P. v. Yang

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Filed 5/29/07 P. v. Yang 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Butte)
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THE PEOPLE,
Plaintiff and Respondent,
v.
CHANG YANG,
Defendant and Appellant.
C052449
(Super. Ct. No. CM024113)
Defendant Chang Yang pleaded no contest to first degree
burglary (Pen. Code, § 459) and making criminal threats (Pen.
Code, § 422). The trial court sentenced him to the upper term
of six years for the burglary count and a consecutive eight-
month term for the criminal threats count.
On appeal, defendant contends the sentence for the criminal
threats count should have been stayed pursuant to Penal Code
section 654 and his upper term sentence violates Blakely v.
Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely). We
agree that defendant’s sentence for making criminal threats
should be stayed and otherwise shall affirm the judgment.

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BACKGROUND
Since defendant pleaded no contest, the facts of
defendant’s crimes are taken from the probation report and the
preliminary hearing.
On October 30, 2005, Mai V was at her home in Oroville with
her children. Defendant is her ex-husband, and she had tried to
keep the location of her house a secret from him. Defendant
drove into Mai’s driveway and entered the house through the
front door. He was holding a knife and appeared to be upset.
Defendant wanted to talk to Mai about letting his pregnant
girlfriend live at her residence. When Mai refused, defendant
became more upset, brandished the knife, and threatened to kill
her. He said if anyone tried to call the police, he would kill
Mai and her children. Defendant took the battery from the only
phone in the house, preventing anyone from calling the police.
Defendant walked toward Mai with the knife as she tried to
run away from him. As she ran, defendant told Mai he was going
to get a gun from his car and show her “‘who was the boss.’”
When defendant left the house, Mai locked the front door and ran
toward the rear door. Defendant heard the front door lock and
immediately ran to the rear door. Mai locked the rear door
before defendant could reach it, so he punched through the
living room window, injuring his upper arm.
Defendant entered through the broken window and tried to
grab Mai. She ran outside, but defendant caught her by the arm
and started to drag her to the house. Gerardo Cuevas, who was

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driving by Mai’s house, reported the incident to the police.
When defendant saw Cuevas, he ran to his car and drove away.
DISCUSSION
I
Defendant claims his sentence for making criminal threats
should have been stayed pursuant to Penal Code section 654. The
People correctly concede this point.
Penal Code Section 654 prohibits punishment for two
offenses arising from the same act or from a series of acts
constituting an indivisible course of conduct. (People v.
Latimer (1993) 5 Cal.4th 1203, 1208, 1216.) Whether a course of
criminal conduct is divisible and gives rise to more than one
act within the meaning of section 654 depends on the intent and
objective of the actor. If all the offenses were incident to a
single objective, the defendant may be punished for only one.
(Neal v. State of California (1960) 55 Cal.2d 11, 19.) However,
if the defendant entertained multiple criminal objectives that
were independent of one another, he may be punished for each
offense committed in pursuit of each objective even though the
offenses were otherwise part of an indivisible course of
conduct. (People v. Harrison (1989) 48 Cal.3d 321, 335.)
Based on the record before us, defendant’s primary motive
was to assault or threaten Mai. The purpose of the burglary was
to assault or threaten his ex-wife, and the break-in allowed
defendant to make the criminal threats. Defendant’s criminal
conduct is thus indivisible, and his sentence for the criminal

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threats count should have been stayed pursuant to Penal Code
section 654.
II
Defendant contends his upper term sentence violates the
rule of Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d
435] (Apprendi) and Blakely, supra, 542 U.S. 296. We find any
Blakely error to be harmless beyond a reasonable doubt.
In Apprendi, the Supreme Court held that, other than the
fact of a prior conviction, any fact that increases the penalty
for a crime beyond the prescribed statutory maximum must be
tried to a jury and proved beyond a reasonable doubt.
(Apprendi, supra, 530 U.S. at p. 490.) For this purpose, the
statutory maximum is the maximum sentence that a court could
impose based solely on facts reflected by a jury’s verdict or
admitted by the defendant. Thus, when a sentencing court’s
authority to impose an enhanced sentence depends upon additional
fact findings, there is a right to a jury trial and proof beyond
a reasonable doubt on the additional facts. (Blakely, supra,
542 U.S. at pp. 303-305.)
In Cunningham v. California (2007) 549 U.S. ___
[166 L.Ed.2d 856], the Supreme Court held that by “assign[ing]
to the trial judge, not to the jury, authority to find the facts
that expose a defendant to an elevated ‘upper term’ sentence”
(id. at p. ___ [166 L.Ed.2d at p. 864]), California’s
determinate sentencing law “violates a defendant’s right to
trial by jury safeguarded by the Sixth and Fourteenth
Amendments” (ibid.). (Overruling People v. Black (2005)

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35 Cal.4th 1238 on this point, vacated in Black v. California
(2007) ___ U.S. ___ [127 S.Ct. 1210].)
One of the reasons the trial court gave for imposing the
upper term is defendant’s “history of violence involving his
spouse or cohabitant.” The probation report for defendant’s
present offenses refers to his prior felony conviction for
domestic violence against the victim. The trial court relied on
defendant’s prior conviction, in part, as a basis for denial of
probation.
The California Supreme Court has determined that the
exception to Blakely for prior convictions is not to be read
narrowly, concluding that the rule of “Apprendi does not
preclude a court from making sentencing determinations related
to a defendant’s recidivism.” (People v. McGee (2006)
38 Cal.4th 682, 707.) The exception to the rule of Apprendi and
Blakely thus “refers broadly to recidivism enhancements.”
(People v. Thomas (2001) 91 Cal.App.4th 212, 223.) Defendant’s
history of domestic violence is thus a factor related to
recidivism and therefore not subject to the rule of Blakely.
One valid aggravating factor is sufficient to expose
defendant to the upper term. (People v. Cruz (1995)
38 Cal.App.4th 427, 433.) We are satisfied beyond a reasonable
doubt that the trial court would have imposed the upper term
based upon defendant’s recidivism. Therefore, any error in
considering the facts that the victim was particularly
vulnerable and that the crime involved great bodily injury or
the threat of great bodily injury was harmless beyond a

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reasonable doubt. (See Washington v. Recuenco (2006) 548 U.S.
___, ___ [165 L.Ed.2d 466, 473, 476-477].)
DISPOSITION
The eight-month consecutive term imposed for defendant’s
conviction for making criminal threats is hereby ordered stayed
pursuant to Penal Code section 654. The trial court is directed
to prepare an amended abstract of judgment and to forward a
certified copy of the amended abstract to the Department of
Corrections and Rehabilitation. In all other respects, the
judgment is affirmed.
DAVIS , J.
I concur:
BLEASE , Acting P.J.
I concur except as to Part II, in which I concur in the result.
BUTZ , J.

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