P. v. Deltoro

Filed 3/10/06 P. v. Deltoro CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Carla Singer, Judge. Affirmed.

Terrence Version Scott, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Ronald A. Jakob and Andrew S. Mestman, Deputy Attorneys General, for Plaintiff and Respondent.

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Steven Celina Deltoro was convicted of stalking Rosa Cortez, burglarizing her home, threatening her, attempting to dissuade her as a witness, and battery. Deltoro contends Cortez's extrajudicial statements were improperly admitted at trial under the prior inconsistent statement hearsay exception. He also alleges the jury instruction on stalking conflicted with the allegations in the information, and the burglary instruction was erroneous. Finally, Deltoro asserts sentencing error under Penal Code section 654.[1] None of Deltoro's contentions have merit. Accordingly, we affirm the judgment.

FACTS

An information charged Deltoro with stalking (§ 646.9, subd. (a)), two counts of first degree burglary (§§ 459, 460, subd. (a)), making a criminal threat (§ 422), attempting to dissuade a witness (§ 136.1, subd. (b)(1)), misdemeanor battery (§ 242), misdemeanor violation of a protective order (§ 273.6, subd. (a)), and misdemeanor assault likely to produce bodily injury (§ 245, subd. (a)(1)). Also alleged were three serious or violent felony prior convictions, a prior serious felony conviction for purposes of section 667, subdivision (a)(1), and a prior prison term within the preceding five years for purposes of section 667.5, subdivision (b).

Early Contacts Between Deltoro and Cortez

At trial, Officer Cordell Nash testified he interviewed Cortez at her work location on September 24, 2002. Cortez had a black eye, acted withdrawn, and was afraid to get the police involved due to her fear of Deltoro. During the interview, Cortez told Nash the following: She met Deltoro at an L.A. Fitness gym in early September. On the night of September 10, they went out on a date, planning to go to the beach, but Deltoro wanted to stop at his aunt's house first. He invited Cortez into the home to meet his aunt, but once inside, Cortez found no one else there. Deltoro made them drinks and they started kissing, but when he aggressively tried to unzip Cortez's pants, she resisted. Deltoro called her a â€