1 

Filed 7/25/13 P. v. Hernandez CA3 

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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 

THIRD APPELLATE DISTRICT 

(San Joaquin) 

---- 

THE PEOPLE, 

 Plaintiff and Respondent, 

 v. 

MANUEL HERNANDEZ, 

 Defendant and Appellant. 

C064583 

(Super. Ct. No. SF111494A) 

 Following a jury trial, defendant, Manuel Hernandez, was convicted of one count 

each of stalking his ex-wife, Angela,1 and her current boyfriend, Joe Trujillo (Pen. Code, 

§ 646.9, subd. (a) -- counts 1 & 4),2 stalking Angela while a temporary restraining order 

was in effect (§ 646.9, subd. (b) -- count 2), one count each of making criminal threats 

against Angela and Joe (§ 422 -- counts 3 & 4), and a misdemeanor count of contempt of 

 

1 Because of shared and similar surnames, for the sake of clarity, we will refer to the 

victims and witnesses by their first names. 

2 Further undesignated statutory references are to the Penal Code. 
2 

court. (§ 166, subd. (c)(1) -- count 8.) On appeal, he contends: (1) there was not 

substantial evidence to support the stalking and criminal threats charges as related to Joe 

(counts 4 & 7); (2) the consecutive sentences imposed on the stalking and criminal threats 

convictions (counts 2, 3, 4 & 7) violated section 654’s prohibition against multiple 

punishment; (3) the court imposed an unauthorized sentence by selecting count 2 as the 

principal term; (4) in finding no mitigating circumstances, the court did not exercise 

informed sentencing discretion; and, (5) the convictions for stalking Angela and contempt 

of court (counts 1 & 8) should be vacated given his conviction for stalking Angela while 

a temporary restraining order was in effect. We agree that the consecutive sentences 

imposed on counts 3 and 4 must be stayed under section 654 and that the conviction for 

count 1 must be vacated in light of the conviction on count 2. In all other respects, we 

affirm the judgment. 

FACTUAL BACKGROUND 

 Defendant and Angela were married in 1992 and divorced 10 years later. At the 

time of their marriage, Angela had two children from a previous relationship, a son and a 

daughter, who defendant raised as his own. Defendant and Angela also had two sons 

from their relationship. During the course of their relationship, defendant abused Angela 

and sustained battery convictions in 2001 and 2003. 

 After defendant and Angela’s relationship ended, Angela and Joe began a 

relationship around 2003 or 2004 that lasted about six years. Joe moved in with Angela 

and the children in 2004. 

 In 2006, defendant came to Angela and Joe’s home and argued with Angela about 

child support. Defendant was angry and yelling, and eventually broke a window in the 

house. As a result of this incident, defendant was convicted of domestic violence and 

Angela received a protective order against him. 

 On February 17, 2009, while driving home from work, Joe saw defendant driving 

toward the home Joe and Angela shared. Hoping to distract defendant from going to the 
3 

house, Joe drove away from the home. Defendant followed him for about three blocks, 

then reversed course and went to the home. Joe also went to the home, and when he 

arrived, defendant was there. There had been problems between the two in the past, 

arguments with a great deal of swearing and threats but no physical violence. When Joe 

got out of his car, defendant started swearing at him and threatening him. Joe told 

defendant he was calling the police. Defendant yelled, “Fuck you. I’m going to kill you. 

I’m going to kill your mom.” Joe had heard similar threats from defendant before, 

without having been subjected to actual violence, so he did not think anything of 

defendant’s threats. Joe called the police because he and Angela were “just tired of 

everything that was going on. We wanted to get rid of him . . . as much as we could out 

of our life.” Joe also called the police because there was a restraining order in place 

against defendant. 

 About one week later, after a night of drinking, Angela woke up and found her 

daughter sleeping on the couch. Joe was in the daughter’s bed. Angela yelled at him and 

asked what he was doing in her daughter’s bed. Defendant was still groggy from the 

night before and had not realized he was in the daughter’s bed rather than his own. 

 Throughout the day, Angela repeatedly tried to discuss the matter with Joe, but he 

would not wake up. Joe slept most of the day and could not be roused. Joe remained in 

bed until the afternoon when his bedroom door was kicked in and he was severely beaten 

by two men. Joe identified defendant as one of the assailants. He said he saw 

defendant’s face and heard him say, “I got you now, mother fucker,” and, “What did you 

do to my daughter?” Joe claimed the other man choked him, while defendant punched 

him in the face and ribs. They also slammed the door on his face several times. 

 Sometime between 3:00 and 4:00 p.m. Joe called Angela and told her, 

“[Defendant] jumped me.” Angela called 911. When emergency workers arrived, they 

found Joe unconscious on the floor. Joe was hospitalized for a week due to his injuries. 
4 

He had two orbital fractures and bruising on the left side of his body. Angela stayed with 

Joe in the hospital for a week, and then ended their relationship. 

 On March 7, 2009, a few days after leaving the hospital, defendant called Angela’s 

cell phone and said, “Bitch, once I find you, I’m going to kill you.” The threat frightened 

Angela and she refused to return home. Knowing what defendant had done in the past 

and what he was capable of, the threat made Angela very afraid. She “knew he was 

coming after [her] next.” She did not return to her home, instead she moved around and 

lived in different places. 

 On March 13, 2009, defendant called Angela again and said, “Bitch, once I find 

you, I’m going to kill you.” Having experienced defendant’s violence in the past, Angela 

was again very scared. 

 Also on March 13, 2009, more than two weeks after the assault and approximately 

one week after Joe was discharged from the hospital, defendant called Joe and said, “You 

think you’re going to get me locked up. Well you’re not. You fucked up.” He also 

threatened to kill Joe “this time.” This time Joe took the threat seriously because he 

believed defendant had recently acted on his violent threats and he was afraid defendant 

would do so again. 

 On March 31, 2009, defendant called Angela and said, “I’m going to catch you. 

Once I catch you, I’m going to kill you.” Angela remained very afraid of defendant 

because of his history of violence. She believed if he caught her, he would “have done 

some damage.” Defendant was not taken into custody until April 28, 2009. 

PROCEDURAL HISTORY 

 Defendant was charged with stalking both Angela and Joe (§ 646.9, subd. (a) -- 

counts 1 & 4), stalking Angela while a temporary restraining order was in effect (§ 646.9, 

subd. (b) -- count 2), making criminal threats against both Angela and Joe (§ 422 -- 

counts 3 & 7), assault with force likely to produce great bodily injury (§ 245, subd. (a)(1) 

-- count 5), first degree residential burglary (§ 459 -- count 6), and misdemeanor 
5 

contempt of court. (§ 166, subd. (c)(1) -- count 8.) As to the burglary charge, it was 

further alleged the dwelling was occupied. (§ 667.5, subd. (c)(21).) It was also alleged 

that defendant had sustained a prior serious felony conviction (§§ 667, subd. (d), 1170.12, 

subd. (b)) and a prior strike conviction. (§ 667, subd. (a).) As to counts 4 through 6, it 

was also alleged defendant inflicted great bodily injury. (§ 12022.7, subd. (a).) 

 Following a jury trial, defendant was found not guilty on the assault and burglary 

charges, and the great bodily injury allegations were found not true. He was found guilty 

on all the remaining counts. In bifurcated proceedings, the jury found the prior 

conviction allegations true. 

 The court denied probation and sentenced defendant to an aggregate term of 17 

years in state prison. Count 2 was designated as the principal term and the upper term 

sentence of four years, doubled pursuant to the strike, was imposed. On counts 3, 4 and 

7, the court imposed consecutive eight-month sentences (one-third the midterm), doubled 

pursuant to the strike. The court imposed a five-year term for the section 667, 

subdivision (a) prior strike conviction enhancement. The sentence on count 1 was stayed 

pursuant to section 654. 

DISCUSSION 

I 

 Defendant contends there is not substantial evidence supporting his convictions for 

stalking and making criminal threats against Joe. We are not persuaded. 

 “In reviewing a claim of insufficient evidence, we review the record in its entirety, 

considering the evidence most favorably to the prevailing party, and determine whether 

any rational trier of fact could have found the prosecution proved its case beyond a 

reasonable doubt. [Citation.]” (People v. Zavala (2005) 130 Cal.App.4th 758, 766 

(Zavala).) In making this assessment, we draw all reasonable inferences from the record 

in support of the judgment and do not weigh the evidence or decide the credibility of the 

witnesses. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) 
6 

Stalking 

 Defendant argues there is not sufficient evidence of stalking because that offense 

requires a course of conduct established by two or more acts, and here there are not two 

qualifying acts. He reaches this conclusion, by claiming the February 17 threat does not 

qualify because Joe testified he was not frightened by defendant’s threat to kill Joe and 

his mother; and, the alleged assault on February 26 does not qualify because the jury 

found defendant not guilty on that charge. Accordingly, he argues there is only one 

remaining qualifying act, the March 13 threat, and that is not sufficient to establish 

stalking. Defendant is wrong. 

 The elements of stalking are “(1) following or harassing another person; (2) 

making a credible threat; and (3) intending to place the victim in reasonable fear for her 

safety.” (People v. Uecker (2009) 172 Cal.App.4th 583, 594 (Uecker); § 646.9.) 

Harassing another person is directing a “course of conduct . . . at a specific person that 

seriously alarms, annoys, torments, or terrorizes the person . . . .” (§ 646.9, subd. (e).) 

Defendant’s argument relies on his parsing out each individual event and analyzing it as a 

discrete incident to determine whether it amounts to harassment. However, it is the 

entirety of the course of conduct that must be harassing, not each individual act within the 

course of conduct. That is, taken separately the acts need not be terrorizing or alarming, 

if when taken as a course of conduct, they rise to that level on a cumulative basis. (§ 

646.9, subds. (e) & (f); People v. Culuko (2000) 78 Cal.App.4th 307, 325.) Furthermore, 

contrary to defendant’s argument, it is not necessary that each individual act making up 

the course of conduct contain within it a credible threat. Rather, at some point in the 

course of conduct, a singular credible threat must be made. That threat may even be 

implicit in the pattern of conduct. In assessing the course of conduct and whether a threat 

occurred, we must consider the “entire factual context, including the surrounding events.” 

(People v. Falck (1997) 52 Cal.App.4th 287, 298; accord, Uecker, supra, 172 

Cal.App.4th at p. 598, fn. 10.) 
7 

 Viewing the evidence in the light most favorable to the verdict and in its entirety 

as a course of conduct, rather than discrete instances of conduct, we find there is 

substantial evidence supporting defendant’s conviction for stalking Joe. 

 Over the course of a number of years, defendant was repeatedly violent towards 

Joe’s girlfriend, Angela, and had a history of fights and arguments with Joe. This history 

included repeated fights at Joe and Angela’s home, with defendant screaming and yelling 

at them. As a result of one particularly violent argument at Angela’s and Joe’s home, 

there was a restraining order in place against defendant. Despite the restraining order, on 

February 17, defendant followed Joe for three blocks and then went to Angela and Joe’s 

home. When Joe arrived at the home shortly thereafter, he and defendant argued, with 

defendant yelling and swearing at Joe. Ultimately, defendant threatened to kill Joe and 

his mother. Because of the restraining order and the fact that Joe and Angela were “just 

tired of everything that was going on. We wanted to get rid of him . . . as much as we 

could out of our life,” Joe called the police. It was reasonable for the jury to conclude 

this incident was part of a pattern of conduct by defendant which Joe found seriously 

alarming or annoying. (See Zavala, supra, 130 Cal.App.4th at p. 767.) 

 A month later, after Joe accused defendant of severely beating him, defendant 

called Joe, referenced the beating accusation, and threatened to kill Joe “this time.” It 

was reasonable from the facts of this case for the jury to infer this was a credible threat 

made with the intention of placing Joe in fear. At the time of the phone call, Joe believed 

defendant had broken into his home and severely beaten him. Defendant knew this. 

Regardless of the accuracy of that belief, defendant’s phone call referencing the 

accusations and threatening the next beating would result in Joe’s death sought to utilize 

Joe’s belief to intimidate him and put him in fear. That the jury ultimately did not find 

defendant guilty of the assault, does not mean they could not consider Joe’s belief 

defendant had committed the assault in determining whether defendant was harassing 

Joe. (See Zavala, supra, 130 Cal.App.4th at p. 767, fn. 5.) This evidence supported not 
8 

only the conclusion Joe reasonably feared defendant but also that defendant acted with 

the intent to induce that fear. (People v. Falck, supra, 52 Cal.App.4th at p. 299; Uecker, 

supra, 172 Cal.App.4th at p. 597.) Considering the entire context of the case, the history 

between the parties, defendant’s course of conduct of following Joe, repeatedly showing 

up at his home in spite of a restraining order, and threatening him, it was reasonable for 

the jury to conclude defendant’s conduct towards Joe constituted harassment, as defined 

in the stalking statute. Accordingly, there was substantial evidence to support the 

stalking conviction. 

Criminal Threats3

 As to the criminal threats charge, defendant reiterates his claim that the February 

17 and 26 incidents are excluded from consideration, leaving only the March 13 phone 

call. With no analysis of the points, defendant simply asserts in conclusory fashion, “the 

threat was not so unequivocal, unconditional, immediate and specific that it 

communicated to [Joe] a serious intention and the immediate prospect that the threat 

would be carried out. [Citations.] Additionally, although [Joe] testified that he was 

afraid, the evidence did not sufficiently establish that his fear was ‘sustained.’ 

[Citations.] Finally, [Joe’s] fear was not reasonable under the circumstance when 

[defendant] was not guilty of the February 26 incident.” We agree that the February 17 

and 26 incidents cannot support the conviction for criminal threats, but disagree about the 

March 13 phone call. 

 “[T]o prove the offense of making criminal threats under section 422[,] [t]he 

prosecution must 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 

 

3 When, as here, “the First Amendment is not implicated, defendant's sufficiency of 

the evidence challenge is evaluated under the substantial evidence test. [Citations.]” 

(People v. Wilson (2010) 186 Cal.App.4th 789, 805.) 
9 

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 . . . 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.’ [Citations.]” (In re George T. (2004) 33 

Cal.4th 620, 630.) 

 “[S]ection 422 requires that the communication must be sufficient ‘on its face 

and under the circumstances in which it is made’ to constitute a criminal threat. This 

means that the communication and the surrounding circumstances are to be considered 

together. . . . ‘[I]t is the circumstances under which the threat is made that give meaning 

to the actual words used. . . .’ (People v. Butler (2000) 85 Cal.App.4th 745, 753 . . . .)” 

(In re Ryan D. (2002) 100 Cal.App.4th 854, 860.) That the threat must be “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,” 

does not mean the threat must be absolutely unequivocal, unconditional, immediate, and 

specific. Rather, these qualities are factors to be considered, along with all the 

circumstances surrounding the threat, to determine whether the threat conveyed a gravity 

of purpose and immediate prospect of execution to the victim. (In re George T., supra, 

33 Cal.4th at p. 635; People v. Bolin (1998) 18 Cal.4th 297, 340; People v. Smith (2009) 

178 Cal.App.4th 475, 480.) The history between the parties is also among the relevant 

circumstances to consider in assessing the sufficiency of the threat. (People v. Mendoza

(1997) 59 Cal.App.4th 1333, 1340.) 

 Defendant and Joe had a volatile and intertwined history. Since Joe was living 

with defendant’s ex-wife and children, defendant knew where Joe lived and had regular 
10 

access to the home. On at least one occasion at the home, defendant’s anger during a 

fight escalated to violence and resulted in the issuance of a restraining order. Joe was 

severely beaten when someone he identified as defendant broke into his home. 

Defendant knew of both Joe’s belief and the accusation to the police. Shortly after the 

beating, defendant called Angela on three separate occasions and threatened to kill her. 

Based on that threat, Angela was too afraid to return to the house.4 One week after Joe 

was discharged from the hospital, defendant called him, referenced Joe’s allegations and 

the beating and threatened to kill him “this time.” This threat is not equivocal, 

conditional or ambiguous. 

 To the extent this threat can be challenged, it is only as to whether the threat was 

sufficiently immediate. “Immediate,” as used in the statute, means “that degree of 

seriousness and imminence which is understood by the victim to be attached to the future 

prospect of the threat being carried out . . . .” (People v. Melhado (1998) 60 Cal.App.4th 

1529, 1538, italics omitted.) “‘A threat is not insufficient simply because it does “not 

communicate a time or precise manner of execution, section 422 does not require those 

details to be expressed.” [Citation.]’ [Citation.] . . . [T]he defendant must intend for the 

victim to receive and understand the threat, and the threat must be such that it would 

cause a reasonable person to fear for his or her safety or the safety of his or her 

immediate family. [Citation.]” (People v. Wilson, supra, 186 Cal.App.4th at p. 806.) 

Under the circumstances of this case, the threat to Joe met this standard. The threat was 

delivered by a man with a demonstrated willingness to commit violent acts, it came on 

the heels of continuing threats of violence to Angela, who Joe lived with, and Joe’s recent 

release from the hospital after having been severely beaten by a person he believed was 

defendant. Thus, the threat was sufficiently “immediate.” 

 

4 Although at that point, Joe and Angela had broken up, but because they shared a 

child, they continued to have a relationship and stayed in contact. 
11 

 There is also sufficient evidence to support the finding Joe was in sustained fear. 

Under the statute, “sustained” means “a period of time that extends beyond what is 

momentary, fleeting, or transitory. . . . The victim's knowledge of defendant's prior 

conduct is relevant in establishing that the victim was in a state of sustained fear. 

[Citation.]” (People v. Allen (1995) 33 Cal.App.4th 1149, 1156.) 

 Joe testified he took this threat from defendant seriously. He believed defendant 

had actually acted upon his earlier threats and would again. He also called the police 

about the threat. He knew defendant’s violent past. He knew defendant knew where Joe 

lived, regularly came into the home, had previously committed violent acts at the home, 

and Joe believed defendant had broken into his home to beat him. Defendant was not in 

custody when the call was made, and was not taken into custody until late April. During 

that time, defendant had access to Joe and his home. It was reasonable for the jury to 

infer from this evidence that Joe remained in fear that defendant’s threat would be carried 

out until such time as defendant was taken into custody. (See People v. Allen, supra, 33 

Cal.App.4th at p. 1156; People v. Fierro (2010) 180 Cal.App.4th 1342, 1349.) 

 As for defendant’s final complaint that Joe’s fear was not reasonable because 

defendant was found not guilty of the February 26 assault, we are not persuaded. It is 

true that the jury did not convict defendant of the February 26 assault. However, whether 

or not defendant actually beat Joe is not the point. The point here is that at the time, Joe 

believed defendant had beaten him. Defendant was aware of this belief and utilized that 

belief to instill fear in Joe, by threatening to kill him “this time.” It was not necessary 

that the jury find defendant actually committed the assault against Joe to appropriately 

consider Joe’s belief about the beating in assessing the reasonableness of Joe’s fear. 

Based on all the circumstances of this case, there was substantial evidence supporting the 

criminal threats conviction. 

II 
12 

 Defendant next contends the trial court erred in imposing consecutive sentences on 

the counts of stalking Angela while a restraining order was in effect (count 2), making 

criminal threats against Angela during the same period (count 3), stalking Joe (count 4) 

and making criminal threats against him during the same period (count 7).5 He argues 

the imposition of these consecutive sentences violates the section 654 prohibition on 

multiple punishments. Under the specific facts of this case, we agree defendant cannot be 

punished for both stalking and making criminal threats against Angela, nor can he be 

punished for both stalking and making criminal threats against Joe. Section 654 does not, 

however, prohibit defendant from being punished separately for the crimes against 

Angela and the crimes against Joe. 

 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 is 

intended “to insure that a defendant's punishment will be commensurate with his [or her] 

culpability.” (People v. Perez (1979) 23 Cal.3d 545, 552.) The statute bars multiple 

punishment for both a single act that violates more than one criminal statute and multiple 

acts, where those acts comprise an indivisible course of conduct incident to a single 

criminal objective and intent. (People v. Latimer (1993) 5 Cal.4th 1203, 1208; Neal v. 

State of California (1960) 55 Cal.2d 11, 19, disapproved on another ground in People v. 

Correa (2012) 54 Cal.3d 331, 334, 338.) Conversely, where a defendant commits 

multiple criminal offenses during a single course of conduct, he or she may be separately 

 

5 Defendant’s argument regarding the imposition of a consecutive sentence for 

stalking Angela (count 1) is obviated by our disposition of defendant’s claim that he 

could not be convicted both of stalking Angela and stalking her with a restraining order 

in part V of this opinion, infra. 
13 

punished for each offense that he or she committed pursuant to a separate intent and 

objective. (People v. Beamon (1973) 8 Cal.3d 625, 637-639.) Multiple criminal 

objectives may “be a predicate for multiple punishment only in circumstances that 

involve, or arguably involve, multiple acts. The rule does not apply where . . . the 

multiple convictions at issue were indisputably based upon a single act.” (People v. Mesa

(2012) 54 Cal.4th 191, 199.) Whether multiple convictions were part of an indivisible 

transaction is primarily a question of fact for the trial court. (People v. Coleman (1989) 

48 Cal.3d 112, 162; People v. Avalos (1996) 47 Cal.App.4th 1569, 1583.) We review a 

challenge under section 654 for substantial evidence to support the trial court's 

determination. (People v. Racy (2007) 148 Cal.App.4th 1327, 1336-1337.) 

 Stalking requires a course of conduct, that is, at least two acts, be directed at the 

victim. (§ 646.9, subd. (f).) Here, the conduct that constituted stalking as to each victim 

was part of a course of conduct consisting of multiple threats alleged to have occurred 

during the same time period against that same victim. As to Joe, in addition to the 

March 31 threat to kill Joe, the course of conduct included defendant following Joe home 

on February 17, arguing with him, threatening to kill Joe’s mother and violating the 

restraining order. The conviction for stalking Joe cannot stand without the conduct which 

also serves as the basis for the conviction for criminal threats against Joe. In other words, 

as to Joe, punishing both the stalking and the criminal threats is punishing the same single 

act. This violates section 654. 

 As to Angela, the course of conduct consisted of violating the restraining order 

and three separate threats to kill her. It is less clear that the conviction for stalking 

Angela rests on the same single act as the conviction for making criminal threats against 

her. The jury was given a unanimity instruction as to the criminal threats. That is, they 

had to agree as to which threat constituted a criminal threat. That threat could be 

excluded from the stalking charge and there would still be sufficient acts on which to 

sustain a conviction for stalking. Nonetheless, we find defendant cannot be separately 
14 

punished for both the stalking and criminal threats against Angela, as there was no 

evidence presented that suggested defendant had any objective in either the criminal 

threats or the stalking to do anything other than frighten and threaten Angela. The 

prosecutor did not argue there were any other distinct intents between the offenses. 

Rather, the prosecutor specified defendant’s intent in both stalking Angela (and Joe) and 

making criminal threats was to “scare, frighten, threaten.” On the record before us, we 

can discern no separate criminal objective between the stalking and criminal threats as to 

each separate victim. Thus, the convictions for making criminal threats against Angela in 

count 3 and stalking Joe in count 4 should have been stayed under section 654. 

 However, there is evidence to support the conclusion reached by the court that as 

to each separate victim, there were separate criminal objectives. These were different 

victims and different specific acts were alleged to each. In threatening and stalking 

Angela, defendant’s intent was to make her afraid. There is no evidence his purpose in 

threatening Angela was to make Joe afraid. Similarly, in threatening and stalking Joe, 

defendant’s intent was to make Joe fearful. There is no evidence his intent in committing 

those acts was directed at making Angela afraid. Accordingly, the court correctly 

imposed consecutive sentences as to count 2, stalking Angela in violation of a restraining 

order, and count 7, making criminal threats against Joe. (People v. Liu (1996) 46 

Cal.App.4th 1119, 1135.) 

III 

 Defendant next challenges the court’s selection of count 2 as the principal term, 

and the 17-year aggregate sentence imposed as a result of that selection. Defendant 

contends that the principal term must be the term which, combined with any applicable 

enhancements, results in the longest term of imprisonment. Defendant continues, count 

2, stalking in violation of a restraining order, had the longest available term of 

imprisonment when considered without an enhancement. However, he claims, stalking 

was not an offense to which the five-year prior serious felony enhancement could attach. 
15 

Rather, the enhancement could only attach to a serious felony, one of the criminal threat 

charges. Thus, the criminal threat count, with a maximum term of three years, combined 

with the five-year enhancement, represented the longest possible term of imprisonment 

and should have been selected as the principal term. We disagree. 

 Under section 1170.1, subdivision (a), “when any person is convicted of two or 

more felonies, . . . the aggregate term of imprisonment for all these convictions shall be 

the sum of the principal term, the subordinate term, and any additional term imposed for 

applicable enhancements for prior convictions, prior prison terms, and Section 12022.1. 

The principal term shall consist of the greatest term of imprisonment imposed by the 

court for any of the crimes, including any term imposed for applicable specific 

enhancements. . . .” (§ 1170.1, subd. (a), italics added.) The statute makes clear there are 

two distinct types of enhancements, those which specifically attach to the term of 

imprisonment for an underlying offense and those which add generally to the aggregate 

term of imprisonment. (People v. Tassell (1984) 36 Cal.3d 77, 90, overruled on a 

different point by People v. Ewoldt (1994) 7 Cal.4th 380, 401.) “In so doing, it makes it 

very clear that enhancements for prior convictions do not attach to particular counts but 

instead are added just once as the final step in computing the total sentence.” (People v. 

Tassell, supra, 36 Cal.3d at p. 90, fn. omitted.) 

 Sentence enhancements which add generally to the aggregate term of 

imprisonment are those that go to the nature of the offender; that is, they are attributable 

to defendant’s status as a repeat offender. These enhancements have nothing to do with 

the particular counts charged and do not attach to any particular underlying offense. By 

contrast, specific enhancements that attach to a particular term of imprisonment for an 

underlying offense are those that go to the nature of the offense. These enhancements 

arise from the particular circumstances of the crime and what defendant did when the 

offense was committed. (People v. Coronado (1995) 12 Cal.4th 145, 156; People v. 

Tassell, supra, 36 Cal.3d at p. 90.) These enhancements include issues such as firearm 
16 

use or infliction of great bodily injury. Defendant contends section 667, subdivision (a) 

is a specific enhancement which attaches to the current serious felony, rather than an 

enhancement based on his status as a recidivist. He is wrong. 

 Under section 667, subdivision (a), “any person convicted of a serious felony who 

previously has been convicted of a serious felony . . . shall receive, in addition to the 

sentence imposed by the court for the present offense, a five-year enhancement for each 

such prior conviction on charges brought and tried separately.” This five-year 

enhancement for a prior serious felony conviction was added as part of a statutory and 

constitutional scheme intended to “increase sentences for recidivist offenders.” (People 

v. Jones (1993) 5 Cal.4th 1142, 1147; see also People v. Williams (2004) 34 Cal.4th 397, 

404.) The language of the statute itself makes clear the enhancement is for the prior 

convictions, not the circumstances surrounding the commission of the current serious 

felony. The only requirement related to any current offense is that at least one conviction 

be a serious felony. This requirement does not make the enhancement a specific 

enhancement attaching to the serious felony, as the enhancement is unrelated to the 

manner in which the particular serious felony was committed. 

 Here, the current serious felony offense was making criminal threats. Making 

criminal threats is always a serious felony offense. The section 667, subdivision (a) 

enhancement did not allege anything that “enhanced” the manner in which the criminal 

threat was made, thereby making the threat itself worthy of greater punishment. Rather, 

defendant is deserving of greater punishment because this is not his first serious felony; 

that is, because of his recidivism. The enhancement pertains to a prior offense and 

defendant’s status as a repeat offender. Because the enhancement under section 667, 

subdivision (a) goes to the nature of the offender, rather than the offense, it does not 

attach to a particular offense. Accordingly, the court correctly computed defendant’s 

sentence designating count 2 as the principal term. 

IV 
17 

 Defendant also challenges the sentence imposed contending the trial court “failed 

to exercise an informed sentencing discretion” by finding there were no mitigating 

circumstances. Specifically, he argues the court disregarded the evidence that defendant 

was a good and loving father whose children needed him, and erroneously limited its 

consideration of mitigating factors to those delineated in the rules of court. We disagree. 

 Sentencing courts have wide discretion in weighing aggravating and mitigating 

factors (People v. Evans (1983) 141 Cal.App.3d 1019, 1022) and may balance them in 

qualitative as well as quantitative terms. (People v. Lambeth (1980) 112 Cal.App.3d 495, 

501.) We presume the trial court has considered all relevant criteria in deciding a 

defendant's sentence. (Cal. Rules of Court, rule 4.409.) Furthermore, we must affirm 

unless there is a clear showing that the chosen sentence was arbitrary or irrational. 

(People v. Hubbell (1980) 108 Cal.App.3d 253, 260.) 

 It is error for a sentencing court to disregard an undisputed factor in mitigation. 

(People v. Burney (1981) 115 Cal.App.3d 497, 505 [the trial court erroneously failed to 

consider circumstances in mitigation enumerated in former Cal. Rules of Court, rule 

423].) “However, many alleged factors in mitigation are disputable either because they 

may not be established by the evidence or because they may not be mitigating under the 

circumstances of a particular case. Where an alleged factor in mitigation is disputable, 

the court may find an absence of mitigating factors and need not explain the reason for its 

conclusion. [Citations.]” (In re Handa (1985) 166 Cal.App.3d 966, 973.) 

 Here, the court read and considered the probation report, sentencing briefs 

submitted by the parties, and letters from two of defendant’s sons. At the sentencing 

hearing, defendant and his daughter spoke. Angela also spoke at the sentencing hearing. 

 The court acknowledged the stormy familial relationships in the case created a 

difficult situation and that defendant’s children loved and respected him. The court found 

defendant’s prior record had led to the current more serious offenses, and that in 

particular because of his children, defendant should have worked on the problems which 
18 

led to this case. The court noted the various programs and opportunities defendant had 

been given, particularly with regard to domestic violence classes, and that he had not 

managed to benefit from them or to “put things right” for either himself or “[i]n a much 

bigger context . . . for [his] kids.” The court also reflected on defendant’s age, which 

should have come with some attendant maturity. The court recognized the children had a 

troubled history and while their troubles were not entirely defendant’s fault, he was a 

significant part of their difficulties. The court also reflected on defendant’s significant 

criminal history and the existence of a prior strike offense. Defendant’s criminal history 

included 14 convictions, eight domestic violence cases involving Angela and at least one 

other woman, and two current strike offenses. In the course of 10 grants of probation, 

defendant had 13 probation violations and was on probation when these offenses were 

committed. Based on the evidence before it, the court felt compelled to give defendant 

the upper term. 

 Defendant claims this record reveals the court “erroneously limited [its] 

consideration of mitigating factors to those specified in the rules . . . . The court could 

have and should have considered [defendant’s] loving relationship with his own and 

Angela’s children, his fatherly guidance, and this need of a loving dad as mitigating 

factors.” The court did not disregard defendant’s relationships with his children. In fact, 

the record reveals the court considered defendant's arguments, including his relationship 

with his children, but ultimately disagreed with defendant's conclusion that that 

relationship qualified as a mitigating factor. (See People v. Thompson (1982) 138 

Cal.App.3d 123, 127.) The mere assertion of a mitigating factor by a defendant does not 

establish that assertion as a fact. (People v. Regalado (1980) 108 Cal.App.3d 531, 538.) 

Defendant’s relationships with his children had not led him to benefit from the multiple 

opportunities he had been given to address his behavior and defendant was a significant 

contributing factor to his children’s difficulties. Considering these facts, and in view of 

defendant’s lengthy criminal history, multiple domestic violence offenses against the 
19 

mother of his children and at least one other woman, and failure to take advantage of 

multiple grants of probation and self-help programs, the court did not abuse its discretion 

in finding that a father’s love for his children, and their love for him, was not a mitigating 

factor under the circumstances of this case. 

V 

 Relying on People v. Muhammad (2007) 157 Cal.App.4th 484, 494 (Muhammad), 

defendant contends we should vacate his conviction for stalking under section 646.9, 

subdivision (a) (count 1), in light of his conviction for stalking in violation of a 

restraining order under section 646.9, subdivision (b) (count 2). The People properly 

concede that the conviction under section 646.9, subdivision (a) must be vacated. 

Although defendant argues that stalking is a lesser included offense of stalking in 

violation of a restraining order, it is not. Rather, under section 646.9, there is a single 

offense of stalking. The elements of the substantive offense of stalking are set out in 

section 646.9, subdivision (a). When that offense is committed under specified 

circumstances, the penalty provisions of subdivisions (b) and (c) are triggered. (§ 646.9, 

subds. (b) & (c); Muhammad, supra, 157 Cal.App.4th at p. 494.) These increased 

penalties are not substantive elements of the offense. (Id. at pp. 493-494.) 

 In this case, defendant committed the crime of stalking against Angela when a 

temporary restraining order was in effect protecting her. “Thus, at the time defendant 

committed the single offense of stalking, his history of misconduct satisfied” a separate 

penalty provision, which “required that he be subject to a greater punishment than 

imposed in section 646.9[, subdivision] (a). [Citation.] Though the single stalking 

offense was charged in [two] separate counts, defendant could be convicted of only one 

count of stalking.” (Muhammad, supra, 157 Cal.App.4th at p. 494, original italics.) 

In accordance with Muhammad, subdivisions (a) and (b) of section 646.9 do not 

create separate criminal offenses. As the same conduct forms the basis for the two 

charges, defendant cannot be convicted of having violated both subdivisions. Since count 
20 

2 was selected as the principal term, it is appropriate to affirm that conviction and vacate 

defendant’s conviction on count 1 for violation of section 646.9, subdivision (a). 

 Defendant also contends his conviction for misdemeanor contempt (§ 166, subd. 

(c)(1)) must be vacated as it is a lesser included offense of stalking in violation of a 

restraining order. The reasoning set forth above also controls the result on this issue. 

 Defendant’s argument here rests on the assumption that section 646.9, subdivision 

(b) defines a distinct substantive offense of stalking in violation of a restraining order. As 

above, it does not. (Muhammad, supra, 157 Cal.App.4th at p. 494.) “The provisions 

relating to the violation of a restraining order do not define a crime. They merely create a 

punishment enhancement.” (People v. Kelley (1997) 52 Cal.App.4th 568, 576, fn. 

omitted.) A penalty provision is not an element of the crime. (Muhammad, supra, 157 

Cal.App.4th at p. 494.) 

 A defendant may not be convicted of an offense that is included within another 

offense. (People v. Reed (2006) 38 Cal.4th 1224, 1227 (Reed).) To determine whether 

one offense is necessarily included within the other, we look to the statutory elements of 

the offenses.6 “[I]f the statutory elements of the greater offense include all of the 

statutory elements of the lesser offense, the latter is necessarily included in the former.” 

(Reed, supra, 38 Cal.4th at p. 1227.) 

 The statutory elements of stalking are: (1) the defendant willfully and maliciously 

harassed or willfully, maliciously, and repeatedly followed another person; (2) the 

defendant made a credible threat with the intent to place the other person in reasonable 

fear for his or her safety or for the safety of his or her immediate family; and (3) the 

 

6 Where, as here, the challenge is to a charged offense, we do not look to the 

accusatory pleadings. The pleadings are relevant only when the question is whether a 

defendant may be convicted of an uncharged crime. (Reed, supra, 38 Cal.4th at pp. 

1228–1231.) 
21 

defendant's conduct was not constitutionally protected. (§ 646.9, subds. (a), (f), (g).) The 

statutory elements of violating a court order are: (1) a court lawfully issued a written 

order; (2) the defendant knew about the court order and its contents; (3) the defendant 

had the ability to follow the court order; and (4) the defendant willfully violated the court 

order. (§ 166.) 

 Plainly, the statutory elements of stalking do not include all the elements of 

violating a restraining order. Accordingly, the crime of stalking can be committed 

without also violating a court order. Therefore, violation of a court order is not a lesser 

included offense of stalking. 

DISPOSITION 

 The conviction for count 1 is vacated. The consecutive sentences on counts 3 and 

4 are stayed pursuant to section 654. The trial court is directed to prepare an amended 

abstract of judgment reflecting these modifications and to forward a copy of the amended 

abstract to the Department of Corrections and Rehabilitation. As so modified, the 

judgment is affirmed. 

 NICHOLSON , J. 

We concur: 

 BLEASE , Acting P. J. 

 DUARTE , J.