People v. Zavala CA4/2

Filed 5/17/21 P. v. Zavala 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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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, E073912
v. (Super. Ct. No. MBCRF1963917)
ARMANDO ZAVALA, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Inyo County. Richard F. Toohey, Judge.
Affirmed in part, reversed in part.
Rex A. Williams, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Allison V.
Acosta, Deputy Attorneys General, for Plaintiff and Respondent.
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I.
INTRODUCTION
A jury convicted defendant and appellant, Armando Zavala, of two counts of
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assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1); counts 1 & 2) and two
counts of making a criminal threat (§ 422, subd. (a); counts 3 & 4). The jury found not
true the allegation that defendant caused one of the victims great bodily injury. The trial
court found true that defendant had a prior strike conviction (§ 667, subds. (b)-(i)), and
sentenced defendant to seven years in prison.
On appeal, defendant contends (1) one of his convictions for assault with a deadly
weapon was not supported by substantial evidence, (2) the trial court prejudicially erred
by instructing the jury that a deadly weapon is an inherently deadly weapon, (3) there is
insufficient evidence that he threatened one of the victims, and (4) his concurrent
sentences for making criminal threats must be stayed under section 654 because the
offenses were part of the same course of conduct.
We conclude substantial evidence supports defendant’s conviction on count 2 for
assault with a deadly weapon. The People concede, and we agree, that the trial court’s
instruction about inherently deadly weapons was erroneous. We also conclude the error
was prejudicial as to count 2 and therefore reverse defendant’s conviction on count 2.
We also agree there is insufficient evidence that defendant criminally threatened one of
1
Unless otherwise indicated, all further statutory references are to the Penal
Code.
2
the victims and therefore reverse count 4. Finally, we reject defendant’s argument that
his remaining valid convictions must be stayed under section 654.
II.
FACTS
Defendant started a physical altercation with his acquaintances, Phillip, Justin, and
Phillip’s fiancée, Kaytlyn. He knocked a drink out of Phillip’s hand and punched him.
Justin put defendant in a headlock and wrestled him to the ground, which ended the
incident.
Shortly afterward, around dusk, Phillip, Kaytlyn, and Justin walked to a canal to
help a homeless man move his belongings. Justin and Phillip were talking while walking
alongside the canal ahead of Kaytlyn as they rounded a “curve.” Kaytlyn saw defendant
“standing there like all bulked up a little” in the bushes next to the canal and gave
defendant “a what’s-up type of head nudge” while looking at him. Defendant nodded
back. Defendant was about 20 to 30 feet away.
Kaytlyn then saw “something sharp slide down [defendant’s] wrist from [his]
sleeve,” and said to Phillip and Justin, “‘You guys, he’s got a knife.’” Kaytlyn testified
that she was not sure if the sharp object was a knife because it was starting to get dark
and could not tell what it was, but she saw “something sharp pointing.” Phillip testified
that the object was “a common hunting knife or something” that was four to six inches
long. Justin could not tell what the object was because he has poor eyesight.
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Defendant then ran toward the group, although Kaytlyn did not see him coming.
Justin described defendant as “mad” and “saying stuff.” Justin did not know exactly
what defendant said, although he heard defendant “aggressively” say something like,
“‘I’m going to stab someone’” while holding the knife up. Defendant made several
stabbing motions while running at the group. Justin thought defendant was “coming at”
Kaytlyn because she was the closest to him. Phillip testified that he recalled defendant
yelling something, but he could not recall what defendant said. However, Phillip told law
enforcement shortly after the incident that defendant said something along the lines of,
“‘[y]ou’ve messed up and you’re going to die.’” Kaytlyn testified that she did not
“remember [defendant] saying anything.”
Phillip immediately pushed Kaytlyn out of the way and got in between her and
defendant. Phillip put his arms in the air and said, “‘If you’re going to stab someone, you
stab me.’” Defendant stabbed Phillip twice in the abdomen while his hands were still in
the air, but unsuccessfully tried to stab him two more times.
Defendant turned around and ran away. Kaytlyn and Justin chased after him.
Kaytlyn hit defendant with a strap that she used as a dog leash, and Justin hit him with a
tree branch.
Kaytlyn then returned to Phillip. He was bleeding, so she called 911. After seeing
Phillip’s wounds, Kaytlyn concluded defendant used “a screwdriver or something” to
stab Phillip because his wounds “were more round and slits.”
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Phillip suffered two stab wounds, but his injuries were not life-threatening. One
of his wounds had to be stapled shut. The wound was close to Phillip’s heart and hit his
rib cage, which is “why it didn’t go so deep.” Because of his injuries, Phillip could not
use much of the left side of his body for about a week.
Law enforcement searched defendant’s tent near the crime scene, where they
recovered two knives and a pair of shears. None of the objects had blood on them. The
object defendant used to stab Phillip was never found.
III.
DISCUSSION
A. Substantial Evidence Supports Defendant’s Conviction for Assaulting Kaytlyn
With a Deadly Weapon
Defendant contends there was insufficient evidence that he assaulted Kaytlyn with
a deadly weapon.{AOB 10} We disagree.
1. Standard of Review
“When considering a challenge to the sufficiency of the evidence to support a
conviction, we review the entire record in the light most favorable to the judgment to
determine whether it contains substantial evidence—that is, 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.] . . . We presume in support of
the judgment the existence of every fact the trier of fact reasonably could infer from the
evidence. [Citation.] If the circumstances reasonably justify the trier of fact’s findings,
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reversal of the judgment is not warranted simply because the circumstances might also
reasonably be reconciled with a contrary finding. [Citation.] A reviewing court neither
reweighs evidence nor reevaluates a witness’s credibility.” (People v. Lindberg (2008)
45 Cal.4th 1, 27.)
“‘Although it is the duty of the jury to acquit a defendant if it finds that
circumstantial evidence is susceptible of two interpretations, one of which suggests guilt
and the other innocence [citations], it is the jury, not the appellate court which must be
convinced of the defendant’s guilt beyond a reasonable doubt. If the circumstances
reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the
circumstances might also reasonably be reconciled with a contrary finding does not
warrant a reversal of the judgment.’” (People v. Thomas (1992) 2 Cal.4th 489, 514.) We
may reverse a conviction for a lack of substantial evidence only if it appears “‘“that upon
no hypothesis whatever is there sufficient substantial evidence”’” to support the
conviction. (People v. Cravens (2012) 53 Cal.4th 500, 508.)
2. Analysis
“An assault is an unlawful attempt, coupled with a present ability, to commit a
violent injury on the person of another.” (§ 240.) “For purposes of assault with a deadly
weapon under section 245(a)(1), ‘a “deadly weapon” is “any object, instrument, or
weapon which is used in such a manner as to be capable of producing and likely to
produce, death or great bodily injury.” [Citation.]’” (In re Raymundo M. (2020) 52
Cal.App.5th 78, 85 (Raymundo M.).)
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Defendant contends he did not assault Kaytlyn or use a deadly weapon to do
so.{AOB 11} He argues there was insufficient evidence that he assaulted Kaytlyn
because “[a]t best, the evidence showed he approached her and the rest of the
group.”{AOB 13} In defendant’s view, there was “no evidence” he ran toward Kaytlyn,
no evidence about how fast he moved, nor any evidence about how far away he
was.{AOB 13}
The record shows otherwise. Phillip and Justin testified that defendant ran toward
the group, and Kaytlyn was nearest to him. Justin testified that defendant was “coming at
her”{2RT 256} from about 20 to 30 feet away.{2RT 266} Phillip and Justin testified that
defendant ran at the group while yelling aggressively. Phillip testified that defendant was
holding a knife, and Justin testified that defendant ran at the group while holding up a
sharp object, making stabbing motions, and yelling that he was going to stab someone.
Kaytlyn testified that she saw defendant holding a sharp object and that Phillip pushed
her out of the way to get between her and defendant as he ran toward the group. Because
of the stab wounds defendant inflicted on Phillip, Kaytlyn immediately summoned
medical attention for Phillip. One of Phillip’s wounds had to be stapled shut, and he
could not use the left side of his body without pain for about a week. Viewing the
evidence in the light most favorable to the judgment, the record thus shows that
defendant ran at Kaytlyn from about 20 to 30 feet away while holding up a sharp object
that he used to stab Phillip twice in the abdomen, causing him serious injuries.
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From this evidence, the jury could reasonably conclude that defendant assaulted
Kaytlyn with a deadly weapon. Raymundo M., supra, 52 Cal.App.5th 78 is instructive.
There, the juvenile “raised the knife from waist-high to head-high, indicating he intended
to use it in an offensive manner. Then, rather than merely brandish the knife while
standing still, [the juvenile] lunged and ran toward [the victim] from 10 to 12 feet away.”
(Raymundo M., supra, at pp. 87-88.) The victim ran away, and the juvenile
unsuccessfully chased him. (Ibid.)
The Court of Appeal held there was substantial evidence that the juvenile
committed assault with a deadly weapon. (Raymundo M., supra, 52 Cal.App.5th at p.
88.) The court reasoned that the “evidence support[ed] the reasonable finding that, but
for [the victim] fleeing in fear for his life, [the juvenile] actually used the knife in a way
capable of producing, and likely to produce, death or great bodily injury—that is, as a
deadly weapon.” (Ibid.)
In reaching this conclusion, the Raymundo M. court relied on People v. Yslas
(1865) 27 Cal. 630 (Yslas). In Yslas, the defendant approached the victim from about
seven or eight feet away with a raised hatchet, but the victim ran to the next room and
locked the door. (Id. at p. 634.) The Yslas court held that the defendant committed
assault, even though he did not close the distance between himself and the victim or
swing the hatchet. (Ibid.) The court rejected the defendant’s argument that he did not
commit assault because he did not get near the victim: “It is not indispensable to the
commission of an assault that the assailant should be at any time within striking distance.
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If he is advancing with intent to strike his adversary and come sufficiently near to induce
a man of ordinary firmness to believe, in view of all the circumstances, that he will
instantly receive a blow unless he strike in self-defense or retreat, the assault is complete.
In such a case the attempt has been made coupled with a present ability to commit a
violent injury within the meaning of the statute. It cannot be said that the ability to do the
act threatened is wanting because the act was in some manner prevented.” (Ibid.)
Like the defendant in Yslas, the juvenile in Raymundo M. approached the victim
with a raised weapon from a short distance away and, like the victim in Yslas, the victim
in Raymundo M. escaped injury only by retreating. (Raymundo M., supra, 52
Cal.App.5th at p. 88.) In both cases, the courts held that the perpetrator committed
assault with a deadly weapon even though neither of them got near their victims or swung
a weapon at the victims. (Ibid.; Yslas, supra, 27 Cal. at p. 634.)
Yslas and Raymundo M. are consistent with the principle our Supreme Court
recently stated: “[A]n aggressor should not receive the benefit of a potential victim
fortuitously taking a defensive measure or being removed from harm’s way once an
assault is already underway.” (In re B.M. (2018) 6 Cal.5th 528, 537.) Like the assailants
in Yslas and Raymundo M., defendant ran at Kaytlyn while holding a sharp object in the
air and making stabbing motions from a relatively close distance. He then stabbed Phillip
twice in the abdomen, which caused him to bleed such that Kaytlyn immediately called
911 for medical assistance for Phillip. Defendant presumably did not stab Kaytlyn only
because Phillip pushed her out of the way, got in between her and defendant, and
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confronted him. From this evidence, the jury reasonably concluded that defendant
assaulted Kaytlyn, even if defendant did not get near her or try to stab her. (See
Raymundo M., supra, 52 Cal.App.5th at p. 90 [“[S]ubstantial evidence supports the
juvenile court’s factual finding that, by lunging and running toward [the victim] with a
raised switchblade-like knife from a distance of 10 to 12 feet away, [the juvenile] used
the knife in a manner that likely would have caused great bodily injury to [the victim] had
[the victim] not taken evasive actions”]; see also People v. Chance (2008) 44 Cal.4th
1164, 1173 [“[A]n assault may occur even when the infliction of injury is prevented by
environmental conditions or by steps taken by victims to protect themselves”]; People v.
Bernal (2019) 42 Cal.App.5th 1160, 1168 [“[A] jury could reasonably conclude that the
[victim] would likely have been touched with the knife had he not moved out of the
way”].)
The jury also could have reasonably found that defendant assaulted Kaytlyn with a
deadly weapon. A weapon is deadly if it is inherently deadly or used in a manner capable
of producing and likely to produce death or great bodily injury. (People v. Aguilar
(1997) 16 Cal.4th 1023, 1028-1029.)
The People do not contend the object defendant used was inherently deadly, but
argue that he used it in a manner that was capable and likely to produce death or great
bodily injury. We agree. The object defendant stabbed Phillip with twice in the
abdomen left him bleeding from injuries that were serious enough that Kaytlyn
immediately called 911. One of his wounds, which was near his heart, had to be stapled
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shut. Because of his injuries, Phillip could not use most of the left side of his body
without pain for about a week. Although Kaytlyn and Justin were unsure what the object
was, Phillip testified that it was a four- to six-inch-long knife.
The evidence thus supports the reasonable inference that but for Phillip’s actions,
defendant “actually used the [object] in a way capable of producing, and likely to
produce, death or great bodily injury [to Kaytlyn]—that is, as a deadly weapon.” (See
Raymundo M., supra, 52 Cal.App.5th at p. 88.) Accordingly, substantial evidence
supports the jury’s finding that defendant assaulted Kaytlyn with a deadly weapon. (See
ibid.; accord, People v. Nguyen (2017) 12 Cal.App.5th 44, 48 [defendant, who pointed
knife at police officers and took a step toward them from 10 to 15 feet away before they
shot him, was liable for assault with a deadly weapon on peace officer]; People v. Bernal,
supra, 42 Cal.App.5th at p. 1164 [defendant guilty of assault with a deadly weapon for
displaying knife, asking victim “‘Do you want to do this?,’” and running away]; People
v. Vorbach (1984) 151 Cal.App.3d 425, 429 [brandishing knife in a threatening manner is
sufficient evidence of assault with a deadly weapon].)
B. The Trial Court’s Instructional Error Was Prejudicial
The trial court instructed the jury with CALCRIM No. 875, which defined a
deadly weapon as “any object, instrument, or weapon that is inherently deadly or one that
is used in such a way that it is capable of causing and likely to cause death or great bodily
injury.” Defendant argues, the People concede, and we agree that the trial court
erroneously instructed the jury because the object defendant used was not inherently
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deadly. (See People v. Aledamat (2019) 8 Cal.5th 1 (Aledamat) [holding trial court errs
by instructing jury on inherently deadly weapons unless the weapon used in the assault
was inherently deadly, and a knife is not inherently deadly].) Defendant contends the
2
error was prejudicial as to Kaytlyn (count 2). We agree.
In Aledamat, supra, 8 Cal.5th 1, the defendant assaulted the victim with a deadly
weapon by thrusting a box cutter at the victim from a few feet away while saying, “‘I’ll
kill you.’” (Id. at p. 4.) The box cutter was not an inherently deadly weapon, yet the trial
court instructed the jury with CALCRIM No. 875’s language about inherently deadly
weapons. (Ibid.)
Our Supreme Court held the trial court erred in doing so, but held that the error
was harmless beyond a reasonable doubt for several reasons. (Aledamat, supra, 8 Cal.5th
at p. 6.) First, the Aledamat court noted that CALCRIM No. 875 juxtaposed “‘inherently
deadly’” with “‘used in such a way that it is capable of causing [injury] and likely to
cause death or . . . great bodily injury,’ and therefore ‘at least indicate[d] what the
“inherently deadly” language was driving at.’” (Id. at pp. 13-14.)
Our Supreme Court also determined that “the jury necessarily found the following:
(1) defendant did an act with a deadly weapon (either inherently or as used) that by its
nature would directly and probably result in the application of force; (2) defendant was
aware of facts that would lead a reasonable person to realize that his act by its nature
2
At oral argument, defendant’s counsel confirmed that he agreed that the error
was harmless beyond a reasonable doubt as to Philip (count 4).
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would directly and probably result in the application of force to someone; and (3)
defendant had the present ability to apply force with a deadly weapon to a person.”
(Aledamat, supra, 8 Cal.5th at p. 15.) The Aledamat court concluded that “ ‘[n]o
reasonable jury that made all of these findings could have failed to find’ that defendant
used the box cutter in a way that is capable of causing or likely to cause death or great
bodily injury.” (Ibid., citing People v. Merritt (2017) 2 Cal.5th 819, 832.)
The Aledamat court also considered a jury instruction, which was not given here,
that directed the jury to “‘consider all of the surrounding circumstances including when
and where the object was possessed and any other evidence that indicates whether the
object would be used for a dangerous rather than a harmless purpose.’” (Aledamat,
supra, 8 Cal.5th at p. 14.) Given this instruction, our Supreme Court found that it was
unlikely the jury improperly relied on the “inherently deadly” language of CALCRIM
No. 875. (Ibid.) The court reasoned that the jury would have understood the box cutter
the Aledamat defendant used to be deadly “in the colloquial sense of the term—i.e.,
readily capable of inflicting deadly harm—and [found that] defendant used it as a
weapon.” (Id. at p. 15.)
Next, the Aledamat court observed that in closing argument “no one ever
suggested to the jury that there were two separate ways it could decide whether the box
cutter was a deadly weapon. Defense counsel argued that defendant did not use the box
cutter in a way that would probably result in the application of force, that is, that
defendant did not assault the victim at all—an argument the jury necessarily rejected
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when it found defendant guilty of that crime. But counsel never argued that, if he did
assault the victim with the box cutter, the box cutter was not a deadly weapon.”
(Aledamat, supra, 8 Cal.5th at p. 14.)
Similarly, the prosecutor here never explicitly argued the object defendant used
was an inherently deadly weapon or that there were “two separate ways [the jury] could
decide whether the [object] was a deadly weapon.” (Aledamat, supra, 8 Cal.5th at p. 14.)
But the prosecutor argued at least three times in his closing argument that defendant
assaulted Kaytlyn with a deadly weapon simply because he ran at her with a knife. In
other words, the prosecutor implicitly argued that the weapon defendant used was
inherently deadly.
The prosecutor first stated that defendant came “toward her with a knife,” and
argued “[t]hat’s assault with a deadly weapon.” The prosecutor again argued that
defendant was guilty of the offense simply because he charged Kaytlyn while holding a
knife: “[Defendant’s] not charged with actually inflicting injury on Kaytlyn. That’s not
what assault is. Assault is you have a weapon. You use that weapon in a way where you
could apply force to a person. It’s a deadly weapon. And you have the intent to actually
use the weapon. [Kaytlyn] was in a position where she could have been injured. That’s
assault, assault with a deadly weapon.” (Emphasis added.)
In his rebuttal, the prosecutor argued defendant was guilty of assault with a deadly
weapon, not the lesser included offense of misdemeanor assault as defendant urged,
because he assaulted Kaytlyn while holding a weapon: “A lesser of misdemeanor assault
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would mean that there was no deadly weapon. So it would be like a lettuce and tomato
sandwich. So the lesser offense would be like a lettuce, tomato sandwich, but we’re
saying there was bacon. There was bacon in this case. There was a stabbing weapon.
And if there was a stabbing weapon, then it’s a BLT and it’s an assault with a deadly
weapon because that’s the only difference.”
Because the prosecutor erroneously told the jurors three times that defendant
necessarily was guilty of assault with a deadly weapon if they found that he assaulted
Kaytlyn while holding a “stabbing weapon,” it is possible the jurors found defendant
guilty of the offense irrespective of how he used the weapon. Unlike the Aledamat jury,
the jury here was not instructed to “‘consider all of the surrounding circumstances’”
concerning how defendant used the weapon. (Aledamat, supra, 8 Cal.5th at p. 14.) In the
absence of that instruction, the jury may have relied on the prosecutor’s erroneous
argument to improperly find that the weapon defendant held while charging Kaytlyn was
inherently deadly, and incorrectly based its verdict on that finding. Put another way, it is
plausible that the jury credited the prosecutor’s multiple suggestions that the presence of
the “stabbing weapon” during an assault is sufficient, without more, to find that the
assault was committed with a deadly weapon. As a result, we cannot say that the
instructional error was harmless beyond a reasonable doubt. (See Aledamat, supra, 8
Cal.5th at p. 14 [instructional error was harmless beyond a reasonable doubt in part
because “no one ever suggested to the jury that there were two separate ways it could
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decide whether the box cutter was a deadly weapon”].) We therefore reverse defendant’s
conviction on count 2.
C. There Was Insufficient Evidence that Defendant Threatened Kaytlyn
Defendant contends there is insufficient evidence that he criminally threatened
Kaytlyn because (1) she did not hear defendant yell anything threatening and (2) she was
not in sustained fear as a result of anything he said. We agree.
To convict defendant of making a criminal threat in violation of section 442, the
People had to prove, among other things, that (1) 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,” and (2) “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.’” (People v. Toledo (2001) 26 Cal.4th 221, 227-
228.)
Kaytlyn unequivocally testified that she did not remember defendant “saying
anything.” When defense counsel asked if she could remember what defendant said,
Kaytlyn responded, “No.” Kaytlyn also testified that she was not scared until she saw
Phillip “bleeding as much as he was and where he was bleeding from.” To confirm
Kaytlyn’s testimony, defense counsel asked if she was “scared based on anything that
[defendant] was saying to [her].” Kaytlyn answered, “I can’t even remember things that
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he said, so--.” Defense counsel then asked Kaytlyn if the “only reason” she was scared
was because she saw Phillip’s injuries.” Kaytlyn replied, “Yeah. I felt a little scared
after I got pushed, but that’s because it caught me off guard I guess.”
Kaytlyn’s testimony thus unambiguously shows defendant did not say anything
that she considered threatening and she was not afraid because of anything he said. As a
result, we conclude there was insufficient evidence that defendant criminally threatened
Kaytlyn in violation of section 442. (See People v. Toledo, supra, 26 Cal.4th at pp. 227-
228 [conviction for criminal threat under section 442 requires evidence that victim was in
fear because of something the defendant communicated to victim].) Accordingly, we
reverse defendant’s conviction on count 4.
D. Section 654
At sentencing, defendant argued that the sentences for his convictions for making
criminal threats (counts 3 and 4) should be stayed under section 654. The trial court
disagreed, reasoning that “you could have an assault with a deadly weapon with the
defendant—a defendant saying nothing and I think that the—the criminal threats is a
separate statute so I think it would—it’s an issue of whether it would be concurrent or
consecutive, not [section] 654.” The trial court therefore ordered defendant’s sentences
on counts 3 and 4 to run concurrently with his sentence on count 1.
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3
Defendant contends the trial court erred in doing so. We disagree.
1. Applicable Law and Standard of Review
Section 654, subdivision (a) provides in relevant part: “An 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.”
“Section 654 precludes multiple punishments for a single act or indivisible course
of conduct. [Citation.]” (People v. Hester (2000) 22 Cal.4th 290, 294.) “‘“‘Whether a
course of criminal conduct is divisible and therefore gives rise to more than one act
within the meaning of section 654 depends on the intent and objective of the actor. If all
of the offenses were incident to one objective, the defendant may [not] be
punished . . . for more than one.’”’ [Citation.]” (People v. Jackson (2016) 1 Cal.5th 269,
354.) “If, on the other hand, defendant harbored ‘multiple criminal objectives,’ which
were independent of and not merely incidental to each other, he may be punished for each
statutory violation committed in pursuit of each objective, ‘even though the violations
shared common acts or were parts of an otherwise indivisible course of conduct.’
[Citation.]” (People v. Harrison (1989) 48 Cal.3d 321, 335.)
3
Because we reverse defendant’s conviction on count 4, we need only address
whether the trial court should have stayed defendant’s sentence on count 3 under section
654.
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We review a trial court’s ruling on whether section 654 applies for substantial
evidence. (People v. McKinzie (2012) 54 Cal.4th 1302, 1368, disapproved on other
grounds in People v. Scott (2015) 61 Cal.4th 363, 391, fn. 3.)
2. Analysis
We conclude substantial evidence supports the trial court’s implied finding that
defendant acted with separate objectives when he assaulted and threatened the victims.
(See People v. Brents (2012) 53 Cal.4th 599, 618 [“A trial court’s express or implied
determination that two crimes were separate, involving separate objectives, must be
upheld on appeal if supported by substantial evidence.”].)
Raymundo M., supra, 52 Cal.App.5th 78 is again directly on point. There, the
court held that the trial court “could reasonably have found that [the juvenile] committed
the assault with the objective of inflicting physical harm on [the victim], whereas [the
juvenile] criminally threatened [the victim] with the separate objective of inflicting
mental or emotional harm.” (Raymundo M., supra, 52 Cal.App.5th at p. 95.) As the
Raymundo M. court observed, “[c]ourts routinely recognize similar distinctions.” (Ibid.
[collecting cases holding section 654 did not apply when the defendant orally threatened
the victim and then committed a separate, physically threatening offense like assault].)
Like the Raymundo M. court, we conclude that defendant’s “assault and criminal-
threat counts arose from separate conduct that the [trial] court could reasonably have
concluded were undertaken pursuant to separate objectives.” (Raymundo M., supra, 52
Cal.App.5th at p. 95.) As in Raymundo M., the trial court could have reasonably found
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that defendant threatened Phillip with the intent to cause him emotional or mental harm
and assaulted him and Kaytlyn with the intent to cause them physical harm. (Ibid.) In
other words, the trial court could have reasonably found that defendant’s objectives in
threatening and assaulting Phillip were independent of, and not merely incidental to, each
other. (See People v. Brents, supra, 53 Cal.4th at p. 618.) We therefore conclude the
trial court did not err by declining to stay defendant’s sentence for his threat offense
against Phillip (count 3) under section 654.
IV.
DISPOSITION
The judgment is reversed as to defendant’s convictions on counts 2 and 4, but
affirmed in all other respects. The matter is remanded for further proceedings consistent
with this opinion.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J.
We concur:
McKINSTER
Acting P. J.
MENETREZ
J.
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