People v. Williams CA1/5

Filed 9/9/15 P. v. Williams CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent, A143066 v. (Solano County MICHAEL C. WILLLIAMS, Super. Ct. Nos. FCR300442,) FCR305731) Defendant and Appellant. ____________________________________/

In case No. FCR305731, a jury convicted appellant Michael C. Williams of felony assault with a deadly weapon (§ 245, subd. (a)(1))1 and misdemeanor exhibiting a deadly weapon (§ 417, subd. (a)(1)). The court found sentencing enhancement allegations true (§ 667.5, subd. (b)). In case No. FCR300442, the court revoked and terminated Williams’s probation based on the trial testimony in case No. FCR305731. At a combined sentencing hearing on both cases, the court sentenced Williams to state prison and imposed various fines and fees, including restitution (§ 1202.4) and probation revocation fines (§ 1202.44). Williams appeals from the combined judgment. He contends: (1) insufficient evidence supports the assault with a deadly weapon conviction (§ 245, subd. (a)(1)) in case No. FCR305731; (2) the court erroneously declined to instruct the jury with

1 Unless noted, all further statutory references are to the Penal Code. 1

CALCRIM No. 3470 in case No. FCR305731; and (3) the restitution and probation revocation fines should be reduced to $280 in case No. FCR300442. The People agree these fines should be reduced. We accept the People’s concession and modify the judgment accordingly. In all other respects, we affirm. FACTUAL AND PROCEDURAL BACKGROUND Case No. FCR300442 Williams pled no contest to possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and admitted a prior prison term (§ 667.5, subd. (b)). In September 2013, the court placed Williams on probation and imposed and stayed a $280 restitution fine (§ 1202.4) and a $280 probation revocation fine (§ 1202.44). Case No. FCR305731 The People charged Williams with felony assault with a deadly weapon (§ 245, subd. (a)(1)) and misdemeanor exhibiting a deadly weapon (§ 417, subd. (a)(1)) and alleged prior prison terms (§ 667.5, subd. (b)). A. Prosecution Evidence On a February 2014 evening, William Apostolos left a sporting goods store in Vacaville. As Apostolos walked toward his car in the parking lot, he heard “commotion . . . going on to [his] right.” A man—later identified as Williams—was “yelling, shouting commands towards” a woman in the bed of a pickup truck. Williams was “removing items” from the bed of the truck and yelling, “‘Bitch, get the fuck out of my truck. Get the fuck out of my truck. Get your shit and get the fuck out.’” Williams “repeated that . . . five or six more times.” An infant in a carseat and a girl between five and eight years old were near the truck. The woman “was saying something” to Williams, but Williams’s “voice was over-powering her voice.” Apostolos walked toward the truck, but stopped about 25 to 30 feet away from it. Apostolos “was basically . . . making them aware that there was a person present . . . witnessing the events that were going on. . . . [His] main purpose was to make sure that the anger and the frustration that [he] noticed with [Williams] did not turn toward the kids.” Williams approached Apostolos. From about five to seven feet away, Williams