Modification: People v. Roles

THE PEOPLE,

Plaintiff and Respondent,

v.

BRADLEY DEWAYNE ROLES,

Defendant and Appellant.

No. C086645

(Super. Ct. No. 16CF04343)

California Courts of Appeal

Third Appellate District

(Butte)

Filed January 28, 2020

ORDER MODIFYING OPINION AND DENYING REHEARING [NO CHANGE IN JUDGMENT]

THE COURT:

It is ordered that the opinion filed herein on January 8, 2020, be modified as follows:

Delete part II of the Discussion in its entirety and replace it with the following:

II

Defendant May Not Be Punished For Stalking And Criminal Threats Under Section 654

The stalking count was based on the 28 voice messages defendant left for Jennifer B. between August 31 and September 3, which included the 15 threatening messages supporting the criminal threats counts. Defendant argues he cannot be punished for both the stalking and criminal threats convictions under section 654 because "the crimes comprise a single criminal act." The People respond that defendant may be punished for both convictions because he demonstrated different criminal objectives and intents during his course of conduct as follows: (1) stalking -- as "the prosecutor argued," his intent was "to annoy, harass, and disturb [Jennifer B.] and make her feel the same amount of pain he felt"; and (2) criminal threats -- "to place [Jennifer B.] in sustained fear for her life and the life of her children." The People further appear to argue, without any reasoning, analysis, or citation to the record, that the stalking and criminal threats offenses should be viewed as separate criminal acts for purposes of section 654 because the phone calls were made over a three-day period.¹

Section 654 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." (§ 654, subd. (a).) As this court explained in Louie: "The challenge in applying section 654 arises because, '[f]ew if any crimes . . . are the result of a single physical act.' [Citation.] Accordingly, courts have long recognized that the proscription against multiple punishment may also apply when a course of criminal conduct violates more than one statute. [Citation.] Where a defendant's crimes are the result of a course of criminal conduct, courts endeavor to determine whether the course of conduct is divisible, i.e., whether it constitutes more than one criminal act. [Citation.] A course of conduct will give rise to more than one criminal act if the actions were incident to more than one objective. [Citation.] The point of determining whether a defendant had more than one criminal objective is to discover whether the defendant's multiple actions should be considered one criminal act or more than one criminal act for the purpose of section 654." (People v. Louie (2012) 203 Cal.App.4th 388, 396-397.)

"[W]here a course of conduct is divisible in time it may give rise to multiple punishment even if the acts are directive to one objective." (People v. Louie, supra, 203 Cal.App.4th at p. 399.) "This is particularly so where the offenses are temporally separated in such a way as to afford the defendant opportunity to reflect and to renew his or her intent before committing the next one . . . ." (People v. Gaio (2000) 81 Cal.App.4th 919, 935.) Thus, "[i]f the separation in time afforded [a] defendant[] an opportunity to reflect and to renew [his or her] intent before committing the next crime, a new and separate crime is committed." (Louie, at p. 399.)

Moreover, " '[i]f a course of criminal conduct causes the commission of more than one offense, each of which can be committed without committing any other, the applicability of section 654 will depend upon whether a separate and distinct act can be established as the basis of each conviction.' " (People v. Beamon (1973) 8 Cal.3d 625, 637.)

"The question whether section 654 is factually applicable to a given series of offenses is for the trial court, and the law gives the trial court broad latitude in making this determination. Its findings on this question must be upheld on appeal if there is any substantial evidence to support them." (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312.) We view the evidence favorably to support the judgment and presume every factual finding that could reasonably be deduced from the evidence. (Id. at pp. 1312-1313.)

Stalking is defined as, "Any 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 . . . ." (§ 646.9, subd. (a).) The prosecution charged defendant with section 646.9, subdivision (b), which provides: "Any person who violates subdivision (a) when there is a temporary restraining order, injunction, or any other court order in effect prohibiting the behavior described in subdivision (a) against the same party, shall be punished by imprisonment in the state prison for two, three, or four years." (§ 646.9, subd. (b).)

As delineated in section 646.9, subdivision (a), stalking "addresses two distinct behaviors" -- repeated following and harassment. (People v. Heilman (1994) 25 Cal.App.4th 391, 399.) Harassment was the basis for the stalking charge here; there were no allegations of repeated following. Harassment is defined as "engag[ing] in 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).) Course of conduct is defined as "two or more acts occurring over a period of time, however short, evidencing a continuity of purpose." (§ 646.9, subd. (f).)

Here, the acts that constituted making a criminal threat (i.e., the 15 threatening voice messages) cannot be separated from defendant's course of conduct in stalking Jennifer B. Both crimes were based on the same phone calls and voice messages. As we explained ante, defendant may be convicted of only one criminal threats count because Jennifer B. testified about her fear after hearing all of the messages, indicating it was the whole of the messages that placed her in sustained fear. We thus find no substantial evidence that defendant's acts supporting the stalking conviction were independent of the acts supporting the criminal threats conviction -- i.e., no " 'separate and distinct act can be established as the basis of each conviction.' " (People v. Beamon, supra, 8 Cal.3d at p. 637.) Further, because the phone calls were not separate criminal acts, it is irrelevant whether defendant had an opportunity to reflect between making each phone call. (See People v. Louie, supra, 203 Cal.App.4th at p. 399 ["[i]f the separation in time afforded [a] defendant[] an opportunity to reflect and to renew [his or her] intent before committing the next crime, a new and separate crime is committed"].)

If there was evidence in the record that Jennifer B. sustained fear from individual voice messages, such that some of the threatening voice messages could apply to the stalking conviction and others could support the criminal threats conviction, the People's position might have merit. That is not the case before us today.

We also find no substantial evidence supporting a conclusion that defendant harbored separate intents or objectives. Our review of the record reveals the phone calls were incident to only one objective -- to place Jennifer B. in fear of losing her life or children because defendant wanted her to experience what he was feeling. The People fail to present any evidence by citation to the record showing another intent.

We thus find that section 654 applies to prohibit separate punishments for the stalking and criminal threats convictions.

There is no change in judgment. Respondent's petition for rehearing is denied.

BY THE COURT:

Robie, Acting P. J.

Mauro, J.

Duarte, J.

^1. The People filed a petition for rehearing arguing for the first time: "Any two of the 15 threatening voicemails were sufficient to constitute the crime of stalking. [Citation.] Any one of the 13 remaining threatening voicemails could have supported the criminal threats conviction. Thus, there was substantial evidence from which the trial court could have determined that [defendant's] course of conduct was divisible in time. And certainly [defendant's] conduct in leaving 15 threatening voicemails over a three-day period makes him more culpable than if he had ceased after leaving only two threatening voicemails."