People v. Cruz
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Opinion
Filed 2/26/20; Certified for Publication 3/18/20 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E070518
v. (Super.Ct.No. INF1600985)
MARIO CRUZ, JR., OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Otis Sterling, Judge.
Affirmed as modified with directions.
Kevin Smith, 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, and Melissa Mandel, Tami
Falkenstein Hennick and Adrian R. Contreras, Deputy Attorneys General, for Plaintiff
and Respondent.
1 I. INTRODUCTION
A jury found defendant and appellant, Mario Cruz, Jr., guilty as charged of
committing several offenses against his former girlfriend, Jane Doe: stalking Jane while a
restraining order prohibiting defendant from contacting Jane was in effect (Pen. Code,
§ 646.9, subd. (b); count 1);1 vandalism of more than $400 (§ 594, subd. (b)(1); count 2);
violating a criminal protective order, by an act or credible threat of violence, within seven
years of suffering a prior conviction for violating such an order (§ 273.6, subd. (d); counts
3, 6, 7, & 9); and making criminal threats (§ 422; counts 5 & 8).2 The court found
defendant had one prison prior3 (§ 667.5, subd. (b)) and sentenced defendant to an
aggregate term of six years four months in state prison.4
1 Undesignated statutory references are to the Penal Code.
2 Defendant was acquitted of assault with a deadly weapon in count 4. (§ 245, subd. (a)(1).) A mistrial was declared on count 10, in which defendant was charged with intimidating Jane as a witness (§ 136.1, subd. (c)(1)), after the jury failed to reach a verdict on count 10. 3 The trial court found not true additional allegations that defendant had a prior serious felony conviction (§ 667, subd. (a)) and a prior strike conviction (§§ 667, subds. (a), (c), (e)(1), 1170.12, subd. (c)(1)). The allegations were based on defendant’s 2009 Arizona conviction for attempted aggravated assault. The court found that this conviction did not qualify as a serious or violent felony in California.
4 Defendant’s six-year four-month sentence is comprised of the upper term of four years for his stalking conviction in count 1, plus consecutive eight-month terms (one-third the middle term) for his vandalism conviction in count 2 and his criminal threats conviction in count 5, plus one year for the prison prior. Concurrent, two-year terms were imposed on defendant’s other convictions: his criminal threats conviction in count 8 and his convictions in counts 3, 6, 7, and 9 for violating a criminal protective order. No terms were stayed. (§ 654.)
2 Defendant raises four claims of error in this appeal. First, he claims his criminal
threats conviction in count 5 must be reversed because the court erroneously admitted
threatening Facebook messages sent to Jane from fictitious Facebook accounts to support
the charge in count 5. Specifically, he claims the prosecution failed to authenticate the
Facebook messages as having been sent to Jane by defendant. We conclude the messages
were adequately authenticated based on their content, together with the testimony of Jane
and other witnesses. This evidence made a prima facie showing, and allowed the jury to
reasonably determine, that defendant was the person who sent the messages to Jane. Any
inference that the messages came from persons other than defendant concerned the
messages’ weight, not their admissibility.
Second, defendant claims his criminal threats convictions in counts 5 and 8 must
be reversed because making a criminal threat is a lesser included offense of stalking, and
a person cannot be convicted of both a greater offense and a necessarily included lesser
offense. Defendant also claims his stalking and criminal threats convictions are separate
statements of the same offense and violate the double jeopardy clause of the Fifth
Amendment, because his criminal threats convictions are necessarily included in his
stalking conviction. All of these claims lack merit. Defendant was properly convicted of
stalking in count 1 and making criminal threats in counts 5 and 8.
Third, defendant claims the court erroneously failed to stay, under section 654, his
sentence on his criminal threats convictions in counts 5 and 8, and his convictions for
violating restraining orders in counts 3, 6, 7, and 9, because these convictions arose from
the same indivisible course of conduct, and were based on the same intent and objective,
3 as his stalking conviction—namely, his threats to harm Jane and his attempts to convince
Jane to resume his and Jane’s romantic relationship between April and August 2016. We
reject this claim because substantial evidence supports the court’s implicit finding that
defendant’s convictions in counts 3, 5, 6, 7, 8, and 9 were based on distinct acts,
occurring on separate days and thus divisible in time. Thus, separate punishment was
properly imposed on each of these convictions.
Fourth and lastly, the parties agree, as do we, that the judgment must be modified
to strike defendant’s one-year prison prior enhancement (§ 667.5, subd. (b)), in light of
the October 8, 2019 enactment of Senate Bill No. 136 (2019-2020 Reg. Sess.), which
applies retroactively to all judgments, including defendant’s judgment, which were not
final on appeal when the legislation went into effect on January 1, 2020. Thus, we
modify the judgment to strike the one-year prison prior, which reduces defendant’s
sentence from six years four months to five years four months. In all other respects, we
affirm the judgment.
II. FACTS AND PROCEDURAL HISTORY
A. The Three Criminal Protective Orders Against Defendant
Defendant and Jane dated for several months, beginning in 2015. Several times,
either Jane or defendant broke off their relationship, but then the two of them would
reconcile. Between August and October 2015, Jane obtained three restraining orders
against defendant, and despite these orders, Jane and defendant reunited and broke up
several more times between December 2015 and April 18, 2016. On March 10, 2016,
Jane obtained three criminal protective orders against defendant when he pled guilty to
4 violating the three restraining orders. The criminal protective orders were in effect until
March 10, 2019.
B. The April 2016 Phone Calls and Text Messages to Jane and R.M.
On April 18, 2016, Jane decided she wanted to permanently end her relationship
with defendant. After April 18, Jane tried to avoid defendant; she did not answer his calls
or reply to his text messages. Jane lived with her father, R.M., and her five children. On
April 18, Jane reported to police that defendant had violated the March 10, 2016, criminal
protective orders by calling her home phone multiple times on April 18, and by sending
her text messages on April 14, 15, and 17 from phone numbers she did not recognize. In
these calls and text messages, defendant kept telling Jane he loved her and wanted her
back.
Jane recorded defendant’s last phone call to Jane’s home phone on April 17, 2016,
which R.M. answered, and the recording was played for the jury. In April 2016,
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Filed 2/26/20; Certified for Publication 3/18/20 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E070518
v. (Super.Ct.No. INF1600985)
MARIO CRUZ, JR., OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Otis Sterling, Judge.
Affirmed as modified with directions.
Kevin Smith, 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, and Melissa Mandel, Tami
Falkenstein Hennick and Adrian R. Contreras, Deputy Attorneys General, for Plaintiff
and Respondent.
1 I. INTRODUCTION
A jury found defendant and appellant, Mario Cruz, Jr., guilty as charged of
committing several offenses against his former girlfriend, Jane Doe: stalking Jane while a
restraining order prohibiting defendant from contacting Jane was in effect (Pen. Code,
§ 646.9, subd. (b); count 1);1 vandalism of more than $400 (§ 594, subd. (b)(1); count 2);
violating a criminal protective order, by an act or credible threat of violence, within seven
years of suffering a prior conviction for violating such an order (§ 273.6, subd. (d); counts
3, 6, 7, & 9); and making criminal threats (§ 422; counts 5 & 8).2 The court found
defendant had one prison prior3 (§ 667.5, subd. (b)) and sentenced defendant to an
aggregate term of six years four months in state prison.4
1 Undesignated statutory references are to the Penal Code.
2 Defendant was acquitted of assault with a deadly weapon in count 4. (§ 245, subd. (a)(1).) A mistrial was declared on count 10, in which defendant was charged with intimidating Jane as a witness (§ 136.1, subd. (c)(1)), after the jury failed to reach a verdict on count 10. 3 The trial court found not true additional allegations that defendant had a prior serious felony conviction (§ 667, subd. (a)) and a prior strike conviction (§§ 667, subds. (a), (c), (e)(1), 1170.12, subd. (c)(1)). The allegations were based on defendant’s 2009 Arizona conviction for attempted aggravated assault. The court found that this conviction did not qualify as a serious or violent felony in California.
4 Defendant’s six-year four-month sentence is comprised of the upper term of four years for his stalking conviction in count 1, plus consecutive eight-month terms (one-third the middle term) for his vandalism conviction in count 2 and his criminal threats conviction in count 5, plus one year for the prison prior. Concurrent, two-year terms were imposed on defendant’s other convictions: his criminal threats conviction in count 8 and his convictions in counts 3, 6, 7, and 9 for violating a criminal protective order. No terms were stayed. (§ 654.)
2 Defendant raises four claims of error in this appeal. First, he claims his criminal
threats conviction in count 5 must be reversed because the court erroneously admitted
threatening Facebook messages sent to Jane from fictitious Facebook accounts to support
the charge in count 5. Specifically, he claims the prosecution failed to authenticate the
Facebook messages as having been sent to Jane by defendant. We conclude the messages
were adequately authenticated based on their content, together with the testimony of Jane
and other witnesses. This evidence made a prima facie showing, and allowed the jury to
reasonably determine, that defendant was the person who sent the messages to Jane. Any
inference that the messages came from persons other than defendant concerned the
messages’ weight, not their admissibility.
Second, defendant claims his criminal threats convictions in counts 5 and 8 must
be reversed because making a criminal threat is a lesser included offense of stalking, and
a person cannot be convicted of both a greater offense and a necessarily included lesser
offense. Defendant also claims his stalking and criminal threats convictions are separate
statements of the same offense and violate the double jeopardy clause of the Fifth
Amendment, because his criminal threats convictions are necessarily included in his
stalking conviction. All of these claims lack merit. Defendant was properly convicted of
stalking in count 1 and making criminal threats in counts 5 and 8.
Third, defendant claims the court erroneously failed to stay, under section 654, his
sentence on his criminal threats convictions in counts 5 and 8, and his convictions for
violating restraining orders in counts 3, 6, 7, and 9, because these convictions arose from
the same indivisible course of conduct, and were based on the same intent and objective,
3 as his stalking conviction—namely, his threats to harm Jane and his attempts to convince
Jane to resume his and Jane’s romantic relationship between April and August 2016. We
reject this claim because substantial evidence supports the court’s implicit finding that
defendant’s convictions in counts 3, 5, 6, 7, 8, and 9 were based on distinct acts,
occurring on separate days and thus divisible in time. Thus, separate punishment was
properly imposed on each of these convictions.
Fourth and lastly, the parties agree, as do we, that the judgment must be modified
to strike defendant’s one-year prison prior enhancement (§ 667.5, subd. (b)), in light of
the October 8, 2019 enactment of Senate Bill No. 136 (2019-2020 Reg. Sess.), which
applies retroactively to all judgments, including defendant’s judgment, which were not
final on appeal when the legislation went into effect on January 1, 2020. Thus, we
modify the judgment to strike the one-year prison prior, which reduces defendant’s
sentence from six years four months to five years four months. In all other respects, we
affirm the judgment.
II. FACTS AND PROCEDURAL HISTORY
A. The Three Criminal Protective Orders Against Defendant
Defendant and Jane dated for several months, beginning in 2015. Several times,
either Jane or defendant broke off their relationship, but then the two of them would
reconcile. Between August and October 2015, Jane obtained three restraining orders
against defendant, and despite these orders, Jane and defendant reunited and broke up
several more times between December 2015 and April 18, 2016. On March 10, 2016,
Jane obtained three criminal protective orders against defendant when he pled guilty to
4 violating the three restraining orders. The criminal protective orders were in effect until
March 10, 2019.
B. The April 2016 Phone Calls and Text Messages to Jane and R.M.
On April 18, 2016, Jane decided she wanted to permanently end her relationship
with defendant. After April 18, Jane tried to avoid defendant; she did not answer his calls
or reply to his text messages. Jane lived with her father, R.M., and her five children. On
April 18, Jane reported to police that defendant had violated the March 10, 2016, criminal
protective orders by calling her home phone multiple times on April 18, and by sending
her text messages on April 14, 15, and 17 from phone numbers she did not recognize. In
these calls and text messages, defendant kept telling Jane he loved her and wanted her
back.
Jane recorded defendant’s last phone call to Jane’s home phone on April 17, 2016,
which R.M. answered, and the recording was played for the jury. In April 2016,
defendant also called R.M. on R.M.’s cell phone, and R.M. told defendant to stop calling
Jane. R.M. did not know how defendant obtained R.M.’s phone number. Defendant also
sent several text messages to R.M.’s cell phone, calling Jane a “bitch,” a “whore,” and a
“sex maniac,” claiming Jane was “fucking” defendant’s uncle, and saying that Jane
would “‘see what’s coming to her’” and would “regret it for the rest of her life.”
C. The Home Depot Incident (June 20, 2016) (Counts 2-4)
On June 20, 2016, Jane saw defendant waiting for her as she was arriving for work
at a Home Depot store where she had been working since January 2016. Jane told
defendant to leave or she would call the police, but defendant followed her into the store,
5 yelled at her, and threatened to vandalize her car unless she agreed to get back together
with him. A store surveillance camera, which video-recorded the encounter between Jane
and defendant, was played for the jury.
After defendant refused to leave, Jane reported defendant to two coworkers and
her supervisor. Jane asked one of the coworkers, E.L., to move her car closer to the front
of the store because she feared defendant would vandalize it and she feared going
outside. E.L. waited until he thought defendant had left the store parking lot, then got
into Jane’s car to move it. Defendant then appeared in front of the car and threw a
boulder, the size of a bowling ball, through the front windshield of the car. E.L. shifted
to the left to avoid the boulder and got out of the car. Had E.L. not moved, the boulder
would have hit him. Defendant then shattered the rear window and a side window of the
car with other boulders he took out of his backpack.
A bystander tried to “de-escalate” the situation by confronting defendant, who
then brandished another rock to keep E.L. and the bystander from approaching him.
Defendant was saying, “‘I’ll kill you. I’ll throw the rock. I’ll kill you’” to keep E.L. and
the bystander away from him. Defendant then ran away, dropped the rock, and got on a
bus. The bystander called 911 to report the incident, and a recording of the 911 call was
played for the jury.
The police arrived at the Home Depot store after the store manager placed a 911
call, which was also played for the jury, in which the store manager and Jane reported
that defendant had accosted Jane in violation of a protective order and had vandalized her
6 car. Repairs to fix the car windows cost Jane over $600. The incident made Jane fear
defendant.
D. The July 2016 Texts to Jane Through Facebook Messenger
Jane called the police on July 6, 2016, reporting numerous violations of the three
criminal protective orders by defendant during the preceding days. Jane reported that
defendant had sent her various threatening text messages through Facebook Messenger,
using fictious names or pseudonyms and “fake” Facebook accounts. Jane would block
one Facebook sender, then the text messages would come to her through a new Facebook
sender.5
1. The Facebook Text Messages from “Emilio Lopez”
Using the name “Emilio Lopez,” defendant sent several text messages to Jane
between June 20 and July 6, 2016. One series of text messages from “Emilio Lopez,”
which Jane received between July 1 and July 6, 2016, said: “Cut the crap [Jane] and
don’t get yourself in trouble. Hope to God that you don’t get me in a bad mood because
then you will regret everything. This better be the last time you see your little boyfriend
because if it’s not the last time next time you’ll know and that also go[es] for Luis.
Behave and listen. [¶] Please listen.” Jane testified that Luis was a friend of Jane’s and
of defendant’s uncle, and that defendant believed Jane was having a sexual relationship
with Luis.
5 Jane also showed a police detective that defendant was using a photograph of a gun with bullets as his own Facebook profile.
7 In another series of text messages from “Emilio Lopez,” defendant wrote: “This is
the last chance I’m giving [if not well you know] [¶] Poor you if I find you’re still
fucking Luis poor you [¶] You give them ass give it to me too [come] over so we can
fuck [¶] Why them and not me? You don’t even think twice to give up your ass to your
handsome so tell me then what did your handsome do the day of the car you should have
called him and told him hey they broke my windows help me like the I give you ass.
You’re fucking sick in the head have some respect and don’t be a slut.”6 Jane testified
she received these text messages after June 20, 2016, the day defendant broke Jane’s car
windows, and before July 6, 2016, the day Jane showed the text messages to a police
detective.
The text messages from “Emilio Lopez” continued: “I’m sure he fucked you and
in [M]arch I’m here crying fucking crocodile tears but just how you played me you’ll pay
for all of it SO THINK ABOUT WHAT YOU’RE DOING.” Along with these text
messages, defendant sent Jane screenshots of text messages sent between Luis and Jane.
Jane testified she recognized the text messages between herself and Luis, and she
believed defendant obtained the text messages through Apple because she and defendant
had purchased iPhones using the same account.
In further text messages from “Emilio Lopez,” defendant said: “DREAM OF ME
FRIEND GOODBYE CUTIE [¶] You’re not going to tell me HOW DELICIOUS? [¶]
You know he’s always going to be there cutie [¶] Tell them to help you tell them to take
6 All quotes of text messages, e-mails, and other correspondence, including brackets and parentheses, are directly from the record.
8 the load off you see stupid that no one will stick their hands in flames for you ahhh but
you’re real good at giving them pussy [¶] Think about it well because next time I won’t
forgive you and you won’t laugh at me that I promise you [¶] REMEMBER REAL
GOOD HOW MANY TIMES I ASKED YOU IF YOU WERE REALLY REALLY
SURE ABOUT GETTING BACK WITH ME THE TIME YOU CALLED ME TO
MEXICALI CRYING. DIDN’T I ASK YOU ABOUT 6 TIMES IF YOU’RE REALLY
SURE! And look I yelled at you on Christmas and look at what you do to me after all
you did to me after all you were doing it to me behind my back I knew what was going
on but a lot of the times I endured it because I love you and tell me if I’m the bad one [¶]
Enjoy your last day with your Joey if he’s here because I swear it will be [¶] When can
we fuck in my uncle’s apartment so we can bring back old memories?” (Italics added.)
Jane testified that she and defendant had been intimate in defendant’s uncle’s apartment,
but she had never been intimate with anyone else in the apartment.
The text messages from “Emilio Lopez” continued: “Maybe if I would have
treated you like a fucking prostitute and I didn’t care for you and you were just good for
fucking I think we would still be together but I gave you the respect you deserve as a
woman and a mother. [¶] If you wanted it so much even if we weren’t together I would
treat you the same. Now why don’t you come and give it to me why do you look for
them I can fuck you like them and send you your way after I’m done [¶] Afterwards I
can tell you I’ll always be there for you my cutie with that should be enough [¶] Even
Luis said that you Have no limit [¶] Look fucking asshole [¶] I would always pretend
like nothing happened, I waited and waited for you to change there were times I would
9 pray at night for you to change. [¶] And tell me if I’m the bad one [¶] You crossed the
line give me ass yes [¶] I want you to behave not like a fucking slut because even if I
struggle and struggle I’ll take you out of that road [¶] I was good to you even knowing a
lot of things on you [¶] Goodnight [¶] That’s how yours is going to be.” Under the
line, “That’s how yours is going to be,” defendant attached a photograph of a severed and
bloody human ear. Jane understood this as a threat.
2. The Facebook Messages from “Henry Hall”
In another series of Facebook messages to Jane from “Henry Hall,” which Jane
received between July 1 and 6, 2016, defendant wrote: “I’m going to make your life a
living hell you fucking bitch you’ll see what’s coming your way you fucking bitch I’m
going to cut your ear so you can remember me your whole life and if you leave you have
your fucking father here.” Defendant re-sent this message to Jane, three or four times.
The text messages from “Henry Hall” continued: “I promise you I’ll do it you
know what I’m capable of bitch [¶] But first I’m going to give you a good beating one
day when you get off work [¶] I’m going to close your eyes [with pure punches], just so
you know what you’re expecting [bitch] [¶] Go suck Rolando’s dick from Clinton St.”
Jane testified that Rolando was the name of defendant’s uncle. The text messages from
Henry Hall continued: “Rolando says you suck dick real good when he says slut he’s
referring to you [¶] You have no idea what is waiting for you.” Defendant then texted
an “emoji” symbol of a skull and crossbones.
10 3. The Facebook Messages from “Adrian Munoz”
Jane testified that she had a brother named “Adrian Munoz,” and that defendant
knew this. In early July 2016, Jane received several text messages, through Facebook
Messenger, from someone claiming to be “Adrian Munoz.” These text messages began:
“Hello little slut don’t act that way [¶] Or do you want me to fuck you up today after
work [¶] Behave.” These text messages were accompanied by the same screenshot of
the text messages between Jane and Luis that had been included in the previous text
messages from “Emilio Lopez.”
The text messages from defendant as “Adrian Munoz” continued: “How come
you give them ass and I have to beg for it [¶] Please don’t make me mad or else I’ll go
to your job today [¶] Take care gorgeous [¶] Am I not your handsome anymore?” Jane
testified that, in the comment, “Am I not your handsome anymore?,” defendant was
sarcastically referring to Luis, because Jane had referred to Luis as “handsome” on
Facebook.
In further text messages from “Adrian Munoz,” defendant said: “Report me and
see what happens [¶] Look what Rolando Sanchez is saying about you ‘the fucking slut
sucks dick good.’” “Do you remember the day of the 10 dollar bill inside your car right
[¶] That day I marked it with a pen and I sent him for the 12 pack of beers and he took
about an hour to come back and I found that exact bill inside your car [¶] Just so you
know just so you know [¶] TOMORROW MORNING I AM GOING TO WANT
PUSSY AND IF YOU DON’T COME I’LL GO LOOK FOR YOU AT YOUR JOB TO
GIVE YOU A GOOD BEATING [¶] You’ll see what will happen[] after work if you
11 don’t come.” Jane understood this to mean that defendant was going to look for her after
she left work to beat her up.
4. The Facebook Messages from “Mike Jones”
Jane testified defendant often referred to himself in the third person as “El Yiyo”
and “Mario.” Defendant would say the “good guy” was Mario and the “bad guy” was El
Yiyo. “El Yiyo” was the one who “harmed” Jane, and “Mario” was the one who loved
Jane. On July 23, 2016, Jane reported to police that defendant sent her text messages on
July 23, through Facebook Messenger, under the name “Mike Jones.”
In the text messages from “Mike Jones,” defendant said, “You very well know that
was not me it was el yiyo you very well know that el amrio (Mario) loves you with all his
heart [¶] Sorry for what happened but it wasn’t me you know very well who it was[.]
Mario will marry you it’s up to you [¶] I’ll marry you my love.” The next text message
stated: “And [I’]m sorry [I] really am[,]” just above a photograph of Jane’s car taken at
the Home Depot on June 20, 2016, the day defendant smashed the windows of Jane’s car.
Jane understood defendant to be saying that El Yiyo, not defendant, had damaged the car.
The text messages from “Mike Jones” continued: “Do you think it didn’t hurt me when
you said that you were sleeping with him [¶] Are you behaving bitch [¶] [Y]ou better
be behaving bitch.” The text messages from “Mike Jones” then asked Jane to meet
defendant in Indio so that he could show Jane how much he loved her. Jane did not
respond to any of these messages.
12 E. Defendant’s Further Communications to Jane (July & August 2016)
On July 1, 2016, Jane received two e-mails from defendant through defendant’s
own iCloud e-mail account. Jane was with defendant when he set up this e-mail account.
The first e-mail from this account said: “You’re the one that I love [Jane], you are.” The
second e-mail said: “I don’t care how many times you reject me, what you say, what you
say, this time I’m not going to lose you.”
Jane recorded a July 5, 2016, phone call from defendant in which defendant said
he would beat Jane if she did not meet him that night. The recording of this call was
played to the jury. On July 6, Jane and defendant’s mutual friend, M.M., gave a sheriff’s
deputy copies of text messages that defendant had sent to M.M. in which defendant told
M.M. he thought Jane was having an affair with defendant’s uncle, and that defendant
would cut off Jane’s ears.
On July 24, 2016, defendant called Jane, yelled at her, and told her he was going
to come to her house to “get” her. On July 25, 2016, defendant sent Jane a text message
through the application, “WhatsApp,” saying: “Really daughter of your whore mother [¶]
And now who is going to save you from this one?” Jane understood the message as a
threat to beat her.
On July 26, 2016, defendant called Jane several times, threatening to “beat the
crap” out of her and her father if she did not meet with him. During these calls,
defendant also said he had driven by Jane’s house, that he had thrown “three cans of
beer” at Jane’s car, and told Jane to keep the window to her room open. Defendant sent
Jane a text message on July 26, 2016, telling Jane to look for the “smashed” beer cans,
13 that he had been “there” outside her house at 4:10 p.m., and saying, “Don’t be acting
stupid bitch.” Later on July 26, Jane found three beer cans near her car, which was
parked outside her home; Jane also saw that beer and food had recently been thrown on
her car. Jane called the police dispatch on July 26 and reported defendant had been
calling and threatening to beat the crap out of her until she bleeds. A recording of Jane’s
dispatch call was played for the jury.
On July 27, 2016, defendant called Jane and asked her if she had “called the cops.”
Jane did not answer defendant’s question, and either Jane or defendant hung up the
phone. On July 28, Jane reported to the police that defendant had sent her more text
messages on July 26, telling Jane that sheriff’s deputies had been looking for him where
he lived and he hoped that the deputies had not come on Jane’s behalf.
Defendant sent Jane several additional text messages on August 3, 2016, saying,
among other things, that, “I want my watch [ASAP] Because I’ll go and look for you at
your house so that you know who is the Yiyo. [¶] . . . [¶] The other time I went and
took out the air from the tires of your car was a warning [¶] . . . [¶] Wherever you are I
will look for you in the computer and I will go look for you I promise. Love you [¶] . . .
[¶] You know what will happen to you if you go tomorrow think of your dad.” Jane
understood these text messages to mean defendant was going to hurt her, that he would
continue to stalk and harass her, and that he was also threatening to hurt her father.
Following unsuccessful attempts to locate defendant in late July 2016, sheriff’s
deputies located and arrested defendant in August 2016.
14 F. The Four Prior Domestic Violence Incidents (Admitted Under Evid. Code,
§ 1109)
The prosecution adduced evidence of four prior uncharged incidents involving
domestic violence by defendant against Jane. (Evid. Code, § 1109.) One incident
occurred on August 15, 2015, when defendant showed up at a casino where Jane was
employed and tried to give her flowers, despite the temporary domestic violence
restraining order then in place.
A second incident occurred in early October 2015. On October 9, Jane reported to
police that, on October 8, defendant left a handwritten letter on her front door, warning
her that “things are going to go down south” if she did not go to his house within 24
hours. Defendant also left Jane 53 text messages threatening Jane and her father.
A third incident occurred on October 30, 2015, when Jane’s neighbor informed her
that defendant was outside her house late at night, taking photographs of her house in
violation of the restraining order then in place. Fourth and lastly, the prosecution
adduced evidence that defendant had a 2009 conviction for attempted aggravated assault
in Arizona.
III. DISCUSSION
A. The Prosecution Adequately Authenticated the Facebook Messages Supporting
Defendant’s Criminal Threats Conviction in Count 5
Defendant claims his criminal threats conviction in count 5 must be reversed
because the court abused its discretion in allowing the prosecution to adduce, in support
of count 5, Facebook messages that the prosecution claimed defendant sent to Jane
15 through Facebook Messenger, using fictitious names. Defendant claims the prosecution
failed to adduce sufficient evidence to authenticate the messages as having been sent by
defendant, rather than by someone else.7
We conclude the prosecution adduced sufficient proof of the challenged Facebook
messages’ authenticity. The messages’ contents, together with the testimony of Jane and
other witnesses, made a prima facie showing, and thus allowed the jury to reasonably
determine, that defendant was the person who sent the messages to Jane.
1. Relevant Background
Before trial, defense counsel objected to the admission of electronic messages that
the prosecution claimed defendant sent to Jane, under fictitious names, through Facebook
Messenger. Defense counsel claimed the prosecution could not lay an adequate
foundation establishing that defendant was the person who sent the messages to Jane
because the prosecution had not subpoenaed records from Facebook showing that
defendant was the person who opened the Facebook accounts under the names from
which the messages were sent. Defense counsel noted that the messages had no dates or
times on them and could have been sent by other persons, including men whom Jane was
seeing around the time the messages were sent.
The court ruled that the Facebook messages were admissible and that defense
counsel’s arguments concerned the weight, not the admissibility, of the messages. At
trial, the prosecution adduced numerous Facebook messages that Jane received between
7 Defendant does not challenge his criminal threats conviction in count 8 on the ground it was based on unauthenticated Facebook messages.
16 June 20 and July 6, 2016, which are described in detail above and which came from
“Emilio Lopez,” “Henry Hall,” “Adrian Munoz,” and “Mike Jones.”
In closing argument, the prosecutor argued count 5 was based on the Facebook
messages from “Henry Hall,” promising to cut off Jane’s ear, to beat Jane when she got
off work by “clos[ing]” her eyes with “pure punches,” and including an emoji of a skull
and crossbones. The prosecutor also referenced the Facebook messages from “Emilio
Lopez,” saying “That’s how yours is going to be” above a photograph of a severed,
bloody ear, and which accused Jane of having a sexual relationship with Luis and
included screenshots of text messages between Jane and Luis. The prosecutor also
referred to the evidence that, before July 6, 2016, defendant sent text messages from his
phone to (1) his and Jane’s mutual friend, M.M., in which he told M.M. he was going to
cut off Jane’s ears; and (2) R.M., in which he said Jane would “‘see what’s coming to
her.’”
2. Applicable Law and Standard of Review
“Authentication of a writing . . . . is required before it may be admitted in
evidence. ([ Evid. Code,] §§ 250, 1401.) Authentication is to be determined by the trial
court as a preliminary fact ([Evid. Code,] § 403, subd. (a)(3)) and is statutorily defined
[as relevant here] as ‘the introduction of evidence sufficient to sustain a finding that it is
the writing that the proponent of the evidence claims it is’ . . . . (§ 1400.)” (People v.
Goldsmith (2014) 59 Cal.4th 258, 266 (Goldsmith).) “[W]hat is necessary is a prima
facie case. ‘As long as the evidence would support a finding of authenticity, the writing
is admissible.’” (Id. at p. 267.)
17 Thus, a writing can be authenticated if its proponent adduces evidence sufficient to
make a prima facie showing that the writing is what its proponent claims it is, or, in other
words, that the writing is, “genuine for the purpose offered.” (Goldsmith, supra,
59 Cal.4th at p. 267.) Conflicting inferences regarding the writing’s authenticity go to
the weight of the writing as evidence, not its admissibility. (Ibid.) “‘As long as the
evidence would support a finding of authenticity, the writing is admissible. The fact
conflicting inferences can be drawn regarding authenticity goes to the document’s weight
as evidence, not its admissibility.’” (People v. Valdez (2011) 201 Cal.App.4th 1429,
1435.)
Except as provided by statute, the testimony of a subscribing witness is not
required to authenticate a writing (Evid. Code, § 1411), and there are no limits on the
means by which a writing may be authenticated. (Evid. Code, § 1410 [“Nothing in this
article shall be construed to limit the means by which a writing may be authenticated or
proved.”].) Rather, a writing may be authenticated by its contents and circumstantial
evidence, including the testimony of witnesses other than the person or persons who
created the writing or witnessed its creation. (Goldsmith, supra, 59 Cal.4th at p. 268;
People v. Landry (2016) 2 Cal.5th 52, 87.) A trial court’s ruling on the admissibility of
evidence is reviewed for an abuse of discretion. (Goldsmith, supra, at p. 266.)
18 3. Analysis
The court did not abuse its discretion in ruling that the prosecution made a
sufficient prima facie showing that the Facebook messages to Jane from “Emilio Lopez”
and “Henry Hall” were what the prosecution claimed they were—Facebook messages
sent to Jane by defendant, using the fictitious names “Emilio Lopez” and “Henry Hall.”
Based on the messages’ content and the testimony of Jane, M.M., and R.M., the jury
reasonably could have concluded that the messages were from defendant.
In text messages to M.M. from defendant’s phone, defendant told M.M. he was
going to cut off Jane’s ears, and in other text messages to R.M., defendant said Jane was
going to “‘see what’s coming to her.’” The Facebook messages to Jane from both Henry
Hall and Emilio Lopez threatened to cut off Jane’s ear. The messages from Henry Hall
also accused Jane of having a sexual relationship with “Luis” and included screenshots of
text messages exchanged between Jane and Luis, which Jane testified defendant could
have obtained because she and defendant had set up iPhones together using the same
account. The messages from Emilio Lopez also asked Jane about having sexual relations
“in my uncle’s apartment,” and Jane testified that she and defendant had been intimate in
the uncle’s apartment, but she had never been intimate with anyone else in the uncle’s
apartment. All of this evidence made a prima facie showing and thus allowed the jury to
reasonably determine that the messages to Jane from “Henry Hall” and “Emilio Lopez”
were from defendant.
19 Relying on People v. Beckley (2010) 185 Cal.App.4th 509, defendant argues that
the Facebook messages from Henry Hall and Emilio Lopez were insufficiently
authenticated because no expert or “independent” testimony was offered to authenticate
them. In Beckley, the defendant’s girlfriend provided alibi testimony on the defendant’s
behalf and denied that she, the girlfriend, associated with a gang. (Id. at p. 516.) To
impeach the girlfriend, the prosecution proffered a photograph, purportedly showing the
girlfriend “flashing” a gang sign, together with an investigator’s testimony that the
photograph had been downloaded “from Beckley’s home page on the Internet Web site
MySpace.” (Id. at p. 514.) Although it was undisputed that the face in the photograph
was the girlfriend’s, Beckley held that, absent expert testimony that the photograph had
not been “doctored” and precluding the possibility that the defendant’s MySpace page
had been “hacked,” the trial court erred in concluding that the photograph was adequately
authenticated. (Id. at pp. 514-515.)
Beckley reasoned: “[N]o expert testified that the picture was not a ‘“composite”’
or ‘“faked”’ photograph,” and cautioned that “[s]uch expert testimony is even more
critical today to prevent the admission of manipulated images . . . . Recent experience
shows that digital photographs can be changed to produce false images. [Citation.]
Indeed, with the advent of computer software programs such as Adobe Photoshop ‘it does
not always take skill, experience, or even cognizance to alter a digital photo.’ [Citation.]
‘. . . No web-site is monitored for accuracy and nothing contained therein is under oath
or even subject to independent verification absent underlying documentation. Moreover,
20 the Court holds no illusions that hackers can adulterate the content of any web-site from
any location at any time.’” (People v. Beckley, supra, 185 Cal.App.4th at pp. 515-516.)8
For purposes of this appeal, it is sufficient to note that Beckley is distinguishable
on its facts. Here, we are not concerned with the authentication of a photograph of a
person doing something, such as flashing a gang sign, and the possibility that the
photograph was faked. Rather, we are concerned with whether the prosecution made a
prima facie showing that the Facebook messages to Jane from “Henry Hall” and “Emilio
Lopez” were sent by defendant. The questions concerning the accuracy and reliability of
these Facebook messages differ from the questions concerning the accuracy and
reliability of the photographic evidence presented in Beckley.
As we have noted, the Facebook messages to Jane from “Henry Hall” and “Emilio
Lopez” included content that defendant communicated to Jane and others by means other
than the Facebook messages themselves (e.g., defendant’s text message to M.M., from
defendant’s phone, saying he was going to cut off Jane’s ears). In addition, the messages
8 At least one court has criticized Beckley as mistakenly equating authentication with proving genuineness. The court in In re K.B. (2015) 238 Cal.App.4th 989, at page 997, observed that, “reading Beckley as equating authentication with proving genuineness would ignore a fundamental principle underlying authentication emphasized in Goldsmith. In making the initial authenticity determination, the court need only conclude that a prima facie showing has been made that the photograph is an accurate representation of what it purports to depict. The ultimate determination of the authenticity of the evidence is for the trier of fact, who must consider any rebuttal evidence and balance it against the authenticating evidence in order to arrive at a final determination on whether the photograph, in fact, is authentic. As our Supreme Court explained in Goldsmith, ‘[t]he fact conflicting inferences can be drawn regarding authenticity goes to the document’s weight as evidence, not its admissibility.’ [Citation.] (Goldsmith, supra, 59 Cal.4th at p. 267.)”
21 included things defendant knew about or had access to, independently of the messages
themselves (e.g., the text messages exchanged between Jane and Luis, and the fact that
defendant and Jane had had sexual relations in defendant’s uncle’s apartment). This
circumstantial evidence, coupled with the contents of the messages, made a prima facie
showing that the Facebook messages to Jane were sent by defendant.
B. Defendant Was Properly Convicted of Stalking (Count 1) and Making
Criminal Threats (Counts 5 & 8)
Defendant claims his criminal threats convictions (§ 422) in counts 5 and 8 must
be reversed because they are based on “the same conduct” as his stalking conviction in
count 1 (§ 646.9, subd. (b)). We disagree.
1. Counts 1, 5, and 8 Are Not Lesser Included Offenses of Each Other
“‘[I]t is generally permissible to convict a defendant of multiple charges arising
from a single act or course of conduct. (§ 954; People v. Ortega (1998) 19 Cal.4th 686,
692 . . . .) However, a “judicially created exception to this rule prohibits multiple
convictions based on necessarily included offenses.”’” (People v. Delgado (2017)
2 Cal.5th 544, 570.)
“‘In deciding whether multiple conviction is proper, a court should consider only
the statutory elements.’ (People v. Reed (2006) 38 Cal.4th 1224, 1229 . . . .) ‘Under the
elements test, if the statutory elements of the greater offense include all of the statutory
elements of the lesser offense, the latter is necessarily included in the former.’ (Id. at
p. 1227.) In other words, ‘“[i]f a crime cannot be committed without also necessarily
committing a lesser offense, the latter is a lesser included offense within the former.”’
22 (Ibid., quoting People v. Lopez (1998) 19 Cal.4th 282, 288 . . . .)” (People v. Delgado,
supra, 2 Cal.5th at p. 570.)
We review de novo a claim that a conviction is barred because it is necessarily
included in another conviction. (People v. Johnson (2007) 150 Cal.App.4th 1467, 1474.)
Defendant was properly convicted of stalking in count 1 (§ 646.9, subd. (b)) and of
making criminal threats in counts 5 and 8 (§ 422). Under the statutory elements test,
making a criminal threat is not a necessarily included lesser offense of stalking, nor is
stalking a necessarily included lesser offense of making a criminal threat.
The “credible threat” element of stalking differs from the threat element of making
a criminal threat. Stalking requires the defendant to willfully make a “credible threat”
with the intent to place the victim in reasonable fear for the victim’s safety or for the
safety of the victim’s immediate family. (§ 646.9, subd. (a);9 CALCRIM No. 1301.) But
making a criminal threat requires the defendant to “willfully threaten to commit a crime
which will result in death or great bodily injury to another person . . . .” (§ 422;
CALCRIM 1300.)10 Stalking also requires the defendant to “willfully, maliciously, and
9 Although defendant was convicted of violating section 646.9, subdivision (b)— stalking Jane when there was a court order in effect prohibiting defendant from contacting Jane—the offense of stalking is defined in section 646.9, subdivision (a). Subdivisions (b), (c)(1) and (2) of section 646.9 describe “penalty provisions triggered when the offense of stalking as defined in subdivision (a) of [section 646.9] is committed by a person with a specified history of misconduct.” (People v. Muhammad (2007) 157 Cal.App.4th 484, 494.)
10 The jury was instructed accordingly.
23 repeatedly follow[] or willfully and maliciously harass[]” the victim. (§ 646.9, subd. (a).)
But a criminal threat does not require the defendant to “repeatedly follow” or “harass” the
victim. (§ 422.)
Thus, a defendant can commit stalking without making a criminal threat. If the
defendant threatens the victim with the intent to place the victim in reasonable fear for
either the victim’s safety or the safety of the victim’s immediate family, but the threat
does not include a threat of great bodily injury or death, and the defendant satisfies the
other elements of stalking, then the defendant commits stalking but does not commit a
criminal threat. A defendant can also make a criminal threat without committing stalking
if the defendant threatens the victim with great bodily injury or death but does not
willfully or maliciously repeatedly follow or harass the victim.
2. Counts 1, 5, and 8 Are Not Separate Statements of the Same Offense
Defendant also points out that section 954 prohibits “‘multiple convictions for a
different statement of the same offense when [the convictions are] based on the same act
or course of conduct.’” (People v. Vidana (2016) 1 Cal.5th 632, 650; cf. People v.
Muhammad, supra, 157 Cal.App.4th at p. 490 [“Multiple convictions can be based on a
single criminal act, if the charges allege separate offenses.” (Italics added.)].) Defendant
argues his criminal threats convictions in counts 5 and 8 must be reversed because the
prosecution urged the jury to conclude he satisfied the “credible threat” element of the
stalking charge by making the criminal threats charged in counts 5 and 8. Thus, he
argues, his criminal threats convictions are necessarily included in his stalking
conviction, and for this reason must be reversed. We disagree.
24 Convictions for separate offenses cannot be “different statements of the same
offense” unless the offenses can be committed and are committed by the same conduct.
Stalking and making a criminal threat cannot be different statements of the same offense,
because stalking cannot be based solely on the making of a criminal threat, given that
stalking also requires the defendant to willfully or maliciously either repeatedly follow or
harass the victim. (§ 646.9, subd. (a); cf. People v. Vidana, supra, 1 Cal.5th at pp. 647-
649 [because larceny and embezzlement are different statements of the same offense, a
defendant cannot be convicted of both based on the same conduct]; People v. Brunton
(2018) 23 Cal.App.5th 1097, 1107 [“[W]hen based on a defendant’s single act of using a
noninherently dangerous object in a manner likely to produce great bodily injury, section
245[, subdivision] (a)(1) and (4) are merely different statements of the same offense such
that the defendant may not be convicted of violating both subparts of the subdivision.”].)
Thus, even if the jury based the “credible threat” element of defendant’s stalking
conviction on the evidence that defendant made a criminal threat as charged in count 5,
count 8, or both, it does not follow that defendant’s stalking conviction is a different
statement of the same offense as either of his two criminal threats convictions. As noted,
to convict defendant of stalking, the jury also had to find that defendant “willfully” or
“maliciously” either “repeatedly follow[ed]” or “harass[ed]” Jane. (§ 646.9, subd. (a).)
Further, the record does not support defendant’s claim that the jury must have
based the “credible threat” element of the stalking charge in count 1 on the same acts
underlying the criminal threats charges in counts 5 and 8. First, the information alleged
in count 5 that defendant committed criminal threats against Jane “on or about 7/4/2016,”
25 and alleged in count 8 that defendant committed criminal threats against Jane “on or
about 7/26/2016.” For the stalking charge, the information alleged that defendant
violated section 646.9, subdivision (b), “in that on or about April 2016-August 2016. . . .
[he] did willfully, unlawfully, maliciously, and repeatedly follow and harass Jane Doe,
and make a credible threat with the intent to place Jane Doe in reasonable fear of Jane
Doe’s safety and the safety of Jane Doe’s immediate family . . . .” (Italics added.) Thus,
the offenses charged in counts 1, 5, and 8 were not necessarily based on the same alleged
acts.
Additionally, in closing argument, the prosecutor did not urge the jury to base the
credible threat element of the stalking charge in count 1 on the same conduct underlying
the criminal threats charges in counts 5 and 8. Rather, the prosecutor argued that the
“credible threat” element of the stalking charge was satisfied by the Facebook messages
defendant sent to Jane between July 1 and 6, 2016, using the name “Adrian Munoz” and
threatening to beat up Jane after she got off work that day. For the criminal threat charge
in count 5, the prosecutor argued that the Facebook messages Jane received between July
1 and 6, 2016, from “Henry Hall,” threatening to cut off Jane’s ear, and from “Emilio
Lopez,” sending Jane a picture of a severed, bloody ear, satisfied count 5. For the
criminal threat charge in count 8, the prosecutor argued that defendant’s July 26, 2016,
phone calls to Jane, threatening to “beat the crap” out of Jane and her father if Jane did
not meet with defendant, satisfied count 8.
26 To be sure, the prosecutor argued to the jury that as many as eight “acts” satisfied
the “continuous conduct” element—that is, the “repeatedly following” or “harassing”
element—of the stalking charge, and one of these acts (“Act 6”) was defendant’s July 26,
2016, phone calls to Jane. But the prosecutor also noted that only two acts were
necessary to satisfy the continuous conduct element, and the jury could have based the
continuous conduct element on any two acts other than the defendant’s Facebook
messages using the names “Henry Hall” and “Emilio Lopez,” and defendant’s July 26,
2016, phone calls, which the prosecutor urged the jury to rely on in convicting defendant
of the two criminal threats charges. For example, the jury could have based the
continuous conduct element of the stalking conviction on defendant’s July 1 to 6, 2016,
Facebook messages from “Adrian Munoz,” together with defendant’s April 18, 2016,
phone calls and text messages, defendant’s July 1, 2016, e-mails, and defendant’s July 5,
2016, phone calls.
Relying on People v. Kelley (1997) 52 Cal.App.4th 568, defendant also claims his
criminal threats convictions are barred by the double jeopardy clause of the Fifth
Amendment. “The double jeopardy clause prohibits an individual from being tried twice
for the same offense or any included offense. In the case of an included offense, it
matters not whether the greater or lesser offense was tried first. [Citation.] The test is
whether each offense contains an element the other does not.” (People v. Kelley, at p.
576.) This claim fails because, for the reasons explained, the stalking and criminal
threats charges are neither lesser included offenses of each other under the statutory
27 elements test, nor are they different statements of the same offense on the facts of this
case.
C. The Court Did Not Erroneously Fail to Stay Imposition of Sentence on
Defendant’s Two Criminal Threats Convictions (Counts 5 & 8) and His Four
Convictions for Violating Criminal Protective Orders (Counts 3, 6, 7, & 9)
The court imposed the upper term of four years on defendant’s stalking conviction
in count 1, a consecutive eight-month term (one-third the middle term) on his criminal
threats conviction in count 5 (§ 422), a concurrent, two-year term on his criminal threats
conviction in count 8 (§ 422), and concurrent two-year terms on each of his convictions
in counts 3, 6, 7, and 9 for violating criminal protective orders. 11 (§ 273.6, subd. (d).)
Defendant claims the court erroneously failed to stay imposition of the sentences
on his two criminal threats convictions (counts 5 & 8) (§ 422), and his four convictions
for violating the criminal protective orders (counts 3, 6, 7, & 9) (§ 273.6, subd. (d)),
because these convictions were based on “the same course of conduct as the stalking
offense,” (§ 646.9, subd. (b)), and because all of defendant’s acts were incident to the
single purpose and objective of persuading Jane to resume her relationship with
defendant. This claim lacks merit because substantial evidence supports the court’s
implied finding that defendant’s convictions in counts 3, 5, 6, 7, 8, and 9 were based on
separate acts, occurring on separate days.
11 See footnote 4, ante.
28 1. Applicable Law and Standard of Review
Section 654 provides: “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. . . .”
“Although section 654 literally applies only where multiple statutory violations
arise out of a single ‘act or omission,’ it has also long been applied to cases where a
‘course of conduct’ violates several statutes. [Citations.] A ‘course of conduct’ may be
considered a single act within the meaning of section 654 and therefore be punishable
only once, or it may constitute a ‘divisible transaction’ which may be punished under
more than one statute.” (People v. Kwok (1998) 63 Cal.App.4th 1236, 1252.)
“[T]he basic test used for determining whether a ‘course of conduct’ is divisible
was stated in Neal [v. State of California (1960) 55 Cal.2d 11 at page 19 ] as follows:
‘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,
supra, 63 Cal.App.4th at p. 1253.)
“But decisions since Neal have refined and limited application of the ‘one intent
and objective’ test, in part because of concerns that the test often defeats its own purpose
because it does not necessarily ensure that a defendant’s punishment will be
commensurate with his culpability. [Citation.] . . . [I]n People v. Beamon [(1973)
29 8 Cal.3d 625] at page 639, the Supreme Court stated that protection against multiple
punishment under section 654 applies to ‘a course of conduct deemed to be indivisible in
time.’ (Italics added.) The court added in a footnote: ‘It seems clear that a course of
conduct divisible in time, although directed to one objective, may give rise to multiple
violations and punishment. [Citations.]’ (People v. Beamon, supra, fn. 11, italics added.)
Thus, a finding that multiple offenses were aimed at one intent and objective does not
necessarily mean that they constituted ‘one indivisible course of conduct’ for purposes of
section 654. If the offense were committed on different occasions, they may be punished
separately.” (People v. Kwok, supra, 63 Cal.App.4th at p. 1253.)
“Whether section 654 applies in a given case is a question of fact for the trial
court, which is vested with broad latitude in making its determination.” (People v. Jones
(2002) 103 Cal.App.4th 1139, 1143.) The court’s express or implied findings in support
of its determination that section 654 does not apply will be upheld on appeal if substantial
evidence supports them. (People v. Osband (1996) 13 Cal.4th 622, 730-731.)
2. Analysis
Substantial evidence supports the court’s implied finding that the convictions in
counts 1, 3, 5, 6, 7, 8, and 9 were based on separate, distinct acts. As the People argue,
“there were so many instances of [defendant]’s communications and threats . . . that the
trial court could have based [defendant]’s sentence[s] [in counts 1, 3, 5, 6, 7,8, and 9] on
a myriad . . . of those acts for each count without any overlap.”
30 Count 1: As discussed, the prosecutor urged the jury to conclude, and substantial
evidence shows, that the credible threat element of defendant’s stalking conviction is
based on the Facebook messages that defendant sent to Jane in early July 2016, using the
name “Adrian Munoz,” and threatening to beat up Jane after she got off work that day.
Substantial evidence also shows that the continuous conduct element, or the “repeatedly
follow” or “harass” element, of the stalking conviction is based on the Facebook
messages from “Adrian Munoz,” together with any one of several additional harassing
acts, including defendant’s April 18, 2016, phone calls to Jane and her father, R.M.,
defendant’s April 18, 2016 text messages to Jane, defendant’s July 1, 2016, e-mails to
Jane, and defendant’s July 5, 2016, phone calls to Jane.
Counts 5 and 8: Substantial evidence also shows that defendant’s criminal threats
conviction in count 5 is based on the Facebook messages Jane received, between July 1
and 6, 2016, from “Henry Hall,” threatening to cut off Jane’s ear, and from “Emilio
Lopez,” sending Jane a picture of a severed, bloody ear. Substantial evidence shows that
defendant’s criminal threat conviction in count 8 is based on defendant’s July 26, 2016,
phone calls to Jane, threatening to “beat the crap” out of Jane and her father if Jane did
not meet with defendant.
Counts 3, 6, 7, and 9: Substantial evidence shows that defendant’s convictions in
counts 3, 6, 7, and 9, for violating the March 10, 2016, criminal protective orders are
based on different acts than his stalking and criminal threats convictions. The prosecutor
urged the jury to conclude, and substantial evidence shows, that count 3 is based on
31 defendant’s act of contacting Jane at the Home Depot on June 20, 2016; count 6 is based
on the Facebook messages from Henry Hall—not the messages threatening to cut off
Jane’s ear, which support count 5, but the subsequent messages from Henry Hall
threatening to beat up Jane when she got off work and close her eyes with “pure
punches”; count 7 is based on defendant’s July 24, 2016, phone calls to Jane telling her
he was coming to her house to “get her”; and, lastly, count 9 is based on defendant’s July
26, 2016, text messages to Jane, calling Jane the daughter of her “whore mother” and
asking Jane who was going to “save” her from “this one.”
Thus, separate and distinct acts, occurring on separate days, and divisible in time,
support defendant’s convictions in counts 1, 3, 5, 6, 7, 8, and 9. Defendant argues that all
of the acts were incident to his continuous course of conduct “from April to August
2016” and his single purpose and objective, of persuading Jane to get back together with
him. Thus, he argues, he cannot be separately punished on counts 3, 5, 6, 7, 8, and 9,
given the four-year term imposed on count 1. We disagree.
As noted, “a course of conduct divisible in time, although directed to one
objective, may give rise to multiple violations and punishment.” (People v. Beamon
(1973) 8 Cal.3d 625, 639, fn. 11, italics added.) The trial court implicitly found and
substantial evidence shows that defendant’s convictions in counts 1, 3, 5, 6, 7, 8, and 9
are based on separate acts. Those separate acts were divisible in time because they
occurred on separate days. Thus, even if all of the acts were incidental to defendant’s
single intent, purpose, and objective of persuading Jane to get back together with him,
separate punishment was properly imposed on counts 1, 3, 5, 6, 7, 8, and 9.
32 D. Defendant’s Prison Prior Enhancement Must Be Stricken
In supplemental briefing, the parties agree that defendant’s judgment must be
modified to strike his one-year prison prior enhancement, in light of the October 8, 2019
enactment of Senate Bill No. 136, which amended section 667.5 subdivision (b), effective
January 1, 2020. (People v. Lopez (2019) 42 Cal.App.5th 337, 340-342.) We agree that
the judgment must be amended to strike the one-year prison prior enhancement.
Under newly amended section 667.5, subdivision (b) (Stats. 2019, ch. 590, § 1),
a one-year prison prior enhancement only applies if the defendant’s prior prison term was
served for a sexually violent offense, as defined in Welfare and Institutions Code
section 6600, subdivision (b). As the parties agree, defendant did not serve his prior
prison term for such a sexually violent offense. The parties also agree, as do we, that
under the Estrada rule (In re Estrada (1965) 63 Cal.2d 740, 744-745 (Estrada)), the
amendment to section 667.5, subdivision (b) is ameliorative and, because there is no
indication that the Legislature intended the amendment to apply only prospectively, the
amendment applies retroactively to defendant, because his judgment was not final on
appeal when Senate Bill No. 136 went into effect on January 1, 2020. (People v. Lopez,
supra, 42 Cal.App.5th at p. 341; People v. Jennings (2019) 42 Cal.App.5th 664, 681-682;
People v. Keene (2019) 43 Cal.App.5th 861, 865.)
Thus, we strike the one-year prison prior enhancement from defendant’s six-year
four-month sentence, which reduces his sentence to five years four months. We remand
the matter to the trial court so that it may exercise its sentencing discretion anew, if and to
the extent the court deems resentencing appropriate. We express no opinion concerning
33 whether or how the court should exercise its sentencing discretion anew on remand, in
light of this one-year reduction to defendant’s sentence. (People v. Jennings, supra,
42 Cal.App.5th at p. 682; People. v. Keene, supra, 43 Cal.App.5th at p. 865.)
IV. DISPOSITION
The judgment is modified to strike defendant’s one-year prison prior
enhancement. (§ 667.5, subd. (b).) This modification reduces defendant’s six-year four-
month sentence to five years four months. The matter is remanded to the sentencing
court with directions to resentence defendant, if the court wishes to change its exercise of
its sentencing discretion in light of the reduced sentence. On remand, the court is to
prepare an amended abstract of judgment reflecting this court’s modification to the
judgment, and any resentencing, and to forward a copy of the amended abstract to the
Department of Corrections and Rehabilitation. In all other respects, the judgment is
affirmed.
FIELDS J. We concur:
SLOUGH Acting P. J.
MENETREZ J.
34 Filed 3/18/20 CERTIFIED FOR PUBLICATION
ORDER
THE PEOPLE, E070518
Plaintiff and Respondent, (Super.Ct.No. INF1600985)
v. ORDER CERTIFYING OPINION FOR PUBLICATION MARIO CRUZ, JR.,
The court has reviewed a request filed March 13, 2020, to publish the nonpublished opinion filed in the above matter February 26, 2020. The request is GRANTED. The opinion meets the standards for publication as specified in California Rules of Court, rule 8.1105(c)(2) and (c)(4).
IT IS SO ORDERED that said opinion be certified for publication pursuant to California Rules of Court, rule 8.1105(b). FIELDS J. We concur:
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People v. Cruz, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-cruz-calctapp-2020.