Filed 4/16/21 P. v. Flannery CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Glenn)

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This case comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). Having reviewed the record as required by Wende, we affirm the judgment.

We provide the following description of the procedural history and facts of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)

FACTUAL AND PROCEDURAL BACKGROUND

A jury found defendant Kevin Joseph Flannery guilty of stalking in violation of a court order (Pen. Code,[1] § 646.9, subd. (b); count I) and 47 counts of violating a restraining order (§ 273.6, subd. (a); counts II-XLVIII). Imposition of sentence was suspended and defendant was placed on probation for five years on the condition, among others, that he serve one year of incarceration on count I plus a consecutive year of incarceration on count II. The court stayed the imposition of sentence on the remaining counts “pending violation of probation.” He was awarded 130 days’ custody credit and 130 days’ conduct credit on count one and no presentence credit on count two. In addition, he was ordered to pay a $4,900 restitution fine (§ 1202.4), a $4,900 restitution fine suspended unless probation is revoked (§ 1202.44), a $400 Domestic Violence Fund fee (§ 1203.097, subd. (a)(5)(A)), and a $35 administrative fee.

TRIAL EVIDENCE

Prosecution’s Evidence

In December 2010, the victim lived in Willows with defendant, her then-husband, and their children. Early in the month, defendant got mad at the victim, “kind of trapped” her in the laundry room of their home, and “head-butted” her, which “hurt a lot” and caused her nose to bleed. The victim reported the incident to the police.

Around Christmas 2010, the victim walked downstairs to a bathroom and tripped over a fishing line that defendant intentionally had placed in her path. She turned and saw two mattresses, one on top of the other, on which defendant had spray painted the words “chicken shit” and “hide bitch.” She believed the words were intended for her, because defendant had made similar references on other occasions.

Sometime in December 2010 or January 2011, defendant and the victim drove to Santa Cruz. When they passed a truck towing a woodchipper, defendant remarked, “that’s what I’m going to put you in if I find you cheating on me.” The remark made the victim concerned for her personal safety.

In early January 2011, another incident occurred in the laundry room. Defendant came within inches of the victim’s face, stepped on her feet, spit in her face, and threatened to kick her “ass.” She telephoned 911.

Also in early January 2011, an incident occurred at a sandwich shop. Defendant told Flannery “if he ever found [her] cheating with anybody or doing anything like that he was going to chop [her] up in little pieces and eat [her].” She believed him. His behavior had become “so unpredictable that [she] didn’t really know what to believe anymore.” She “certainly thought that he was capable of doing that.”

In January 2011, the victim obtained a temporary restraining order because defendant was “scaring [her] nightly, in the middle of the night.” Following a hearing, the court issued a permanent protective order. Almost immediately thereafter, the victim and the children moved to her father’s residence in Nevada. Defendant remained at the Willows residence.

After the permanent protective order was issued, defendant continued to contact the victim by telephone and e-mail and also sent her letters and packages. The first contact was early on February 18, 2011, when defendant left a voicemail message from a telephone number the victim did not recognize. In the voicemail, defendant said, “I want to talk to you.” Thereafter, he left 23 voicemail messages for the victim and her 13-year-old daughter. Some of the messages made the victim concerned for her safety. She believed he would try to wear her down psychologically in order to persuade her to return to him.

The next day, defendant left a message telling the victim “I would hide too” and “I would be scared too.” The message scared and terrified her.

That same day, defendant disguised his voice and left a message stating, in the third person, that defendant was “going to come get those kids, he’s on his way to get those kids.”

On February 20, 2011, defendant left a message claiming the protective order was “a bunch of bologna” because he already had violated it and there had been no adverse consequences. In a call later that night, defendant spoke in an angrier voice about how Flannery had “played him.”

After the victim changed her telephone number, defendant began calling their daughter’s telephone number. On February 27, 2011, defendant left a message stating he would “come after [his] kids and may have to do a little frickin’ more than that.” The victim did not know where defendant was or when he might appear. She was afraid he would “come down and hurt [her], take [their] kids and hurt [her], or hurt all of us.”

The victim’s father personally heard some of the messages defendant had left for her. For example, the father heard the message in which defendant had said he was coming to get the children and might have to do something more. The father described defendant’s tone of voice as “semi-elusive, his normal tone, a little sharper, a little crisp on the phone, not relaxed.” The father believed the messages “were all threatening. They all had an edginess about them.”

Telephone records documented 46 incidents in which defendant had contacted or attempted to contact the victim. The calls were made at all hours of the day and night, and they made her “very nervous” and “very on alert.” She was continually looking over her shoulder because every noise was a concern. She felt both threatened and harassed.

Defense Evidence

Defendant testified on his own behalf. He acknowledged that the restraining order had been entered and that he had violated the order by making the telephone calls. Defendant estimated that he had made 18 to 20 telephone calls to the victim or their daughter. He also had sent letters and packages to the victim and their children at the residence of the victim’s parents.

Defendant testified that his live-in girlfriend, her two sons, and defendant’s son all have access to the Willows house. Defendant did not know whether any of those people was responsible for some of the 46 contacts with the victim, her daughters, or her parents.

Defendant testified that none of his letters or telephone contacts were threatening. He denied making comments about a woodchipper and denied head butting the victim. He admitted that he placed the mattresses downstairs, in an open basement, and that he wrote on the surface of the mattresses. He said the writing was a warning to some children next door who had been entering the open basement, rummaging through his tools, and taking whatever they wanted.

In closing argument, defense counsel suggested that the victim’s testimony might be for the purpose of frustrating defendant’s attempts to share custody of their children.

DISCUSSION

We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. With this court’s permission, defendant has filed three supplemental briefs. We denied permission to file a fourth.

I. First Supplemental Brief

Defendant contends his right to bail or own recognizance release was violated because, as he told the trial court, he is “not a risk.” The court concluded otherwise, reasoning that victim “is scared for her life because of [defendant’s] conduct” and that “the allegations suggest [defendant is] an absolute threat.” The evidence later adduced at trial well substantiated the allegations. No abuse of discretion in setting the amount of bail is shown.

Defendant appears to contend his trial counsel rendered ineffective assistance at the preliminary examination. But he has not shown that he was deprived of a fair trial or otherwise suffered prejudice as a result of error at the preliminary examination. Thus, any claimed error does not compel reversal of the judgment. (People v. Pompa-Ortiz (1980) 27 Cal.3d 519, 529.)

Defendant claims his confrontation rights were violated at the preliminary examination because an investigating detective presented hearsay evidence of statements made by the victim. However, use of such hearsay at a preliminary examination to establish probable cause is authorized by article I, section 30, subdivision (b), of the California Constitution and Penal Code section 872, subdivision (b) and does not violate defendant’s federal or state confrontation rights. (Whitman v. Superior Court (1991) 54 Cal.3d 1063, 1076-1078.)

Defendant claims he had been subjected to excessive fines and suspended sentences. However, as he concedes, these matters have since been rectified upon motion by his appellate counsel. In light of his concession, no prejudicial error is shown.

Defendant claims his trial counsel violated his rights because the jury found him guilty in August 2011, but counsel did not file notice of appeal until December 2011. Defendant overlooks the fact that sentencing did not occur until October 2011. Counsel timely filed notice of appeal within 60 days thereafter.

Defendant claims his trial counsel rendered ineffective assistance when he failed to discuss the case with defendant’s friend who had attended the preliminary examination. The claim is based, not on the appellate record, but on Exhibit 2 to defendant’s supplemental brief, a two-page letter from the friend. Claims of ineffective assistance of counsel founded on matters outside the appellate record must be raised in a petition for writ of habeas corpus. (People v. Lucero (2000) 23 Cal.4th 692, 728-729.)

Defendant claims the prosecutor misrepresented certain facts of the case during his opening statement to the jury. Our review of the trial evidence shows that the prosecutor adequately substantiated the representations he had made in the opening statement.

Defendant argues his trial counsel rendered ineffective assistance because, immediately prior to jury selection, he informed the trial court that he has not seen the prosecutor’s list of witnesses. After the court read the names of the three witnesses--the victim and two Willows police officers--trial counsel remarked, “No surprises there, your Honor.” Thus, counsel evidently had anticipated that each person would be called as a prosecution witness. Defendant does not explain how any delay in viewing a formal witness list could have prejudiced him, and no prejudice appears.

Defendant next addresses a letter authored by his brother and a credit report on the victim, attached as Exhibits 4 and 5 to his supplemental brief. We do not consider these exhibits because they were not before the trial court and are not a part of the appellate record. Defendant’s reliance on matters outside the appellate record is misplaced.

Defendant’s next argument addresses “the new evidence that is for my case I feel is important.” The argument is based on the findings and order after hearing in a family law case, records of an e-mail account, an attachment to a pleading in another family law case, a letter to the Glenn County courts from defendant, several Willows Police Department reports regarding defendant, and a declaration of Flannery in a family law case. Because these materials are outside the appellate record, we do not consider them.

Defendant contends CALCRIM No. 226 was improperly edited to omit two factors, “Did the witness admit to being untruthful?” and “What is the witness’s character for truthfulness?” The trial court and counsel for both sides reviewed the instructions off the record and disagreements as to particular instructions were placed on the record; no disagreement as to the challenged omission was noted. Defendant has not shown that any prosecution witnesses admitted to being untruthful, or that any evidence was presented as to the character of a prosecution witness (the victim, her father, or the investigating police officer). Thus, omission of the disputed factors could not have prejudiced defendant.

Defendant complains that CALCRIM No. 252 was edited to omit the first sentence, “The crime charged in count 1 requires proof of the union or joint operation of act and wrongful intent.” However, the trial court omitted that language in response to an objection by defense counsel, not at the behest of the prosecutor as defendant suggests. Defendant does not contend the evidence raised any issue regarding lack of joint operation of act and intent. It is not reasonably probable that defendant could have fared any better had the omitted sentence been given with the rest of the instruction. (People v. Breverman (1998) 19 Cal.4th 142, 149, 177; People v. Watson (1956) 46 Cal.2d 818, 836.)

Defendant also claims the prosecutor “used [CALCRIM Nos.] 300,[2] and 301[3] to limit the burden of proof and to make it easy for [the] jury to convict on [a] single witness.” The record shows that both instructions were given in their unmodified form. Defendant does not allege any infirmity in the pattern versions of these two instructions. No error is shown.

Defendant’s reliance on People v. Owens (October 24, 2011, C065956) [nonpub. opn.] is misplaced because that opinion was not certified for publication. (Cal. Rules of Court, Rule 8.1115(a).) No violation of defendant’s fair trial rights are shown.

Defendant lastly contends his trial counsel rendered ineffective assistance in that he “did nothing in [defendant’s] defense to say anything to the character of the victim.” But the present record sheds no light on why counsel did not challenge the victim’s character, and he was not asked to explain. The California Supreme Court has “repeatedly stressed ‘that “[if] the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged[,] . . . unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation,” the claim on appeal must be rejected.’ ” (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266 (Mendoza Tello).) Here, counsel rationally could perceive an attack on the victim’s character to be ineffective or counterproductive. The claim is more appropriately decided in a habeas corpus proceeding. (Id. at pp. 266-267.)

II. The Second Supplemental Brief

Defendant filed a supplemental brief containing “new evidence” in the form of four exhibits culled from prior domestic relations litigation between himself and the victim. None of this “new evidence” was before the trial court in the present criminal proceeding. It requires no further discussion.

III. Third Supplemental Brief

In his third supplemental brief, defendant returns to the theme of the prosecutor’s opening statement to the jury. Defendant misquotes the prosecutor as having argued “this marriage was a lot like other marriages, has its ups and downs, and what’s particular [sic] relevance to this case, why you’re all here today, is the lowest point of their marriage.” Defendant claims this statement was not true because their marriage “was not like others, it had more than it’s [sic] up’s [sic] and down’s [sic].” (Both italics added.)

In fact, the prosecutor stated the victim’s marriage was “like a lot of other marriages.” He did not suggest this “lot” was a majority, or even a large minority, of the universe of marriages; he merely stated a lot of marriages were similar. Defendant has not shown that the words actually uttered were untrue. In any event, assuming the claim is not forfeited, we note the jury was properly instructed that the prosecutor’s opening statement was not evidence. (CALCRIM No. 222.) No error or prejudice appears.

Defendant appears to complain that the prosecutor committed misconduct when he argued Flannery was so in fear that she moved herself and the children out of the area. But the evidence adduced at trial clearly supports the prosecutor’s argument. No misconduct appears.

Defendant next suggests his trial counsel rendered ineffective assistance in that he failed to adduce evidence of Flannery’s history of using the children to “get back at” defendant. This claim relies on evidence outside the record and is more appropriately addressed in a habeas corpus proceeding. (Mendoza Tello, supra, 15 Cal.4th at pp. 266-267.)

Defendant contends the consecutive terms of one year each violate section 654 because “the felony [count I] was because of the misd[emeanor] [count II].” In defendant’s view, he “should have only gotten [one] year for this.” Defendant is wrong.

“ ‘The proscription against double punishment in section 654 is applicable where there is a course of conduct which . . . comprises an indivisible transaction punishable under more than one statute . . . . The divisibility of a course of conduct depends upon the intent and objective of the actor, and if all the offenses are incident to one objective, the defendant may be punished for any one of them but not for more than one.’ [Citation.] ‘The defendant’s intent and objective are factual questions for the trial court; [to permit multiple punishments,] there must be evidence to support a finding the defendant formed a separate intent and objective for each offense for which he was sentenced. [Citation.]’ ” (People v. Coleman (1989) 48 Cal.3d 112, 162; see People v. Latimer (1993) 5 Cal.4th 1203, 1208.)

Count I alleged defendant committed a felony in that, between February 2011 and March 2011, he “did willfully, maliciously, and repeatedly follow, and did willfully and maliciously harass” the victim “and made a credible threat with the intent that she be placed in reasonable fear for her safety and the safety of her immediate family.” It was further alleged defendant was subject to a restraining order.

Count II alleged defendant committed a misdemeanor in that, on February 18, 2011, at 12:17 A.M. and at the aforesaid place, “did knowingly and intentionally violate (#3) a court order” in that he did “TELEPHONE VICTIM.”

The evidence showed that defendant’s intent and objective in committing the acts comprising count I went far beyond his act and objective in placing a single telephone call in count II. Conversely, there was no evidence that defendant placed the count II telephone call with the intent and objective of following Flannery and thereby harassing her in that manner. The evidence supports an implied finding that defendant formed a separate intent and objective for count I and count II. (People v. Coleman, supra, 48 Cal.3d at p. 162; People v. Latimer, supra, 5 Cal.4th at p. 1208.) No error appears.

Defendant lastly observes that the trial court failed to advise him of his right to appeal the judgment to this court. No prejudice appears. As defendant goes on to explain, he “wanted an appeal right away,” which could not have been the case had the right to appeal been unknown to him.

IV. Conclusion

Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.

DISPOSITION

The judgment is affirmed.

/s/

MURRAY, J.

We concur:

/s/

BLEASE, Acting P. J.

/s/

MAURO, J.

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

[2] CALCRIM No. 300 reads, “Neither side is required to call all witnesses who may have information about the case or to produce all physical evidence that might be relevant.”

[3] CALCRIM No 301 reads, “The testimony of only one witness can prove any fact. Before you conclude that the testimony of one witness proves a fact, you should carefully review all the evidence.