People v. Holmes CA2/1

Filed 8/20/21 P. v. Holmes CA2/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, B305342

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA123468)
v.

JOHN L. HOLMES,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of
Los Angeles County, Mike Camacho, Judge. Affirmed in part and
reversed in part.
Russell S. Babcock, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Matthew Rodriquez, Acting
Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Susan Sullivan Pithey, Assistant Attorney General,
Steven D. Matthews and Rama R. Maline, Deputy Attorneys
General, for Plaintiff and Respondent.
 ____________________________

Defendant John L. Holmes appeals from the judgment
following his conviction on 14 counts, including, inter alia,
violation of a domestic relations court order, child abuse, robbery,
criminal threats, and dissuading a witness by force or threat.
Defendant contends his disruptive behavior during the
proceedings below should have triggered an inquiry into his
mental competence, that the evidence was insufficient to support
one robbery count and the child abuse and criminal threats
counts, and that the trial court erred by admitting evidence of an
uncharged incident of domestic violence.
We conclude there was insufficient evidence of mental
incompetence to require further inquiry by the trial court and
defense counsel. The evidence was sufficient to support the
robbery and criminal threats convictions; however, there was
insufficient evidence that defendant had care and custody of the
victims of the child abuse counts, a necessary element of those
charges. The trial court properly admitted the evidence of the
prior incident of domestic violence; the victim of that violence was
also the victim of the count for witness dissuasion by force or
threat, and the evidence of the prior incident was relevant and
probative to that count.
Accordingly, we reverse the convictions for child abuse, but
otherwise affirm the judgment.

PROCEDURAL BACKGROUND
An information alleged 14 counts against defendant: two
counts of violating a domestic relations court order (Pen. Code,1

1 Unspecified statutory citations are to the Penal Code.

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§ 273.6, subd. (a)) (counts 1–2); three counts of child abuse
(§ 273a, subd. (b)) (counts 3–5); two counts of second degree
robbery (§ 211) (counts 6–7); three counts of dissuading a witness
from prosecuting a crime (§ 136.1, subd. (b)(2)) (counts 8, 12–13);
one count of bringing contraband into jail (§ 4573, subd. (a))
(count 9); two counts of criminal threats (§ 422, subd. (a)) (counts
10–11); and one count of dissuading a witness by force or threat
(§ 136.1, subd. (c)(1)) (count 14).
The information further alleged that defendant had
suffered a prior serious or violent felony conviction, subjecting
him to sentencing under the “Three Strikes” law (§§ 667,
subds. (b)–(j), 1170.12) and a five-year enhancement under
section 667, subdivision (a)(1).
A jury convicted defendant of all 14 counts, and separately
found that he had suffered the prior conviction.
The trial court sentenced defendant to 37 years 8 months
as follows. The court set count 6 as the base term and sentenced
defendant to the high term of five years, doubled because of the
prior strike, and added five years for the enhancement under
section 667, subdivision (a)(1) for a total of 15 years. On counts
7 and 9 through 11, the court imposed one-third the midterm for
each, doubled, for a total of six years eight months, consecutive to
the base term. On counts 12 through 14, the trial court imposed
the full midterm on each, doubled, for a total of 14 years,
consecutive to the base term.2 On counts 1 and 2, the trial court
imposed sentences of one year each, consecutive, and on counts
3 through 5, 180 days each concurrent with the other counts. The

2 Section 1170.15 required imposition of the full middle
term for the violations of section 136.1 under the circumstances
of this case. Defendant does not contest this on appeal.

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court imposed a sentence of three years on count 8, stayed
pursuant to section 654.
The trial court imposed fines and fees, and awarded no
custody credits because of a probation violation in a separate
case. Defendant timely appealed.

FACTUAL BACKGROUND
We summarize the evidence presented in support of the
counts alleged in the information.

1. Violations of domestic relations court order and child
abuse (counts 1–5)

a. Issuance of domestic relations court order
On September 25, 2018, the San Bernardino County
Superior Court issued an order prohibiting defendant from
having contact with or coming within 100 yards of Marcy D.
(Marcy) for three years. This followed a June 3, 2018, incident in
which, according to a 911 call and Marcy’s statements to law
enforcement at the time,3 defendant entered her home, slapped
her multiple times, dragged her by her shirt, took her phone, and
stated he would return with a gun to kill her. Marcy identified
defendant as her “ex.” Defendant’s alleged conduct was
uncharged in the instant case.

3 At trial, Marcy refused to answer most questions or
claimed ignorance. Her statements summarized throughout this
Factual Background section primarily were recounted through
the testimony of police officers who took the statements, or
presented to the jury through police body camera footage and
recordings of 911 calls.

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 b. Violations of order and child abuse
On July 21, 2019, police responded to a call at Marcy’s
apartment. Marcy lived with her three children, ages 10, 2, and a
newborn. Defendant, who was the newborn’s father, had been
staying there as well.
Marcy reported that the night before, she and defendant
had argued because she wanted defendant to move out. Around
midnight, while she was lying in bed, defendant kicked her in the
upper torso. She went into the children’s bedroom and slept
there.
The next morning, the argument continued, and defendant
put his hands around Marcy’s neck and pushed her down onto
her hands and knees. Marcy left the apartment and went to the
manager’s apartment next door, leaving defendant alone with the
children.4
When police officers arrived, Marcy told them the children
were in the apartment but she did not have her key. The officers
found an unlocked side door and went in. Defendant was not
present. The three children were inside, unattended. They were
nervous with the police there, but otherwise fine.

2. Robberies and first count of dissuading a witness
(counts 6–8)
The morning of August 16, 2019, Marcy called 911 and
stated that defendant had “br[oken] into my apartment” and
“t[aken] my phone.” The dispatcher asked if Marcy knew where

4 In closing, the prosecution argued that defendant
violated the protective order merely by being with Marcy on
July 20 and 21, regardless of whether he assaulted her on those
dates.

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defendant lived and Marcy said he was “homeless” and “living in
his car.”
When police arrived at approximately 8:00 a.m., Marcy
reported that she woke up that morning to find defendant in her
apartment. She did not know how he got in. He said she had
been “caught slipping” and asked, “[W]here’s your fucking phone
at.” Marcy grabbed the phone and went into a fetal position,
clutching the phone to her abdomen to prevent defendant from
taking it. Defendant succeeded in taking it from her grasp and
left. A police officer observed that Marcy had lacerations on her
knuckles.
Later that same day, at approximately 2:34 p.m., police
responded to another call at Marcy’s apartment. Marcy reported
that defendant broke in again while she was eating and asked if
she was cheating on him. He chased her into the parking lot and
shook her back and forth. Marcy had another phone and she
attempted to call 911. Defendant took the phone from her,
stating, “Good luck having the cops find me.”
At trial, defense counsel asked Marcy to confirm that the
phone she had with her the morning of August 16 was one that
defendant “had bought and paid for on your behalf.” Marcy
answered, “Correct.”

3. Contraband (count 9)
Defendant was arrested the evening of August 16, 2019, the
day he took the two phones from Marcy. Prior to defendant
entering the jail, a police officer informed him that it was a felony
to bring illegal contraband into the jail. Defendant said he had
nothing on him. Inside the jail, police searched him and
discovered a plastic baggie containing .118 grams of cocaine in
his shoe.

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4. Criminal threats (counts 10–11)
Jailer Anthony I. testified that when defendant was
brought to jail and fingerprinted, he was very agitated. He
refused to obey commands or comply with a strip search.
Eventually he was placed in waist chains because of his high
level of agitation.
After defendant was fingerprinted, Anthony I. escorted
defendant to his cell. Defendant looked at Anthony I.’s nametag,
read it aloud, then said, “If I ever see you on the street, I’m going
to smoke you.” Anthony I. interpreted “smoke” to mean harm or
kill.
Anthony I. had worked as a jailer since 2011. He estimated
he had been threatened by inmates 10 to 15 times. He ranked
defendant’s threat as the most serious he had received. Asked by
the prosecutor whether he had any concerns for his safety, he
stated that after he went home for the day and had time to reflect
on it, “I think that I became a little bit more worried about it; but
at the time, I was just trying to do my job.” Anthony I. worked
his next shift and took no time off as a result of the incident. He
did not think he had to worry about his safety while defendant
was in custody, but acknowledged he did not know at the time
whether defendant would remain in custody or would be released
within a few days.
Another jailer, Jacob A., participated in fingerprinting
defendant. He testified that defendant was yelling, screaming,
agitated, and argumentative, pulling away and resisting.
Jacob A. ranked defendant’s lack of cooperation “towards the
higher end” of how Jacob A. had seen inmates behave.
Later, Jacob A. looked in on defendant during a routine cell
check. Defendant told Jacob A. that if he ever saw him on the

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street, he would “smoke [him] or come find [him].” Jacob A.
interpreted “smoke” as shoot or kill. Jacob A. was wearing a
uniform with his name on it.
Jacob A. informed other jail staff in the control room what
defendant had said so they would know where defendant’s “head
is at” and that he might become violent as he had during booking.
Jacob A. had been a jailer for five and a half years. He had
received around 20 threats from inmates. He ranked defendant’s
threat “a little bit higher just because the way he was acting
towards us when he came in, the way he was resisting with us,
and just in general his demeanor . . . .”
Asked if defendant’s behavior put him in fear or affected
his own behavior, Jacob A. said he was not in fear within the jail
because he knew defendant had been searched and any weapons
had been taken from him. Outside of custody, however, Jacob A.
would not know if defendant had any weapons, “and I do believe
that he would probably try to inflict physical pain upon me.”
Jacob A. completed his shift following the threat and came to
work for his next shift as well.

5. Dissuading a witness (counts 12–13)
The jury heard recordings of two calls between defendant
and Marcy while defendant was in jail, before his preliminary
hearing, one on November 22, 2019, and one on November 23,
2019. During the calls, defendant appeared to discourage Marcy
from speaking with the district attorney or attending the
preliminary hearing. For example, in the first call defendant told
Marcy that if she appeared for his preliminary hearing, “they
could get me,” and without Marcy they would have to drop the
case against him. He told her, “You don’t call no fucking DA, you

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don’t go to no fucking court.” Defendant made similar comments
during the second call.

6. Dissuading a witness by force or threat (count 14)
Marcy appeared at defendant’s preliminary hearing. When
she was called to the witness stand, defendant exclaimed that the
court could not force his wife5 to testify against him, and told
Marcy not to take the stand. The magistrate ordered Marcy to
the stand, and defendant continued to instruct Marcy not to do
so. At one point, defendant stated, “So don’t get on the stand.
You better not get on the stand. [¶] Fuck you, mother fucker,
dude. They can’t do shit to you.” Shortly thereafter, defendant
said to Marcy, “Walk out of the fuckin’ courtroom. They can’t
arrest you. Leave, shit. Why don’t you fuckin’ listen? Why
aren’t you fuckin’ listening?” Defendant was removed from the
preliminary hearing.
A police detective who attended the preliminary hearing
testified at trial that Marcy appeared to be in fear, cowering and
looking down.

DISCUSSION

A. Mental Competence
Defendant argues that his behavior throughout the instant
proceedings should have raised a doubt as to his mental
competence, and the trial court should have ordered a
competency examination. Alternatively, defendant argues his

5The record does not indicate when Marcy and defendant
married. During trial they referred to each other as husband and
wife.

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trial counsel was ineffective for failing to ask for a competency
examination. We reject both arguments.

1. Governing law
“The constitutional guarantee of due process forbids a court
from trying or convicting a criminal defendant who is mentally
incompetent to stand trial.” (People v. Rodas (2018) 6 Cal.5th
219, 230 (Rodas).) Under the Penal Code, a defendant is
mentally incompetent “if, as a result of a mental health disorder
or developmental disability, the defendant is unable to
understand the nature of the criminal proceedings or to assist
counsel in the conduct of a defense in a rational manner.”
(§ 1367, subd. (a).) Our Supreme Court, quoting Dusky v. U.S.
(1960) 362 U.S. 402, put it thusly: “[C]ompetence requires
‘ “sufficient present ability to consult with [the defendant’s]
lawyer with a reasonable degree of rational understanding” ’ and
‘ “a rational as well as factual understanding of the proceedings
against [the defendant][.]” ’ ” (Rodas, at pp. 230–231.)
The Penal Code “requires that criminal proceedings be
suspended and competency proceedings be commenced if ‘a doubt
arises in the mind of the judge’ regarding the defendant’s
competence [citation] and defense counsel concurs [citation].”
(Rodas, supra, 6 Cal.5th at p. 231, citing § 1368, subds. (a)–(b).)
This means “that an accused has the right ‘to a hearing on
present sanity if he comes forward with substantial evidence that
he is incapable, because of mental illness, of understanding the
nature of the proceedings against him or of assisting in his
defense.’ [Citation.]” (Rodas, at p. 231.) “A defendant is
presumed competent unless the contrary is proven by a
preponderance of the evidence by the party contending he or she
is incompetent.” (People v. Blacksher (2011) 52 Cal.4th 769, 797.)

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“[A]bsent a showing of ‘incompetence’ that is ‘substantial’ as a
matter of law, the trial judge’s decision not to order a competency
hearing is entitled to great deference, because the trial court is in
the best position to observe the defendant during trial.” (People
v. Mai (2013) 57 Cal.4th 986, 1033 (Mai).)

2. Relevant proceedings below
On appeal, defendant identifies the following portions of
the record as instances that should have raised a doubt in the
mind of the trial court and defense counsel as to defendant’s
mental competence.
During a Marsden6 hearing, when the court asked if
defendant had anything else to say, he responded, “Fuck all you
all.”
During Anthony I.’s testimony in the preliminary hearing,
defendant spontaneously directed Anthony I. to “[t]ell the court
you all whooped my ass.” When the court ordered defendant to
be quiet, defendant responded, “Shit. I don’t give a fuck. Send
me out of the courtroom. Tell the fucking truth.”
Defendant also points to his conduct when Marcy appeared
at the preliminary hearing, discussed above, in which he
vigorously and repeatedly instructed her not to take the stand
and to leave the courtroom, and argued with the magistrate
about the magistrate’s ruling that Marcy must testify despite the
spousal privilege. At times, defendant would apologize to the
court for interrupting, but would then continue to argue that
Marcy could not testify against him, and would continue telling
Marcy not to take the stand.

6 People v. Marsden (1970) 2 Cal.3d 118.

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 During a hearing regarding the admission of certain
evidence, defendant stated, “Man, what the hell this got to do
with the fuckin’ charges now, man? Can I get up out of this
courtroom? I don’t want to hear this stupid shit, man.” The court
asked defendant to sit down, and defendant asked if he could go,
stating, “I’m tired of this stupid shit.” He was removed from the
courtroom.
During trial, outside the presence of the jury, defendant
stated that he was being “railroad[ed]” and “they are fucking me
over with no evidence.” The court warned him that “your
demeanor is a factor that this jury must consider for purposes of
many of these violations,” and “[i]f you [act out] in front of them,
they’re going to look at you in a negative light, which I’m trying
to prevent.” Defendant said, “This courtroom is bullshit.”
Before the reading of the verdicts, a deputy sheriff reported
to the court that defendant, while entering the custody elevators,
had stated he would “ ‘fuck up’ this courthouse.” The court
ordered defendant shackled.

3. Analysis
Defendant argues “there was ample evidence before the
court that [defendant’s] medical condition rendered him mentally
incapacitated to assist counsel in his defense. First, [defendant]
continued to be profane during most of the court proceedings,
even when admonished not to be disruptive by the trial judge.
He showed a distrust and inability to work with his trial counsel
during the Marsden hearing. He persisted in attempting to keep
Marcy D. from testifying during the preliminary hearing and the
trial when it would be clear to almost anyone in their right mind
that there were would be criminal consequences for his behavior.
He at times was apologetic with the trial court for his ‘anger’ only

12
to become angry and profane again. [Defendant] clearly did not
act in his self interest by continuing to disregard orders of the
court and engage in behavior that any rational and sane person
would believe would have criminal consequences.” Defendant
cites an academic paper as evidence that “anger may come from a
neurological disease or impairment.”
On this record, we see insufficient evidence of incompetence
such that the trial court or defense counsel had a duty to
investigate further. We do not disagree that defendant’s
disruptive conduct was not in his best interest, and that he may
have been a difficult client. The test for competence focuses less
on behavior than on comprehension, however, that is, whether
the defendant is capable of consulting with his lawyer “ ‘ “with a
reasonable degree of rational understanding” ’ ” and whether the
defendant has “ ‘ “a rational as well as factual understanding of
the proceedings . . . .” ’ ” (Rodas, supra, 6 Cal.5th at pp. 230–
231.)
Here, the record indicates defendant certainly understood
he was in a criminal judicial proceeding, given that in his
outbursts he referred to evidence, privileges, and at one point,
hearsay and the best evidence rule. Although his behavior likely
did not aid his defense, it did not indicate that he was incapable
of rationally consulting with his attorney if he so chose.
It is true that a “defendant’s demeanor and irrational
behavior may . . . , in proper circumstances, constitute
substantial evidence of incompetence,” but “disruptive conduct
and courtroom outbursts by the defendant do not necessarily
demonstrate a present inability to understand the proceedings or
assist in the defense.” (Mai, supra, 57 Cal.4th at p. 1033.) Our
Supreme Court has also “frequently recognized the distinction”

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between a defendant who is “emotionally unwilling[ ] to help with
his defense” as opposed to “mentally unable” to do so, and has
“made clear that an uncooperative attitude is not, in and of itself,
substantial evidence of incompetence.” (Id. at p. 1034.) Under
these principles, and on this record, defendant’s outbursts and
uncooperative attitude were insufficient to give rise to a duty by
the trial court to order a competency investigation. For the same
reason, we cannot conclude on this record that defense counsel
was ineffective for failing to request a competency investigation.

B. There Was Insufficient Evidence of Child Abuse
(Counts 3–5), But Substantial Evidence of Robbery
(Count 6) and Criminal Threats (Counts 10–11)
Defendant contends there was insufficient evidence to
support the three counts of child abuse, the first robbery count,
and the two counts of criminal threats.
“ ‘When the sufficiency of the evidence to support a
conviction is challenged on appeal, we review the entire record in
the light most favorable to the judgment to determine whether it
contains evidence that is reasonable, credible, and of solid value
from which a reasonable trier of fact could find the defendant
guilty beyond a reasonable doubt.’ [ Citation.] Our review must
‘ “presume in support of the judgment the existence of every fact
the jury could reasonably have deduced from the evidence.” ’
[Citation.] Even where . . . the evidence of guilt is largely
circumstantial, our task is not to resolve credibility issues or
evidentiary conflicts, nor is it to inquire whether
the evidence might ‘ “ ‘be reasonably reconciled with the
defendant’s innocence.’ ” ’ [Citations.] The relevant inquiry is
whether, in light of all the evidence, a reasonable trier of fact

14
could have found the defendant guilty beyond a reasonable
doubt.” (People v. Gomez (2018) 6 Cal.5th 243, 278.)

1. The evidence was insufficient to establish
defendant had care and custody of the children
as required under section 273a, subdivision (b)
Section 273a, subdivision (b), provides, in relevant part,
that if a person, “ha[s] the care or custody of any child” and
“willfully causes or permits that child to be placed in a situation
where his or her person or health may be endangered,” that
person “is guilty of a misdemeanor.”7 Defendant contends there
was insufficient evidence that he had the care or custody of the
children, and thus he could not be convicted of counts 3 through
5. We agree.8
“Courts of Appeal . . . have stated that having ‘ “care or
custody” [of a child does] not imply a familial relationship but

7 The quoted language is the portion of the statute on
which the trial court instructed the jury. The full subdivision
reads, “Any person who, under circumstances or conditions other
than those likely to produce great bodily harm or death, willfully
causes or permits any child to suffer, or inflicts thereon
unjustifiable physical pain or mental suffering, or having the care
or custody of any child, willfully causes or permits the person or
health of that child to be injured, or willfully causes or permits
that child to be placed in a situation where his or her person or
health may be endangered, is guilty of a misdemeanor.” (§ 273a,
subd. (b).)
8 Given our conclusion, we do not address defendant’s
argument that there was insufficient evidence of criminal
negligence, one of the elements of section 273a, subdivision (b),
listed in CALCRIM No. 823.

15
only a willingness to assume duties correspondent to the role of a
caregiver.’ [Citations.]” (Bom v. Superior Court (2020)
44 Cal.App.5th 1, 18 (Bom).) “That a person did undertake
caregiving responsibilities may be shown by evidence of that
person’s conduct and the circumstances of the interaction
between the defendant and the child; it need not be established
by an affirmative expression of a willingness to do so.” (People v.
Perez (2008) 164 Cal.App.4th 1462, 1476 (Perez).)
Courts rejecting challenges to convictions based on the
“care or custody” prong point to affirmative evidence that the
defendant undertook the care or custody of the child, however
briefly. For example, in Perez there was evidence the child called
the defendant “ ‘Daddy Joe,’ ” that they ate meals together, and
that defendant had babysat for her one time. (Perez, supra,
164 Cal.App.4th at p. 1471.) There was also evidence from which
the jury could infer the defendant looked after the child while her
mother was at work and her grandmother was asleep. (Ibid.) In
People v. Morales (2008) 168 Cal.App.4th 1075, the court held
that the defendant had care and custody of a 16-year-old to whom
he gave a ride in his car, because the child could not leave the car
while it was moving and had no control over the vehicle: “The
jury could reasonably conclude that in taking it upon himself to
control [the 16-year-old’s] environment and safety, defendant
undertook caregiving responsibilities or assumed custody over
her while she was in his car.” (Id. at pp. 1083–1084). Other
cases demonstrate similar types of evidence. (See, e.g., People v.
Flores (2016) 2 Cal.App.5th 855, 882 [children had lived with
defendant for many months, they referred to her as their “ ‘new
mom,’ ” and she was their sole caregiver for part of the week];
People v. Malfavon (2002) 102 Cal.App.4th 727, 737 [defendant

16
admitted he was responsible for child when injuries occurred, and
mother testified she had left child in defendant’s care in the
past]; People v. Culuko (2000) 78 Cal.App.4th 307, 335 [defendant
lived with child, was left alone with child, bathed, changed, and
fed child, and stated that he was taking full responsibility for
caring for child]; People v. Toney (1999) 76 Cal.App.4th 618, 622
[defendant married child’s mother, invited child into his home,
provided child with his own room, and “allowed [the child] to use
an area in the living room where the child’s paperwork was
found”]; People v. Cochran (1998) 62 Cal.App.4th 826, 833
(Cochran) [child lived in defendant’s home at defendant’s
invitation, and mother described defendant as “surrogate
father”].)
In the instant case, there was no evidence comparable to
that in the above cited cases. All the jury heard was that
defendant was at Marcy’s apartment overnight from July 20 to
July 21, 2019, and that he was the father of the youngest of the
three children. Missing was any “evidence of [defendant’s]
conduct and the circumstances of the interaction between the
defendant and the child[ren] . . . .” (Perez, supra, 164 Cal.App.4th
at p. 1476.) Although there was evidence defendant and Marcy
had a relationship and a child together, this did not in itself
establish defendant “undert[ook] caregiving responsibilities” for
the children. (Ibid.) There was no evidence as to whether or how
long defendant may have lived or stayed over in the apartment
with the children before July 20, 2019. There was no evidence
that defendant ever looked after the children, provided for them,
or spent time alone with them. Thus, the jury had no
information from which to conclude defendant at any point had
“care and custody” of the children.

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 The Attorney General argues that defendant assumed
“ ‘care and custody’ ” of the children when he “forced the
conditions causing Marcy to flee his violent attack, which left him
alone supervising the children.” This suggested interpretation of
the statute stretches the phrase “care or custody” beyond its plain
meaning. (See Cochran, supra, 62 Cal.App.4th at p. 832 [there is
“no special meaning to the terms ‘care and custody’ beyond the
plain meaning of the terms themselves”].) As the cases cited
above demonstrate, the phrase “care or custody” applies to those
who have willingly undertaken to care for a child in some fashion.
Defendant assaulting Marcy and causing her to flee cannot by
itself be construed as defendant indicating an intent to care for
Marcy’s children. Whatever moral responsibility defendant may
have had for the children after causing their caretaker to flee
does not equate with “care or custody” under section 273a,
subdivision (b).
The Attorney General further argues that defendant “was
under a common law duty to protect his children.” Assuming
arguendo defendant had such a duty, it would not make him
criminally liable under the “care or custody” prong of
section 273a, subdivision (b). As this division held in Bom, that
prong “explicitly applies to those who, in fact, have the ‘care or
custody’ of the child,” and cannot be extended to those who
merely “have a duty to undertake the care or custody of the
child.” (Bom, supra, 44 Cal.5th at p. 19, italics omitted.)9 Thus,

9 In Bom, the People charged four social workers with the
Los Angeles County Department of Children and Family
Services (DCFS) with felony child abuse under section 273a,
subdivision (a). (Bom, supra, 44 Cal.App.5th at p. 4.) An issue

18
to the extent defendant had a duty to provide care as the parent
of one or more of the children, this did not absolve the
prosecution of its obligation to prove the children actually were in
his care and custody. The prosecution did not meet that burden.
We therefore reverse the convictions on counts 3 through 5.
Because the sentences on those counts are concurrent with those
on other counts, reversing the convictions does not affect
defendant’s overall sentence. Remand for resentencing is
unnecessary.

2. There was substantial evidence of robbery
“Robbery is the felonious taking of personal property in the
possession of another, from his person or immediate presence,
and against his will, accomplished by means of force or fear.”
(§ 211.) The trial court instructed the jury that, to commit
robbery, the defendant must have “t[aken] property that was not
his own.” (See CALCRIM No. 1600.)
As discussed, defendant was convicted of robbing Marcy of
two phones, one on the morning of August 16, 2019, and one in
the afternoon that same day. Defendant challenges his
conviction for the first robbery, charged as count 6. Relying on

on appeal was whether the social workers had “care or custody” of
a seven-year-old boy for whom they provided emergency and
family maintenance services, and who died at the hands of his
parents six weeks after DCFS closed its case. (Id. at pp. 4, 17.)
The People argued the social workers were caregivers by virtue of
statutes and social services manuals purportedly imposing a duty
to care for children in certain circumstances. (Id. at p. 19.)
We rejected the People’s reading of section 273a to impose
criminal liability on those who had a duty to undertake the care
and custody of a child, but had not actually done so. (Ibid.)

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Marcy’s testimony that defendant bought and paid for the phone
on her behalf, he contends the phone was his, and therefore by
definition he could not steal it.
We disagree. Although Marcy’s testimony could support
defendant’s position, there was evidence from which the jury
could conclude the phone belonged to Marcy. Marcy’s
confirmation at trial that defendant bought the phone “on [her]
behalf” implies it was a gift—that is, defendant was not
purchasing it for himself. This conclusion is further supported by
Marcy’s statement on the 911 call that defendant “came in here
and took my phone,” and her statement to police that defendant
had broken in and asked her, “Where’s your fucking phone at.”
(Italics added.) Marcy also told the 911 dispatcher that
defendant was homeless, meaning he no longer was living with
her. Therefore, the jury had no reason to conclude Marcy and
defendant might share the phone as a household item.10 The
evidence was sufficient to support the robbery count.

3. There was substantial evidence of criminal
threats
To establish a criminal threat in violation of section 422,
the prosecution must show: “(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

10 Defendant makes no argument that he was entitled to
the phone under principles of community property, and we
therefore do not address that possibility.

20
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.)
The prosecution alleged that defendant committed two
violations of section 422 by telling two jailers he would “smoke”
them if he saw them on the street. Defendant argues that the
prosecution failed to show that his statements caused the two
jailers to be in sustained fear, because both testified that they
were not concerned as long as defendant was in custody.
Defendant further argues that because his remarks were not
“accompanied by physical violence or touching,” the remarks
were “nothing more than testosterone laden posturing,” and any
fear experienced by the jailers therefore was not reasonable
under the circumstances. Finally, citing In re Ricky T. (2001)
87 Cal.App.4th 1132 (Ricky T.), defendant argues that his
remarks “did not carry any reasonable likelihood of execution and
were not time specific.”
We reject these arguments. As to whether defendant’s
comments caused the jailers to experience sustained fear,
“ ‘sustained’ has been defined to mean ‘a period of time that
extends beyond what is momentary, fleeting, or transitory. . . .
The victim’s knowledge of defendant’s prior conduct is relevant in
establishing that the victim was in a state of sustained fear.’

21
[Citation.]’ [Citation.]” (People v. Wilson (2010) 186 Cal.App.4th
789, 808 (Wilson).)
Here, the jailers provided testimony from which the jury
could conclude their fear was not momentary, fleeting, or
transitory. Anthony I. testified that the threat was the most
serious he had received in nearly a decade serving as a jailer, and
when he had time to reflect on it later that evening, he became
more worried. Jacob A. was sufficiently concerned about the
threat that he reported it to staff in the jail control room. The
jailers’ “ ‘knowledge of defendant’s prior conduct’ ” (Wilson, supra,
186 Cal.App.4th at p. 808), namely his anger and resistance
during booking, further supported the conclusion that they had
sustained, reasonable fear about defendant’s capacity for violence
against them. Indeed, Jacob A. specifically testified he
considered defendant’s threat more serious because of
defendant’s demeanor and conduct when he was first brought in.
The fact that the jailers may not have felt they were in
immediate danger, given defendant’s incarceration, is not
dispositive. “While the third element of section 422 . . . requires
the threat to convey ‘ “a gravity of purpose and an immediate
prospect of execution of the threat,” ’ it ‘does not require an
immediate ability to carry out the threat. [Citation.]’
[Citations.]” (Wilson, supra, 186 Cal.App.4th at p. 807.) In
Wilson, for example, the court upheld a criminal threats
conviction against an incarcerated defendant who threatened to
“find” and “blast” a correctional officer when the defendant was
released in 10 months. (Id. at p. 814.) The court held that,
despite the 10-month delay before the defendant potentially could
carry out the threat, the danger nonetheless was “immediate”
because the defendant’s threats “were extremely specific and

22
based only upon the ‘condition’ and certainty of his upcoming
release.” (Id. at pp. 816–817.)
Here, similarly, defendant threatened to “smoke” the jailers
if he saw them on the street, meaning once he was no longer in
custody. It is true that, unlike in Wilson, the jailers did not know
at the time defendant threatened them when he might be
released, and thus defendant’s threat lacked the specificity and
certainty of the threat in Wilson. Given, however, that defendant
had just been arrested, and had not yet been arraigned, it was
conceivable he might be released shortly for any number of
reasons, including by posting bail. Thus, his threat, which
potentially he could carry out within days of making it, was even
more pressing than the threat in Wilson, in which the defendant
himself made clear he would not be released for 10 months. In
short, because the jailers in the instant case had no reason to
know they would be protected for any period of time, defendant’s
threat “convey[ed] ‘ “a gravity of purpose and an immediate
prospect of execution of the threat[.]” ’ ” (Wilson, supra,
186 Cal.App.4th at p. 807.)
We disagree that defendant’s statements were, as he puts
it, “[un]accompanied by physical violence or touching.” Both
jailers testified regarding defendant’s anger and resistance
during fingerprinting. Although defendant may not have touched
the jailers at the moment he threatened them, he had shown a
willingness to exert force against them or their colleagues.
Regardless, physical contact is not a required element under
section 422.
Ricky T. is distinguishable. In that case, a high school
teacher opened a classroom door, inadvertently striking a student
standing on the other side. (Ricky T., supra, 87 Cal.App.4th at

23
p. 1135.) The student became angry and told the teacher,
according to differing reports, “ ‘I’m going to get you,’ ” or, “ ‘I’m
going to kick your ass.’ ” (Id. at pp. 1135–1136.) The student
was convicted of a misdemeanor under section 422. (Ricky T.,
at p. 1135.) On appeal, the questions were whether there was
sufficient evidence that the threat was “unequivocal and
immediate” and that it “caused [the teacher] to be in sustained
fear for his safety.” (Id. at p. 1137.)
The appellate court concluded the threat was neither
unequivocal nor immediate. The court noted the school did not
notify the police until the next day, and the police, after first
interviewing the student, waited a full week before speaking with
him again, suggesting the threat was not immediate. (Ricky T.,
supra, 87 Cal.App.4th at p. 1138.) The court concluded the
statement “ ‘I’m going to get you’ ” was “ambiguous on its face
and no more than a vague threat of retaliation without prospect
of execution.” (Ibid.) The “ ‘kick your ass’ ” statement was “made
in response to [the student’s] accident with the door.” (Ibid.)
Distinguishing other cases, the court noted a lack of prior history
of disagreements, quarrels, or exchanges of hostile or offensive
words between the teacher and student that might, in context,
suggest the threat was more serious than it appeared on its face.
(Ibid.) Nor was there evidence that “a physical confrontation was
actually imminent” or that the student’s “angry words were
accompanied by any show of physical violence.” (Ibid.)
The court further held the evidence of sustained fear was
insufficient. The teacher admitted the threat was not specific,
and the police were not notified until the following day. (Ricky
T., supra, 87 Cal.App.4th at p. 1140.) The court noted that the
student did not “tak[e] advantage” of the teacher’s fear, but

24
instead complied with the teacher’s directive to go to the school
office. (Ibid.) The court held that sending the student to the
school office did not itself indicate sustained fear, but rather “was
an appropriate, necessary response to a disruptive classroom
incident.” (Ibid.) “There is no evidence that [the teacher] felt
fear beyond the time of the angry utterances.” (Ibid.)
In conclusion, the court stated that “section 422 was not
enacted to punish an angry adolescent’s utterances . . . .” (Ricky
T., supra, 87 Cal.App.4th at p. 1141.) “[The student’s] statement
was an emotional response to an accident rather than a death
threat that induced sustained fear.” (Ibid.)
The contrasts between Ricky T. and the instant case are
myriad. Rather than a high school student threatening to “get” a
teacher in the heat of the moment immediately following an
accident, here we have an inmate specifically threatening to kill
two jailers, not in the heat of the moment, but while being walked
to his cell or during a routine cell check. The threats were all the
more grave because the jailers knew defendant had physically
resisted attempts to fingerprint and search him, and thus the
history of confrontation and physical violence absent in Ricky T.
was present here. The jailers’ testimony discussed above
established their fear was sustained, with Anthony I. worrying
about the threat that evening, and Jacob A. reporting it to the jail
control room. For all these reasons, the evidence was sufficient to
support the two convictions under section 422.

C. The Trial Court Did Not Abuse its Discretion By
Admitting Evidence of Defendant’s Prior Acts of
Domestic Abuse
The trial court allowed the prosecution to admit evidence of
defendant’s uncharged conduct on June 3, 2018, the incident in

25
which defendant allegedly entered Marcy’s home, slapped her
multiple times, dragged her by her shirt, took her phone, and
stated he would return with a gun to kill her. In allowing
admission of this evidence, the trial court cited Evidence Code
sections 1101, subdivision (b) and 1109. On appeal, defendant
contends those Evidence Code sections did not provide a basis to
admit the evidence. Alternatively, he argues the evidence should
have been excluded under Evidence Code section 352 as unduly
prejudicial. We reject these arguments.11

1. Governing law
“Evidence Code section 1101, subdivision (a), ‘prohibits
admission of evidence of a person’s character, including evidence
of character in the form of specific instances of uncharged
misconduct, to prove the conduct of that person on a specified
occasion.’ ” (People v. Washington (2021) 61 Cal.App.5th 776,
787.)12 This rule, however, does not “prohibit[ ] the admission of
evidence that a person committed a crime, civil wrong, or other
act when relevant to prove some fact . . . other than his or her
disposition to commit such an act.” (Evid. Code, § 1101,
subd. (b).) In other words, evidence of prior uncharged conduct is
admissible for purposes other than to prove the defendant has a

11We assume without deciding that defendant properly
preserved these arguments below.
12 “Except as provided in this section and in Sections
1102, 1103, 1108, and 1109, evidence of a person’s character or a
trait of his or her character (whether in the form of an opinion,
evidence of reputation, or evidence of specific instances of his or
her conduct) is inadmissible when offered to prove his or her
conduct on a specified occasion.” (Evid. Code, § 1101, subd. (a).)

26
disposition to commit similar acts.13 (See People v. Merchant
(2019) 40 Cal.App.5th 1179, 1191 (Merchant) [“specific acts
of prior misconduct may be offered for a noncharacter
purpose . . . .”].)
Additionally, the Legislature has created a statutory
exception to the prohibition on propensity evidence for
defendants charged with “an offense involving domestic violence.”
(Evid. Code, § 1109, subd. (a)(1).) In such cases, the prosecution
is permitted to introduce “evidence of the defendant’s commission
of other domestic violence . . . .” (Ibid.; see People v. Fruits (2016)
247 Cal.App.4th 188, 202 [“Evidence Code section 1109 is an
express exception to the prohibition against propensity evidence
set forth in Evidence Code section 1101, subdivision (a).”].) The
exception “reflects the Legislature’s determination that
in domestic violence cases, similar prior offenses are uniquely
probative of a defendant’s guilt on a later occasion.” (Merchant,
supra, 40 Cal.App.5th at p. 1192.)
Admission under Evidence Code sections 1101,
subdivision (b) and 1109 is limited by Evidence Code section 352,
under which the trial court “may exclude evidence if its probative
value is substantially outweighed by the probability that its
admission will (a) necessitate undue consumption of time or

13 Evidence Code section 1101, subdivision (b) lists
examples of noncharacter purposes for which prior act evidence
may be admitted, such as to prove “motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake or
accident, or whether a defendant in a prosecution for an unlawful
sexual act or attempted unlawful sexual act did not reasonably
and in good faith believe that the victim consented.”

27
(b) create substantial danger of undue prejudice, of confusing the
issues, or of misleading the jury.”
“We review the admission of [prior] act evidence for abuse
of discretion.” (Merchant, supra, 40 Cal.App.5th at p. 1192.)

2. Analysis
As discussed, prior acts evidence is admissible to prove
something other than the defendant’s propensity to commit such
acts. (Evid. Code, § 1101, subd. (b).) Here, defendant was
charged under section 136.1, subdivision (c)(1), based on
allegations that he dissuaded Marcy from testifying at his
preliminary hearing, and did so “by force or by an express or
implied threat of force or violence.” Defendant’s prior history of
violence and threats of violence against Marcy was relevant to
establish that when defendant said to Marcy, “You better not get
on the stand,” or when he told her to leave the courtroom, those
statements contained an “implied threat of force or violence.” (§
136.1, subd. (c)(1).) That is, given the violent history between
them, both defendant and Marcy would understand his words,
which lacked any express threat of force or violence, nonetheless
implied that he would harm her if she disobeyed him. This was a
permissible, noncharacter basis to introduce the evidence.
Defendant argues that even if the evidence was admissible
under Evidence Code section 1101, subdivision (b), the trial court
should have excluded it under Evidence Code section 352 as
unduly prejudicial. Defendant contends the evidence of the
June 2018 incident, in particular the evidence that he threatened
to return with a gun to kill Marcy, was “egregious” compared to
the “relatively benign” facts of his charged offenses, and would
lead the jury to conclude he was “a dangerous individual with a

28
propensity to commit serious acts of domestic violence and
someone who in the future might hurt someone with a firearm.”
We agree the evidence of the June 2018 incident might lead
the jury to conclude defendant was “a dangerous individual” who
might commit serious acts of violence against Marcy with a
firearm. That possibility did not make the evidence unduly
prejudicial, however, but highly probative on the issue of whether
defendant, in instructing Marcy not to take the stand at his
preliminary hearing, impliedly threatened her with violence. To
illustrate for the jury the potential gravity of defendant’s implied
threat, the prosecution was entitled to show that defendant had
made violent threats and acted violently towards Marcy in the
past, up to and including threatening to shoot her with a gun.
Defendant’s cited authorities are distinguishable. In
People v. Jefferson (2015) 238 Cal.App.4th 494, a case concerning
a defendant charged with offenses related to possession of a
stolen firearm, the court held it was unduly prejudicial to
introduce evidence that the defendant owned several other
registered firearms. (Id. at pp. 506–507.) The court concluded
the evidence “was not highly probative and it prejudiced [the
defendant] primarily by painting him as a dangerous person in a
dangerous neighborhood probably engaged in a dangerous
profession, drug dealing.” (Id. at p. 507.)
In People v. Clark (2021) 62 Cal.App.5th 939, the court held
that evidence of a defendant’s previous uncharged conduct of
possession a firearm had “insubstantial probative value” on the
issues of knowledge and motive in a case involving robbery and
illegal possession of a firearm, and was highly prejudicial.
(Id. at pp. 944, 966–967.)

29
 In both Jefferson and Clark, the courts concluded the prior
acts evidence was not highly probative, and thus any minimal
benefits to its admission were outweighed by the potential
prejudice. In the instant case, in contrast, we have concluded the
prior acts evidence was highly probative in regard to the charge
under section 136.1, subdivision (c)(1), precisely because the
egregiousness of the prior acts evidence made it probative on the
issue of whether defendant’s statements to Marcy to dissuade her
from testifying contained an implied threat of violence.
In his reply brief, defendant argues that he was denied his
right to cross-examine Marcy regarding the June 2018 incident.
The basis of this argument is unclear; defendant first states,
inaccurately, that Marcy did not appear at trial, then states that,
because she was not examined regarding the June 2018 incident,
she “was not subject to cross-examination.” This argument is
forfeited for failure to raise it in the opening brief. (See People v.
Duff (2014) 58 Cal.4th 527, 550, fn. 9.) The argument also fails
on the merits. Marcy did appear at trial, and nothing prevented
defendant from calling her as a witness if he so chose.14
Given our conclusion that the evidence of the June 2018
incident properly was admitted under Evidence Code
section 1101, subdivision (b), we need not reach defendant’s
arguments concerning Evidence Code section 1109.

14 Defense counsel stated on the record that he intended to
ask Marcy more questions at trial, but defendant instructed him
not to do so.

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 DISPOSITION
The convictions on counts 3, 4, and 5 are reversed. The
trial court shall amend the abstract of judgment accordingly, and
forward the amended abstract of judgment to the Department of
Corrections and Rehabilitation. The judgment otherwise is
affirmed.
NOT TO BE PUBLISHED.

BENDIX, J.

We concur:

ROTHSCHILD, P. J.

CRANDALL, J.*

* Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.

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