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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

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.

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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
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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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