P. v. Williams

Filed 8/31/06 P. v. Williams CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

THIRD APPELLATE DISTRICT

(Sacramento)

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A jury convicted defendant Antonio Williams of one count each of making criminal threats (Pen. Code, § 422)^[1] and stalking (§ 646.9, subd. (a)). Defendant admitted a prior serious felony (robbery) conviction enhancement allegation (§ 667, subd. (a)). Sentenced to a determinate term of 11 years in state prison, defendant appeals.

He contends the trial court erred in admitting evidence of: (1) an earlier incident of domestic violence, over his Evidence Code section 352 objection; and (2) his remarks to a police officer after he was arrested, over his objection that the remarks were irrelevant. He also contends the trial court erred under Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely) in imposing an upper term for the criminal threats offense (count one) based on facts not found by the jury. Finding no merit in his contentions, we shall affirm the judgment.

FACTUAL BACKGROUND

Defendant fathered a daughter as boyfriend to Jennifer D. His relationship with Jennifer ended in 1996 when their child was nine months old. They remained in contact so that when defendant wished to he could see his daughter. Jennifer often talked with him on the telephone.

Some time before 2:00 a.m. on the morning of July 12, 2004, defendant telephoned Jennifer, awakening her. He accused her of sexual relations with a friend of his and said that if anyone was in her home he would shoot them when they walked out the door. She hung up. He called back repeatedly. She left her phone off the hook. He came to her home and kicked the door open, knocking it off its hinges.

Very early on the morning of August 20, 2004, defendant again repeatedly telephoned Jennifer at her apartment. Once again, he angrily accused her of having sex with his friend. He said he was going to shoot her house up. When she stopped answering the phone he left messages threatening to hurt her and to shoot anyone who walked out of her home. Finally he left a message that he was on his way to her home.

Jennifer summoned the police. When they arrived she asked them to stand by as she and her daughter left her apartment to drive to the home of her parents, about five minutes away by car. She parked her car in the driveway, entered her parents' house and locked the door. Defendant had also been telephoning her parents that morning and leaving similar messages. That continued after her arrival. Jennifer was afraid that defendant would come and shoot her or her family members.

Jennifer's mother made a series of 911 telephone calls complaining of the threats being made by defendant. The jury heard the recording of those calls.

Officer Sarah Dorsey of the Sacramento Police Department arrived at 4:04 a.m. on August 20, 2004, and took a report. She listened to the threatening cell phone messages that Jennifer testified defendant left that morning. Officer Dorsey corroborated Jennifer's testimony about their content. Dorsey left at 4:31 a.m. Less than five minutes later, defendant arrived at the parents' home. He knocked on the door and then stood across the street next to his car. Jennifer's mother telephoned the police again.

Officer Daniel Chipp of the Sacramento Police Department arrived at Jennifer's parents' home about 4:45 a.m. Defendant was standing across the street next to a car. Officer Chipp arrested defendant and placed him in a police car.

Defendant, growing agitated and progressively louder, remarked that he had come to the home â€