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Filed 8/25/14 P. v. Colondres 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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

(Nevada)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

DANIEL LUCAS COLONDRES,

Defendant and Appellant.

C073793

(Super. Ct. No. SF11-299)

Defendant Daniel Lucas Colondres challenges his sentence and conviction 

following a jury trial in which he was found guilty of attempted murder, attempted 

manslaughter, burglary, multiple counts of stalking, criminal threats, dissuading a 

witness, interfering with a communication device, and vandalism. Specifically, 

defendant contends (1) we should strike the enhancement for personal use of a deadly and 

dangerous weapon on count IV (criminal threats) because the enhancement was not 

alleged or instructed on that count; (2) there is insufficient evidence the attempted murder 
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was willful, deliberate or premeditated; and (3) defendant’s sentence on count VIII 

(interference with communication device) should be stayed because it was committed as 

part of a single course of conduct with the same objective as count VII (dissuading a 

witness). We agree execution of defendant’s sentence on count VIII should be stayed but 

otherwise affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant first met Shanti Reynolds when he was a high school student 

participating in a program at the hospital where Reynolds worked as a nurse. When his 

grandfather died, Reynolds invited defendant to live with her in one of her spare 

bedrooms, which he did for several months. Defendant moved out of Reynolds’s house 

in early 2006 after they had a disagreement about his attempt to kiss her. Reynolds did 

not hear from defendant again until late 2010, when he asked if he could come live with 

her again because he was having a difficult time. She allowed him to move back in for 

two months so he could find a job and a place to live. The arrangement worked fine in 

the beginning, but then defendant became involved with Reynolds’s friend and neighbor, 

Kendra Bishop.1 

Reynolds originally sent defendant to Kendra’s house to do some fence work, but 

Reynolds began to notice that defendant was sneaking out late at night. She eventually 

learned defendant and Kendra were having an extramarital affair and Reynolds fought 

with defendant and Kendra about it. At that point, Reynolds dropped defendant’s 

belongings at Kendra’s house with the intent defendant would no longer live with her and 

she asked him to return the key to her house. 

 

1 Multiple witnesses share the same surnames in this case. For clarity and convenience, 

we refer to them by their first names. We intend no disrespect.
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However, throughout early 2011, defendant continued to enter Reynolds’s house on at 

least five separate occasions; she believed he was entering through a dog door. In March 

2011, he also took her car from her closed garage without permission. After returning the 

car, he trespassed onto Reynolds property and entered her locked house without 

permission while she was present and proceeded to yell at her. She attempted to call 911 

but defendant took the phone from her and refused to let her use it. Reynolds 

unsuccessfully attempted to taze defendant. Reynolds eventually pressed the panic 

button on her alarm system, and defendant threatened that his gang friends were outside 

and would shoot her or anyone coming to the house, including the police. Defendant fled 

before law enforcement arrived. 

In April 2011, Reynolds began the process of obtaining a restraining order against 

defendant, and the court issued that order in May 2011. John Bishop (Kendra’s husband) 

served the restraining order on defendant. Reynolds was spurred to initiate the process 

after an incident where defendant stole her garden lights and broke into her house while 

she was present, wearing a mask, hat, and dark-colored outfit. When she informed him 

she had called the police, defendant asked Reynolds to open the door for him so he would 

not leave any fingerprints. When she refused, he pulled his sleeve over his hand and used 

it to open the door. When law enforcement arrived, he was gone. 

In early May 2011, John came to Reynolds’s house to speak with her. Shortly 

thereafter, defendant again appeared in her house; this time he wore a black mask, gloves, 

and a camouflage jacket, and he carried a hammer and a screwdriver. Defendant said he 

wanted to speak with Reynolds and to fight John. When John refused, defendant left and 

Reynolds called the police. When officers arrived, they found that two tires on John’s 

truck had been punctured and were flat. 

Then, in July 2011, Reynolds received a phone call that defendant was making 

calls from her residence. She called a neighbor, Jeff Love, who confirmed defendant was 
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in her house. Officers were dispatched and contacted defendant in Kendra’s back yard. 

Defendant was aware of the restraining order but had gone to Reynolds’s house to wait 

for her until she came from work regardless. 

On August 19, 2011, Kendra picked defendant up from work and brought him to 

her house. They had dinner and both began drinking. Kendra went to bed and awoke to 

defendant kneeling next to her bed with a sewing box in his hand. He began swearing at 

her and punched the light above her bed. He stormed out and punched holes in the 

hallway walls, closets, and cabinets. Before he left, defendant told her he thought her 

husband John was at Reynolds’s house and that he was going to go over there and kill 

him. Kendra tried to explain to him that John was not at Reynolds’s house and assumed 

he was not being serious, but was drunk. Defendant acknowledged he knew John was 

not at Reynolds’s house that night. Defendant took two knives from Kendra’s kitchen 

drawers before leaving. 

Shortly thereafter, Reynolds was awakened by her dog running across her bed. 

She looked over and saw a shadow leaning over her paramour, Taylor George, who was 

asleep in the bed next to her. Reynolds recognized the figure as defendant, who was 

wearing a black hat, black mask, black jacket, black gloves, and black pants. Defendant 

held a knife in his hand, which was raised over his head. Reynolds ran across the bed and 

began pushing defendant, who started punching George in the head. Reynolds turned on 

the light and recognized the knife in defendant’s hand as one from the Bishop residence. 

Defendant attacked them both and said “[w]e’re all going to die tonight.” 

In the fracas, Reynolds was cut by holding the serrated edge of the knife in her 

hand to keep defendant from stabbing her, and was ultimately stabbed in the hand, knee, 

and foot. Defendant stabbed George in the chest and back, and George also had 

defensive wounds on his hand from holding the blade of the knife. Reynolds screamed 

for help, and a few minutes later her neighbor, Pamela Love, came into the room and 
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shouted at defendant to leave. But defendant continued to attack George with the knife. 

Jeff came seconds later wielding a golf club. Jeff hit the knife out of defendant’s hand 

using the golf club, and when defendant continued to attack George and Reynolds, Jeff 

hit defendant on the side of the head with the golf club, twice. 

Defendant fled from Reynolds’s house leaving behind the bloodied knives. Law 

enforcement located him a few hours later, asleep on the floor of Kendra’s laundry room, 

smelling of alcohol. When his blood was tested at the hospital approximately an hour 

after he was taken into custody, defendant’s blood-alcohol level was 0.24 percent. 

Defendant was charged with the willful, deliberate and premeditated attempted 

murders of George and Reynolds (Pen. Code, §§ 187, subd. (a), 664, subd. (a)—counts I 

& II);2 residential burglary (§ 459—count III) in violation of section 462, subdivision (a); 

criminal threats (§ 422—count IV); stalking (§ 646.9, subd. (a)—counts V & VI); 

dissuading a witness by force or threat (§ 136.1, subd. (c)(1)—count VII); interference 

with a wireless communication device (§ 591.5—count VIII); vandalism (§ 594, subd. 

(a)— count IX); and disobeying a domestic relations court order (§ 273.6, subd. (a)—

count X).3 Defendant was also alleged to have personally inflicted great bodily injury 

(§ 12022.7, subd. (a)) in committing counts I and II; and to have personally used a deadly 

and dangerous weapon (§ 12022, subd. (b)(1) (hereafter section 12022(b)(1)) in 

committing counts I through III. It was further alleged that counts I through IV are 

serious felonies (§ 1192.7, subd. (c)) and counts I through III are violent felonies 

(§ 667.5, subd. (c)). The information also alleged defendant was not eligible for 

probation on counts I through IV because of his prior felony convictions. (§ 1203, subd. 

(e)(4).) Defendant pleaded not guilty and denied all enhancement allegations. 

 

2 Undesignated statutory references are to the Penal Code.

3 The People ultimately dismissed count X. 
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A jury found defendant guilty of attempted murder in count I, and found true the 

special allegations of deliberation and premeditation and use of a deadly weapon as to 

that count. On count II, the jury found defendant guilty of the lesser included offense of 

attempted voluntary manslaughter, and, as to that count, found true only the special 

allegation of use of a deadly weapon. The jury also found defendant guilty of first degree 

burglary as charged in count III, and found true the special allegations that a person was 

present and defendant used a deadly weapon as to that count. On count IV, the jury 

found defendant guilty of a criminal threat and found true that defendant used a deadly 

weapon in issuing that threat. The jury also found defendant guilty of two counts of

stalking, witness dissuasion, tampering with a telephone, and vandalism (counts V 

through IX). 

The court sentenced defendant to an aggregate determinate term of 92 months and 

a consecutive indeterminate term of 96 months to life, imposed various fines and fees, 

ordered defendant to pay restitution to the victims, and awarded defendant 672 days of 

presentencing credits (585 actual and 87 conduct days). 

DISCUSSION

I. Section 12022(b)(1) Enhancement

Defendant claims the trial court erred in imposing a section 12022(b)(1) 

enhancement on count IV (criminal threats) because it was not alleged in the information. 

The People argue defendant forfeited his objection by not raising it in the trial court. 

Generally, the failure to raise an issue in the trial court precludes raising it on appeal. 

(People v. Maury (2003) 30 Cal.4th 342, 427; People v. Ferrel (1972) 25 Cal.App.3d 

970, 976.) Even assuming the issue involves unauthorized sentencing error, which may 

be raised on appeal (People v. Smith (2001) 24 Cal.4th 849, 852; People v. Scott (1994) 

9 Cal.4th 331, 354), the contention has no merit. 
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A person generally cannot be convicted of an enhancement not charged in the 

information. (People v. Moore (1974) 11 Cal.3d 790, 792; People v. Ford (1964) 

60 Cal.2d 772, 794; In re Hess (1955) 45 Cal.2d 171, 174-175.) However, “where the 

information puts the defendant on notice that a sentence enhancement will be sought, and 

further notifies him of the facts supporting the alleged enhancement, modification of the 

judgment for a misstatement of the underlying enhancement statute is required only 

where the defendant has been misled to his prejudice.” (People v. Neal (1984) 

159 Cal.App.3d 69, 73.) 

We find People v. Riva (2003) 112 Cal.App.4th 981 (Riva) instructive on this 

issue. In Riva, the information alleged a section 12022.53, subdivision (d) enhancement 

with respect to two counts that charged the defendant with attempted voluntary 

manslaughter and assault with a firearm, but not with respect to a count of shooting at an 

occupied vehicle. The verdict forms asked the jury to determine the truth of the 

enhancement on all three counts. The defendant did not object and the jury found the 

allegation true for all counts. The trial court imposed the enhancement even as to the 

count for which it was not alleged. (Riva, at pp. 1000-1001.) 

The appellate court affirmed, even though section 12022.53, subdivision (j) 

requires that for the enhancement to apply it must “be alleged in the accusatory 

pleading.” The court’s interpretation of that statute was that it “only requires the facts 

necessary to sustain the enhancement be alleged in the information; it does not say where 

in the information those facts must be alleged or that they must be alleged in connection 

with a particular count in order to apply to that count. In [Riva] the prosecution complied 

with the literal language of the statute by alleging the enhancement in the information as 

to the charges of attempted voluntary manslaughter and assault.” (Riva, supra, 

112 Cal.App.4th at p. 1001, fn. omitted.) 
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The appellate court found that by pleading the enhancement in other counts, the 

prosecution put the defendant on notice he was being charged with the enhancement. 

Nor did the failure to plead the enhancement abrogate the defendant’s ability to challenge 

the factual basis of the enhancement; he was on notice from the allegation of the 

enhancement in other counts that he had to defend against the allegation that he 

intentionally fired a firearm and proximately caused great bodily injury. (Riva, supra, 

112 Cal.App.4th at pp. 1002-1003.) 

Here, defendant was placed on notice that he would have to defend against the 

allegation that he used a knife in the commission of his August 19-20, 2011 crimes 

because the enhancement was alleged in counts I, II and III of the information. Also, the 

evidence showed defendant used a deadly weapon, a knife, in issuing the criminal threat 

to Reynolds and George, “We’re all going to die tonight.” Neither defendant nor the 

record suggests defendant would have defended the case any differently if the 

enhancements had been alleged as to all four counts. Further, there was no objection to 

the court’s giving the verdict forms to the jury for the section 12022(b)(1) enhancement 

as to count IV, and the jury found the enhancement true as to that count. Thus, the court 

did not err in imposing a sentence on the enhancement as to count IV. 

II. Evidence of Attempted Murder of George

Defendant contends “the evidence was insufficient to support a finding that the 

attempted murder of Taylor George was done with premeditation and deliberation” as 

required by sections 189 and 664, subdivision (a). He does not dispute the attempted 

murder verdict but defendant claims there is insufficient evidence of motive to kill 

George (as opposed to John), and that the manner of the attack does not indicate the 

requisite degree of premeditation. While we accept defendant’s contention that his 

expressed desire and motive to kill John cannot be used as evidence of a motive to kill 

George (People v. Bland (2002) 28 Cal.4th 313, 327-328; People v. Stone (2009) 
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46 Cal.4th 131, 141), we still find substantial evidence to support the jury’s finding that 

defendant’s attempted murder of George was willful, deliberate, and premeditated. 

“ ‘To determine the sufficiency of the evidence to support a conviction, an

appellate court reviews the entire record in the light most favorable to the prosecution to 

determine whether it contains evidence that is reasonable, credible, and of solid value, 

from which a rational trier of fact could find the defendant guilty beyond a reasonable 

doubt.’ ” (People v. Wallace (2008) 44 Cal.4th 1032, 1077; Jackson v. Virginia (1979) 

443 U.S. 307, 317-320 [61 L.Ed.2d 560, 572-574].) We accord due deference to the 

verdict and will not substitute our conclusions for those of the trier of fact. (People v. 

Koontz (2002) 27 Cal.4th 1041, 1078.) A conviction will not be reversed for insufficient 

evidence unless it appears “that upon no hypothesis whatever is there sufficient 

substantial evidence to support [the conviction].” (People v. Redmond (1969) 71 Cal.2d 

745, 755.) 

“Deliberate” means “ ‘ “formed or arrived at or determined upon as a result of 

careful thought and weighing of considerations for and against the proposed course of 

action.” ’ ” (People v. Memro (1995) 11 Cal.4th 786, 862-863.) “Premeditated” means 

“ ‘ “considered beforehand.” ’ ” (Id. at p. 863.) “Premeditation and deliberation can 

occur in a brief interval. ‘The test is not time, but reflection. “Thoughts may follow each 

other with great rapidity and cold, calculated judgment may be arrived at quickly.” ’ ” 

(Ibid.) In determining whether the evidence supports an inference that the attempted 

murder occurred as a result of preexisting reflection, rather than unconsidered or rash 

impulse, appellate courts consider, among other things, evidence of the manner of killing, 

motive, and planning activity. (People v. Bolin (1998) 18 Cal.4th 297, 331-332.) And 

we consider the evidence in the light most favorable to the judgment. (Id. at p. 331.)

Here, substantial evidence supports the jury’s finding that defendant’s attack of 

George was willful, deliberate, and premeditated. Defendant dressed in black, put on 
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gloves, and donned a mask to hide his identity before going to Reynolds’s house in the 

middle of the night. (See People v. Woods (1992) 8 Cal.App.4th 1570, 1595 [donning a 

mask was evidence of planning, showing murder was premeditated and deliberate].) He 

armed himself with two knives from the Bishops’ home immediately before going to 

Reynolds’s home and attacking George. (People v. Morris (1988) 46 Cal.3d 1, 23 

[“Defendant’s possession of a weapon in advance of the killing” showed planning], 

disapproved on other grounds in In re Sassounian (1995) 9 Cal.4th 535, 544, fn. 5]; 

People v. Millwee (1998) 18 Cal.4th 96, 134-135 [“ample opportunity . . . to consider 

whether and how to use lethal force” showed premeditation].) And George was asleep 

and posed no threat to defendant when defendant stood over him holding a knife and 

began hitting him in the head. (People v. Lunafelix (1985) 168 Cal.App.3d 97, 102 [“The 

utter lack of provocation by the victim is a strong factor supporting the conclusion that 

appellant’s attack was deliberately and reflectively conceived in advance.”].)

Additionally, defendant knew John was not at Reynolds’s residence and 

recognized that the man in bed with Reynolds was not John, but he proceeded with his 

attack anyway. (People v. Stone, supra, 46 Cal.4th at p. 140 [“a person who intends to 

kill can be guilty of attempted murder even if the person has no specific target in mind”].) 

Further, while it is entirely probable defendant was motivated by jealousy of Reynolds’s 

amorous relationship given his escalating pattern of stalking Reynolds, the lack of a clear 

motive to kill George is not fatal to our analysis. (See People v. Anderson (1968) 

70 Cal.2d 15, 26-27 [premeditation and deliberation found on strong showing of 

planning, or on evidence of motive combined with lesser showing of planning or manner 

of killing indicating “ ‘preconceived design’ ” to kill].) 

Based on the foregoing, we find there was sufficient evidence for the jury to find 

defendant committed the attempted murder of George willfully, deliberately, and with 

premeditation. 
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III. Section 654 Stay of Count VIII

Defendant contends, and the Attorney General agrees, the court should have 

stayed execution of defendant’s sentence on count VIII (interference with a 

communication device) pursuant to section 654. We concur and modify the judgment. 

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).) Thus, the 

statute bars multiple punishments for multiple acts where those acts comprise an 

indivisible course of conduct incidental 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.) “Whether a course of criminal conduct is divisible . . . depends on the intent and 

objective of the actor.” (People v. Beamon (1973) 8 Cal.3d 625, 637, italics omitted.) 

“[I]f all of the offenses were merely incidental to, or were the means of accomplishing or 

facilitating one objective, defendant may be found to have harbored a single intent and 

therefore may be punished only once.” (People v. Harrison (1989) 48 Cal.3d 321, 335.) 

Here, defendant prevented Reynolds from reporting his unlawful presence in her 

home by taking and breaking her telephone. Both acts were committed simultaneously, 

in a single act, with a single objective. Accordingly, we stay execution of defendant’s 

sentence on count VIII. 

DISPOSITION

The judgment is modified to stay execution of defendant’s sentence on count VIII; 

in all other respects, the judgment is affirmed. We direct the trial court to prepare an 
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amended abstract of judgment and to forward a certified copy of the abstract to the 

Department of Corrections and Rehabilitation. 

 BUTZ , J.

We concur:

 BLEASE , Acting P. J.

 HOCH , J.