P. v. Holman
Filed 5/2/13 P.
v. Holman CA2/3
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115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
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
Davion Dianta Holman,
Defendant and Appellant.
B244938
(Los Angeles County
Super. Ct. No.
TA116061)
APPEAL
from a judgment of the Superior Court of
County, John J. Cheroske, Judge. Affirmed.
California
Appellate Project, Jonathan B. Steiner and Richard B. Lennon, under appointment
by the Court of Appeal, for Defendant and Appellant.
No
appearance for Plaintiff and Respondent.
>
Defendant and appellant, Davion Dianta Holman, appeals from the
judgment entered following his pleas of no contest to one count of
§ 211)
title="">[1]
(count 1) and three counts of first
degree robbery (§ 211) (counts 2, 3 and 4) and his admissions with regard
to count 1 that he personally used a firearm, a handgun (§ 12022.53, subd. (b))
and that the offense was committed for the benefit of, at the direction of and
in association with and the specific intent to promote, further and assist a
criminal street gang (§ 186.22, subd. (b)(1)(C)). The trial court sentenced Holman to 31 years
in prison. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.
At
approximately 10:50
p.m. on January 2, 2011,
Theresa Arnold and her husband, Daniel Green, were at their home located at 8759 McKinley Place in Los Angeles. Arnold’s godson,
James Thomas, and a friend, William Louis, had been visiting and were just
about to leave.
Green opened the
door and, followed by Arnold, stepped out onto the front porch.
As they did so, a “young man came from the side of the house†and
approached Green. The two men started wrestling and the man pulled out from
under his coat a large gun. The gun was
bigger than a handgun, “it was like a tech nine†and was approximately
18 inches long. Green fought with
the man, wrestling with him until the gun was “pointing up in the air.†As Green was struggling with the man, a
second man, Holman, came onto the porch and hit Green on the side of the head
with a silver handgun, causing Green’s head to bleed. Holman then asked Green “if [he] was stupid.†Holman indicated that Green should have known
he could not fight someone who had a gun.
Arnold and Green
somehow managed to make it back inside their house. However, as they attempted to close the door,
the attacker with the larger weapon put his hand, in which he was holding the
gun, inside, between the door and the wall.
Green and Arnold, in an attempt to keep the men from entering the house,
pushed on the door but the man with his arm inside the house managed to hit
Green on the head, causing him to stumble.
As Arnold could not hold the door closed by herself, Holman and his cohort
“pushed their way in.†Once inside,
Holman and his accomplice began to beat Green.
During the altercation, Holman hit Green on the lip and the left side of
his head with a gun, again cutting Green and causing him to bleed. After they had finished with Green, the men
told everyone to “ ‘get down on the floor.’ â€
Green, Thomas and Arnold complied with the order and got down onto the
floor, face down. Louis, however,
managed to hide behind the television.
Holman and his
accomplice hit Thomas on the face and kicked Arnold in her
side. Holman then began to “tape
[everyone] up.†As he “taped up†Green,
Holman told him to keep his face down.
He said to Green, “ ‘Don’t look at my face, sir, or I’ll kill
you.’ â€
Holman moved on
to Arnold and told her to remove her jewelry.
However, when Arnold indicated that she could not do so because she was
too nervous and frightened, Holman and his accomplice simply told her to “hurry
[up] and take it off or [they would shoot her].†When Arnold still could
not comply with their demands, her godson, Thomas, took her jewelry off for
her. When Thomas had finished, Holman
picked up the jewelry. One of the men
told Thomas not to look up at them and that if he looked at their faces, they
would kill him. The men then told Thomas
to remove all the money from his pockets.
He did so and handed it to Holman.
Some of Arnold’s money was lying on the floor and Holman picked that up as well.
While Holman was
collecting money and jewelry from Arnold and Thomas, his accomplice was
“getting [Green’s] stuff.†After
Holman’s cohort took Green’s money, watch and jewelry, the two men had Green,
Arnold and Thomas “crawl†across the floor until they were all in front of the
television. As he was lying on the
ground, one of the intruders held his gun against Green’s left temple and asked
him, “ ‘Where is the thing at?’ â€
Green, who did not know what the man was talking about, answered,
“ ‘What thing?’ †The men, who
had kicked Green in the ribs and face, then walked away.
As she was lying
on the living room floor, Arnold saw and heard Holman speak to someone on a
cell phone. Arnold heard the person to
whom Holman was speaking tell him to “hurry up and come out [of] the house
because the cop[s] [were] on their way.â€
Holman responded by stating that he was “going to take his time, [that]
he didn’t care.†Arnold noted, however,
that during the robbery, Holman was doing what “the other guy with the big gun
[told him] to do.â€
Throughout the
incident, including when he was on the phone, Holman stood over Arnold, Green
and Thomas, aiming his gun in their direction.
As he did so, his accomplice went through the house searching for
jewelry and whatever else of value he could find. He took a “couple of watch[es]†and
a sword from Arnold’s son’s sword collection.
One of the robbers then approached Green, “slap[ped]†him in the face
with the sword and told him that if he did not tell the robber where the
valuables were kept, the robber would “ ‘make [Green’s] wife watch [the robber]
cut [Green’s] balls out and [his] legs off.’ â€
At some point,
Holman “pushed a rag in [Arnold’s] mouth†and, because she could not breath,
she suffered an epileptic seizure. Green
told Holman that, as she was unable to take her medication, Arnold would suffer
from “convulsions.â€
While both
Holman and his accomplice were still inside the house, police officers
arrived. Both men asked Green how to get
out. Holman then asked Green where he
could hide. Green told Holman that the
only entrance to the house was “right through that door.†Holman responded by stating that “if the cops
c[a]me, he [was] going to start shooting . . . .†However, before Holman could make it out of
the dining area, officers “kicked [in] the [front] door†and took him into
custody. Later that night, Arnold
identified Holman as one of the men who had come into her home with a gun and
attacked her.
When police
later interviewed Green, he told them that Holman had both pointed his gun at
Green and hit him with it. Green also
told police that he thought the man with the larger gun was “the leader†of the
two and that the man had been telling Holman what to do.
Los Angeles
Police Officer James Moon works in the southwest division’s gang enforcement
detail.
advised by the detective who had booked Holman on the night of January 2, 2011
that he had given as his moniker “ ‘D Money’ †and had provided the
detective with a copy of his “Facebook†page.
On his Facebook page, Holman had listed as one of his “favorites,†“HK,â€
which stands for “ ‘Hoover Killer.’ â€
According to Moon, the Hoovers are a “common enemy of the Rolling
40’s.†Among his activities, Holman had
listed “gang-banging†and “Rolling 40’s.â€
As one of his friends, Holman had listed a man by the name of D’nary
Fowler. Officer Moon had known Fowler
for approximately four years. Fowler was
a “known, active gang[] member within the Rolling 40’s.†He had “self-admitted†to Moon on several
occasions that he was a gang member and he had gang tattoos.
opinion, based on the information provided to him, that Holman was a member of
the Rolling 40’s gang.
Officer Moon was
also of the opinion that the crimes committed on the night of January 2, 2011
were for the benefit of, at the direction of and in association with a criminal
street gang. Fowler was a known gang
member with visible gang tattoos on his neck.
As is common in gang-related crimes, Fowler and Holman were working with
a third person, a lookout or “getaway†driver with whom they spoke on a cell
phone. In addition, Fowler was giving
orders to Holman. It is “common for
individuals who have been in the gang longer . . . or [are] higher in the gang
[hierarchy] to call the shots, to give orders to younger gang members, . . . to
show them . . . what they call putting in work, which is committing
crimes.†Moreover, commission of a crime
such as this one benefits the gang by instilling fear of the gang into the
victims. It also raises the status of
the individual gang members because it shows they are willing to “put[] in work
for the gang; . . . they’re . . . committing crimes for the gang itself.†It was Moon’s opinion that, judging from his
Facebook page, Holman was not just generally “gangbanging.†He was putting in work for the Rolling 40’s.
It was
stipulated for purposes of the preliminary hearing that a Detective Vahar had
“downloaded†and printed Holman’s Facebook page, then conducted an interview
with Holman. After being “
the getaway driver in this incident was an individual called “Boogie Man†and
that the “co-suspect in this case [went]
by the name of D’nary Fowler and . . . [was] the individual who has been
referred to as the deceased or the man who got shot.â€
2. Procedural
history.
After the
testimony at the preliminary hearing, Holman’s counsel asserted that there was
insufficient evidence to support the gang allegations and moved that they be
stricken from the charges. The trial
court denied the motion and indicated that it appeared to the court that the
alleged robberies had been committed for the benefit of, in association with
and at the direction of a criminal street
gang.
On March 8,
2011, an information was filed charging Holman with four counts of “home
invasion robbery†in violation of section 211, a felony (counts 1 to 4). It was alleged as to each count that the
crime was a violent felony (§ 667.5, subd. (c)), a serious felony (§ 1192.7,
subd. (c)), and was of the first degree in that it had been committed in
concert with two or more other persons within an inhabited dwelling house (§
213, subd. (a)(1)(A)). It was further
alleged with regard to all four counts of robbery that Holman personally used a
firearm, a handgun, within the meaning of section 12022.53, subdivision (b),
and that the offenses were committed for the benefit of, at the direction of
and in association with a criminal street gang, causing the sentencing to be
imposed pursuant to section 186.22, subdivision (b)(4).
At arraignment
held on March 8, 2011, Holman entered pleas of not guilty to each count and
denied each of the special allegations.
On July 28,
2011, the district attorney indicated that an agreement had been reached. The robbery alleged in count 1 was to be
reduced to a second degree crime. Counts
2, 3 and 4 would remain first degree robberies.
Holman was to plead guilty or no contest to each count, but admit the
gang and gun-use allegations only with regard to count 1. In addition, the gang allegation was to be
reduced from one alleged pursuant to section 186.22, subdivision (b)(4), to one
alleged pursuant to section 186.22, subdivision (b)(1)(C).
sentence Holman to 31 years in prison.
After waiving
his right to a jury trial, his right to present a defense by using the subpoena
power of the court to bring in his own witnesses, his right to confront and
cross-examine each of the witnesses who testified against him and his right to
remain silent, Holman pleaded no contest to second degree robbery, a felony in
violation of section 211 as alleged in count 1 of the information. He then admitted that he had committed the
offense “at the direction of a criminal street gang†in violation of section
186.22, subdivision (b)(1)(C) and that he had been personally armed with a
firearm during the crime pursuant to section 12022.53, subdivision (b). With regard to counts 2, 3 and 4, which
alleged Holman had committed first degree “home invasion†robbery in violation
of section 211, he entered pleas of no contest as to each count. The trial court then found that Holman had
understood “the nature of [the] charges, the consequences of his pleas, his
constitutional rights†and had made “a knowing, intelligent waiver of his
rights.†The court found Holman guilty
of the charges and allegations based on “his plea[s] of no contest†and his
admissions.
Holman waived
arraignment for sentencing and the trial court imposed the agreed upon term of
five years in prison for his conviction of second degree robbery as alleged in
count 1. For his admissions that he had
committed the crime for the benefit of a criminal street gang and had been
armed with a firearm during the offense, the trial court imposed consecutive
terms of 10 years for each allegation.
Accordingly, as to count 1 Holman was sentenced to a total term of 25
years in prison. For the first degree
robberies alleged in counts 2, 3 and 4, the trial court imposed consecutive
terms of one-third the midterm, or two years for each count. In total, Holman was sentenced to 31 years in
state prison. The trial court awarded
Holman presentence custody credit for 207 days actually served and 31 days of
good time/work time, for a total of 238 days.
The trial court
ordered Holman to pay a $10,000 restitution fine (§ 1202.4,
subd. (b)), a stayed $10,000 parole revocation restitution fine (§
1202.45), a $20 DNA fee, a $120 court construction fee and a $160 court
security fee (§ 1465.8, subd. (a)(1)).
It then dismissed all remaining allegations and ordered Holman
transferred to state prison forthwith.
Holman filed a
timely notice of appeal and request
for a certificate of probable cause on September 21, 2011. In his request for a certificate of probable
cause, Holman asserted that his plea had been unlawful because he was not a
gang member and had only admitted that he was in order to avoid a life
sentence. On November 1, 2012, the trial
court denied Holman’s request for a certificate of probable cause.
In an order
filed November 14, 2012, the administrative presiding justice of this court
issued an order indicating that “[i]n light of the denial of the request for
certificate of probable cause, the appeal filed on September 21, 2011, is
limited to non-certificate issues.â€
After
examination of the record, counsel filed an opening brief which raised no
issues and requested this court to conduct an independent review of the
record.
By notice filed
January 18, 2013, the clerk of this court advised Holman to submit within 30
days any contentions, grounds of appeal or arguments he wished this court to
consider. No response has been received
to date.
We have examined
the entire record and are satisfied counsel has complied fully with counsel’s
responsibilities. (Smith v. Robbins (2000) 528 U.S.259, 278-284; People v. Wende (1979) 25 Cal.3d 436, 443.)
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ALDRICH, J.
We concur:
KLEIN,
P. J.
CROSKEY,
J.
Penal Code unless otherwise indicated.
facts have been taken from the transcript of the preliminary hearing.
