Filed 8/31/18 P. v. Rodriguez CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

Defendant Jerry Esquivel Rodriguez was convicted by a jury of stalking. (Pen. Code, § 646.9.[1]) He was sentenced to nine years in prison, consisting of the aggravated term of three years for the stalking conviction, and 6 one-year consecutive terms for each of the six prison priors found true by the court. Defendant makes two arguments on appeal: (1) the stalking conviction is not supported by substantial evidence; and (2) one of the enhancements was improper because the crime on which it was based was reduced to a misdemeanor. Defendant’s first argument has no merit, as there is substantial evidence. Defendant’s second argument has merit, as the People concede. We thus affirm the judgment, but remand the matter for the limited purpose of striking one of the enhancements and the resentencing of defendant.

BACKGROUND

Facts

In April 2016, A.H. lived with her mother and 13-year-old brother in an apartment in Vallejo. She was 19 years old. Attempting to sell her car, she placed a “For Sale” sign on it, offering it for sale for $2,500. The sign included her telephone number.

Defendant, who was 50 years old, contacted A.H.’s neighbor, who contacted her. A test drive was arranged, and on April 21, apparently in the morning, defendant and A.H. went on a test drive, with A.H. driving. Following that, defendant told A.H. he was “interested” and wanted to take the car for a test drive himself. A.H. was not feeling well, and they made arrangements for a further test drive the next day, April 22.

Defendant had A.H.’s telephone number from the “For Sale” sign, and she knew his number. Later on April 21, but before 1:30 p.m., defendant texted A.H.; she was at work and did not read the text. Later that night, defendant called, and A.H. answered. All she heard was breathing.

Around noon on April 22, defendant texted A.H. that the test drive was still on; A.H. responded by text that it was, that she would be off work at 1:30 p.m. A.H. “kept on receiving phone calls and text messages,” “maybe . . . five or six” that came within minutes of one another, essentially about whether the test drive “was going to happen or not and [A.H.] only had a certain amount of time” to tell defendant it was. A.H. ignored these messages.

The test drive occurred at about 2:30 p.m. on April 22, with A.H.’s mother accompanying defendant. Defendant sent A.H. a text thanking her for the test drive; A.H. responded, “you’re welcome.” Defendant then sent a text to A.H. that he was “interested” in the car but could not afford the $2,500 asking price. A.H. told defendant to make an offer, but he did not respond.

A.H. was asked at trial when defendant next contacted her, and she answered, “Later on that night,” when she received three telephone calls from defendant, all after midnight. A.H. answered the first call, and it was “all silent.” The second was “just background noise.” She did not answer the third.

Sometime later (a date A.H. could not specify), defendant sent A.H. a text message that said defendant “needed water, and it was hot outside. And he wanted to come over and stay at [her] house for a little” while. This made A.H. uncomfortable, especially as defendant’s brother lived across the street from A.H. A.H. responded that she “only wanted car business with him,” later telling him that the car was not available to him anymore.

On April 23, defendant sent A.H. a text that referred to her as “sweet jeart,” which she interpreted as “sweetheart.” A.H. testified that up to that point, defendant had been sending texts to her daily, sometimes as often as five times a day, and had been calling her two to three times a day, almost always after midnight—indeed, once or twice after 3:00 a.m. It was after receiving the “sweetheart” text message that A.H. told defendant not to contact her again.

Despite A.H.’s request, the next day, April 24, defendant called, again after midnight. A.H. did not answer. Ten minutes later, he called again. Again, she did not answer.

Between April 23 and 29, defendant called A.H. roughly every other day, always after midnight. A.H. never answered the phone.

On April 29, A.H. received a text message from her downstairs neighbor that caused her “concern,” the upshot of which was that she asked her neighbor to walk her to her car parked in front of her house because she was “scared.” The neighbor did, and she drove to work, where she noticed a white rose on her windshield.

On May 3, A.H. obtained a restraining order against defendant. It was not served, however, because defendant was “never home” when the sheriff attempted to serve him. The order expired on May 23, and during that period of time, defendant never contacted A.H.[2]

The contacts began again in July when one afternoon A.H. saw defendant walking up and down the sidewalk on her side of the street. She felt uncomfortable and went back inside.

On another evening in July, A.H. was walking to her car parked in front of her house, when she saw defendant standing in his brother’s yard, staring at her until she left in her car. As she put it in response to a question by defense counsel, defendant “was staring at [her] for two minutes.”

On July 14, around 5:00 p.m., A.H. was taking the trash out when she saw defendant standing about five houses down the street and then began “speed walk[ing]” in her direction. A.H. ran inside.

Early in the morning on July 15, A.H. woke to the sound of her dog barking. A.H. looked out her window and in the porch light saw defendant “picking at the doorknob.” Defendant had a suitcase with him that was positioned behind him on the landing, a suitcase she had seen defendant haul when walking up and down the street. A.H. watched defendant for some 40 seconds, then went to her mother’s room and awakened her. They called the police, waiting in her mother’s bedroom, A.H. too afraid to return to the window. She was “[t]errified.”

Vallejo Police Officer Mark Thomson responded to the call around 3:27 a.m., followed shortly by a second officer. Officer Thomson observed defendant “standing on the stoop” in front of A.H.’s apartment[3] and he called defendant over to them.

Seeing defendant talking to the officers, A.H. went outside, to observe that the gate, which had been closed and secured with a rope before A.H. had gone to bed, was now untied. And a pit bull that belonged to A.H.’s neighbor was unchained on the property and was behaving aggressively toward the officers, barking and charging at them, but ignoring defendant, who had interacted with the dog before.

A.H. also observed that the porch light was no longer on. When she attempted to turn it on, it did not work. A.H.’s mother fixed the light by screwing the bulb in one turn, and A.H. and her mother walked over to the officers at the gate. According to Officer Thomson, A.H. seemed “concerned” and “worried.” She described herself as “[t]errified.”

Proceedings Below

On September 12, 2016, the District Attorney for Solano County filed an information charging defendant with stalking (count 1—§ 646.9, subd. (a)) and attempted first degree residential burglary while a person is present (count 2—§§ 664/459). It was further alleged that defendant had suffered five prison priors within the meaning of section 667.5, subdivision (b). Thereafter, early in the trial, the People amended the information to strike the section 667.5, subdivision (c) violent felony allegation and to add a sixth prison prior allegation.

A jury found defendant guilty of stalking but was unable to reach a verdict on count 2, the attempted burglary charge, and the court declared a mistrial with respect to it. Following a bench trial, the court found true all six prior prison term enhancements. The court sentenced defendant to a nine-year prison term, three years for stalking and one year for each of the six prior convictions.

DISCUSSION

The Stalking Conviction Is Supported by Substantial Evidence

Defendant’s first argument is that there was insufficient evidence he stalked A.H., an argument that is brief indeed. Following a one-page statement of the standard of review, and a slightly longer statement of the “Elements of the Crime of Stalking,” defendant devotes less than two pages to the argument that “No Course of Conduct” was shown.

We disagree, in light of the settled principles of appellate review: “In reviewing a claim for sufficiency of the evidence, we must determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime or special circumstance beyond a reasonable doubt. We review the entire record in the light most favorable to the judgment below to determine whether it discloses sufficient evidence—that is, evidence that is reasonable, credible, and of solid value—supporting the decision, and not whether the evidence proves guilt beyond a reasonable doubt. [Citation.] We neither reweigh the evidence nor reevaluate the credibility of witnesses. [Citation.] We presume in support of the judgment the existence of every fact the jury reasonably could deduce from the evidence. [Citation.] If the circumstances reasonably justify the findings made by the trier of fact, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding.” (People v. Jennings (2010) 50 Cal.4th 616, 638–639; accord, People v. Nelson (2011) 51 Cal.4th 198, 210.)

Section 646.9, subdivision (a) provides that “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 . . . .” The statute defines “harasses” as “engages in a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, torments, or terrorizes the person, and that serves no legitimate purpose.” (§ 646.9, subd. (e).) And “course of conduct” is defined as “two or more acts occurring over a period of time, however short, evidencing a continuity of purpose.” (§ 646.9, subd. (f).) There was a course of conduct here.

The evidence begins with the numerous calls and text messages, from April 21 to April 29. The phone calls were especially harassing in nature, occurring frequently and late at night, with many calls consisting of nothing but defendant wordlessly breathing on the other end of the phone. A.H. observed a white rose on her car, which the jury could reasonably infer was placed there by defendant. Then, in July, defendant began appearing outside A.H.’s apartment, on one occasion pacing back and forth in front of her apartment, on another staring at her as he stood in his brother’s yard across the street. On July 14, defendant saw A.H. as she was taking the trash out and began walking quickly toward her, scaring her. And defendant’s disturbing behavior culminated in the July 15 incident, where defendant entered A.H.’s property in the middle of the night without permission and picked the lock to her front door.

Defendant asserts that no course of conduct was shown because his “initial contact” with A.H. was legitimate in that he was interested in buying her car, and once A.H. told him not to contact her anymore, he “stopped calling her.” More specifically, defendant asserts that “The evidence strongly suggest[s] that Rodriguez was enamored of [A.H.], as evidenced by the white rose on her car and the sweetheart text message. But [A.H.] was not interested, and after several late night calls and multiple texts, she conveyed to Rodriguez not to contact her anymore. The evidence demonstrated that he didn’t. He stopped calling her and stopped texting her.” And on the next page, defendant asserts that “When [A.H.] requested that the contacts stop, Rodriguez complied and did not call or text her again, unlike the defendant in Halgren. (See People v. Halgren (1996) 52 Cal.App.4th 1223, 1233.)” We read the record differently.

As shown above, on April 23, A.H. told defendant to stop contacting her.

Despite that, he continued to call and text her, calls that were especially harassing, coming late at night—and sometimes with nothing but breathing when A.H. answered. And while the calls and text messages may have stopped after April 29, the harassment continued. And now it was in person, with defendant’s appearance across from A.H.’s apartment—“staring” at her. This is evidence of harassment. (See People v. Uecker (2009) 172 Cal.App.4th 583, 594 [evidence of stalking where defendant positioned himself in his car with a “good view” of the entrance to one of his victims’ place of employment]; People v. Halgren, supra, 52 Cal.App.4th at p. 1233 [sufficient evidence supported defendant’s stalking conviction where he “repeatedly telephoned” the victim and appeared at her office, “positioning himself where he could watch people leave the building”].)

Defendant asserts he “never conveyed any verbal or written threat” and claims there was “no evidence” he knew A.H. was afraid of him. The “credible threat” required for stalking need not be verbal or written, but may be “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 . . . .” (§ 646.9, subd. (g).) Defendant in People v. Lopez (2015) 240 Cal.App.4th 436 similarly argued that his conduct did not communicate a credible threat, an argument we rejected, concluding that, the absence of overt threats notwithstanding, defendant’s conduct revealed “an obsession that a reasonable person would understand as threatening.” (Id. at pp. 449, 453–454.) Likewise here.

Defendant sent A.H. numerous text messages, including a message asking to stay at her residence for “a little”—despite that his brother lived across the street. He frequently called her late at night without uttering a word, and left a white rose on her car, sending “a clear message that [he] knew where [A.H.] was and was close by.” (People v. Lopez, supra, 240 Cal.App.4th at p. 453.) And later he several times showed up across from her apartment, pacing back and forth and watching her from across the street. These numerous text messages and phone calls; defendant’s persistence in contacting A.H. even after she told him to stop; his positioning himself outside her residence on multiple occasions; and, finally, his decision to trespass onto her property in the middle of the night to pick the lock to her apartment door could “reveal an obsession that a reasonable person would understand as threatening.” (Ibid.)

One Prior Prison Term Enhancement Was Improperly Imposed

Defendant’s second argument is that the court erred in connection with one of the prior prison term enhancements, specifically that for an August 1, 2008 conviction for receiving stolen property in case No. VCR197655. The People concede the point, acknowledging that the record confirms that on March 10, 2015, defendant’s 2008 conviction for receiving stolen property was “ ‘[r]educed pursuant to 1170.18 PC.’ ” Thus, as the People put it, “the enhancement no longer applied and must therefore be stricken. (People v. Call (2017) 9 Cal.App.5th 856, 858–859; People v. Abdallah (2016) 246 Cal.App.4th 736, 743–749.)”

DISPOSITION

The judgment of conviction is affirmed, but the matter is remanded for the limited purpose of striking the enhancement based on the conviction in case No. VCR197655 and for the appropriate resentencing of defendant.

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Richman, J.

We concur:

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Kline, P.J.

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Miller, J.

A151839; P. v. Rodriguez