Filed 3/29/18 P. v. Rich CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE


THE PEOPLE,
Plaintiff and Respondent,
v.
FRANKLIN SHELDON RICH,
Defendant and Appellant.

A148091

(Contra Costa County
Super. Ct. No. 51519982)


A jury convicted defendant and appellant Franklin Sheldon Rich of stalking and criminally threatening his estranged wife, Maricor Rich, at various points in December 2014 and January 2015, and of criminally threatening Maricor’s divorce lawyer in January 2015. On appeal, Franklin argues the trial court improperly instructed the jury with CALCRIM 207 which stated the prosecution could prove the charged crimes took place “reasonably close” to—but not exactly on—specific days. Franklin also argues the court erred in imposing rather than staying concurrent terms for subordinate offenses. We modify the sentence and affirm the judgment as modified.
FACTUAL AND PROCEDURAL BACKGROUND
Franklin was charged with stalking Maricor on or about January 2015 (Pen. Code § 646.9, subd. (b), count 1); stalking her lawyer on or about January 2015 (§ 646.9, subd. (a), count 2); criminally threatening the lawyer on or about January 2015 (§ 422, subd. (a), count 3); criminally threatening Maricor on or between January 1, 2015, and January 11, 2015 (§ 422, subd. (a), count 4); criminally threatening Maricor on or between January 12, 2015, and January 16, 2015 (§ 422, subd. (a), count 5); and criminally threatening Maricor on or between December 1, 2014, and December 31, 2014 (§ 422, subd. (a), count 6.). During a six-day jury trial, both Maricor and her lawyer testified.
Franklin and Maricor married in 1994. They lived most of their married life in New York. At some point, Maricor moved to Walnut Creek, California. From there, in around 2012, Maricor sought to dissolve her marriage to Franklin, who had been abusive to her. She retained her lawyer to assist her with the divorce and a restraining order.
Once Maricor started discussing divorce, she began to receive harassing voicemail messages from Franklin. In 2012, she obtained a restraining order against her husband. In June 2014, Franklin pled no contest to a single charge under section 649.9 for stalking Maricor from May 2012 to March 2014. The court stayed his sentence and placed him on three years’ probation. This time, the court issued a domestic violence criminal protective order, ordering Franklin to stay away from Maricor. Also in June 2014, Maricor filed for divorce. The divorce proceedings remain pending.
Franklin’s June 2014 stalking conviction and the resulting protective order did not stop Franklin from contacting Maricor. Between October 2014 and February 2015, Maricor received over 100 voicemail messages from Franklin on her cell phone. With her lawyer’s help, Maricor logged messages from September 2014 through December 2014 and submitted the log to the Walnut Creek Police Department. Maricor estimated that she called the police over 50 times in response to Franklin’s communications. The Walnut Creek Police Department had records of 12 reports by Maricor from October 2014 through February 2015 alleging violations of the protective order.
At trial, a CD containing 40 minutes of Franklin’s messages from October 2014 through January 2015 was admitted into evidence. The CD contained 33 separate audio files, identified by number and by date. The prosecution played several messages for the jury, identifying by date a couple of messages from November 2014, and one each from December 2014 and January 2015.
On November 10, 2014, Franklin left this message: “Yeah, Maricor, on your birthday, I’m going to leave you with this because you have no fucking conscience; you have no guilt. Alright. I am dying of starvation. I have no money. You agreed to pay me 25,000 dollars. And you have now reneged. You are a piece of shit. Alright? Hopefully you won’t see another birthday. Because you are a piece of shit. You are going to let me die and try to collect my social security money when I’m dead. That’s your plan. I know you. Alright. You’re a cheap fucking woman. And now you’ve hurt me more than anybody I know in my life. And I am, with all my strength left, I am going to come after you with fucking vengeance. Alright. You will be dead. You will be dead.”
This was his message on December 21, 2014: “Yeah, Maricor. Your reluctance to deal with the (unintelligible) situation has turned me into a bum, a vagrant. I am gonna come out to California and slit your fucking throat. Alright? I am going to slit your fucking throat. Alright? Compile that with the fucking Walnut Creek goon cops that you know. You are a motherfucking cunt and I am going to kill you!”
On January 16, 2015, he left this message: “Yeah, Maricor. This is a policy you’re doing of not talking to me. Is it really worth losing your, losing your life over money? You’re putting money ahead of your own life? That’s what’s going to happen, Maricor. When I come out to California, nobody is going to be able to stop me from hunting you down and doing what I have to do. This is what you’ve done now, this is what you’ve caused. My anger goes beyond anything that any person has ever done before. You’ve hurt me seriously and it’s intentional. And you want me to die, well Maricor, I’ll die in jail but you’ll be dead before I will. . . . I hate your fucking guts now, Maricor. And I’m going to get that money or more come hell or high water. Then you’ll really be suffering. And you can tell your fucking cunt-ass attorney that her, uh, conduct in this whole matter is absolutely criminal. And I have had enough Maricor. I have suffered enough because of your piece of shit lying thieving coward character. You’ve (unintelligible) your whole character now shows what you’re like. You are a piece of shit.” Eventually, Maricor changed her phone number and stopped receiving calls from Franklin.
Maricor’s attorney received voicemail messages from Franklin, too. At trial, another CD was admitted into evidence containing Franklin’s four messages to her on November 7, 2014, December 17, 2014, January 4, 2015, and January 20, 2015. All four messages were played to the jury. In the November 2014 message, Franklin told her, “[Y]ou’ve been neglecting to call me. You are a fucking cunt. Um, I know exactly where you live, and I’m gonna come after you for the next few days.” In the December 2014 message, he railed against the lawyer for her work in the divorce case, accused her of ethical violations, and added, “[R]remember another thing. I know where you work. I know where you live. And if you don’t answer this so we can get, uh, monetary divorce settlement as soon as possible. I’m gonna carry out—I’m fill—filling you out where you understand what it is to be screwin’ somebody.” In the January 4, 2015 message, he again reminded the lawyer that he knew where she worked, where she lived, and what kind of car she drove. He added, “I’m back in California and I am—I am definitely gonna make sure I introduce myself to you. Take care of that settlement as quickly as possible or else you know what’s going to happen.” The January 20, 2015 message repeated that Franklin knew where she worked and lived and what car she drove.
The jury convicted Franklin of the one count of stalking and all three counts of criminally threatening Maricor (counts 1, 4-6). The jury also convicted him of criminally threatening her lawyer (count 3), but was unable to reach a verdict on the stalking charge as to the lawyer (count 2), for which the court declared a mistrial. The court sentenced Franklin to two years and eight months in state prison consisting of two years for the stalking count, with a consecutive eight-month sentence for criminal threats directed at Maricor’s lawyer. Two-year concurrent sentences were imposed for each of the criminal threat counts involving Maricor. He now appeals.
DISCUSSION
A. CALCRIM 207 Instruction
Franklin contends that the trial court erred in giving CALCRIM 207 which instructed the jury that the prosecution did not need to prove that the crimes took place on the dates alleged but only “close to those dates.” Because some of the evidence pertained to conduct outside the period charged, Franklin contends this instruction allowed the jury to convict him based on uncharged offenses. In addition, because dates for Franklin’s stalking charge and the criminal threats charges overlapped, Franklin contends the instruction allowed the jury to convict him of different charges based on the same conduct.
Neither party addresses our standard of review for this issue. On appeal, “[w]e determine whether a jury instruction correctly states the law under the independent or de novo standard of review. [Citation.] Review of the adequacy of instructions is based on whether the trial court ‘fully and fairly instructed on the applicable law.’ [Citation.] ‘ “In determining whether error has been committed in giving or not giving jury instructions, we must consider the instructions as a whole . . . [and] assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given.” [Citation.]’ [Citation.] ‘Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation.’ [Citation.]” (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.) “An appellate court can address an incorrect instruction to which no objection was made at trial if the instruction impaired the defendant’s substantial rights. [Citation.]” (People v. Fuentes (2009) 171 Cal.App.4th 1133, 1138.)
Here, CALCRIM 207 was not requested by either party. Immediately before the jury rejoined the court to receive instructions, the court informed counsel, “I’m also going to include in the packet 207, which I mentioned to Counsel this morning, that I think we need that.” The prosecutor responded, “All right.” Franklin’s counsel, who spoke next, turned to another topic, but did not object to the newly added instruction. The instruction provided: “It is alleged that the crimes occurred on or about January 2015, January 1-11, 2015, January 12-16, 2015, and December 1-31, 2014. The People are not required to prove that the crimes took place exactly on that or those days, but only that it happened reasonably close to those days.”
Even if we assume CALCRIM 207 should not have been given, the erroneous instruction does not warrant reversal. “When the jury is ‘misinstructed on an element of the offense . . . reversal . . . is required unless we are able to conclude that the error was harmless beyond a reasonable doubt.’ [Citations.]” (People v. Wilkins (2013) 56 Cal.4th 333, 348.) In other words, the error is harmless under the Chapman standard (See Chapman v. California (1967) 386 U.S. 18) if it is “clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error.” (Neder v. United States (1999) 527 U.S. 1, 18.) We conclude beyond a reasonable doubt that any instructional error in giving CALCRIM 207 was harmless because the verdict would have been the same even if it had not been given.
Unless multiple convictions involve necessarily included offenses, a defendant may be convicted of multiple offenses for a “single act or indivisible course of conduct.” (People v. Ortega (1998) 19 Cal.4th 686, 694.) Franklin makes no claim that his conviction for stalking Maricor and his convictions for criminal threats against her involve necessarily included offenses. Nor should he. A comparison of the elements of the two offenses shows that the crime of making criminal threats is not necessarily included in the crime of stalking. Criminal threats require that the recipient of the threat suffer sustained fear for his or her safety, and that the threat be so “unequivocal, unconditional, immediate, and specific” that it conveys an “immediate prospect of execution.” (§ 422; CALCRIM 1300.) These two elements do not appear in the offense of stalking, and the offense of stalking can be committed without these elements. (Compare § 422 with § 646.9.) Since the same acts can support convictions for both making criminal threats and stalking, instructing under CALCRIM 207 had no possible effect on the guilty verdict for stalking.
Nor is there a reasonable likelihood the jury interpreted CALCRIM 207 to permit Franklin’s stalking conviction based on uncharged conduct. “[A] defendant challenging an instruction as being subject to erroneous interpretation by the jury must demonstrate a reasonable likelihood that the jury understood the instruction in the way asserted by the defendant.” (People v. Cross (2008) 45 Cal.4th 58, 67–68.) Although the jury received evidence of harassing voicemail messages from outside of the charged period, in light of the ample evidence from January 2015, there is no reasonable likelihood Franklin’s stalking conviction was based on the uncharged conduct. For example, on January 9, 2015, Franklin left Maricor a message informing her, “Your refusal to communicate with me to negotiate at all leaves me with no choice but to do what I’m gonna have to do. . . . I think you’re going to regret it.” On January 11, 2015, he told Maricor he was coming to California and warned, “If that’s not gonna work out and I have to spend a few months in jail, I will, and then when I get out of jail, all hell, all hell will break loose . . . , and I am gonna make sure—make sure that I get what I—I’m entitled to, or more. Goodbye.” Later that day, he left another message: “Yeah, Maricor, you’re a piece of shit for not calling me back. I will kill you. I am gonna kill you. Guaranteed.” On this record, we have no trouble concluding the jury would have convicted Franklin of the stalking count as to Maricor even without CALCRIM 207.
Likewise, Franklin’s four criminal threat convictions were also unaffected by CALCRIM 207. As with the stalking conviction, there is no reasonable likelihood the jury interpreted CALCRIM 207 to permit Franklin’s criminal threat convictions based on uncharged offenses. In closing argument, the prosecutor identified for the jury the specific messages associated with each criminal threats charge. Count 3 charged criminal threats to Maricor’s lawyer in January 2015. The prosecutor stated: “[T]the threats that [Franklin] made against her in the month of January, yeah, we’re done.” Count 4 was based on criminal threats to Marico between January 1 through 11, 2015. The prosecutor replayed for the jury the messages Franklin left on January 3 and January 8, 2015. Referring to these messages, the prosecutor noted, “[T]hat’s Count Four.” Count 5 addressed criminal threats to the lawyer from January 12 through 16, 2015. The prosecution replayed Franklin’s messages from January 13, 14, and 16, 2015. The prosecutor prefaced these messages by stating, “Now, Count Five. Going through the 12th through the 16th.” Count 6 was based on the criminal threats to Maricor from December 1 through 31, 2014. The prosecutor explained this count to the jury, saying this “deals with what we had in December” and played the messages from December 7, 19, and 26, 2014. We are satisfied on this record that the jury would have convicted Franklin on counts 3, 4, 5, and 6 based on the charged conduct.
Franklin contends that any instructional error was not harmless beyond a reasonable doubt. Without CALCRIM 207, he says the jury’s verdict would have been different, explaining the “evidence against [Franklin] was not overwhelming” and the “evidence of his intent was purely circumstantial.” He further adds that “substantial evidence shows that [Maricor] did not genuinely fear for her safety, except perhaps in December 2014,” when he indicated he was in a nearby town. Franklin contends that the fact that because he told her he was in New York during most of the charged time periods and she believed him, his threats were not credible and any fear was unreasonable.
We disagree. We have reviewed Maricor’s call log documenting several of Franklin’s calls, and we have also listened to many of Franklin’s voicemail messages admitted into evidence. With over 100 harassing voicemail messages to Maricor in a four-month period, 27 from within the charged time period on a CD received as evidence, we reject Franklin’s contention the evidence was not overwhelming. We also reject Franklin’s contention that Maricor could only have reasonably feared for her safety if she knew he was nearby. Maricor’s testimony of her fear, her inability to go out alone, and her belief that Franklin would kill her in the context of Franklin’s vicious voicemail messages is substantial evidence that Maricor’s fear for her safety was reasonable. Further, given Franklin was capable of getting himself to California in the past, and indeed managed to travel to California around October 2015 when he appeared in front of Maricor’s residence, his geography argument is greatly overstated. The court’s instruction was not grounds for reversal.
B. Section 654 Sentencing Error
Franklin also contends that the trial court violated Penal Code section 654’s prohibition of multiple punishments for the same act or omission. Specifically, he contends that the trial court erred in failing to stay the sentences for the count 4, 5, and 6 criminal threat convictions as to Maricor since those counts comprised a single course of conduct beginning in September 2014 and concluding in February 2015.
Section 654 bars multiple punishments for “ ‘a course of conduct which violated more than one statute but nevertheless constituted an indivisible transaction.’ ” (People v. Wynn (2010) 184 Cal.App.4th 1210, 1214 (Wynn).) “ ‘Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.’ ” (People v. Kwok (1998) 63 Cal.App.4th 1236, 1253.) “ ‘If [a] defendant harbored “multiple criminal objectives,” which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, “even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.” ’ ” (Wynn, supra, 184 Cal.App.4th at p. 1215.) Section 654 rulings are reviewed for substantial evidence, and the court has “ ‘broad latitude in making [these] determination[s].’ ” (Ibid.)
Here, the court sentenced Franklin to two years and eight months in state prison. For the count 1 stalking conviction as to Maricor, he was sentenced to two years. For the count 3 criminal threat conviction as to her lawyer, the court imposed an eight-month sentence consecutive to count 1 as it involved “a separate victim, separate target of behavior.” The court imposed the two-year sentences for each of the Maricor-related criminal threat convictions to run concurrently with count 1.
The People concede that the concurrent sentences for counts 4 and 5 related to Franklin’s criminal threats in January 2015 should be stayed. We agree. But we also conclude the concurrent sentence for count 6 related to Franklin’s criminal threats in December 2014 must also be stayed.
While the People point out that “[t]he key inquiry is whether the objective and intent attending more than one crime committed during a continuous course of conduct was the same,” they cite to no substantial evidence in the record of multiple criminal objectives to support separate punishments for Franklin’s stalking and criminal threats convictions as to Maricor. Even implying the necessary findings of divisible conduct, the record still lacks substantial evidence to support it. There is no substantial evidence to conclude that the criminal intent behind any of the voicemail messages was different for his stalking charge and his criminal threats charges. Franklin’s voicemail messages to Maricor provided to the jury were cruel, harassing, and vicious in equal measure. They demonstrated Franklin’s intent of making Maricor fear for her safety. Absent clear and distinct objectives for both counts 1 and count 6, section 654 precludes punishment for the count 6 conviction, too.
It is also difficult for us to reconcile the People’s concession that section 654 precludes sentences for counts 4 and 5 but not for count 6 when the same pattern of reprehensible conduct was presented as evidence to secure convictions on all counts. Our review of the messages from December 2014, which the People want to punish separately, and those from January 2015, which the People concede should not be punished separately, reveals no appreciable difference between the cruel and menacing intent that permeate all of Franklin’s messages to Maricor, which his sentence for count 1 punishes.
DISPOSITION
The judgment shall be modified to stay the two-year concurrent sentences for counts 4, 5, and 6 under section 654. So modified, the judgment will be affirmed. The trial court is directed to prepare an amended abstract of judgment reflecting this modification and to send a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.



_________________________
Siggins, J.


We concur:


_________________________
Pollak, Acting P.J.


_________________________
Jenkins, J.