Id. at p. 1156, fn. omitted.)
Somewhere between Allen and Ricky T. is People v. Fierro (2010) 180 Cal.App.4th 1342 (Fierro), where the defendant and the victim had a verbal altercation at a gas station. The defendant got out of his car, displayed what appeared to be a handgun or a pistol, and threatened to kill the victim and his son. The victim was afraid the defendant was going to shoot them. The victim drove away and testified that, within 15 minutes, he was on the freeway and felt " 'out of harm's way.' " (Id. at pp. 1345-1346.) Fierro held there was substantial evidence of sustained fear:
"The fear lasted not only through the minute or so that [the defendant] stood there exposing his weapon, but for up to fifteen minutes after [the victim] drove away. It is entirely reasonable that he would react as he did for as long as he did. That is exactly what [the defendant] wanted to accomplish." (Id. at p. 1348, italic added.)
Fierro went further, however, and addressed the defendant's argument that in determining whether there was substantial evidence of sustained fear, the court should only consider the 40-second time period (based on the gas station's security film) that the defendant confronted the victim at the gas station, and not the 15-minute period where the victim drove onto the highway and called 911. Fierro rejected the defendant's argument that 40 seconds was an insufficient time to constitute sustained fear since it "ignores human nature." (Fierro, supra, 180 Cal.App.4th at p. 1349.)
"We submit that a person who hears someone say, 'I will kill you ... right now,' coupled with seeing a weapon, is quite justified in remaining 'scared shitless' - as [the victim] put it - for 15 minutes .... But even if we accept [the defendant's] argument, we believe that the minute during which [the victim] heard the threat and saw [the defendant's] weapon qualifies as 'sustained' under the statute. When one believes he is about to die, a
minute is longer than 'momentary, fleeting, or transitory.' [Citation.]" (Ibid., italics added.)
Based on Fierro, I believe there is substantial evidence that supports the jury's implicit finding that Hall was in sustained fear from defendant's threat. Hall, who was 87 years old at the time of trial, testified that as he stood next to defendant's truck and talked to him, defendant "stuck a gun in my face," and "I mean, I was looking at it."
"[The prosecutor]. Do you remember the gun being pointed at your face?
"[Hall]. I remember the gun being pointed at my face, yes, sir."
"Q. ... Were you focused on the person or the gun?
"A. Well, I don't know what I was focused on. I was scared.
"Q. Well, the driver of the vehicle who pulled the gun, did he say anything to you?
"A. Yes, sir.
"Q. What did he say?
"A. 'I'll blow your F'ing head off.' " (Italics added.)
Cragg, Hall's grandson, testified he saw defendant point a semiautomatic pistol at Hall's face and heard defendant say he was going to blow Hall's head off. Cragg was scared and immediately called 911, and defendant then drove away.
Hall's testimony provides substantial evidence of sustained fear - he saw defendant point the gun at his face, heard defendant say that he was going to blow his head off, and he was scared. "Even if the encounter lasts only one minute, a person who is confronted with a firearm held by an angry perpetrator and who believes his or her death is imminent, suffers sustained fear. [Citation.]" (People v. Culbert (2013) 218 Cal.App.4th 184, 191.)
The majority opinion distinguishes Fierro because the victim in that case testified he was in fear for at least 15 minutes after defendant threatened him. (Maj. Opn., ante, at pp. 11-12.) As explained above, however, Fierro further held that even if the defendant's argument in that case was accepted, the much shorter time of just 40 seconds - when the defendant threatened the victim at the gas station - still constituted substantial evidence of sustained fear. (Fierro, supra, 180 Cal.App.4th at p. 1349.) A similar conclusion should be reached in this case.
The majority opinion finds there was no evidence, direct or circumstantial, that Hall's fear continued after defendant ended the encounter by driving away. (Maj. opn., ante, at p. 10.) The mere possibility Hall did not experience sustained fear because defendant drove away without shooting him does not undermine the jury's factual finding that he did suffer sustained fear in the period that defendant pointed a gun at his face and threatened to blow his head off. "Experiencing relief that one has survived is not the same thing ... as having one's fear evaporate." (People v. Culbert, supra, 218 Cal.App.4th at p. 191.)
The majority opinion also finds that Hall's decision to get back into his own vehicle and follow defendant further undermines any evidence of sustained fear, particularly since Cragg's voice remained relatively calm during the 911 call, and he reported they were "fine" after defendant drove away. (Maj. opn., ante, at p. 10.) While Cragg may have sounded calm, he testified he was "pretty freaked out" when he spoke to the 911 operator, he had adrenaline going through his system, and "I was pretty distraught. My grandfather had a gun pulled in his face, you know." Cragg's statement that they were "fine" occurred at the end of the call, when the 911 operator asked if they needed an ambulance. Cragg replied they were "fine" and "he left," referring to defendant. Cragg's response to the operator's inquiry was not an indication that either of them were not frightened by what just happened.
As for their decision to follow defendant, an argument on appeal that " 'the circumstances also might reasonably be reconciled with a contrary finding' does not render the evidence insubstantial. [Citation.]" (People v. Earp (1999) 20 Cal.4th 826, 887-888.) While Hall's decision to follow defendant's truck may have constituted some evidence about his level of sustained fear, such conduct does not undermine his prior testimony that he was scared when defendant pointed the gun at his face and threatened to blow his head off. It was in the jury's province to determine whether Hall's decision to follow defendant completely undermined his testimony that he was afraid when defendant pointed the gun and threatened to kill him, such that there was insufficient evidence as a matter of law of sustained fear. For example, the jury could have reasonably determined that Hall decided to follow defendant not because he was unafraid, but so they could report defendant's location in a fairly remote area to law enforcement. Indeed, the identical situation occurred during Hall and Cragg's second encounter with defendant, when they saw him driving near Hall's property and decided to follow him, even though he had previously threatened Hall with a gun, because they knew defendant was still wanted for the first incident and they were going to call the sheriff's department again.
When viewed in the light more favorable to the judgment and drawing reasonable inferences from the testimony of Hall and Cragg, I believe the record contains substantial evidence to support the jury's verdict in count 1.
I respectfully dissent.
/s/_________
POOCHIGIAN, Acting P.J.