Filed 12/22/14 P. v. Lopez CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B252103
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. YA086456)
v.
HERMAN LOPEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County.
Scott T. Millington, Judge. Affirmed.
California Appellate Project, Jonathan B. Steiner, Executive Director, Ann Krausz,
under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Lance E. Winters, Assistant Attorney
General, Margaret E. Maxwell and Douglas L. Wilson, Deputy Attorneys General,
for Plaintiff and Respondent.
___________________________________________________
A jury convicted defendant Herman Lopez of assault with a semiautomatic firearm
(Pen. Code, § 245, subd. (b))1 (count 1) and making criminal threats (§ 422, subd. (a))
(count 2).2 With respect to both counts, the jury found that defendant personally used a
firearm within the meaning of section 12022.5, subdivision (a). Defendant admitted
having suffered six prior convictions for which he served prison terms within the
meaning of section 667.5, subdivision (b).
In count 1, the trial court sentenced defendant to the midterm of six years on the
substantive offense, four years for the firearm enhancement, and five years for five of the
prior prison terms for a total sentence of 15 years in that count.3 In count 2, the court
imposed a concurrent sentence of two years (the midterm) for the substantive offense and
four years for the firearm enhancement for a total sentence of six years in that count.
Defendant appeals on the ground that the trial court erred when it failed to stay
execution of sentence in count 2 pursuant to section 654.
FACTS
Carlos Deleon was staying at a motel in Inglewood when, at 4:00 a.m., he heard
someone hitting a door very hard and the sound of a breaking window. He opened his
door and saw defendant standing outside the room next door holding a gun. Defendant
was screaming, “Get out motherfucker, get out.” Frightened, Deleon closed his door and
unsuccessfully tried to call 911. He heard a soft knock at his door and assumed it was
Mike, his next-door neighbor, calling at his door to ask for help. Instead, defendant stood
there and said to Deleon in Spanish, “You are going to die today, whore.” Defendant had
the gun “on his hands” and was raising it up. Defendant raised the gun to the level of
1 All further references to statutes are to the Penal Code unless stated otherwise.
2 Defendant was jointly charged with Alan Ruiz Martinez, whose trial was severed
from defendant’s. Martinez is not a party to this appeal.
3 The court found that two of the prior prison terms had been served concurrently,
and therefore only five prior prison terms could be used to enhance defendant’s sentence.
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Deleon’s chest and face. Deleon was able to grab the gun, and he and defendant began
struggling for it. Mike was also present, and defendant told Mike, “Grab him, put him in
the room so I can kill him.” Mike pulled Deleon’s arm. When Deleon began screaming
for help, Mike let Deleon go and walked away, leaving defendant and Deleon struggling.
Deleon kept pushing defendant back until they reached the stairs. Deleon pushed
defendant down the stairs and ran the other way. He then saw defendant walking away.
Deleon told arriving police officers that someone had tried to kill him, and he
indicated the direction in which defendant had gone. Police found defendant in a motel
across the street, and Deleon identified him in a field showup.
DISCUSSION
I. Defendant’s Argument
Defendant contends the assault and the threat occurred in a single course of
conduct in which he pointed a gun at Deleon while simultaneously issuing a threat, and
he verbally connected the threat to the gun. According to defendant, it is clear that he
committed the assault with a firearm to assist in the commission of the section 422
violation, causing the victim to be in fear for his safety. Therefore, his sentence in
count 2 for the criminal threats count should be stayed under section 654.
II. Relevant Authority
Section 654 provides that an act or omission punishable in different ways by
different provisions cannot be punished under more than one such provision. (§ 654.)
When section 654 applies, the proper procedure is to stay imposition of sentence on one
of the crimes, with the stay to become permanent on completion of the term imposed on
the other. (People v. Pearson (1986) 42 Cal.3d 351, 360; People v. Pena (1992) 7
Cal.App.4th 1294, 1312.)
The defendant may be found to have harbored a single intent if the offenses were
merely incidental to, or were the means of accomplishing or facilitating one objective,
resulting in the defendant being punished only once. (People v. Harrison (1989) 48
Cal.3d 321, 335.) “If, on the other hand, defendant harbored ‘multiple criminal
objectives,’ which were independent of and not merely incidental to each other, he may
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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.]” (Ibid.) On appeal, the court “must ‘view the evidence
‘in a light most favorable to the respondent and presume in support of the order the
existence of every fact the trier could reasonably deduce from the evidence. [Citation.]’
[Citation.]” (People v. McGuire (1993) 14 Cal.App.4th 687, 698.)
Making criminal threats is a specific intent crime that occurs when the defendant
“willfully threatens to commit a crime which will result in death or great bodily injury to
another person, 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 . . . .” (§ 422.) Section 422 was
enacted to punish those who try to instill fear in others. (People v. Felix (2001) 92
Cal.App.4th 905, 913.) Section 422 may be violated by a threat indirectly communicated
to the threatened person. (In re David L. (1991) 234 Cal.App.3d 1655, 1659.) The intent
required by section 422 is not the intent to actually carry out the threatened crime, but the
intent that the victim receive and understand the threat. (People v. Wilson (2010) 186
Cal.App.4th 789, 806.) The circumstances under which the threat is made give meaning
to the words used, and “threats are judged in their context.” (In re Ricky T. (2001) 87
Cal.App.4th 1132, 1137.)
An assault with a firearm occurs when a defendant willfully performs an act with a
firearm with the present ability to apply force with it. (§ 240.) An “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.” (People v. Williams (2001) 26 Cal.4th 779, 790.)
III. Section 654 Not Applicable
Whether a sentence should be stayed under section 654 is a question of fact for the
trial court, which is vested with broad discretion. We must affirm if there is substantial
evidence to support the trial court’s order. (People v. Jones (2002) 103 Cal.App.4th
1139, 1143.) Where, as in the instant case, the trial court made no express findings on
the multiple punishment issue, we examine whether substantial evidence supports its
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implied findings. (People v. Islas (2012) 210 Cal.App.4th 116, 129; People v. Nelson
(1989) 211 Cal.App.3d 634, 638.)
We believe that defendant’s acts revealed two objectives. In assaulting Deleon
with a firearm, defendant clearly displayed the objective of harming or killing Deleon. In
threatening Deleon, the objective was to instill fear in him. The assault was not merely a
means of bolstering the criminal threat. The trial court reasonably determined that
defendant went beyond the criminal objective of instilling fear and had the further
criminal objective to do an act that, by its nature, would probably and directly result in
the application of force to Deleon. In other words, defendant willfully intended to do an
act that exposed Deleon to an objective risk of injury, and when acting, he was
objectively aware of facts that would result in the application of force. (See CALCRIM
No. 875.) Therefore, even if one criminal objective of the assault with a firearm was to
assist the commission of a violation of section 422, defendant had an additional,
independent criminal objective in committing the assault with a firearm. Since section
654 prohibits multiple punishment for offenses only when the defendant had the same
intent and objective for all of the offenses, defendant’s punishment for assault with a
firearm and criminal threats did not violate section 654.
Moreover, even if, as defendant contends, the initial threat (“You are going to die
today”) formed part of the same course of conduct and indicated that defendant’s sole
intent was to put Deleon in fear for his life based on his present ability to shoot and
possibly kill him, the second threat was clearly motivated by a separate intent and
objective. Deleon grabbed defendant’s gun after he was assaulted, and a struggle
commenced between the two men. For all practical purposes, the assault was over at that
point. Defendant, however, in addition to struggling for the firearm, made a threat to
Deleon by means of his order to Mike, i.e., he told Mike to grab defendant and put him in
the room so that defendant could kill Deleon. Defendant clearly wished to put Deleon in
fear for his life again and make him desist from struggling with the gun, which was a
danger to defendant at that point. It cannot be said that the assault with a firearm was
incidental to the second threat or a means to accomplish it, since the struggle for the
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firearm was not an act initiated by defendant. In sum, even if the assault with a firearm
was intended merely to bolster the first threat to Deleon, the assault was over when the
second threat was made with an independent objective of causing Deleon to believe he
was engaged in a two-against-one battle he could not possibly win.
Although defendant argues that the second threat was too close in time to the first
to be considered separately, the length of time a defendant has a specific objective may
be interpreted to find “separate, although sometimes simultaneous, objectives under the
facts,” thus permitting multiple punishment. (People v. Latimer (1993) 5 Cal.4th 1203,
1212; see, e.g., People v. Harrison (1989) 48 Cal.3d 321, 336-338 [§ 654 does not
preclude punishment for each of multiple sexual offenses against same victim during a
six- or seven-minute attack, committed to achieve separate sexual gratification]; People
v. Trotter (1992) 7 Cal.App.4th 363, 368 [each of three successive shots at the same
person was a volitional act and a “separate intent to do violence”].) Because the
additional threat against Deleon increased defendant’s culpability, it was appropriate to
impose separate punishment in count 2. (People v. Harrison, at p. 335.) This is not
inconsistent with the prosecutor’s closing argument, where he referred to the two separate
threats against Deleon.
Accordingly, the record supports the court’s implicit finding that count 2 was not
based, or not solely based, on the same intent and objective as the offense committed in
count 1. There was no error in sentencing.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
BOREN, P.J.
We concur:
ASHMANN-GERST, J. HOFFSTADT, J.
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