Opinion
G058531
03-15-2021
THE PEOPLE, Plaintiff and Respondent, v. DANIEL JOSEPH GIDANIAN, Defendant and Appellant.
Reed Webb, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Stephanie H. Chow, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 16HF1758) OPINION Appeal from a judgment of the Superior Court of Orange County, Richard J. Oberholzer, Judge. (Retired judge of the Kern Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed. Reed Webb, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Stephanie H. Chow, Deputy Attorneys General, for Plaintiff and Respondent.
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A jury convicted Daniel Joseph Gidanian of stalking and making criminal threats against one victim, and of attempted stalking against a second victim, among other charges. The trial court sentenced him to 8 years 10 months in prison, which included a two-year enhancement under Penal Code section 12022.1 for committing some of the attempted stalking while he was released on bail in a different case.
All further statutory references are to this code.
Gidanian contends there was insufficient evidence to support his criminal threats conviction and he cannot be punished for both stalking and making a criminal threat under section 654. He further asserts there was insufficient evidence to support the section 12022.1 enhancement. We reject these contentions and affirm the judgment.
FACTS
Gidanian, who has Asperger's Syndrome, was convicted of stalking a judge in 2010. After serving a prison sentence, he engaged in stalking behaviors again in 2016 against three different victims and was prosecuted in two separate cases. This appeal is from his conviction in the second case, in which he was found guilty of stalking and making criminal threats to one victim, and attempted stalking of a separate victim, among other counts.
As discussed more fully below, from July to December 2016, Gidanian committed two unrelated campaigns of harassment, targeting (1) Luciana C. and her family, and (2) Jason J. and his family. Gidanian tried to enter Luciana's apartment in July 2016, and thereafter drove by her apartment once or twice daily for months on end, stopping outside and playing loud music through his open car window. During that same timeframe, Gidanian repeatedly called Jason, who had reported Gidanian to police for suspicious behavior earlier that year. Gidanian also drove to Jason's house, found his prior employment and vehicle information, and threatened that he and his wife would be involved in a car wreck.
Police arrested Gidanian in November 2016 after his neighbor, Tammy D., reported to police he had attempted to enter her apartment, falsely accused her of taking his mail, and repeatedly punctured the tires of her car. Gidanian posted bail in that case and was released on December 5, 2016. Police arrested Gidanian for stalking and threatening Luciana and Jason on December 13, 2016.
In the instant case, the district attorney filed an information charging Gidanian with two counts of stalking with a prior stalking conviction (§ 646.9, subd. (c)(2); count 1 as to Jason & count 4 as to Luciana), dissuading a witness by force or threat (§ 136.1, subd. (c)(1); count 2 as to Jason), issuing a criminal threat (§ 422, subd. (a); count 3 as to Jason), two counts of attempted first degree burglary (§§ 664, 459, 460, subd. (a); counts 5 & 6), attempted possession of a firearm by a felon (§§ 664, subd. (a), 29800, subd. (a)(1); count 7), and attempted possession of ammunition by a felon (§§ 664, subd. (a), 30305, subd. (a)(1); count 8). The information further alleged Gidanian committed counts 4 and 6 while he was released on bail on the case involving Tammy (Case No. 16HF1619), and thus was subject to a section 12022.1, subdivision (b), crime-bail-crime enhancement. The parties agreed to bifurcate the section 12022.1 enhancement, reserving the matter for the court to resolve if necessary after the jury returned its verdicts.
The jury acquitted Gidanian of counts 2, 4, and 5, but found him guilty on counts 1 and 3 (stalking and issuing a criminal threat to Jason) and the lesser included offense of count 4 (attempted stalking as to Luciana). The prosecution dismissed count 6. Gidanian pled guilty to counts 7 and 8 (attempted possession of a firearm and ammunition) and admitted his prior conviction in exchange for a stipulated sentence of eight months on those counts.
Prior to sentencing, the trial court found true the section 12022.1 enhancement. It then sentenced Gidanian to 8 years 10 months in state prison: five years on count 1, eight months on count 3, six months on count 4, four months on count 7, four months on count 8, and two years for the enhancement. Gidanian appealed.
DISCUSSION
1. The Criminal Threat Count
Gidanian first contends there was insufficient evidence he made a criminal threat against Jason. Before turning to the merits of his argument, we summarize the evidence concerning Gidanian's interactions with Jason.
a. The Supporting Evidence
In May 2016, Jason and his young son were leaving baseball practice at his son's elementary school when Jason noticed Gidanian park his vehicle in the school lot and walk toward the school. Jason watched as Gidanian approached the side of the school, peered into three or four classrooms, and pulled on the doors and windows. Jason then saw Gidanian walk back to his car, take off his shirt, turn toward the school, make a "weird Hulk" flex toward the school, and stomp his foot. Jason called 911 to report the suspicious behavior.
A few months later, Jason was eating with his family in a restaurant near the school when he saw Gidanian walk past the restaurant. The two men did not communicate or interact at that time.
In September 2016, Jason started receiving numerous calls on his cell phone from a blocked number. He did not answer, and the caller did not leave a message.
Jason then received a call on his office line. He answered, and the person on the other end said he was a police officer with the Laguna Niguel Police Department and asked Jason if he was the person who had reported a suspicious person in May. Jason replied, "Yes, that is me," and the person hung up the phone. Jason felt "a cold chill." He called the Laguna Niguel Sheriff's Department and described the situation; he was told that a police officer would not have hung up, and if the call was disconnected the officer would have called back. Jason did not receive a call back from the person purporting to be a police officer, so he began to feel scared.
Later that evening, while he and his wife were out eating dinner, Jason received a call on his cell phone from a blocked number. He answered, and the person on the other line said, "Did you work at Pizza Hut in Huntington Beach?" Jason asked, "Who is this?" The person hung up. Jason had worked at Pizza Hut for a month as a teenager in 1992.
Over the next few days, Jason and his wife both received numerous calls from a blocked number. They were frightened and they reported the calls to the police. Later that evening, they saw a car similar to the one Gidanian had driven to the elementary school parked in their driveway; the car then sped away when Jason turned on the lights. They stayed up all night to make sure nothing else happened.
Over the next few days, Jason continued to receive calls from a blocked number, so he downloaded an application called TrapCall, which enabled him to unblock blocked calls. As a result, Jason was able to identify the caller as Gidanian.
Jason reported the calls to the police. Later that day, Gidanian called Jason again, and Jason answered the call. Gidanian described the make, models, and license plate numbers of Jason's and his wife's cars, and he asked Jason if the cars were his and his wife's. Jason kept asking, "Who is this? What do you want?" Gidanian then started to talk in a "weird, high, pitchy voice." He repeatedly said, "[y]ou're going to be in an accident," "[t]here is going to be an accident," and "[y]our car is going to be in a wreck." Jason told Gidanian to stop harassing him and hung up.
Jason was frightened by the phone call, and he immediately called his wife and told her not to drive her car. He then went to his wife's work and picked her up. He feared Gidanian might try to crash into their cars to harm them or he might somehow manipulate the cars to cause an accident, although he did not have the cars checked out for tampering. In Jason's words, by that point the situation had become a "total nightmare," and he and his wife were "in total panic."
Jason received more calls in early October 2016. The calls then stopped for several weeks.
In mid-November, while attending a soccer game at their son's elementary school, Jason and his wife saw Gidanian park in the school lot. Gidanian looked at them and then walked around the school looking in windows and tried to open a bathroom door. Soon thereafter, the Department of Motor Vehicles notified Jason that someone was seeking information about his vehicle and its owner.
Jason was worried about his family's safety; on several occasions, they stayed at a family member's house because they did not feel safe at home. At the police's suggestion, Jason and his wife obtained a restraining order against Gidanian.
b. Analysis
As noted, the jury found Gidanian guilty of issuing a criminal threat to Jason (§ 422, subd. (a); count 3). The elements of a criminal threat count include, among other things, that (1) the defendant "willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person," and (2) the threat "on its face and under the circumstances in which it is 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." (§ 422, subd. (a); see People v. Melhado (1998) 60 Cal.App.4th 1529, 1536.) Gidanian contends there was insufficient evidence to support his criminal threats conviction because he did not threaten death or great bodily injury, and because there was no immediate prospect he would execute the threat.
In reviewing the sufficiency of the evidence supporting a conviction, we review "'"the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt."'" (People v. Romero (2008) 44 Cal.4th 386, 399.) "The pertinent inquiry is 'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt."' (Ibid.)
i. Threat of Death or Great Bodily Injury
Gidanian first asserts there was insufficient evidence of a criminal threat against Jason because his statement that Jason and his wife were going to be in a car accident was not a threat of death or great bodily injury, but rather a threat of property damage. We disagree.
As noted, Gidanian called Jason and read out the make, model, and license plate numbers of his and his wife's cars. He then repeatedly said in an odd, high-pitched voice, "[y]ou're going to be in an accident," "[t]here is going to be an accident," and "[y]our car is going to be in a wreck." Gidanian asserts his threat was directed toward the cars, not to Jason or his wife. However, Gidanian said, "You're going to be in an accident." (Italics added.) The implication of these statements was clear. Gidanian was threatening Jason and his family. He was not threatening only property damage.
The context and surrounding circumstances support the jury's determination that Gidanian threatened to commit a crime that would result in death or great bodily injury. Gidanian called Jason pretending to be a police officer to confirm it was Jason who had reported him to law enforcement. Ostensibly in retaliation, Gidanian repeatedly called Jason and his wife, letting Jason know he had found information about where Jason used to work. Gidanian also drove to Jason's house and pulled into his driveway, so he knew where Jason and his family lived. In the context of these other actions targeting Jason and his wife, a rational jury could have found, and did find, Gidanian's statement that Jason and his wife would be in an accident was a threat to commit a crime that would result in death or great bodily injury.
ii. Immediate Prospect of Execution
Gidanian also argues there was no immediate prospect he would execute the threat because he did not specifically convey when the threat would be carried out and because the threat did not cause Jason to take the cars to have them checked for manipulation. We are not persuaded.
Section 422 requires the threat to convey a gravity of purpose and an immediate prospect of execution of the threat, but it does not require an immediate ability to carry out the threat. (People v. Wilson (2010) 186 Cal.App.4th 789, 807 (Wilson); see, e.g., People v. Gaut (2002) 95 Cal.App.4th 1425, 1431 [rejecting defendant's argument that because he was incarcerated and unable to carry out the threats, there was no immediate prospect of execution].) "To constitute a criminal threat, a communication need not be absolutely unequivocal, unconditional, immediate, and specific." (In re Ryan D. (2002) 100 Cal.App.4th 854, 861.) Rather, "the test is whether, in light of the surrounding circumstances, the communication was sufficiently unequivocal, unconditional, immediate, and specific as to convey to the victim a gravity of purpose and immediate prospect of execution." (Ibid.) "'A threat is not insufficient simply because it does "not communicate a time or precise manner of execution."'" (Wilson, at p. 806.)
Here, the circumstances did not undermine the immediacy of Gidanian's threat to Jason and his wife. Gidanian called Jason and described the make and models of two cars, read off the license plate numbers, and asked Jason if the cars were his and his wife's. Jason kept asking, "Who is this? What do you want?" Gidanian then started to talk in a "weird, high, pitchy voice," and repeatedly said, "[y]ou're going to be in an accident," "[t]here is going to be an accident," and "[y]our car is going to be in a wreck." As a result, Jason believed Gidanian might try to crash into one of their cars to harm them.
Taken together, this evidence supports the jury's finding that Gidanian's statements conveyed an immediate prospect of execution. Even if Gidanian's "words were ambiguous, did not mention a particular criminal act or give other particulars, a rational juror could have found—based on all the surrounding circumstances—[his] words were sufficiently unequivocal, unconditional, immediate and specific to convey to [the victim] a gravity of purpose and immediate prospect of death or serious bodily injury." (See People v. Mendoza (1997) 59 Cal.App.4th 1333, 1342.)
2. The Criminal Threats Sentence
Gidanian next contends his sentence on count 3 should be stayed under section 654. According to Gidanian, count 1 (stalking Jason) and count 3 (criminal threats as to Jason) are both based on the same act: Gidanian's telephone call to Jason threatening that his cars would be in an accident. Thus, contends Gidanian, he cannot be punished both for stalking (count 1) and issuing a criminal threat (count 3). We cannot agree.
Section 654, subdivision (a), mandates that when "[a]n act or omission that is punishable in different ways by different provisions of law," it must "be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." (§ 654.) The statute thus "prohibits punishment for two crimes arising from a single indivisible course of conduct." (People v. Perry (2007) 154 Cal.App.4th 1521, 1525 (Perry).)
Under section 654, "[i]f all of the crimes were merely incidental to, or were the means of accomplishing or facilitating one objective, a defendant may be punished only once. [Citation.] If, however, a defendant had several independent criminal objectives, he may be punished for each crime committed in pursuit of each objective, even though the crimes shared common acts or were parts of an otherwise indivisible course of conduct." (Perry, supra, 154 Cal.App.4th at p. 1525.)
Additionally, "'[w]here a course of conduct is divisible in time it may give rise to multiple punishment even if the acts are directive to one objective.' [Citation.] 'This is particularly so where the offenses are temporally separated in such a way as to afford the defendant opportunity to reflect and to renew his or her intent before committing the next one . . . .' [Citation.] Thus, '[i]f the separation in time afforded [a] defendant[] an opportunity to reflect and to renew [his or her] intent before committing the next crime, a new and separate crime is committed.'" (People v. Roles (2020) 44 Cal.App.5th 935, 946 (Roles).)
Finally, "'[i]f a course of criminal conduct causes the commission of more than one offense, each of which can be committed without committing any other, the applicability of section 654 will depend upon whether a separate and distinct act can be established as the basis of each conviction.'" (People v. Beamon (1973) 8 Cal.3d 625, 637.)
"The defendant's intent and objective are factual questions for the trial court, and we will uphold its ruling on these matters if it is supported by substantial evidence." (Perry, supra, 154 Cal.App.4th at p. 1525.) "We view the evidence favorably to support the judgment and presume every factual finding that could reasonably be deduced from the evidence." (Roles, supra, 44 Cal.App.5th at p. 947)
Applying these standards here, we must determine whether there is substantial evidence, independent of the criminal threats, to support Gidanian's stalking conviction. Stalking requires multiple acts of willful, malicious, and repeated harassment or following of another person, occurring over a period of time, and a credible threat intended to place the other person in fear for his or her safety, or the safety of his or her family. (§ 646.9, subd. (a); People v. Jantz (2006) 137 Cal.App.4th 1283, 1292.) Comparatively, a criminal threat can occur by the commission of one discrete act. (See § 422, subd. (a).) While the singular act of making a criminal threat can be part of a broader course of conduct that constitutes the crime of stalking, a criminal threat is not required; the crime of stalking only requires that the defendant make a credible threat, not necessarily a criminal threat. (§ 646.9, subd. (a).)
Here, even if we disregard Gidanian's threats about a car accident, there was sufficient evidence to support the stalking conviction. Gidanian made numerous harassing phone calls to Jason over the course of three months, mentioning Jason's former employer, Jason's prior report to the police, and Jason's address. Gidanian also drove into Jason's driveway. This other conduct created a credible threat; Gidanian was collecting personal information about Jason and ensuring he knew about it. Further, this other conduct underlying the stalking conviction was temporally separated from the criminal threat about the car accident. On this record, section 654 does not prohibit separate sentencing for both the stalking and criminal threats counts.
3. The Section 12022 .1 Enhancement
Finally, Gidanian contends there is insufficient evidence to support the section 12022.1 enhancement for committing an offense (attempted stalking of Luciana, count 4) while released on bail. Not so.
The information alleged Gidanian committed count 4 (stalking Luciana) and count 6 (attempted first degree burglary) while he was released on bail for the primary felony. But since the prosecution dismissed count 6, we focus on count 4 alone.
Section 12022.1 provides a penalty enhancement for a defendant who, while on bail or his own recognizance release for a felony (the primary offense), commits another felony (the secondary offense). (§ 12022.1, subds. (a)-(b).) If the enhancement is pleaded and proved and the defendant is convicted of both felonies, the defendant is to receive an additional two years in state prison, and any prison sentence on the secondary offense is to run consecutively to any prison sentence on the primary offense. (§ 12022.1, subds. (b)-(c), (e)-(f).)
Here, the information identified the primary case as the case involving Tammy (case number 16HF1619). Police arrested Gidanian in that case on November 17, 2016, and he posted bail on December 5. Just over a week later, on December 13, Gidanian was arrested in the present case involving Luciana and Jason. The information in the present case alleged Gidanian stalked Luciana through December 12 and further that he committed that count while released from custody on bail in the primary case. Thus, as the trial court correctly stated, the issue was whether there was "any factual basis [on which] the jury could have found attempted stalking [of Luciana] during that period from December 5 to December 12" while Gidanian was released on bail.
At sentencing, the trial court found "there was sufficient evidence there for the jury to conclude that the crime had been committed as the attempted stalking during the time alleged in the Complaint . . . and during which the defendant as on—released on bond." We agree. Luciana testified that almost every day from July to December 2016, Gidanian drove into their apartment complex at night, playing loud music with his car window open, and stopping near their apartment before driving out of the complex. And Luciana's daughter, Milena C., testified to an incident that occurred on December 12, 2016 (i.e., while Gidanian was released on bail), in which someone drove through their apartment complex late at night and played loud music outside of their apartment before driving off.
Milena admitted she could not see who was in the vehicle, but in reviewing the sufficiency of evidence, "[t]he question is not whether the jury reasonably could have reached a different conclusion. Instead, it is whether any reasonable trier of fact could have reached the same conclusion as the jury." (People v. Thomas (2017) 15 Cal.App.5th 1063, 1073.) Considering the evidence presented, a reasonable trier of fact could conclude the person who Milena witnessed driving by the apartment on December 12 playing loud music was Gidanian, the person who had been doing the same thing for months on end. Sufficient evidence therefore supports the imposition of the enhancement.
DISPOSITION
The judgment is affirmed.
GOETHALS, J. WE CONCUR: ARONSON, ACTING P. J. FYBEL, J.