Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County. No. VCF215605A, Kathryn T. Montejano, Judge.
Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, David A. Rhodes and Jesse Witt, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
DAWSON, J.
A jury convicted Carlos Alberto Huerta (appellant) as charged in counts 1, 2, and 3 of attempted murder done willfully, deliberately and with premeditation (Pen. Code, §§ 664, 187, subd. (a)); in counts 4, 5, and 6 of assault with a deadly weapon (§ 245, subd. (a)(1)); in counts 7 and 8 of making a criminal threat (§ 422); and in counts 9 and 10 of assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)). The jury found true that each offense was committed for the benefit of a criminal street gang (§ 186.22, subd. (b) and that appellant was 16 years or older at the time of the offenses (Welf. & Inst. Code, § 707, subd. (d)(1)). It also found true that appellant personally inflicted great bodily injury in counts 1, 2, 4 and 5 (§ 12022.7, subd. (a)), and that he personally used a deadly weapon in counts 1 and 2 (§ 12022, subd. (b)(1)). The trial court sentenced appellant to a determinate term of 14 years and an indeterminate term of 53 years to life.
All further statutory references are to the Penal Code unless otherwise stated.
The court’s minutes for the sentencing hearing on June 9, 2010, conflict with the verdicts because the minutes indicate the convictions on counts 9 and 10 were pursuant to subdivision (b)(1) of section 245. The minutes should instead reflect that the two convictions were pursuant to subdivision (a)(1) of section 245. The same error was repeated in the abstract of judgment filed June 10, 2010.
Appellant contends that the trial court erroneously denied his Wheeler/Batson motions. He also claims sentencing errors: (1) that section 654 bars imposing an enhancement for both use of a deadly weapon and great bodily injury in counts 1 and 2; (2) that the court cannot impose both a great bodily injury and gang enhancement in counts 4 and 5; and (3) that the court erred when it imposed rather than stayed sentence in counts 7 and 8. We agree only that the great bodily injury enhancements attached to counts 4 and 5 must be stricken. In all other respects, we affirm.
Batson v. Kentucky (1986) 476 U.S. 79 (Batson); People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler), overruled in part by Johnson v. California (2005) 545 U.S. 162, 173 (Johnson).
FACTS
On January 9, 2009, around 9:45 p.m., Edgar M. and his girlfriend Nerelin S. were standing outside a movie theater waiting to be picked up by Edgar’s mother. With them were Edgar’s brother, Robert M., Nerelin’s sister, and two of Robert’s friends. As they were waiting, a group of four or five people walked past. At the end of the group was appellant’s younger brother Diego Huerta who called Nerelin “baby girl” and said “fuck your boyfriend and come with me.” Edgar told Diego Huerta to “chill out” and asked “why are you telling her that?”
Diego Huerta then pushed Edgar to the ground and a group of six to eight men and one girl came toward Nerelin and Edgar. The group, including Diego Huerta, punched and kicked Edgar. The girl wore red shoes, had a knife in her pocket, and took Robert’s cell phone. Many others in the attacking group also wore red.
Robert attempted to help his brother Edgar, but two or three people from the group attacked him, pushed him down, and kicked him. As a result, he suffered a lump on his forehead.
The assistant manager of the theater, David, and two theater employees, Chris and Carlos, went outside and tried to stop the fight. David pulled Edgar from the pile and Edgar ran away.
The attacking group then backed the theater employees against the wall. David told the group to leave or he would call the police. Appellant, who appeared to be in charge of the attacking group, had a knife, yelled “Norte” and “London” and threatened the employees and their families. Diego Huerta yelled that he was putting a hit on the theater employees and their families.
David attempted to get his employees back inside the theater, but someone pulled Carlos’s jacket over his head and several people held him down. After another theater employee yelled that someone in the group had a knife, David ran back outside to help Carlos.
As David was pulling people off of Carlos, Diego Huerta stabbed David in the neck, causing a six-inch wound, severing vocal cords and a vein that stemmed from his carotid artery. Chris was stabbed in the arm and suffered nerve damage. He was also stabbed in the back.
Appellant stabbed Carlos several times in the back, resulting in seven deep wounds requiring stitches. Carlos also suffered a punctured lung, a punctured kidney, and two broken ribs.
After one of the attackers waved a red bandana in the air and whistled, someone yelled “all Norte, ” and the attackers ran.
During a police interrogation, appellant admitted that he stabbed a man who took a swing at him at the movie theater. At trial, he testified that he did so to protect his brother who was being attacked.
During police questioning, Diego Huerta at first denied being at the movie theater, but then said “some vato” asked him why he was trying to “rush” his girl, so he hit him and then took off running. Diego Huerta admitted starting the fight, but denied having a knife.
Both appellant and Diego Huerta were gang members, affiliated with the Varrio Chico London Norteno gang.
DISCUSSION
1. Peremptory Challenge
Appellant, who is Hispanic, contends the trial court erred by concluding he had not made a prima facie case of purposeful discrimination under Batson/Wheeler on three separate occasions during voir dire.
During voir dire, defense counsel made four separate motions on Batson/Wheeler grounds, alleging in each case that there was no race-neutral reason any of the prospective jurors should have been found objectionable. In three of the four instances, involving Hispanic prospective jurors (Mr. T., Ms. Z., and Ms. M.), the trial court found no prima facie showing of group bias and denied appellant’s motions. In the fourth instance, the trial court concluded defense counsel had made a prima facie showing, but following the prosecution’s explanation, the trial court denied the motion. Appellant does not challenge this ruling, but focuses instead on the prosecutor’s exercise of peremptory challenges to excuse prospective jurors Mr. T., Ms. Z., and Ms. M.
Procedural Background
On the first day of jury selection, Mr. T. stated he was an auto dismantler in Bakersfield, his wife was not employed, and he had “no yes answers to these questions, ” referring to the questionnaire given to each prospective juror. Mr. T. assured the prosecutor that he would decide the case on the evidence and not on whether he disliked the victim. After the prosecutor related an incident in which he was pulled over for driving a fast car, Mr. T. said he had once driven his car in a “bad area, ” was pulled over by five cops at gunpoint, and made to get out of the car and on the ground. After a search of the vehicle, he was let go. Mr. T. agreed with the prosecutor that the incident was “not right.” He stated that it had happened to him “twice.” Later during questioning, Mr. T. was asked whether he lived in Tulare County and commuted to Bakersfield for work. Mr. T. stated that he did.
Also on the first day of jury selection, Ms. Z. stated that she currently worked data entry at a drug rehabilitation center, had been a police reserve officer for the City of Lindsay for two years, a dispatcher, and had worked for the public defender’s office for a summer. She had a couple of cousins and “a lot of friends” who were police officers. She had no other “yes answers” on the questionnaire.
After the prosecutor excused Mr. T. on a peremptory challenge, defense counsel objected. In chambers, defense counsel argued that Mr. T. had been excused because he was Hispanic. Defense counsel also argued that the prosecutor had only questioned Hispanic jurors whether they lived in Tulare County. The trial court found no prima facie showing of group bias and affirmed the peremptory challenge.
The prosecutor next excused Ms. Z., to which defense counsel again objected on grounds that “Hispanics are being excluded from this jury panel.” The trial court again made a determination that no prima facie showing had been made. The court later stated that, while Ms. Z. did appear to be Hispanic, it “took into consideration the totality of the circumstances based on the answers that were given by [Ms. Z.] where she had indicated where she had worked previously for … the Public Defender’s Office in Tulare County. And also that she was currently working for a drug rehabilitation organization.”
On the second day of jury selection, Ms. M. stated that she was an instructional assistant at Dinuba schools and was single. She stated that she had four “yes” answers on her questionnaire, and explained that she had health issues, was a diabetic with high blood pressure and high cholesterol and didn’t feel “comfortable.” She acknowledged that she was still working. When asked if there was any other reason she could not sit as a juror, she stated, “No, I don’t think so.” And after the trial court explained the court schedule and asked Ms. M. if it was a schedule she could keep, she stated, “Probably so.”
When the prosecutor excused Ms. M., defense counsel again objected on grounds that she was being dismissed solely because she was Hispanic. Defense counsel described her as 40 or 50 years old and “a mature person who could be an objective juror.” The trial court recalled Ms. M.’s apprehension due to health reasons. The court found no prima facie showing of group bias, denied the Batson/Wheeler motion, and dismissed the juror. In doing so, the court stated:
“[I]t appears to the Court that [Ms. M.] is also of a cognizable group. It appears to the Court that [Ms. M.] … is probably Hispanic. [¶] But I don’t believe as though this rises to the level taken on the totality of all of the answers to a prima facie case.”
Applicable Law and Analysis
Both the state and federal Constitutions forbid a prosecutor from excluding prospective jurors from the jury for a racially discriminatory purpose. (Batson, supra, 476 U.S. at pp. 95-96; Wheeler, supra, 22 Cal.3d at pp. 276-277.) Thus, the prosecution may not exercise peremptory challenges solely on the basis of presumed group bias, i.e., on the presumption “jurors are biased merely because they are members of an identifiable group distinguished on racial … or similar grounds[.]” (Wheeler, supra, at p. 276.)
The following procedure applies to a Batson/Wheeler challenge to a peremptory strike:
“‘“First, the defendant must make out a prima facie case ‘by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.’ [Citations.] Second, once the defendant has made out a prima facie case, the ‘burden shifts to the State to explain adequately the racial exclusion’ by offering permissible race-neutral justifications for the strikes. [Citations.] Third, ‘[i]f a race-neutral explanation is tendered, the trial court must then decide … whether the opponent of the strike has proved purposeful racial discrimination.’ [Citation.]”’” (People v. Zambrano (2007) 41 Cal.4th 1082, 1104, overruled on another point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
“‘We review the trial court’s ruling on purposeful discrimination for substantial evidence. [Citation.] It is presumed that the prosecutor uses peremptory challenges in a constitutional manner.’” (People v. Zambrano, supra, 41 Cal.4th at p. 1104; People v. Turner (1994) 8 Cal.4th 137, 165, overruled on another ground in People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5.)
“When a trial court denies a Wheeler motion without finding a prima facie case of group bias, the appellate court reviews the record of voir dire for evidence to support the trial court’s ruling. [Citations.] We will affirm the ruling where the record suggests grounds upon which the prosecutor might reasonably have challenged the jurors in question. [Citation.] Moreover, if we find that the trial court properly determined that no prima facie case was made, we need not review the adequacy of the prosecution’s justifications, if any, for the peremptory challenges. [Citation.]” (People v. Farnam (2002) 28 Cal.4th 107, 135; see People v. Griffin, supra, 33 Cal.4th at p. 555.)
This case concerns the first step in the procedure: whether appellant made a “prima facie showing that jurors [were] being excluded on the basis of racial or group identity. [Citations.] To establish a prima facie case, the defendant should first make as complete a record as possible. [Citations.] Second, the defendant must establish that the persons excluded are members of a cognizable group. [Citations.] Third, the defendant must show a … reasonable inference that such persons are being challenged because of their group association. [Citations.]” (People v. Farnam, supra, 28 Cal.4th at p. 135.) In Johnson, supra, 545 U.S. at page 170, the United States Supreme Court clarified that under the third step of the analysis, the burden is on the defendant to “‘produc[e] evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred.’” (People v. Hawthorne (2009) 46 Cal.4th 67, 79, abrogated on another ground in People v. McKinnon (2011) 52 Cal.4th 610, 637-638, quoting Johnson, supra, at p. 170.)
We conclude substantial evidence supports the trial court’s determination that appellant did not make a “prima facie showing that jurors [were] being excluded on the basis of racial or group identity.” (People v. Farnam, supra, 28 Cal.4th at p. 135.) “[T]he record discloses ample grounds upon which the prosecution might reasonably have challenged” the prospective jurors in question here. (Id. at p. 137.) Mr. T. related a negative incident involving law enforcement in which he was pulled over in his vehicle by five officers at gunpoint, made to get out of the car and on the ground, and the car was searched-an incident he agreed was “not right.” He also stated that it had happened to him “twice.” (See People v. Turner, supra, 8 Cal.4th at p. 171 [peremptory challenges made on basis of prospective juror’s negative experience with law enforcement upheld repeatedly].) Ms. Z. had numerous friends and family who were police officers, but had also worked for the public defender’s office. The trial court also noted that Ms. Z. was currently working for a drug rehabilitation organization. Both employment at the public defender’s office and at the drug rehabilitation organization could be seen as being overly sympathetic to the defense. (See, e.g., People v. Watson (2008) 43 Cal.4th 652, 677-678 [prosecution’s peremptory challenge to prospective juror with background in social work was proper race-neutral reason]; People v. Reynoso (2003) 31 Cal.4th 903, 923, fn. 5 [prosecution’s peremptory challenge to prospective juror who was a counselor for high-risk youth was a proper race-neutral reason].) Ms. M. had numerous health concerns and her statements that she “[did]n’t think” she had any other reasons she could not sit as a juror and that she “probably” could keep the expected court schedule for trial were not altogether convincing.
The record clearly discloses grounds upon which the prosecutor might have made a peremptory challenge against prospective jurors Mr. T., Ms. Z., and Ms. M. (People v. Griffin, supra, 33 Cal.4th at p. 556; People v. Taylor (2010) 48 Cal.4th 574, 644 [record showed “obvious race-neutral reasons for the excusal of all three of the prospective jurors in question”]; People v. Lancaster (2007) 41 Cal.4th 50, 76 [“views or family experiences disclosed by these [prospective jurors] were more than sufficient to overcome any inference of improper discrimination”].) Although appellant asserts that the trial court impermissibly speculated about the prosecutor’s reasons for exercising peremptory challenges, a trial court is to examine all the relevant facts to determine whether an inference of discrimination can be inferred from the record, or a race-neutral reason is apparent from the circumstances. (People v. Lancaster, supra, at pp. 75-77.) Based on the foregoing, we conclude substantial evidence supports the trial court’s ruling that appellant failed to establish a prima facie case of purposeful discrimination. Therefore, the court did not err in denying his Batson/Wheeler motions.
2. Imposition of Knife Use and Great Bodily Injury Enhancements
The jury found true that appellant, within the meaning of section 12022, subdivision (b)(1), personally used a deadly weapon, a knife, to commit the attempted murder offenses in counts 1 and 2 and personally inflicted great bodily injury within the meaning of section 12022.7, subdivision (a). In calculating appellant’s sentence on the murder counts, the trial court imposed a great bodily injury enhancement of three years along with a knife use enhancement of one year. Appellant contends section 654 precludes imposition of both the weapon use enhancement and the great bodily injury enhancement based on his use of a knife to inflict great bodily injury. We disagree.
Section 654, subdivision (a) provides that “[a]n 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.”
Appellant makes the argument as to counts 1, 2, and 3 but no enhancements were imposed in count 3. We therefore address the issue only as to counts 1 and 2.
The California Supreme Court recently granted review of an analogous issue in two cases: People v. Ahmed (2011) 191 Cal.App.4th 1407, review granted April 20, 2011 (S191020), in which the court held that section 654 applies to firearm use and great bodily injury enhancements under sections 12022.5 and 12022.7; and People v. Robinson (2011) 194 Cal.App.4th 672, review granted July 13, 2011 (S193289), which disagreed with Ahmed and held the specific mandates of sections 12022.5 and 12022.7, combined with the statutory directions in section 1170.1, subdivisions (f) and (g), created an implied exception to section 654 as a general sentencing statute.
We conclude that section 654 does not bar imposition of both the weapon use and great bodily injury enhancements under sections 12022 and 12022.7, which are at issue here.
Sentence enhancements are specified in various provisions of the Penal Code, such as sections 12022 and 12022.7, but may be limited by application of other statutes. Prior to 1997, section 1170.1 provided limits on the number of enhancements that could be imposed for a single criminal offense. Former section 1170.1, subdivision (e) provided: “When two or more enhancements under Sections 12022 [and] 12022.7 … may be imposed for any single offense, only the greatest enhancement shall apply.”
In 1997, however, the Legislature rewrote section 1170.1 (Stats. 1997, ch. 750, § 3), adding two new subdivisions, (f) and (g), which expressly authorize the enhancements imposed in this case. Section 1170.1, subdivision (f) now provides:
“When two or more enhancements may be imposed for being armed with or using a dangerous or deadly weapon … in the commission of a single offense, only the greatest of those enhancements shall be imposed for that offense. This subdivision shall not limit the imposition of any other enhancements applicable to that offense, including an enhancement for the infliction of great bodily injury.” (Italics added.)
Section 1170.1, subdivision (g) now provides:
“When two or more enhancements may be imposed for the infliction of great bodily injury on the same victim in the commission of a single offense, only the greatest of those enhancements shall be imposed for that offense. This subdivision shall not limit the imposition of any other enhancement applicable to that offense, including an enhancement for being armed with or using a dangerous or deadly weapon.…” (Italics added.)
It is well settled that the Legislature may create an express exception to the application of section 654 by stating a specific legislative intent to impose additional punishment, e.g., by stating that a defendant shall receive a sentence enhancement in addition to any other authorized punishment. (People v. Hicks (1993) 6 Cal.4th 784, 792-793; People v. Ramirez (1995) 33 Cal.App.4th 559, 572-573.) Here, the Legislature created an express exception in section 1170.1, subdivisions (f) and (g), authorizing a great bodily injury enhancement even where an enhancement for weapon use is authorized. The trial court properly enhanced appellant’s sentence under sections 12022 and 12022.7 for his use of a knife to inflict great bodily injury.
3. Imposition of Great Bodily Injury and Gang Enhancements
The jury found true the allegations that appellant inflicted great bodily injury in committing the assault offenses in counts 4 and 5, within the meaning of section 12022.7, subdivision (a), and it also found true that both offenses were committed for the benefit of a criminal street gang, within the meaning of section 186.22, subdivision (b)(1)(C). In calculating appellant’s sentence, the trial court imposed a 10-year sentence on each count for the criminal street gang enhancement, plus a consecutive three-year sentence for the great bodily injury enhancement. The entire sentence for counts 4 and 5 was stayed pursuant to section 654. Appellant contends, respondent concedes, and we agree that the trial court erred in imposing both the great bodily injury enhancement and the gang enhancement.
Section 12022.7, subdivision (a) provides: “Any person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for three years.”
Section 186.22, subdivision (b)(1)(C) provides a 10-year enhancement “[i]f the felony is a violent felony, as defined in subdivision (c) of Section 667.5.” For the assault convictions in counts 4 and 5, appellant was subject to the section 186.22, subdivision (b)(1)(C) enhancement because section 667.5, subdivision (c)(8) defines a “violent felony” to include “[a]ny felony in which the defendant inflicts great bodily injury on any person other than an accomplice which has been charged and proved as provided for in Section 12022.7.…”
As previously noted, section 1170.1, subdivision (g) provides: “When two or more enhancements may be imposed for the infliction of great bodily injury on the same victim in the commission of a single offense, only the greatest of those enhancements shall be imposed for that offense. This subdivision shall not limit the imposition of any other enhancements applicable to that offense, including an enhancement for being armed with or using a dangerous or deadly weapon or a firearm.”
The court in People v. Gonzalez (2009) 178 Cal.App.4th 1325, 1327-1328, concluded that the imposition of a three-year great bodily injury enhancement and a 10-year gang enhancement violates subdivision (g) of section 1170.1. In so concluding, the court relied on People v. Rodriguez (2009) 47 Cal.4th 501, 508-509, in which our Supreme Court held that the similar provision of subdivision (f) of section 1170.1, which addresses multiple punishments for using a dangerous or deadly weapon, prevented the imposition of two enhancements.
In Rodriguez, the trial court imposed three sentences stemming from three separate assaults, with two firearm enhancements imposed on each sentence. Under those circumstances, remand was appropriate to allow the trial court to restructure its sentencing choices. (People v. Rodriguez, supra, 47 Cal.4th at p. 509.) Here, remand is unnecessary as there is no action to be taken by the court, other than the clear mandate of section 1170.1, subdivision (g) that the greater enhancement be imposed. Accordingly, we order the great bodily injury enhancement attached to counts 4 and 5 be stricken.
4. Sentence for Criminal Threats
The jury convicted appellant in counts 7 and 8 of making a criminal threat in violation of section 422, and the trial court imposed consecutive sentences on those counts. Appellant contends that the trial court should have stayed his sentence for the criminal threats, pursuant to section 654, because the threats to David and Carlos were “part and parcel of the attempted murder offenses.” We disagree.
During sentencing, the trial court concluded that section 654 did not apply to the conviction for criminal threats, finding that the threats were separate and apart from the question of premeditation and deliberation. As stated previously, section 654, subdivision (a) provides in pertinent part:
“[a]n 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 therefore,
“‘precludes multiple punishment for a single act or for a course of conduct comprising indivisible acts. “Whether a course of criminal conduct is divisible … depends on the intent and objective of the actor.” [Citations.] “If all the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once.” [Citation.]’ [Citation.]” (People v. Spirlin (2000) 81 Cal.App.4th 119, 129; see Neal v. State of California (1960) 55 Cal.2d 11, 19.)
But if the defendant harbored “multiple or simultaneous objectives, independent of and not merely incidental to each other, the defendant may be punished for each violation committed in pursuit of each objective even though the violations share common acts or were parts on an otherwise indivisible course of conduct. [Citation.]” (People v. Cleveland (2001) 87 Cal.App.4th 263, 267-268; People v. Solis (2001) 90 Cal.App.4th 1002, 1021.)
Whether section 654 applies in a given case is a question of fact for the trial court, which is vested with broad latitude in making its determination. (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312.) Its findings will not be reversed on appeal if there is any substantial evidence to support them. (Ibid.) We review the trial court’s determination in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence. (Id. at pp. 1312-1313.)
People v. Solis, supra, 90 Cal.App.4th 1002 is instructive. In Solis, the defendant left messages on the victims’ answering machine saying he was on his way to kill them and burn their apartment. The victims left their apartment, returned an hour later, and found it in flames. (Id. at p. 1009.) The defendant was convicted of both arson and making terrorist threats. (Id. at p. 1008.) On appeal, the court concluded section 654 was not violated, since the two crimes were chronologically divisible and had distinct objectives: one, intent to frighten; the other, intent to burn. (Solis, at p. 1022.)
Here, as in People v. Solis, appellant had distinct objectives. Appellant argues that his overall intent was to kill the victims, as evidenced by the fact that he was waving the knife when he made the threats. But on the record, it is reasonable to infer his threats were intended to intimidate and frighten the victims, as he threatened both them and their families, and his assaults with a knife were intended to kill the victims. Appellant’s effort to sweep separate crimes under a single intent by characterizing that intent broadly is unavailing. (People v. Solis, supra, 90 Cal.App.4th at p. 1022.)
The crimes need not be as chronologically distinct as those in People v. Solis, for it is a defendant’s intent and objective, not the temporal proximity of the offenses that determine whether a transaction is indivisible. (People v. Hicks, supra, 6 Cal.4th at p. 789.) Here, the criminal objectives-to frighten the victims with harm to themselves and their families and to kill them by assaulting them with a knife-are sufficiently distinct to justify separate punishment. (See People v. Solis, supra, 90 Cal.App.4th at p. 1022; People v. Cleveland, supra, 87 Cal.App.4th at p. 271.)
Prohibiting multiple punishment under the circumstances presented here would not further the policies underlying section 654. Section 654’s purpose is to ensure that punishment is commensurate with a defendant’s culpability. (People v. Cleveland, supra, 87 Cal.App.4th at p. 268.) This concept “works both ways. It is just as undesirable to apply the statute to lighten a just punishment as it is to ignore the statute and impose an oppressive sentence.” (People v. Monarrez (1998) 66 Cal.App.4th 710, 715.)
We find substantial evidence supports the trial court’s decision not to apply section 654 to stay appellant’s sentence for making criminal threats in counts 7 and 8.
DISPOSITION
The judgment is affirmed. The trial court is directed to correct the minutes and abstract of judgment as noted in footnote 2, ante, and to amend the abstract of judgment to strike the section 12022.7 great bodily injury enhancements attached to counts 4 and 5. A certified copy of the amended abstract of judgment shall be forwarded to the Department of Corrections and Rehabilitation.
WE CONCUR: GOMES, Acting P.J., KANE, J.