California Court of Appeal, Fourth District, Third Division
Appeal from a judgment of the Superior Court of Orange County No. 12HF2278, Gary S. Paer, Judge.
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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.
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)) 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.
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 (count 1) and issuing criminal threats to him (count 2) on August 7, ...