Filed 2/9/15

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

 Plaintiff and Respondent,

v.

DANA LEE RUSSELL WILSON,

 Defendant and Appellant.

 G048755

 (Super. Ct. No. 12HF2278)

 O P I N I O N 

Appeal from a judgment of the Superior Court of Orange County, Gary S. 

Paer, Judge. Judgment affirmed in part, reversed in part, and remanded with directions.

John E. Edwards, under appointment by the Court of Appeal, for Defendant 

and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant 

Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, 

Kristine Gutierrez, Jennifer Truong and Heather M. Clark, Deputy Attorneys General, for 

Plaintiff and Respondent.
2

A jury convicted defendant Dana Lee Russell Wilson of one count of 

assault with a deadly weapon (count 1; Pen. Code, § 245, subd. (a)(1))

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and three counts 

of making criminal threats (counts 2, 4, and 5; § 422). The jury further found that 

defendant personally used a deadly weapon (§ 12022, subd. (b)(1)) in connection with

count 2, and that he committed a secondary offense while released on bail as to count 4 

(§ 12022.1, subd. (b)). The court sentenced defendant to two years in prison on count 1 

and concurrent 16 month sentences on counts 2, 4, and 5. The court struck the weapon 

allegation on count 2 and the out-on-bail allegation on count 4. 

The only issue raised on appeal is whether defendant should have been 

convicted of and punished for two counts of making criminal threats (counts 4 & 5) based 

on a single 15 minute incident during which defendant continuously menaced the victim 

and (at least) twice threatened to kill the victim and his family. Defendant contends his 

behavior amounted to a single violation of section 422. We agree and therefore reverse 

defendant’s conviction on count 5, but otherwise affirm the judgment.

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FACTS

In counts 4 and 5, the operative information accused defendant of willfully 

and unlawfully threatening (§ 422, subd. (a)) victim Fernando Rosales on December 29, 

2012, causing Rosales “to reasonably be in sustained fear for his . . . safety and the safety 

of his . . . immediate family.” The information did not distinguish between these two

counts (e.g., by identifying disparate conduct as the basis for each count). The operative 

information also accused defendant of assaulting another victim with a deadly weapon 

 

1

All statutory references are to the Penal Code.

2

Obviously, this reversal has little practical impact, as the court ordered the 

16-month sentence imposed on count 5 to run concurrently with the two-year sentence 

imposed on count 1.
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(count 1) and issuing criminal threats to him (count 2) on August 7, 2012. Due to the 

limited nature of defendant’s appeal, we restrict our description of the facts to the 

December 29, 2012 incident involving Rosales. 

Evidence Regarding Counts 4 and 5

On the night in question, Rosales and his wife returned home from 

purchasing groceries. They observed defendant standing in their yard, urinating on a tree.

Rosales asked defendant to stop exposing himself, adding that his children could see what 

defendant was doing through the window of Rosales’s home. Defendant responded, 

“Fuck off. Everyone has to take a piss.” Defendant walked across the street as Rosales 

unloaded his groceries. 

Defendant then turned around and began “blabbering” something as he 

approached Rosales. Rosales tried to ignore defendant, and told him to “keep going on 

your way. Have a good night.” Defendant began yelling. Rosales’s wife came back out 

of the house and told defendant to leave or she would call the police. Defendant called 

her “the B word” and said he was “not afraid” of the police. As Rosales started walking 

toward his house, defendant said, “I’m going to give you and your family the New Year’s 

present. I’m going to kill you and all your kids and your family.” Defendant was very 

loud and appeared to be angry. Rosales told his wife to go inside and call 911. When 

Rosales asked defendant what he said, defendant reached for something in his pockets, as 

if he might pull a weapon out of his clothes. 

Rosales “saw he was drunk. . . . It didn’t concern me too much. Once he 

started getting closer, it started concerning me more and more and more.” Rosales was 

concerned for the safety of his wife and children at this point. 
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Rosales walked to his doorstep and took the phone from his wife. 

Defendant was yelling loudly. Both Rosales and his mother told defendant to leave. 

Defendant approached the doorstep and repeatedly said, “I’m going to kill you guys.” At 

this point, Rosales feared for his life and for the lives of his family members. 

Defendant’s mother also testified she was very frightened; defendant’s statements 

affected her “more than if he had hit” her. 

The police arrived. Defendant continued to yell and was uncooperative. 

He directed obscenities and derogatory racial comments at the police. The entire incident 

lasted approximately 15 to 20 minutes. Defendant acted “crazy” and unreasonably the 

entire time. 

Jury Instruction and Closing Argument

The jury was instructed on counts 4 and 5 with a modified version of 

CALCRIM No. 1300. The jury instruction consistently referred to Rosales as the victim 

and did not attempt to differentiate between counts 4 and 5. The instruction included the 

following element: “Five, the threat actually caused Fernando Rosales to be in sustained 

fear for his own safety or for the safety of his immediate family.” The instruction defined 

“sustained fear” as “fear for a period of time that is more than momentary, fleeting or 

transitory.” 

During rebuttal closing argument, the prosecutor explained why there were 

two separate counts, both identifying Rosales as the victim of defendant’s criminal 

threats: “In count[] 4, if you remember, the defendant went up to Fernando Rosales when 

he and his wife were trying to take groceries out and made a death threat, and that death 

threat was also specific to Mr. Rosales’ children. He threatened to kill those little kids, 

which is why he’s guilty of two separate counts of criminal threats that night. [¶] 

Because that first threat he made to Fernando Rosales not only dealt with Fernando, but 

specifically dealt with his kids. [¶] I asked Mr. Rosales at that exact moment were you 
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personally in fear for your own safety? Not so much at that point. What about your 

kids? Absolutely. He just threatened to kill my kids. I was in fear for my children’s life 

at that point. That’s count 4. [¶] Count 5 we look at a separate and distinct — Okay. 

Now we’ve moved away from the car. Fernando Rosales has retreated to his own 

property. He’s standing on his porch and the defendant comes back up to him and now 

he says again, further articulates ‘I’m going to kill you. I’m going to kill you, mother 

f’er.’ And Fernando Rosales at that point specifically told you I was also in fear for my 

own life at that point, not just my children’s life anymore as protector and provider, but 

now also myself, which means you are now guilty of a separate count, count 5.”

In sum, the operative information, the jury instructions, and the closing 

argument all indicated the prosecutor’s sole theory was that Fernando Rosales was the 

victim of both counts 4 and 5. Separate counts were alleged because two different 

threatening statements (both coming during the course of the 15-minute confrontation)

caused Rosales to suffer different types of fear.

DISCUSSION

Defendant contends he should have been convicted and punished for one 

count of criminal threats with regard to his conduct toward Rosales, not two. Our review 

is de novo because it depends on the interpretation of section 422 and on resolving mixed 

questions of law and fact. (People v. Carter (2005) 36 Cal.4th 1114, 1211; People v. 

Williams (2013) 218 Cal.App.4th 1038, 1048.)

“Any person who willfully threatens to commit a crime which will result in 

death or great bodily injury to another person, with the specific intent that the 

statement . . . is to be taken as a threat, even if there is no intent of actually carrying it 

out, which, on its face and under the circumstances in which it is made, is so unequivocal, 

unconditional, immediate, and specific as to convey to the person threatened, a gravity of 
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purpose and an immediate prospect of execution of the threat, and thereby causes that 

person reasonably to be in sustained fear for his or her own safety or for his or her 

immediate family’s safety, shall be punished by imprisonment in the county jail not to 

exceed one year, or by imprisonment in the state prison.”

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 (§ 422, subd. (a), italics 

added.)

Defendant does not contend his behavior fell short of a criminal threat; he 

concedes he was properly convicted of one count. Defendant also concedes he could 

have been convicted of multiple counts had the prosecutor pleaded and proved counts 4 

and 5 by naming a different victim for each count (e.g., perhaps Rosales on count 4 and 

his wife or mother on count 5). (See People v. Solis (2001) 90 Cal.App.4th 1002, 1023-

1025 [defendant properly punished on both counts of criminal threats because two 

victims were threatened].) But the prosecutor did not ask the jury to convict defendant 

twice based on his victimization of two individuals. The pleadings, the jury instructions, 

and the prosecutor’s closing argument all characterized counts 4 and 5 as applicable only 

to Rosales as the victim of defendant’s criminal threats. 

To answer the question presented, we must determine “[t]he proper unit of 

prosecution” for section 422 (People v. Whitmer (2014) 59 Cal.4th 733, 744 (conc. opn. 

of Liu, J.)), i.e.: Is every threatening communication a crime or do all threatening 

statements uttered in a single transaction amount to a single crime? “Answering a unit of 

prosecution question requires courts to determine when ‘the actus reus prohibited by the 

statute — the gravamen of the offense — has been committed more than once.” (Ibid., 

quoting Wilkoff v. Superior Court (1985) 38 Cal.3d 345, 349.) We also must decide

whether the Legislature intended to create two different crimes within section 422, by 

 

3

“For purposes of this section, ‘immediate family’ means any spouse, 

whether by marriage or not, parent, child, any person related by consanguinity or affinity 

within the second degree, or any other person who regularly resides in the household, or 

who, within the prior six months, regularly resided in the household.” (§ 422, subd. (b).)
7

identifying both the recipient of a threatening communication and his or her immediate 

family as qualifying objects of the threatening language. (See People v. Gonzalez (2014) 

60 Cal.4th 533, 537 [“the determination whether subdivisions [of a single statute] define 

different offenses or merely describe different ways of committing the same offense 

properly turns on the Legislature’s intent in enacting these provisions”].)

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These doctrinal generalities are better understood by way of three specific 

inquiries and hypothetical fact patterns. First, can multiple threatening utterances 

directed at a single victim, occurring over the course of a single confrontation, amount to 

multiple violations of section 422? For example, if Perpetrator makes 12 distinct 

references to imminent violence against Victim during a single 15-minute long tirade, can

Perpetrator be fairly charged with and convicted of a dozen counts of criminal threats? 

Second, can a single communication to a single victim that encompasses the threat of 

violence to multiple individuals constitute multiple violations of section 422? For 

instance, if Perpetrator screams (once) at Victim that he is going to kill the Victim, 

Victim’s wife, and Victim’s two children, can Perpetrator be charged with and convicted 

of two (or four) counts of criminal threats? Third, combining these questions to cover the 

facts of this case, can multiple statements that would each qualify as a criminal threat

towards the victim, referencing both the victim and his immediate family, delivered over 

the course of an uninterrupted 15-minute encounter and varying in their effect upon the 

 

4

The parties focus much of their briefing on sections 954 and 654. “Section 

954 generally permits multiple conviction[s for the same act or course of conduct]. 

Section 654 is its counterpart concerning punishment. It prohibits multiple punishment 

for the same ‘act or omission.’” (People v. Reed (2006) 38 Cal.4th 1224, 1227.) But 

“section 654 does not bar multiple punishment[s] for multiple violations of the same 

criminal statute.” (People v. Correa (2012) 54 Cal.4th 331, 334.) And the usual inquiry 

for courts applying section 954 is whether one count is a lesser included offense of 

another, in which case the court should strike the lesser. (See, e.g., People v. Benavides

(2005) 35 Cal.4th 69, 97.) Obviously, the instant case turns on different questions, as it 

involves two counts charged under the same Penal Code provision.
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victim (i.e., sometimes he is afraid for his family, sometimes for himself), constitute 

multiple violations of section 422?

To resolve these types of questions, courts must look to the particular 

characteristics of the crime at issue, including both (1) the factual circumstances of the 

defendant’s criminal conduct and (2) the elements of the crime as defined by the 

Legislature in the relevant statute. Sometimes, multiple convictions are appropriate for 

similar acts during a single course of conduct.

5

 Even a single act can result in two 

convictions under the same statute if the Legislature intends such a result.

6

 On the other 

hand, some statutes were written by the Legislature to authorize only a single conviction

for a wrongful course of conduct,

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or an act victimizing more than one person or violating

 

5

Multiple violations under section 289 may occur during a single sexual 

assault because section 289 prohibits “‘penetration, however slight,’” with a foreign 

object; “[i]t follows logically that a new and separate violation of section 289 is 

‘completed’ each time a new and separate ‘penetration, however slight’ occurs.” (People 

v. Harrison (1989) 48 Cal.3d 321, 329 [affirming three separate convictions because 

defendant’s “finger actually penetrated the victim’s vagina against her will three separate

times” during the same attack].) Two separate unauthorized entries into a building for 

purposes of committing felonies may result in two burglary convictions. “Under section 

459, burglary consists of an unlawful entry with the intent to commit a felony. Thus, the 

crime is complete, i.e., one may be prosecuted and held liable for burglary, upon entry 

with the requisite intent. [Citation.] It follows, therefore, that every entry with the 

requisite intent supports a separate conviction.” (People v. Washington (1996) 50 

Cal.App.4th 568, 578-579.) “[S]uccessive acts of violence against” a victim can result in 

multiple convictions for inflicting corporal injury on a cohabitant under section 273.5. 

(People v. Johnson (2007) 150 Cal.App.4th 1467, 1477.)

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A defendant may properly suffer two convictions under section 288a for a 

single act because oral copulation with an unconscious person (§ 288a, subd. (f)) and oral 

copulation with an intoxicated person (§ 288a, subd. (i)) were intended to be separate 

crimes. (People v. Gonzalez, supra, 60 Cal.4th at p. 535.)

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Section 270 allows only a single conviction for failing to provide child 

support, even if the lack of payment occurred over several consecutive months. (People 

v. Gregori (1983) 144 Cal.App.3d 353, 357, 360-361.) Collecting a series of welfare 

checks based on a single misrepresentation amounts to a single grand theft conviction. 
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the statute in more than one way.

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We conclude section 422 prohibits multiple convictions based on multiple 

threats toward a single victim during a single encounter. The appropriate unit of 

prosecution is indicated by section 422’s requirement that the victim “be in sustained fear

for his or her own safety or for his or her immediate family’s safety . . . .” (§ 422, subd. 

(a), italics added; see People v. Chandler (2014) 60 Cal.4th 508, 511.) Sustained fear 

occurs over “a period of time ‘that extends beyond what is momentary, fleeting, or 

transitory.’” (In re Ricky T. (2001) 87 Cal.App.4th 1132, 1140.) “Fifteen minutes of fear

. . . is more than sufficient to constitute ‘sustained’ fear for purposes of . . . section 422.” 

(People v. Allen (1995) 33 Cal.App.4th 1149, 1156; see People v. Fierro (2010) 180 

Cal.App.4th 1342, 1348-1349.) A violation of section 422 is not complete upon the 

issuance of a threat; it depends on the recipient of the threat suffering “sustained fear” as 

a result of the communication. It is not appropriate to convict a defendant of multiple 

counts under section 422 based on multiple threatening communications uttered to a 

single victim during a brief, uninterrupted encounter.

 

(People v. Bailey (1961) 55 Cal.2d 514, 518-520; see People v. Whitmer, supra, 59 

Cal.4th at p. 745 (conc. opn. of Liu, J.) [“Bailey was answering a unit of prosecution 

question, i.e., whether the acts in question constituted one offense or several offenses”].)

 

8

 Receipt of three different stolen goods in a single transaction should result 

in one section 496 conviction, not three, regardless of the provenance of the individual 

goods (i.e., the three goods were stolen from three different victims). (People v. Smith

(1945) 26 Cal.2d 854, 858-859.) Under a prior version of section 261, a defendant could 

not be convicted of both forcible and statutory rape for the same wrongful penetration. 

(People v. Craig (1941) 17 Cal.2d 453, 454-457, 459; see People v. Gonzalez, supra, 60 

Cal.4th at p. 539 [“Craig did not hold that a single Penal Code section could never 

comprise multiple offenses; it simply concluded, based on the wording and structure of 

the statute, that former section 261 set forth only one offense that could be committed 

under several different circumstances”].) 
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We also reject the notion that a single threat referencing violence against 

both a victim and his or her immediate family members, heard only by the victim, can 

constitute multiple offenses under section 422. The statute provides two alternative 

means by which the victim’s fear could manifest itself — fear for oneself or fear for 

one’s immediate family members. But there are not separate statutory subdivisions 

distinguishing between victims who fear for their own safety and victims who fear for 

others’ safety. Nor are there any other indications that the Legislature intended to create 

two separate crimes within section 422, subdivision (a), as opposed to identifying 

different circumstances in which the single crime defined by the statute can be 

committed. 

These two interpretive conclusions intersect in this case. Neither 

defendant’s utterance of more than one threat nor the shift in focus of Rosales’s fear over 

the course of the ordeal justifies two section 422 convictions. From the moment 

defendant approached Rosales near his car and threatened to kill Rosales’s family, the 

jury’s guilty verdicts necessarily suggest Rosales was in sustained fear throughout the 

entirety of the confrontation. It does not matter whether Rosales’s primary fear was for 

himself or members of his family at various times. Irrespective of the number of 

threatening statements and family members threatened, defendant was properly convicted 

of only one count under section 422 for his conduct toward Rosales.

In sum, section 422 authorizes only one conviction and one punishment per 

victim, per threatening encounter during which the victim suffers a single period of 

sustained fear, regardless of how many individuals are included within the scope of the 

threats or how many times the perpetrator repeats the threats. We reverse defendant’s 

conviction on count 5.
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DISPOSITION

The judgment on count 5 is reversed, and we modify the judgment by 

striking the conviction on that count. In all other respects, the judgment is affirmed. The 

trial court is directed to prepare an amended abstract of judgment and forward a certified 

copy to the Department of Corrections and Rehabilitation. 

IKOLA, J.

WE CONCUR:

FYBEL, ACTING P. J.

THOMPSON, J.