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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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,

Plaintiff and Respondent,

v.

ROGER DAN DAVID,

Defendant and Appellant.

F064298

(Super. Ct. Nos. VCF258219 & 

VCF249268b)

OPINION

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.

-ooOooDefendant 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.

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.
3.

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.
4.

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 
5.

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.)
6.

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.)
7.

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.)
8.

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 
9.

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 
10.

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 
11.

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.)
12.

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 
13.

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.
14.

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
15.

(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.
16.

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 
17.

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 
18.

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.”
19.

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 
20.

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.
21.

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 
22.

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).)