Opinion
E050428 Super.Ct.No. SWF029082
09-28-2011
THE PEOPLE, Plaintiff and Respondent, v. WALTER BRYANT THOMPSON, Defendant and Appellant.
David McNeil Morse, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Emily Hanks, and James D. Dutton, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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OPINION
APPEAL from the Superior Court of Riverside County. James S. Hawkins, Judge. Affirmed.
David McNeil Morse, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Emily Hanks, and James D. Dutton, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
On August 28, 2009, an information charged defendant and appellant Walter Bryant Thompson with stalking with a court order in effect under Penal Code section 646.9, subdivision (b) (count 1); violating a protective order, a misdemeanor, under Penal Code section 273.6, subdivision (a) (count 2); and possession of a firearm in violation of a court order, a misdemeanor, under Penal Code section 12021, subdivision (g)(2) (count 3).
After a trial by jury, on January 14, 2010, the jury returned guilty verdicts on all three counts. On March 5, 2010, the trial court sentenced defendant to three years probation, with 120 days custody in jail as a term of probation.
On appeal, defendant contends that there is insufficient evidence to support the conviction for count 1, stalking. For the reasons set forth below, we shall affirm the judgment.
STATEMENT OF FACTS
1.
PROSECUTION CASE
Defendant and the victim met around 2006 when defendant moved across the street from her at the Caravan Trailer Park in San Jacinto. Defendant lived with his mother. The two trailers were approximately 30 to 35 feet from each other.
Defendant and the victim started dating about six months after they met; they had a good relationship. The two of them dated off and on for about three years. Their first "breakup" was in October of 2007, for about a week or more, because of defendant's drinking. They got back together for a couple of months before breaking up again due to defendant's drinking.
In May of 2008, the victim visited her granddaughter and other family members in Georgia. Defendant accused the victim of cheating on him with her granddaughter's great uncle.
In October of 2008, the victim got a restraining order against defendant because his actions "were getting more frightening." The restraining order prohibited defendant from being within 100 yards of the victim's trailer or her person. Defendant put up a sign on his house, facing her trailer, which stated: "Thank you, you two face[d], heartless bitch." Prior to defendant painting the sign, his drinking led to fights between them.
After the restraining order was issued, the victim was sitting on her front porch with her friends Marlene and Phillip when defendant threw plastic bags full of items the victim had given defendant over the gate. Defendant cursed at Marlene and the victim. He then stuck a hand in the victim's face and called her an "asshole."
Defendant, the victim, Marlene and Phillip would go to the casino together. Several times, prior to October 2008, when the victim went to the casino with Marlene and Phillip, without defendant, Marlene and Phillip would see defendant standing near the victim; he would motion "shush," with his finger to his mouth, to Marlene and Phillip. After the restraining order, Marlene saw defendant at the casino several times; he would again go "shush." Marlene did not tell the victim about defendant being at the casino until after the restraining order. The victim never saw defendant on those occasions at the casino.
The victim and defendant got back together in December 2008, because the victim loved defendant. Nonetheless, the victim did not return to court to change the restraining order because she did not feel completely safe. In March of 2009, they broke up for a week, to a week and one-half.
In May 2009, the victim went back to Georgia. Defendant accused her of having an affair with her granddaughter's great uncle. Moreover, defendant accused the victim of having a boyfriend in Nevada. Defendant also disliked the victim's friend, Phillip, because defendant stated that Phillip was in love with the victim. Marlene testified that on numerous occasions, defendant was quite concerned that any time the victim left her house she was cheating on defendant. Marlene told the victim about this.
In June of 2009, the victim and defendant broke up for the last time. The victim broke up with defendant because he listened in on her bedroom telephone while she was having a private conversation outside of the trailer. The victim told defendant, "that's it," and he left the house. The victim was frightened by the look defendant gave her.
On the victim's birthday, in July of 2009, the victim, Marlene, Phillip and other friends were celebrating during the evening on the victim's veranda. Defendant was found hiding, crouched down underneath the victim's window. Defendant motioned "shush" to Phillip. Phillip told defendant "to get the hell out of there." Defendant was intoxicated and could not get up. Defendant eventually stumbled away.
After the final break up, defendant told Phillip that he did not understand why the victim would not be with him. Defendant felt that the victim was cheating on him. Defendant wanted to be with her and did not want to let her go. Defendant also told Marlene that he loved the victim and wanted her back. Moreover, Marlene saw defendant hiding behind the victim's house, following her. Defendant was also seen two or three times behind Marlene and Phillip's trailer, staring at the victim. Defendant also followed the victim several times to the pool. Marlene and Phillip's trailer was located next door to defendant's trailer.
Marlene testified that after the final break up, defendant would glare at the victim and Marlene when defendant took the trash out. Marlene was with the victim when she called the police about seven or eight times.
The victim found screws placed by her front and rear side tires to her vehicle when it was in the driveway. She, however, did not see who did it. She would also get "hang up" calls at night, about 1:00 a.m. Defendant called the victim at work and hung up without talking to her. She knew it was defendant because the call had defendant's mother's telephone number on the caller identification. Defendant also admitted to the victim that he called and hung up; he stated that he did not know why he did it.
On August 1, 2009, the victim put security cameras up on her trailer because a police officer told her that the only way she could get help was to put up cameras to have proof about what was happening. The next day, the victim played back the surveillance video from the night before. The video showed defendant, around midnight, at the edge of the victim's trailer; he was peeking around the corner three times, and shining a flashlight at the camera.
On the morning of August 2, 2009, Riverside County Deputy Sheriffs Antonio Soto and Terrence Teebken responded to the victim's trailer and saw the surveillance video. The deputies then went across the street and contacted defendant. Defendant denied being over at the victim's house the night before. Defendant told Deputy Soto that he did not agree with the restraining order, and that he still loved the victim. Defendant gave the deputies consent to search his room in the trailer. Deputy Teebken went inside the trailer and defendant's mother told him which room was defendant's room. Deputy Teebken found a loaded .38-caliber revolver in the dresser drawer in defendant's room. When the deputy came outside with the gun, defendant said, "oh shit." Defendant told the deputies that the gun belonged to his deceased father, who passed away in 1989.
The victim recorded about six hours of surveillance tape night and day. She had about 25 or 26 tapes showing defendant in and out of the mobilehome park and at his mother's trailer. The victim also heard defendant cough when she could not see him on the videotapes. However, after the initial surveillance tape, the tapes did not show defendant on her premises.
The victim was afraid of defendant. He told her on at least two occasions—the first in 2007 and the last being in 2008—that he would gladly shoot his ex-wife and the judge and that he would not lose sleep over it.
Defendant would sit in his chair, waiting for the victim to come home when her car was gone. He was aware of any movement the victim made.
Defendant did not make any oral or written threats towards the victim. Moreover, the victim never saw defendant with a weapon. Defendant told her that he did not have a gun.
On November 30, 2009, defendant's mother was evicted from her trailer. Since his mother moved out, the victim saw defendant on the premises on numerous occasions. Since the victim's birthday in 2009, the victim, Marlene and Phillip saw defendant at least 10 times. The victim and Marlene were scared all the time.
2.
DEFENSE CASE
Vicky Hoffstatter testified that she knew defendant for 20 years; she met him in 1990. They were romantically involved for 17 of the years; they became engaged in 1999. Their relationship ended in mid-2007 because of the time demands of her job and they were living apart. Defendant also drank during their relationship, sometimes in excess. Defendant never physically or verbally threatened her. He never struck her in any way.
Defendant lived with his mother, Dorothy Thompson, in San Jacinto. Dorothy Thompson lived there from May 2005 until she moved out in November of 2009. Defendant acted as her caretaker. Defendant moved into the trailer park in December of 2004 and his mother moved in during 2005. Defendant and the victim met in the middle of 2007. They were initially friends then became romantically involved. They broke up four or five times during their two-year relationship.
In October of 2008, a restraining order was filed against defendant. However, two months later, defendant and the victim renewed their relationship. Defendant had read the last paragraph of the restraining order where it states that he could not possess a firearm. When his mother moved in to the trailer, she did not tell him that she had a gun with her. To his knowledge, all of his father's effects went to his mother.
Defendant stated that he did not give the police consent to search the trailer. He also stated that he did not open the drawer to his dresser, where the gun was found, in the four years that he lived in the trailer.
The restraining order stated that defendant stay 100 yards from the victim's home. However, defendant did not "read it" or take it that way. Defendant did not move out of the trailer until around August 10, 2009. Hence, for 10 months, defendant did not follow the restraining order. After he moved out, he would still go back to the trailer to pick up his mother for doctors' appointments. After August 1, 2009, defendant never set foot on the victim's property. He also did not talk to her.
According to defendant, he never made statements to the effect that he would shoot his ex-wife. He did state in late 2007 to the victim, Marlene and Phillip that, if someone were to shoot his ex-wife and her attorney, he would not be bothered by it. Moreover, he did not follow the victim to the casino. He never threatened the victim and never displayed a weapon in front of her.
Most of their "break ups" were mutual. The victim wanted to go the casino while he wanted to have a beer. On occasion, defendant admitted that he drank too much, which caused the victim to break up with him.
Defendant questioned the victim about cheating when she went to Georgia in 2008. It bothered him when the victim talked about her granddaughter's great uncle.
Defendant called the victim at work and hung up without talking to her. He did not know why. On the victim's birthday, he went behind her house; he did not know why.
ANALYSIS
Defendant contends that there was insufficient evidence to support his conviction for stalking the victim.
Our review of any claim of insufficiency of the evidence is limited. If the evidence presented below is subject to differing inferences, the reviewing court must assume that the trier of fact resolved all conflicting inferences in favor of the prosecution. (Jackson v. Virginia (1979) 443 U.S. 307, 326.) A reviewing court is precluded from making its own subjective determination of guilt. (Id. at p. 319, fn. 13.) In People v. Perez (1992) 2 Cal.4th 1117, our high court held: "[T]he relevant question on appeal is not whether we are convinced beyond a reasonable doubt, but whether any rational trier of fact could have been persuaded beyond a reasonable doubt . . . ." (Id. at p. 1127.)
"In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] Reversal on this ground is unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].' [Citation.]" (People v. Bolin (1998) 18 Cal.4th 297, 331; see also People v. Hill (1998) 17 Cal.4th 800, 848-849.)
Given this court's limited role on appeal, defendant bears an enormous burden in claiming there was insufficient evidence to sustain his conviction for stalking. If the verdict is supported by substantial evidence, we are bound to give due deference to the trier of fact and not retry the case ourselves. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) It is the exclusive function of the trier of fact to assess the credibility of witnesses and draw reasonable inferences from the evidence. (People v. Barnes (1986) 42 Cal.3d 284, 303; People v. Hale (1999) 75 Cal.App.4th 94, 105.)
Defendant's hurdle to secure a reversal is just as high when the prosecution's case depends on circumstantial evidence. (People v. Stanley (1995) 10 Cal.4th 764, 792, citing People v. Bean (1988) 46 Cal.3d 919, 932.) "'"'If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.'" [Citations.]'" (Stanley, at p. 793, quoting Bean, at pp. 932-933.) Here, the record discloses ample evidence to support the jury's verdict.
In this case, defendant was convicted of stalking. The elements of stalking are whether defendant made a credible threat and whether the threat was made with the intent to place the victim in reasonable fear for her safety. (CALCRIM No. 1301; People v. Uecker (2009) 172 Cal.App.4th 583, 584.) "A credible threat is one that causes the target of the threat to reasonably fear for his or her safety and one that the maker of the threat appears to be able to carry out." (CALCRIM NO. 1301, italics omitted.) "A credible threat . . . may be implied by a pattern of conduct or a combination of statements and conduct." (Ibid., italics omitted; see People v. Falck (1997) 52 Cal.App.4th 287, 297 (Falck).) There is no requirement that the defendant actually intended to carry out the threat. (Falck, at p. 297.) Moreover, the stalking conduct or the harassment need not cause the victim to fear the defendant contemporaneously. (People v. Norman (1999) 75 Cal.App.4th 1234, 1238-1241.) Even where a defendant makes no express threats and the evidence shows that the defendant had great affection and concern for the victim, a jury can find, by the defendant's actions, that he had the requisite intent to cause the victim to fear for her safety. (People v. Kelley (1997) 52 Cal.App.4th 568, 578.)
"[I]n determining whether a threat occurred, the entire factual context, including the surrounding events and the reaction of the listeners, must be considered." (Falck, supra, 52 Cal.App.4th at p. 298.) In this case, the totality of the evidence established that defendant's pattern of conduct and communications to the victim constituted a "credible threat" that would make a reasonable person fear for her safety.
In this case, the parties agree that defendant never made a direct threat. The prosecutor acknowledged that "there was not a threat audibly made, orally made, in writing made that 'I will do X to you,' that has never been the contention." However, as discussed in detail above and during trial, there was a pattern of conduct by defendant that implied a threat to the victim's safety. A credible threat may be implied by a pattern of conduct or a combination of statements or conduct. (Falck, supra, 52 Cal.App.4th at p. 297.)
Here, there was a pattern of conduct which made the victim feel threatened. As provided in detail above, the victim obtained a restraining order against defendant in October of 2008 because defendant's actions were getting more frightening to her. For 10 months, until defendant's arrest in August of 2009, defendant routinely violated the restraining order. While they were "broken up," the victim heard sounds outside her window like an animal trying to get inside her trailer; she did not hear these sounds prior to their break up. Also, a wooden coyote was thrown off a desk on her porch, and broke. Moreover, screws were placed by the tires of her car while her car was parked in her driveway. Additionally, defendant was constantly following the victim and her friends and hiding in an effort to conceal his presence. He would "glare" at the victim and her friends. The surveillance camera installed by the victim showed defendant lurking around the victim's trailer. These actions by defendant, coupled with his statements to the victim on previous occasions that he would gladly shoot his ex-wife and the judge and never lose sleep over it, caused the victim to fear for her safety and feel threatened by defendant's actions.
Moreover, not only was the victim afraid of defendant, Marlene's reaction to defendant's conduct can also be taken into account as to the reasonableness of the victim's fear; Marlene was also scared of defendant all the time because of his actions toward the victim. (See Falck, supra, 52 Cal.App.4th at p. 298.)
Hence, from the evidence presented above, a jury could reasonably deduce that the victim was placed in reasonable fear for her safety by defendant's pattern of conduct and statements.
Nonetheless, defendant contends that "it was only after the final break up that [the victim] believed that [defendant] was engaging in conduct that could amount to stalking. Consequently, respondent's references to events in 2008 and early 2009 are inapposite." The record, however, proves the contrary. Even prior to the final break up in June of 2009, the victim stated that she feared for her safety and acted on that fear. In October of 2008, she obtained a restraining order against defendant because defendant's actions "were getting more frightening" to her. All of defendant's actions toward the victim, as a whole, could be considered in the stalking count.
Based on the above, viewing the evidence most favorably to the People, we conclude that there was substantial evidence to support the verdicts.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKinster
Acting P.J.
We concur:
Richli
J.
Codrington
J.