P. v. Apiag
Filed 5/5/06 P. v. Apiag CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
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| THE PEOPLE, Plaintiff and Respondent, v. HERBERT E. APIAG, Defendant and Appellant. | C049226
(Super. Ct. Nos. 03F07843, 04F03284)
|
A jury convicted defendant Herbert E. Apiag of stalking (Pen. Code, § 646.9),[1] three counts of criminal threats (§ 422), and six misdemeanor counts of contempt of court for violations of a restraining order (§ 166, subd. (a)(4)). In a bifurcated proceeding, the jury found that defendant had a prior conviction for stalking that enhanced his current conviction (see § 646.9, subd. (c)), and a prior conviction that was a strike under the three strikes law (§§ 667, subds. (b)-(i), 1170.12).[2] Based on his current conviction, the trial court revoked defendant's probation in a case in which he had previously pleaded no contest to stalking. (§ 646.9, subd. (b).) The court sentenced defendant to state prison for an aggregate term of 14 years.
On appeal, defendant claims the trial court erred by:
(1) giving the jury an instruction on flight, and (2) imposing
a probation revocation fine pursuant to section 1202.44.
The People concede error as to the fine, and we shall accept the concession and order the trial court to correct the abstract
of judgment. We shall otherwise affirm the judgment.
FACTS
A. Background
A brief factual summary will suffice for an understanding of this appeal. Defendant and his wife, the victim in this case, were separated at the time of the offenses. She had a restraining order against him. Defendant harassed her over the course of several months. The harassment included repeated phone calls, some of which were threatening, as well as incidents in which he drove by (and sometimes stopped near) her home and her workplace. The victim kept logs documenting many of defendant's calls, and a recording of some phone messages he had left was also played to the jury. There were other witnesses to some of the harassment.
The victim contacted police on multiple occasions. Deputy Brian Amos of the Sacramento County Sheriff's Department spoke with defendant by telephone. During the conversation, defendant asked if Amos was going to come and arrest him. Amos testified: â€
