P. v. Sims

Filed 7/3/07 P. v. Sims 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Sacramento)

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A jury convicted defendant Richard Lamont Sims of stalking with a prior conviction for stalking (Pen. Code, 646.9, subd. (c))^[1]and stalking in violation of a court order ( 646.9, subd. (b)). The trial court sentenced defendant to an upper term of five years in prison.

On appeal, defendant contends the trial court erred in failing to give a unanimity instruction and improperly revoked his custody credits, and that his upper term sentence violated the rule of Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely) and Apprendi v. New Jersey(2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi). We reinstate the custody credits and otherwise affirm the judgment.

BACKGROUND

Defendant was married to Patricia Sims for 18 years. The couple had one child, their 19-year-old son, Patrick. They separated around January 13, 2004, and Patricia filed for divorce in August of 2005.

Patricia obtained a restraining order against defendant in 2004 after he assaulted her. Evidence of the assault was admitted as prior uncharged misconduct. Defendant pushed Patricia and later punched her in the face during an argument. Patrick intervened, which allowed Patricia to run from the house.

Defendant responded by throwing a chair at Patrick, who then struck defendant in the head with the chair. Defendant said, [Y]ou did it now to Patrick and threatened to kill him. Patrick then followed his mother out the door and the two fled to a flea market, where they called the police.

On April 5, 2005, defendant was convicted of stalking Patricia. Evidence of the acts that led to this conviction was presented to the jury. Patricia worked as a customer service representative for DHL, a courier company. Her job required her to take calls from customers, so any personal calls had to come in on a back line after first being routed through management. From August of 2004 until his April 2005 conviction, defendant made numerous calls to Patricia at her workplace, sometimes making as many as 50 calls in a single day.

After DHL management informed the police of defendants repeated harassing phone calls, Sacramento County Sheriffs Deputy Anthony Saika and other officers went to the DHL office to investigate. Defendant called DHL while the officers were there and was put on a speakerphone. Saika spoke to defendant and told him he was a law enforcement officer and that defendant was violating his restraining order by calling Patricia at her workplace. After defendant said he just liked calling that number, he terminated the call. Defendant called back a couple of minutes later and the process was repeated: Deputy Saika told defendant he was violating the restraining order, the call was terminated, and defendant called again a few minutes later.

Defendant called the DHL back line after hours and left abusive voicemail. On January 21, 2005, Deputy Saika arrested defendant at his workplace. While he was in the patrol car, defendant told the deputy it was hard to let go after 20 years of marriage and said, I am still going to call when I get out. Defendant continued to make calls to Patricias workplace after his arrest. Patricia obtained a 10-year restraining order against defendant after the April 5, 2005, stalking conviction.

Patricias mother, Minetta Williams, took a call from defendant on July 4, 2005. Defendant, who had previously made harassing calls to Williams, told her that he was going to put a gun down [Patricias] mouth and pull the trigger. Williams told defendant he was not supposed to be making threatening calls about her daughter, ended the call, and then told Patricia about defendants threat. Patricia was frightened and did not view this as an idle threat.

Patricia was driving from the parking lot at work on July 6, 2005, when she saw defendant standing on the corner near the DHL facility. Defendant gave Patricia a real nasty look as she drove by. This frightened Patricia and she called the police.

Patricia soon received a call from her son Patrick. He told his mother that defendant had called and told him, I just saw your bitch ass mom. I should have shot her but God told me not to.

Three days later, Patrick told his mother about other threatening calls from defendant. Defendant told Patrick he would kick [his] ass or kill him. Defendant also told Patrick that he would put a gun down [Patricias] mouth and blow her head off and would do the same to Patrick.

Patricia and Patrick were driving home on July 18, 2005, when children playing outside said they had seen defendant as she was pulling up. She started to drive to the sheriffs department to file a report and saw defendant walking down the street. Patricia then pulled into a Shell gas station, where she found Deputy Saika, who was there on an unrelated call. The deputy testified that Patricia was trembling and afraid when she told him that defendant was following her again. She then pointed out defendant, who was on the sidewalk no more than 60 feet away.

Latanya Redwoods sister has been the girlfriend of Patricias brother for over 25 years and knows both Patricia and defendant. In July of 2005 she was at the Starfire light rail station on the way to work when she met defendant. Defendant, who smelled of alcohol, kept talking about how he wanted his wife back throughout the seven to eight minutes Redwood was on the train with him. He also admitted to telling his son that he would beat him up when they met at the barber shop.

Durrell Banks, a friend of Patrick who lives next door to Patricia and Patrick, was approached by defendant near his home in the first weeks of July 2005. Defendant asked Banks where Patricia lived, but Banks replied that he could not give that information to defendant. Defendant asked Banks for Patricks phone number, but Banks refused defendant again.

Erick Jones testified for the defense. Defendant and Patrick both frequented the barbershop he had worked in. Defendant and Patrick used to get along well, but Jones testified that the relationship changed and Patrick started saying that he wished his father would stay out of his business. He also stated that Patrick would make things up about himself in an effort to fit in. Jones admitted to numerous prior convictions, being currently incarcerated, and having told defendant Im here for you when they met in the back halls of the courthouse during the trial.

Defendant testified, denying he ever threatened to kill Patricia. He also denied repeatedly calling Williams, and stated that he only called her to get his personal property. Defendant claimed he was near the DHL building for innocent purposes when Patricia saw him on July 6, 2005.

DISCUSSION

I. Unanimity Instruction

Defendant contends the trial court violated his state and federal due process rights by failing to give the jury a unanimity instruction as to which conduct supports the credible threat necessary for a stalking conviction. We reject the claim because the crime of stalking involves continuous conduct and therefore does not require a unanimity instruction.

Issues involving jury unanimity arise when the evidence supports a larger number of distinct violations of the charged crime than have been charged. Unless the prosecution elects a specific criminal act or event upon which it relies for each allegation, the court must instruct the jury on the need for unanimous agreement on the distinct criminal act or event supporting each charge. (People v. Avina (1993) 14 Cal.App.4th 1303, 1309 (Avina).)

The need for jury unanimity is a state, not a federal, constitutional requirement. (People v. Whitham (1995) 38 Cal.App.4th 1282, 1295-1298.) The United States Supreme Court has not held that the [federal] Constitution imposes a jury-unanimity requirement. (Richardson v. U.S. (1999) 526 U.S. 813, 821 [143 L.Ed.2d 985].) Thus, at the outset, we reject defendants federal constitutional claim.

Defendants state constitutional claim also lacks merit. Neither instruction nor election [is] required . . . if the case falls within the continuous course of conduct exception. This exception arises in two contexts. The first is when the acts are so closely connected that they form part of one and the same transaction, and thus one offense. [Citation.] The second is when . . . the statute contemplates a continuous course of conduct of a series of acts over a period of time. [Citation.] (Avina, supra, 14 Cal.App.4th at p. 1309.)

In the present case, the acts were not so closely connected in time that they form the same transaction. The question presented is whether the Legislature . . . has validly defined the offense prohibited as a continuous course of conduct. [] Past decisions on the continuous-course-of-conduct exception have focused on the statutory language in an attempt to determine whether the Legislature intended to punish individual acts or entire wrongful courses of conduct. [Citations.] (Avina, supra, 14 Cal.App.4th at pp. 1309-1310.)

Section 646.9 punishes [a]ny person who willfully, maliciously, and repeatedly follows or willfully and maliciously harasses another person . . . . ( 646.9, subd. (a).) The statute defines harasses as, among other things, engaging in a knowing and willful course of conduct directed at a specific person . . . . ( 646.9, subd. (e).) 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).) The Legislature could not have made it more clear that section 646.9 punishes not a single act, but a course of conduct. Therefore, a unanimity instruction would have been inappropriate. (People v. Ainsworth (1988) 45 Cal.3d 984, 1017-1018.)

Defendant parses the elements of stalking and isolates the requirement that the accused makes a credible threat with the intent to place that person in reasonable fear for his or her safety. ( 646.9, subd. (a).) Defendant contends this requirement does not involve continuous conduct and therefore can require a unanimity instruction. We disagree. Unlike the clear, immediate, unconditional, and specific threat required to convict under section 422, for which a unanimity instruction may be necessary, the credible threat required for stalking can be inferred from the continuous course of conduct engaged in by a defendant. Repetition can transform an act of harassment into the credible threat necessary for the crime of stalking. (See People v. Jantz (2006) 137 Cal.App.4th 1283, 1292-1293.) The credible threat component of stalking does not alter our conclusion that stalking is a crime involving a continuous course of conduct for which a unanimity instruction is not required.

II. Conduct Credits

At the conclusion of sentencing, defendant directed a profane outburst at the trial court. The court then revoked defendants conduct credits. Defendant made another profane statement to the court, and the court replied: [Defendants] conduct in court has been disrespectful, profane and contemptuous throughout these proceedings and at other times. Defendant responded by hurling more obscenities at the court.

Defendant contends the trial court violated section 4019 by revoking conduct credits for conduct that did not occur while defendant was in local custody. The Attorney General replies that the trial courts order should be construed as a finding of contempt, with the denial of custody credits being defendants punishment for the many contemptuous acts he committed throughout the trial. We accept defendants contention.

Section 4019 entitles a defendant to conduct credit unless it appears by the record that the prisoner has refused to satisfactorily perform labor as assigned by the sheriff, chief of police, or superintendent of an industrial farm or road camp ( 4019, subd. (b)) or if it appears from the record that the prisoner has refused to satisfactorily perform labor as assigned or that the prisoner has not satisfactorily complied with the reasonable rules and regulations of the sheriff, chief of police, or superintendent of any industrial farm or road camp ( 4019, subd. (d)).

The trial court revoked defendants conduct credits for conduct that occurred in court rather than for a failure to perform the assigned work or abide by the rules of his custodians, thus exceeding the courts authority to limit conduct credit under section 4019. The courts order is valid only if it can be construed as a valid exercise of the courts power to punish contempt. We find the trial court did not validly exercise the contempt power when it revoked the conduct credits.

Code of Civil Procedure section 1211 allows a court to summarily punish contempt committed in the immediate view and presence of the court . . . . (Code Civ. Proc., 1211, subd. (a).) In order to punish a direct contempt, an order must be made, reciting the facts as occurring in such immediate view and presence, adjudging that the person proceeded against is thereby guilty of a contempt, and that he or she be punished as therein prescribed. (Ibid.)

In a contempt proceeding, the entire record must be strictly construed in favor of the accused, and the usual presumptions in favor of the regularity of the proceedings and judgment have no application. (In re Felthoven (1946) 75 Cal.App.2d 465, 470.) The trial court never declared that defendant was being punished for contempt and never invoked its authority to punish contempt under Code of Civil Procedure sections 1211 and 1218.

The punishment ordered by the trial court was also beyond the allowable punishment for contempt. Contempt is punishable by a fine not exceeding $1,000 or imprisonment not exceeding five days, or both. (Code Civ. Proc., 1218, subd. (a).) Defendant was awarded 264 days of local time credit; therefore, his conduct credit would considerably exceed the five-day maximum for contempt.

The Attorney General argues the trial court was punishing the many contempts committed by defendant throughout the trial. While a court may punish multiple contempts separately, the trial court cannot delay until the end of the trial punishment for contempts committed during the trial. In such a case, the defendant is entitled to notice, and opportunity to respond, and the hearing should be before another judge. (See Taylor v. Hayes (1974) 418 U.S. 488, 496-500 [41 L.Ed.2d 897]; 7 Witkin, Cal. Procedure (4th ed. 1997) Trial, 192, p. 220.) Lacking those procedures, the trial courts order was not a valid exercise of the power to punish contempts.

Accordingly, we vacate the order denying conduct credits and remand the case to the trial court to calculate and impose the conduct credits.

III. Blakely

Defendant contends his upper term sentence violates the rule of Apprendi, supra, 530 U.S. 466 and Blakely, supra, 542 U.S. 296. We find any Blakely error to be harmless beyond a reasonable doubt.

In Apprendi, the Supreme Court held that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be tried to a jury and proved beyond a reasonable doubt. (Apprendi, supra, 530 U.S. at p. 490.) For this purpose, the statutory maximum is the maximum sentence that a court could impose based solely on facts reflected by a jurys verdict or admitted by the defendant. Thus, when a sentencing courts authority to impose an enhanced sentence depends upon additional fact findings, there is a right to a jury trial and proof beyond a reasonable doubt on the additional facts. (Blakely, supra, 542 U.S. at pp. 303-305.)

In Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (Cunningham), the Supreme Court held that by assign[ing] to the trial judge, not to the jury, authority to find the facts that expose a defendant to an elevated upper term sentence, Californias determinate sentencing law violates a defendants right to trial by jury safeguarded by the Sixth and Fourteenth Amendments. (Id. at p. ___ [166 L.Ed.2d at p. 864], overruling People v. Black (2005) 35 Cal.4th 1238 on this point, vacated in Black v. California (Feb. 20, 2007) ___ U.S. ___ [167 L.Ed.2d 36].)

Here, however, the trial court cited as a basis for imposing the upper term the fact that defendants prior criminal convictions were increasingly serious, as well as the fact that defendant was on probation for the same offense when he committed the crime in this case.

The imposition of the upper term based on these facts did not violate the rule of Apprendi, Blakely, and Cunningham because that rule does not apply to an aggravated sentence based on a defendants prior convictions. (Apprendi, supra, 530 U.S. at p. 490.)

One valid aggravating factor is sufficient to expose defendant to the upper term. (People v. Cruz (1995) 38 Cal.App.4th 427, 433.) Here, there were two valid aggravating factors relating to his prior criminal adjudications and convictions. We are satisfied beyond a reasonable doubt that the trial court would have imposed the upper term based on those two valid factors alone, indeed, that it would have done so based solely on the prior criminal convictions. Therefore, any error in considering the facts that there were multiple victims and that the crime showed planning and sophistication was harmless beyond a reasonable doubt. (See Washington v. Recuenco (2006) 548 U.S. __, __ [165 L.Ed.2d 466, 473, 476-477].)

DISPOSITION

The order revoking conduct credits is vacated and the matter is remanded to allow a proper award of credits. On remand, the trial court is directed to calculate defendants conduct credits in a manner consistent with this opinion and to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

RAYE , J.

We concur:

SCOTLAND, P.J.

NICHOLSON , J.

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^[1] All further statutory references are to the Penal Code unless otherwise indicated.