Filed 3/8/18 P. v. Martinez-Hernandez CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO


THE PEOPLE,
Plaintiff and Respondent,
v.
MARCO MARTINEZ-HERNANDEZ,
Defendant and Appellant.

A149656

(Contra Costa County
Super. Ct. No. 51514256)


Defendant Marco Martinez-Hernandez (aka Marco Antonio Martinez-Hernandez) refused to believe his wife’s repeated denials that she was unfaithful to him. His efforts to get the wife to confirm his suspicions turned violent, towards her and their four children. Threats of her dismemberment by knife or machete, and execution of her children by bullet failed to elicit her confession. Ultimately, in the children’s presence, defendant beat his wife, cut her with a knife, and hit her with a baseball bat.
Based on the evidence of these events, a jury found defendant guilty of more than two dozen felonies and misdemeanors, for which he was sentenced to state prison for an aggregate term of more than 50 years.
On this timely appeal by defendant, it is important to note what defendant is not challenging. He does not dispute the validity, or the sufficiency, of the evidence, of his four convictions for assault with a semiautomatic firearm. (Pen. Code, § 245, subd. (b). Subsequent statutory references are to this code.) The same is true for his four convictions for assault with a deadly weapon (§ 245, subd. (a)(1)); his one conviction for assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4)); and his one conviction for battering his wife (§ 273.5, subd. (a)). Defendant does not challenge the validity of his eight felony convictions (§ 273a, subd. (a)) and two misdemeanor convictions (§ 273a, subd. (b)) for endangering his children, only some aspects of his sentencing for those convictions. And he does not contest the validity of three of his eight convictions for making criminal threats against his wife and children. (§ 422, subd. (a).) In light of this, specific evidence will be discussed in connection with the particular arguments made by defendant.
Defendant Was Properly Convicted Of Making
Multiple Criminal Threats
This is how defendant presents his first contention: “The evidence established that appellant terrorized his family between January 22 and January 25, 2015, forcing them to stay awake all night, forcing them to drive to and from their residence, repeatedly abusing, assaulting and threatening them, with the single objective of demanding that his wife and children tell him the truth about his wife’s [claimed] infidelity. [¶] Appellant was convicted of eight counts of making criminal threats ([§] 422, subd. (a)), including criminal threats against [defendant’s wife] in counts 8, 18, 22, and 28; against Jane Doe #1 [a daughter] in counts 16 and 23; and Jane Doe #2 [another daughter] in counts 17 and 24.” Thus, he reasons, because there was “an indivisible course of conduct” with but a single criminal objective, “he was subject to only one conviction per victim.”
Although defendant’s contention is infused with language commonly found in section 654 analysis, the Court of Appeal in People v. Wilson (2015) 234 Cal.App.4th 193 (Wilson) treated it as a challenge to the sufficiency of the evidence, i.e., whether, based upon the elements of section 422, the evidence could support more than a single criminal conviction. (Wilson at p. 198.) And held it could not. Defendant’s case is different.
Conviction under section 422 requires the prosecution to prove “ ‘(1) that the defendant “willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person,” (2) that the defendant made the threat “with the specific intent that the statement . . . is to be taken as a threat, even if there is no intent of actually carrying it out,” (3) that 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,” (4) 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,” and (5) that the threatened person's fear was “reasonabl[e]” under the circumstances.’ ” (In re George T. (2004) 33 Cal.4th 620, 630.)
As indicated, defendant’s reliance on Wilson is misplaced. In Wilson, the victim returned home from purchasing groceries with his wife and encountered the defendant, who was apparently drunk, urinating on a tree in the victim’s yard. Over the course of 15 to 20 minutes, in a single, continuing confrontation with the victim as he unloaded the groceries, the defendant’s verbal statements escalated from, “ ‘Fuck off. Everyone has to take a piss’ ” to “ ‘I'm going to kill you and all your kids and your family’ ” and “ ‘I’m going to kill you guys.’ ” (Wilson, supra, 234 Cal.App.4th 193, 196–197.) The prosecutor charged the defendant with making two criminal threats against the victim: first, the initial threat that the victim discounted personally but caused him to fear for his family, especially his children, and second, the additional threat directed at the victim as the defendant moved closer, so that he feared “ ‘not just my children's life anymore as protector and provider, but now also myself . . . .’ ” (Id. at pp. 197–198.)
After the jury convicted the defendant on both counts, the Court of Appeal reversed the second criminal threat conviction. Because “[a] violation of section 422 is not complete upon the issuance of a threat,” but instead “depends on the recipient of the threat suffering ‘sustained fear’ as a result of the communication,” the Wilson court held: “It is not appropriate to convict a defendant of multiple counts under section 422 based on multiple threatening communications uttered to a single victim during a brief, uninterrupted encounter.” (Wilson, supra, 234 Cal.App.4th 193, 201, italics added.)
“Sustained fear occurs over ‘a period of time “that extends beyond what is momentary, fleeting, or transitory.” ’ ” (Wilson, supra, 234 Cal.App.4th 193, 201.) Based on the evidence produced at trial, the Court of Appeal concluded: “In sum, section 422 authorizes only one conviction and one punishment per victim, per threatening encounter during which the victim suffers a single period of sustained fear, regardless of how many individuals are included within the scope of the threats or how many times the perpetrator repeats the threats.” (Wilson, at p. 202.)
Wilson is inapposite for several reasons. First, because there it was the same person named in the two counts of violating section 422 (see Wilson, supra, 234 Cal.App.4th 193, 196), the court expressly did not consider the situation presented here, where multiple victims are named in separate counts. (See id. at pp. 198–199 [“Defendant . . . concedes he could have been convicted of multiple counts had the prosecutor pleaded and proved counts 4 and 5 by naming a different victim for each count”].) Second, we are certainly not addressing “a brief, uninterrupted encounter” (id. at p. 201), but, as defendant concedes, a considerably longer period, one extending into days. During that period, the victims’ trauma was interrupted by a visitation by defendant’s relatives, trying—with only temporary success—to defuse his anger. There was a further change when defendant ordered the victims into his truck and drove them to a nearby ranch, at which he resumed his threats—at gunpoint. Defendant then drove them back to their home, and began new threats—this time with a knife—against his wife. In these circumstances, the jury could reasonably conclude that the “ ‘immediate prospect of execution’ ” (In re George T., supra, 33 Cal.4th 620, 630, fn. 6) necessary to complete a criminal threat dissipated and then recurred, not once but twice. Thus, more than one threat could be charged for each of the victims.
The argument based on Wilson is an issue of law, not one of fact. However, defendant does advance one specific claim truly founded on the sufficiency of the evidence. Again, we present his argument in his words:
“Appellant was charged in count 29 with a violation of section 245, subdivision (b), assault with a semi-automatic firearm . . . based upon testimony that he fired a shot at [his wife’s] feet after driving her to a ranch near their home. He was charged in count 28 with making a criminal threat, based upon testimony that he threatened to shoot [her] if she did not tell him the truth about her infidelity. He made the threat immediately before firing the shot.” “Appellant’s threat to shoot [his wife], immediately before he fired a shot at her feet, did not result in ‘sustained fear,’ a period of time that ‘extends beyond what is momentary, fleeting, or transitory.’ Because the shooting was nearly simultaneous with the threat, the threat did not result in the ‘knowing infliction of mental terror.’ (People v. Thornton (1992) 3 Cal.App.4th 419, 424.) The evidence was therefore insufficient to sustain appellant’s conviction of the violation of section 422 in count 28.”
The Attorney General relies on People v. Culbert (2013) 218 Cal.App.4th 184, which is instructive. The victim in Culbert had a gun put to his head, thinking it was loaded. It was in fact empty, so the trigger fell on an empty chamber after the threat. The Court of Appeal rejected the claim that the time was insufficient for “sustained fear”: “the idea that H. did not experience sustained fear because he knew within a ‘split second’ that the firearm was unloaded is, at least in our opinion, preposterous. H. realized the firearm was unloaded only because he was still breathing after appellant stopped pulling the trigger. H. must have had a sense of relief when he saw that he had not been shot. Experiencing relief that one has survived is not the same thing, however, as having one’s fear evaporate. The jury could easily infer from the evidence of H’s conduct both during and after the incident that his fear was sustained, and not ‘instantly over.’ ” (Id. at p. 191; cf. People v. Fierro (2010) 180 Cal.App.4th 1342, 1349 [“This argument ignores human nature. ‘Sustained fear’ refers to a state of mind.”].)
In other words, the terror is not to be confined to the threat and the shot, but can take account of the victim’s state of mind following the shot. Such is in accordance not only with common sense, but with established authority, which permits consideration of past threats and the complete interplay between the defendant and the victim, including prior threats. (See People v. Wilson (2010) 186 Cal.App.4th 789, 812–814 and authorities cited; People v. Allen (1995) 33 Cal.App.4th 1149, 1156 [“The victim’s knowledge of defendant’s prior conduct is relevant in establishing that the victim was in a state of sustained fear.”].) Thus, the jury could take account of the weeks of threats and violence—against the wife and the children—that preceded this particular threat and shot. The record has ample, if not abundant, evidence from which the jury could conclude that the victim did indeed endure “sustained fear” from this particular threat by defendant.
Defendant’s Arguments Based Upon Section 654
Defendant frames his next argument as follows: “The jury convicted appellant in count 29 of assault with a semi-automatic firearm . . . upon [his wife] . . . . [¶] The jury convicted appellant in counts 30, 31 and 32 of child abuse (sec. 273a, subdivision (a)), based upon firing the shot . . . in the presence of Jane Doe #1, Jane Doe #2 and John Doe, respectively; and found the allegations that he used a firearm in the commission of counts 30, 31 and 32 (sec. 12022.5, subd. (a)) true. [¶] The trial court imposed consecutive, subordinate terms in counts 30, 31 and 32 of 2 years and 8 months, consisting of terms of 1 year and 4 months for child abuse . . . plus 1 year and 4 months for the firearm use.” Defendant argues that because the shot was fired at his wife, and he was sentenced for that act, then “Jane Doe #1, Jane Doe #2 and John Doe were not ‘multiple victims’ of appellant’s act of firing a shot at [his wife]; therefore the trial court was prohibited from imposing multiple firearm use enhancements for the single act of firing a shot at [his wife].”
The relevant language of section 654 is subdivision (a), which 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.”
But our Supreme Court has long held that: “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.) Equally settled is that a single shot can have multiple victims, and thus multiple enhancements. (People v. Oates (2004) 32 Cal.4th 1048, 1064–1068 and decisions cited.)
Acknowledging this authority, and recognizing that this court is bound by it, defendant nevertheless makes an argument aimed for our Supreme Court, namely, “the multiple-victim exception violates the plain language of section 654 and should therefore be abandoned.”
Defendant lays out his final contention as follows: “Appellant was convicted in count 3 with child abuse ([§] 273a, subdivision (a)), based upon testimony that he choked John Doe, and in count 27 of the lesser-included offense of misdemeanor child abuse of John Doe ([§] 273a, subdivision (b)). . . . [¶] The trial court sentenced appellant to a subordinate, consecutive term of 1 year and 4 months for the violation of section 273a, subdivision (a), in count three; and a consecutive, subordinate term of 1 year for the misdemeanor violation of section 273a, subdivision (b), in count 27.” Defendant believes the latter term should be stayed because the two charges “constituted a single, indivisible course of conduct with a single criminal objective.”
“Section 654 precludes multiple punishments for a single act or indivisible course of conduct. [Citation.] ‘ “The proscription against double punishment in section 654 is applicable where there is a course of conduct which . . . comprises an indivisible transaction punishable under more than one statute . . . . The divisibility of a course of conduct depends upon the intent and objective of the actor, and if all the offenses are incident to one objective, the defendant may be punished for any one of them but not for more than one.” [Citation.] “The defendant’s intent and objective are factual questions for the trial court; [to permit multiple punishments,] there must be evidence to support a finding the defendant formed a separate intent and objective for each offense for which he was sentenced.” ’ [Citations.]” (People v. Assad (2010) 189 Cal.App.4th 187, 200, quoting People v. Coleman (1989) 48 Cal.3d 112, 162.)
“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.” (People v. Brents (2012) 53 Cal.4th 599, 618.) This court
recently noted that trial courts enjoy broad latitude in making these determinations, and the record is viewed most favorably in support of those determinations. (People v. Deegan (2016) 247 Cal.App.4th 532, 545, fn. 4, citing and quoting People v. Tarris (2009) 180 Cal.App.4th 612, 626.)
The Attorney General’s response is conclusive:
“Appellant choked John Doe to punish him for telling appellant to stop hurting [his wife]. During the machete incident, appellant intended to frighten his family into telling him that [his wife] was cheating on him. Because the two crimes involved two different, independent intents and objectives, section 654 did not bar multiple punishment. (People v. Beamon (1973) 8 Cal.3d 625, 639 [if the defendant ‘entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for independent violations committed in pursuit of each objective . . .’].) Furthermore, the choking incident was divisible in time from the machete incident because appellant choked John Doe a week or two weeks before the machete incident on January 25, 2015. It is ‘clear that a course of conduct divisible in time, [even if] directed to one objective, may give rise to multiple violations and punishment.’ (Beamon, at p. 639, fn. 11.)”
We have verified the cited references. They constitute the requisite substantial evidence to sustain the trial court’s decision to impose separate sentences. (People v. Brents, supra, 53 Cal.4th 599, 618.)
Sentencing Errors
Defendant filed a supplemental brief in which he asserted: “Counts 20 and 25, violations of Penal Code section 245, subdivision (a)(1), and 273a, subdivision (a), involved the same victim and were based upon the same conduct; Count 25 must therefore be stayed, pursuant to section 654.” When the Attorney General responded that defendant was properly sentenced on count 25 because it carried the greater sentence, and that the trial court did stay sentence on count 20, defendant conceded the point.
In the best tradition of his office, the Attorney General did not merely respond to the contentions pressed by defendant, but made an independent review of the record, during the course of which he discovered a number of minor errors and discrepancies in defendant’s sentencing, which he has brought to our attention.
First, the Attorney General notes that “the trial court erroneously sentenced appellant to one year in prison for misdemeanor child endangerment (count 27) to run consecutively to [appellant’s] total sentence for the felony offenses. A violation of section 273a, subdivision (b), is ‘punishable by imprisonment in the county jail not exceeding six months.’ (§ 19.) Misdemeanor sentences may be imposed consecutively to a felony sentence. [Citations.] However, ‘misdemeanor terms, unless imposed concurrently with a felony term, are served in local detention facilities and are not part of a continuous period of imprisonment under the supervision of the same correctional officials.’ [Citation.] [¶] This court should impose six months for the misdemeanor offense to be served in county jail consecutively to the sentence for the felony offenses. It is apparent from the trial court’s imposing a year for the misdemeanor offense that it intended to impose the maximum possible sentence, and that it intended that sentence to run consecutively. Remand is unnecessary when the record shows how the trial court would have exercised its discretion. [Citation.]”
This reasoning is sound, and, not surprisingly, defendant does not dispute it.
The Attorney General also advises: “The trial court also erroneously imposed four months for a section 12022, subdivision (b)(1), deadly or dangerous weapon enhancement attendant to one of the felony child endangerment convictions—count 22. The jury hung on the allegation that appellant used a deadly or dangerous weapon for that count. Accordingly, the enhancement should be stricken.” Again, defendant agrees.
Next, the Attorney General has “identified that the abstract of judgment erroneously shows appellant received enhancements under section 12022.5, subdivision (b)(1), for two criminal threat convictions (counts 23 and 24) and two child endangerment convictions (counts 25 and 26). Appellant received enhancements under section 12022, subdivision (b)(1), not section 12022.5, for those offenses. Accordingly, the new abstract of judgment should reflect enhancements under that section.”
Finally, at an early point in his brief, the Attorney General states:
“Although the minute order and abstract of judgment state that the court sentenced appellant to 50 years 4 months in prison, the sum of the terms orally imposed by the court was 50 years 8 months.” However, in light of the erroneous four-month enhancement term on count 22, the correct total sentence is indeed 50 years and four months.
The judgment of conviction is modified to show that on count 27 defendant is sentenced to a six month term of imprisonment in the county jail to be served consecutively to his aggregate sentence to state prison. The four-month enhancement term on count 22 is stricken. As so modified, the judgment is affirmed in all other respects. The cause is remanded to the trial court with directions that the clerk prepare an amended abstract of judgment in conformance with this opinion, and forward a certified copy to the Department of Corrections and Rehabilitation.



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Richman, J.


We concur:


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Kline, P.J.


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Stewart, J.

























A149656; P. v. Martinez-Hernandez