Opinion
H029217
4-25-2007
THE PEOPLE, Plaintiff and Respondent, v. HENRY NGUYEN, Defendant and Appellant.
NOT TO BE PUBLISHED
A jury convicted defendant Henry Nguyen of two counts of making criminal threats. (Pen. Code § 422.) Count 1 alleged threats against defendants wife, T., and count 2 alleged threats against defendants daughter, N. The jury also found true the allegation that defendant had personally used a firearm in connection with the threats against his wife. Defendant was sentenced to two years for count 1, and three years for the attendant firearm use enhancement. The court imposed a consecutive eight-month term (one-third the midterm of two years) for the second count against N.
Defendant does not challenge the sufficiency of the evidence on count 2. However, he does argue that the eight-month consecutive sentence on count 2 violates section 654 because the criminal threat charged in count 2 is not a violent crime. We affirm.
STATEMENT OF FACTS
On the night of February 6, 2005, defendant and his wife, T., had an argument. At 9:56 p.m., T. called 911, but hung up. At 9:59 p.m., T. had her daughter, N., call 911 again. T. told the 911 operator: " I, I need you to help to come over help me now. [¶] [M]y husband, he want to, kill my kids and me, can you come over? He hit me right now." Then N., the daughter, said: "[M]y dad, hes going crazy. He said he is going to kill us. Can you just come please?" She told the 911 operator that he had a gun, it was in a closet and he had just left in a green Mustang.
Santa Clara police officer Kenia Soto arrived at the Nguyen home at 10:03 p.m. Officer Soto testified at trial that she interviewed N., who told her that defendant had threatened to kill her mother, the family, and himself with a handgun. N. said that she had witnessed her parents arguing while she was sitting on the living room couch with her sister. N. saw her father open the closet, pull out a gun and point it at her mother. Flicking the gun several times, he threatened to kill T. if she didnt tell him who her boyfriend was. He then pointed the gun at his own head and threatened to kill himself after he killed the family. Defendant placed the gun in a leather jacket in the closet and walked into the kitchen, where he continued to argue with his wife, demanded $100, and said he was going to leave, buy drugs, consume them and return to kill the family. T. gave defendant the money, and he left.
Officer Soto also interviewed T., using N. as an interpreter. Through N.s translation, T. told Soto that she and her husband had argued over whether she had a boyfriend. Defendant got the gun from the hall closet, pointed it at her, demanded to know the identity of her boyfriend and threatened to kill her if she did not tell him, then kill the whole family and himself. T. said defendant pointed the gun at her. Defendant also demanded $100 to buy drugs. He said he was going to consume them and come back to kill the entire family. T. directed Officer Soto to the closet and the leather jacket with the gun in it and asked the officer to take it away. The gun was fully loaded with a round in each chamber. Defendant was the guns registered owner.
Both T. and N. reluctantly testified at trial under subpoena. T. denied that defendant threatened to kill her and the entire family. She also denied that her daughters were in the living room; she said they were in another room watching television. She also testified that N. was not fluent in Vietnamese and mistranslated her statements to the police. N. testified that she was in her room watching television during the argument and did not see anything. She said her mother called her into the living room after the argument was over. N. also testified she only understood bits and pieces of what her mother was telling her in Vietnamese. She mistranslated her mothers words to the 911 operator. She did not remember what she told Officer Soto.
DISCUSSION
In this case, the trial court elected to impose the sentence for count 2, the threats to N., consecutively to the sentence for count 1, because N. was a separate victim. Defendant contends the imposition of a consecutive sentence for count 2, the threats against N., violates section 654s proscription against multiple punishment. He argues that the threats against T. and N. were part of an indivisible course of conduct, and that the multiple-victim exception to section 654 does not apply here, because a violation of section 422 is not a violent crime. A trial courts implied finding that a defendant harbored a separate intent and objective for each offense will be upheld on appeal if supported by substantial evidence. (People v. Blake (1998) 68 Cal.App.4th 509, 512.)
Defendant recognizes that in People v. Solis (2001) 90 Cal.App.4th 1002 (Solis), the Court of Appeal rejected the argument he makes here, but he argues that Solis was wrongly decided and should not be followed. We explain why we disagree.
Penal Code section 654, subdivision (a) provides: "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. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other." As interpreted by our Supreme Court, section 654 proscribes multiple punishment for distinct crimes charged in separate counts that result in multiple verdicts of guilt "`[i]f all of the offenses were incident to one objective. " (People v. Latimer (1993) 5 Cal.4th 1203, 1208.) However, multiple punishment is proper "if the evidence discloses that a defendant entertained multiple criminal objectives which were independent of and not merely incidental to each other...." (People v. Liu (1996) 46 Cal.App.4th 1119, 1135.)
An exception to that general rule is recognized for multiple victims of a single violent act. Under the multiple victim exception, " ` "even though a defendant entertains but a single principal objective during an indivisible course of conduct, he [or she] may be convicted and punished for each crime of violence committed against a different victim." " (People v. Centers (1999) 73 Cal.App.4th 84, 99.) "Section 654 is not `... applicable where ... one act has two results each of which is an act of violence against the person of a separate individual. " (Neal v. State of California (1960) 55 Cal.2d 11, 20-21; People v. Hall (2000) 83 Cal.App.4th 1084, 1089 (Hall).)
In Solis, the defendant left messages threatening to kill his ex-girlfriend and "everybody" on a phone message machine belonging to the ex-girlfriend and her roommate. Both women heard the messages and were frightened by them. (Solis, supra, 90 Cal.App.4th at p. 1009.) The defendant was convicted of two violations of section 422, (one count for each woman) and was sentenced consecutively on both counts. (Id. at p. 1023.) Solis argued, as defendant argues here, that a violation of section 422 is not a crime of violence within the meaning of the multiple-victim exception to section 654. Rejecting that contention, the Solis court reasoned: "A violation of section 422 requires: (1) the defendant willfully threatens to kill or seriously injure another person; (2) the defendant has the specific intent that the listener understands the statement to be a threat; (3) the threat and the circumstances under which it was made lead the listener to believe the defendant would immediately carry through on the threat; and (4) the threat causes the listener to suffer sustained fear based upon a reasonable belief the threat would be carried out. It is therefore apparent that to sustain a conviction for this offense, the People must prove beyond a reasonable doubt that the victim was injured. In this instance, the injury is the sustained fear. As noted above, sustained fear `means a period of time that extends beyond what is momentary, fleeting, or transitory. [Citation.] ... [¶] The statute ... requires the defendant to willfully make a threat which he intends the listener to understand as a threat and which causes sustained fear in the listener. This constitutes a crime of psychic violence which, if directed at separate listeners (victims) who each sustain fear, can be punished separately." (Solis, at pp. 1023-1024.)
Defendant urges us to reject this reasoning because it "cannot be squared with other courts treatment of the multiple-victim exception," citing People v. Davey (2005) 133 Cal.App.4th 384 (Davey), People v. Le (2006) 136 Cal.App.4th 925 (Le), and Hall, supra, 83 Cal.App.4th 1084. None of the cases cited by defendant involved violations of section 422.
In Davey, the defendant exposed himself to two children, and was convicted of and separately punished for two counts of indecent exposure. The Court of Appeal reversed the multiple punishment, holding that indecent exposure, while morally blameworthy, despicable, and psychologically harmful to children, "is not statutorily defined as involving violence to the person" for the purpose of the multiple-victim exception under section 654. (Davey, supra, 133 Cal.App.4th at p. 392.)
In Le, the defendant entered a Longs drugstore with the intent to steal whiskey and diapers, and "struggled with the Longs department manager over the car keys and then drove off while the managers upper body was still in the vehicle in an effort to depart with the goods...." (Le, supra, 136 Cal.App.4th at p. 931.) He was convicted of and sentenced consecutively for burglary and robbery. (Id. at p. 930.) The court reversed the multiple sentences, holding that the multiple-victim exception did not apply because "burglary does not constitute a crime of violence unless the defendant `inflicted great bodily injury in the commission of the burglary, " and the only violence was perpetrated on the store manager, who was the victim of the robbery. (Le, supra, 136 Cal.App.4th at p. 932.)
Finally, in Hall, the defendant brandished a firearm at three peace officers and was convicted of, and eventually sentenced consecutively for, "three counts of exhibiting a firearm in the presence of peace officers in violation of section 417, subdivision (c), each count referring to a different officer." (Hall, supra, 83 Cal.App.4th at pp. 1087-1088, fn. omitted.) The Court of Appeal reversed the multiple sentences because, "unlike attempted murder, assault with a deadly weapon, or discharging a firearm at an occupied building, `draw[ing] or exhibit[ing] any firearm, whether loaded or unloaded, does not require, as a matter of the crimes definition, an intent to harm, or a likelihood of harming, any person." (Hall, supra, 83 Cal.App.4th at pp. 1091-1092.) "[T]he multiple-victim exception is just that: a multiple-victim exception, not a multiple-observer exception. Assaults have victims; exhibitions have observers. And, as mentioned, the crime of exhibiting a firearm under section 417, subdivision (c), does not act upon an officer, but is only committed in the presence of an officer." (Id. at p. 1096.)
Davey, Le, and Hall are clearly distinguishable. Indecent exposure, simple burglary and exhibiting a weapon are not statutorily defined as crimes of violence, even though each, in its own way, may be psychologically damaging to the victim. Section 422, on the other hand, proscribes "willfully threaten[ing] to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement ... is to be taken as a threat ... [and] convey[s] to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate familys safety." We agree with the Solis court that "[s]ection 422 is clearly distinguishable from section 417. For one thing, it does require a victim: the listener. In addition, it requires the listener suffer injury: sustained fear. And it requires the defendant act with the specific intent that his statement be viewed as a threat. Because section 422 requires commission of an act which harms another, it is a crime of violence for purposes of the multiple-victim exception to section 654." (Solis, supra, 90 Cal.App.4th at p. 1025.)
In our view, the gravamen of section 422 is the infliction of sustained fear on another person by means of a threat of death or injury. The statute "is not violated by mere angry utterances or ranting soliloquies, however violent. One may, in private, curse ones enemies, pummel pillows, and shout revenge for real or imagined wrongs—safe from section 422 sanction." (People v. Teal (1998) 61 Cal.App.4th 277, 281.) Instead, the statute requires a victim who suffers harm, namely, a sustained fear of death or injury. (See In re Ricky T. (2001) 87 Cal.App.4th 1132, 1140.)
Thus, we see the making of a threat that violates section 422 as more akin to an assault that violates section 245, the gravamen of which "is the likelihood that the force applied or attempted to be applied will result in great bodily injury." (People v. Colantuono (1994) 7 Cal.4th 206, 217.) A violation of section 245 is indisputably a crime that is subject to the multiple-victim exception to section 654, even though the threatened act of violence inherent in the assault is not carried out. "[T]he crime of assault with a deadly weapon is, by definition, an act of violence committed against a person, namely, one with the likelihood of causing harm to the person. It thus satisfies the multiple-victim exception when more than one victim is involved." (Hall, supra, 83 Cal.App.4th at p. 1090.)
Accordingly, violations of section 422 come within Halls general observation that "where the multiple-victim exception [is] satisfied, the qualifying crime, at least in conjunction with any allegations in enhancement, [is] defined to proscribe an act of violence committed against the person." (Hall, supra, 83 Cal.App.4th at p. 1091.) We see no inconsistency between our holding and the holdings in Davey, Le and Hall. We conclude the trial court did not violate section 654 when it imposed a separate consecutive sentence for the threats to kill T., the whole family and himself made by defendant and heard by N., who suffered sustained fear upon hearing those threats to her life and that of her family members.
CONCLUSION
Section 422 statutorily defines a crime of violence, and thus a violation of that statute is subject to the multiple-victim exception to section 654s proscription against multiple punishment. The trial court did not err in imposing a separate consecutive sentence for the section 422 violation involving N.
DISPOSITION
The judgment is affirmed.
We concur:
Bamattre-Manoukian, Acting P.J.
Mihara, J. --------------- Notes: Unless otherwise indicated, all further statutory references are to the Penal Code.