Opinion
B160062.
7-22-2003
THE PEOPLE, Plaintiff and Respondent, v. SHAUN K. HOLROYD, Defendant and Appellant.
Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec and Marc E. Turchin, Supervising Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Appellant Shaun Holroyd challenges his stalking and battery convictions on the grounds the trial court improperly ordered him to register as a sex offender and erred by instructing the jury with CALJIC No. 17.41.1. We conclude appellant waived two of his three claims regarding the sex offender registration order by failing to object on those grounds in the trial court. The evidence supported the courts order requiring sex offender registration. We further conclude the court did not err by instructing with CALJIC No. 17.41.1.
BACKGROUND AND PROCEDURAL HISTORY
Appellant followed Kelly Carter around a college campus, repeatedly asked her to go out with him, and ignored her pleas to leave her alone. When Carter sought help from a third person, appellant grabbed her hand, insisted that she was his "old lady," and hugged her.
A jury convicted appellant of stalking and misdemeanor battery. Appellant admitted he had previously been convicted of stalking. The trial court sentenced appellant to four years, six months in prison. It also ordered appellant to register as a sex offender.
DISCUSSION
1. Appellants failure to object on Apprendi and statement of reasons grounds precludes him from raising those alleged errors on appeal. Sufficient evidence supports the trial courts order requiring sex offender registration.
The crime of which appellant was convicted, a violation of Penal Code section 646.9, subdivision (a), is not an enumerated offense requiring mandatory registration as a sex offender under Penal Code section 290, subdivision (a)(2). Registration is discretionary, however, under Penal Code section 290, subdivision (a)(2)(E), which provides for registration "if the court finds at the time of conviction or sentencing that the person committed the offense as a result of sexual compulsion or for purposes of sexual gratification. The court shall state on the record the reasons for its findings and the reasons for requiring registration." (See, also, Pen. Code, § 646.9, subd. (d).)
Appellant contends the trial courts order requiring him to register as a sex offender was improper because (1) the information did not charge, and the jury did not find, that he stalked Carter as a result of sexual compulsion or for purposes of sexual gratification, as required by Apprendi v. New Jersey (2000) 530 U.S. 466, 490, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (Apprendi ); (2) the trial court failed to state any reasons for its implicit finding that he stalked Carter as a result of sexual compulsion or for purposes of sexual gratification and its order for registration; and (3) the evidence did not support a finding that he stalked Carter as a result of sexual compulsion or for purposes of sexual gratification.
In the trial court, appellant did not object on any of the grounds asserted on appeal. The prosecutors sentencing memorandum informed appellant that an order requiring registration as a sex offender was requested, citing Penal Code section 646.9, subdivision (d) as authority. At the sentencing hearing, the prosecutor reiterated her request for a registration order. After the court stated that it was imposing the registration requirement requested by the prosecutor, appellant protested he was not a sex offender because he was not a child molester. Defense counsel then informed the court that, "As Mr. Holroyd indicated, we are objecting to the registration requirement."
Appellant therefore had ample notice of the prosecutions request for a registration order and an opportunity to oppose the request or object to the courts decision to order registration. Indeed, he did object, personally and through counsel. His failure to inform the trial court that his generic objection was based on alleged Apprendi error or the courts failure to comply with the statement of reasons requirement of Penal Code section 290, subdivision (a)(2)(E) precludes him from raising those errors on appeal. (People v. Marchand (2002) 98 Cal.App.4th 1056, 1060-1061 [failure to raise Apprendi claim in trial court precluded Apprendi challenge on appeal to sex offender registration order]; People v. Bautista (1998) 63 Cal.App.4th 865, 868-871 [failure to object in trial court to inadequate statement of reasons for requiring registration as sex offender precluded same claim on appeal].)
No objection was required, however, to preserve appellants sufficiency of evidence claim. Because Penal Code section 290, subdivision (a)(2)(E) does not require proof beyond a reasonable doubt that the person committed the offense as a result of sexual compulsion or for purposes of sexual gratification, proof by a preponderance of the evidence is sufficient. (People v. Marchand , supra, 98 Cal.App.4th at p. 1058.) We therefore review the whole record in the light most favorable to the judgment to decide whether substantial evidence supports the conviction, so that a reasonable trier of fact could find, by a preponderance of the evidence, that appellant stalked Carter as a result of sexual compulsion or for purposes of sexual gratification.
Carter testified that, on the day before Thanksgiving, she was in line to pay fees at California State University Northridge when appellant began talking to her, staring at her, and flirting with her. Carter had never seen appellant before. He asked her if she would invite him to Thanksgiving dinner at her house, and she said no. After Carter paid her fees and left the business office, appellant jumped out of line and ran after her. He asked her to go with him to get something to drink or eat. Carter refused and told him she had to leave. Appellant continued walking with her and asking her to go with him. She told him she was married, and said she had to go home to her children. As appellant followed her toward the parking lot, she became concerned about going to her car, so she told him she had forgotten something and had to go back into one of the buildings. He followed her and told her he was not going to let her get away that easily. Carter told appellant he was frightening her and she did not want him to walk with her. He ignored her statements and repeated "the same things over and over." Carter reiterated that she did not want to go with appellant, that he was frightening her, and that she was married and wanted to go home. He told her she could leave her husband and go with him.
Carter ducked into a womens restroom, and appellant followed her. She screamed at him to leave, and he said he wanted to check that there were no windows through which she could escape. He left, but then re-entered the restroom. She screamed again, and he left. When she emerged from the restroom, appellant was waiting for her. She told him she was very scared of him and did not want to walk with him. She asked him to let her go home, but he continued to follow her and ask her to go somewhere with him. She stopped and asked him to stop following her. In a louder and stronger voice, he told her she could at least take him to his car. Carter went inside a building in the parking lot that she thought was a campus security office. She asked Yuka Arai, who was seated inside the building, to call security because appellant was following her and she was very frightened. Appellant said, "No. No, no. I know her. This is my old lady. Shes with me." He grabbed Carters hand, then threw his arms around Carter from behind and pulled her body against his. Arai called the campus police, and appellant left the building, but remained in the area. When the police arrived, Carter pointed appellant out to them, and they arrested him. About an hour elapsed from the time Carter first encountered appellant to the time she entered the building where Arai was seated.
Appellant told the officers who arrested him that he was not a student at the university, that he was just walking and talking to Carter, and that he wanted to take her out for drinks, dinner, and dancing.
The trial court admitted evidence of two prior incidents between appellant and Kandace Von Buelow for the purposes of showing motive or intent. (Evid. Code, § 1101, subd. (b).) On Thanksgiving Day six years earlier, appellant rang the doorbell at Von Buelows home, where he had installed a burglar alarm. Appellant was the son of neighbors, but Von Buelow had no personal relationship with him. Appellant told Von Buelow the yard sign indicating the presence of a security system was crooked and needed to be fixed. Von Buelows father asked her to show appellant where they wanted an additional phone line installed, and she did so. When they were alone, appellant asked Von Buelow if he could go to Thanksgiving dinner with her. She told him it would not be appropriate. He stood very close to her and said things that made her uncomfortable. She left the room, and appellant followed her. In the kitchen, he grabbed her, pushed her against a counter, held her, and repeatedly tried to kiss her. She broke away and walked toward the front door and opened it. He slammed the door shut, threw her against the wall, pressed himself against her, and again tried to kiss her. He grabbed one of her breasts and attempted to pull off her pants. She screamed, and her father came to the door. Appellant ran out the back door. Von Buelow moved out of her fathers house that day and obtained a restraining order against appellant. Appellant was convicted of battery on the basis of this incident.
The following May, Von Buelow was visiting her fathers home, waiting for her father to arrive, when appellant began pounding on the front door. She called 911 and tried to hide by crouching behind a bed. Appellant entered the house through the back door and found her. He pulled her up from her crouching position, pushed her onto the bed, and placed his hand on her thigh. She asked him to follow her outside, and he did so. The police arrived at about that time, and appellant ran back into the house. Appellant was convicted of stalking on the basis of this incident.
Viewed in the light most favorable to the trial courts implicit finding, sufficient evidence supports the finding that appellant stalked Carter as a result of sexual compulsion or for purposes of sexual gratification. Appellants relentless pursuit of Carter was clearly designed to initiate a dating relationship with her. He admittedly wanted to take her for dinner, drinks, and dancing. He wanted her to invite him to her home for a special holiday dinner. He was undeterred by her statement that she was married: he suggested she leave her husband and go with him. When Carter sought a third persons assistance, appellant attempted to hold her hand, hug her, and pull her body against his. He claimed she was his "old lady," which implied the existence of a long-standing romantic relationship between them. Absent evidence of the prior incidents involving Von Buelow, the evidence of appellants conduct with Carter arguably could be insufficient to establish that appellant acted as a result of sexual compulsion or for purposes of sexual gratification. However, the current offense must be viewed in light of appellants aggressive initiation and relentless pursuit of sexual contact with Von Buelow, a young woman he barely knew. In each incident, appellant sought to rapidly establish a romantic or intimate relationship with a stranger or mere acquaintance, refused the victims protests and orders to leave her alone, and repeatedly grabbed the victim and forcibly pressed his body against hers. In light of the clearly sexual nature of appellants attacks on Von Buelow, the court could reasonably find that a preponderance of evidence showed that appellant acted with the same motive and intent when he stalked Carter, and that he was acting from sexual compulsion or for purposes of sexual gratification. Accordingly, the court did not abuse its discretion in ordering appellant to register as a sex offender.
2. Instruction with CALJIC No. 17.41.1 was not error.
Appellant contends the trial court erred by instructing the jury with CALJIC No. 17.41.1. In People v. Engelman (2002) 28 Cal.4th 436 (Engelman), the California Supreme Court disapproved of CALJIC 17.41.1 and forbade trial courts giving it in future trials. (Id. at p. 449.) The Court expressed concern that the instruction created "a risk of unnecessary intrusion on the deliberative process." (Id. at p. 441.) Nonetheless, the Court concluded that giving the instruction did not infringe upon federal or state constitutional rights and was not error. (Id. at pp. 441, 449.)
As in Engelman, there was no indication the jury encountered any problems during deliberations. It did not deadlock or report that anyone refused to deliberate or to follow the law. It did not request further instruction or ask any questions. In short, there was no indication that the potential risk created by CALJIC No. 17.41.1 was realized in this case. Accordingly, appellants claim has no merit.
DISPOSITION
The judgment is affirmed.
We concur: COOPER, P.J., RUBIN, J.