Filed 9/20/13 P. v. David CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F064298
         Plaintiff and Respondent,
                                                                           (Super. Ct. Nos. VCF258219 &
                   v.                                                              VCF249268b)

ROGER DAN DAVID,
                                                                                         OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Tulare County. Brett R.
Alldredge, Judge.

         Morgan C. Taylor, 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, Stephen G. Herndon and
Caely E. Fallini, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
         Defendant Roger Dan David was convicted by jury of committing assault with a
deadly weapon (Pen. Code,1 § 245, subd. (a)(1), count 1), criminal threats (§ 422, count

         1All further references are to the Penal Code unless otherwise indicated.
2), possession of a sawed-off shotgun (former § 12020, subd. (a)(1), count 3), and two
counts of misdemeanor child endangerment (§ 273a, subd. (b), counts 5 and 7).2 In
addition, the jury found true a special allegation that defendant used a knife during the
commission of the criminal threat (§ 12022, subd. (b)(1)). Defendant stipulated to a court
trial regarding an additional charge that he was a felon in possession of a firearm (former
§ 12021, subd. (a)(1), count 4), and that he committed the above felony offenses while on
bail or on his own recognizance on another felony offense (§ 12022.1). After hearing the
evidence presented at trial, the trial court found defendant guilty of this charge and found
the enhancements true.
       The trial court sentenced defendant to a term of three years for the assault with a
deadly weapon conviction, a consecutive two-year term for one of the on bail
enhancements, and two consecutive eight-month terms for each of the firearm charges.
In addition, the court imposed a concurrent two-year term for the criminal threats count,
stayed the knife use enhancement, and struck the remaining bail enhancement allegations.
The same day, the court revoked probation in defendant’s other felony case and imposed
a consecutive one-year term.
       On appeal, defendant contends (1) the evidence was insufficient to support the
criminal threats and child endangerment charges, (2) his sentence violated section 654,
(3) a section 294 restitution fine was improperly imposed, and (4) failure to apply the
most recent conduct credits formula pursuant to section 4019 violated his equal
protection rights. We find insufficient evidence to support one of the child endangerment
convictions. As a result, the cause must be remanded for the trial court to reconsider the
section 294 fine. We also find part of defendant’s sentence must be stayed pursuant to
section 654. We reject defendant’s remaining contentions.




       2The jury acquitted defendant of misdemeanor domestic battery (§ 243, subd. (e)(1),
count 6) and the lesser included offense related to that charge.


                                                 2.
                                            FACTS
       At the time of the incident, defendant and C.H., the victim, had been in a
relationship for approximately 15 years. The two were living together during the relevant
time with their minor son N.H. Beginning in February of 2011, the relationship between
defendant and the victim became strained. C.H. recounted some instances of defendant’s
violence towards her. She recalled an instance where defendant threw a bottle at her,
causing a bruise on her back. On another occasion, defendant threw a flashlight at her,
striking her forearm and causing an injury. In September of that year, defendant began
threatening to cut the victim’s throat when he was angry with her.
       On September 2, 2011, defendant began moving out of the house due to an
argument with the victim. The following day, while defendant was taking items to the
car, the victim approached defendant and told him to be sure to take everything with him.
According to the victim, defendant approached her, told her to shut up, and jabbed her lip
with his finger.3 She recalled defendant’s mother Shirley Williams was present during
the incident.
       N.H., who was 10 years old at the time of the trial, testified that he witnessed
defendant slapping the victim on this occasion. N.H. was inside the home walking from
his bedroom to the kitchen when he witnessed the incident from the living room window.
He recalled it being dark outside at the time, and that his parents were in the front yard
off of the porch. Upon seeing the incident, N.H. called 911. A sheriff’s deputy
responding to the incident noted the victim had some minor swelling to her lip.
Defendant was arrested and taken to jail.
       A few days later, upon defendant’s release, defendant and the victim reconciled
and defendant moved back into the home. Everything remained calm until September 23
when defendant and the victim again began arguing. The argument carried over to the


       3This event was the basis for the misdemeanor domestic violence charge of which the
defendant was acquitted.


                                             3.
following morning and, once again, defendant began packing items to move out.
Williams arrived and defendant began loading items into her car.
       At one point, defendant and the victim got into an argument in the kitchen.
During this argument, defendant threatened to call child protective services to take their
minor son away from the victim. The victim responded by telling defendant he needed to
stay away from N.H. “because he was just going to screw him up like he did the rest of
his kids.” Upon hearing this, defendant lunged at the victim, grabbed her by the throat,
and pushed her back. The victim fell backwards against the refrigerator, where defendant
let go of her throat. The victim attempted to walk away when defendant picked up a
nearby steak knife, came toward her, and stated that he was going to cut her throat.
During this time, defendant held the knife approximately six inches from her neck. As
defendant was holding the knife, the victim told him to put the knife down, and she
noticed defendant’s eyes dart in one direction, and then he dropped the knife saying
“What knife?” She assumed defendant saw someone at that time as his demeanor
changed.
       N.H. was watching television in the living room, next to the kitchen, at the time of
this incident. According to N.H., defendant knew he was there. N.H. walked to the
kitchen to get something to eat when he saw his father with his hand on a knife, while he
was “up in [the victim’s] face.” While looking around the corner into the kitchen, N.H.
heard his father tell his mother to “Shut the F up” and saw him pick up the knife and set it
down. As a result N.H. felt like his father was going to hurt his mother, and he was “[a]
little bit frightened.” N.H. tried to call 911 for help, but the telephone was disconnected,
so his mother made the call.
       Sheriff’s deputies responded to the call at approximately 10:20 a.m. Deputy
Richard Morley noted the victim was crying, scared, and shaking when he spoke to her.
He collected a knife from the kitchen drawer that N.H. pointed out to him. Deputy John
Dow spoke to defendant who told him he had a shotgun in the laundry hamper. The
deputy retrieved the unloaded semiautomatic shotgun from the hamper in the living

                                             4.
room. The gun had an overall length of 24 inches and a barrel length of 12 inches and
was missing some parts.
       Both N.H. and the victim were aware that defendant had a sawed-off shotgun in
the house on September 24. The victim recalled defendant obtaining a shotgun “at one
time” to fix but did not realize it was at the house until she saw defendant with it on
September 23 when he was packing his belongings.
Defense Case
       Defense investigator Elizabeth Sepulveda-Huth testified that in a prior interview
the victim stated defendant had pushed her in the chest during the September 24th
incident, but had not mentioned him grabbing her by the neck. The victim also stated the
defendant held the knife in an upward manner, slightly pointed toward her, while the two
were 12 inches apart.
       Williams testified she was present during both the September 3d and 24th
incidents. She stated defendant never hit or touched the victim on either occasion.
Specifically regarding the incident with the knife, Williams testified she was with her son
the entire time while he was packing and loading the car and he never had a knife or
threatened the victim.
                                      DISCUSSION
I.     Sufficiency of the Evidence Claims
       In considering a defendant’s claim of insufficiency of the evidence supporting a
conviction, we review the whole record in the light most favorable to the judgment for
substantial evidence—that is, evidence which is reasonable, credible, and of solid
value—such that any rational trier of fact could find the defendant guilty beyond a
reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.) “[We] presume[] in
support of the judgment the existence of every fact the trier could reasonably deduce
from the evidence. [Citations.] The same standard applies when the conviction rests
primarily on circumstantial evidence. [Citation.]” (People v. Kraft (2000) 23 Cal.4th
978, 1053.)

                                             5.
       With these principles in mind, we turn to defendant’s allegation attacking the
sufficiency of the evidence on the criminal threats and child endangerment charges.
       A.     Criminal Threats
       To establish the offense of making a criminal threat, the prosecution must show:
(1) the defendant willfully threatened to commit a crime that would result in death or
great bodily injury; (2) the defendant made the threat with the specific intent it be taken
as a threat; (3) the threat, on its face and under the circumstances in which it was made,
was so unequivocal, unconditional, immediate, and specific as to convey a gravity of
purpose and an immediate prospect of execution of the threat; (4) the threat caused the
victim to be in sustained fear for his or her own safety or for his or her immediate
family’s safety; and (5) the victim’s fear was reasonable. (§ 422; People v. Toledo
(2001) 26 Cal.4th 221, 227-228.)
       Defendant only challenges the element of sustained fear in this appeal, thus we
shall only address this element. He claims the evidence of any sustained fear was lacking
as the incident was brief and the victim never testified she was in sustained fear. We find
the evidence was sufficient to support the charge.
       As used in section 422, “sustained” has been defined to mean “a period of time
that extends beyond what is momentary, fleeting, or transitory.” (People v. Allen (1995)
33 Cal.App.4th 1149, 1156.) In Allen, the court held the evidence was sufficient to
support the sustained fear element of section 422 when the defendant, who had
previously broken into the victim’s home while repeatedly stalking and assaulting her
daughter (his former girlfriend), pointed a gun at the victim, threatened to kill her, and
was arrested 15 minutes after the victim called the police. The Allen court concluded the
15-minute period between the threat and the defendant’s arrest established the victim’s
reasonably sustained fear because the victim knew about the defendant’s prior conduct
toward her daughter and had called the police during the earlier incidents. (People v.
Allen, supra, at pp. 1151-1156.)



                                             6.
       Likewise the court in People v. Fierro (2010) 180 Cal.App.4th 1342, found a short
encounter was sufficient to support a finding of sustained fear. There, the defendant and
the victim got into a confrontation at a gas station. The defendant left the area and the
victim began fueling his car when he noticed the defendant driving back toward him.
The defendant engaged in a verbal confrontation with the victim, then lifted his shirt and
revealed what the victim and his son thought was a handgun. During the approximately
one-minute incident, the defendant said he would kill the victim and his son, and should
do so “right now.” The defendant then told the victim to leave, which he did, driving to
the freeway. Once the victim gained his composure and felt he was no longer in harm’s
way, he called 911. The call took place approximately 15 minutes after the incident. (Id.
at pp. 1345-1346.)
       The court found that although the incident itself was brief—less than one
minute—the evidence was sufficient to support a finding of sustained fear. (People v.
Fierro, supra, 180 Cal.App.4th at p. 1349.) First, the court rejected the argument that the
victim’s fear once he left the gas station should not be considered in determining the
sufficiency of the evidence. Second, the court noted that even if it were only to consider
the duration of the incident itself, the evidence still demonstrated a sustained fear because
when “one believes he is about to die, a minute is longer than ‘momentary, fleeting, or
transitory.” (Ibid.)
       These cases make clear that even a brief incident can give rise to a sustained fear.
We also note this case is unlike In re Ricky T. (2001) 87 Cal.App.4th 1132, 1140, upon
which defendant relies. That case involved a schoolhouse altercation where a student left
class to use the restroom, and when he returned, the classroom door was locked. When
his teacher opened the door, it hit the student. In response, the student said, “‘I’m going
to get you,’” but made no further threat or act of aggression. The teacher felt physically
threatened and sent the student to the office. When interviewed by the police, the student
said he told his teacher, “‘I’m going to kick your ass.’” (Id. at pp. 1135-1136.)



                                             7.
       In reversing the finding on grounds of insufficiency of the evidence that the
student had violated section 422, the Court of Appeal remarked there was nothing
showing any fear was more than momentary or fleeting. The court listed the lack of a
history of past disagreements or quarrels between the two individuals, the student did not
specify the method in which the threat would be carried out, and the victim did not call
the authorities until the next day. (In re Ricky T., supra, 87 Cal.App.4th at p. 1140.)
Unlike Ricky T., the victim in the present case was confronted with a threat to her life by
a knife-wielding defendant after defendant had already grabbed her by the throat and
pushed her into a vulnerable position. The victim called 911 after the incident and was
still visibly upset, shaking, and afraid when the authorities arrived. In addition, defendant
had a history of assaulting the victim and threatening to do harm to her. These
circumstances set this case apart from Ricky T.
       Defendant asserts the victim’s emotional state when the police arrived “could not,
within reason, have been evidence of an ongoing ‘sustained fear.’” We disagree. In
Allen, other incidents that had occurred before the threat provided sufficient context to
show the victim’s fear was reasonably sustained. (People v. Allen, supra, 33 Cal.App.4th
at p. 1156.) Other courts have looked at the victim’s conduct after the threat to determine
if the victim’s initial fear was sustained for more than a momentary or fleeting period.
(E.g., People v. Mendoza (1997) 59 Cal.App.4th 1333, 1337-1338, 1342, superseded on
by statute on other grounds in People v. Franz (2001) 88 Cal.App.4th 1426, 1441 [victim
called police 30 minutes after defendant threatened her, member of defendant’s gang
parked outside her house and honked horn, and victim learned other gang members were
looking for her]; People v. Solis (2001) 90 Cal.App.4th 1002, 1008-1009, 1014-1016,
1024 [failure to define “sustained fear” harmless error when evidence showed victims
still afraid an hour after threats and after learning defendant firebombed their apartment];
see also In re Ricky T. supra, 87 Cal.App.4th at pp. 1135-1136, 1139-1141 [student’s
statements “‘I’m going to get you’” and “‘I’m going to kick your ass’” after teacher
accidentally hit student while opening door insufficient threat when no history of

                                             8.
animosity between them, student made no threatening gestures, and teacher sent student
to the office where student subsequently apologized].)
       Notwithstanding their very different factual circumstances, the common thread in
these cases is that in evaluating the evidence supporting a charge of making a criminal
threat, “all of the surrounding circumstances should be taken into account to determine if
a threat falls within the proscription of section 422.” (People v. Solis, supra, 90
Cal.App.4th at p. 1013.) Thus, the jury can properly consider a later action taken by a
defendant, as well as the victim’s conduct after the incident, in evaluating whether the
crime of making a criminal threat has been committed. (See id. at pp. 1014-1016.)
       The record supports the jury’s finding that the victim was reasonably in sustained
fear. The evidence demonstrated defendant grabbed the victim by her throat and pushed
her into the refrigerator. Next, he armed himself with a nearby steak knife, held it up,
threatened to slit her throat, and began advancing toward her. Only when the victim told
him to put the knife down and defendant’s “eyes darted over one direction” did his
demeanor change and he dropped the knife. From this the jury certainly could infer
defendant dropped the knife not because the victim told him to, but because he realized
there was a witness to his threat. Indeed, the evidence further established defendant’s son
was nearby, saw the assault, saw defendant with the knife, believed defendant was going
to hurt the victim, and was frightened by the incident. Although the incident itself was
brief, the victim called 911 and was still crying, scared, and shaking when the deputies
arrived. Further, the defendant was still at the home when the deputies arrived. Such
facts certainly support the element of sustained fear.
       Moreover, defendant’s prior conduct toward the victim supported a finding she
was in reasonably sustained fear. The victim testified defendant had battered her on two
prior occasions by throwing a bottle and flashlight at her. In the month leading up to the
attack, defendant had begun threatening to cut her throat when he was angry with her.
Considering this background, it becomes clear defendant’s threat on the date of the
incident caused the victim to be in fear. Not only did defendant grab the victim by the

                                             9.
neck and threaten to slit her throat, but he took steps toward that goal by arming himself
with a knife, coming toward her, and holding the knife approximately six inches from her
neck in the middle of her chest. The victim’s action in calling 911 and her emotional
state upon the deputy’s arrival, led to the eminently reasonable inference the victim was
in fear, and this fear was not momentary, fleeting, or transitory. Thus, considering all the
circumstances in the case, the jury’s conclusion was clearly supported by the evidence.
       B.     Misdemeanor Child Endangerment Charges
       Defendant next contends his convictions for misdemeanor child endangerment
cannot stand. Defendant was convicted of two counts of child endangerment stemming
from two separate incidents. We will discuss each count separately.
       Section 273a, subdivision (b), provides:

       “Any person who, under circumstances or conditions other than those likely
       to produce great bodily harm or death, willfully causes or permits any child
       to suffer, or inflicts thereon unjustifiable physical pain or mental suffering,
       or having the care or custody of any child, willfully causes or permits the
       person or health of that child to be injured, or willfully causes or permits
       that child to be placed in a situation where his or her person or health may
       be endangered, is guilty of a misdemeanor.”
       The prosecution’s theory regarding both child endangerment charges was that
defendant willfully permitted N.H. to endure unjustifiable mental suffering by putting
him in a position to witness the attack on his mother. When the theory is that the harm to
the minor is indirectly inflicted, the defendant must have acted with criminal negligence.
(People v. Valdez (2002) 27 Cal.4th 778, 781-791; People v. Burton (2006) 143
Cal.App.4th 447, 454.) Criminal negligence is defined as

       “‘“aggravated, culpable, gross, or reckless … conduct … [that is] such a
       departure from what would be the conduct of an ordinarily prudent or
       careful [person] under the same circumstances as to be incompatible with a
       proper regard for human life ….”’ (People v. Penny (1955) 44 Cal.2d 861,
       879 ….) ‘Under the criminal negligence standard, knowledge of the risk is
       determined by an objective test: “[I]f a reasonable person in defendant’s
       position would have been aware of the risk involved, then defendant is
       presumed to have had such an awareness.”’ (Williams v. Garcetti (1993) 5
       Cal.4th 561, 574, italics omitted [further stating ‘there can be no criminal

                                            10.
       negligence without actual or constructive knowledge of the risk’]; Walker
       v. Superior Court (1988) 47 Cal.3d 112, 136 … [‘criminal negligence must
       be evaluated objectively’].)” (People v. Valdez, supra, 27 Cal.4th at p.
       783.)
       With these standards in mind, we evaluate the evidence on both counts.
              1.     The evidence is sufficient to support count 5
       Defendant contends the evidence was insufficient to support the child
endangerment count occurring on September 24, 2011, as there was no evidence
defendant directed any of his actions toward N.H. or that defendant even knew N.H. was
present during the ordeal. We disagree.
       In People v. Burton, supra, 143 Cal.App.4th 447, the defendant assaulted the
mother of his child, causing her severe injuries. The victim was getting into her car when
she encountered the defendant who was hiding near the car. He immediately attacked
her, punching her in the face three to four times and leaving several severe cuts requiring
extensive suturing. (Id. at p. 451.) The victim’s eight-year-old son was outside at the
time behind a wall adjacent to the car. The child did not witness the actual attack,
however, he did witness the “‘immediate and bloody results of [defendant’s]
handiwork.’” (Id. at p. 455.)
       The court rejected the defendant’s argument he did not act with criminal
negligence toward the minor. Rather, the court found the evidence supported a finding
the defendant knew the minor, his son, was present at the scene when he brutally attacked
the victim. The minor had been with his mother at the passenger door while the
defendant hid on the other side of the car just prior to the attack. In fact, the minor had
just stepped away to urinate behind a wall next to the car. The fact the defendant knew
the minor was present at the scene when he launched the attack and left the minor to
witness its aftermath was sufficient to support a finding the defendant’s “conduct toward
his older son was such a departure from that of the ordinarily prudent or careful person as
to be incompatible with a proper regard for human life.” (People v. Burton, supra, 143
Cal.App.4th at p. 455.)

                                             11.
       Likewise here, defendant’s actions were sufficient to support a finding of criminal
negligence. The assault occurred in the morning hours when defendant, the victim, and
N.H., their 10-year-old son, were all home. N.H. testified he was watching television in
the living room that was next to the kitchen where the attack occurred. According to the
victim, defendant had been packing his belongings that morning. Defendant’s mother
testified she was with him that morning as defendant went room to room packing his
belongings. They had been doing so for a “[c]ouple hours.” Defendant came into the
kitchen and argued with the victim. As N.H. was present in the very next room watching
television, the jury could certainly infer that defendant knew of his proximity. Indeed,
N.H. testified defendant knew he was there. From the fact there was an argument
between defendant and the victim, and defendant attacked the victim by pushing her and
causing her to fall over a garbage can and into the refrigerator, one could infer that the
10-year-old child would investigate the noise in the adjacent room.
       It is clear from this evidence defendant knew or should have known his son was
present at the scene and could witness the attack. Just as in Burton, defendant, the
minor’s father, without regard for his child’s well-being, launched an attack against the
victim while his child was just behind an adjacent wall. In Burton, the evidence
suggested the child did not actually see the attack, but the court still found he was present
“at the scene” when the attack occurred. (People v. Burton, supra 143 Cal.App.4th at p.
455.) Likewise, N.H. was present “at the scene” by virtue of being in the very next room
during the threats and assault on his mother.
       Defendant also argues there was no evidence he inflicted any unjustifiable mental
suffering upon N.H. He claims N.H. may simply have “received an important ‘life
lesson’ about adults” and that “nothing traumatic or of lasting emotional effect occurred.”
Such an assertion is simply wrong. As the court in Burton noted, children witnessing
domestic violence “suffer adverse effects similar to victims of direct physical and sexual
abuse.” (People v. Burton, supra 143 Cal.App.4th at p. 456.) The evidence established
defendant grabbed the victim by the neck, pushed her, picked up a knife and held it close

                                             12.
to her while threatening to cut her throat. N.H. actually witnessed part of this attack on
the victim, specifically seeing defendant with a knife. N.H. noted his father was hitting
his mother “again,” he felt as if his father was going to hurt his mother, he was frightened
by the attack, and he attempted to call 911 afterwards. “We must bear in mind that the
attacker was not just anyone, but the minor’s father, and the victim was not just anyone,
but the minor’s mother.” (People v. Burton, supra, at p. 455.) Defendant launched a
violent attack against N.H’s mother with a weapon, knowing N.H. was in the next room.
The evidence showed N.H. witnessed part of that attack believing his mother would be
harmed at the hands of his father, causing him fear.4 Further, the testimony established
N.H. did not wish to see defendant anymore. We find this evidence was sufficient to
support the jury’s finding defendant, as a result of criminal negligence, willfully
permitted the child to suffer unjustifiable mental suffering.
               2.     The evidence is insufficient to support count 7
       Defendant further contends, and plaintiff concedes, there was insufficient evidence
to support the finding defendant inflicted unjustifiable mental suffering upon N.H. on the
September 3, 2011, incident, where defendant either slapped or poked the victim while
the two were arguing outside. We agree.
       Defendant was charged with misdemeanor domestic battery regarding the
September 3d incident. The jury ultimately acquitted defendant of this count. The
evidence relating to this incident was as follows. Defendant and the victim were arguing
outside, away from the house, while N.H. was inside getting ready for bed. According to
N.H., it was dark outside at the time and his parents were some distance from the house.
Based upon N.H.’s location inside the home while the argument and battery took place
outside and away from the home, as well as the alleged nature of the battery, we find the



       4The fact the 10-year-old child, months after the offense, testified he was “[a] little bit
frightened” does not lessen the inference of mental suffering the jury was entitled to make based
on the totality of the evidence.


                                                13.
evidence was insufficient to support a finding of criminal negligence. Thus, the
conviction on this count must be reversed.
II.    Sentencing Claims
       Defendant claims the trial court committed several sentencing errors. Specifically,
he argues his sentence violated section 654, the section 294 fine was improperly imposed,
and he is entitled to additional conduct credits in light of recent amendments to section
4019. We will address each contention in turn.
       A.     Section 654 Issues
       Defendant was sentenced on count 1, the assault with a deadly weapon charge, and
given a concurrent sentence on count 2, the criminal threat charge. In addition, the trial
court sentenced defendant to consecutive eight-month terms on both the felon in
possession count as well as the possession of the sawed-off shotgun charge. He argues
the sentences on the criminal threats count as well as one of the possessions of the
firearm counts must be stayed pursuant to section 654. We agree.
       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.” (§ 654, subd. (a).)

       “The purpose of section 654 is to prevent multiple punishment for a single
       act or omission, even though that act or omission violates more than one
       statute and thus constitutes more than one crime. Although the distinct
       crimes may be charged in separate counts and may result in multiple
       verdicts of guilt, the trial court may impose sentence for only one offense—
       the one carrying the highest punishment. [Citation.]” (People v. Liu (1996)
       46 Cal.App.4th 1119, 1135.)
       Section 654 “does not allow any multiple punishment, including either concurrent
or consecutive sentences.” (People v. Deloza (1998) 18 Cal.4th 585, 592.) By its terms,
section 654 applies where a person suffers from multiple punishments for a single
criminal act or omission. (People v. Jones (2012) 54 Cal.4th 350, 358 (Jones); People v.
Beamon (1973) 8 Cal.3d 625, 637-638, overruled on other grounds in People v. Mendoza

                                             14.
(2000) 23 Cal.4th 896, 908.) However, this provision also applies “when there is a
course of conduct which violates more than one statute but constitutes an indivisible
transaction.” (People v. Saffle (1992) 4 Cal.App.4th 434, 438.) “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, disapproved on other grounds in People v. Correa (2012) 54 Cal.4th 331, 334; see
People v. Latimer (1993) 5 Cal.4th 1203, 1208.)
       Whether there was more than one intent or objective is a question of fact for the
trial court and will be upheld on appeal if there is substantial evidence to support it.
Where, as here, the trial court does not make an express finding, an implied finding the
crimes were divisible inheres in the judgment and must be upheld if supported by the
evidence. 5 (People v. Nelson (1989) 211 Cal.App.3d 634, 638.)
       Keeping these standards in mind, we now address each of defendant’s specific
claims.
              1.      The sentence on count 2 must be stayed
       Defendant contends the trial court erred in imposing concurrent sentences on the
assault with a deadly weapon and criminal threat charges because the counts were based
upon the same conduct, namely, defendant’s act of holding a knife to the victim’s neck
while threatening to cut her throat. Plaintiff claims the two counts involved separate
intents and objectives and, therefore, the concurrent sentences were properly applied. We



       5The trial court stated it agreed “with the People that the crime proved, pled and proven
in that case is not 654, however, I think the aggregate sentence in this case as recommended is
sufficient and I decline to add more time to [defendant’s] sentence.” However, the court never
made any finding as to whether defendant harbored separate intents and objectives in committing
the crimes. Likewise, when the prosecutor argued section 654 did not apply to count 2, she
never articulated a theory as to why the section was inapplicable.


                                               15.
agree with defendant and will order the sentence on count 2, criminal threats (§ 422),
stayed.
       Here the two crimes were committed contemporaneously. The evidence at trial
established defendant and the victim were engaged in an argument when the victim made
a remark that angered defendant. As a result, he immediately grabbed the victim by the
neck and pushed her. Defendant then obtained a knife and advanced toward the victim.
He held the knife approximately six inches from her and told her he was going to cut her
throat. Thus, defendant committed the crime of making a criminal threat while he was
also assaulting the victim with the knife during a single act. As we have previously
noted, a single act may only be punished once, even if a defendant harbors separate
intents. (Jones, supra, 54 Cal.4th at p. 358; People v. Louie (2012) 203 Cal.App.4th 388,
396, 399.)
       Even if we were to find that holding the knife and uttering the words were separate
acts, multiple punishments are only proper if substantial evidence supports the conclusion
defendant harbored separate intents and objectives. Plaintiff argues that although
defendant committed the threat while committing the assault with a deadly weapon,
separate intents were inferable from the circumstances. Specifically, plaintiff contends
the threat was made to frighten the victim, while the assault was intended to punish her
for her remark that defendant was a bad father. We disagree. In making this argument,
plaintiff notes defendant grabbed the victim by the throat and pushed her backwards.
However, this action is not the act that was the subject of the assault with a deadly
weapon. The assault with a deadly weapon did not occur until defendant brandished the
knife and threatened to slice the victim’s throat.
       When we consider only the acts which were subject to the offenses, it is clear
defendant harbored only a single intent. Defendant’s action of holding a knife up to the
victim’s neck while threatening to use that very knife to cut her throat was clearly meant
to terrorize her. Each crime was a means of committing the other offense and advanced



                                             16.
the same objective: instilling fear in the victim. The threat, in short, was made to
complete the assault.
       Our conclusion that defendant’s actions were pursuant to one objective, i.e., to
place the victim in fear for her life, is bolstered by the prosecutor’s closing argument. In
discussing the criminal threats charge, the prosecutor argued defendant intended for the
victim to take his words as a threat on her life because he was holding a knife to her
throat at the time. Because appellant harbored a single intent in committing both the
assault and the criminal threats, the sentence for criminal threats must be stayed. (See
People v. Louie, supra, 203 Cal.App.4th at pp. 394, 399 [pointing a gun at victim, calling
her “‘a cop-calling bitch,’” and threatening her constituted a single act within the
meaning of § 654 and defendant could not be punished for both crimes]; People v.
Mendoza, supra, 59 Cal.App.4th at pp. 1345-1346 [defendant’s statement to victim that
resulted in convictions for dissuading a witness and criminal threats was made with
single intent].)
               2.    The sentence on either count 3 or 4 must be stayed
       Defendant was convicted of being a felon in possession of a firearm as well as
possessing a sawed-off shotgun. It is undisputed defendant possessed a single firearm
and the evidence supporting the two counts was identical. Defendant argues his separate
punishment for both crimes runs afoul of section 654. We agree.
       Recently, the California Supreme Court addressed this very issue. In Jones, supra,
54 Cal.4th 350, police officers searched the car the defendant, a felon, was driving and
found a loaded .38-caliber revolver that was not registered to him. He told the officers he
bought the gun three days earlier for protection. The defendant was convicted of
possession of a firearm by a felon, carrying a readily accessible, concealed and
unregistered firearm, and carrying an unregistered firearm in public. He was separately
sentenced for each offense. (Id. at p. 352.) Analyzing the conflicting appellate authority,
Jones held “that a single possession or carrying of a single firearm on a single occasion
may be punished only once under section 654.” (Id. at p. 357.) The court further

                                             17.
concluded, in accordance with the plain language of the statute that “[s]ection 654
prohibits multiple punishment for a single physical act that violates different provisions
of law.” (Id. at p. 358.)
       Plaintiff attempts to distinguish Jones by arguing defendant’s conduct here
constituted multiple acts because there was some evidence at trial that defendant
possessed the shotgun on both September 23 and September 24. However, this argument
was addressed and rejected in Jones. Initially, we note the Jones court found the
defendant’s conduct in possessing the firearm and carrying it was a single act. (Jones,
supra, 54 Cal.4th at p. 359.) In addressing the argument, the court explained the
defendant was charged with possessing the gun on a single day, and the verdicts found
the defendant guilty as charged. Further, the prosecution’s argument was centered on the
defendant’s possession of the gun on the date charged. Although the prosecution
referenced the defendant’s admission he bought the weapon three days earlier, this was
done to show the defendant knowingly possessed the gun, not to premise his liability on
an earlier possession. (Ibid.)
       Likewise here, defendant was charged specifically with possessing the gun “on or
about September 24, 2011,” in both counts. The evidence at trial was centered upon the
fact the gun was found in the home on that date and the fact defendant admitted to the
officer there was a gun in the home. Plaintiff’s argument is based upon two brief
references the prosecutor made during closing argument. In describing the meaning of
possession, the prosecutor stated, “I have to prove that he had the ability to control the
gun, but I don’t have to prove that somebody saw him actually holding it, although [the
victim] said she saw him holding it.” Later in arguing the element that defendant knew
what he possessed was a firearm, the prosecutor stated,

       “And how do we know that [defendant] knew that? Well, if you remember
       [the victim’s] testimony, she said that she believed that he had the shotgun
       there at the house because he was going to fix it. Well, in order to fix a
       gun, you have to have some basic knowledge of how a gun works and what
       a gun does.”


                                             18.
Considering these references in the totality of the evidence, it is clear the argument was
limited to defendant’s possession on September 24.
       Although there were different triers of fact as to the charges of possession of a
sawed-off shotgun and the possession of a firearm by a felon, we note the evidence
presented as to the two charges was identical. Indeed, prior to trial, the court specifically
asked the prosecutor if she would like to introduce any additional evidence to support the
possession of a firearm by a felon charge that was not being introduced to the jury
regarding the possession of a sawed-off shotgun charge. The prosecutor stated she would
not need to introduce any additional facts other than the stipulation that defendant had
been previously convicted of a felony, because the evidence regarding the two counts was
“identical.” Further, when the issue regarding the felon in possession of a firearm charge
was submitted to the court, the prosecutor declined to make any additional arguments that
were not already made to the jury. As this case is indistinguishable from Jones, we are
bound to follow Jones here. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d
450, 455.)
       Even if we were to agree with plaintiff that Jones is distinguishable from this case
and defendant’s possession of the firearm over the course of two days constituted two
acts, we would still find dual punishment would fall within section 654’s proscription.
On this point People v. Atencio (2012) 208 Cal.App.4th 1239 is instructive. There the
defendant was convicted of grand theft of a firearm as well as possession of a firearm by
a felon. The evidence established the defendant had stolen the firearm and kept it until
the next day when he abandoned it. (Id. at pp. 1241-1242.) The court addressed whether
the defendant could be punished for both counts. In answering the question in the
negative, the court explained that even if the defendant’s conduct could be considered
two acts under Jones, section 654 would still bar multiple punishments because the
conduct involved the same course of conduct with a singular intent and objective.
(People v. Atencio, supra, at pp. 1243-1245.) The court was unpersuaded by the
argument the defendant harbored separate intents to both take the gun and then separately

                                             19.
possess it. The court noted the “fact that defendant kept possession of the gun for a
period of 24 hours did not, without more, alter his intent and objective such that his
course of criminal conduct can be deemed to consist of more than one act for purposes of
section 654.” (Id. at p. 1244.) Similarly here, defendant’s mere possession of the firearm
over the course of two days6 clearly constitutes a course of conduct with a single intent
and objective. Thus, defendant may only be punished once for the conduct. We will
remand the case to the trial court to determine which count will be sentenced and which
count will be stayed.
       B.      Section 294 Fine
       Defendant was ordered to pay a $1,000 fine pursuant to section 294, subdivision
(a). That section provides that the court may impose a fine of up to $1,000 for a
misdemeanor violation of section 273a. Defendant was convicted of two counts of
section 273a, subdivision (b), misdemeanor child endangerment, as recounted above.
Defendant argues the reversal of that count requires the fine be stricken. Because we
have determined that one count of misdemeanor child endangerment must be reversed,
we are in partial agreement with defendant’s argument.
       As defendant remains convicted of one count of child endangerment, a fine under
this section is entirely proper. However, we note that when the trial court imposed the
fine, defendant stood convicted of two counts. There is no indication on the record as to
what portion of the fine, if any, related to count 7, which must be reversed.
Consequently, as conceded by plaintiff, we must remand the case so the trial court may
determine the amount of the fine as it relates to count 5 only.




       6While there was a reference during the trial that defendant had possessed the gun “at one
time,” we note this could not support a finding of multiple acts on this record. There was never a
reference as to when that time was, nor was there any charge reflecting any possession on any
other date.


                                               20.
       C.     Section 4019 Conduct Credits
       Defendant’s final contention on appeal is that additional presentence credits
should be awarded to him based upon the amendments to section 4019, operative
October 1, 2011. He argues failure to award the additional credit constitutes a violation
of equal protection principles. This court has previously addressed, and rejected, the
equal protection arguments raised here by defendant in our decision in People v. Ellis
(2012) 207 Cal.App.4th 1546 (Ellis), review denied October 31, 2012.
       Section 4019, subdivision (h) specifically states that the changes increasing credits
were to apply prospectively only. In Ellis, we concluded that the intent of the Legislature
“was to have the enhanced rate apply only to those defendants who committed their
crimes on or after October 1, 2011.” (Ellis, supra, 207 Cal.App.4th at p. 1553.) It is
undisputed that defendant’s offenses were committed before this date.
       “The concept of equal protection recognizes that persons who are similarly
situated with respect to a law’s legitimate purposes must be treated equally.” (People v.
Brown (2012) 54 Cal.4th 314, 328.) Contrary to defendant’s contention, the amendments
to section 4019, operative October 1, 2011, do not treat similarly situated groups in a
disparate manner. (Ellis, supra, 207 Cal.App.4th at pp. 1551-1552.) Rather, the
amendments to section 4019 address “‘future conduct in a custodial setting by providing
increased incentives for good behavior.’” (Ellis, supra, at p. 1551.) Thus, prisoners
serving time before and after the effective date of a statute affecting conduct credits are
not similarly situated for purposes of equal protection analysis. (People v. Brown, supra,
at pp. 329-330.) The correctional purpose of a statute that rewards behavior is not served
by rewarding prisoners who served time in custody prior to the effective date of the
incentives because they could not have modified their behavior in response to the
incentives. (Id. at pp. 328-329.) Because defendant fails to show that section 4019 treats
“similarly situated” groups unequally, he asserts no cognizable equal protection claim.
       Likewise, defendant’s argument that he is entitled to enhanced conduct credits for
the period between October 1, 2011, and the date he was subsequently sentenced was also

                                             21.
considered and rejected in Ellis. As we explained in Ellis, the statutory language on this
point is not ambiguous. 7 (Ellis, supra, 207 Cal.App.4th at pp. 1552-1553.) Thus, for the
reasons stated in Ellis, we reject defendant’s claims.
                                      DISPOSITION
       The conviction on count 7, misdemeanor child endangerment, is reversed. The
trial court is ordered to impose a section 654 stay on count 2, criminal threats (§ 422). In
addition, the sentence for either count 3, possession of a sawed-off shotgun (former
§ 12020, subd. (a)) or count 4, possession of a firearm by a felon (former § 12021, subd.
(a)(1)) must be stayed pursuant to section 654. The case is remanded to the trial court to
resentence the defendant accordingly and to determine the amount of the section 294 fine
as it relates to count 5, misdemeanor child endangerment (§ 273a, subd. (b)) occurring on
September 24, 2011. In addition, we note defendant’s birth date is incorrect as listed on
the abstract of judgment. The trial court is ordered to prepare an amended abstract of
judgment reflecting the resentencing and to forward copies to the Department of
Corrections and Rehabilitation. In all other respects the judgment is affirmed.


                                                          ___________________________
                                                                              PEÑA, J.
WE CONCUR:


 ________________________________
POOCHIGIAN, Acting P.J.


 ________________________________
FRANSON, J.


       7We note People v. Olague (2012) 205 Cal.App.4th 1126, the case upon which defendant
relies, was granted review on August 8, 2012, S203298, review was subsequently dismissed, and
the case was remanded on March 20, 2013, in light of the court’s opinion in People v. Brown,
supra, 54 Cal.4th 314. Thus, Olague may no longer be cited as precedent. (Cal. Rules of Court,
rules 8.1105(e)(1), 8.1115(a).)


                                             22.
