P. v. Olvera

Filed 3/16/07 P. v. Olvera CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Bernard Schwartz, Judge. Affirmed.

Tracy J. Dressner, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Rhonda Cartwright-Ladendorf, Supervising Deputy Attorney General, and Robert M. Foster, Deputy Attorney General, for Plaintiff and Respondent.

Defendant David Arenas Olvera, Jr. appeals from judgment entered following jury verdicts for assault with a deadly weapon, a knife, (Pen. Code, 245, subd. (a)(1))^[1]and stalking ( 646.9, subd. (a)). The jury was unable to reach a verdict on the attempted murder charge ( 664 & 187, subd. (a)), resulting in a mistrial on that count. The jury found true two strike priors ( 667, subds. (c) and (e)(2)(A) & 1170.12, subd. (c)(2)(A)) and an enhancement allegation that defendant used a knife in the commission of an assault ( 12022, subd. (b)). The trial court sentenced defendant to 56 years to life in prison.

Defendant contends the trial court violated his due process rights by allowing the prosecution to add a stalking charge after dismissing it a day earlier based on vindictive prosecution. Defendant also asserts there was insufficient evidence to support the stalking charge, and the court erred in admitting evidence of defendants prior bad acts. Defendant further argues that the trial court erred in imposing consecutive sentences for stalking and assault with a deadly weapon, rather than staying the assault sentence under section 654.

We conclude there was no prejudicial error in the court reinstating the stalking charge since it should not have been dismissed initially. We further reject defendants other contentions and affirm the judgment.

1. Facts

In May 2004, Laura Mendez and Joe Mendez had been married to each other for 11 years and had three children, ages 7, 9, and 10. Laura was having an affair with defendant but initially attempted to conceal it from Joe. Joe suspected Laura was being unfaithful and the two often argued about it.

Stalking

After arguing with Laura in mid-May, Joe left home to cool off. When he returned, Laura and the children were gone. Laura and the children stayed with defendant for four days and then Laura took the children to her parents home. On May 30, 2004, Laura called Joe and told him she was having an affair with defendant. Joe then went to retrieve his children who were at his in-laws home with Laura. Joe told Laura either she must end her affair or he would fight for custody of the children. Laura said she would end the affair the next day.

The following day, Joe took the children to the beach while Laura was going to end the affair. When Joe and the children returned home, Laura told Joe she had ended her affair. Joe did not believe her. While they were arguing, Joe answered the phone. There was silence. Joe assumed it was defendant calling and said, F.U. [] . . . leave us alone, that its over. Defendant cursed at Joe and told him to meet him at Hunts Park. Joe hung up.

Laura had told Joe the day before that defendant had threatened to hurt the children and he knew where they lived. Right after defendants call, Joe decided to take the children to his in-laws home, believing they would be safer there. Laura and one of the children, Robert, had just left the house. Joe and his two other children got in the van and Joe drove after Laura and Robert, who were walking down the street.

As Joe drove up to Laura and Robert, defendant pulled up in his truck alongside Joes van and yelled at Joe. Robert and Laura got into the van, and Joe drove off. Despite Joes efforts to elude defendants persistent pursuit, defendant recklessly followed them, running stop signs and lights and speeding. Laura told Joe defendant would not stop until defendant got Laura back. Joe let Laura out of the van and she got into defendants truck. Nevertheless, defendant resumed following the family van. While on the freeway, defendant pulled alongside the van and tried to force it off the road. After defendant swerved towards the van, defendant finally drove away with Laura.

Joe and the children stayed with Joes in-laws and Laura stayed with defendant for several days. On June 3, Laura reported to the police that defendant had threatened to harm her family if she left him. She testified at trial this was not true. On June 4, Laura returned home, and on June 5, Joe and Laura met with a church deacon for marriage counseling. On June 14, the entire family moved back home.

Knife Attack

Even after Laura returned home and told Joe the affair was over, Joe did not believe it and the two continued to argue about it. During the afternoon of June 25, 2004, Laura went to retrieve some possessions she had left at defendants home.

When Joe got home, he learned that Laura had seen defendant. Joe and Laura argued. Laura left the house crying, with her two daughters following her. They went to a neighbors house. While Joe was outside, defendant pulled up in his truck in front of Joe and Lauras home. Defendant got out of his truck and attacked Joe with a knife, superficially cutting Joes neck. When Joe yelled to neighbors to call the police, defendant told Joe not to be a rat and drove off.

2. Refiling Stalking Charge

Defendant contends the trial court violated his due process rights by allowing the prosecution to reinstate the stalking charge a day after dismissing it based on vindictive prosecution.

A. Procedural Background

On August 3, 2004, the prosecution charged defendant with attempting to murder Joe on June 25, 2004, (count 1) and assaulting Joe with a deadly weapon, a knife, also on June 25 (count 2) (case No. RIF 118400, referred to in this opinion as the first case). On November 5, 2004, the court conducted a preliminary hearing on the charges. Thereafter the prosecution filed an information alleging attempted murder and assault with a deadly weapon, a knife. On January 12, 2005, the prosecution added a prior strike enhancement.

Throughout the proceedings defendant asserted his right to a speedy trial. As a consequence, there were no continuances and the trial began on January 18, 2005. The trial resulted in a hung jury, 11 to 1 for conviction, and the trial court declared a mistrial on January 31, 2005. That same day, the defense advised the prosecution defendant would not waive time for setting a retrial.

On February 9, 2005, the prosecution filed a separate complaint (case No. RIF 121885) containing new charges against defendant for stalking Joe from May 31, 2004, through June 25, 2004 (count 1), and for false imprisonment of Laura on June 1 and 2, 2004 (count 2).

Defendant moved to dismiss the new complaint (RIF 121885)based on vindictive prosecution. Defendant argued that the prosecution filed the new charges against him because he had refused to waive his right to a speedy trial during the first trial and would not waive time for setting a retrial.

During the hearing on the motion on March 10 and 11, 2005, the prosecutor stated that he intended to add two charges to the new complaint, consisting of (1) assault with a deadly weapon, a car, on May 31 and (2) making a criminal threat on June 2 and 3, 2005 (count 4). The court permitted the prosecution to add the two proposed causes of action.

Defendant argued at the hearing on the vindictive prosecution motion that the prosecution had knowledge of facts supporting the new charges before the first trial but did not file the charges until after defendant asserted his speedy trial rights in the first case.

The prosecutor responded that the new charges were not filed in the first case because the prosecution did not discover sufficient facts supporting the new charges until 11 days before the first trial. By that time, it was too late to amend the information to add the new charges and it was unfair to the defense to do so. The trial court would not have permitted the new charges right before the trial.

After hearing argument on defendants motion for dismissal based on vindictive prosecution, the court granted defendants motion as to the stalking offense (count 1) and the assault (with a car) offense (count 3), and dismissed the two counts. The court noted that the prosecutor had complained during the first trial that he had been forced to prepare quickly for the trial due to defendant refusing to waive time. The court found that the prosecution had not overcome the presumption of vindictive prosecution as to counts 1 and 3 because the facts were known to the prosecution before the first trial. As to counts 2 and 4, the court found there was no vindictive prosecution because the charges were based on new evidence.

After ruling on the vindictive prosecution motion, the trial court conducted a preliminary hearing on the remaining two counts, false imprisonment and criminal threat (counts 2 and 4). At the conclusion of the preliminary hearing the following day, the court found there was insufficient evidence to bind over defendant on those charges. However, the court invited the prosecution to add the stalking charge, to conform the complaint to the evidence presented at the preliminary hearing. The court explained that the prosecution could reallege the stalking charge because new evidence of stalking was disclosed during the preliminary hearing.

Defendant objected to reinstating the stalking charge, arguing that nothing had changed since the court dismissed the stalking charge the day before. The court rejected defendants objection, stating that, by choosing to have a preliminary hearing rather than agreeing to rely on the transcripts of the first trial in lieu of a preliminary hearing, defendant risked the prosecution seeking to amend the complaint to conform it to proof adduced at the hearing.

The prosecution filed on March 22, 2005, an information in case RIF 121885, containing a single cause of action for stalking, in which the prosecution alleged that on May 31, 2004, defendant stalked Joe.

On March 23, 2005, the court consolidated the first case (attempted murder and assault with a knife), and the new case, RIF 121885 (stalking). At the hearing on the motion to consolidate, defendant again objected, to no avail, to the court reinstating the stalking count after dismissing it for vindictive prosecution.

The prosecution filed a consolidated second amended information, alleging defendant stalked Joe on May 31, 2004. On May 16, 2005, the court granted the prosecutions request to amend the information by interlineation to add that defendant stalked Joe from May 31, 2004, through June 25, 2004.

After retrial of the charges in case RIF 118400 and trial of the additional stalking charge, the jury found defendant guilty of assault with a deadly weapon, a knife, and stalking. The jury was hung once again on the attempted murder charge.

B. Discussion

Defendant argues the court erred in reinstating the stalking charge since the previous ruling dismissing the charge was final and the prosecution did not appeal the ruling or seek writ relief (no doubt because a day later the trial court set aside the dismissal).

The People argue the trial court erred in dismissing the stalking count and therefore the trial courts decision reinstating the stalking charge was proper. Defendant asserts that, since the dismissal was not appealed, this court cannot consider the propriety of the dismissal and must simply reverse the ruling reinstating the stalking charge.

We conclude the trial court could reconsider and vacate its order dismissing the stalking count. Also, since the trial court abused its discretion in initially dismissing the charge based on vindictive prosecution, reinstating the charge does not constitute reversible error.

(1) Reconsideration of Ruling Dismissing Stalking Charge

Relying on People v. Pinedo (2005) 128 Cal.App.4th 968 (Pinedo), defendant argues that once the trial court dismissed the stalking count based on vindictive prosecution, the court could not reinstate the charge. But Pinedo is distinguishable. In Pinedo,the entire case was dismissed for failure to file timely criminal charges (id. at p. 971) whereas, here, the ruling was an interim ruling. Only the stalking charge and another charge were dismissed based on vindictive prosecution. The action proceeded on the two remaining charges.

In People v. Castello (1998) 65 Cal.App.4th 1242 (Castello), the court upheld the trial courts ruling reconsidering an interim ruling, noting that in criminal cases there are few limits on a courts power to reconsider interim rulings. (Id.at p. 1246.) The trial court in Castello initially found that the defendants prior Florida conviction constituted a prior conviction enhancement under Californias Three Strikes law. Later the trial court vacated this finding, concluding the Florida conviction did not qualify as a Three Strikes conviction because it was based on a guilty plea. The Castello court held the trial court acted within its inherent power to reconsider its ruling on the Three Strikes issue.

In concluding the trial court could reconsider its ruling, the Castello court stated: The California Supreme Court has often recognized the inherent powers of the court . . . to insure the orderly administration of justice. [Citations.] (Castello, supra, 65 Cal.App.4th at p. 1247.) The Castello court further noted that A courts inherent powers are wide. . . . They include authority to rehear or reconsider rulings: [T]he power to grant rehearings is inherent,--is an essential ingredient of jurisdiction, and ends only with the loss of jurisdiction. (Id. at p. 1248.) The court in criminal cases has the inherent power to correct its own erroneous rulings and has complete power to change its decision until entry of judgment. (Id. at p. 1249.)

The Castello court explained that, without the inherent power to change its interim rulings, it could not operate successfully under the requirement of infallibility in its interim rulings. Miscarriage of justice results where a court is unable to correct its own perceived legal errors, particularly in criminal cases where life, liberty, and public protection are at stake. (Castello, supra, 65 Cal.App.4th at p. 1249.)Here, the court acted within its inherent power to reconsider its interim ruling dismissing the stalking charge.

Upon reconsidering its ruling, the trial court in the instant case did not vacate its vindictive prosecution ruling based on a finding there was no vindictive prosecution. Rather, the court concluded it could disregard the previous ruling because there was a subsequent preliminary hearing during which additional evidence was presented supporting the stalking charge. But there were actually no new material facts justifying reinstating the charge. Nevertheless, because the trial court erred in dismissing the stalking charge in the first instance, reinstatement of the charge does not constitute reversible error, regardless of the trial courts reasons for doing so.

(2) Dismissal of the Stalking Charge

Defendants motion to dismiss for vindictive prosecution was founded on the prosecution adding the stalking charge, after mistrial in the first proceeding, allegedly in retribution for defendant asserting his constitutional right to a speedy trial.

(a) Presumption of Vindictiveness

The courts authority to dismiss an action based upon prosecutorial vindictiveness arises from the need to protect defendants due process rights to challenge certain aspects of prosecution without being subjected to increased charges and punishment as a penalty for exercising those rights. (United States v. Goodwin (1982) 457 U.S. 368, 372-373 (Goodwin).) Protection against vindictive prosecution is based on the fundamental notion that it would be patently unconstitutional to chill the assertion of constitutional rights by penalizing those who choose to exercise them. (United Statesv.Jackson (1968) 390 U.S. 570, 581; see also In re Bower (1985) 38 Cal.3d 865, 873, 877-878.)

When action detrimental to the defendant, such as increasing charges against the defendant, has been taken after the exercise of a legal right, the court presumes an improper vindictive motive. (Goodwin, supra, 457 U.S. at p. 373.) But California courts have followed the Supreme Court in refusing to apply a presumption of vindictiveness for prosecutorial action before commencement of trial. (People v. Bracey (1994) 21 Cal.App.4th 1532, 1544.) The presumption of prosecutorial vindictiveness has no application in a pretrial setting because, at that stage, the prosecutors assessment of the proper extent of prosecution may not yet have crystallized. (People v. Hudson (1989) 210 Cal.App.3d 784, 787 (Hudson).)

By contrast, once a trial begins, the state has discovered and assessed all of the information against an accused and has made a determination, on the basis of that information, of the extent to which he or she should be prosecuted, and thus, a change in the charging decision made after an initial trial is completed is much more likely to be improperly motivated than is a pretrial decision. (Hudson, supra, 210 Cal.App.3d at p. 787; Goodwin, supra, 457 U.S. at pp. 373, 381.) For this reason the presumption applies if increased charges are filed post trial after asserting a constitutional right.

The instant case is analogous to Bower, in which the court concluded the vindictiveness presumption applied because the murder charge was increased from second degree to first degree after the defendant successfully moved for mistrial. (In re Bower, supra, 38 Cal.3dat p. 880.)

Relying on Hudson, supra, 210 Cal.App.3d 784, the prosecution argues the presumption of vindictiveness does not apply. But Hudson is inapposite. In Hudson, at the sentencing hearing, the defendant withdrew her guilty plea to two counts of misdemeanor theft. The prosecution then amended the complaint to add charges of felony theft and burglary. The trial court held that the presumption of vindictiveness applied and granted the defendants motion for dismissal based on the prosecution adding charges after the defendants assertion of her right to a jury trial. The Hudsoncourt reversed, concluding the presumption of vindictiveness did not apply because the increase in charges occurred pretrial, based on reevaluation of the evidence. (Hudson, supra, at p. 789.)

In concluding the presumption did not apply, the Hudsoncourt explained that the posture of the case paralleled that of Goodwin, supra, 457 U.S. 368. In Goodwin, after plea negotiations failed, the prosecution obtained an indictment charging the defendant with increased charges. The court in Goodwin held the presumption did not apply, reasoning that the presumption of prosecutorial vindictiveness has no application in a pretrial setting because, at that stage, the prosecutors assessment of the proper extent of prosecution may not yet have crystallized. (Goodwin, supra, at p. 381; see also Hudson, supra, 210 Cal.App.3d at p. 787.)

Since in the instant case, the prosecution added the stalking charge after a mistrial in the first proceeding, the vindictive prosecution presumption applies.

(b) Rebutting the Vindictiveness Presumption

Defendant argues the prosecution failed to rebut the vindictiveness presumption because it was undisputed that (1) the prosecution was aware of evidence supporting defendants stalking offense before the first case was tried, (2) the prosecution did not amend the information to add the stalking charge before the first trial, and (3) during the first trial, the prosecutor made numerous complaints that defendant had refused to waive his right to a speedy trial.

In order to rebut the presumption, the prosecution must provide quantifiable new facts or changed circumstances. A recital of objective factors is necessary to free the defendant from the apprehension of retaliation. (In re Bower, supra, 38 Cal.3dat p. 880, fn. 7.) The prosecution must establish that (1) the increase in charge was justified by some objective change in circumstances or in the state of the evidence which legitimately influenced the charging process and (2) that the new information could not reasonably have been discovered at the time the prosecution exercised its discretion to bring the original charge. (In re Bower, supra, at p. 879.) The subjective motive of the prosecutor is thus irrelevant. In order to refute the vindictiveness presumption, there must be evidence of an objective change in the circumstances or in the state of the evidence justifying the increased charges or sentence. (In re Bower, supra, at pp. 874, 879-880.)

In opposition to defendants motion to dismiss for vindictive prosecution, the prosecution argued that filing the stalking charge did not constitute actual, or the appearance of, vindictiveness because, when the prosecution discovered new evidence justifying filing the additional stalking charge, it was too late to prosecute the charge in the first case, particularly since the defendant refused to agree to any continuances. The prosecutor acknowledged he and his investigator interviewed Joe in detail concerning the May 31 stalking incident and thus had knowledge of the offense prior to the first trial. But the prosecution did not obtain the information until January 7, 2005, 11 days before the trial. Under these circumstances, it is unlikely the trial court would have permitted the prosecution to add the charge in the first case due to defendant refusing to agree to any continuances and defendant not receiving sufficient notice of the new charge prior to the trial.

The instant case is distinguishable from In re Bower, supra, 38 Cal.3d 865, 873, in which the court held the prosecution failed to rebut the vindictiveness presumption. The Bower court found vindictive prosecution on the ground the prosecution increased the murder charge merely because the prosecution reevaluated the evidence and changed its mind about the charges. There were no quantifiable new facts or changed circumstances. Unlike in the instant case, there was no showing that it was too late to prosecute the defendant for first degree murder in the first proceeding.

Here, on the other hand, by the time the prosecution discovered sufficient facts supporting the stalking charge, it was too late to add the stalking charge in the first case because the preliminary hearing had already occurred and the evidence presented at the preliminary hearing was insufficient to support the stalking charge. Consistent with defendants past history of refusing to waive time, he no doubt would have refused to do so for the purpose of allowing the prosecution to add the stalking charge. At that late date, without a continuance, the stalking charges could not be added to the existing attempted murder case, RIF 118400, because the stalking charges would have been subject to a section 995 motion to dismiss under section 1009, which specifically proscribes amending an information to charge an offense not shown by the evidence taken at the preliminary hearing. (People v. Winters (1990)221 Cal.App.3d 997, 1005-1007.)

By establishing that it was too late to add the stalking charge to the information in the first proceeding, the prosecution adequately dispelled the apprehension and reasonable likelihood of vindictiveness. The cases have sometimes referred to the prosecutors burden of rebutting the presumption with an explanation that adequately eliminates actual vindictiveness [citation], or to the burden of proving that the increase in the severity of the charges did not result from any vindictive motive [citation], or to the need to show that the more severe charge was justified by independent reasons or intervening circumstances which dispel the appearance of vindictiveness [citation]. (In re Bower, supra, 38 Cal.3dat p. 878.)

The trial court granted defendants vindictive prosecution on the ground the prosecutor conceded he had knowledge of the stalking offense prior to the trial in the first proceeding. The trial court failed to take into account the fact the prosecution was precluded from adding the stalking charge on the eve of trial. The trial court thus abused its discretion in dismissing the stalking charge based on vindictive prosecution. (People v. Bracey, supra, 21 Cal.App.4th at pp. 1540-1541.) In turn, the trial courts subsequent reconsideration of the ruling and reinstatement of the stalking charge was not error.

3. Sufficiency of Evidence of Stalking

Defendant contends there was insufficient evidence that he stalked Joe in violation of section 646.9. We disagree.

Section 646.9, subdivision (a), provides that, [a]ny 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 prosecution argued at trial that defendant harassed Joe within the meaning of section 646.9 on five separate occasions. Four incidents occurred on May 31 during the car chase, and one incident occurred on June 25 during the stabbing incident. The five stalking acts include the following acts: (1) On May 31, defendant called Joe and Lauras home and, when Joe answered and cussed at defendant, defendant cussed at Joe and told him to meet him at Hunts Park, no doubt for the purpose of fighting him; (2) shortly after the call, defendant drove up to Joe, who was driving a van about a block from his home, yelled at Joe, recklessly chased after Joes van, and then disappeared; (3) defendant reappeared at Best Buy, and pulled out of the Best Buy parking lot in front of Joe, causing Joe to swerve to avoid hitting defendants truck; (4) defendant continued to chase after Joes van and, while on the freeway, tried to force Joes van off the road, and then drove away; (5) on June 25, defendant pulled up in his truck in front of Joe and Lauras home, got out of his truck, told Joe to stand still, and swung a knife at Joe, causing Joe to sustain a minor knife cut.

Harassment

Defendant contends that these acts were insufficient to establish stalking under section 646.9 because there was insufficient evidence of harassment or a credible threat. Defendant argues there was no evidence that defendants acts were directed at Joe, that they seriously alarmed, annoyed, tormented or terrorized him, or that defendant made credible threats against Joe which placed him in fear of his or his familys safety. Defendant asserts that even if the stabbing incident on June 25 constituted harassment, this single act alone was insufficient to support a stalking conviction because there must be more than one act of harassment.

Under section 646.9, subdivision (e), harassment is defined as 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).)

Credible threat includes not only a verbal or written threat, but also a threat implied by a pattern of conduct . . . . ( 646.9, subd. (g).) In determining whether there has been a credible threat, [i]t is enough that the threat causes the victim reasonably to fear for her safety or the safety of her family, and that the accused makes the threat with the intent to cause the victim to feel that fear. [Citation.] In addition, in determining whether a threat occurred, the entire factual context, including the surrounding events and the reaction of the listeners, must be considered. [Citation.] (People v. Falck (1997) 52 Cal.App.4th 287, 297-298.)

Defendants sufficiency of evidence challenge fails because it is dependent upon viewing the evidence in the light most favorable to himself. This is improper. The evidence must be viewed, instead, in the light most favorable to the verdict. Viewed under the appropriate standard, the evidence was sufficient to support the verdict. (People v. Manriquez (1999) 72 Cal.App.4th 1486, 1490.)

Here, defendants overall pattern of conduct supported the jurys finding defendant had made credible threats to Joe and committed multiple acts of harassment. The evidence supports a reasonable finding of multiple instances in which defendant harassed and threatened Joe on May 31, by cursing Joe on the phone and then challenging him to fight at the park; by recklessly chasing Joe in his van; by attempting to cut Joe off on the street by pulling out of the Best Buy parking lot in front of Joes van, causing Joe to swerve; and by attempting to force Joes van off the highway. These incidents on May 31 alone constitute sufficient evidence of harassment and credible threats under section 646.9. Even if the acts occurring on May 31 are considered as a single credible threat and act of harassment, the stabbing incident on June 25 qualifies as an additional credible threat and act of harassment, thus establishing defendant committed multiple acts of harassment.

There is sufficient evidence to support a finding that each of the five acts seriously alarmed, annoyed, tormented and/or terrorized Joe. As a consequence of defendants threatening phone call on May 31, Joe immediately loaded his family in his van, intending to leave the area. Joe testified he was concerned primarily for the safety of his children. It is reasonable to infer from the evidence that Joe feared that defendant would show up at his home and challenge him to a fight, and such a confrontation would endanger and upset his children. In addition, there was evidence that, as defendant was angrily yelling and cursing Joe and recklessly chasing after the van, Joes family was terrified and Joe was seriously alarmed. The children and Laura were crying and hysterical.

Defendant argues Joe was not seriously annoyed or alarmed. But there is ample evidence to the contrary, and a reasonable jury could find that most anyone would be so under such circumstances. This is apparent from Joe calling the police due to defendant relentlessly and recklessly pursuing Joes van.

Defendant argues that evidence that Joe terminated his call to the police when defendant finally ended the chase by exiting the freeway shows that Joe was not seriously alarmed or annoyed by defendants conduct. This is a very weak argument since Joes call to the police while defendant was chasing after Joes van, in and of itself demonstrates Joe was seriously alarmed such that he sought police assistance. Once defendant left, there was no longer any need for assistance.

Defendants reliance on various stalking cases in support of his sufficiency of the evidence challenge is misplaced. None of the cases are dispositive in the instant case because the factual circumstances are entirely different. The totality of the evidence in the instant case is more than sufficient to support defendants stalking conviction.

4. Bad Acts Evidence

Defendant contends the trial court erred in admitting defendants prior bad acts involving jealousy, guns, and violence. Despite defendants objections to the evidence, the trial court permitted testimony about the following four separate incidents that occurred in 1987: (1) defendant shot at the truck of an ex-girlfriend, Roxanne; (2) defendant physically abused ex-girlfriend, Patricia Solorio, throughout his relationship with her; (3) upon becoming jealous when he saw photos of Solorio with other young men, defendant took Solorio to an orange orchard and beat her for 20 minutes and threatened to kill her and her family if she told anyone; and (4) the morning after defendant beat Solorio in the orange grove, defendant went to Solorios house and put a gun to Solorios sisters head as she was leaving the house. When Solorios father confronted defendant, defendant shot Solorios father in the chest and arms before running away. The parties stipulated that defendant admitted he attempted to murder Solorios father and assaulted Solorios sister with a gun.

The trial court overruled defendants objections to the bad acts evidence, and found that the evidence was admissible under Evidence Code section 1101, subdivision (b), and not barred by Evidence Code section 352. The court concluded the evidence was relevant to show common plan, scheme, or motive. The trial court rejected defendants argument that the bad acts evidence was irrelevant and unduly prejudicial, particularly because there was no evidence in the instant case of jealousy.

The prosecution argues the bad acts evidence is relevant to show defendants motive and intent in committing the charged offenses, particularly attempted murder. Defendant committed similar acts of jealousy, threats, violence, and/or gun use, under similar circumstances.

Generally, evidence of a defendants bad character is inadmissible when offered to prove he acted in conformity with that character on a specified occasion. (Evid. Code, 1101, subd. (a).) Such evidence is admissible, however, when offered to prove some other relevant fact, such as intent or motive. (Evid. Code, 1101, subd. (b); People v. Ewoldt (1994) 7 Cal.4th 380, 402-403.) If the evidence is offered for some other purpose, the court must consider whether the probative value of the evidence is substantially outweighed by its potential for undue prejudice of confusing the issues or misleading the jury. (Evid. Code, 352; People v. Cole (2004) 33 Cal.4th 1158, 1194.) The trial courts determination of admissibility of such evidence is reviewed for an abuse of discretion. (People v. Cole, supra, at p. 1194.)

Defendant argues evidence of the prior uncharged acts was inadmissible because the bad acts were not sufficiently similar to the charged offenses and the evidence did not have substantial probative value on the issue of intent or motive. We disagree. The prior bad acts were similar to the charged offense in a number of significant ways. The evidence was probative in establishing that defendants acts of stalking and stabbing Joe were motivated by Joes interference with defendants relationship with Laura.

Defendants criminal acts committed in 1987 involved circumstances similar to those in the instant case, in which defendant became jealous, controlling, possessive, and violent when others interfered with his intimate relationships with women. On one occasion he threatened to shoot his girlfriends sister and fired at his girlfriends father when the sister and father impeded his attempts to see his girlfriend. During another violent incident, defendant fired at the vehicle of an ex-girlfriend upon discovering she was in the vehicle with her boyfriend.

The stalking and knife assault offenses in the instant case similarly involved defendant violently attacking Joe, who was interfering with defendants involvement with Laura. The prior bad acts evidence thus was relevant to show defendant intended to kill or harm Joe and had the motive to do so. There thus was no abuse of discretion in allowing the evidence.

Even if the trial court erred in allowing the evidence, such error was harmless error. The jury did not convict defendant of attempted murder and there was overwhelming evidence supporting defendants stalking and assault convictions. It is not reasonably probable the jury would have reached a result more favorable to defendant had the bad acts evidence been excluded. (People v. Watson (1956) 46 Cal.2d 818, 836.)

5. Consecutive Sentences for Stalking and Assault with a Deadly Weapon

Defendant contends the trial court erred in imposing consecutive sentences for stalking and assault with a deadly weapon. He argues the sentence for assault should have been stayed under section 654 because the assault was a necessary act for the stalking conviction. Defendant claims the knife attack was a predicate act of the stalking offense. Defendant alternatively argues that the stalking and assault sentences should be imposed concurrently.

At sentencing, defendant objected to the court imposing consecutive sentences on the two offenses. The trial court concluded the consecutive sentences were proper because there was sufficient evidence that the stalking incident occurred on May 31, and the additional June 25 incident need not have been considered. Defendant argues that, nevertheless, defendants object in committing both acts was to get Joe. In both instances, defendants objective was the same and he was being punished more than once for the knife attack.

Section 654, subdivision (a), provides in pertinent part: An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. Section 654 precludes multiple punishments not only for a single act, but for an indivisible course of conduct. (People v. Hester (2000) 22 Cal.4th 290, 294; see also People v. Centers (1999) 73 Cal.App.4th 84, 98; People v. Akins (1997) 56 Cal.App.4th 331, 338-339; People v. Liu (1996) 46 Cal.App.4th 1119, 1135.)

Whether a course of conduct is indivisible for purposes of section 654 depends on the intent and objective of the actor. If all the offenses are incidental to one objective, the defendant may be punished for any one of them, but not for more than one. (People v. Latimer (1993) 5 Cal.4th 1203, 1208.) On the other hand, if the evidence discloses that a defendant entertained multiple criminal objectives independent of and not merely incidental to each other, the trial court may impose punishment for independent violations committed in pursuit of each objective even though the violations shared common acts or were part of an otherwise indivisible course of conduct. (People v. Centers, supra, 73 Cal.App.4th at p. 98.) The principal inquiry in each case is whether the defendants criminal intent and objective were single or multiple. (People v. Beamon (1973) 8 Cal.3d 625, 636-639, overruled on another ground in People v. Mendoza (2000) 23 Cal.4th 896, 908.)

Here, there was evidence that defendant harbored multiple criminal intents when he stalked Joe on May 31 and assaulted him on June 25. No doubt, the June 25 incident was included as one of multiple acts of harassment for the purpose of bolstering the prosecutions stalking charge in the event the jury concluded the stalking that occurred on May 31 constituted a single act of harassment. Nevertheless, the evidence supports a finding of stalking based solely on defendants multiple acts of harassment on May 31. The stalking and assault offenses were committed on different days and were incident to independent objectives and intents. Therefore, the trial court did not abuse its discretion in finding the knife assault constituted a separate criminal offense warranting a separate sentence, imposed consecutively to the sentence for stalking.

6. Disposition

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

s/Hollenhorst

Acting P.J.

We concur:

s/McKinster

J.

s/Richli

J.

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^[1] Unless otherwise noted, all statutory references are to the Penal Code.