People v. Galayan CA2/8

Filed 5/19/16 P. v. Galayan CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 EIGHT

THE PEOPLE, B258290

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA371650)
v.

GENNADIY GALAYAN,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County.
Stephen A. Marcus, Judge. Affirmed in part and reversed in part.

Melanie K. Dorian, under appointment by the Court of Appeal, for Defendant and
Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Victoria B. Wilson and Idan Ivri,
Deputy Attorneys General, for Plaintiff and Respondent.

__________________________
 Defendant Gennadiy Galayan appeals from his convictions of attempted
premeditated murder, four counts of assault with a semiautomatic firearm, three counts of
false imprisonment of a hostage, two counts of dissuading a witness and one count of
corporal injury to a spouse.1 On appeal, he contends: (1) insufficient evidence supports
the false imprisonment of a hostage convictions; (2) the trial court had a sua sponte duty
to instruct on misdemeanor false imprisonment as a lesser included offense of false
imprisonment of a hostage; (3) it was an abuse of discretion to impose consecutive
sentences; and (4) Penal Code section 654 precludes a separate sentence for assault with a
firearm, false imprisonment of a hostage and dissuading a witness as to each of the three
victims.2 In addition, at our request, the parties provided supplemental briefing on issues
relating the application of section 654 to enhancements. We reverse the judgment as to
the sentence only and otherwise affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Viewed in accordance with the usual rules on appeal (People v. Zamudio (2008)
43 Cal.4th 327, 357), the evidence established that defendant and attempted murder
victim Eugenia S. were married in Russia in 1996. Their only child, A.S., was born in
Russia in 2000. In 2004, the family moved to the United States. When they divorced in
December 2006, defendant and Eugenia were awarded joint legal custody of A.S., but

1 As we discuss more fully in the text, four different victims were involved in
defendant’s crime spree. Defendant was charged by information with attempted
premeditated murder (count 1); assault with a semiautomatic firearm (counts 2, 5, 9, 13);
first degree burglary (count 3), corporal injury to a spouse (count 4); false imprisonment
of a hostage (counts 7, 11, 15); and dissuading a witness (counts 8, 12); various
enhancements were also alleged. A jury found defendant not guilty of burglary (count 3)
but guilty of all other charges; it also found true enhancements for great bodily injury
(count 1, 2, 4), personal firearm use (counts 1, 2, 4, 5, 7, 8, 9, 11, 12, 13, 15) and using
force to intimidate a witness (counts 8, 12). Defendant was sentenced to a total of 66
years, 8 months in prison. He timely appealed.

2 All future undesignated statutory references are to the Penal Code.

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Eugenia was awarded sole physical custody. In January 2008, defendant took A.S. to
Russia without Eugenia’s permission and refused to bring him back. Eugenia traveled to
Russia in February 2008 and brought A.S. back to the United States that June. Defendant
also returned to the United States but his visitation rights were terminated. By May 2010,
Eugenia had sole physical and legal custody of A.S. and defendant had no visitation
rights. Defendant had seen A.S. only from afar, when he watched A.S. playing on the
school playground.
In May 2010, Eugenia lived in a controlled access apartment building on Las
Palmas Avenue in Los Angeles. When Eugenia first moved into that building, she lived
in apartment No. 108, but by May 2010 she had moved into apartment No. 104. Victim
Alla Z. lived across the hall from Eugenia, in apartment No. 106. Victim Lyubov S. was
the apartment building manager and victim Jesus H. was a maintenance worker in the
building. Eugenia, Lyubov, Alla and defendant spoke Russian; Jesus spoke Spanish.
Although all spoke some English, they each testified with a translator.

1. Eugenia S. (Counts 1, 2, 4)

At about 1:30 p.m. on May 20, 2010, A.S. was in school when Eugenia parked in
the apartment building garage and took the elevator to the first floor. She was walking to
her apartment carrying grocery bags when she encountered defendant in the hallway.
Seeing that defendant was holding a gun, Eugenia dropped her bags and screamed for
help. While kicking her repeatedly, defendant told Eugenia to “shut up” and “stop
screaming,” and threatened to shoot her if she did not stop. Eugenia tried to run away,
but defendant caught her, pushed her to the ground and resumed kicking her; Eugenia did
not know whether he hit her with the gun, too. Defendant did not stop kicking Eugenia
until Lyubov and Jesus arrived at the scene.
After announcing he had come to kill Eugenia, defendant pointed the gun at
Lyubov and Jesus and ordered them to give him their cell phones. When Alla arrived at
the scene a few minutes later, defendant pointed the gun at her and reiterated that he was

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there to kill Eugenia. Defendant ordered Eugenia to accompany him to the school to pick
up A.S.
Eugenia was still on the ground when she noticed a police officer had arrived.
When defendant turned toward the officer, Lyubov and Alla ran into a passageway.
Defendant turned back toward Eugenia and started shooting. Eugenia did not know how
many times defendant shot her, but she recalled he shot her in the back as she tried to
crawl away.
Eugenia was transported by ambulance to Cedars-Sinai Hospital where she
received treatment for multiple-bullet wounds; two bullets that were lodged in her chest
required a second surgery to remove. It was stipulated that the bullets recovered from
Eugenia’s chest wound were fired from defendant’s Berreta, which was recovered at the
scene.
The day after the shooting, Eugenia was still hospitalized when she told Detectives
Nadine Hernandez and Steve Ramirez that, during the incident, defendant said, “Why
didn’t you just let me see my son? If you didn’t give me my son, I’m going to shoot you
in the head. Our child never wanted to live with you. Only me. I don’t care if I go to jail
but you won’t keep my child. He won’t live with you.” Hernandez did not ask Eugenia
whether defendant was speaking in English or in Russian.

2. Lyubov S. (Counts 9, 11, 12)

Lyubov was in the lobby with Jesus when she heard a “horrifying scream.” She
went with Jesus to investigate. When they got off the elevator on the first floor, Lyubov
saw shopping bags on the ground in front of apartment No. 109. Jesus was behind her as
Lyubov turned left down a hallway. Lyubov was terrified when, upon making the turn,
she saw defendant pointing a gun at her and Eugenia on the ground, covered in blood.
When Lyubov took out her cell phone to call the police, defendant instructed her (in
Russian) to throw the phone to him. Lyubov complied because she was afraid defendant
would shoot her if she refused. Jesus passed some napkins to Lyubov, who used them to
attend to Eugenia. When tenant Alla arrived a short while later, defendant directed her to

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stand next to Lyubov and Jesus. Defendant gave Lyubov permission to retrieve a piece
of cloth from the laundry room to use on Eugenia’s wounds. Lyubov was afraid
defendant would shoot her if she tried to escape. Eventually, Lyubov heard the elevator
doors open and saw two police officers look out. When defendant started shooting
Eugenia, Lyubov ran in the opposite direction, behind Alla. As she was running, Lyubov
felt a burning sensation in her back. Lyubov later discovered that she had been grazed by
a bullet.

3. Jesus H. (Counts 5, 7, 8)

Jesus’s account of events was consistent with Eugenia’s and Lyubov’s in all
material respects. Defendant, Lyubov and Eugenia spoke in a language that Jesus did not
understand. Jesus gave defendant his cell phone because he was afraid defendant would
shoot him if he did not. When the police arrived, defendant took cover in the alcove in
front of an apartment door and started shooting Eugenia. Apparently mistaking Jesus for
a perpetrator, the police shot Jesus three times. Jesus survived his wounds.

4. Alla Z. (Counts 13, 15)

Alla’s account was also consistent in all material respects. Alla had carried her
bags up the stairs to her first floor apartment when she heard Lyubov arguing with
someone in Russian. Before entering her apartment, Alla peeked around the corner. She
saw Eugenia on the ground, crying. Alla complied when defendant pointed a gun at her
and told her to drop everything and to come towards him. Defendant reacted to the
arrival of the police by shooting at Eugenia.

A. Defense Case

1. Defendant

Defendant worked as a taxi driver and purchased the Berreta for self-protection; he
did not have a concealed weapon permit.

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 In May 2010, defendant was homeless and sleeping on a friend’s sofa. Because he
had nowhere to leave his belongings, he carried them around with him in a briefcase. On
the day of the shooting, May 20, 2010, defendant went to A.S.’s school to see him on the
playground, but A.S. was not there. Defendant decided to go to Eugenia’s apartment to
talk to her about allowing him to see A.S. Defendant packed his brief case with gifts for
A.S. and many photographs of the family in happier times, which he thought might move
Eugenia; he also packed the unloaded Berretta, ammunition for the Berretta, his passport,
two Phillips head screw drivers and plastic gloves.
Defendant did not have a key or access code to enter Eugenia’s apartment
building, but he was let in by someone exiting the building. Once inside, he knocked on
the door to apartment No. 108 (the apartment in which he thought Eugenia still lived).
When no one answered, defendant placed the photographs on the ground in front of the
door and waited for Eugenia’s arrival. During the next 30 or 40 minutes, defendant went
downstairs several times to look for Eugenia. When defendant saw her car approaching,
he went back upstairs and stood away from apartment No. 108 so Eugenia could not see
him when she arrived and would have time to see the photographs. His plan was to
surprise Eugenia after she opened the apartment door and to go into her apartment. But
when Eugenia got off the elevator, she walked in an unexpected direction and
encountered defendant standing in the hallway. When defendant said, “Hi,” Eugenia
dropped her bags, fell to the ground and started screaming for help. Defendant tried to
convince her to stop screaming but when that failed, he took the unloaded gun out of his
briefcase. Eugenia jumped up and ran away. Defendant ran after her with the intention
of calming her down. Defendant testified, “I knock her down, and I hit her a couple of
times, and after I hit her a couple of times, she then quiet and stopped screaming.” When
Eugenia stopped screaming, defendant stopped hitting her. Defendant pointed the gun at
Eugenia to scare her. Within a few seconds, Lyubov and Jesus arrived and Eugenia
yelled to them that defendant had a gun and to call the police. When Lyubov and Jesus
took out their cell phones, defendant moved towards them and told them not to call. To
prevent them from calling the police, defendant showed them the gun so they would

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know he was armed, but he did not point it at them. Also to prevent them from calling
the police, defendant ordered Lyubov and Jesus to give him their cell phones, but he did
not tell him that they could not leave. After Lyubov and Jesus gave their phones to
defendant, defendant loaded the gun. Defendant explained, “I loaded the gun when the
manager and the Mexican worker came in. After I took the phones from them, I took the
magazine and loaded the pistol. . . . I was scared when this Mexican guy was standing
next to me. He wasn’t doing anything. He was standing there motionless, but I was
afraid that he was going to get in my way.” Alla arrived a few minutes after defendant
had loaded the gun. Lyubov and Alla told defendant that Eugenia was wrong for keeping
A.S. from him and urged him to put away the gun.
The police arrived about 10 or 15 minutes after defendant loaded the gun.
Defendant recalled seeing two police officers and hearing loud yelling, but does not
remember what happened next. “[E]verything went dark and blank, and I saw no one and
nothing.” He did not hear gunshots or screaming. He knows he fired his gun because he
saw the expended bullets, but does not remember doing so.

2. Post Traumatic Stress Disorder (PTSD)

Defendant testified that he is an ethnic Armenian born in Azerbaijan. After two
years in the Russian army, he witnessed the ethnic strife between the Azerbaijanis and the
Armenians. Following the collapse of the Soviet Union, he participated in the fighting
and saw people he knew killed and maimed. He still has terrible nightmares about his
combat experiences; he also has occasional blackouts. In May 2010, he was very
depressed about not having seen A.S. for two years. He did not seek or obtain help. At
the time of trial, he was seeing a doctor about his depression, taking an antidepressant
and something to help him sleep.
Dr. Haig Kojian, an expert in PTSD, described the symptoms of PTSD. Dr.
Kojian met with defendant three times. Some of their communications were through a
Russian translator, some were in Armenian and some were in English. Defendant did not
appear delusional or psychotic. Dr. Kojian diagnosed defendant with PTSD as a result of

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his combat experiences and major depression as a result of being unable to see his child.
Dr. Kojian did not believe defendant was exaggerating the traumatic experiences of his
life; on the contrary, he thought defendant was minimizing.

DISCUSSION

A. Sufficiency of the Evidence of False Imprisonment of a Hostage

Defendant’s challenge to the sufficiency of the evidence is limited. He contends
only that there was insufficient evidence to support his convictions of false imprisonment
of a hostage in violation of section 210.5 (counts 7 as to Jesus, 11 as to Lyubov, and 15 as
to Alla). He argues there was no evidence of any threat of imminent arrest or that he
intended to avoid that threat by detaining the victims. Rather, he suggests the only
“rational” inference from the evidence was that defendant was using the victims “as
leverage to force Eugenia to agree to grant him visitation rights; the thought of being
arrested or evading the police did not enter his mind, and there was no credible evidence
to the contrary.” We disagree.
We begin with the standard of review for any challenge to the sufficiency of the
evidence. We must review the whole record in the light most favorable to the
prosecution, presuming in support of the judgment the existence of every fact the jury
could reasonably have deduced, to determine whether there is evidence that is reasonable,
credible, and of solid value such that a reasonable trier of fact could find the defendant
guilty beyond a reasonable doubt. (Zamudio, supra, 43 Cal.4th at p. 357.) “A reversal
for insufficient evidence ‘is unwarranted unless it appears “that upon no hypothesis
whatever is there sufficient substantial evidence to support” ’ the jury’s verdict.
[Citation.]” (Ibid.) The standard is the same where the prosecution relies primarily on
circumstantial evidence. “We ‘must accept logical inferences that the jury might have
drawn from the circumstantial evidence. [Citation.]’ [Citation.] ‘Although it is the
jury’s duty to acquit a defendant if it finds the circumstantial evidence susceptible of two
reasonable interpretations, one of which suggests guilt and the other innocence, it is the

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jury, not the appellate court that must be convinced of the defendant’s guilt beyond a
reasonable doubt. [Citation.]’ [Citation.] Where the circumstances reasonably justify
the trier of fact’s findings, a reviewing court’s conclusion the circumstances might also
reasonably be reconciled with a contrary finding does not warrant the judgment’s
reversal. [Citation.]” (Id. at pp. 357-358.) We now turn to the elements of the offense.
We first distinguish misdemeanor false imprisonment, felony false imprisonment
and the crime here – false imprisonment of a hostage. “False imprisonment is the
unlawful violation of the personal liberty of another.” (§ 236.) It is a misdemeanor
unless it is “effected by violence, menace, fraud, or deceit,” in which case it is a felony.
(§ 237.) Known as “false imprisonment of a hostage,” violation of section 210.5 results
in greater punishment where the false imprisonment is committed “for purposes of
protection from arrest, which substantially increases the risk of harm to the victim, or for
purposes of using the person as a shield . . . .” To satisfy the “for purposes of protection
from arrest” element of section 210.5, there must be proof of a “threat or risk of imminent
arrest.” (People v. Gomez (1992) 2 Cal.App.4th 819, 825; CALCRIM No. 1241
[conviction requires finding defendant “faced a threat or risk of imminent arrest” and that
he “intended to protect himself against that threat of imminent arrest by restraining the
other person.”].)3
“Imminent arrest” within the meaning of section 210.5 has not been defined by
any court. But we take guidance from four cases discussing the meaning of “imminent
arrest” in the context of special circumstance murder “committed for the purpose of
avoiding or preventing a lawful arrest, or perfecting or attempting to perfect, an escape
from lawful custody.” (§ 190.2, subd. (a)(5); see People v. Cummings (1993) 4 Cal.4th

3 Gomez was disapproved on other grounds in People v. Lewis (2008) 43 Cal.4th
415, 419, fn. 29 [disapproving cases to the extent they held robbery is a lesser included
offense of kidnapping for robbery for purposes of the rule barring conviction on greater
and necessarily included lesser offense]. Lewis in turn was disapproved on other grounds
in People v. Black (2014) 58 Cal.4th 912, 919 [disapproving cases to the extent they held
defendant was denied fair trial by failure to grant additional peremptory challenges].
Gomez’s analysis of section 210.5 is unaffected by subsequent negative history.

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1233 (Cummings); People v. Coleman (1989) 48 Cal.3d 112 (Coleman); People v.
Bigelow (1984) 37 Cal.3d 731 (Bigelow); People v. Vorise (1999) 72 Cal.App.4th 312
(Vorise).)
In Bigelow, our Supreme Court held section 190.2, subdivision (a)(5) should be
limited to cases in which “the arrest is imminent.” (Bigelow, supra, 37 Cal.3d at p. 752.)
It found the following evidence was not sufficient to support that element of the special
circumstance: the defendants escaped from a Canadian prison in July 1980 and made
their way to California; in August 1980, after the victim picked up the hitchhiking
defendants, they forced the victim to drive them to Los Angeles; but on the way, they
instructed him to exit the freeway and drive to a remote location where they shot him and
left his body. The Bigelow court reasoned that, at the time they killed the victim, the
defendants “were not under arrest and were not threatened with imminent arrest.
Although the prosecutor surmised that [the victim] was killed so that he would not report
the robbery and kidnapping – a report which might eventually lead to the men’s arrest –
this argument is totally speculative.” (Ibid.)
In Coleman, supra, 48 Cal.3d at pages 145-146, the section 190.2, subdivision
(a)(5) finding was based on evidence the defendant was blocking the victim from leaving
the house and threatening her with a shotgun when the victim yelled to a neighbor to call
the police; the defendant immediately killed the victim with a single shotgun blast.
Following Bigelow, the Coleman court found this evidence insufficient to support the
special circumstance, reasoning that there was no evidence the neighbor could or did hear
the victim.
In Cummings, supra, 4 Cal.4th 1233, the defendants, who had been involved in
recent criminal activity, murdered the police officer who detained them for a traffic stop.
Our Supreme Court found this evidence was sufficient to support the section 190.2,
subdivision (a)(5) finding. It reasoned the circumstances of the defendants’ detention
“would lead them and any objective observer to believe that an arrest was highly likely.
Arrest was or appeared to be ‘imminent.’ ” (Id. at p. 1300.)

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 In Vorise, supra, 72 Cal.App.4th 312, the evidence showed the defendant “pulled
out his loaded gun, pointed it at the victim and said, ‘Oh, no, you aren’t’ in response to
[the victim’s] statement she was going to call the police. Vorise admitted . . . that he did
not want ‘to get in trouble’ for possessing the stolen bicycle or the loaded, concealed
firearm. From this evidence – the timing of when Vorise drew his gun, his statement at
the time and his testimony at trial – a reasonable jury could infer that Vorise reasonably
believed he would be imminently arrested for being in possession of the stolen bicycle
and loaded, concealed weapon if the victims were allowed to proceed and that he
committed the murder to avoid that arrest. . . . Unlike Bigelow and Coleman, here there
was a direct connection between the perceived threat of imminent arrest and the murder;
the special circumstance finding here was not based on mere speculation.” (Id. at p. 322.)
The facts in this case are almost identical to those in Vorise. Defendant testified
that he had already hit Eugenia and pointed an unloaded gun at her by the time Lyubov
and Jesus arrived. He showed them the unloaded gun and took away their cell phones to
prevent them from calling the police, but was not sure whether they had managed to do
so before he got their phones. Defendant explained he “loaded the gun when the manager
and the Mexican came in. After I took the phones from them, I took the magazine and
loaded the pistol. . . . I was scared when this Mexican guy was standing next to me. He
wasn’t doing anything. He was standing there motionless. But I was afraid that he would
get in my way.” When Alla arrived, defendant ordered her to drop her bags and walk
towards him.
From this evidence, a reasonable jury could infer that defendant believed he would
be imminently arrested for assaulting Eugenia if the victims were allowed access to their
cell phones or to leave the hallway, and that he falsely imprisoned them to avoid that
arrest. An objective observer could also reach the conclusion that defendant would be
imminently arrested if he did not restrain the victims so that they would not “get in his
way.” Lyubov and Jesus heard the screams from the lobby, Alla from the first floor hall.
It was reasonable to conclude that one or more had called the police. As it turns out,
police had been called and arrived minutes later.

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 Defendant’s argument that this case is like Coleman because there was no
evidence that any of the neighbors heard Eugenia’s calls for help or actually called 911 is
contrary to the evidence. First, Lyubov and Jesus both testified they heard Eugenia
screaming. Second, from the arrival of a number of armed police officers within 15
minutes, it is reasonable to infer that someone called the police. Also unavailing is
defendant’s argument that he had no reason to fear imminent arrest because he took away
the victims’ cell phones. Finally, that defendant did not attempt to use any of the victims
as shields is not evidence that he did not restrain them to avoid imminent arrest.

B. Instructions on Lesser Included Offenses of False Imprisonment of a Hostage

Defendant contends he was denied due process and a fair trial by the trial court’s
failure to sua sponte instruct on misdemeanor false imprisonment as a lesser included
offense of false imprisonment of a hostage. We find no error.
“The trial court has a duty to instruct the jury sua sponte on all lesser included
offenses if there is substantial evidence from which a jury can reasonably conclude the
defendant committed the lesser, uncharged offense, but not the greater. [Citations.]”
(People v. Brothers (2015) 236 Cal.App.4th 24, 29.) There is no such duty when there is
no evidence that the offense was less than that charged. (People v. Campbell (2015)
233 Cal.App.4th 148, 162.) We review the trial court’s failure to instruct on a lesser
included offense de novo, viewing the evidence in the light most favorable to the
defendant. (Brothers, at p. 30.)
A lesser offense is necessarily included in a greater offense if the statutory
elements of the greater offense include all of the elements of the lesser offense, such that
the greater offense cannot be committed without also committing the lesser offense.
(People v. Banks (2014) 59 Cal.4th 1113, 1160, overruled on another point in People v.
Scott (2015) 61 Cal.4th 363, 391, fn. 3.) False imprisonment of a hostage is defined in
section 210.5 as follows:
“Every person who commits the offense of false imprisonment, as defined
in Section 236, against a person for purposes of protection from arrest,

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 which substantially increases the risk of harm to the victim, or for purposes
of using the person as a shield is punishable by imprisonment pursuant to
subdivision (h) of Section 1170 for three, five, or eight years.”

Thus, false imprisonment of a hostage (§ 210.5) cannot be committed without committing
misdemeanor false imprisonment (§ 236). Accordingly, misdemeanor false
imprisonment is a lesser included offense of false imprisonment of a hostage. The
Attorney General agrees.
Although misdemeanor false imprisonment is a lesser included offense of false
imprisonment of a hostage, the trial court had no sua sponte duty to instruct on
misdemeanor false imprisonment in this case, because there was no evidence from which
a rational trier of fact could conclude defendant committed only misdemeanor false
imprisonment. The only reasonable inference from the evidence that defendant detained
the victims after they came upon him while he was viciously beating Eugenia, and
defendant’s own testimony explaining his actions, is that defendant’s sole purpose in
violating the victims’ liberty was to protect himself against the imminent threat of arrest
posed by the victims. Nor can there be any dispute that restraining the victims
substantially increased the risk of harm to them. (§ 210.5.)

C. Sentencing Issues

Defendant raises two sentencing issues. He contends: (1) section 654 bars
separate punishments for assault with a firearm, false imprisonment of a hostage and
dissuading a witness when committed against a single victim; and (2) imposition of
consecutive sentences on some counts was an abuse of discretion. In addition, we asked
for supplemental briefing on two issues (1) if we were to conclude that the sentences for
false imprisonment of a hostage and dissuading a witness (counts 7 and 8 as to Jesus,
counts 11 and 12 as to Lyubov) were subject to section 654, would the related
enhancements also be subject to the statute; and (2) whether the section 654 stays of only

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the enhancements (not the underlying sentence) on counts 5, 9 and 15 were unauthorized
sentences.4
We conclude: (1) section 654 barred only separate punishment for false
imprisonment of a hostage and dissuading a witness as to Jesus (counts 7 and 8) and
Lyubov (counts 11 and 12); (2) when sentence on the underlying offense is stayed
pursuant to section 654, the attendant enhancements must also be stayed; and
(3) section 654 does not bar imposition of the same enhancement on each separately
punishable substantive offense.
1. The Sentence
a. The base term
Defendant was sentenced to a total of 66 years, 8 months in prison. The trial court
selected count 1 (attempted murder of Eugenia) as the base term. It sentenced defendant
to 25 years to life on that count, comprised of the 9-year high term for the attempted
murder, plus 25 years to life for a section 12022.53, subdivision (d) enhancement for
personal discharge of a firearm causing great bodily injury. The trial court stayed all
other enhancements found true as to count 1. (See § 12022.53, subd. (f) [only one
§ 12022.53 enhancement may be imposed per crime].)5 Pursuant to section 654, the trial

4 We also asked the parties to brief whether the stay of the enhancement on count 13
was also unauthorized. In fact the trial court imposed, but did not stay, an enhancement
on that count. Both parties pointed out our error, and we do not address count 13
separately.

5 The stayed enhancements on count 1 were for personal firearm use, personal and
intentional discharge of a firearm, gang participation, and personal infliction of great
bodily harm. (§§ 12022.53, subds. (b), (c), (d); 12022.7, subd. (e).) We note here the
trial court properly imposed and stayed the sentences on the multiple gun use
enhancements after imposing the 25-years-to-life enhancement pursuant to
section 12022.53, subdivision (d). However, the enhancement for inflicting great bodily
injury, pursuant to section 12022.7, subdivision (e), is an enhancement of a different
nature than the gun use enhancements. Enhancements involving different conduct may
each be added consecutively. (People v. Ahmed (2011) 53 Cal.4th 168.) If the court
chooses not to impose punishment on the section 12022.7, subdivision (e) enhancement,
however, it must either strike the enhancement, which it has authority to do under section

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court imposed but stayed sentence on the assault with a firearm conviction as to Eugenia
(count 2).
b. Concurrent sentences
The trial court imposed concurrent sentences for false imprisonment of a hostage
and the attendant section 12022.5, subdivision (a) gun use enhancement as to Jesus
(count 7) and Lyubov (count 11).
c. Consecutive sentences
Not including enhancements, the trial court imposed the following one-third the
middle base term sentences to run consecutively to count 1: one year for corporal injury
to a spouse (count 4); two years for assault with a firearm as to Jesus (count 5); two years
for assault with a firearm as to Lyubov (count 9); two years for assault with a firearm as
to Alla (count 13); three years for dissuading a witness as to Jesus (count 8); three years
for dissuading a witness as to Lyubov (count 12); and one year, eight months for false
imprisonment of a hostage as to Alla (count 15).
d. Section 654 and the Enhancements
The jury found true a section 12022.5, subdivision (a) personal gun use
enhancement on each count (except attempted murder). The trial court imposed the
enhancement consecutive to the base term on just one crime associated with each victim:
 Count 4: Eugenia, corporal injury to a spouse (one year, four months);6
 Count 8: Jesus, dissuading a witness (ten years);
 Count 12: Lyubov, dissuading a witness (four years);
 Count 13: Alla, assault with a firearm (one year, four months).

1385, or strike the punishment for it. With very limited exceptions, none of which are
applicable here, enhancements should not be stayed; they should be either imposed or
stricken. (People v. Bradley (1998) 64 Cal.App.4th 386, 390.) “Unless a statute says
otherwise [e.g., section 654], an enhancement may be imposed or stricken, but . . . may
not be stayed; to do so is an illegal sentence. [Citation.] [Citation.]” (People v. Haykel
(2002) 96 Cal.App.4th 146, 151.)

6 As to count 4, a section 12022.7, subdivision (e) great bodily injury enhancement
was also pled and proved. The trial court imposed a consecutive one year, four months
for that enhancement.

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As to the remaining counts, the trial court either included the enhancement as part of a
concurrent sentence (counts 7 and 11), or imposed a consecutive sentence but stayed
sentence only on the attendant enhancement (counts 5, 9 and 15).
2. The Trial Court Stated Adequate Reasons for Imposing Consecutive
Sentences
Defendant challenges the consecutive sentences imposed on counts 4, 5, 8, 9 12,
13 and 15. He argues the trial court did not state adequate reasons for imposing
consecutive sentences and that defendant “is not a violent criminal with no regard for
public safety, as the court found.” We find no error.
The trial court is required to state its reasons for selecting consecutive sentences.
(§ 1170, subd. (c).) But “there is no requirement that, in order to justify the imposition of
consecutive terms, the court must find that an aggravating circumstance exists.
(See § 669; Cal. Rules of Court, rule 4.425(a), (b).)7 Factual findings are not required.
. . . [T]he reasons given for imposing a consecutive sentence need only refer to the
‘primary factor or factors’ that support the decision to impose such a sentence. (Cal.
Rules of Court, rule 4.406(a), (b); § 1170, subd. (c); [citation].)” (People v. Black (2007)
41 Cal.4th 799, 822, overruled on other grounds in People v. Cunningham (2007)
546 U.S. 270.) Some of the criteria the trial court may consider in deciding between
concurrent and consecutive sentences are whether the crimes had multiple objectives,
whether they involved separate acts or threats of violence and whether they were
committed in a short span of time. (Rule 4.425.) The trial court may not use as the
reason for selecting a consecutive sentence a fact that was an element of the crime, used
to impose the upper term, or to enhance the sentence. (Rule 4.425.)
Here, at the beginning of its pronouncement of the sentence, the trial court
explained why it was selecting the high term for attempted murder: “The crime involved
great violence, great bodily harm. The fact that many of the victims in this particular
case were particularly vulnerable. The fact that the defendant was armed with or used a

7 All future rule references are to the California Rules of Court.

16
weapon. Potentially the fact that the defendant threatened witness although it’s in sort of
a different situation [¶] Also when I eventually sentence the defendant some of the
sentences are going to be concurrent instead of consecutive, and finally the defendant
engaged in violent conduct that indicates that he’s a serious danger to society, and I’m
going to indicate the reason for what is that when the police arrived at the location and
they were there and the situation could have been defused and no one hurt, the defendant
chose to fire several bullets into his wife indicating a total and complete disregard for
societal – I mean they were actually right there, the police, and he still attempted to kill
her.”
Defendant did not object to the adequacy of the trial court’s statement of reasons
for making some sentences consecutive. The point on appeal is thus waived. (People v.
Scott (1994) 9 Cal.4th 331, 352-356.) Even assuming the error was not waived, the trial
court’s statement, even if concise, was sufficient to satisfy its duty to state reasons for
imposing consecutive sentence by referring to the “primary factors” underlying its
sentencing choice.
3. Section 654 and the Sentences for Assault With a Firearm, False
Imprisonment of a Hostage and Dissuading a Witness
Defendant contends section 654 bars imposition of separate sentences on the
convictions for assault with a firearm, false imprisonment of a hostage and dissuading a
witness as to Jesus (counts 5, 7 and 8) and Lyubov (counts 9, 11 and 12), and the
convictions for assault with a firearm and false imprisonment of a hostage as to Alla
(counts 13, 15). Defendant reasons he should be sentenced to one term for each victim
because all eight crimes arose from the single act of pointing a gun at the three victims
and in doing so he had a single criminal objective – to prevent the victims from
contacting the police.8 We agree only as to the sentences imposed on the false

8 Section 654 does not preclude multiple punishments for an act of violence against
multiple victims. (People v. Newman (2015) 238 Cal.App.4th 103 (Newman).)
Defendant does not dispute that he may be separately punished for the crimes committed
against each of the three victims other than his wife – Jesus, Lyubov and Alla. He argues

17
imprisonment and dissuading a witness convictions as to Jesus (counts 7 and 8) and
Lyubov (counts 11 and 12).
“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.” (§ 654.) In Newman, supra, 238 Cal.App.4th 103, we recently explained that
section 654 “generally precludes multiple punishments for a single physical act that
violates different provisions of law [citation] as well as multiple punishments for an
indivisible course of conduct that violates more than one criminal statute. [Citations.]”
(Id. at pp. 111-112.) Of the exceptions to section 654, we are concerned here with the
exception for “a course of conduct if the defendant ‘ “entertained multiple criminal
objectives which were independent of and not merely incidental to each other . . . .” ’
[Citation.]” (Id. at p. 112.) The “multiple objectives” exception also applies where the
defendant commits two crimes in pursuit of two independent, albeit simultaneous,
objectives, and permits separate sentencing. (People v. Douglas (1995) 39 Cal.App.4th
1385, 1394.)
Application of the multiple objective exception “depends on the intent and
objective of the actor. If all of the offenses were incident to one objective, the defendant
may be punished for any one of such offenses but not for more than one.” (Newman,
supra, 238 Cal.App.4th at p. 112, internal quotations and citations omitted.) Whether the
defendant had one or more criminal objectives is a factual determination, which we
review for substantial evidence. (People v. Leonard (2014) 228 Cal.App.4th 465, 499
(Leonard); People v. Louie (2012) 203 Cal.App.4th 388, 398 (Louie); People v. Saffle
(1992) 4 Cal.App.4th 434, 438.)
Louie, supra, 203 Cal.App.4th 388, offers guidance. In that case, Louie and Ek
were convicted of attempted murder, street terrorism, arson, dissuading a witness and
criminal threats based on evidence that they were members of a criminal street gang

only that section 654 bars multiple punishment for more than one crime committed
against a single victim under the circumstances.

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active in the neighborhood in which the victim lived. In one encounter, two gang
members (not defendants), threatened the victim that they would come back with a gun.
About two months later, the victim called the police about gang members yelling and
shooting guns. Not long after that, the victim was looking out the front door of her
apartment at several people, including Louie and Ek, when Ek said to her, “ ‘Fuck you.
You’re a cop caller. Go inside, bitch. You’re going to get yours . . . .’ ” (Id. at p. 392.)
The victim closed the door. Fifteen minutes later, she heard breaking glass and saw her
curtains go up in flames. The victim filed a police report. Someone came to the
apartment and threatened to strike back if she testified. Two or three weeks later, the
victim informed police that she had seen Ek. That day, Ek pointed a gun at her, called
her a “cop-calling bitch,” and said she was going to get hers, just like the night of the fire.
(Id. at p. 391.)
The appellate court held section 654 did not preclude Ek being separately
punished for witness intimidation and arson, where a reasonable interpretation of the
evidence was that Ek harbored multiple criminal objectives: (1) punish the victim for
reporting past criminal activities of the gang; (2) prevent the victim from reporting
current criminal activities and (3) warn people what would happen to them if they
reported the gang’s criminal activities. (Louie, supra, 203 Cal.App.4th at pp. 398-399.)
Further, the evidence showed a 15-minute gap between the verbal threat and the fire. (Id.
at p. 399.) “Because defendants’ course of conduct consisting of two criminal acts was
incident to several objectives and was separated in time by an interval sufficient to allow
them to reflect and renew their intent, the court properly sentenced defendants for the
crimes of arson and dissuading a witness.” (Ibid.) But the court came to a different
conclusion with respect to Ek’s argument that section 654 precluded separate sentences
for dissuading a witness and making criminal threats arising out of his return to the
victim’s apartment after the arson. The court reasoned that the “threat was merely the
method employed to attain the objective of dissuading the witness. [Citation.]” (Ibid.)
We turn next to an application of these cases to the facts of this case.

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 a. Multiple Criminal Objectives: Assault with a firearm on the one
hand, and false imprisonment of a hostage and dissuading a
witness on the other

The facts of this case support the trial court’s implicit finding that defendant
harbored one criminal objective when he committed the assaults with a firearm against
Jesus, Lyubov and Alla (counts 5, 9 and 13) and a second criminal objective when he
committed the false imprisonment of a hostage against the same three victims (counts 7,
11 and 15) and the dissuading a witness against Jesus and Lyubov only (counts 8 and
12).9 A rational fact finder could conclude that defendant committed the assault with a
firearm with the objective of preventing the victims from interfering with what he was
doing to Eugenia. Once he accomplished that objective, defendant’s criminal objective
changed to protecting himself from imminent arrest.
b. Single Criminal Objective: False imprisonment of a hostage and
dissuading a witness

We come to a different conclusion with respect to the crimes of false
imprisonment of a hostage as to Jesus and Lyubov (counts 7 and 11) and dissuading a
witness as to those victims (counts 8 and 12).10
Section 210.5 defines false imprisonment of a hostage as false imprisonment “for
purposes of protection from arrest . . . .” As relevant here, dissuading a witness is defined
as preventing a victim or witness from reporting a crime. (§ 136.1, subds. (b)(1), (c)(1)
[felony].) The only reasonable inference from the evidence is that defendant harbored a
single criminal objective when he violated sections 136.1 and 210.5. That objective was
to protect himself from arrest. One of the means he used to do so was to violate section
136.1 by preventing Jesus and Lyubov from reporting the criminal conduct they had

9 Defendant was not convicted of dissuading a witness as to Alla; only assault with
a firearm (count 12) and false imprisonment of a hostage (count 15).

10 Part 3. b. applies only to Jesus and Lyubov. Because defendant was not convicted
of dissuading a witness as to Alla our discussion in this section does not apply to her.

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observed, and the other means was to keep the hostages in one location away from access
to the police. Although the means were separate, the criminal objectives were the same.
In order to effect the application of section 654, we could either modify the
sentence or remand for another sentencing hearing. In light of the trial court’s careful
and complex sentencing, it would be unwise for us to modify defendant’s sentence on our
own. “Courts view an aggregate prison term as one term made up of interdependent
components. Thus, we cannot retain portions of the prior judgment; the invalidity of
some of the components of [a defendant’s] sentence requires us to remand for
resentencing. [Citations.]” (People v. Baylor (1989) 207 Cal.App.3d 232, 237.) Instead
we will remand to allow the trial court to conduct a new sentencing hearing which shall
include the application of section 654 in the manner we have set forth. In applying
section 654, the court shall identify the statute (either § 210.5 or § 136.1, subd. (c)(1))
that has the “longest potential term of imprisonment” (§ 654, subd. (a)), sentence on that
statute, and stay the sentence on the other offense.
4. Section 654 and the Enhancements
Although we chose not to modify the sentence, some of the issues raised by the
parties bear further comment to the extent they may affect the trial court’s sentence on
remand.
The parties have addressed whether certain aspects of the sentence are
unauthorized. An unauthorized sentence “is subject to being set aside judicially and is no
bar to the imposition of a proper judgment thereafter, even though it is more severe than
the original unauthorized pronouncement.” (People v. Serrato (1973) 9 Cal.3d 753, 764,
disapproved on another point in People v. Fosselman (1983) 33 Cal.3d 572, 583; People
v. Vizcarra (2015) 236 Cal.App.4th 422, 433 [when the trial court imposes an
unauthorized sentence, the People may raise the point for the first time on the defendant’s
appeal].)
First, the parties agree that, if sentence on a substantive offense is stayed pursuant
to section 654, sentence on all enhancements relating to that offense must also be stayed.
(People v. Calles (2012) 209 Cal.App.4th 1200, 1221 [“When the base term of a sentence

21
is stayed under section 654, the attendant enhancements must also be stayed.
[Citation.]”].) As the parties concede in their supplemental briefs, when the trial court on
remand imposes a section 654 stay on either (1) the crimes of false imprisonment of a
hostage as to Jesus and Lyubov (counts 7 and 11) or (2) dissuading a witness as to those
victims (counts 8 and 12), the trial court shall also stay the enhancements that attach to
the stayed counts.
Second, the parties agree that, if sentence on a substantive offense is not stayed
pursuant to section 654, sentence on the firearm use enhancements relating to that offense
should not be stayed. As a general rule, enhancements are subject to section 654.11
(Ahmed, supra, 53 Cal.4th at p. 163.) But, there is a distinction between multiple
enhancements imposed on the same crime and the same enhancement imposed on
multiple crimes. Where a single criminal act has resulted in convictions of multiple
crimes that are separately punishable, section 654 does not bar multiple punishments for
the same enhancement pled and proved as to each such crime. (People v. Wooten (2013)
214 Cal.App.4th 121, 130-132.) “Just as the use of a single gun against multiple victims
admits separate sentences for an assault against each individual, so too separate
enhancements—even under the same statute—may be imposed for each conviction
arising out of a separate criminal act. [Citations.] Conversely, a string of offenses
against a single victim may yield multiple convictions of substantive offenses when each
is committed for a different purpose. [Citation.]” (Ibid.) By contrast, when multiple
enhancements are pled and proved as to the same crime, section 654 bars multiple
punishment of the same aspect of the criminal act (e.g., multiple gun use enhancements),
but not for different aspects of the same criminal act (e.g. separate enhancements for gun
use and infliction of great bodily injury). (Ahmed, supra, 53 Cal.4th at pp. 163-164.)

11 Before applying section 654 to multiple enhancements, the trial court must look
first to the relevant sentencing statutes. If those statutes “provide the answer, the court
should apply that answer and stop there. Because specific statutes prevail over general
statutes, consideration of the more general section 654 will be unnecessary. Only if the
specific statutes do not provide the answer should the court turn to section 654.” (Ahmed,
supra, 53 Cal.4th at pp. 59-60.)

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 Here, defendant acknowledges that, if this court finds “separate objectives and
indivisible acts” underlying the assault with a firearm convictions on the one hand, and
the false imprisonment of a hostage and dissuading a witness convictions on the other
hand, “failure to impose the enhancements was error.” This is exactly the conclusion we
have reached in section C.3. of our opinion. But we have come to a contrary conclusion
as to the false imprisonment of a hostage convictions and the dissuading a witness
convictions. Accordingly, the trial court shall stay the enhancement attendant to any
count as to which it stays sentence on the substantive crime, and impose the enhancement
on any sentence that is not stayed.

DISPOSITON

The judgment is reversed as to the sentence only. In all other respects, the
judgment is affirmed.

RUBIN, J.
WE CONCUR:

BIGELOW, P. J.

GRIMES, J.

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