People v. Wong

Filed 9/28/18
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B283174
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. GA098540)
v.
KAM HING WONG,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County. Curtis A. Kin, Judge. Affirmed as modified.
Thomas Owen, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler,
Chief Assistant Attorney General, Lance E. Winters, Senior
Assistant Attorney General, Paul M. Roadarmel, Jr. and Daniel
C. Chang, Deputy Attorneys General, for Plaintiff and
Respondent.
____________________________
Kam Hing Wong appeals from a judgment which sentences
him to a life sentence for the attempted murder of his wife,
Mei O.1 Wong challenges his sentence on appeal, contending the
trial court erred when it imposed to a single count three
consecutive one-year enhancements for the use of deadly
weapons. We agree Penal Code section 6542 prohibits multiple
punishment under these circumstances. We affirm the judgment
but modify the sentence to stay the imposition of two of the three
deadly weapon enhancements.
FACTS
The Attempted Murder
Mei and Wong met in China in October 2013 after Mei
posted a personal ad in a Chinese-language newspaper. They
married one month later. At the time, Mei lived in China and
Wong lived in the United States. They spent the first two and a
half years of their marriage apart, waiting for her visa to be
granted. They spoke every day on the phone, however, and Wong
visited Mei in September 2014.
Mei arrived in Los Angeles on March 30, 2016, soon after
her visa was granted. The next afternoon, Wong asked her to cut
his hair and brought out two pairs of scissors for her to use.
Mei cut his hair and then continued to clean the house and
perform other chores. After dinner, Mei and Wong had sex.
Mei then went to take a shower.
1 To protect personal privacy interests as required under rule
8.90 of the California Rules of Court, we will refer to the victim
and witnesses in this matter by their first name and last initial.
2 All further section references are to the Penal Code unless
otherwise specified.
2
Mei was washing her hair when she heard a bang and felt
something strike her head. She initially believed the shower
head had fallen on her. She soon realized Wong was stabbing her
with the two pairs of scissors she had used to cut his hair. Mei
fought back and asked why he was doing this. He replied that he
wanted her to die. Mei fought with him and ran through the
house to the front door. She felt Wong stab her in the back and
shoulders multiple times as she tried to unlock the door. They
were both struggling on the ground, which was wet with her
blood, and Mei became dizzy from blood loss. She finally
managed to take the scissors away from him and throw them
behind the sofa.
She then saw Wong procure a 12-inch long knife, which he
used to cut her from her kneecap to her shin. She wrested the
knife away from him and threw it behind the sofa as well. With
great difficulty, Mei managed to get up and run out the back
door, which was unlocked. As she opened the back door, she felt
something cut the back of her hip.
Once outside, Mei flagged down Lillian R.’s car. Lillian’s
mother was driving when they saw a nude person run out into
the middle of the street, covered in blood. Lillian called 911.
Mei was transported to a nearby hospital, where she stayed
for six days and was treated for 32 puncture wounds, not
including superficial abrasions, and received over 100 stitches.
The emergency room doctor noted multiple lacerations to her
neck, head, chest, back, and abdomen. Because she was bleeding
profusely from injuries to her head, the doctor closed the wounds
on her scalp with staples to prevent a drop in blood pressure and
damage to vital organs resulting from blood loss.
3
A search of Wong’s house revealed a meat cleaver with
what appeared to be blood on the handle and the blade as well as
a small knife with a red substance on its handle. The police
observed blood all over the wooden floors in the living room and
on the walls near the front door as well as in the bedroom and
bathroom. Two pairs of scissors and a 12-inch long knife were
found underneath the couch. They appeared wet with blood.
There was a trail of blood leading from the back door to the
intersection where Mei was discovered.
Wong was arrested and confessed after waiving his
Miranda3 rights. Wong admitted to trying to kill Mei because he
suspected she was having an affair. In addition, he blamed her
for his older son moving in with his girlfriend, and he believed he
would lose his house as a result of the application for her visa.
The Trial
Wong was charged with attempted, willful, deliberate, and
premeditated murder. (§§ 664/187, subd. (a).) It was further
alleged that in the commission and attempted commission of this
offense, he personally used three deadly and dangerous weapons,
scissors, a butcher knife, and a knife (§ 12022, subd. (b)(1)), and
that he personally inflicted great bodily injury upon the victim
(§ 12022.7, subd. (e)).
At trial, the People presented testimony from Mei and
other witnesses regarding the events as described above. Wong
testified he lost control because he believed Mei was cheating on
him. He explained that Chinese tradition dictated the bedding
on a wedding night should be red in color, signifying a festive and
happy event. On their wedding night in China, however, Mei
used green pillow covers with a note inside stating, “at home
3 Miranda v. Arizona (1966) 384 U.S. 436.
4
there is a well-mannered wife.” He believed the green color of the
pillowcase was tantamount to giving him a green hat to wear.
In Chinese folklore, a man who wore a green hat was being
cuckolded by his wife. He did not mention this suspicion to her at
the time.
When Wong visited Mei again in 2014, she used an even
bigger green towel for his pillowcase. He did not confront her
about it while he was in China, because he did not want to argue
with her. However, he did ask her about it when they spoke over
the phone after he returned to the United States. He told her
that “every Chinese knows that when you use a green towel as a
pillow it means that you’re giving the green hat to the husband to
wear.” Although she understood the significance of it, she denied
having an affair, and responded, “even if you point me with a gun
then I would not admit to it.”
Wong testified he was not happy when Mei arrived in Los
Angeles, but he welcomed her anyway. He explained he “lost
control” after he found two green-colored towels in his clothes as
he was preparing to take his shower. He immediately felt dizzy
and really angry, because he viewed those towels as proof that
she had been unfaithful. He admitted he stabbed her repeatedly
with a pair of scissors and a small knife, but denied wanting to
kill her. The defense also presented testimony from a doctor, who
testified Mei’s injuries were not life-threatening.
The jury found Wong guilty of attempted murder and found
the special allegations to be true.
5
The Sentence
Wong was sentenced to life in state prison, plus a
consecutive term of five years for the great bodily injury
enhancement, plus three consecutive one-year terms for each of
the deadly weapon enhancements.4
Wong objected to the imposition of the three one-year terms
for each of the deadly weapon enhancements, contending section
1170.1, subdivisions (f) and (g), prohibited the imposition of more
than one deadly weapon enhancement and one great bodily
injury enhancement. The trial court rejected Wong’s argument,
finding that section 1170.1 applies only to determinate sentences,
not indeterminate sentences. The trial court relied on People v.
4 We note the trial court and parties referred to the total
sentence as “15 years to life” and to the base term as “7 years to
life.” This usage was adopted in the appellate briefs as well.
This is common shorthand to refer to a life sentence with
minimum parole eligibility. However, the shorthand
pronouncement is incorrect because it indicates a minimum term
exists, rather than a minimum parole eligibility. For example,
the Penal Code specifies “every person guilty of murder in the
second degree shall be punished by imprisonment in the state
prison for a term of 15 years to life.” (§ 190, subd. (a).) Thus, a
sentence for second degree murder specifies a minimum term of
15 years and is part of the sentence that is pronounced. On the
other hand, section 664, subdivision (a), provides a person found
guilty of an attempt to commit a willful, deliberate, and
premeditated murder “shall be punished by imprisonment in the
state prison for life with the possibility of parole[;]” there is no
minimum term specified under the statute. Instead, there is a
minimum parole eligibility of seven years, but that is not part of
the sentence that is pronounced. Thus, a more accurate
statement of the sentence for attempted murder is simply
“life, plus” any determinate enhancements.
6
Williams (2004) 34 Cal. 4th 397 (Williams), and reasoned,
“Williams couldn’t have been more clear that 1170.1 simply does
not apply to indeterminate sentences. There is no getting around
that; so I think the analysis is under 654. So I tend to agree with
the People, at least the way in which the conduct occurred here,
is that the defendant, according to the evidence, independently
and separately chose a new weapon each time he lost one or it
was knocked out of his hand, thrown across the room, broken, or
the victim fled. It seemed to be then that while it was in a way in
this course of conduct it was a separate reach for each dangerous,
deadly weapon to be carrying out the attempted murder in a
different way each time. I think under that analysis, it doesn’t
violate 654.”
The trial court acknowledged that Williams addressed
“multiple counts and whether you can have additional weapons
enhancements for each count. This is a slightly different issue,
whether one can have multiple weapons enhancements as to a
single count. I don’t think necessarily Williams answers it
entirely.” However, it concluded, “I actually have the Williams
case in front of me. It does state on page 402 that, quote, ‘section
1170.1, however, applies only to determinate sentences. It does
not apply to multiple indeterminate sentences.’ So I think the
analysis that controls here is that under 654, and the way the
conduct unfold[ed] here, and the way in which the multiple
dangerous and deadly weapons were used here, I think that it is
permissible, appropriate, and indeed required for the court to
impose the three separate one-year sentencing enhancements
consecutively.”
Wong timely appealed.
7
DISCUSSION
Wong contends the trial court erred in imposing three
consecutive one-year terms for each of the deadly weapon
enhancements on the single attempted murder count for which he
was convicted. We agree.
I. Governing Law
In People v. Ahmed (2011) 53 Cal. 4th 156 (Ahmed),
the California Supreme Court addressed the issue of how
multiple enhancements interact when they are attached to one
offense. There, the defendant shot his girlfriend in the stomach
with a handgun. Based on this act, a jury convicted him of
assault with a firearm and found true two enhancement
allegations: personal use of a firearm (§ 12022.5, subd. (a)) and
infliction of great bodily injury under circumstances involving
domestic violence (§ 12022.7, subd. (e)). (Ahmed, at p. 160.)
The appellate court stayed one of the enhancements pursuant to
section 654, and the People appealed. On review, the defendant
argued that only one of the enhancements could be imposed
because both were based on the same act: shooting the victim in
the stomach. (Ahmed, at p. 160.)
Ahmed rejected this argument and set forth the proper
procedure for considering when a court may impose multiple
enhancements for a single crime. (Ahmed, supra, 53 Cal.4th at
pp. 160–161.) The court advised, “courts should look first to the
statutory language concerning the enhancements to determine
how they interact and consider section 654 only if those statutes
do not provide the answer.” (Id. at p. 161.) The court explained,
the statutes will “often” supply the answer to whether multiple
enhancements may be imposed. (Id. at p. 163.) Because a
specific statute prevails over a more general one relating to the
8
same subject, the court should apply the answer from the specific
sentencing statute and “stop there.” (Id. at p. 159.) As a result,
the court examined section 1170.1, subdivisions (f) and (g), which
addressed the enhancements at issue, and found it was enacted
“to permit the sentencing court to impose both one weapon
enhancement and one great-bodily-injury enhancement for all
crimes.” (Ahmed, at p. 168.)
While the court acknowledged that its holding rendered a
section 654 analysis unnecessary, it chose to fully explain how
and when section 654 would apply to multiple enhancements.
(Ahmed, at p. 164.) It began by describing the role enhancements
serve in a sentencing scheme, explaining, “ ‘[e]nhancements
typically focus on an element of the commission of the crime or
the criminal history of the defendant which is not present for all
such crimes and perpetrators and which justifies a higher penalty
than that prescribed for the offenses themselves.’ ” (Id. at p. 161,
quoting People v. Hernandez (1988) 46 Cal. 3d 194, 207–208.)
“ ‘[T]here are at least two types of sentence enhancements:
(1) those which go to the nature of the offender [status
enhancements]; and (2) those which go to the nature of the
offense [conduct enhancements].’ ” (Ahmed, at p. 162, quoting
People v. Coronado (1995) 12 Cal. 4th 145, 156.) Section 654 does
not apply to the first category of enhancements but does apply to
the second category. (Ahmed, at p. 162.) Ahmed concluded
section 654 prohibited the imposition of multiple enhancements
of the same type, but permitted multiple enhancements of
different types. (Ahmed, at p. 162.)
Ahmed involved a determinate sentence. The Supreme
Court had previously reviewed the application of section 1170.1
to an indeterminate sentence in Williams, supra, 34 Cal. 4th 397.
9
There, the defendant was convicted of three sexually violent
crimes and suffered two prior convictions for serious or violent
felonies. He was sentenced to a determinate term of 20 years and
to two consecutive indeterminate life sentences under the Three
Strikes law. (Id. at p. 401, fn. 3.)
In a prior case, the court had determined that when
imposing status enhancements on multiple determinate counts,
they “ ‘have nothing to do with particular counts but, since they
are related to the offender, are added only once as a step in
arriving at the aggregate sentence.’ ” (Williams, supra, 34
Cal.4th at p. 402.) The court, however, declined to apply the
same rule to multiple indeterminate terms under the Three
Strikes law. It held that section 1170.1 “applies only to
determinate sentences. It does not apply to multiple
indeterminate sentences imposed under the Three Strikes law.”
(Williams, at p. 402.) As a result, status enhancements are
added to each indeterminate count, even if there are multiple
status enhancements.
II. Analysis
With Ahmed to guide our analysis, we first examine the
specific statutes relating to sentencing enhancements for the use
of deadly weapons. If those specific statutes provide the answer,
our analysis is complete. If not, we turn to consider section 654.
In this case, we find it necessary to turn to the second step.
Therefore, we address the application of section 654 to the facts
of this case.5
5 We recognize this case presents unusual facts in that cases
addressing multiple weapon enhancements typically are resolved
using section 1170.1, not section 654. Indeed, Wong notes he did
not find any case authority involving multiple weapon
10
A. Section 1170.1 Does Not Apply in This Case
We turn first to the applicable sentencing statutes.
Section 12022, subdivision (b)(1), states: “A person who
personally uses a deadly or dangerous weapon in the commission
of a felony or attempted felony shall be punished by an additional
and consecutive term of imprisonment in the state prison for one
year, unless use of a deadly or dangerous weapon is an element of
that offense.” By its express language, section 12022, subdivision
(b)(1) does not prescribe the number of deadly weapon
enhancements which may be imposed on any one count. Instead,
it states only that an additional one-year sentence must be
imposed on anyone who personally uses a deadly or dangerous
weapon.
Wong argues section 12022, subdivision (b)(1), is
circumscribed by section 1170.1, subdivision (f), which provides:
“When two or more enhancements may be imposed for being
armed with or using a dangerous or deadly weapon or a firearm
in the commission of a single offense, only the greatest of those
enhancements shall be imposed for that offense. This subdivision
shall not limit the imposition of any other enhancements
applicable to that offense, including an enhancement for the
infliction of great bodily injury.” Wong reads this provision as
expressly prohibiting the imposition of multiple weapon
enhancements to his sentence. We disagree with him on this
point.
enhancements which were not decided based on section 1170.1,
subdivision (f). Our independent research has not revealed such
a case either.
11
The Supreme Court has consistently held that “[s]ection
1170.1 . . . applies only to determinate sentences. It does not
apply to . . . indeterminate sentences . . . .” (Williams, supra, 34
Cal.4th at p. 402; People v. Felix (2000) 22 Cal. 4th 651, 656, 659
(Felix) [section 1170.1 only applies to determinate sentences];
People v. Mason (2002) 96 Cal. App. 4th 1, 15.) Here, it is
undisputed that a life sentence such as Wong’s is an
indeterminate term. (Felix, supra, 22 Cal.4th at p. 657.) As a
result, we agree with the trial court’s analysis that section 1170.1
does not apply in this case to limit the number of deadly weapon
enhancements which may be imposed.
To circumvent Williams, Wong argues its holding only
applies to subdivision (a) of section 1170.1, which addresses
status enhancements, and does not apply to section 1170.1,
subdivisions (d) through (g), which deal with conduct
enhancements. Not so. First, Williams did not differentiate
between the subdivisions in its analysis. Neither did Felix.
Indeed, the California Supreme Court has explained that section
1170.1 is part of the Determinate Sentencing Act, whereas
indeterminate sentences, on the other hand, are authorized
under section 1168, subdivision (b). (People v. Scott (1994)
9 Cal. 4th 331, 349.)
Despite the clear holdings that section 1170.1 only applies
to determinate sentences, Wong points to language in section
1170.1, subdivision (d), that refers to both determinate and
indeterminate terms, to support his cause. His reliance on
subdivision (d) is misplaced.
12
Section 1170.1, subdivision (d) states:
“When the court imposes a sentence for a felony
pursuant to Section 1170 or subdivision (b) of Section 1168,
the court shall also impose, in addition and consecutive to
the offense of which the person has been convicted, the
additional terms provided for any applicable
enhancements. If an enhancement is punishable by one of
three terms, the court shall, in its discretion, impose the
term that best serves the interest of justice, and state the
reasons for its sentence choice on the record at the time of
sentencing. The court shall also impose any other
additional term that the court determines in its discretion
or as required by law shall run consecutive to the term
imposed under Section 1170 or subdivision (b) of Section
1168. In considering the imposition of the additional term,
the court shall apply the sentencing rules of the Judicial
Council.” (Italics added.)
Wong theorizes that the language in section 1170.1,
subdivision (d), may be extended to subdivisions (f) and (g)
because each of these subdivisions address conduct
enhancements while subdivision (a) addresses status
enhancements. Thus, Wong posits section 1170.1, subdivisions
(d) through (g), apply to both determinate and indeterminate
sentences while 1170.1, subdivision (a), applies only to
determinate sentences.
We find Wong’s theory to be unsupported by the language
of the statute. Although section 1170.1, subdivision (d), does
refer to determinate terms under section 1170 and indeterminate
terms under section 1168, these references are not also contained
13
in section 1170.1, subdivisions (f) or (g). In addition, Wong has
provided no legislative history or other legal authority that would
allow us to read into subdivision (f) a requirement that it apply to
both determinate and indeterminate terms. Moreover, there is
no indication that section 1170.1, subdivision (d), which
addresses the imposition of “any applicable enhancements,”
means enhancements of the same type as those in subdivisions (f)
or (g) such that it is reasonable to group them together.
While Williams did not address the precise issue at hand—
whether the trial court may impose three separate weapon
enhancements to one indeterminate term—the holding in
Williams is unambiguous and binding. Williams holds that
section 1170.1 only applies to determinate terms. Because Wong
was sentenced to an indeterminate term, section 1170.1
subdivision (f), does not limit the number of enhancements that
may be imposed.
B. Section 654 Does Not Bar Punishment for
Different Types of Enhancements But Does Bar
Multiple Punishment for the Same Type of
Enhancements
Having determined the specific statutes do not provide the
answer to the multiple enhancements at issue in this case, we
now turn to the proscriptions of section 654, as required under
Ahmed. Wong asserts two arguments under section 654. First,
he urges us to remand to the trial court to determine whether to
stay all three deadly weapon enhancements because they stem
from the same conduct as the great bodily injury enhancement.
This argument lacks merit. Second, he argues two of the three
deadly weapon enhancements should be stayed under section
654. This argument has merit.
14
To address Wong’s arguments, we again turn to Ahmed.
Ahmed provided a reasoned analysis of when and how
enhancements based on a defendant’s conduct during a single
crime fall within section 654’s ambit. (Ahmed, supra, 53 Cal.4th
at p. 163.) The court explained, “enhancements are different
from substantive crimes, a difference that affects how section 654
applies to enhancements. Provisions describing substantive
crimes, such as the assault with a firearm in this case, generally
define criminal acts. But enhancement provisions do not define
criminal acts; rather, they increase the punishment for those acts.
They focus on aspects of the criminal act that are not always
present and that warrant additional punishment. [Citations.]”
(Id. at p. 163, italics added, fn. omitted.)
In Ahmed, the personal use of a firearm and great bodily
injury enhancements were both found true in the same assault
count where the defendant shot the victim in the stomach.
Although based on one act—shooting the victim in the stomach—
the enhancements addressed two different aspects of that
criminal act: the resulting great bodily injury and the
defendant’s use of a firearm, each of which could be additionally
punished. (Ahmed, supra, 53 Cal.4th at pp. 163–164.)
The court also noted, “[c]onversely, sometimes separate
enhancements focus on the same aspect of a criminal act. For
example, numerous weapon enhancements exist. (E.g., §§ 12022,
subd. (a) [being armed with a firearm], 12022.5 [use of a firearm],
and 12022.53, subd. (b) [use of a firearm in the commission of
specified offenses], 12022.53, subd. (c) [discharging a firearm in
the commission of specified offenses].) As another example,
numerous great-bodily-injury enhancements exist. (E.g.,
§ 12022.7, subd. (a) [a general great-bodily-injury enhancement],
15
subd. (b) [great bodily injury causing the victim to become
comatose or suffer permanent paralysis], subd. (c) [great bodily
injury on a person 70 years of age or older], subd. (d) [great bodily
injury on a child under the age of five years], and subd. (e)
[the enhancement in this case].)” (Ahmed, supra, 53 Cal.4th at
p. 164.) Ahmed concluded, “when applied to multiple
enhancements for a single crime, section 654 bars multiple
punishment for the same aspect of a criminal act.” (Ibid.)
Here, just as in Ahmed, the conduct enhancements that
seek to punish different aspects of the crime—the use of a deadly
or dangerous weapon and the infliction of great bodily injury—
were properly separately punished. However, all three of the
deadly weapon enhancements were not lawfully separately
punished because they applied to the same aspect of a criminal
act, the use of weapons in committing the crime. In other words,
the attempted murder count was the single criminal act, and the
three different types of weapons used to commit it did not convert
that crime into three separate criminal acts. Although the
enhancements for the use of deadly weapons involved different
types of weapons, they all involved the same aspect of one crime.
Under Ahmed, section 654 bars multiple punishment for the
same aspect of a criminal act.
This conclusion comports with a finding that Wong had a
single objective under section 654 and the use of the three
weapons was merely incidental to or was the means of
accomplishing or facilitating that single objective. As a result,
only one of the three deadly weapon enhancements may be
separately punished for Wong’s sole count of attempted murder.
16
The People argue punishment on all three deadly weapon
enhancements does not violate section 654 even assuming Wong
had only one objective. They cite cases which hold “[a] person
who commits separate, factually distinct, crimes, even with only
one ultimate intent and objective, is more culpable than the
person who commits only one crime in pursuit of the same intent
and objective.” (People v. Latimer (1993) 5 Cal. 4th 1203, 1211.)
Courts have held that “a course of conduct divisible in time,
although directed to one objective, may give rise to multiple
violations and punishment.” (People v. Beamon (1973) 8 Cal. 3d
625, 639, fn. 11; People v. Kwok (1998) 63 Cal. App. 4th 1236,
1253.) In determining whether criminal offenses are temporally
divisible, courts consider whether the defendant had an
“opportunity to reflect and to renew his or her intent before
committing the next [offense], thereby aggravating the violation
of public security or policy already undertaken.” (People v. Gaio
(2000) 81 Cal. App. 4th 919, 935.) Under the People’s analysis,
Wong had three opportunities to “reflect and to renew” his intent
before committing the next offense.
The People’s argument does not fully appreciate the
distinction in Ahmed between crimes and enhancements. Under
Ahmed, the fact that Wong used three different weapons does not
change the fact that he committed but one crime. His use of
three weapons cannot divide his one crime—attempted murder—
into three different criminal acts. Had Wong been charged with
three separate acts of assault, for example, the enhancement of
each separate crime would have been appropriate. That simply is
not the case here. In this case, the trial court impermissibly
imposed three weapons enhancements on one attempted murder
count.
17
DISPOSITION
The judgment is affirmed, and the sentence is modified to
reflect the imposition of three deadly weapons enhancements,
two of which are stayed under section 654. The trial court is
directed to issue a new abstract of judgment.
BIGELOW, P.J.
We concur:
RUBIN, J.
GRIMES, J.
18