Filed 9/11/18 P. v. Braschler CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Harry M. Elias, Judge. Affirmed.

Janice R. Mazur, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

I.

INTRODUCTION

A jury found defendant Joseph Marvin Braschler guilty of one count of stalking his former girlfriend with a court order in place (Pen. Code,[1] § 646.9, subd. (b)) and one count of making a criminal threat against the same victim (§ 422). The trial court sentenced Braschler to the upper term of four years on count 1, and the upper term of three years, stayed pursuant to section 654, on count 2. The court also entered a criminal violence restraining order enjoining Braschler from having any contact with the victim and her husband for a period of three years.

Braschler appealed from the judgment of conviction and sentence. His appointed appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders) raising no specific issues. Braschler's appellate counsel asks this court to review the record independently for error as required by Wende. We granted Braschler the opportunity to file a supplemental brief on his own behalf, and he has done so. We have reviewed the briefing submitted by counsel and by Braschler, and we have independently reviewed the record under Wende; we have found no reasonably arguable issues for reversal on appeal. We therefore affirm.

II.

FACTUAL BACKGROUND

Between 2008 and 2016, Braschler and M.W. were in a dating relationship and lived together for most of that time. The two have a son together who was four years old at the time of trial.

M.W. ended the relationship in July 2016. She testified that she ended the relationship because of Braschler's daily "drunken chaos" and violent behavior.

M.W. testified regarding incidents that occurred in 2009, 2012, and 2014 in which Braschler threatened her with a knife. She also described an incident that took place in 2015 in which Braschler punched her while she was holding their son, and an occasion in 2014 when Braschler was "aggressive with [her] and [her] dad," when he hit a car window next to where she was sitting.

In 2015, Braschler sent text messages to M.W. in which he threated to shoot her father and brother.

After M.W. ended her relationship with Braschler, Braschler continued to try to communicate with her, virtually daily. M.W. told Braschler not to send her messages any more, and obtained a restraining order to try to stop the messaging. The court issued a permanent restraining order protecting M.W. and the parties' son, as of November 2, 2016.[2]

Even after the issuance of the restraining order, Braschler continued to text message M.W. frequently and consistently. M.W. called the police multiple times due to Braschler's messaging.

The People introduced an exhibit, which was a two-page print out of photographs of text messages that M.W. received on her cell phone from a cell phone number that Braschler had had for many years. M.W. received the messages between October 13 and October 18, 2016. The messages make reference to "how [M.W.] got the restraining order, how [she's] breaking it and it goes both ways," and states that she is "going to get locked up if [she] keep[s] -- he's going to push if [she doesn't] back off, and he doesn't want to do this but, um [she's] going down." M.W. called the police after receiving the text messages.

The People introduced another exhibit showing a print out of photographs of text messages that M.W. received on her cell phone from the same number as that from which the messages in the prior exhibit were sent. These messages were received between November 20 and December 1, 2016. The messages include vulgar sexual commentary and derogatory references to M.W.'s new husband. M.W. felt afraid and called the police in response to these messages.

The People also introduced an exhibit that was an eight-page print out of photographs of text messages that M.W. received from a different phone number, one that ended in 7199, between March 20 and April 24, 2017—which were the dates charged in the information. Although M.W. did not know the number to be one belonging to Braschler prior to that time, the first message that came through from the number was "[M.], this is Joey on my other phone number. Can you please help me find Cally a new home."[3] M.W. had no doubt that the messages came from Braschler because of the way that he referenced their dog, his father, and their son. One of the messages included a photograph of a finger with rings on it and bearing a tattoo; M.W. recognized the tattoo as one that was on Braschler's pinky finger. M.W. put the cell phone number that ended in 7199 in her phone as "Joey B. new."

The messages that came from the new number included statements that the sender would "smoke" M.W.'s new husband, that he would "have [M.W.] merked," which M.W. understood to mean that he would have her killed, that M.W. was "going to die tonight," that the sender was a hitman who kills people for money, and threatening statements about doing harm to M.W.'s family members, as well. M.W. was afraid and believed that Braschler was the person sending the messages and that he would follow through on his threats. She called the police.

Police contacted Braschler on or about May 26, 2017. At that time, he had in his possession a cell phone with a number that did not correspond with either of the numbers from which M.W. had received messages that she believed to have been sent by Braschler. The cell phone had a string of text messages to a contact identified as M.W.'s first name. The police cross-referenced text messages found on that cell phone with the text messages that M.W. had received, and some of the messages between the two phones corresponded.

The police did not recover a cell phone associated with the number ending in 7199. There was also no evidence presented as to who the cell phone carrier was for the phone associated with that number, the location from which the messages were sent, or who may have been the account holder for that number.

III.

DISCUSSION

As noted, Braschler's appointed counsel has filed a brief pursuant to Wende and Anders and has raised no specific issues on appeal. Instead, counsel identified two possible, but not arguable, issues pursuant to Anders:

(1) "Did the trial court err in admitting evidence of prior uncharged acts of domestic violence pursuant to Evidence Code sections 1101(b) and 352?"

(2) "Was the evidence sufficient to find that the text messages sent during the charging period were sent by the defendant?"

After this court received counsel's brief, we provided Braschler with the opportunity to file a supplemental brief. Braschler filed a supplemental brief in which he contends that there are "facts in [his] case" that "prove" that despite his counsel's briefing on appeal, there are arguable issues in his case. For example, he asserts that he is entitled to a retrial because (1) he was "found guilty in [his] case solely on circumstantial evidence alone" (some formatting omitted); (2) the threatening messages "came from a phone number that does not belong to [Braschler][,] proving [he] did not send the 'threatening messages' [he] was convicted of" (some formatting omitted); and (3) he purportedly was "never served with a restraining order before [he] was arrested for 'stalking ag[a]inst a restraining order" (some formatting omitted).

We have independently reviewed the record under Wende and have considered the possible issues identified by Braschler's counsel. We have found no reasonably arguable issues for reversal. Competent counsel has represented Braschler in this appeal.

IV.

DISPOSITION

The judgment is affirmed.

AARON, J.

WE CONCUR:

HALLER, Acting P. J.

O'ROURKE, J.