Filed 10/25/17 P. v. Sowayigh CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

v.

ABDULLELAH IBRAHAM SOWAYIGH,

Defendant and Appellant.
D071685



(Super. Ct. No. SCD267638)

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

Theresa Osterman Stevenson, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Alana Butler and Ryan H. Peeck, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found Abdullelah Ibraham Sowayigh guilty of one count of stalking (Pen. Code, § 646.9, subd. (a).) The trial court imposed a middle-term sentence of two years in prison.
Sowayigh contends (1) insufficient evidence supports his stalking conviction; (2) the trial court erred in denying his motion for a new trial, in which Sowayigh contended that he was denied his right to testify at trial due to ineffective assistance of counsel; and (3) the trial court abused its discretion by basing its middle-term sentence on improper factors. We conclude that Sowayigh's arguments lack merit, and accordingly we affirm the judgment.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Sowayigh was a regular patron at Urban Mo's Bar and Grill, a well-known gay bar and restaurant in the Hillcrest neighborhood of San Diego. At least twice before, Urban Mo's management had asked Sowayigh to leave the premises and not return for a specific period of time because of unacceptable behavior.
On the night of June 10, 2016, the manager on duty at Urban Mo's was called over to the bar to deal with Sowayigh. Sowayigh was unhappy with the service he was receiving, and he was acting aggressive, excitable and hostile. The manager attempted to speak with Sowayigh and calm him down, but Sowayigh only became more excited and aggressive. The manager told Sowayigh that he had to leave and that he was banning Sowayigh from ever returning to Urban Mo's. Sowayigh responded by yelling and screaming. After security guards forcefully removed Sowayigh from Urban Mo's, Sowayigh walked up and down the street in front of Urban Mo's, cursing and screaming for 15 to 20 minutes.
The next morning, June 11, 2016, at approximately 9:30 a.m., Sowayigh returned to Urban Mo's and spoke with another manager, B.T. Sowayigh was angry about being removed from Urban Mo's the night before, and he appeared agitated and aggressive. Sowayigh, who stated he was from Saudi Arabia and in the country on a student visa, told B.T. that he thought he had been wrongfully profiled and was thrown out of Urban Mo's because of how he looks. Referring to the manager who had removed him the night before, Sowayigh said, "I was thrown out by a dirty racist Jew." Sowayigh also lifted his shirt and showed a scar on his torso, explaining that he had been wrongly profiled in Florida.
B.T. started to feel uncomfortable and wanted to get Sowayigh out of Urban Mo's. B.T. suggested to Sowayigh that they finish speaking outside, but Sowayigh refused. B.T. then stated, "We need to go outside right now or I'm going to have to call the police." Sowayigh responded, "I'm from Saudi Arabia, and you better watch your back." A bartender came over and told Sowayigh that he had to leave, and Sowayigh complied.
B.T. understood Sowayigh's last comment as a threat, both because the phrase "you better watch your back" is a direct threat, and also because of the reference to Saudi Arabia. As B.T. testified, "There's been a lot of stuff going on in America," and Sowayigh "being from where he is from and here on a student visa, I didn't know who he's affiliated with."
After leaving Urban Mo's, Sowayigh sat outside at a coffee shop, which was approximately 30 feet away from Urban Mo's, and stared at Urban Mo's for one to two hours, making B.T. feel very uncomfortable.
Sowayigh eventually left the coffee shop, but he came back a short time later on a bicycle. B.T. saw Sowayigh ride his bicycle back and forth in front of Urban Mo's for approximately two hours while yelling and looking toward Urban Mo's. B.T. could not tell what Sowayigh was yelling, but he appeared to be yelling "slurs."
When B.T. left work at 5:00 p.m. to walk the three or four blocks to his home, he had not seen Sowayigh outside on the bicycle for the last 30 to 40 minutes. As he was walking home, B.T. noticed Sowayigh following slowly behind on his bicycle at a distance of approximately half a block. B.T. felt uncomfortable, scared and nervous. B.T. did not want Sowayigh to know where he lived, so he walked into a different apartment complex. After 10 to 15 seconds, B.T. looked to see if Sowayigh was still in the area, but he did not see him.
After following B.T., Sowayigh returned to Urban Mo's with his bicycle and resumed the same behavior of circling the area while yelling and making gestures until approximately 7:00 p.m. Patrons of Urban Mo's commented to a server that they felt uncomfortable and did not want to exit until Sowayigh was no longer outside. One guest reported seeing Sowayigh making a throat slitting gesture with his hand in the direction of Urban Mo's.
As the jury was made aware at trial, later on the same night that Sowayigh had followed B.T. on his walk home, a mass shooting occurred at a gay night club in Orlando, Florida (the Orlando shooting). B.T. testified that when he learned about the Orlando shooting on the morning of June 12, 2016, his fear of Sowayigh was heightened, as Sowayigh had threatened him and "there was a lot of talk about what country the person was from and they were targeting gay bars and lots of threat going on." Because of his fear, for approximately the next week, B.T. had his husband give him a ride to and from work instead of walking.
On the morning of June 12, 2016, while B.T. was working at Urban Mo's, Sowayigh returned on his bicycle and rode around in front of the bar as he did the previous day. Sowayigh was less vocal than he had been the previous day, but he was still making his presence known.
On June 27, 2016, B.T. was walking near Urban Mo's. While B.T. was in a crosswalk, Sowayigh rode his bicycle very fast directly in front of B.T., cutting him off. Sowayigh yelled something in Arabic, and B.T. thought one of the words Sowayigh said was "fuck."
Sowayigh was charged with one count of stalking (§ 646.9, subd. (a)), and B.T. was identified in the amended information as the victim of the stalking. After a trial held November 14, and 15, 2016, at which Sowayigh did not testify, the jury returned a guilty verdict.
After substituting in a different attorney, Sowayigh filed a motion for a new trial based on his claim that he was not advised by his previous attorney, Jeremy Thornton, that he had a right to testify at trial. After hearing testimony from Sowayigh and Thornton, the trial court denied the motion for a new trial, finding that Thornton clearly advised Sowayigh about his right to testify and Sowayigh understood his rights.
At sentencing, the trial court imposed a middle term sentence of two years in prison.
II.
DISCUSSION
A. Sowayigh's Challenge to the Sufficiency of the Evidence
We first consider Sowayigh's contention that insufficient evidence supports his conviction for stalking.
1. Standard of Review
In considering a challenge to the sufficiency of the evidence, "we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. . . . We presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence. . . . If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. . . . 'A reviewing court neither reweighs evidence nor reevaluates a witness's credibility.' " (People v. Albillar (2010) 51 Cal.4th 47, 60, citations omitted.)
2. The Elements of Stalking
The crime of stalking is committed by a 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." (§ 646.9, subd. (a).) For purposes of section 646.9, " 'harasses' " is defined as engaging 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." (Id., subd. (e).) " '[C]ourse of conduct' " is defined as "two or more acts occurring over a period of time, however short, evidencing a continuity of purpose." (Id., subd. (f).) Thus, as case law has summarized, "[t]he elements of the crime of stalking (§ 646.9) are (1) repeatedly following or harassing another person, and (2) making a credible threat (3) with the intent to place that person in reasonable fear of death or great bodily injury." (People v. Ewing (1999) 76 Cal.App.4th 199, 210 (Ewing).)
3. Substantial Evidence Supports the Stalking Conviction
a. The Evidence Supports a Finding That Sowayigh Committed Repeated Acts of Harassment Directed at B.T.

Sowayigh's first contention is that insufficient evidence supports a finding that he engaged in more than one instance of following or harassment to satisfy the requirement that he "repeatedly follow[ed] or harass[ed] another person." (Ewing, supra, 76 Cal.App.4th at p. 210.) In a related contention, Sowayigh argues that even if the evidence shows more than one act of harassment, those multiple acts were not "directed at a specific person," namely B.T. (§ 646.9, subd. (e).)
As Sowayigh correctly points out, stalking is "a crime requiring a continuous course of conduct" regardless of whether the defendant's conduct consists of following a person or harassing a person. (People v. Chilelli (2014) 225 Cal.App.4th 581, 586; see also People v. Carron (1995) 37 Cal.App.4th 1230, 1238 ["Both behaviors require[] multiple acts."].) Specifically, the statute requires a finding either that the defendant "repeatedly follow[ed]" the victim (§ 646.9, subd. (a)), or "harass[ed]" the victim (ibid.), which is defined as engaging in a "course of conduct" constituting harassment (id., subd. (e)). In turn, the statute defines " 'course of conduct' " as "two or more acts occurring over a period of time, however short, evidencing a continuity of purpose." (Id., subd. (f), italics added.)
Sowayigh contends that the evidence does not support a finding that he engaged in a course of conduct directed at B.T. consisting of following B.T. or harassing him. According to Sowayigh, at most the evidence at trial supports a finding that Sowayigh committed only a single act of harassment toward B.T., namely the incident in which B.T. believed Sowayigh was following him on a bicycle as he walked home on the evening of June 11, 2016.
We reject Sowayigh's argument because it ignores several other incidents that the jury reasonably could conclude constituted harassment directed toward B.T. As we have explained, harassment is defined as engaging 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).) Substantial evidence at trial supports a finding that Sowayigh engaged in several separate actions that were directed at seriously alarming, annoying, tormenting or terrorizing B.T.
First, immediately after telling B.T. "you better watch your back" on June 11, 2016, Sowayigh engaged in behavior that made B.T. very uncomfortable, namely sitting at the coffee shop staring in the direction of Urban Mo's for two hours, followed by approximately two more hours of riding a bicycle in front of Urban Mo's while yelling what B.T. described as "slurs" toward Urban Mo's. B.T. was present throughout the entire course of conduct. Second, Sowayigh followed slowly behind on a bicycle while B.T. walked home, which the jury could reasonably conclude caused B.T. to feel alarmed and terrorized in light of the threat made by Sowayigh earlier in the day. Indeed, B.T. testified that he felt uncomfortable, scared and nervous with Sowayigh following him home. Third, the next morning, June 12, 2016, Sowayigh returned on his bicycle to the area directly in front of Urban Mo's while B.T. was working. As B.T. described, Sowayigh was "making himself very apparent and making his presence known." The jury reasonably could infer that this conduct caused alarm and terror to B.T. based on Sowayigh's previous behavior, as well as the fact that it occurred the day after the Orlando shooting, targeting a gay night club. Fourth, on June 27, 2016, Sowayigh rode his bike very quickly right in front of B.T. while he was crossing the street next to Urban Mo's and yelled something at him, which B.T. believed included the word "fuck." B.T. understood Sowayigh's conduct to be directed at him, as he was the only person crossing the street and Sowayigh appeared to aim for him.
Sowayigh argues that it would not have been reasonable for the jury to find that his harassing behavior was directed at B.T. Sowayigh argues that the evidence shows nothing more than that he was angry about being kicked out of Urban Mo's in general and was not especially angered by B.T. We disagree. Although Sowayigh was clearly disturbed about being kicked out of Urban Mo's and directed some of his anger toward Urban Mo's when B.T. was not present (by returning with his bicycle after following B.T. home), that fact does not preclude a jury from finding that Sowayigh also specifically targeted B.T. with several instances of harassment. As we have explained, B.T. was present and was made to feel uncomfortable and fearful by several acts by Sowayigh that the jury could reasonably conclude were directed at B.T., namely (1) staring at Urban Mo's from the coffee shop and then riding around on a bicycle while yelling; (2) following B.T. home; (3) returning on a bicycle to Urban Mo's the next day when B.T. was present; and (4) cutting off B.T. in the crosswalk while yelling at him.
In sum, a reasonable jury could conclude that all four of these separate incidents constituted harassing behavior, and that they were directed at B.T. As the commission of four separate instances of harassment against B.T. qualifies as a course of conduct, the evidence is sufficient to support a stalking conviction.
b. Substantial Evidence Supports a Finding That Sowayigh Specifically Intended to Place B.T. in Reasonable Fear for His Safety

Sowayigh's next challenge to the sufficiency of the evidence is directed to the element of stalking requiring that the defendant make a credible threat against a person "with the intent to place that person in reasonable fear for his or her safety, or the safety of his or her immediate family." (§ 646.9, subd. (a).) "The intent element of the section is a specific intent element, requiring that the actor embark upon a 'course of conduct intended to cause someone to fear.' " (People v. Falck (1997) 52 Cal.App.4th 287, 296 (Falck).) "To meet the statutory definition the threat must be made with the specific intent to cause the victim to reasonably fear for personal safety or the safety of immediate family." (People v. Halgren (1996) 52 Cal.App.4th 1223, 1231.)
In the context of a stalking offense, "it 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.' " (Falck, supra, 52 Cal.App.4th at p. 299 [inference of intent to place the female victim in fear included the fact that the defendant wrote letters stating he wanted to engage in sex acts including elements of bondage or violence, sent the victim black roses which are symbolic of death, referred to being together with the victim for eternity and referred to his prowess with a rifle].) We accordingly look to the totality of the evidence to determine if substantial evidence supports an inference that Sowayigh acted with the specific intent to cause B.T. to reasonably fear for his safety.
Here, the threat that Sowayigh made to B.T. consisted of the statement, "I'm from Saudi Arabia, and you better watch your back[,]" which Sowayigh made immediately after B.T. stated he would call the police if Sowayigh did not leave the premises. Sowayigh argues that "[g]iven the timing and context of their conversation, [Sowayigh's] statement to [B.T.] could not reasonably be construed to have been made with the specific intent to place [B.T.] in fear for his personal safety." According to Sowayigh, if he had "intended to place [B.T.] in fear of his personal safety, he would have necessarily thought that [B.T.] would immediately call the police. Yet, [Sowayigh] left the bar and stayed in the immediate vicinity for over an hour after making that statement." Sowayigh also contends that instead of being a threat evidencing an intent to cause fear, Sowayigh's words and actions toward B.T. were "just part of his regular pattern of upset when he was thrown out of a bar." As we will explain, we are not persuaded.
A reasonable juror could understand the statement, "you better watch your back" made by a person described as being "agitated, very aggressive, and . . . angry," as communicating a direct threat to ambush and do physical harm to the person to whom the statement is directed. Indeed, because the threat was made immediately after B.T. said he would call the police, a reasonable juror could conclude that Sowayigh was communicating that he would agree to leave Urban Mo's to avoid the police, but he would escalate the conflict by threatening a physical attack on B.T. when the police were not around. In this context, the statement "you better watch your back" may reasonably be interpreted as a threat to take revenge on B.T. for relying on law enforcement, if necessary, to eject Sowayigh from Urban Mo's.
Sowayigh also contends that the evidence does not support a finding that he acted with the specific intent to cause B.T. to reasonably fear him. Sowayigh argues that the only reasonable inference to draw from the evidence presented at trial was that B.T. developed an irrational fear of Sowayigh based upon the Orlando shooting and "news reports, world events, and his phobia about Middle Eastern nationals in general," and not based on anything Sowayigh did. We disagree.
Sowayigh's contention that the Orlando shooting gave rise to an irrational fear in B.T. is not persuasive because B.T. testified that he was fearful of Sowayigh before the Orlando shooting occurred. The conversation during which Sowayigh made the direct threat to B.T., the hours of bizarre behavior by Sowayigh outside of Urban Mo's in B.T's presence, and Sowayigh's act of following B.T. on his walk home all occurred on June 11, 2016, which was prior to when B.T. found out about the Orlando shooting on June 12, 2016. B.T. testified that on June 11, he "felt threatened right away" after Sowayigh made the threat to him, and he was uncomfortable, scared and nervous as he was followed home by Sowayigh that evening. Therefore, in assessing whether Sowayigh had the specific intent to cause reasonable fear in B.T. when he made the threat on June 11, 2016, there is no basis to conclude that the later-occurring Orlando shooting made B.T. perceive a credible threat that was not actually intended by Sowayigh.
We are also not convinced that, considering the record, B.T.'s fear of Sowayigh was unreasonable based on Sowayigh's contention that B.T. purportedly had a "phobia about Middle Eastern nationals in general." The record contains no evidence of any such phobia or bias. Moreover, it was Sowayigh himself who mentioned his connection with Saudi Arabia while making the threat to B.T. Although there is no direct evidence as to why Sowayigh referred to Saudi Arabia while making his threat to B.T., in the entire context of the conversation, a reasonable juror could conclude that Sowayigh thought the reference would lend additional credibility to his threat. Indeed, as B.T. testified, the reference to Saudi Arabia succeeded in making him feel scared and threatened. Under the circumstances, Sowayigh's reference to the fact that he was from Saudi Arabia while threatening B.T., serves to strengthen the inference that Sowayigh made the threat to B.T. with the specific intent to cause fear. As the People cogently point out, "[i]t was [Sowayigh], by his words and subsequent actions, who linked himself and his threat to the specter of terrorism; that increased the seriousness of the threats and the jury could consider it."
In sum, there is no merit to Sowayigh's contention that insufficient evidence supports a finding that he had a specific intent to cause B.T. to reasonably fear for his safety.
Having rejected both of Sowayigh's challenges to the sufficiency of the evidence for the stalking conviction, we conclude that the conviction is supported by substantial evidence.
B. The Trial Court Did Not Err in Denying the Motion for a New Trial
We next consider Sowayigh's challenge to the trial court's denial of his motion for a new trial, which, as we have explained was based on the claim that defense counsel failed to inform Sowayigh that he had the right to testify at trial.
1. The Legal Basis for the New Trial Motion
Sowayigh contends that he should be granted a new trial because defense counsel provided ineffective assistance of counsel in failing to advise him that he had the right to testify. Although not among the statutory grounds for a new trial set forth in section 1181, ineffective assistance of counsel is a valid ground for a trial court to grant a new trial. (People v. Fosselman (1983) 33 Cal.3d 572, 582-583.)
When, as in this case, a trial court has denied a motion for new trial based on a claim of ineffective assistance of counsel, we apply the standard of review applicable to mixed questions of law and fact, upholding the trial court's factual findings to the extent that they are supported by substantial evidence, but reviewing de novo the ultimate question of whether the facts established demonstrate a violation of the right to effective counsel and prejudice. (See People v. Taylor (1984) 162 Cal.App.3d 720, 724-725). "[A]n ineffective assistance claim made in a motion for new trial differs from one raised for the first time on appeal or petition for writ of habeas corpus. 'After all, the trial court is in the best position to make an initial determination, and intelligently evaluate whether counsel's acts or omissions were those of a reasonably competent attorney.' " (People v. Andrade (2000) 79 Cal.App.4th 651, 660.)
"A defendant in a criminal case has the right to testify in his or her own behalf[,]" and "[t]he defendant may exercise the right to testify over the objection of, and contrary to the advice of, defense counsel." (People v. Bradford (1997) 15 Cal.4th 1229, 1332.) In general, the trial court is required neither to advise the defendant about the defendant's right to decide whether to testify nor to secure a waiver on the record. (Id. at pp. 1331-1333; see also People v. Alcala (1992) 4 Cal.4th 742, 805-806.) However, competent counsel is expected to inform the defendant of the right to testify. (See People v. Murphy (1972) 8 Cal.3d 349, 366; People v. Bradford (1997) 14 Cal.4th 1005, 1053; Florida v. Nixon (2004) 543 U.S. 175, 187 [defense counsel "must both consult with the defendant and obtain consent" concerning counsel's recommendation about testifying].) In his motion for a new trial, Sowayigh contended that he was denied his constitutional right to testify on his own behalf because he was "never advised by his attorney or the Court of his right to testify on his own behalf" and was therefore "constructively prevented from doing so by his attorney."
2. The Testimony at the New Trial Hearing and the Trial Court's Findings
The trial court held a hearing on the motion for a new trial at which both Sowayigh and Sowayigh's trial counsel, Thornton, presented sworn testimony.
Thornton testified that, according to his normal practice, during his representation of Sowayigh he spoke with Sowayigh about his right to testify on multiple occasions, beginning with his first meeting with Sowayigh in jail. Specifically, Thornton told Sowayigh that, regardless of counsel's advice, Sowayigh "can do whatever he wants" with regard to testifying at trial. Thornton explained that in light of Sowayigh's difficulty in speaking English, he also used the Arabic language interpreter provided at trial to have discussions with Sowayigh about his right to testify. According to Thornton, leading up to trial, Sowayigh "kind of formulated this idea that he was going to testify, that he wanted to testify."
However, as the trial proceeded, Thornton advised Sowayigh that it would not benefit him to testify based on the evidence presented and Sowayigh's behavior during trial. During this conversation, Thornton again told Sowayigh that it was Sowayigh's choice whether to testify. These conversations were conducted through the interpreter. Thornton stated that ultimately, Sowayigh "told me that he did not want to testify."
Thornton could not remember whether, at the conclusion of the testimony, he took a break before telling the trial court that the defense was resting, so that he could confirm that Sowayigh still did not want to testify. However, Thornton explained, "It is my custom and habit to make very sure before I rest or don't offer my client's testimony that he's very clear. So I would have asked for break if there was any lingering doubt in my mind. At that point [Sowayigh] had expressed . . . that he longer desired to testify multiple times." As Thornton explained, if he did not ask for a break to confer with Sowayigh about testifying, "it was because I felt that the decision had been made by him and that there was no ambiguity whatsoever."
During Sowayigh's testimony at the motion hearing, he claimed that Thornton never advised him that he had a right to testify even if counsel disagreed with the decision. According to Sowayigh, Thornton told him during trial that "I'm not going to let you testify," and Sowayigh never told Thornton that he had agreed that he would not testify. Sowayigh also claimed that at the beginning of trial he wrote a note in Arabic to the interpreter stating that the court should be told that Sowayigh wanted to testify.
After considering the testimony, the trial court made a credibility finding in favor of Thornton, stating "I believe that everything Mr. Thornton said is true and accurate." The trial court stated, "There is no doubt in my mind . . . that [Thornton] clearly advised the defendant of his right to testify on multiple occasions, and that [Sowayigh] understood those rights." The trial court also found that "if Mr. Thornton had any doubt as to" whether Sowayigh wanted to testify, "he would have made sure that he didn't have any doubt before going forward." Accordingly, the trial court denied the motion for a new trial.
3. The Trial Court Properly Denied the New Trial Motion Based on Its Findings That Are Supported by Substantial Evidence

Sowayigh contends that the trial court erred in denying the new trial motion because "the record does not support a finding by substantial evidence that he understood and intelligently waived his right to testify in his own behalf as of the time the prosecution closed its case." According to Sowayigh, he should be granted a new trial because "he received ineffective assistance of counsel in his attorney's failure to confirm his intent [not to testify] at the close of the prosecution's case."
Sowayigh's argument fails because the trial court made factual findings that foreclose his argument. The trial court found that Thornton advised Sowayigh of his right to testify, Sowayigh understood that right, Sowayigh told Thornton that he decided not to testify, and when Thornton announced that the defense rested, he would not have done so if he had any doubt about Sowayigh's decision. The trial court's findings are supported by the substantial evidence provided in the form of Thornton's testimony, which we have set forth above. The trial court made a credibility determination in favor of Thornton, and we must defer to the trial court's credibility determinations. (People v. Jefferson (1956) 47 Cal.2d 438, 446 [on a new trial motion, "[s]ince the question of weight and credibility to be attached to the affidavits was for the trial judge, defendant has failed to demonstrate any error or abuse of discretion"].)
We accordingly conclude that based on the trial court's factual findings, which are supported by substantial evidence, Thornton did not deprive Sowayigh of the effective assistance of counsel by failing to advise him of the right to testify or by failing to ascertain Sowayigh's decision as to whether he would testify before the defense rested.
C. The Trial Court Did Not Abuse Its Discretion by Considering Improper Factors at Sentencing

Sowayigh's final contention is that the trial court abused its discretion during sentencing by improperly considering aggravating factors that were not reasonably related to his case.
A felony conviction for the crime of stalking is punishable by a prison sentence of 16 months, two years or three years. (§§ 18, 646.9, subd. (a).) Here, after considering the factors in aggravation and mitigation, the trial court imposed the middle term sentence of two years in prison.
As circumstances in mitigation, the trial court found that Sowayigh's criminal history consisted of only two misdemeanors and he had not served any significant time in custody. As circumstances in aggravation, the trial court found that Sowayigh's conduct "involved the threat of great bodily harm because of his statements and the timing of the statements that he made. I mean, his statements and his actions to the victims essentially amounted to a threat to commit a terrorist act on the victims or the establishment, made all the more serious and dangerous because of the timing and that was his intent clearly." In aggravation, the trial court also noted that "there was planning involved in the stalking of the victim," his crimes show an increased seriousness, and he was on summary probation at the time of the offense, at which he was not performing satisfactorily. The trial court further noted that, based on the evidence at trial, the victims experienced great emotional and psychological injury from Sowayigh's actions. The court concluded that based on the mitigating and aggravating factors, a middle term sentence was appropriate.
Pursuant to section 1170, subdivision (b) "[w]hen a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court." (Ibid.; see also Cal. Rules of Court, rule 4.420(b) [in exercising its discretion in selecting the lower, middle or upper term, the court "may consider circumstances in aggravation or mitigation, and any other factor reasonably related to the sentencing decision"].) Under "the broad discretion afforded a trial court under the . . . sentencing scheme, its sentencing decision will be subject to review for abuse of discretion." (People v. Sandoval (2007) 41 Cal.4th 825, 847 (Sandoval).) "[A] trial court will abuse its discretion . . . if it relies upon circumstances that are not relevant to the decision or that otherwise constitute an improper basis for decision." (Ibid.)
"Neither section 1170 nor the California Rules of Court attempt to provide an inclusive list of aggravating circumstances." (People v. Moberly (2009) 176 Cal.App.4th 1191, 1196; see also Cal. Rules of Court, rule 4.408(a) [the court may rely on "additional criteria reasonably related to the decision being made," so long as the "additional criteria [are] stated on the record by the sentencing judge"].) "The trial court's sentencing discretion must be exercised in a manner that is not arbitrary and capricious, that is consistent with the letter and spirit of the law, and that is based upon an 'individualized consideration of the offense, the offender, and the public interest.' " (Sandoval, supra, 41 Cal.4th at p. 847.)
Sowayigh contends that the trial court abused its discretion during sentencing because it considered aggravating factors that were not supported by the evidence and not reasonably related to this case. Specifically, Sowayigh contends that the trial court abused its discretion because it was "viewing as factors in aggravation its finding that [Sowayigh] had made a 'terrorist threat' against 'victims' (plural) and/or the 'establishment' (the bar), based upon the timing of his statements (clearly referring to the Orlando shooting incident)." Sowayigh contends that this statement "reflects that [the trial court] abused its discretion in sentencing since [Sowayigh] was before the court after a conviction as to stalking — not making terrorist threats — against one victim — not all of the bar employees and patrons — and there was no evidence whatsoever that there was any connection between [Sowayigh] and the mass shooter in Florida."
As we read the trial court's comments, in stating that Sowayigh's statements and actions "essentially amounted to a threat to commit a terrorist act . . . made all the more serious and dangerous because of the timing," the trial court was not improperly implying that Sowayigh had some connection to the Orlando shooting. Instead, we understand the trial court to be expressing the reasonable inference — based on the evidence at trial — that when Sowayigh referred to Saudi Arabia while threatening B.T., he intended to allude to terrorist incidents that had been in the news, and he did so with the intent to raise the credibility of his threat and to create additional fear in his victim. In addition, by referring to the timing of Sowayigh's actions, we understand the trial court to have been pointing out that Sowayigh's course of conduct occurred in part after the Orlando shooting, and thus the threat became "all the more serious and dangerous" in the eyes of the victim, as the trial court observed.
Further, although the trial court stated that Sowayigh effectively threatened to commit a terrorist act on "the victims" or "the establishment," the trial court's reference to multiple targets of Sowayigh's threat was not improper in the context of the sentencing proceeding and did not show misunderstanding of the facts of Sowayigh's crime. Although B.T. was identified in the amended information as the only specific victim of the stalking offense, it was clear at trial that Sowayigh's criminal conduct had negative effects on other people as well — including customers and employees of Urban Mo's who reasonably feared Sowayigh's hostile and aggressive conduct directed toward Urban Mo's as he rode his bicycle outside, yelling and making threatening gestures. As part of its sentencing analysis, in considering the nature of the conduct giving rise to Sowayigh's conviction, the trial court was well within its discretion to consider the negative impact on people in addition to B.T.
In sum, the trial court's comments were reasonably related to explaining the seriousness of Sowayigh's crime by examining the level of fear that Sowayigh intentionally caused the victim to experience and the fear that he caused in other members of the community. As the nature and circumstances of Sowayigh's crime is indisputably a relevant and proper aggravating factor for the trial court to consider, as it concerns an " 'individualized consideration of the offense' " (Sandoval, supra, 41 Cal.4th at p. 847), Sowayigh has not established that the trial court abused its discretion by relying on an improper factor at sentencing.
DISPOSITION
The judgment is affirmed.


IRION, J.

WE CONCUR:




BENKE, Acting P. J.




HUFFMAN, J.