Can a defendant be convicted of making a criminal threat under section 654 of the California Criminal Code?

Section 654, subdivision (a) provides, in pertinent part, "[a]n 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." Section 654 is intended "to insure that a defendant's punishment is commensurate with his [or her] culpability." (People v. Perez (1979) 23 Cal.3d 545, 552.) The statute bars multiple punishment for both a single act that violates more than one criminal statute and multiple acts, where those acts comprise an indivisible course of conduct incident to a single criminal objective and intent. (People v. Latimer (1993) 5 Cal.4th 1203, 1208.) Conversely, where a defendant commits multiple criminal offenses during a single course of conduct, he or she may be separately punished for each offense that he or she committed pursuant to a separate intent and objective. (People v. Beamon (1973) 8 Cal.3d 625, 637-639.)

In order to be convicted of making a criminal threat in violation of section 422, a defendant must willfully threaten to commit a crime that will result in great bodily injury to another person with specific intent that the statement be taken as a threat. (People v. Jackson (2009) 178 Cal.App.4th 590, 591.) In addition, there must be an immediate prospect of execution of the threat, and the threat must cause the victim to experience reasonable fear under the circumstances. (Ibid.)

The crime of assault is "an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." ( 240; People v. Navarro (2013)

Page 4

212 Cal.App.4th 1336, 1344.) It is unnecessary for any actual injury to occur. (People v. White (2015) 241 Cal.App.4th 881, 884.) A violation of section 245, subdivision (a)(1) requires that a defendant use a deadly weapon in the commission of the assault.