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People v. Corleone

California Court of Appeals, Fourth District, First Division
Apr 22, 2009
No. D052816 (Cal. Ct. App. Apr. 22, 2009)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. FRANKIE DAVINCI CORLEONE, Defendant and Appellant. D052816 California Court of Appeal, Fourth District, First Division April 22, 2009

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of San Diego County No. SCD206225, Kerry Wells, Judge.

O'ROURKE, J.

A jury convicted Frankie Davinci Corleone of stalking when a temporary restraining order was in effect (Penal Code, § 646.9, subd. (b), counts 1-3) and making criminal threats (§ 422, counts 4 and 5). The court sentenced him to five years in prison as follows: three years for count 1, and a consecutive one year each for counts 2 and 3; the sentences for counts 4 and 5 were stayed under section 654.

All further statutory references are to the Penal Code.

Corleone contends insufficient evidence supported his convictions for making criminal threats; and the trial court erroneously: (1) failed to give a unanimity instruction; (2) instructed regarding flight; (3) failed to instruct sua sponte that the prosecution was required to prove he knew a restraining order was in effect; (4) failed to grant probation; (5) failed to stay the sentences on counts 2 and 3; and, alternatively, the sentences on counts 2 and 3 violated his Sixth Amendment right to a jury trial under the federal Constitution. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The primary victim in this case, who we shall refer to by her initials, N.P., testified as follows: on December 7, 2006, she and Corleone first met when he responded to an advertisement for "adult services" that she posted on the Craigslist website. They soon initiated an intimate relationship, but by January 10, 2007, N.P. sent Corleone an e-mail refusing to give him her new cell phone number and asking him to stop sending here-mails because their relationship was not going to work. Corleone responded by e-mail: "You're a quitter. You don't deserve me. But you DO deserve the consequences of your actions of playing with my heart and fucking with me the way you did. [¶]... [¶] For all this pain you've caused me... you MUST pay the consequences for your injusticies. I guarantee it."

In this opinion we set forth Corleone's e-mails and internet postings with the same punctuation, spelling and grammar errors appearing in the original.

Around February 5, 2007, Corleone created a webpage on the MySpace website and portrayed N.P. as a prostitute, whose mother was her "pimp."

Around February 6, 2007, Corleone discovered that N.P. had posted different online advertisements for adult services. This led to an argument between them. Corleone made her call her clients and break off her contacts with them. She called approximately two clients, but he was not satisfied. Therefore, he broke her cell phone in two, and took one part.

On February 7, 2007, Corleone sent N.P. an e-mail demeaning individual members of her family. He went to her home and had a physical altercation with her father, who as a result received stitches at a hospital emergency room. Shortly after that incident, Corleone and N.P. broke off their relationship again.

On February 7, 2007, N.P. moved from her parents' home and into protective custody at the home of a private investigator for two months.

On February 10, 2007, Corleone sent N.P. an e-mail stating, "listen carefully, [N.P]. This really is the best solution. Obviously I am devastated (still having intense panic attacks) by what you did to me and I must have some kind of peaceful resolve." Corleone threatened her with lawsuits as follows: "I will subpoena all the evidence that will force you and your parents to tell the truth or commit perjury if you don't and face criminal charges in addition to losing the cases costing TENS OF THOUSAND OF DOLLARS, guaranteeing all of you bankruptcy before the end of the year. Other legal remedies I am considering are already in place as I have contacted various media entities that would love to report a story on a family where the household activities include parents pimping daughter, blatant child neglect, DRUG USE" The e-mail continued, "I would like to solve this by arranging for you to be my companion exactly 8 times. Just like a client so no talking about our past, no conversations whatsoever if you want maybe at most just the weather, then 'be companions' then after an hour we both go our own ways. Can be done in a neutral location that is safe for both of us. What this will do is alleviate my anger and need to retaliate with legal action, because it would make me feel like you 'honored up' to your part in this mess and then we can go on and both feel like we brought this to a peaceful quiet resolution. Oh, and why exactly '8'? 8 is the luckiest number in Chinese culture." The e-mail ended with this ultimatum: "I need to know your answer by Monday because I am really committed to getting my resolve in this tragedy. I will relentlessly send this story out to every media avenue possible and make sure that this whacky TRUE story is heard by all the world. I don't want to do that, but I will if you don't help me resolve this the easiest way. And if you don't, of course I could always move outside the country and just let karma deliver her offering to you. Karma says what goes around always comes around.... a hundred fold...."

On February 11, 2007, Corleone sent N.P. an e-mail stating, "karma will take care of... and for what you have done... I can't imagine its anything nice, but I'm sure nothing like the creative piece of fantasy fiction I posted in my myspace blog." The referenced MySpace blog, dated February 11, 2007, stated: "Two years after performing of her best 'tricks', Divinity went missing on Valentine's day, never to be seen again by her family, friends, or anyone for that matter. Her 'trick' cleverly and patiently kept an eye on her from a far away distance with the use of technology and advanced investigation resources. [¶] When it was time, he abducted her by tranquilizing her in a spot not witnessed by anyone. When she regained conscious she didn't know it but she was in a farm barn 144 miles south of the Mexican border so isolated in the middle of nowhere the nearest place that had people to see you would have to drive to. [¶] Despite being very groggy and disoriented it was clear to her brain and eyes and pains in her body all over that the naked rough edged men standing around her and one still shoved inside her were finishing up a most violating gang rape. [¶] When they were finished, they put Divinity in a large tin barrel and doused her with lighter fluid and torched her to death while still alive. Any remains the incinerating didn't turn to ashes was disintegrated with liquid acid, so that no traces of her remains would ever be found, not even one strand of DNA. Not that anyone cared to look extra hard for her. The police and her family knew that in her business... its just part of the risk she took. [¶] The Beginning... " N.P. felt that the story was about her because she was an escort and used the alias Nea Divine. She testified, "That was the first time that any violence was brought up, and it just triggered something in me. I just knew that I was in danger."

On February 13, 2007, the court granted N.P.'s petition for a restraining order prohibiting Corleone from contacting her and her family.

On February 16, 2007, Corleone sent N.P. an e-mail stating, "I will get served the restraining order papers tomorrow, and once that happens I will comply with the law, so this is my last chance to say what I have to say to you: [¶] I truly loved you and I miss you so much it hurts beyond the threshold of pain any human should have to experience." On February 21, 2007, Corleone was served with the restraining order. On February 28, 2007, following a hearing that Corleone attended, the court granted the restraining order.

On February 28, 2007, Corleone served N.P. with a small claims lawsuit alleging she had his jewelry.

On March 13, 2007, Corleone posted on Craigslist a solicitation purporting to be from N.P. The posting included a photograph of her. It claimed she was "hooking" and invited men to "take advantage" of her.

On March 13, 2007, Corleone posted a different photograph of N.P. on Craigslist. He identified her by her real name and her alias, "Nea Divine," and ridiculed her wish to be on a television show called, "America's Next Top Model."

On March 22, 2007, Corleone sent N.P. an e-mail stating, "Attached are all the pictures of evidence I need to not only whoop your hooker ass in the trial next week, but for all my other happy pursuits to expose your wickedness and destroy you."

On March 28, 2007, N.P. received a text message from an unknown source stating, "Friendly advisory. I have been hired by Frankie Corleone to drive to San Diego, track you down and beat you down to the point of disfigurement." It added, "I can't reveal to you my identity due to my personal safety, but if you send me your e-mail address, I can send you his order of attacks." The message also listed Corleone's Las Vegas address. This message terrified N.P.

Around March 29, 2007, N.P.'s mother told her that someone had slashed the mother's car tires. On approximately March 30, 2007, Corleone was captured on surveillance camera driving a vehicle to N.P.'s family home, where their vehicles were vandalized that day.

Around March 30, 2007, Corleone wrote on his MySpace page: "Your penalty phase is set for TODAY until August 11, 2007

"FACTS YOU SHOULD KNOW:

The penalty is guaranteed. NOTHING CAN DENY IT! No trial, no error, no court, no pig, no suit, no client, no current or next roomate, no pimps, no hookers, no thugs, no niggers, no Alex's (will meet 'Louie' soon), no judges, no lawyers, no parents (lol - can you say 'phukked'), no warrants, no arrests, no steel bars or cages or cells, no 'peeping Tom's' no moves to 707 or 702 or 858 or Zimbabwe or Antartica, no miracles whatsoever can prevent your destiny - - - - which I control. And If I get hit by a bus or get incarcerated by the good, bad or ugly -- its still a fact ---a guarantee --- that your fate is to receive the delivery of your justly owed consequences. I already paid them to deliver it. Its just a matter of time before you receive it. And if your current or next pimp is there when you get your delivery, he gets a gift for being present -- free of charge. Did you really think that a lowlife white trash cumhole whore like you could actually get away with pulling off a stunt like that on ME? I'm not your johns, pimp, soon-to-be-head-bashed-in fuckmaster. All of them together can't stop me. [¶] You can get scared now. I have arrived. And symbolically.. you are 'unprotected' as usual. As you know, 'd.a.-pro' and enforcers won't throw away good money on bad people. I'm banking on it. The path is now - full steam ahead.....

There was trial testimony that Corleone referred to a baseball bat as "Louie" from Louisville Sluggers.

"PENALTY PHASE I: In progress - 'so shallow & materialsitic'

"PENALTY PHASE II: the 'supporting cast' - it's the people that count.

"PENALTY PHASE III: final phase, life with no parole 8-11-07.

"OK. Enough said.

"HERE I come... Like a 'bat' out of HELL..........." N.P. testified this e-mail scared her because, "It's basically saying no warrants or arrests or steel bars or cages or cells, no nothing could change my destiny."

On April 3, 2007, Corleone sent N.P. an e-mail, which we quote in its entirety: "You two white trash lowlife cumholes really amuse me and put a smile on my face.... [¶] Attached is another of your 'M' reports, this time talking about how you are stalking me at my home. Something horrible must have happened to youz recently to get so unraveled as to put it in writing you are coming to my home to do illegal criminal activities. Well, now that I have it in writing.... GAME ON !!! The cops won't defend hookers and pimps who put threats in writing... so.... it's now between your crew and mine. [¶] Within 2 weeks [your] family will be destroyed and homeless... and you lowlives will have to start pimping out the 7 year old, if it hasn't been done already.... [¶] Then... to protect myself.....when you all attacked me - - when you all attack me.... in self-defense I predict that all of you will be hospitalized with the most horrific and violent beat down you can imagine.... of course... considering you put in writing how you are coming after me it would make sense I have the right to defend myself.... [¶] [N.P.]..... may God strike me dead right now.... the starfish scar on your head.... when its all over and I'm done with your face.... that scar will be considered your beautymark. This will be done before your birthday I promise you. All of you know what I am capable of... or.....at least.... you are slowly finding out.... the NEXT LEVEL is DEVASTATING.... and none of you will recover from it.... [¶] Police? Have them call me. I have proof that pimps and niggers and in writing evidence of threats. Remember.... you all are lowlives.... hookers, pimps, drug addicts.... I - on the other hand- unlike [N.P.] the wanna be high society hooker who sucks nigger dick to try to get out of the ghetto.... I'm the real deal.... self made.... more accomplishments than your whole extended family put together... [¶] Speaking of 'family'.... line up your soldiers.... and watch as they drop like flies.... "

There was trial testimony that "M" referred to an acquaintance of N.P.'s who had communicated with Corleone anonymously.

N.P.'s brother was approximately seven years old at the time of this e-mail.

N.P. testified that the April 3, 2007 e-mail frightened her because it referred specifically to the small scar on her forehead, and her birthday. She knew instinctively Corleone was capable of carrying out his threat, and that he was not "mentally stable." She usually kept track of his internet postings because he "would foreshadow things that were going to happen."

On April 4th, 2007, Corleone sent N.P. an e-mail directing her to his MySpace page, which stated among other things:

"[N.P.] I SWEAR ON MY OWN GRAVE - has me so determined to anhilate all of you... because I don't care how fucking psycho you think you are and how your split personalities fit you getting what you want... you fucked with the wrong guy... because when I turn psycho on... its GAME OVER!... [¶] no cops... no fucking FBI... no nothing... will stop me... I swear to god I paid men I haven't seen since I was a teenager to make sure that if I get arrested tonite.... Your whole family is destined for disgusting misery even more than you all live through now. [¶] I tried to reason [...] [¶] too late.... I have done all the preparation and homework necessary the past few months.... and now I put it into action... and not to scare you... but whats done so far is kids play warm up appetizer…. The next wave of shit is definitely going to put your parents and little brother in a homeless shelter…."

The MySpace posting continued: "what say you? Speak now or …… I FUCKKING DESTROY ALL OF YOU REAL SOOOON! [¶] oh, and you idiots can park those cars all the way inside the kitchen if you want…none of them will work next week.. I guarantee it….so….i collapse your transportation…your jobs… your income….. and the rest I can't tell you it's a secret….. [¶] what say you? speak now ….. tell me why I should even listen to a solution you have now because you fear the reality of my POWER…. put every client, nigger, cop, [your family member].. hooker friends pimps… put em all together you cant stop what I put in place… "

Corleone posted a different MySpace entry dated April 4th, 2007, which stated: "I'm too focused on fucking your family up, but if you want to spare one [member of your family's] face breaking (your mom got toooooo lucky last week -- some dickhead 'peeping tom' put a kink in the original plan to bust her fucking face apart at work). [¶] i will replace a [member of your family] with alex. [... ] You give me his home and work address by 10 am TODAY and i will erase a [member of your family] face mangling. NOT YOURS. Maybe.... your dad's since I already threw him a beating and the poor broken down piece of shit can't look any worse than he does now anyways.

"My guys back east got Alex in focus anyways... they got an insider in the mobile company he uses... so.... I don't need shit from you.... but give it up anyways.... save 'face' LOL.... this is fun... !! don't worry.... his punishment - like [your [family's] - is not death... but he will look in the mirror every day and be reminded of me by the scar that dashes across his head like a bolt of lightening....

"oh... and.... print this shit out and take it to the cops... I already sent them my phone records of incoming threats and 'M's threats of coming to my last residence (latest blog).... so.... you all will see.... the police don't give a fuck about hookers, pimps and junkies who exchange threats with a psycho like me who doesn't even live in the state of california anymore."

On April 4, 2007, Corleone wrote a blog entry, which we quote in its entirety: "Listen up, Nea Divine - in addition to the one concession you must make in my last e-mail, if you don't hand over 'M,' which I do believe is a split personality [... ] then I'm gonna start teaching 7 year olds reading writing and...... [¶] Yeah,... that's how I do - - - - crushin pimps, punx, whores, pageant-pimpin moms and anyone else that imagines the day they can one up on me! [¶] THE CRAZIEST GREATEST SICKEST SMARTEST BEST BAT SWINGING HEAD BASHER ON DA PLANET! [¶] [...] Your remarks here not only validate what a lowlife piece of shit you are, but guarantee that as sure as the sun will shine tomorrow that not because I'm angry (I used to be lots, now I'm psychotically amused, entertained, and energized!) - but because I KNOW I CAN DO IT WITH A SMILE ON MY FACE AND GET AWAY WITH IT - I am definitely going to crush your skull with a Louie sooner than later." N.P. testified that during this period she was not having problems with anyone apart from Corleone.

N.P.'s mother testified that around February 14, 2007, Corleone mailed her at her place of work a package containing approximately 15 pages of e-mails in which he "completely slandered" her entire family. She was scared, considered Corleone's conduct abnormal, and thought that he was trying to get her fired. On March 27, around 4:45 p.m., she received a telephone call from Corleone while she was at work, but he hung up. Shortly afterwards, at the parking garage at her work, she discovered her car's gas tank was open and its four tires had been slashed several times. On March 30, 2007, N.P.'s family discovered their truck's windshield had been damaged. The surveillance camera they had installed at their home showed Corleone's truck drive on their street and someone get out and make a motion of smashing the windshield and drive away. Around the beginning of April, 2007, someone threw a handful of rocks at a bedroom window of their home. N.P.'s family started boarding up their windows with wood panels. N.P's mother testified she monitored Corleone's MySpace page because she found that oftentimes "he would let us know what was forthcoming, what he was going to do to us next."

N.P.'s father testified that as he was driving to work on March 31, 2007, a truck driven by someone who appeared to be Corleone followed him closely on the freeway. Her father recognized the truck as one that had followed him from work the previous month. He managed to elude the truck by exiting the freeway. He saw the four individuals in the truck extend their hands, "flipping [him] off."

In May 2007, Corleone was arrested in Las Vegas, where he was living.

Corleone testified at trial and admitted writing several of the e-mails and blogs that were attributed to him, including what he called "a blog regarding the fictional prostitute's demise," and an e-mail stating N.P. would "pay the consequences" for her actions. He admitted getting into the fight with her father. He took half of her cell phone, and stated, "So I went to Sprint, and I had them forward it all into my phone." He called each of the approximately 50 men listed in that phone. He testified he got himself "in a lot of trouble taking what [he] thought was righteously redemptive action of getting ahold of her cell phone and calling up a lot of [N.P.'s] clients that were married men that were her johns." He explained, "I basically attempted to, you know, put a damper on her business.... And I figured, well, you know, you lied to me about this whole thing for two months. And so I felt like I'd get her back by, you know, hurting her in her pocketbook, but not in a harmfully violent way."

DISCUSSION

I.

Corleone contends that the counts 4 and 5 convictions for making criminal threats — based on his April 3 and April 4, 2007 writings respectively — were not supported by substantial evidence because his "internet postings constituted nothing more than a series of ranting soliloquies related to [his] anger over the break up with [N.P.] and his perceived belief her parents willingly facilitated her escort business." Moreover, he argues, "his words were not reasonably intended to instill fear in the victim over any lengthy period of time, particularly in light of his nonviolence."

Under section 422, "the People were required to show: (1) appellant willfully threatened to commit a crime that would result in death or great bodily injury; (2) he made the threat with the specific intent that it be taken as a threat; (3) the threat, on its face and under the circumstances in which it was made, was so unequivocal, unconditional, immediate and specific as to convey to the person threatened a gravity of purpose and an immediate prospect of execution of the threat; and (4) the threat caused the person threatened reasonably to be in sustained fear for his own safety." (In re Ricky T. (2001) 87 Cal.App.4th 1132, 1136-1137 (Ricky T.).) The word "so" as used in section 422 means that " ' " unequivocality, unconditionality, immediacy and specificity are not absolutely mandated, but must be sufficiently present in the threat and surrounding circumstances...." ' " (In re George T. (2004) 33 Cal.4th 620, 635 (George T.).) " 'The four qualities are simply the factors to be considered in determining whether a threat, considered together with its surrounding circumstances, conveys those impressions to the victim.' " (Ibid.)

The circumstances surrounding a communication include the prior relationship of the parties and the manner in which the communication was made. (In re Ryan D. (2002) 100 Cal.App.4th 854, 860, citing Ricky T., supra, 87 Cal.App.4th at pp. 1137-1138.) Section 422 is meant to punish individuals who willfully threaten to commit crimes that will result in death or great bodily injury because these individuals present " 'a clear and present danger to public order and safety.' " (In re Ge M. (1991) 226 Cal.App.3d 1519, 1523.)

We do not review credibility determinations, but undertake an independent examination of the whole record to determine whether it discloses substantial evidence that a reasonable trier of fact could find the essential elements of the crime beyond a reasonable doubt. (Ricky T., supra,at p. 1136.) The testimony of a single witness is sufficient evidence to support the verdict. (People v. Zavala (2005) 130 Cal.App.4th 758, 766.)

The jury found Corleone wrote the e-mails and blogs at issue, and that he intended them as threats. We conclude that his statements were not ambiguous or innocuous, and satisfied the statutory criteria for a threat. Corleone plainly stated in the April 3, 2007 e-mail: "[N.P.].... may God strike me dead right now.... the starfish scar on your head.... when its all over and I'm done with your face.... that scar will be considered your beautymark. [...] All of you know what I am capable of... or.....at least.... you are slowly finding out.... the NEXT LEVEL IS DEVISTATING.... and none of you will recover from it." Corleone also threatened, "Within 2 weeks [your] family will be destroyed and homeless." He added, "I predict that all of you will be hospitalized with the most horrific and violent beat down you can imagine."

Corleone willfully threatened bodily injury and expressed his specific intent to extend N.P.'s scar and inflict an unimaginably violent "beat down" on her that would require hospitalization, and make her current scar the most beautiful thing on her. He intended the threat to be taken seriously as shown by his invoking God's harm on himself if he failed to carry it out, and by referring to the family's growing awareness of what he was capable of doing. Under the circumstances, the jury could reasonably regard that statement as a reference to Corleone's previous actions of breaking N.P.'s cell phone and depriving her of it; attacking her father; slashing her mother's car tires; breaking the windshield on the family truck; and throwing stones at N.P.'s family home. Corleone also had carried out his threat to inform others regarding his negative opinion of N.P., which he posted on his MySpace page and which he communicated to her former clients. N.P. had obtained a restraining order to prohibit just such threats by Corleone, and she had gone into hiding and stopped communicating with him. But he was undeterred. N.P. testified she was scared by the threat. We conclude that, under the circumstances, that fear was objectively reasonable.

The same analysis applies to Corleone's April 4th threat to break N.P.'s face and to "erase a [member of her family's] face mangling, NOT [N.P.'s]." These words clearly constituted a threat of serious bodily injury. We note that specific to this threat, Corleone admitted he was "too focused on fucking [N.P.'s] family up." He intended this threat to be taken seriously because he referred to his role in damaging N.P.'s mother's car. Notwithstanding the damage inflicted on her car tires, he stated she "got toooooo lucky last week — some dickhead 'peeping tom' put a kink in the original plan to bust her fucking face apart at work." He left no doubt he was able to carry out his threats. By his own admission, he "already threw [N.P.'s dad] a beating." We conclude Corleone's convictions under section 422 were supported by substantial evidence.

II.

We reject the contention the trial court erred in declining to give a unanimity instruction. During discussions outside of the presence of the jury, the prosecutor pointed out that no unanimity instruction was required because each count was based on a different threat. The trial court agreed and asked the prosecutor, "And I'm assuming you are going to be making that clear to the jury which ones you are talking about in your argument?" The prosecutor responded, "That's correct."

A defendant's constitutional right to a unanimous jury verdict requires that the jurors unanimously agree the defendant is criminally responsible for a discrete unlawful act. (People v. Thompson (1995) 36 Cal.App.4th 843, 850.) When the evidence demonstrates more than one unlawful act that could support a charged offense, either the prosecution must elect upon which act to rely, or the jurors must be given a unanimity instruction telling them they must unanimously agree which act constituted the crime. (Ibid.) The unanimity requirement is designed " 'to eliminate the danger that the defendant will be convicted even though there is no single offense which all jurors agree the defendant committed.' " (People v. Russo (2001) 25 Cal.4th 1124, 1132.) A trial court is not obligated to give an instruction, either requested or sua sponte, if the evidence precludes a reasonable jury from finding the instruction applicable. (People v. Schultz (1987) 192 Cal.ApP.3d 535, 539.) "A unanimity instruction is required only if the jurors could otherwise disagree which act a defendant committed and yet convict him of the crime charged." (People v. Gonzalez (1983) 141 Cal.App.3d 786, 791, disapproved on other grounds in People v. Kurtzman (1988) 46 Cal.3d 322.)

Corleone concedes that "the prosecutor did mention two specific incidents in discussing Counts 4 and 5" but he argues the unanimity instruction was required because the prosecutor "also discussed evidence of a number of other acts that also would have supported the guilty verdict on counts 4 and 5."

The information charged Corleone with making a criminal threat in count 4 based on his April 3, 2007 e-mail, and in count 5 based on his April 4th MySpace posting. During closing argument, the prosecutor twice specified which threat related to each count. We conclude there was no need for a unanimity instruction because there was no likelihood of jury confusion regarding the specific threat associated with each of the counts.

III.

Corleone contends the trial court erroneously instructed the jury regarding flight in the language of CALCRIM No. 372 based on Corleone's move to Las Vegas.

The court instructed in the language of CALCRIM No. 372 as follows:

In proceedings outside of the jury's presence, the following discussion took place:

[Prosecutor:] "Yes, your honor, there's been evidence that [Corleone] left San Diego. It could be interpreted one of two ways. I don't see any harm in giving it.

"The court: Do you have any objection, Mr. Corleone?

"[Corleone:] Neither do I. I'll let the jury decide that."

Corleone, who represented himself at trial, forfeited any error by agreeing to the instruction. (People v. Bolin (1998) 18 Cal.4th 297, 326 [forfeiture found where defense counsel agreed to giving of instruction and raised no objection]; People v. Stone (2008) 160 Cal.App.4th 323, 331.) In any event, any error was harmless under People v. Watson (1956) 46 Cal.2d 818, 836. (Cf. People v. Crandell (1988) 46 Cal.3d 833, 870, disapproved on other grounds in People v. Crayton (2002) 28 Cal.4th 346, 364-365 [applying Watson standard to erroneous instruction on permissible inferences from trial evidence].) Corleone would not have received a more favorable outcome absent the flight instruction, which specifically stated that "the evidence that the defendant fled or tried to flee cannot prove guilt by itself." As the recitation of the facts in this case shows, sufficient evidence supported the convictions. This case's outcome did not hinge on the question of whether Corleone fled or moved to Las Vegas.

IV.

Corleone contends, "[T]he trial court committed constitutional due process error by failing to instruct the jury on a requisite element that the defendant must have knowledge of the restraining order at the time of the commission of the stalking."

Section 646.9 subdivision (a), states, "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 (b) of the same section 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."

The court instructed the jury as follows: "If you find the defendant guilty of the crime of stalking as alleged in counts 1-3, you must then decide whether the stalking occurred when there was a temporary restraining order, injunction, or other court order in effect prohibiting the stalking behavior as defined in the instruction I just gave you, against the alleged victim. [¶] The People have the burden of proving this allegation beyond a reasonable doubt."

The verdict form for each stalking charge stated, "We the jury, in the above entitled cause find the defendant, Frankie Davinci Corleone, guilty of the crime of stalking. [¶] Further, we find the stalking did occur when there was a temporary restraining order, injunction, or other court order in effect prohibiting stalking behavior against the alleged victim, in violation of Penal Code section 646.9 (b), as charged."

Assuming arguendo that the court was required to instruct sua sponte regarding the defendant's knowledge that the restraining order was in effect, any error was harmless under any standard. "Under state law, instructional error that withdraws an element of a crime from the jury's consideration is harmless if there is 'no reasonable probability that the outcome of defendant's trial would have been different had the trial court properly instructed the jury.' " (People v. Cole (2004) 33 Cal.4th 1158, 1209.) Under federal law, a trial court's failure to instruct on an element of a crime requires reversal of the conviction unless it can be shown beyond a reasonable doubt that the error did not contribute to the jury's verdict. (Ibid.)

Here, there was no evidence Corleone lacked knowledge that the restraining order was in effect. Rather, the evidence was clear and uncontradicted that on February 16, 2007, a few days before he was served with the restraining order, he wrote an e-mail to N.P. stating that he would no longer be able to communicate with her once he was served. He testified he was served with the order on February 21, 2007. He attended the February 28, 2007 hearing in which the trial court granted the restraining order. Therefore, he was aware the restraining order was in effect when he made the criminal threats, and there was no evidentiary basis for the instruction Corleone seeks.

V.

Corleone contends that, considering his college education, favorable employment record and lack of criminal history, the trial court erred in denying his request for probation.

The grant or denial of probation is within the trial court's discretion and the defendant bears a heavy burden when attempting to show an abuse of discretion. In reviewing a trial court's determination whether to grant or deny probation, we do not substitute our judgment for that of the trial court. We determine whether the trial court's order was arbitrary, capricious, or exceeded the bounds of reason considering all the facts and circumstances. (See People v. Weaver (2007) 149 Cal.App.4th 1301, 1311.) The appellant bears the burden of establishing that the denial of probation was unreasonable or arbitrary. (People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 831.)

At the hearing initially scheduled for Corleone's sentencing, the trial court stated it had "thought long and hard about" the issue of granting or denying Corleone probation, and it still had two primary concerns: "One is obviously punishing the defendant for the extreme trauma that he caused to the victims. There's no question in my mind that he deserves punishment for that, but the second and perhaps more primary concern is what is the best thing to do to ensure... the future safety of the victims." The court was undecided and therefore ordered Corleone to undergo a diagnostic study.

Corleone's evaluators were split in their recommendations: the institutional counselor recommended denial of probation, but the institutional psychologist recommended a grant of probation with strict guidelines. Following an administrative review, the associate prison warden informed the court, "The administrative team at this facility is in agreement that Mr. Corleone is at a risk for re-offending and until he can be adequately treated for his mental health and substance abuse issues, he remains a threat to those who come in contact with him. Although he has expressed concern and regret for his actions, he does not appear to understand the extent of his violent outbursts and continuous terrorization. He should be considered a high risk to the community and made aware that his unlawful and aggressive behavior will not be tolerated or ignored. It is feared that should he continue the path of destruction, his next victim may be the result of a threat that results in death."

The trial court, in denying probation, summarized the results of the diagnostic evaluations as follows: "[T]heir recommendation is, bottom line, that [Corleone] poses too great a risk to be released at this time and the instant offense is just too serious to justify a grant of probation.... [¶] But when I read the actual comments of the evaluators, both of them, some things jump out... The correctional counselor indicates, for example, to Mr. Corleone's credit, he is extremely intelligent — and I think we can all agree on that — he has an excellent job history in the field of investments, trading, and economics, but his linear thinking is completely warped. [¶] In addition to that, the counselor found the threat that he will pose to the safety of the community is of extreme danger. Not moderate, not high. Extreme. That's significant to me. Even the psychologist who was recommending probation qualified that recommendation by indicating that he... does believe the defendant represents a risk to the community. And they're not suggesting probation because he doesn't present a risk, but only because they don't think that the state prison can provide the degree of counseling that he needs to deal with his long-term psychiatric issues. [¶] So bottom line, in reviewing that report and in looking at the circumstances of this case, I do not find that the defendant is a candidate for probation. He inflicted serious, severe emotional injury on the entire family, and it is likely that the defendant will be a danger if he is not imprisoned."

Corleone has not met his burden of showing that the trial court abused its discretion. Rather, he refers to the portions of the clinical evaluations that portray him in a positive light, but he minimizes those portions dealing with his inability to restrain himself from causing harm to the victims, and the danger he posed to them if he was granted probation. We conclude the trial court made a carefully reasoned decision to deny probation, and did not abuse its discretion.

VI.

Corleone contends that under section 654, the trial court was required to stay the sentence on count 2 (stalking of N.P.) and count 3 (stalking of N.P.'s father).

" 'The purpose of section 654 is to prevent multiple punishment for a single act or omission, even though that act or omission violates more than one statute and thus constitutes more than one crime. Although the distinct crimes may be charged in separate counts and may result in multiple verdicts of guilt, the trial court may impose sentence for only one offense....' [Citation.] However, multiple punishment is proper if the defendant entertained multiple criminal objectives which were independent of each other." (People v. Solis (2001) 90 Cal.App.4th 1002, 1021.)

Here, the trial court imposed consecutive sentences on counts 2 and 3 because they involved separate victims. There were numerous instances from which the jury could find that Corleone stalked N.P. after he was served with a temporary restraining order "on or about and between February 13, 2007 and April 30, 2007" as charged in the information. Those instances were separate and divisible from the acts targeted in count 3 relating to Corleone's pursuit of N.P.'s father on the freeway on a different date, March 31, 2007. Corleone employed a different method of stalking the two victims, and his motives were different because his relationship with N.P.'s father was different. Specifically, Corleone's e-mails and blog postings regarding N.P. indicate his objective in stalking her was to make her pay the consequences for the hurt he felt because she had sex with other men. The jury reasonably could believe he had a distinct objective for stalking her father, which related to their prior altercation and Corleone's perception that he was responsible for his daughter's decision to work as an escort. We conclude there was no violation of section 654.

Corleone alternatively contends that the imposition of consecutive sentences on counts 2 and 3 violated his Sixth Amendment rights under the United States Constitution, but he concedes that the California Supreme Court decided this issue adversely to his claim in People v. Black (2007) 41 Cal.4th 799, 822, which we are obligated to follow. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450.)

DISPOSITION

The judgment is affirmed.

WE CONCUR: BENKE, Acting P. J., HUFFMAN, J.

"If the defendant fled or tried to flee immediately after the crime was committed or after he was accused of committing the crime, that conduct may show that he was aware of his guilt. If you conclude that the defendant fled or tried to flee, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled or tried to flee cannot prove guilt by itself."


Summaries of

People v. Corleone

California Court of Appeals, Fourth District, First Division
Apr 22, 2009
No. D052816 (Cal. Ct. App. Apr. 22, 2009)
Case details for

People v. Corleone

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. FRANKIE DAVINCI CORLEONE…

Court:California Court of Appeals, Fourth District, First Division

Date published: Apr 22, 2009

Citations

No. D052816 (Cal. Ct. App. Apr. 22, 2009)