Filed 4/21/17 P. v. Martin CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO



THE PEOPLE,

Plaintiff and Respondent,

v.

DILLON THOMAS MARTIN,

Defendant and Appellant.


E063693

(Super.Ct.No. RIF1303601)

OPINION


APPEAL from the Superior Court of Riverside County. Michele D. Levine, Judge. Modified in part; affirmed in part with directions.
Jamie Popper, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Andrew S. Mestman, Arlene A. Sevidal and Christine Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Dillon Thomas Martin hid in the bushes at a house belonging to the victim and his family until the victim arrived home. Defendant told the victim it was good that he came home because he was going to kill the victim’s entire family. Defendant walked the victim to a vacant lot at gunpoint and held him there while he questioned him regarding the whereabouts of two of the victim’s friends who defendant believed beat up defendant’s brother. Defendant held the gun to the victim’s head and began to count down from five. Before letting the victim go, defendant head-butted the victim and shot his gun within a few feet of the victim.
Defendant was found guilty of kidnapping the victim in count 1 (Pen. Code, § 207, subd. (a)); the special allegation that he personally and intentionally used a firearm during the commission of the crime (§ 12022.53, subd. (b) & (c)) were found true. In count 2 he was found guilty of assault with a firearm (§ 245, subd. (a)(2)) and that he personally used a firearm (§ 12022.5, subd. (a)). He was found guilty of making terrorist threats in count 3 (§ 422). In count 4 he was found guilty of negligent discharge of a firearm (§ 246.3). Defendant admitted in a bifurcated proceeding that he committed the offense while out on bail on another offense. (§ 12022.1.) Defendant was sentenced to a total state prison term of 27 years.
Defendant makes the following claims on appeal:
1. The trial court erred by failing to release contact information for two jurors and not interviewing another juror.
2. He received ineffective assistance of counsel because his counsel did not zealously argue the motion for disclosure of juror information and did not move for a new trial.
3. Reversal of count 3 is necessary because the unanimity instruction allowed the jurors to convict him of making a terrorist threat based on acts that were insufficient to support the conviction.
4. The sentences on counts 2, 3, and 4 should have been stayed under section 654.
We agree his sentences on counts 3 and 4 should have been stayed pursuant to section 654. We otherwise affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
On September 11, 2013, the 18-year-old victim lived with his aunt on Canyon Lake Drive in Riverside County. Around 10:00 p.m. that evening, he returned home on his skateboard after visiting a friend. As he cut across the grass to enter the front door, he observed a person hiding in the bushes in front of his house. The person approached him. The victim asked, “Who the fuck is that?” The person came face-to-face with the victim and said, “Who are you?” The victim replied that he lived at the house. He then realized it was defendant. The victim had met defendant prior to that day because he was friends with defendant’s brother, Michael. Defendant said, “It’s a good thing you came home. I was going to kill your whole family.”
Defendant was holding a handgun and pointed it at the victim’s face. Defendant directed the victim to sit down next to the mailbox. Defendant questioned him about two of his friends named Ben and EJ and if he knew where they lived. The victim lied and told defendant he did not know where they lived in order to protect them.
While the victim was sitting on the curb, Apryl Schnicke, who rented a room from the victim’s aunt, drove up and parked. Defendant lowered the gun to his hip. She observed the victim sitting on the curb and a White male standing over him. She did not see anything in the White male’s hand. Defendant said to the victim, “Come walk with me.” The victim felt “forced” to walk with defendant because of the gun. Defendant and the victim walked to a nearby vacant lot. The lot was dark.
Defendant told the victim during the walk that he had nothing to live for and was going to be going to jail. Defendant threatened to kill the victim’s family. The victim was frightened for his family. Once they arrived at the lot, defendant told the victim to lie down on his stomach. Defendant put the weapon to the victim’s temple and again asked where EJ and Ben lived and also who beat up defendant’s brother. The victim replied, “I don’t know.” As defendant was holding the gun to the victim’s temple, defendant started to count down from five. He asked again where EJ and Ben lived. When defendant got to “two,” he told the victim to stand up. When the victim stood up, defendant head-butted him with his forehead.
Defendant told the victim that if you mess with my family, I will come after yours. Defendant then shot the gun but missed him. He appeared to be pointing to the left side of the victim’s body. The victim was frightened. Defendant let the victim go but first told him “Tell everybody.” As the victim walked away, defendant yelled to him, “There’s seven more in the clip if you attempt to do anything stupid.”
The victim walked home and told his aunt but she did not believe him. He fell asleep.
Chloe Parsons lived two houses down from the vacant lot. Around 10:00 p.m., she took her dogs for a walk. On her walk, she went past the vacant lot. She heard what appeared to be some sort of struggle. She headed back to her home. As she walked, she heard arguing. She heard what sounded like a man arguing with someone else. She thought she heard the name Johnathan. She returned home and went to the second floor balcony of her home that looked onto the vacant lot. She heard a gunshot and saw a spark coming from the vacant lot. She called 911. She informed the operator that she heard two men struggling in the vacant lot by her home and heard what sounded like a gunshot.
Riverside County Sheriff’s Deputy Pedro Garcia went to the victim’s house during the early morning hours of September 12, 2013. Deputy Garcia noticed that the victim had some swelling above his left eye. The victim told him the injury was from defendant head-butting him. Defendant told Deputy Garcia that he knew defendant and that defendant was the one who assaulted him. The victim recounted to Deputy Garcia that he had been forced at gunpoint to walk to a vacant lot, was asked the whereabouts of EJ and Ben, and then defendant fired the gun near him. The victim also told Deputy Garcia defendant told the victim he would kill the victim’s family if the victim messed with defendant’s family.
The victim directed Deputy Garcia to the vacant lot, which was approximately 200 yards from his house. A .45-caliber shell casing was found near where the victim said they had been in the vacant lot. The casing was “pretty shiny.” the victim identified defendant from a six-pack photographic lineup.
Approximately one month prior to this incident, the victim attended a party where he, defendant, and EJ were present. During the party, someone threw a brick or rock at defendant’s head. It was the victim’s understanding it had been EJ who threw the object. Moreover, one week prior to the above incident, Michael was assaulted and Ben was involved.
Riverside County Sheriff’s Department Investigator Roman Pluimer located an address for defendant in Murrieta. Investigator Pluimer searched the room where defendant had been staying. He found prescription bottles bearing defendant’s name with ammunition inside that were of various caliber sizes, including .45-caliber ammunition rounds. The manufacturer for the .45-caliber rounds found in the prescription bottles was Winchester. The shell casing found in the vacant lot was .45-caliber round but was a different manufacturer. Defendant was arrested on April 30, 2014.
B. DEFENSE
The parties stipulated that on August 11, 2013, defendant had surgery on his head. His skull had been fractured and he had to have a bone plate put in his skull, which was secured by staples and sutures. Defendant suffered seizures as a result. He was released from the hospital on August 17, 2013.
Nicholas had known defendant for five or six years. They were close friends. He was “80 percent certain” he was with defendant on the nights of September 10 and September 11, 2013. They were at a bar on September 11 until at least 11:00 p.m. and slept at a friend’s house. Nicholas was known as Baby J. Nicholas called defendant in jail and offered to do anything for him.
In rebuttal, the People presented evidence of defendant’s telephone calls while in jail from May 3, 2014, to November 21, 2014. A call was made on May 10, 2014, between defendant and an unidentified woman. Defendant told her that his “cellie” had just gotten out and would deliver a note from him to her. Defendant told her to hold onto the note. He also said, “. . . might not need it because uh if he—if he calls you then it’s safe, he’s just gonna tell you what I need Baby J to do. . . . [¶] . . . [¶] . . . And if Baby J does that and it works out I should be able to do a speedy trial and be outta here in like three months, I just gotta get the feedback on that. You’ll find out when he calls you.”
In surrebuttal, defendant recalled Nicholas; he indicated he was given a message from defendant that Nicholas was to fix up defendant’s Jeep and sell it to make bail, not to provide an alibi.
DISCUSSION
A. DISCLOSURE OF JUROR NAMES
Defendant contends the trial court erred by refusing to disclose the personal information of two jurors who never objected or consented to the disclosure of their information. Further, the trial court erred by not attempting to follow through with a juror who agreed to be questioned by the trial court but was unavailable the day of the hearing on the disclosure of juror information.
1. ADDITIONAL FACTUAL BACKGROUND
Jury deliberations began on Wednesday, January 28, 2015. Sometime after the jury began its deliberations, the jury foreperson sent a note to the court. Juror No. 7 reported that he had a class on January 29 at the college he attended and could not miss another day. Juror No. 12 had an appointment with a contractor on January 30 that could not be changed. Juror No. 11 had a business trip scheduled for February 2 through February 6. Juror No. 1 was concerned about the CEO of his company flying in from out of state to meet with him. Finally, Juror No. 4 had a trip planned starting on February 2.
The trial court spoke with Juror No. 7 in court and offered to call the juror’s professor to make sure he was not dropped from the class. The trial court advised all of the jurors to continue deliberating and any conflicts for Friday would be discussed at the end of the day on Thursday if no verdict was reached.
On January 29, the jurors sent a note asking for the testimony of the victim. They reached a verdict that day. Juror No. 2 was the foreperson. All the jurors individually affirmed the verdict in open court.
The parties met on February 4, 2015. The court clerk had reported to the trial court that the day after the verdicts were rendered, she received a telephone call from Juror No. 4. Juror No. 4 was tearful and emotional. The trial court did not listen to the message or speak with Juror No. 4. On the message, Juror No. 4 reported she had “misgivings” about the verdict. The trial court stated that based on this information, a motion for new trial might need to be brought by defendant’s counsel. Defendant’s counsel requested that he be given time to investigate the motion for new trial and that the juror information be released. The trial court felt that release of the information was appropriate—even though no written motion had been filed—but it had to get permission from the jurors themselves.
The trial court sent a letter to all of the jurors. The letter informed each juror that a hearing was set for February 27, 2015, in regards to the request by defendant’s counsel to be given the juror’s personal information, so that he could speak with the jurors regarding the case. The letter informed the jurors they could appear in person, in writing, or by telephone to object or agree to the granting of the request. The jurors were informed that if they did not want their information disclosed, it would not be released. Juror Nos. 6, 10 and 11 responded they did not want their personal information released but were willing to answer questions.
A first hearing was conducted on February 27, 2015. The trial court informed the parties that Juror Nos. 2, 3, 5, 8, 9 and 12 had responded and objected to the release of their personal information. Juror Nos. 6, 10 and 11 would answer questions. Juror Nos. 1 and 7 had not responded. Juror No. 4 was present.
Defense counsel had spoken with Juror No. 4 before the hearing. Juror No. 4 reported she overheard other jurors discussing if they did not reach a verdict, they would be in deliberations indefinitely; a juror had been on a case in which deliberations transpired for one year. Juror No. 4 reported she was pressured to reach a verdict because many of the jurors had other plans. Defense counsel sought a continuance for his investigator to speak with Juror No. 4 and further investigate the allegations. The trial court expressed surprise by the call from Juror No. 4 because every juror affirmed his or her verdict in court.
The matter was continued in order for all jurors to be present together. Jurors Nos. 6, 10 and 11 were sent letters and advised to contact the court clerk to advise of their availability or willingness to appear at the hearing.
At the next hearing, the trial court noted Juror Nos. 10 and 11 agreed to appear telephonically; Juror No. 6 did not respond. Juror No. 4 was present.
She admitted she acknowledged her guilty verdict in court. Juror No 4 told the other jurors that she was not 100 percent certain defendant was guilty and therefore she believed she had to vote not guilty. Other jurors told her “we needed to find him guilty because most of them agreed that he was guilty.” When she tried to bring up issues, they did not want to hear her concerns. They told her that they were not going to be allowed to leave unless they found him guilty. The trial court asked, “when you were asked if that was your verdict [in open court] and you said ‘yes,’ was there a reason why you didn’t say ‘no’?” She responded, “No.”
Juror No. 4 indicated one of the jurors told them that she had met a juror in the hallway who had been deliberating for one year because they had not reached a verdict. Other jurors initially stated during a poll of the jury that they thought defendant was not guilty but changed their minds during deliberations. She was not threatened when she voted not guilty. She never asked the foreperson to send a note to the trial court about scheduling or any other issues.
The trial court asked her if any of the jurors referred her back to the jury instructions. She said, “What they said was we’re not going to be a hundred percent sure, and we can’t—we have to go by the evidence.” She expressed some concerns but they told her they had to go by the evidence. She felt they all just wanted her to vote guilty. She admitted she was not prevented from expressing her disagreement.
She claimed she never voted “guilty.” Her last statement was “I’m not a hundred percent convinced.” She then stated she told the jury foreperson that she was not convinced on one of the allegations. The foreperson responded that “If you find him guilty for one, you have to find him guilty for all.” He asked her what they needed to go over in order for her to find him guilty. There was some discussion. She insisted her verdict remained undecided.
The trial court again asked her why she said yes when she was asked what the verdict was in open court. She said, “Is there a reason? No. Honestly, I was scared. I didn’t know what to do.” She also said that one of the jurors was upset with her because she would not reach a verdict. Juror No. 4 was worried everyone would be upset if she changed her verdict in open court. She denied that they threatened her if she did not vote guilty. She felt threatened that they would hurt her family.
Juror No. 4 then left the courtroom. The trial court stated, “I have been involved in the practice of law since 1983 and done many trials and been involved in questioning of jurors before, but I’m at a loss, quite frankly, with [Juror No. 4]. My concern . . . is that with respect to what she’s saying, it’s not making sense to the Court.” Her statements regarding whether she was undecided or reached a decision on some counts was confusing. It did not make sense that she expressed her doubts in front of the jurors but then was suddenly afraid to change her mind in open court. The fact that she was afraid for her and her family, “seems just spun out of whole cloth.” The trial court felt that all the comments showed normal deliberations.
Defendant’s counsel stated, “I have to agree with the Court. When I gave the Court the offer of proof that you referenced earlier, there was absolutely no mention about the threats to the family or concerns about the family or her own safety. That came out of the blue here.” Defense counsel was concerned about the comment by the foreperson that if Juror No. 4 found defendant guilty of one charge, defendant was necessarily guilty of the remaining charges.
The trial court called Juror No. 11. Juror No. 11 explained that all of the jurors were initially polled and their verdicts were put on a white board. He recalled there were some undecided votes at the beginning of the deliberations. Juror No. 11 indicated there was some discussion during deliberations that several of the jurors had conflicts if the deliberations went into the following week. Juror No. 11 recalled all of the conflicts were passed on to the trial court.
Juror No. 11 noted they had all of the charges on the white board. They discussed each one. If a juror had a concern about the charge, it was discussed and resolved and then they moved to the next charge. They then signed the verdict form. No one expressed prior to the signing of the verdict form that they were planning to vote not guilty. They were very careful to make sure no one was coerced. They went around the room and ensured everyone was voting guilty. Juror No. 11 stated one of the jurors said on the way out of the courthouse that she felt terrible sending someone to prison.
Juror No. 11 indicated everyone was able to express his or her concerns; there was no “strong-arming.” He did recall a comment at some time about a jury in another courtroom deliberating for one year. He did not take the comment seriously. There were no threats to anyone to change his or her vote or threatening of anyone. When one of the jurors brought up the fact of worrying about sending the defendant to jail, they read the instruction about not considering punishment. Juror No. 11 believed all of the jurors signed the verdict form “of their own free will.” Juror No. 11 did not want his personal information shared.
The trial court spoke with Juror No. 10. He did recall having discussions about the evidence and that there was some differences of opinion. He would not call it a “pressured situation.” No one ever made a comment or yelled at another juror about changing his or her mind. It was Juror No. 10’s opinion that everyone was able to express his or her own opinion on the evidence.
There were a few jurors who did not immediately vote for guilty, but were undecided, but after deliberation, those jurors changed their minds. There were no threats or coercion. Juror No. 10 was willing to speak with the parties.
The trial court continued the matter in order for defendant’s counsel to file a motion for new trial if warranted. At the time of sentencing, defendant’s counsel advised the trial court that he and his investigator had spent many hours speaking with Juror No. 4 and other jurors, and determined a motion for new trial based on juror misconduct was not warranted. Defense counsel felt that the jury discussed any issues or concerns raised by Juror No. 4. Defendant’s counsel concluded, “I did not file that motion because I don’t feel that there are solid grounds for me to even bring the motion.” The trial court agreed with defense counsel that there did not appear to be any grounds for a new trial motion.
2. ANALYSIS
“Under Code of Civil Procedure section 237, in a criminal case, the trial jurors’ ‘personal juror identifying information’—defined as their names, addresses, and telephone numbers—must be sealed after their verdict is recorded.” (People v. Johnson (2013) 222 Cal.App.4th 486, 492 (Johnson).) “Any person may petition the court for access to these records. The petition shall be supported by a declaration that includes facts sufficient to establish good cause for the release of the juror’s personal identifying information.” (Code Civ. Proc., § 237, subd. (b).)
“Good cause, in the context of a petition for disclosure to support a motion for a new trial based on juror misconduct, requires ‘a sufficient showing to support a reasonable belief that jury misconduct occurred. . . .’” (People v. Cook (2015) 236 Cal.App.4th 341, 345-346.) “Good cause does not exist where the allegations of jury misconduct are speculative, conclusory, vague, or unsupported.” (Id. at p. 346.)
“If the trial court finds that the moving party has made a prima facie showing of good cause, and if it finds no compelling interest against disclosure, it must set the matter for hearing. [Citation.] The trial jurors are entitled to notice, an opportunity to object to disclosure, and an opportunity to appear.” (Johnson, supra, 222 Cal.App.4th at p. 492.) “The whole point of moving for the disclosure of jurors’ identifying information is to talk to the jurors; and the whole point of talking to the jurors is to obtain evidence of juror misconduct that will support a motion for new trial.” (Johnson, supra, 222 Cal.App.4th at p. 493.)
“A juror’s out-of-court statement that misconduct occurred, when offered in support of a motion for disclosure, is not offered for the truth of the matter asserted; thus it is not hearsay. It is simply used to show good cause to contact the juror.” (Johnson, supra, 222 Cal.App.4th at p. 493.)
“Denial of a petition filed pursuant to Code of Civil Procedure section 237 is reviewed under the deferential abuse of discretion standard.” (People v. Carrasco (2008) 163 Cal.App.4th 978, 991.)
The trial court did not abuse its discretion by finding, after holding a hearing where three jurors were questioned, that the additional disclosure of juror information was unnecessary. Juror No. 4 expressed she felt pressure from the other jurors because initially she was either undecided or believed defendant was not guilty. Thereafter, her testimony was confusing and vague. She could not really recall if she had found he was guilty on all but one of the charges, or if she was undecided on all the charges. Although she stated on the record in open court that she found defendant guilty, she was not sure if she ever told the jury foreperson she had found defendant guilty. She mentioned for the first time at the hearing that she felt threatened, but could provide no concrete example. She admitted that she was able to voice her concerns during deliberation.
Moreover, two of the other jurors agreed to speak with the trial court. They acknowledged there were some undecided jurors at the beginning of deliberations, but each independently stated there was no coercion by the jurors who believed defendant was guilty. There was no confirmation of threats to any of the jurors. No one expressed concern when signing the verdict forms.
Moreover, just because the trial court ordered a hearing and Juror No. 6 agreed to answer questions but was unavailable, and Juror Nos. 1 and 7 did not respond, does not mean the trial court erred by failing to interview Juror No. 6 or releasing the information of Juror Nos. 1 and 7. The trial court had already heard from two jurors and they disputed Juror No. 4’s statements. Juror No. 4’s allegations were vague and confusing. The trial court could determine additional questioning of Juror No. 6 or disclosure of the other juror’s names was unnecessary because good cause of juror misconduct had not been shown. We do not find that because Juror Nos. 1 and 7 did not respond to the letter, that they agreed to disclosure of their information. The letter did not make it clear that a failure to respond necessarily meant they waived their right not to have their names disclosed.
The trial court did not abuse its discretion by concluding that no additional juror personal information needed to be disclosed.
B. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant contends his counsel was ineffective for agreeing with the trial court that Juror No. 4’s claims that she felt threatened came “out of the blue” and for advising the trial court that there were no grounds for a motion for new trial.
“In assessing claims of ineffective assistance of trial counsel, we consider whether counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms and whether the defendant suffered prejudice to a reasonable probability, that is, a probability sufficient to undermine confidence in the outcome. (Strickland v. Washington (1984) 466 U.S. 668, 694 . . .; People v. Ledesma (1987) 43 Cal.3d 171, 217 . . . .)” (People v. Gray (2005) 37 Cal.4th 168, 207.)
“‘In some cases . . . the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged. In such circumstances, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, these cases are affirmed on appeal.’”” (People v. Ledesma, supra, 43 Cal.3d at p. 218; see also People v. Cudjo (1993) 6 Cal.4th 585, 623.) “‘Otherwise, the claim is more appropriately raised in a petition for writ of habeas corpus.’” (People v. Gray, supra, 37 Cal.4th at p. 207.)
Here, we cannot discern from the appellate record if defendant’s counsel was deficient or had tactical reasons for his decisions not to argue, as stated by defendant, “zealously” for a new trial motion, and the reasons there were no grounds for a new trial motion. There is no record of the investigation by defense counsel of the new trial motion. Juror No. 4 may have told defense counsel or his investigator different information when interviewed more extensively. Moreover, if the motion for new trial lacked merit, defense counsel, as an officer of the court, could not file an unmeritorious motion.
Based on the appellate record, is also impossible to determine prejudice. There simply is no way for this court to assess the merits of the new trial motion based on the lack of evidence of the results of the investigation by defense counsel. Further, it is pure speculation that the trial court would have granted the request for disclosure if defense counsel had “zealously” argued for disclosure. It was obvious to the trial court that Juror No. 4 had only recently stated she felt threatened during deliberations; the trial court seriously doubted the veracity of Juror No. 4. Defense counsel’s agreement with the trial court in no way prejudiced defendant.
Defendant failed to meet his burden of establishing ineffective assistance of counsel on appeal.
C. TERRORIST THREATS
Defendant insists that the two acts relied upon by the People to support his conviction of making a terrorist threat were not supported by the evidence. We conclude that both acts relied upon by the People in support of the terrorist threat charge support his conviction.
1. ADDITIONAL FACTUAL BACKGROUND
The trial court noted the instructions were discussed off the record but were agreed to by both parties. The trial court noted there were several acts that could qualify as terrorist threats. The People were going to have to choose one or a unanimity instruction would have to be given.
The jury was instructed, “The People have presented evidence of more than one act to prove that the defendant committed the crime charged . . . in Count 3, criminal threat. [¶] You must not find the defendant guilty unless you all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act he committed.”
It was further instructed that in order to find defendant guilty of making a terrorist threat, the People must prove: “1. The defendant willfully threatened . . . to unlawfully kill or unlawfully cause great bodily injury to [the victim] or his immediate family.” It was further instructed pursuant to the statute that the threat must be clear and immediate, and it must have caused the victim to be in sustained fear of his safety and his family’s immediate safety.
The jury was also instructed as follows: “As to Count 3, criminal threat, the acts alleged are as follows: [¶] A. The defendant held a firearm, threatened to kill [the victim], and started a number countdown. [¶] B. The defendant made a threat to [the victim]that, “‘If you mess with my family, I will come after yours.’” They were again advised, “You must not find the defendant guilty unless you all agree that the People have proved that the defendant committed at least one of these acts and—at least one of these acts as to each count, and you all agree on which he committed.”
The jury found defendant guilty of violating section 422 but the verdict form did not require a special finding as to which act the jury based its conviction on.
2. ARGUMENT
Defendant’s argument is essentially that neither of the two acts constituted terrorist threats, e.g. that there was insufficient evidence presented to support the verdict.
When the sufficiency of evidence is challenged on appeal, we must review “‘the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.’” (People v. Davis (2009) 46 Cal.4th 539, 606.) “We do not reweigh the evidence or revisit credibility issues, but rather presume in support of the judgment the existence of every fact that could reasonably be deduced from the evidence.” (People v. Alvarez (2009) 178 Cal.App.4th 999, 1004.)
The California Supreme Court has stated that the prosecution must prove the following five elements for a violation of section 422: “(1) [T]hat the defendant ‘willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person,’ (2) that the defendant made the threat ‘with the specific intent that the statement . . . is to be taken as a threat, even if there is no intent of actually carrying it out,’ (3) that the threat—which may be ‘made verbally, in writing, or by means of an electronic communication device’—was ‘on its face and under the circumstances in which it [was] made, . . . so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat,’ (4) that the threat actually caused the person threatened ‘to be in sustained fear for his or her own safety or for his or her immediate family’s safety,’ and (5) that the threatened person’s fear was ‘reasonabl[e]’ under the circumstances.” (People v. Toledo (2001) 26 Cal.4th 221, 227-228.)
The issue in this case is whether the two acts constituted terrorist threats. As for Act A, defendant insists that there was insufficient evidence that while he was counting down with the gun to the victim’s head, he threatened to kill him the victim. Further, he argues Act B was conditional upon the victim first hurting his family and did not constitute a threat that was so unequivocal, unconditional, immediate and specific as to convey to the victim a gravity of purpose and an immediate prospect of execution of the threat.
Initially, Act A was described to the jury as “defendant held a firearm, threatened to kill [the victim] and started a number countdown.” Defendant argues the evidence does not support that he threatened to kill the victim while holding the gun and counting down. He insists that the evidence does not support that he made a threat to kill the victim. It was reasonable for the jury to conclude that the threat to kill was evidenced by defendant counting down while holding the gun to the victim’s head.
Defendant forced the victim at gunpoint to lay down on the ground. Defendant held the gun to the victim’s head while inquiring about who hurt his brother. As he held the gun to the victim’s head, defendant started to count down from five to two. It was reasonable for the jury to conclude that counting down with the gun held to the victim’s head meant that if the victim did not disclose the names of the assailants of defendant’s brother that defendant would shoot him. “‘[I]t is the circumstances under which the threat is made that give meaning to the actual words used.’” (In re Ryan D. (2002) 100 Cal.App.4th 854, 860.) The circumstances of counting down while holding a gun to the victim’s head “was sufficiently unequivocal, unconditional, immediate, and specific as to convey to the victim a gravity of purpose and immediate prospect of execution.” (Id. at p. 861.) There was more than sufficient evidence that Act A constituted a criminal threat to support the verdict in count 3.
Moreover, since the jury was instructed that it could find either Act A or Act B in reaching its verdict, and it is impossible to determine based on the verdict on which act the jury relied, we must find that both acts were supported by the evidence.
Section 422’s “‘use of the word “unconditional” was not meant to prohibit prosecution of all threats involving an “if” clause, but only to prohibit prosecution based on threats whose conditions precluded them from conveying a gravity of purpose and imminent prospect of execution.’” (People v. Bolin (1998) 18 Cal.4th 297, 339.) “We determine whether the words used by appellant ‘were sufficiently unequivocal, unconditional, immediate and specific they conveyed to the victim an immediacy of purpose and immediate prospect of execution of the threat’ by considering ‘all the surrounding circumstances and not just the words alone.’ [Citation.] There is no requirement that the threat be unconditional, nor can we judge a threat ‘solely on the words spoken. It is clear by case law that threats are judged in their context.’ [Citation.] ‘[I]t is the circumstances under which the threat is made that give meaning to the actual words used. Even an ambiguous statement may be a basis for a violation of section 422.’” (People v. Culbert (2013) 218 Cal.App.4th 184, 190.)
The People relied upon the statement by defendant, “If you mess with my family, I will come after yours.” Defendant was lying in wait at the home where the victim and his family lived. Defendant told the victim that it was a good thing the victim came home because he was going to kill the victim’s whole family. Defendant had a handgun and pointed it at the victim. Defendant forced the victim to walk to the deserted lot, questioning the victim as to who beat up defendant’s brother. The jury could reasonably determine that defendant, in making the statement “you mess with my family,” believed that the victim had already messed with defendant’s family and defendant was holding the victim at gunpoint because he was going to kill the victim. In fact, defendant then shot the gun but missed the victim. This was ample evidence of a terrorist threat, which showed an immediate and unequivocal intent to execute the threat.
Here, the jury was instructed that it could rely on one or both acts in reaching its verdict on the terrorist threat charge and the evidence supported both acts. As such, count 3 was supported by the evidence.
D. STAY PURSUANT TO SECTION 654
Defendant contends the trial court should have stayed counts 2, 3 and 4 pursuant to section 654 because they were all part of one continuous course of conduct and were all part of the same purpose to warn people not to bother his family. The People concede that the trial court should have stayed count 4. As such, we need only determine if the trial court should have stayed counts 2 and 3.
1. ADDITIONAL FACTUAL BACKGROUND
The trial court found that the middle term of five years was appropriate for the kidnapping. Further, it was bound to impose the 20-year sentence on the gun use enhancement found true pursuant to section 12022.53, subdivision (c) and it was to run consecutive to the five years.
The trial court noted, “In addition, the other counts on which you were found guilty again would be duplicative of the actions that were present—or I consider it with respect to the assault on a person with a firearm, it’s a separate action that has separate intent, but I believe it should be run concurrently or at the same time as the other sentence, and so the Court will be imposing that as concurrent time, not consecutive time.”
The trial court imposed on count 2, assault with a firearm, the middle term of three years, which was to run concurrent to count 1. The trial court imposed two years on counts 3 and 4 and the sentences were to run concurrent to count 1.
The trial court also stated, “So while the maximum period of incarceration was 30 years and 8 months, the Court is not imposing and choosing to impose any consecutive time, even though the Penal Code section that prohibits multiple punishment for an act or omission that violates multiple statutes—that’s Penal Code section 654—is not operative on Count 2, 3, and 4, and while the Court knows that, I am imposing concurrent time because I feel that the time that has been imposed on Count 1 is substantial and need not be enhanced by additional sentencing.”
2. ANALYSIS
Section 654, subdivision (a), provides in pertinent part, “[a]n act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” “‘Under section 654, “a course of conduct divisible in time, although directed to one objective, may give rise to multiple violations and punishment. [Citations.]” [Citations.] This is particularly so where the offenses are temporally separated in such a way as to afford the defendant opportunity to reflect and to renew his or her intent before committing the next one, thereby aggravating the violation of public security or policy already undertaken.’” (People v. Andra (2007) 156 Cal.App.4th 638, 640.)
Whether section 654 applies is a question of fact for the trial court and its findings—whether expressed or implied—will not be reversed on appeal if there is any substantial evidence to support them. (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312; People v. McCoy (2012) 208 Cal.App.4th 1333, 1338.)
Here, the trial court could determine that count 2 was complete prior to the kidnapping. Defendant forced the victim to sit on the curb while pointing the gun at his face and while threatening him. Defendant did not have to fire the weapon to be convicted of assault with a deadly weapon. (See People v. Williams (2001) 26 Cal.4th 779, 790 [“assault only requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another”].) This act was complete prior to defendant forcing the victim to walk to the vacant lot where defendant discharged the firearm. The act of walking the victim to the vacant lot increased the danger to the victim. Defendant clearly had time prior to walking the victim to the vacant lot to reflect and renew his intent to commit another crime. (People v. Andra, supra, 156 Cal.App.4th at p. 640.) The trial court could determine that defendant completed the crime in count 2 prior to committing the kidnapping.
As conceded by the People, count 4, the discharge of the firearm, is properly stayed because it was based on the same conduct as the personal and intentional weapons use enhancement for which the trial court imposed the 20-year sentence on count 1. Additionally, one of the acts that constituted count 3 was holding a gun to the victim’s head and counting down. This was part and parcel of the gun use enhancement. As previously stated, it is impossible to determine which act the jury relied upon in reaching its verdict. As such, the sentence on count 3 was also properly stayed pursuant to section 654.
DISPOSITION
The sentences on counts 3 and 4 are stayed pursuant to section 654. The trial court is directed to amend the abstract of judgment to reflect the stay of the sentences in counts 3 and 4 and is further directed to send a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS


MILLER
J.

We concur:

RAMIREZ
P. J.

SLOUGH
J.