P. v. Hunyadi
Filed 8/7/12 P. v. Hunyadi CA2/2
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
LOUIS JOSEPH HUNYADI,
Defendant and Appellant.
B232991
(Los Angeles
County
Super. Ct.
No. MA051099)
APPEAL from
a judgment of the Superior Court
of
County. Bernie C.
LaForteza, Judge. Affirmed with
modifications.
Adrian K.
Panton, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, Eric E. Reynolds and Allison H.
Chung, Deputy Attorneys General, for Plaintiff and Respondent.
* * * * * *
Louis
Joseph Hunyadi appeals from the judgment entered upon his conviction by jury of
two counts of assault with a firearm
(Pen. Code, § 245, subd. (a)(2), counts 1 and 2),
422, counts 3 and 4). The jury also
found true the special allegations that appellant personally used a firearm
(§12022.5, subds. (a) and (d)). The
trial court sentenced appellant to a prison term of 20 years and four months,
imposing consecutive sentences on each of the four counts. Appellant’s sole
consecutive sentences imposed on counts 3 and 4 violated section 654 because
the criminal threats were incidental to the assaults with a firearm.
We hold
that the trial court erred in failing to stay the sentences for the criminal
threat convictions (counts 3 and 4) pursuant to section 654 and will modify the
judgment accordingly. The judgment is
otherwise affirmed.
FACTS
Prosecution Case
In June 2010, appellant rented the southeast bedroom in a trailer
located on East Avenue I, in Lancaster.
On September 1, 2010, Teri Rene Bennett rented the northwest bedroom in
the same trailer. The landlord and his wife,
and another individual named Felix Ayala also lived in the trailer.
Appellant
and Bennett began a sexual relationship around the end of October 2010 which
lasted approximately one month. Bennett
ended the relationship because appellant was “hostile, disrespectful, and
aggressive.”
On the
night of November 23, 2010, Bennett and Thomas Tercero went to dinner. They planned to spend Thanksgiving in
Victorville and returned to the trailer around 9:00 p.m. so that Bennett
could pack a bag. They entered Bennett’s
bedroom and Tercero stood at the foot of the bed. As Bennett was packing her bag Tercero saw
appellant at the doorway to Bennett’s bedroom.
Appellant “cocked” a shotgun, aimed it at Tercero’s chest and said “I’ll
blow you away, and I’ll blow holes in your car.
Get the hell out of my house.”
Tercero froze and was in fear for his safety.
Bennett
moved between appellant and Tercero and attempted to “talk [appellant]
down.” Bennett grabbed the barrel of the
gun to prevent appellant from pointing it at Tercero. Appellant struck Bennett’s right eye three
times with the barrel of the gun causing a cut above her right eyebrow. Appellant yelled at Bennett, “I’ll kill you,
fucking bitch.” Appellant yelled
something about calling the police and then addressing Tercero said “I’m going
to shoot you both. If you don’t move,
I’ll blow her brains right out the back and shoot yours right into that door
behind you.” Tercero stated “Okay. Okay.
I’ll just leave,” and walked out of the trailer. Tercero then drove towards the front of the
trailer park and called 9-1-1.
Appellant
moved the gun to his side and put it down when Tercero left the trailer. Bennett tried to calm appellant down and
directed him back towards his room.
Bennett washed up in the bathroom and cleaned the blood from her
eye. Appellant entered the bathroom
without the shotgun and started another argument. Bennett followed him back to his room where
she told him “it’s going to be okay” and hugged him. She then grabbed her bag and left the
trailer.
Los Angeles
County Deputy Sheriffs Scott Smith and Jason Elizondo arrived at the trailer
park in response to a call about a man with a gun. Bennett called appellant on her cell phone
and gave the phone to Deputy Elizondo who asked appellant to exit the trailer. Appellant told Deputy Elizondo “Fuck
you. I’m not coming out,” and hung up
the phone. Appellant came out of the
trailer a few minutes later after a second telephone conversation with Deputy
Elizondo.
Deputy
Smith performed a protective sweep of the trailer to determine if any occupants
remained inside. He observed the barrel
of a shotgun protruding from underneath the bed in appellant’s bedroom. The shotgun was loaded and there was blood on
the end of the barrel. Tercero and Bennett
identified the shotgun as the weapon appellant pointed at them in the trailer.
Defense Case
Appellant
testified on his own behalf. At
approximately 2:00 a.m. on November 23, 2010, a drunken Bennett came into
his room. An argument ensued during
which Bennett punched and slapped appellant.
Appellant put his arms around Bennett and walked her out of his
room. Bennett returned a number of times
to yell at appellant and threatened to have her friends in Hells Angels kill
him.
That
evening appellant saw Tercero and Bennett enter and leave the trailer a number
of times. On one occasion after they
returned to the trailer appellant saw that Bennett had a cut over her right
eyebrow which she dabbed with a tissue.
Shortly afterwards he received two calls on his cell phone from Bennett
asking him to come outside. He received
a third call from Bennett’s cell phone and a male voice who claimed to be a
deputy sheriff asked him to come outside.
Appellant came out of the trailer and was arrested.
Appellant
admitted he owned a shotgun but that on November 23, 2010 it was unloaded and
put away in a pouch in a corner against the wall of his bedroom. He denied taking out the shotgun and pointing
it at anyone and denied threatening either Tercero or Bennett. He denied leaving the shotgun underneath his
bed and claimed that it had no blood on it when he last saw it about four days
prior to the incident when he cleaned it.
He stated that after he was arrested he saw both Bennett and Tercero in
his bedroom.
Rebuttal
Deputy
Smith testified that after appellant was arrested he was placed in the back
seat of a patrol car. Neither Bennett
nor Tercero were in the bedroom while the sweep was being conducted. The shotgun that was found underneath the bed
was shown to Bennett and Tercero while they were outside by the patrol vehicle.
Sentences for Criminal Threats Should Have Been Stayed Pursuant to
Section 654
Appellant
contends that the consecutive sentences for the criminal threat convictions
should be stayed because the course of conduct in which he engaged had the single
objective to instill fear. He contends
that the verbal threats to shoot Bennett and Tercero were incidental to the
assaults with the shotgun and merely served to enhance that fear and achieve
his objective.
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).) In People v. Perez (1979) 23 Cal.3d 545, the Supreme Court observed,
“. . . it is well settled that section 654 applies not only
where there was but one act in the ordinary sense, but also where there was a
course of conduct which violated more than one statute but nevertheless
constituted an indivisible transaction.
[Citation.] Whether a course of
conduct is indivisible depends upon the intent and objective of the actor. [Citation.]
If all the offenses were incident to one objective, the defendant may be
punished for any one of such offenses but not for more than one.” (Id.
at p. 551.)
“The resolution
of this question is one of fact and the trial court’s finding will be upheld on
appeal if it is supported by substantial evidence.” (People
v. Avalos (1996) 47 Cal.App.4th 1569, 1583.) One relevant consideration in determining
whether multiple crimes should be considered severable for section 654 purposes
is the “temporal proximity” of the crimes.
(People v. Evers (1992) 10
Cal.App.4th 588, 603, fn. 10.)
Making criminal
threats is a specific intent crime that occurs when the defendant “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 . . . .” (§ 422.)
The statement, “on its face and under the circumstances in which it is
made, [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, and thereby cause[] that person reasonably to be in
sustained fear for his or her own safety.”
(Ibid.)
An
assault with a firearm occurs when a defendant willfully performs
an act with a firearm with the present ability to apply force with it. (§§ 240, 245, subd. (a)(2); see
779, 787.)
Hearing
The prosecutor
filed a sentencing memorandum in which he recommended a total sentence of nine
years and four months. The prosecutor
recommended that sentence on counts 3 and 4 and the related personal firearm
use enhancements be stayed pursuant to section 654. The defense sentencing memorandum argued that
the sentences in counts 3 and 4 merged under section 654.
At the sentencing
hearing, the court indicated that it had read and considered the probation
report and the sentencing memoranda. The
trial court sentenced appellant to the upper term of four years on count 1
(assault on Bennett) based on the aggravating factors that the crime involved
great violence and the threat of great bodily harm, and that appellant lied on
the witness stand. The court selected
the upper term of 10 years on the related firearm use enhancement because
appellant had engaged in violent conduct that indicated a serious danger to
society and because of a prior arrest in 2006 for willful infliction of
corporal injury. (§ 273.5.)
The trial court
found that section 654 did not apply to the remaining counts “because they were
independent of and not merely incidental to each other.” The court stated that appellant “entertained
several criminal objectives.” The court
found that appellant had a criminal objective to assault Tercero in count 2 and
sentenced appellant to a consecutive term of two years and four months
(one-third of the middle term plus 16 months for the firearm use
enhancement). With respect to counts 3
and 4, the trial court found that appellant had separate criminal objectives to
intentionally threaten Bennett and Tercero.
The court sentenced appellant to consecutive terms of 2 years on each
count comprised of one-third the middle term (eight months) plus 16 months for
the firearm use enhancement. The
aggregate term of imprisonment was 20 years and four months.
Factually, the record indicates that all of the offenses occurred at the
same location, and as part of the same confrontation. The assault and
were incident to a single objective and were part of an indivisible
transaction. Case law
establishes that even when two offenses were committed by separate acts,
section 654 precludes separate punishment when the sole purpose for committing
one offense was to facilitate commission of the other. (See, e.g., People v. Latimer (1993) 5 Cal.4th 1203, 1216 [objective behind
kidnapping was to facilitate rape].)
The
People present a structured, step-by-step analysis of the incident which breaks
down appellant’s actions in the bedroom into separate distinct acts. They argue that appellant had one objective
to physically injure the victims and a separate objective to mentally terrorize
them. But appellant did not have an
opportunity to reflect between the assaults and the threats, and the trial
court’s finding that the threats created a new risk of harm and were
independent of the assaults is not supported by the evidence. (People
v. Felix (2001) 92 Cal.App.4th 905, 915.)
The
testimony of the victims describing the circumstances of the assaults supported
the fact that appellant harbored a single intent. The assault with the shotgun against both
victims occurred in the bedroom. Tercero
testified that as appellant approached the doorway to the bedroom appellant
cocked the gun and threatened to “blow [Tercero] away and put holes in
[Tercero’s] car.” Bennett testified that
it was after she interceded that appellant assaulted and threatened her. Bennett was asked by defense counsel “So when
you place yourself between Mr. Tercero and the shotgun, did Mr. Hunyadi
say anything to you at that specific moment”
Bennett responded “That is when he had threatened for me to move, or he
would shoot through both of us and into the door.”
Bennett’s
testimony regarding appellant’s behavior immediately after Tercero left the
trailer offered further support that appellant’s sole objective was primarily
to threaten Tercero. Bennett testified
that appellant put the gun down and went back to his room. When appellant returned to the bathroom where
Bennett was washing her eye she testified that appellant did not have the
shotgun. Bennett testified that an
argument ensued but there was no testimony regarding further threats and she
comforted him in his room before leaving the trailer.
The prosecutor relied on the same set of operative facts to find
appellant guilty of the assault and criminal threats (counts 2 and 4
respectively) against Tercero. During closing
argument the prosecutor stated, “The defendant comes in with a shotgun, and he
points it at Thomas Tercero’s chest. He
points it at his chest, ladies and gentlemen.
That is the assault. That is the
assault with the firearm, ladies and gentlemen.
He points it at Thomas Tercero’s chest.
What does he do He threatens
him. He says he is going to blow him
away. That is a threat, an immediate
threat he’s going to shoot Thomas Tercero with a shotgun that is pointed right
at Thomas Tercero’s chest.
and that is a threat.” (Italics
added.)
Similarly,
with respect to the assault and criminal threats (counts 1 and 3 respectively)
against Bennett, the prosecutor stated, “Teri Bennett testified she was in her
bedroom, packing in the bedroom. The
defendant comes in with the loaded shotgun, points it at Thomas Tercero, points
it at her forehead, says he’s going to shoot through her to shoot Thomas
Tercero. That is assault and that is a threat.
That is why he’s guilty of the criminal threats.” (Italics added.)
The People argue
that the trial court could have found that appellant had two separate
objectives: (1) to threaten Tercero
because appellant was under the impression that Tercero was Bennett’s friend
from Hells Angels sent to kill appellant, and (2) to prevent Tercero from
having a relationship with Bennett because appellant was interested in renewing
his recently terminated sexual relationship with her.
But what the
People characterize as objectives are more correctly described as motives
behind appellant’s actions. Motive is
different from intent, and is not an element of a crime. (People
v. Maurer (1995) 32 Cal.App.4th 1121, 1126.) While the motivations behind appellant’s
commission of the crimes charged may have been different, he had a single
criminal objective.
The cases cited by the People are
distinguishable. In People v. Nichols (1994) 29 Cal.App.4th 1651, 1654 (
for robbery and threatened to kill him if he “opened his mouth,” and the Court
of Appeal concluded that the defendant could be convicted for both acts as
there was substantial evidence that the defendant had two different
objectives: to hijack the victim’s truck
by kidnapping and robbing him, and to avoid detection and future conviction by
dissuading and intimidating him. (
The
court in Nichols noted that a
defendant’s criminal objectives are distinct if the defendant used different
means to achieve them, and the goals are attained at different times. (Nichols,
supra, 29 Cal.App.4th at pp. 1657–1658 [defendant’s first objective of
hijacking the truck was accomplished in two hours by means of threatening the
victim with a shotgun, while his second objective of avoiding detection was
ongoing and achieved by looking at the victim’s driver’s license, reading aloud
his address, and threatening future harm].)
In
1002, the defendant argued that he should not have been sentenced consecutively
on one count of arson and two counts of making terrorist threats because the
objective in both cases was to threaten and scare the victim. The Solis court disagreed, finding
that “in making the terrorist threats, the defendant intended to frighten
whereas in committing arson an hour later the defendant intended to burn. Because defendant committed multiple and
divisible acts with distinct objectives, section 654 was not violated by
sentencing him on both the arson and terrorist threat convictions.” (Id.
at p. 1022.)
Here,
unlike the cases cited by respondent, the assaults and threats took place at
the same time and each was a means of committing the other and advanced the
same objective, instilling fear in the victims.
DISPOSITION
The judgment is
ordered modified to reflect that the two-year consecutive sentences for the
criminal threat (§ 422) convictions (counts 3 and 4) are stayed pursuant to
section 654. As so modified, the
judgment is affirmed. The superior court
is ordered to send a certified copy of the corrected abstract of judgment to
the Department of Corrections &
Rehabilitation.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________, J.
DOI TODD
We concur:
____________________________,
P. J.
BOREN
____________________________,
J.
CHAVEZ
name="_ftn1" title="">[1] All
further statutory references are to the Penal Code unless otherwise indicated.
