P. v. Costales

Filed 5/25/10 P. v. Costales CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

George Christian Costales appeals a judgment following his conviction of stalking. (Pen. Code,  646.9, subd. (a).)[1] We conclude, among other things, that: 1) substantial evidence supports the judgment, and 2) Costales has not shown that his two-year prison sentence was retaliation for his decision to proceed to trial instead of making a plea to the charges. We affirm.

FACTS

Stacy B. was a musician who used an Internet program called MySpace to "market" her music. She had "an open profile" to allow the public to go to her site. She began receiving disturbing e‑mails from Costales, a stranger from Michigan. One of his messages referred to "cocks" and "breast."

Stacy B. was so disturbed by the content of his messages that she used a security feature on her MySpace page to block him from leaving his profile and his comments. Costales discovered that she had blocked his access to her site. He posted a message stating, among other things, "[S]he has blocked me and has never uttered even one word to me. I do believe she loves me . . . . [] . . . Oh, hell, amI a fucking stalker? I visit her page every day. In my mind she's the perfect woman for me." (Italics added.) He created new profiles to avoid the blocking mechanism and continued to send messages.

Costales sent her 20 to 30 e‑mails. Typical messages were, "I love you. Can we meet. I can't stop thinking about you. I want you to shut up and kiss me. I want tofeel your ass." (Italics added.)

Costales initially sent several "invitations" for her to read his online blog. When she visited his site, she saw a picture of Costales "in his bathroom with his hand down his pants."

Costales again invited her to visit his MySpace page. When she did, she saw a black and white picture of her face. This site included a nine-minute video showing her face and a sound track with Costales laughing in the background. Stacy B. testified that on his site her face had been altered, it was "smeared" and "blurred out." She testified she was concerned by the "blurring out pictures of [her] face." There was also a headline stating "Chris the Fix [Costales] always getswhat he wants." (Italics added.)

Prior to October 29, 2008, Stacy B. had made no response to any of Costales's e‑mail messages or blog postings. On October 28, he sent her an e‑mail stating, "I want you to just shut up and kiss me! Stacy, the more I look at your ass, the more I want it in my arms, Baby. Please, let's meet this weekend. I'll try to act my age." (Italics added.)

After she received this e‑mail, she went to Costales's "online journal" on his blog and noticed that "he had made reference to coming out to California and references to [her] kids." She became concerned and contacted the police.

She sent Costales an e‑mail stating, "Chris, I received numerous messages from you. I have no interest in communication. Please do not send me any more messages or otherwise attempt to communicate with me. Sincerely, Stacy."

Costales continued leaving messages on his MySpace blog site for her. In one, he said he was coming to California to her house "within two weeks." Stacy B. testified that he "started blogging . . . every day," "documenting his trip" from Michigan to California. After reading his messages, Stacy B. moved out of her house and stayed with her boyfriend.

In one message, Costales said, "I would run to you if I knew where you were going to be. . . . Put on your light, then your pretty face. I will be back just after 8:00." In another, he said, "Don't freak out when I pull in front of your house . . . . I figure Sunday evening or by Monday morning, no doubt. I can't wait to see you."

Stacy B. testified she was afraid after Costales posted another message for her on his MySpace page stating, "You better not callthe police when I get there. LOL. Oh, hell, if you're tripping, please let me know somehow. LOL. I am so playing. I can read good. It won't be long now, Baby, and I'll be there in your hood." (Italics added.) Stacy B. believed his statement about not calling the police meant he was suggesting that "criminal activities [were] going to be going on."

Stacy B. testified that she was concerned by particular references he made in his messages. In one, he said, "You know Stacy, people can fall in love in a few different ways. . . . I have [fallen] in love with you in at least two. I loved the first [picture] I ever laid my eyes on . . . . That's the most common way. . . . [] [B]ut . . . don't for a minute thinkthat I have never thought of ripping off your clothes . . . ." (Italics added.) "Stacy with your silence alone, you have driven me to the brink of insanity and back again." (Italics added.) "I plan to seek you out, watching just for a moment, then walk right up to you. Expect mewhen you least expect me outside of a week but inside of two. . . . Now I'll go dream of tasting every square inch of you. Sweet dreams and good night, Stacy [B.]. [] . . . I know I'm not perfect, unlike my intention. [] . . . LOL. LOL. Sweet dreams, Stacy. I really missed you today. [] . . . [] Your flowers are dying." (Italics added.)

While traveling to California, Costales left another message on his blog site for Stacy B. "I'm not stopping anymore. I figure about sixteen hours now, Sweetheart, I'll be able to knock on your front door." (Italics added.)

On November 5, 2008, Katie Dyer, Stacy B.'s neighbor, saw Costales drive his van out of Stacy B.'s driveway. After he drove away, she called the sheriff's department.

Matthew Gonzalez, Stacy B.'s boyfriend, testified that on November 5th he saw Costales's van parked in Stacy B.'s driveway. Costales got out, went to the front door of her house and started knocking. When no one answered, he got into his van and "took off."

Later in the evening Sheriff's Detectives Eric Buschow and Allen Devers observed Costales walking toward Stacy B.'s house with roses in his hand. Costales approached the front of the house, "stare[d] into her front door," and then "paced back and forth" for a couple of minutes. When the porch light came on, he walked to the front door and was arrested.

At the station Devers asked Costales if he knew why he was arrested. Devers testified that Costales responded, "I'm a stalker" and "I didn't want to become a stalker." Costales told Devers that Stacy B.'s failure to respond to his messages "bugged him." He contacted someone at Verizon Wireless to obtain her home address. Costales indicated that the defense he would raise to criminal charges would be that he went to Stacy B.'s house to "ask her for a job." He felt he should be released to go back to Michigan because "this case was small, nobody got hurt."

DISCUSSION

I. Substantial Evidence

Costales contends there is insufficient evidence to show that he made a credible threat or that he intended to cause fear to the victim. He claims that consequently his stalking conviction must be reversed. We disagree.

In deciding the sufficiency of the evidence, we draw all reasonable inferences from the record in support of the judgment. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) We do not weigh the evidence or decide the credibility of the witnesses. (Ibid.)

Section 646.9, subdivision (a) provides, in relevant part, "Any person who willfully, maliciously, and repeatedly follows or willfully and maliciously harasses another person and who makes a credible threat with the intent to place that person in reasonable fear for his or her safety, or the safety of his or her immediate family is guilty of the crime of stalking . . . ." (Italics added.)

This statute defines "credible threat" to be "a verbal or written threat . . . or a threat implied by a pattern of conduct or a combination of verbal, written, or electronically communicated statements and conduct, made with the intent to place the person that is the target of the threat in reasonable fear for his or her safety or the safety of his or her family, and made with the apparent ability to carry out the threat . . . ." ( 646.9, subd. (g), italics added.)

A threat implied by a pattern of conduct may be shown by evidence that: 1) the defendant repeatedly watched, followed, and/or made numerous uninvited communications to the victim, 2) the defendant had "an obsessive desire" to be with, or to "engage in sexual acts" with the victim (People v. Falck (1997) 52 Cal.App.4th 287, 298), and 3) the communications implied that the defendant "was going to do whatever it took to get [the victim] to go out with [the defendant]" (People v. Uecker (2009) 172 Cal.App.4th 583, 594-595), or that the defendant's "desires took precedence over the victim's wishes" (Falck,at p. 298).

For intent to place the victim in fear, direct proof is not required. "[I]t is recognized that '[t]he element of intent is rarely susceptible of direct proof and must usually be inferred from all the facts and circumstances disclosed by the evidence.'" (People v. Falck, supra, 52 Cal.App.4th at p. 299.) In Falck, the Court of Appeal concluded that the defendant's intent "to cause fear in the victim" was shown "from the fact that he insisted on maintaining contact with her although she clearly was attempting to avoid him . . . ." (Ibid.) In People v. Uecker, supra, 172 Cal.App.4th at page 595, the court concluded that intent was shown by the fact that the defendant "wanted [the victim] to know he had been watching her."

Here there is sufficient evidence to support the finding of a credible threat and an intent to instill fear. Costales made repeated, unwanted and unsolicited communications to Stacy B. of a sexual nature. He invited her to his blog to see him posing with "his hand down his pants." He made comments on her blog about "cocks" and "breast." Stacy B. reasonably felt the messages from this stranger were "disturbing" particularly after he told her, "I want to feel your ass." (People v. Falck, supra, 52 Cal.App.4th at p. 298 ["obsessive desire to engage in sexual acts with the victim"]; see also Com. v.Chou (2001) 741 N.E.2d 17, 21 ["Sexually explicit language, when directed at particular individuals in settings in which such communications are inappropriate and likely to cause severe distress, may be inherently threatening"].)

When Costales's sexual obsessions are coupled with his MySpace video featuring the blurred picture of Stacy B., his laughter, and his headline stating that he "always gets what he wants," a trier of fact could reasonably find the type threat made in People v. Uecker, supra, 172 Cal.App.4th at page 595. There the court concluded that there was sufficient evidence of an implied threat to the victim's safety because the defendant indicated that "he was going to do whatever he needed to get [the female victim] to go out with him . . . ." (Ibid.)

Costales's conduct became more threatening after Stacy B. notified him not to bother her again. On his blog's online journal, Costales said he was coming to California to Stacy B.'s house in two weeks. He began blogging every day to document his trip from Michigan to California. In one blog posting, he informed Stacy B., "Don't freak out when I pull in front of your house." She had a reasonable fear for her safety when, in another posting, he said, "You better not call the police when I get there." (Italics added.) Stacy B. testified, "I felt like he was insinuating criminal activities [were] going to be going on."

Costales also told her he was stalking her when he posted a comment stating, "I'm not stopping anymore. I figure about sixteen hours now . . . I'll be able to knock on your front door." (Italics added.) In another posting, he said, "Oh, hell, am I a fucking stalker? I visit her page every day." He also said, "I plan toseek you out, watching just for a moment, then walk right up to you. Expect me when you least expect me." (Italics added.) In People v. Uecker, supra, 172 Cal.App.4th at page 595, the court concluded that the jury could find the defendant intended to place the victim in fear because he alerted her that "he had been tracking her." Here the jury also could find such intent because Costales alerted Stacy B. that he had stalked and would be stalking her. He let her know that wherever she was she should fear that he might be there. He continued to send her messages after he knew she had blocked his profile on MySpace and after he received her e‑mail telling him not to communicate with her. Moreover, his words were followed by actions. He found out where she lived and went to her house.

Costales appears to suggest that his messages were benign. But in one blog posting, he said, "[D]on't for a minute think that I have never thought of ripping off your clothes." (Italics added.) In another, he said, "Now I'll go dream of tasting every square inch of you." (Italics added.) He added, "Stacy with your silence alone, you have driven me to the brink ofinsanity"and "I plan to seek you out." (Italics added.) He told her to expect the unexpected and the inevitable "knock" on her door. The end of one blog posting included the message, "Your flowers are dying." (Italics added.)

Costales and the Attorney General disagree over whether the phrase "Your flowers are dying" is, by itself, a symbolic threat. Ambiguous language may constitute an implied threat when coupled with other evidence. (People v. Solis (2001) 90 Cal.App.4th 1002, 1013.) Here the jury could reasonably find that it was an implied threat, when coupled with: 1) Costales's act of blurring Stacy B.'s face on his video, 2) his warning not to call the police, 3) his statement that he was a stalker, 4) his statement that he was driven to the brink of insanity, 5) his anger at her refusal to respond, 6) his statements that he was coming to her house, 7) his remark that he always gets what he wants, and 8) his expressions about his sexual obsessions, "ripping off" her clothes, and his desire to "feel [her] ass" and "tasting every square inch" of her. His statements were so frightening to Stacy B. that she moved out of her house and stayed with a boyfriend.

Moreover, Costales's statements to police support an inference that he intended to stalk her regardless of her objections and he was motivated by anger. He said, "I'm a stalker." He also admitted that he was "bugged" with Stacy B. for not responding to his messages. His consciousness of guilt is shown by his statement to Devers that he could raise as a defense the claim that he went to her home to get a job.

Costales claims that because many of the messages were posted "on his own website," there was no intent to convey them to Stacy B. But that does not preclude a trier of fact from finding an intent to communicate the threat. (Huntingdon Life Sciences, Inc. v. Stop HuntingdonAnimal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1255-1256.) Moreover, here Costales invited Stacy B. to come to his website, and the content of his messages shows that he composed them specifically for her. Stacy B., having been stalked by a stranger and invited to his website, reasonably wanted to know his plans and the potential threats to her safety. Costales boldly announced his plans to Stacy B. and to the Internet world.

The evidence is sufficient.

II. Retaliatory Sentencing

Costales contends the trial court imposed a two-year prison sentence because he decided not to accept a plea. He claims the sentence was in retaliation for his election to exercise his constitutional right to demand a trial. We disagree.

A court may not impose a more severe sentence to retaliate against a defendant for requesting a trial. (In re Lewallen (1979) 23 Cal.3d 274, 281.)

Here, before the jury was selected, Costales's trial counsel announced that Costales had been offered a plea bargain. For entering a guilty plea, Costales would receive county jail time and be subject to a "ten-year protective order." Counsel said that Costales had rejected the offer.

The trial court said, "Just so everyone knows, that's the Court's pretrial offer. It is offered as somewhat of [an] incentive to resolve the case. It may be available after the trial. I certainly wouldn't count on it. My experience is the Court usually sees things as being more serious once they hear from all of the witnesses. [] So you can't count on that being available to you. In fact, it probably won't be, but if you want some time to think about it and you want to address the Court before we talk to the jury, that would be fine. After the jury comes in you should not count on that."

Costales claims the two-year sentence the trial court imposed is retaliatory because "[t]he original offer provided for one year incarceration if [he] pleaded guilty to the two charged felonies; [but] after [he] stood trial, he was sentenced to two years incarceration for only one felony."

But "[t]he mere fact . . . that following trial defendant received a more severe sentence than he was offered during plea negotiations does not in itself support the inference that he was penalized for exercising his constitutional rights." (People v. Szeto (1981) 29 Cal.3d 20, 35.)

Costales suggests that the trial court's statements show an intent to retaliate if he did not agree to the plea bargain. But the court was only advising him of the potential consequences. "'[A]ny defendant who chooses to proceed . . . takes the chance that the court will become apprised of information warranting a stiffer sentence than that discussed in prehearing negotiations.'" (People v. Angus (1980) 114 Cal.App.3d 973, 990.)

Here there was such information in the probation report. The probation officer stated that Costales "does not appear to be remorseful," that he had an "inability to judge personal boundaries" and that he blamed the police by stating they had "no grounds to arrest him." Stacy's B.'s life was substantially disrupted by Costales's actions. The probation officer noted that she had lost sleep, is "considering relocating her family," and is still afraid of him. The trial court found that Costales "has not recognized" his responsibility for what he did. That finding is supported by the facts in the probation report. The court also considered evidence admitted at trial, including the "sexual component" of his "written" and "video" communications. Costales has not shown that the court imposed this sentence to retaliate for his exercise of his constitutional rights.

The judgment is affirmed.

NOT TO BE PUBLISHED.

GILBERT, P.J.

We concur:

COFFEE, J.

PERREN, J.

Patricia M. Murphy, Judge

Superior Court County of Ventura

______________________________

Esther R. Sorkin, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Yun K. Lee, Corey J. Robins, Deputy Attorneys General, for Plaintiff and Respondent.

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[1] All statutory references are to the Penal Code.