Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, Ct. No. 09CF2224 Richard W. Stanford, Jr., Judge.
H. Reed Webb, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Kevin Vienna, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
MOORE, J.
Defendant was convicted of assault with a deadly weapon and making a criminal threat. He argues on appeal the trial court should have stayed the sentence on one of the counts pursuant to Penal Code section 654. The Attorney General agrees, as do we.
All statutory references are to the Penal Code.
I
FACTS
A detailed statement of facts is not necessary given the issue presented on appeal. It suffices to say that defendant, upset about his girlfriend Nataly Gutierrez’s decision to let a former boyfriend spend the night at her apartment, told her he wanted to break up with her. He went to her apartment that night and took a steak knife out of a kitchen drawer. He grabbed her by the neck and held the knife with the blade pointed at her. He told her something to the effect of “this is what you deserve, ” or “if you want to see other guys, this is what is going to happen to you.”
The jury found defendant guilty of making a criminal threat (§ 422; count one), assault with a deadly weapon (§ 245, subd. (a)(1); count two), and found that he used a deadly weapon (§ 12022, subd. (b)(1)) in making the threat. The court sentenced defendant to the low term of 16 months on the threat count and imposed a consecutive one-year term for the weapon enhancement. The court then imposed a concurrent low term of two years on the assault count.
II
DISCUSSION
Subdivision (a) of section 654 provides in pertinent 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 has been applied not only where there was but one “act” in the ordinary sense... but also where a course of conduct violated more than one statute and the problem was whether it comprised a divisible transaction which could be punished under more than one statute within the meaning of section 654.’ [Citation.] [¶] 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 be punished for any one of such offenses but not for more than one. (Neal v. State of California (1960) 55 Cal.2d 11, 19.)
The application of section 654 to the facts of a case is generally a question of fact for the trial court’s determination, which must be upheld if supported by substantial evidence. (People v. Avalos (1996) 47 Cal.App.4th 1569, 1583.) However, in a case such as this where the facts are conceded, the application of section 654 is a matter of law. (People v. Harrison (1989) 48 Cal.3d 321, 335.) Here, the act of pointing a knife at Gutierrez while holding her by the neck and telling her “this is what is going to happen to you, ” violated section 245, subdivision (a)(1), as well as section 422. There was but one act and one course of conduct, as the Attorney General properly concedes. We therefore order the sentence on count two (assault with a deadly weapon) stayed pursuant to section 654.
III
DISPOSITION
The judgment is modified as follows: The two-year sentence imposed on count two is stayed pursuant to section 654. The judgment as thus modified is affirmed. The superior court is directed to prepare an amended abstract of judgment reflecting the modification and forward certified copies of it to the Department of Corrections and Rehabilitation.
WE CONCUR: RYLAARSDAM, ACTING P. J., O’LEARY, J.