Opinion
F076066
10-16-2018
THE PEOPLE, Plaintiff and Respondent, v. CHASEE RAE FINLEY, Defendant and Appellant.
Allan E. Junker, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Melissa Lipon, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CRF51815)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Tuolumne County. James A. Boscoe, Judge. Allan E. Junker, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Melissa Lipon, Deputy Attorneys General, for Plaintiff and Respondent.
Before Peña, Acting P.J., Meehan, J. and Snauffer, J.
-ooOoo-
Chasee Rae Finley pleaded guilty to two counts of stalking (Pen. Code, § 646.9), one count of criminal threats (§ 422), and one count of annoying telephone calls (§ 653m, subd. (a)). She was sentenced to three years and four months in state prison. Respondent contends Finley's appeal should be barred because she failed to obtain a certificate of probable cause as required by section 1237.5. We conclude Finley was not required to obtain a certificate of probable cause because the appeal does not attack the validity of the plea. Finley contends her sentence for criminal threats must be stayed pursuant to section 654 because it was incident to the same objective as the stalking conviction for the same victim. We conclude Finley was properly sentenced and affirm.
All further statutory references are to the Penal Code.
PROCEDURAL BACKGROUND
The Tuolumne County District Attorney's Office filed an information alleging Finley committed the following offenses: count 1—stalking (§ 646.9, subd. (a)) as to "Confidential Victim 1" (the husband); count 2—stalking (§ 646.9, subd. (a)) as to "Confidential Victim 2" (the wife); count 3—criminal threats (§ 422, subd. (a)) as to the wife; and count 4—annoying telephone calls (§ 653m, subd. (a)) as to the husband. Finley initially pleaded not guilty, but later pleaded guilty to all counts before trial.
The trial court referred to the victims as "Confidential Victim 1" and "Confidential Victim 2." The record indicates the victims are a married, and for clarity we will refer to them as "the husband" and "the wife."
FACTUAL BACKGROUND
Over a period of approximately one year, Finley made regular explicit telephone calls to the husband. In the calls Finley would tell the husband that she loved him, wanted to meet with him, and she often described explicit sex acts. Finley also sent the husband text messages, left written messages taped to the call box outside of his driveway, and left a compact disc there of songs dedicated to him.
Approximately eight months after Finley began contacting the husband, she sent the first of four explicit Facebook messages to the wife. Finley sent the messages from four different Facebook accounts, each with a fake name and photograph. Finley sent about one message per month.
In the first Facebook message, Finley stated she is the husband's mistress, has been dating the husband for over a year, and loves to have "strong passionate sex" with him everywhere in their house. Finley referred to the husband's dogs by name, and stated they watch her have sex with the husband. Finley also stated, "you can stay in Kansas being a little whore that you are, [the husband] is my fiancée he gave me a ring stay put bitch I'll put you in your place."
In the second Facebook message, Finley told the wife she is pregnant with the husband's child. Finley also stated, "your fake bitch you fucking left [the husband] to fuck someone else n didn't contact him not once bitch I hate you!"
In the third Facebook message, Finley stated: "[the husband] and I are having a baby boy, you need to stay in Kansas, take your whole family and don't say shit to the father ill fight you when I see you so let's meet one day k." Finley tells the wife she will fight her if she returns from Kansas, and ends the message with "I swear I'll see you bitch."
In the fourth Facebook message, Finley stated: "I'm coming for you and it won't be me since im pregnant watch your back, [the husband] is mine, go back to Kansas unless you wana fight me, im gonna catch you no matter what [the husband] does, Call me, Lets fight, I'll come over that's fine."
DISCUSSION
I. Compliance with Section 1237.5.
Respondent asserts this court cannot reach the appeal's merits because Finley did not obtain a certificate of probable cause pursuant to section 1237.5. We conclude Finley's appeal does not attack the validity of her plea, and therefore no certificate of probable cause is required.
A. Background
At a trial readiness conference, defense counsel informed the court Finley wished to plead to all counts "to try for drug court." The court responded drug court had never been discussed during plea negotiations, and the court would make no promises she would receive drug court.
Later that day Finley pleaded guilty to all charges. Prior to taking her plea, the court told her if she pleaded guilty she would be referred to drug court for assessment only. The court reiterated Finley would be pleading without any promises, and the chances of the court accepting her into drug court were slim.
After Finley's sentencing hearing, she filed a timely notice of appeal, but did not request a certificate of probable cause from the trial court. Her notice states the appeal is based on matters not affecting the validity of the plea.
B. Analysis
Section 1237.5 prohibits appealing a conviction following a plea of guilty or no contest unless a defendant obtains a certificate of probable cause from the trial court. California Rules of Court, rule 8.304(b)(4)(B) provides an exception to the section 1237.5 requirement if the appeal is based on "[g]rounds that arose after entry of the plea and do not affect the plea's validity." An appeal challenging the sentence after a guilty or no contest plea comes within this exception unless the appeal is "in substance a challenge to the validity of the plea[.]" (People v. Buttram (2003) 30 Cal.4th 773, 782.)
In People v. Lloyd (1998) 17 Cal.4th 658, 665 (Lloyd), our high court held an appeal challenging a sentence that was not imposed pursuant to a plea agreement does not attack the validity of the plea. In Lloyd, the defendant plead no contest to all charges with no plea bargain. He later appealed the trial court's denial of his Romero motion to strike a prior conviction. The high court concluded the defendant's appeal did not attack the validity of the plea, because it challenged sentencing decisions separate and distinct from the defendant's plea. (Ibid.)
People v. Superior Court (Romero) (1996) 13 Cal.4th 497. --------
Our high court addressed a distinguishable situation in People v. Shelton (2006) 37 Cal.4th 759 (Shelton). In Shelton, the defendant pleaded no contest to two charges in exchange for dismissal of other charges and a sentence lid. At sentencing, the trial court imposed the maximum possible sentence within the lid. The defendant appealed, without a certificate of probable cause, arguing the trial court should have stayed the sentence to one of the two charges pursuant to section 654. Our high court rejected the defendant's argument, holding the appeal attacked the validity of the plea. By agreeing to a sentencing lid less than the maximum, the court concluded the parties had implicitly agreed the sentence lid was legal. (Id. at p. 769-771.)
We conclude Lloyd is applicable here. Like the defendant in Lloyd, Finley challenges the court's authority to impose a specific sentence after she pleaded guilty to all charges with no plea bargain. Although she may have hoped for acceptance into drug court, Finley's plea was not in exchange for any promises. Prior to taking the plea, the trial court stated she would only be referred to drug court to assess her suitability, but cautioned acceptance into drug court was unlikely. At sentencing, the trial court elected not to accept her into drug court and conducted a sentencing hearing. As occurred in Lloyd, the court's sentencing discretion was not limited by the terms of a plea agreement, because Finley pleaded to all counts without any promises from the People or the court. The court's "sentencing decisions were clearly separate and distinct from the defendant's pleas, in substance as well as temporally." (People v. Panizzon (1996) 13 Cal.4th. 16, 78.) Therefore, Finley's appeal does not attack the validity of her plea, and no certificate of probable cause is required.
II. Applicability of Section 654 to Counts 2 and 3.
Finley contends her sentence for criminal threats should be stayed pursuant to section 654 because it was incident to the same objective as her stalking conviction. We conclude Finley was properly sentenced, because there is substantial evidence she stalked the wife independent of at least one criminal threat, and her criminal conduct was divisible in time.
A. Background
At the sentencing hearing, the court sentenced Finley to three years and four months in the state prison: the middle-term of two years for count 1, eight months each for counts 2 and 3 to be served consecutively to count 1, and 180 days for count 4, to be served concurrently. Prior to imposing sentence, the court rejected her argument that counts 2 and 3 should be stayed pursuant to section 654. The court reasoned Finley's conduct was "separated in time sufficiently to not indicate a single course of conduct of abhorrent behavior."
B. Analysis
Pursuant to section 654, subdivision (a), "[a]n 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." Our Supreme Court has "often said that the purpose of section 654 'is to insure that a defendant's punishment will be commensurate with [the defendant's] culpability.'" (People v. Latimer (1993) 5 Cal.4th 1203, 1211 (Latimer).)
The determination of whether section 654 applies is a question of fact for the trial court, which is vested with broad discretion. (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312.) We review the trial court's ruling in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence. (Id. at pp. 1312-1313.)
Under the plain language of the statute, '[s]ection 654 prohibits multiple punishment for a single physical act that violates different provisions of law." (People v. Jones (2012) 54 Cal.4th 350, 358.) " 'If 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 (Beamon).)
Applying the above principle, we must determine whether there is substantial evidence Finley stalked the wife independent of at least one of the criminal threats. Stalking requires two or more acts of willful, malicious and repeated harassment or following of another person, occurring over a period of time, and a credible threat intended to place the other person in fear for his or her safety or that of his or her family. (See § 646.9; People v. Ibarra (2007) 156 Cal.App.4th 1174, 1196-1197.) Comparatively, a criminal threat does not require a course of conduct but can occur by one discrete act. (People v. Maciel (2003) 113 Cal.App.4th 679, 682 [one element of offense is willful threat to commit a crime].) While the singular act of making a criminal threat can be part of a broader course of conduct that constitutes the crime of stalking, a criminal threat is not required. The crime of stalking only requires the defendant make a credible threat, not necessarily a criminal threat.
Here, Finley was charged with only one count of making criminal threats, but the first, third, and fourth Facebook messages could each substantiate a conviction. Even if any one of the threats were disregarded, the other two threats, in conjunction with Finley's actions toward the husband, would be sufficient evidence of stalking. Therefore, there is substantial evidence Finley stalked the wife independent of one of the criminal threats.
Even though Finley's convictions are based on separate acts, section 654 may still apply, depending on Finley's intents and objectives. In Neal v. State of California (1960) 55 Cal.2d 11, 19 (Neal) our high court held: "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." Relying on the Neal test, Finley asserts her sole intent and objective was to control the husband by scaring the wife away with threats of physical violence.
Looking at Finley's intents and objectives alone, her assertion arguably has merit. "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." (People v. Kwok (1998) 63 Cal.App.4th 1236, 1253 (Kwok).) One such limitation is for a course of criminal conduct "divisible in time." (Beamon, supra, 8 Cal.3d at p. 639, fn. 11.) "[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 offenses were committed on different occasions, they may be punished separately." (Kwok, supra, at p. 1253.)
Cases concluding a course of conduct divisible in time is not subject to section 654 have reasoned that significant periods of time between criminal acts may increase their harm, or threat of harm, and therefore warrant separate punishment. In Kwok, the defendant removed a door lock from the victim's home, took it to a locksmith who made a matching key, and replaced the lock in the victim's home without her knowledge. (Kwok, supra, at p. 1243.) Nine days later the defendant returned and assaulted the victim inside of her home. (Id. at p. 1244.) The court rejected the defendant's assertion that either his sentence for residential burglary, or the assault occuring nine days later, should be stayed pursuant to section 654. (Id. at p. 1256.) The court reasoned that although the defendant's acts were a course of conduct in that the burglary was intended to facilitate the later assault, the acts were "clearly a 'course of conduct divisible in time,'" and "each entry into the residence created a separate and distinct risk of violent confrontation." (Ibid.)
Similarly, in In re William S. (1989) 208 Cal.App.3d 313, 317, the court held the defendant could be separately punished for two counts of burglary where he entered and stole several items from inside of a house, left the front door unlocked, returned several hours later, and stole additional items. The defendant argued both burglaries were part of one course of conduct with a singular intent because he left the front door unlocked during the first burglary to facilitate the second. The court reasoned because defendant's acts were separated by several hours, "[t]he second entry doubled the danger of violent confrontation" inherent in residential burglary. (Id. at p. 319.)
Even shorter periods of time between offenses have been held sufficient to warrant separate punishment. In People v. Trotter (1992) 7 Cal.App.4th 363 (Trotter), the defendant fired one shot at pursuing police officers, then approximately one minute later fired two additional shots in rapid succession. The defendant was convicted of three counts of assault on a peace officer with a firearm, but the trial court imposed consecutive sentences for only two counts. (Id. at p. 365.) In denying the defendant's claim on appeal that he should be sentenced to only one count of assault, the court reasoned: "All three assaults were volitional and calculated, and were separated by periods of time during which reflection was possible. None was spontaneous or uncontrollable. '[D]efendant should ... not be rewarded where, instead of taking advantage of an opportunity to walk away from the victim, he voluntarily resumed his assaultive behavior.' " (Id. at p. 368, citing People v. Harrison (1989) 48 Cal.3d 321, 338 (Harrison).)
The court followed similar logic in People v. Felix (2001) 92 Cal.App.4th 905, where the court declined to apply section 654 to two convictions for criminal threats made to the same victim two hours apart. The court reasoned the defendant had time to reflect between the first and second threat, and that "multiple crimes are not one transaction where the defendant had a chance to reflect between offenses and each offense created a new risk of harm." (Id. at p. 915.)
Finley arguably acted with the same intent and objective when she sent each of the four threatening Facebook messages to the wife. But the individual acts within her four-month course of conduct were clearly divisible in time, as each of her threats was separated by approximately one month. Additionally, Finley did not make the threats in a single fit of rage over a short period of time. Her conduct was not "spontaneous or uncontrollable." (Trotter, supra, at p. 368.) The gap in time between each threat gave her ample opportunity to reflect and to discontinue her conduct.
By its nature, stalking is a course of conduct crime because it requires a minimum of two acts. However, we decline to conclude section 654 protects Finley from punishment for additional, independent criminal acts within the course of her stalking conduct, even if those acts were incident to the same objective. By making more than two threats and spacing them out over a period of four months, Finley increased and lengthened the psychological torment she inflicted on her victim. Each additional threat undoubtedly increased the victim's suffering. To hold that Finley cannot be sentenced for criminal threats if they chronologically occurred within the four-month period of stalking would allow her to act with impunity once she committed the two acts of stalking necessary to constitute a crime. (Harrison, supra, 48 Cal.3d at p. 337.) Therefore, we find the trial court correctly ruled Finley's sentence for criminal threats is not barred by section 654.
DISPOSITION
The judgment is affirmed.