People v. Jung CA2/6 ( 2021 )

Filed 10/25/21 P. v. Jung CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B305741
(Super. Ct. No. BA469958)
Plaintiff and Respondent, (Los Angeles County)
v.
BYUNG JAE JUNG,
Defendant and Appellant.
A jury convicted appellant Byung Jae Jung of kidnapping
(Pen. Code, § 207, subd. (a) 1), false imprisonment by violence
(§ 236), corporal injury on a cohabitant (§ 273.5, subd. (a)),
assault with a deadly weapon (§ 245, subd. (a)(1) (ADW)),
criminal threats (§ 422, subd. (a) (threats)), and misdemeanor
assault (§ 240). The court sentenced him to state prison for nine
years and eight months.
1 All statutory references are to the Penal Code.
Jung appealed. He contends the trial court ought to have
stayed the sentences imposed on the ADW and threats
convictions pursuant to section 654. He also contends the court
improperly imposed the sentence for false imprisonment because
it was a lesser included offense of kidnapping.
We reverse Jung’s false imprisonment conviction and order
the trial court to correct a sentencing enhancement error in the
abstract of judgment. The judgment is otherwise affirmed.
FACTUAL BACKGROUND
Victim Peggy K. moved into Jung’s apartment shortly after
they began dating in February of 2018. Jung soon suspected
Peggy of cheating on him with an unidentified man. In May he
demanded she dial the numbers in her cell phone history to see if
a man answered. When only women picked up Jung told her to
stop but immediately demanded to know if she intended to leave
him. He grabbed a large kitchen knife and threatened to kill
himself if she left. Peggy hid the knife while Jung went to the
bathroom and told him she would call 911 if he cut himself. They
returned to bed.
Peggy attempted to sneak out of the house that evening
while Jung slept. He awoke and intercepted her car. She said
she planned to visit her friend. Jung showed up at the friend’s
house 30 minutes later and told Peggy she should not leave him.
He then dragged her to the car and drove back to his apartment.
She jumped out as soon as they arrived but soon realized she left
her keys and wallet inside the car. Police escorted her to the
apartment after she called them from a nearby restaurant.
Accessing the unit through a window, she found neither Jung nor
her personal items inside.
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Peggy called Jung early the next morning. Jung agreed to
return her items if she met him at the apartment building. When
she arrived, he grabbed her by the hand and dragged her through
the lobby and up the stairs. He broke a beer bottle over her head
and repeatedly punched and kicked her. Jung pulled Peggy into
his apartment and said he intended to kill her and then himself.
He directed her to get on his bed and spread her legs so he could
cut off her genitals with a knife he had grabbed. At some point
he swung the knife and cut Peggy’s finger.
The attack ended when police arrived and knocked loudly
on the door. Jung fled by jumping off the balcony. Police found
Peggy covered in bruises and cuts. She told them Jung inflicted
the injuries. They recovered the knife from under the bed and
found fresh blood on the bedsheets. Jung was arrested after a
witness reported seeing him walk away from the apartment
building naked from the waist down.
DISCUSSION
A. The Sentences for Assault with a Deadly Weapon and Criminal
Threats Were Not Subject to Penal Code Section 654
Jung argues the trial court should have stayed his
sentences for ADW and threats because they were part of an
indivisible series of criminal acts culminating in Peggy’s
kidnapping. (§ 654; see People v. Reed (2006) 38 Cal.4th 1224,
1227 [“the trial court must stay execution of sentence on the
convictions for which multiple punishment is prohibited”].) We
disagree.
A defendant’s intent and objectives determine whether a
series of criminal acts falls within section 654’s general bar on
multiple punishments. (People v. Harrison (1989) 48 Cal.3d 321,
335.) The evidence shows Jung’s assault and threats were not
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committed in furtherance of Peggy’s kidnapping or to prevent her
escape. The crime was complete when Jung dragged her into his
apartment. (See, e.g., People v. Arias (2011) 193 Cal.App.4th
1428, 1435 [asportation requirement for kidnapping met where
victim moved 15 feet into more secluded area of apartment where
additional crimes would less likely be detected].) We find no
reason to disturb the trial court’s decision to sentence Jung
separately for the acts of torment occurring afterward.
B. False Imprisonment Is a Lesser Included Offense
of Kidnapping
Jung asserts, and the People concede, false imprisonment is
a lesser included offense of kidnapping. (People v. Ratcliffe (1981)
124 Cal. App.3d 808, 820, citing People v. Bauer (1969) 1 Cal.3d
368, 375. We reverse the conviction on count 3.
C. The Abstract of Judgment Incorrectly Identifies Jung’s
Weapons Enhancements
The abstract of judgment mistakenly lists section 12022,
subdivision (b)(2) instead of (b)(1) as the basis of the weapons
enhancements found true as applied to his false imprisonment,
corporal injury on a cohabitant, and threats convictions. The
People again concede the point. We order the trial court to
correct the abstract accordingly.
DISPOSITION
Jung’s conviction for false imprisonment (count 3) is
reversed and vacated. The abstract of judgment is modified to
reflect this change and to correct its errant references to section
12022, subdivision (b)(2). The enhancements on counts 4 and 8
should instead refer to subdivision (b)(1). The superior court
clerk shall prepare an amended abstract and forward it to the
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Department of Corrections and Rehabilitation. The judgment is
otherwise affirmed.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
GILBERT, P.J.
TANGEMAN, J.
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William N. Sterling, Judge
Superior Court County of Los Angeles
______________________________
Jennifer A. Gambale, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Steven D. Matthews, Supervising
Deputy Attorney General, and Ryan M. Smith, Deputy Attorney
General.
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