People v. Wilson CA5

Filed 4/14/22 P. v. Wilson CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE, F081022 Plaintiff and Respondent, (Super. Ct. No. LF012723A) v.

KEVIN LYNN WILSON, OPINION Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Kern County. Charles Brehmer, Judge. Eric E. Reynolds, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, 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. -ooOoo- Appellant Kevin Lynn Wilson was convicted by jury of making criminal threats (Pen. Code,1 § 422; count 2) and obstructing law enforcement by threat (§ 69; count 3).

1 All further undesignated statutory references are to the Penal Code.

The court sentenced appellant to the middle term of two years as to count 2 and the upper term of three years as to count 3, to be served concurrently. On appeal, appellant contends (1) his conviction on count 2 must be reversed because it was supported by insufficient evidence; (2) alternatively, his sentence for count 2 must be stayed because it was executed in violation of the prohibition against multiple punishment (§ 654); and (3) the court erred by imposing certain fines and fees without making a determination that appellant had the ability to pay them. We modify the judgment to reflect the sentence on count 2 is stayed. In all other respects, we affirm the judgment as modified. FACTS On November 20, 2019, the Kern County Sheriff’s Office received reports of a single gunshot coming from appellant’s residence. Kern County Deputy Sheriff Mathew Alvarez reported in uniform to appellant’s residence at approximately 9:00 p.m. The residence was situated on a hillside, and the porch area was on the second story of the house, with a staircase leading up to it. The porch area was approximately 10 to 15 square feet in size. Alvarez went up the stairs to approach the residence and could see clearly through a window into the front of the house. Alvarez knocked on the door and announced loudly he was from the sheriff’s office a couple of times. Through the window, Alvarez saw appellant coming down the hallway toward the front door “walking with a purpose” “aggressively” with a long gun in his left hand. Alvarez thought he was going to get shot; he took a step back to move out of the way of the door and removed his firearm from his holster. Alvarez pointed his firearm toward the door and shouted, “sheriff’s office, put the gun down” approximately three times. Alvarez saw the door open but could not see appellant from where he had moved to. Alvarez continued to repeat “[i]t’s the sheriff’s office” and told appellant to put the gun down. Appellant responded, “F[...] you, put yours down first.” Alvarez continued to tell appellant to put the gun down, and appellant stated, in what Alvarez described as a sarcastic tone, “Come on inside and we’ll