People v. Wong

27 Cal.App.5th 972

238 Cal.Rptr.3d 550

The PEOPLE, Plaintiff and Respondent,

v.KAM HING WONG, Defendant and Appellant.

B283174

Court of Appeal, Second District, Division 8, California.

Filed September 28, 2018

Thomas Owen, San Francisco, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Sacramento, Gerald A. Engler, Chief Assistant Attorney General, San Francisco, Lance E. Winters, Senior Assistant Attorney General, Los Angeles, Paul M. Roadarmel, Jr., Los Angeles and Daniel C. Chang, Deputy Attorneys General, for Plaintiff and Respondent.

BIGELOW, P.J.

Kam Hing Wong appeals from a judgment which sentences him to a life sentence for the attempted murder of his wife, Mei O.¹ Wong challenges his sentence on appeal, contending the trial court erred when it imposed to a single count three consecutive one-year enhancements for the use of deadly weapons. We agree Penal Code section 654² prohibits multiple punishment under these circumstances. We affirm the judgment but modify the sentence to stay the imposition of two of the three deadly weapon enhancements.

FACTS

The Attempted Murder

Mei and Wong met in China in October 2013 after Mei posted a personal ad in a Chinese-language newspaper. They married one month later. At the time, Mei lived in China and Wong lived in the United States. They spent the first two and a half years of their marriage apart, waiting for her visa to be granted. They spoke every day on the phone, however, and Wong visited Mei in September 2014.

Mei arrived in Los Angeles on March 30, 2016, soon after her visa was granted. The next afternoon, Wong asked her to cut his hair and brought out two pairs of scissors for her to use. Mei cut his hair and then continued to clean the house and perform other chores. After dinner, Mei and Wong had sex. Mei then went to take a shower.

Mei was washing her hair when she heard a bang and felt something strike her head. She initially believed the shower head had fallen on her. She soon realized Wong was stabbing her with the two pairs of scissors she had used to cut his hair. Mei fought back and asked why he was doing this. He replied that he wanted her to die. Mei fought with him and ran through the house to the front door. She felt Wong stab her in the back and shoulders multiple times as she tried to unlock the door. They were both struggling on the ground, which was wet with her blood, and Mei became dizzy from blood loss. She finally managed to take the scissors away from him and throw them behind the sofa.

She then saw Wong procure a 12-inch long knife, which he used to cut her from her kneecap to her shin. She wrested the knife away from him and threw it behind the sofa as well. With great difficulty, Mei managed to get up and run out the back door, which was unlocked. As she opened the back door, she felt something cut the back of her hip.

Once outside, Mei flagged down Lillian R.'s car. Lillian's mother was driving when they saw a nude person run out into the middle of the street, covered in blood. Lillian called 911.

Mei was transported to a nearby hospital, where she stayed for six days and was treated for 32 puncture wounds, not including superficial abrasions, and received over 100 stitches. The emergency room doctor noted multiple lacerations to her neck, head, chest, back, and abdomen. Because she was bleeding profusely from injuries to her head, the doctor closed the wounds on her scalp with staples to prevent a drop in blood pressure and damage to vital organs resulting from blood loss.

A search of Wong's house revealed a meat cleaver with what appeared to be blood on the handle and the blade as well as a small knife with a red substance on its handle. The police observed blood all over the wooden floors in the living room and on the walls near the front door as well as in the bedroom and bathroom. Two pairs of scissors and a 12-inch long knife were found underneath the couch. They appeared wet with blood. There was a trail of blood leading from the back door to the intersection where Mei was discovered.

Wong was arrested and confessed after waiving his Miranda³ rights. Wong admitted to trying to kill Mei because he suspected she was having an affair. In addition, he blamed her for his older son moving in with his girlfriend, and he believed he would lose his house as a result of the application for her visa.

The Trial

Wong was charged with attempted, willful, deliberate, and premeditated murder. (§§ 664/187, subd. (a).) It was further alleged that in the commission and attempted commission of this offense, he personally used three deadly and dangerous weapons, scissors, a butcher knife, and a knife (§ 12022, subd. (b)(1) ), and that he personally inflicted great bodily injury upon the victim (§ 12022.7, subd. (e) ).

At trial, the People presented testimony from Mei and other witnesses regarding the events as described above. Wong testified he lost control because he believed Mei was cheating on him. He explained that Chinese tradition dictated the bedding on a wedding night should be red in color, signifying a festive and happy event. On their wedding night in China, however, Mei used green pillow covers with a note inside stating, "at home there is a well-mannered wife." He believed the green color of the pillowcase was tantamount to giving him a green hat to wear. In Chinese folklore, a man who wore a green hat was being cuckolded by his wife. He did not mention this suspicion to her at the time.

When Wong visited Mei again in 2014, she used an even bigger green towel for his pillowcase. He did not confront her about it while he was in China, because he did not want to argue with her. However, he did ask her about it when they spoke over the phone after he returned to the United States. He told her that "every Chinese knows that when you use a green towel as a pillow it means that you're giving the green hat to the husband to wear." Although she understood the significance of it, she denied having an affair, and responded, "[E]ven if you point me with a gun then I would not admit to it."

Wong testified he was not happy when Mei arrived in Los Angeles, but he welcomed her anyway. He explained he "lost control" after he found two green-colored towels in his clothes as he was preparing to take his shower. He immediately felt dizzy and really angry, because he viewed those towels as proof that she had been unfaithful. He admitted he stabbed her repeatedly with a pair of scissors and a small knife, but denied wanting to kill her. The defense also presented testimony from a doctor, who testified Mei's injuries were not life-threatening.

The jury found Wong guilty of attempted murder and found the special allegations to be true.

The Sentence

Wong was sentenced to life in state prison, plus a consecutive term of five years for the great bodily injury enhancement, plus three consecutive one-year terms for each of the deadly weapon enhancements.⁴

Wong objected to the imposition of the three one-year terms for each of the deadly weapon enhancements, contending section 1170.1, subdivisions (f) and (g), prohibited the imposition of more than one deadly weapon enhancement and one great bodily injury enhancement. The trial court rejected Wong's argument, finding that section 1170.1 applies only to determinate sentences, not indeterminate sentences. The trial court relied on People v. Williams (2004) 34 Cal.4th 397, 19 Cal.Rptr.3d 619, 98 P.3d 876 ( Williams ), and reasoned, " Williams couldn't have been more clear that 1170.1 simply does not apply to indeterminate sentences. There is no getting around that; so I think the analysis is under 654. So I tend to agree with the People, at least the way in which the conduct occurred here, is that the defendant, according to the evidence, independently and separately chose a new weapon each time he lost one or it was knocked out of his hand, thrown across the room, broken, or the victim fled. It seemed to be then that while it was in a way in this course of conduct it was a separate reach for each dangerous, deadly weapon to be carrying out the attempted murder in a different way each time. I think under that analysis, it doesn't violate 654."

The trial court acknowledged that Williams addressed "multiple counts and whether you can have additional weapons enhancements for each count. This is a slightly different issue, whether one can have multiple weapons enhancements as to a single count. I don't think necessarily Williams answers it entirely." However, it concluded, "I actually have the Williams case in front of me. It does state on page 402 that, quote, ‘section 1170.1, however, applies only to determinate sentences. It does not apply to multiple indeterminate sentences.’ So I think the analysis that controls here is that under 654, and the way the conduct unfold[ed] here, and the way in which the multiple dangerous and deadly weapons were used here, I think that it is permissible, appropriate, and indeed required for the court to impose the three separate one-year sentencing enhancements consecutively."

Wong timely appealed.

DISCUSSION

Wong contends the trial court erred in imposing three consecutive one-year terms for each of the deadly weapon enhancements on the single attempted murder count for which he was convicted. We agree.

I. Governing Law

In People v. Ahmed (2011) 53 Cal.4th 156, 133 Cal.Rptr.3d 856, 264 P.3d 822 ( Ahmed ), the California Supreme Court addressed the issue of how multiple enhancements interact when they are attached to one offense. There, the defendant shot his girlfriend in the stomach with a handgun. Based on this act, a jury convicted him of assault with a firearm and found true two enhancement allegations: personal use of a firearm (§ 12022.5, subd. (a) ) and infliction of great bodily injury under circumstances involving domestic violence (§ 12022.7, subd. (e) ). ( Ahmed, at p. 160, 133 Cal.Rptr.3d 856, 264 P.3d 822.) The appellate court...