Opinion
C082540
09-24-2018
THE PEOPLE, Plaintiff and Respondent, v. JAMES MICHAEL HOODMAN, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. MFE15006034)
Defendant James Michael Hoodman appeals from a judgment entered after a jury verdict finding him guilty of stalking. (Pen. Code, § 646.9, subd. (b).) The jury failed to reach a unanimous verdict on a criminal threats charge (Pen. Code, § 422), resulting in its dismissal at the People's request.
Defendant contends the judgment must be reversed for multiple reasons arising from two separate errors concerning impeachment evidence and a jury instruction on prior acts of domestic violence.
We affirm the judgment.
I. BACKGROUND
A. The Motions in Limine and Evidentiary Rulings
On February 19, 2016, the People filed two motions in limine seeking admission of: (1) prior incidents of domestic violence (Evid. Code, § 1109) and (2) defendant's prior convictions to impeach his credibility if he testified. The trial court held unreported, in-chambers conferences on these and other oral motions in limine on February 19, 22, and 23, 2016.
Undesignated statutory references are to the Evidence Code.
On February 23, 2016, the trial court ruled on these motions in open court, finding the People would be allowed to present evidence of defendant's prior domestic violence occurring in the past 10 years; and if defendant testified, he could be impeached with his prior felony convictions. The trial court also discussed whether defendant would be allowed to present a Facebook record from September 19, 2015, which showed a statement made by defendant to a third party. The People objected on hearsay grounds. The trial court reserved its ruling on the admission of this evidence and the People's right to impeach defendant if it were admitted. It later accepted the stipulation that all of the pre-marked Facebook evidence would be admissible, a stipulation which included defendant's Facebook record from September 19, 2015.
On February 24, 2016, the court held further hearings outside of the presence of the jury and determined the People would be allowed to impeach defendant's Facebook evidence with defendant's prior convictions for crimes of moral turpitude. It then determined which specific convictions could be used for these purposes. B. The Prosecution's Case
The victim testified to her previous relationship with defendant, lasting approximately eight months, before they split in the summer or spring of 2014. She described defendant as controlling, monitoring interactions with other men at work, and limiting the hours she worked at a salon. Defendant also worried about others paying the victim undue attention at her restaurant job and complained about that approximately once a week. He forbade her going to dinners with coworkers.
The victim observed defendant using excessive force approximately twice a month in his job as a bouncer at a bar, where he would get in to fights and subdue people with chokeholds. Based on conversations with him, the victim perceived that the defendant liked having the power that gave him.
Defendant intimidated the victim, especially when he was drinking. She started fearing for her safety approximately two months before they broke up. In July 2014, defendant displayed particularly irrational jealousy and abusiveness in an incident occurring while the victim, defendant, the victim's sister, and some friends were rafting on a river wherein he belittled and spat on her. After they returned home, he accused her of wanting to sleep with her sister's friend, who she had just met that day. He grabbed a hammer, said he was going to walk the streets, and threatened to beat and kill anyone he might encounter, causing the victim to call the police. Later, the police escorted the victim to her mother's home, and the victim ended the relationship.
The victim asked defendant to stop contacting her a few days later, but he did not stop and contacted her almost every day. About a month after the breakup, the victim suggested to defendant she was thinking about getting a restraining order, but his behavior did not change. The victim obtained a restraining order after defendant told a mutual friend he was going to kill the victim and her new boyfriend.
After the breakup, the victim blocked defendant on Facebook, but received reports of defendant's postings approximately once a week from mutual acquaintances.
The victim obtained a temporary restraining order against defendant in late August and received a permanent restraining order against him in September. Defendant failed to comply with these orders; he walked past her residence calling to her and stood outside of her various workplaces. She believed these encounters were not always intentional, but sometimes he would make eye contact, hand gestures, and yell obscenities at her. She estimated defendant made a motion towards her or called out to her around 10 times in the first few months after the restraining order was in effect.
Later in 2015, the victim noticed defendant staring at her while she was working, making her uncomfortable to the point she asked not to work outside at the restaurant. Defendant was intimidating, looking straight at her with his hands on his hips, his weight equally distributed between his legs. Sometimes, he would stand still and other times he would be walking. This happened three weekends on Fridays and Saturdays during the festivals. She estimated he was within 30 feet of her approximately 10 times, three of which he stopped and stared at her for 10 minutes each. One of his positions was within five or six feet of a table she was waiting on. She called Officer Lehr each of the three weekends to report defendant's actions. She was also shown defendant's social media posts that seemed to have at least one picture of her in the crowd where she was working.
After the third weekend, she spoke with defendant's employer, who had hired him as security at local festivals, informing him of the restraining order and later providing a copy of it. She did not personally observe what the employer did with this information.
Thereafter, Officer Lehr shared some of defendant's Facebook posts concerning the victim. One of these was a post from September 15, 2015, wherein defendant stated: " 'So time to grab a shovel and start getting the desert ready for some of the two-faced disloyal bitches, bitch thought I wouldn't notice shit, Bye Felisha. I know Mike is going to hate this, but I had to say it.' " The victim believed this was about her based upon defendant's previous use of "Felisha" to refer to her and also because she had cost him his job. Another was a post from September 18, 2015, in which defendant posted a picture of hole in the ground with a shovel, which the victim took to be a grave, with hashtags that read: " '[T]oo much talk, got shit twisted, dirt nap, say I won't, play time.' " She understood these postings to be a deadly threat intended for her. She considered the threat so imminent that she armed herself with a loaded gun for protection.
On cross-examination, defense counsel elicited that the victim did not learn of the threatening September 2015 postings until several days after they were made. Defense counsel also questioned her regarding various posts made by defendant from the 2014/2015 timeframe that may have contributed to the victim's sustained sense of threat of great bodily injury or death. She denied the police told her to stop contacting them about incidental encounters with defendant, and added that defendant walked by her residence on a daily basis.
On redirect, the victim testified concerning the restraining order, including that it required defendant to refrain from communicating with her and that he stay 100 yards away. The restraining order was served in September of 2014. She believed defendant did not have to pass by her home. The victim did not call the police every time she felt defendant violated the restraining order, but did so when she felt his actions were intentional and when she felt intimidated, such as when he stared at her or walked too close to her house.
She further testified that while she saw defendant on multiple occasions at a pizza parlor, she only called the police the one time that she felt he was staring at her and intimidating her for approximately 10 minutes.
The People also offered the testimony of defendant's ex-wife. In February 2007, he threatened her that "if [she] were a man he would . . . kick [her] ass." He also threatened to bash her head in and kicked her leg, causing a bruise. On another occasion, he spat on her face. She obtained a restraining order against him, but he failed to comply with it. On cross-examination, defense counsel elicited that defendant's ex-wife was in a photo that defendant had posted with a comment concerning interesting people being at the festival who he refused to name.
The People also offered the testimony of Robert Richards, who employed defendant for one weekend of event security between August 8 and August 11 of 2015. He spoke with the victim about the restraining order. He also discussed the restraining order with defendant, who provided him a copy of it. Within a week of learning of the restraining order, he decided he could not employ defendant going forward. On cross-examination, defense counsel elicited that Richards did not see defendant acting unusual on the weekend he was employed, and the only complaint about him came from the victim.
Finally, the People offered the testimony of Wesley Hoskin, an investigator with the district attorney's office who aided in the search warrant of defendant's Facebook records, yielding 5,438 pages. He also measured the distances of various locations outside of the victim's restaurant job where the victim had observed defendant, which were found to be less than 100 yards away from the wall where the victim worked.
The People's evidence was admitted, with the exception of Exhibit 26. C. The Defendant's Case
In an attempt to explain away the Facebook evidence that could be interpreted as threatening the victim, the defense called Shelton Harrell who testified the Mammoth Lakes Police Department had asked him to wear a wire to record defendant. Harrell told defendant about the police request. Harrell believed defendant's post of a picture of a hole in the ground with a shovel was in response to this interaction with the police. He thought defendant was a peaceful person. Another witness confirmed that the post of the picture of a hole was directed at other people who were snitching about defendant's alleged drug involvement and not the victim. The police had offered $2,000 to Harrell to wear a wire to record defendant, and this upset him. This person also testified she did not think defendant was overly aggressive in his bouncer duties.
Also supporting this alternative motive, defendant presented a September 19, 2015, private Facebook message between defendant and another person, which was introduced into evidence in accordance with a stipulation of the parties and read aloud by defense counsel. The pertinent portion of it states: "Checking in on you. Listen, I had people get hit yesterday and heard word back that the local narcotic team has been hearing my name and offering people to roll on me. Big offers, and I literally walked to certain houses to tell them I am not involved and that my name getting spread is all bad. I am in Wire, Nevada, NV. I am sorry that I didn't respond, but trust me this is for your protection. . . . I love you homie and rent will come down, but I'm laying low until people quit throwing my name around for their bullshit. I got two days on my probation as of this morning. Trust me, homie, I got you."
Defendant also presented several witnesses intended to undermine the victim's portrayal of his behavior. One of defendant's friends testified he never saw defendant threaten the victim, nor did he say he wanted revenge against her; he was just "broken hearted." Another witness, who was familiar with defendant, the victim, and the restraining order, saw defendant and the victim in a restaurant at the same time; the witness had a mutual friend tell defendant to leave, and he left right away. Another friend testified that he never saw defendant not observing the restraining order and that on one occasion they left a bar in short order after the victim's arrival at defendant's direction. Defendant would walk on the other side of the street when passing the victim's house.
Another witness testified that he received a phone call from defendant, who asked him to give the victim's new boyfriend a message. While he had no specific recall of what he told the victim's boyfriend in 2014, he did recall that any message he conveyed from defendant was not directed at the victim, but at her boyfriend.
A salon worker testified she observed the victim with the defendant, but never saw him act in a jealous or controlling manner. The victim never had any complaints about him either before or after the breakup. D. The People's Rebuttal
Officer Callinan, a former narcotics and current district attorney investigator, testified concerning his interactions with Shelton Harrell. In September 2015, an interaction between Officer Callinan and Harrell led Officer Callinan to believe Harrell "wasn't completely opposed to law enforcement." He later asked the police to pick up Harrell for a drug test under his probation terms. While the test was processing, Harrell hinted defendant may be selling drugs, but that he had never purchased any from him and would not wear a wire. Prior to Harrell mentioning defendant, he had not been the subject of interest for any investigation by Officer Callinan. Harrell's test was only positive for marijuana, and Office Callinan let him go. E. The Prior Convictions
After both sides rested, the trial court instructed the jury: "There was one last piece of evidence which I will bring forward. There was some what's construed as testimony of [defendant] by way of Facebook postings, and the People are entitled to impeach any testimony by felony convictions and convictions of moral turpitude and we have had an in chambers discussion and this is the way this information will be imparted to the jury: On October 20, 2011, in the Mono County Superior Court, [defendant] was convicted of auto theft . . . . [¶] On September 7, 2010, [defendant] was convicted of . . . forgery of a document . . . [.] [O]n September 7, 2010, [defendant] was convicted of . . . grand theft of personal property . . . [.] [Defendant] was convicted on July 27, 2010, of . . . making a false report of an emergency; and also on July 27, 2010, [defendant] was convicted of . . . making a false report of a criminal offense.
"These, and I will read this instruction to you later, but I will give you this instruction now, as well:
"If you find that [defendant] was convicted of a felony or committed a crime or other misconduct, you may consider that fact only in evaluating the credibility of the witness's testimony; and again, the testimony was only as posted on the Instagram or Facebook post that has been placed into evidence. The fact of a conviction does not necessarily destroy or impair a witness's credibility. It is up to you to decide the weight of that fact and whether that fact makes the witness less believable. [¶] Again, this information is only given to you for a very limited purpose."
II. DISCUSSION
A. Defendant's Impeachment with Prior Convictions
Defendant argues: (1) the trial court erred in admitting defendant's prior convictions to impeach defendant's Facebook statements that were not admitted for their truth; (2) this error caused the trial court to misinstruct the jury on the law of impeachment; (3) these combined errors encouraged the jury to apply an irrational inference, violating defendant's Fourteenth Amendment right to due process; (4) the constitutional error was harmful because it lowered the burden of proof; (5) the error was preserved for review; and (6) if the error was not preserved, counsel was ineffective.
The People counter: (1) defendant's claim is forfeited for lack of objection; (2) the trial court did not abuse its discretion in allowing the impeachment; (3) defendant's constitutional rights were not violated; and (4) any trial court error was harmless.
The trial court decision on the admission of evidence is reviewed for an abuse of discretion. (People v. Cowan (2010) 50 Cal.4th 401, 462.) While generally a deferential standard, a trial court abuses its discretion if its decision is premised upon a misunderstanding of law. (People v. Knoller (2007) 41 Cal.4th 139, 156.) Such error only results in reversal "when the court, 'after an examination of the entire cause, including the evidence,' is of the 'opinion' that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).)
No one disputes that had defendant testified at trial, he would have been exposed to the potential for impeachment with his convictions for crimes of moral turpitude, subject to the court's balancing under section 352. (People v. Castro (1985) 38 Cal.3d 301, 313-317 (Castro).) Likewise, had defendant's out-of-court statement been offered by him for its truth, section 1202 would have authorized impeachment of those statements with section 788 impeachment evidence, subject to section 352 balancing. (People v. Jacobs (2000) 78 Cal.App.4th 1444, 1449-1452.) As noted in Jacobs, "Taken together, sections 1202 and 788 seem to provide that evidence of prior felony convictions is admissible to attack the credibility of a hearsay declarant." (Id. at p. 1449.) Further, the California Supreme Court has recognized that section 1202 does not apply to allow impeachment of an out-of-court declarant's statement consisting of verbal conduct that is neither inherently true or false and which was offered to demonstrate consciousness of guilt. (People v. Curl (2009) 46 Cal.4th 339, 362 [because "he was not a 'hearsay declarant,' section 1202 does not apply"].)
Our review here is complicated by the record, which is less than ideal. The parties failed to brief the evidentiary issues for the trial court, and the trial court did not provide a written decision. The parties' wholesale stipulation to the admission of defendant's Facebook information further complicates our review, as it is impossible to identify the use of each individual's out-of-court statements coming from Facebook. It also appears the trial court may have believed: (1) impeachment of defendant's Facebook message was appropriate regardless of whether content of that message was admitted for the nonhearsay purpose of providing context and for defendant's state of mind, and (2) that impeachment was also appropriate because of defendant's extensive use of the People's exhibits, which were also his Facebook postings.
The People argue even assuming defendant's Facebook message was used for his state of mind, it otherwise contained hearsay, and defendant's questioning of the victim showed defendant was relying upon his other Facebook posts in the record for their truth, thus supporting the trial court's admission evidence to impeach those Facebook posts.
At the outset, we note defense counsel's statements on the record do fairly encompass the argument that no impeachment would be allowed if the Facebook message went to defendant's state of mind, thus preserving the issue for appeal. Ultimately, we decline to decide the merits of defendant's evidentiary argument because, even assuming the trial court was mistaken about whether defendant's Facebook message and/or posts could be impeached, we see no cognizable harm. The criminal threats charge against defendant was dismissed after the jury was unable to reach a verdict, and defendant's conviction for stalking is amply supported by the victim's in-court testimony concerning defendant's in-person actions for which the veracity of the Facebook evidence were inapposite.
Penal Code section 646.9, subdivision (a) provides: "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." Subdivision (e) explains that, " 'harasses' means engages 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." (Id., subd. (e).) Further, " 'course of conduct' means two or more acts occurring over a period of time, however short, evidencing a continuity of purpose." (Id., subd. (f).) These elements are easily satisfied by the direct evidence in this case.
Here, defendant called out to or made hand gestures at the victim approximately 10 times in the first few months following the issuance of the restraining order. Later in 2015, defendant six times over the course of three weeks menacingly stared at the victim while at her place of employment while standing in a position that intimidated the victim and in a proximity that violated the restraining order. He also walked by her home on a daily basis. The victim specifically testified she was afraid because the defendant was controlling and violent.
Whether defendant's Facebook message giving context to the posting of a picture of a hole in the ground resembling a grave was "truthful" did not speak to whether defendant stalked the victim through this in-person conduct. Under these circumstances, it is not reasonably probable that a result more favorable to defendant would have occurred had the trial court not allowed the impeachment of defendant's Facebook posts and message. (People v. Curl, supra, 46 Cal.4th at pp. 361-362 [trial court error allowing impeachment under § 1202 of statement offered for consciousness of guilt was harmless]; Castro, supra, 38 Cal.3d at pp. 317-319 [applying Watson, supra, 46 Cal.2d at p. 836 harmless error standard to claim trial court erred in allowing impeachment of the defendant with prior conviction for possession of heroin].)
We do not believe defendant's claim of instructional error alters this analysis, as the trial court's allegedly erroneous instruction limited the jury's use of the impeachment information to the veracity of the Facebook evidence and was given at the same time the impeachment evidence was presented. Thus, it did not impact the victim's testimony of defendant's in-person actions supporting the stalking conviction. Moreover, even assuming the jury may have considered and discounted the truth of the Facebook message offered as Defense Exhibit F, this message was cumulative of the in-person testimony of two defense witnesses who relayed their belief that the posting of a picture of a hole in the ground was in response to allegations concerning defendant's alleged drug involvement and not related to the victim.
We also note, the impeachment hypothetically undermined all of the Facebook evidence, including that utilized by the prosecution in its case-in-chief for the criminal threats charge, which was later dismissed. Any instructional error may have served to aid defendant in defeating that charge, and did not, as defendant argues, bolster the prosecution's case. (See Castro, supra, 38 Cal.3d at pp. 318-319 [jury instruction following erroneous admission of impeachment evidence served to aid the defendant because instructions restricted use of priors and prevented "jury from giving unwarranted significance to defendant's parole status on the question of guilt"].)
In so finding, we disagree with defendant's argument that this instruction "told the jury that it could disbelieve the competing portion of each post." The trial court's instruction contained no such distinction. Moreover, this argument also fails because the jury had no way of knowing which of the Facebook posts contained within the People's evidence had been initially proffered by the People or were included as context evidence via the stipulation entered into between the People and defendant. Indeed, it had no idea such an agreement even existed.
Under these circumstances, defendant is mistaken that the admission of impeachment evidence and instructions concerning that evidence impermissibly lowered the burden of proof requiring review for prejudice under Chapman v. California (1967) 386 U.S. 18, 23 [17 L.Ed.2d 705, 710]. B. Instructions Regarding Prior Domestic Violence
Defendant argues the trial court prejudicially erred in instructing the jury that it could use defendant's prior alleged domestic violence in deciding whether he was guilty of stalking because "stalking" falls outside of the definition of "domestic violence."
Generally speaking, "evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion." (§ 1101, subd. (a).) Nonetheless, section 1109, subdivision (a) provides, "in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant's commission of other domestic violence is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352." "Domestic violence" for purposes of this analysis is defined through reference to Penal Code section 13700. (§ 1109, subd. (d)(3).)
This section also recognizes " 'domestic violence' has the further meaning as set forth in section 6211 of the Family Code, if the act occurred no more than five years before the charged offense." (§ 1109, subd. (d)(3).) Here, the parties conceded the Family Code definition is inapplicable because the prior conduct occurred more than five years before the charged offense. --------
Penal Code section 13700, subdivision (b) defines domestic violence in pertinent part as "abuse committed against an adult . . . who is a spouse . . . ." Subdivision (a) of this section explains, " '[a]buse' means intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable apprehension of imminent serious bodily injury to himself or herself, or another." (Pen. Code, § 13700, subd. (a).)
Defendant does not challenge that the section 1109 information was properly admitted for purposes of the pending criminal threats charge, and we concur such evidence was properly admitted for that purpose. (People v. Zavala (2005) 130 Cal.App.4th 758, 770 (Zavala).) We agree, however, that it was error to instruct the jury that it could consider the section 1109 evidence in reference to the stalking charge. (Zavala, at pp. 769-771 [stalking requires only that the target fear for his or her safety but does not require fear of serious bodily injury as required before evidence of prior domestic violence can be considered under section 1109].)
However, we believe, given the relative strength of the stalking evidence used to convict defendant, this error was harmless consistent with the analysis in Zavala. In that case, the court considered whether the trial court improperly instructed the jury on use of the defendant's prior domestic violence admitted under section 1109 in its decision on a stalking charge in a case also including a criminal threats count. (Zavala, supra, 130 Cal.App.4th at pp. 770-771.) That defendant argued, "to the extent the stalking offense does not require that the threat induced the victim to fear great bodily injury or death, stalking is concomitantly not a crime of domestic violence." (Id. at p. 771.) Having already determined that the section 1109 evidence was properly admitted (Zavala, at p. 770), the Zavala court agreed it was error to "give the instruction as to the count charging [defendant] with stalking." (Id. at p. 771.) It nonetheless affirmed the judgment because "it [was] not reasonably probable [defendant] would have obtained a more favorable result absent the instruction, and therefore the error was harmless under [Watson]." (Id. at p. 771.)
Like the defendant in Zavala who was acquitted of a criminal threats charge, here, the jury's inability to reach a verdict on the criminal threats charge shows the jury carefully weighed the evidence against defendant. (Zavala, supra, 130 Cal.App.4th at pp. 770-771.) Also like Zavala, defendant's repeated violations of the restraining order were demonstrated by more than one source. (Ibid.) Here, as discussed in the previous section, the victim testified at length to the numerous contacts she had with defendant. These contacts were further substantiated by the Facebook evidence, wherein defendant posted at least one photograph that included the victim and which was taken within a yardage in violation of the restraining order in effect. Further, defendant's own witness testified to defendant walking past the victim's home, albeit on the other side of the street, which still violated the restraining order.
Defendant's arguments describing this as a "close case" and suggesting the conviction required proof of defendant's intent when making Facebook posts are unavailing. Again, the victim testified extensively regarding defendant's controlling and violent nature, as well as the number and character of her in-person contacts with defendant occurring after the restraining order was in place. A stalking conviction premised upon this percipient witness testimony did not rely on threats contained within the Facebook evidence.
In contrast, the section 1109 testimony was very brief, describing a few verbal threats, a spitting incident, and the bruising of the ex-wife's leg from a kick. Defendant's ex-wife also testified he did not comply with the restraining order against him, but the only specifics provided on the violations were generic. She stated: "He often came around me. He would call me and he would text me even though he knew not to."
Under these circumstances, it is not reasonably probable defendant would have obtained a more favorable result if the jury had been instructed to use the section 1109 information only in reference to the criminal threats charge. (Watson, supra, 46 Cal.2d at p. 836.) Therefore, we find any error in instructing the jury on the stalking charge was harmless.
III. DISPOSITION
The judgment is affirmed.
/S/_________
RENNER, J. We concur: /S/_________
BUTZ, Acting P. J. /S/_________
MAURO, J.