Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 09F02861
ROBIE, J.
Following a jury trial, defendant Lamont Alvin Houze II was convicted of stalking. He was sentenced to two years in prison.
On appeal, defendant contends it was an abuse of discretion to admit uncharged prior crimes evidence, the court committed instructional error on the prior crimes evidence, and there was insufficient evidence to support his stalking conviction. We shall modify the award of custody credits and affirm the judgment as modified.
FACTS
Eva Gomez lived in her Sacramento home with her husband, Julio Marin (Julio), their children, and Marin’s sister, Odilia Marin (Odilia). Starting in March 2009, defendant stood across the street from their home and stared at Gomez as she took her three children to school each morning. Defendant also stared at Gomez when she returned home in the afternoon.
We refer to Julio and Odilia Marin by the first names in order to avoid confusion.
Julio and Odilia also saw defendant stare at their house every day. According to Julio, defendant was across the street from their house two to three times a day. He would stare at their house, look elsewhere, look back at the house, and then repeat the process. Julio and Gomez’s 10-year-old son C. M. saw defendant across the street from their house more than 30 times.
In March 2009, defendant confronted Gomez while she was leaving a local grocery store. Defendant, who was about three feet from Gomez, talked to her as she hurriedly tried to enter her car. Gomez told defendant she did not understand him and she was married. Defendant replied that he knew she was married and she should get divorced.
There was a second confrontation at the store in April 2009. When Gomez arrived at the store, defendant was at the foot of her car. Gomez closed her windows and pretended not to see him. When defendant knocked on her window, Gomez took out her cell phone and told him she was calling the police. Defendant then walked away quickly.
In April 2009, defendant crossed the street and got in front of Gomez’s car as she was driving home with her three children. Defendant appeared to have intentionally stepped out in front of her car; Gomez drove around him.
According to Gomez, whenever she opened the blinds, defendant would be across the street staring at her house. She had been scared of defendant since he first confronted her in the store parking lot.
Defendant twice confronted Odilia at her truck and told her to talk to Gomez. Defendant told Odilia that he loved Gomez, would protect her, and would support her children and her family in Mexico. Odilia told this to Gomez.
Julio related three incidents where defendant crossed the street and approached Gomez as she opened the garage door. Julio once confronted defendant, telling him to stop or he would have trouble. Defendant asked with whom would he have trouble, and Julio replied, the police. Defendant’s behavior did not change after Julio threatened to call the police.
On April 16, 2009, Odilia noticed there was a note on her truck. Odilia took the note; defendant quickly approached, asked if she had seen the note, and told Odilia she should take it to Gomez. Gomez was in the garage and saw defendant talking to Odilia. She called for Julio, who went out to confront defendant.
Julio went out to Odilia’s car and read the note. He then confronted defendant. Julio told defendant he would get a screwdriver; defendant replied that he would get a knife. Defendant threw a punch at Julio, who ran off to get his screwdriver.
Odilia called 911 and later flagged down officers responding to the dispatch. The officers observed defendant was highly agitated, aggressive, and refused to comply with their commands, causing him to be handcuffed.
Gomez, Julio, Odilia, and C. M. testified that they were afraid of defendant.
In 2004, Kelly Patterson worked in the district office of a state senator representing parts of Sacramento. She met defendant in late 2004 or early 2005, when he came to the district office looking for help regarding the 1986 floods. Defendant started to ask her personal questions, such as whether she had a boyfriend and would she like to go on a date with him. Patterson would decline the invitations and tell defendant he should not be in the office if he did not have questions regarding government.
Defendant came into the office once every two to three months for about a year. The visits became more frequent when Patterson moved to the legislative office inside the Capitol in late 2005. Defendant saw Patterson five to six times in her new office during the first half of 2005. Patterson was very firm in declining defendant’s advances, telling him he should not be in the Capitol office. Defendant also left 10 to 15 voicemail messages and approximately 17 e-mails for her. Patterson told defendant over the phone and through e-mail that he had to stop contacting her, and that his contacts were being monitored by the Senate sergeant at arms. Defendant would also call Patterson at her office.
Defendant often told Patterson he loved her, and many of his e-mails had sexual overtones. In 2006, Patterson asked the sergeant at arms for help. The California Highway Patrol issued bulletins regarding defendant in the senator’s offices and at the Capitol entrances.
Patterson obtained a civil restraining order against defendant in August 2006, which defendant violated several times. Patterson then obtained a criminal restraining order against defendant, which he did not violate.
Lisa Robinson lived by Gomez and her family. Robinson often saw defendant in her neighborhood in March and April 2006, talking to several people, including her boyfriend and granddaughter. Defendant was never threatening or disrespectful during this time.
DISCUSSION
I
Introduction Of Uncharged Acts
Defendant objected to Patterson’s prior uncharged misconduct testimony, arguing he was never convicted of stalking Patterson and the protective order was unconstitutional. The court granted the People’s motion to allow Patterson to testify, finding the evidence was “highly relevant” to “[i]ntent, common scheme or plan” and the “absence of mistake or accident, ” and that the danger of “undue prejudice” was “nonexistent.”
Defendant contends the court erred. He asserts Patterson’s testimony was highly prejudicial and irrelevant to the only contested issue at trial, whether he intended to threaten Gomez. We disagree.
Evidence of defendant’s other crimes or misconduct is admissible to prove, among other things, “intent, ” provided its relevance outweighs its potential prejudicial effect. (Evid. Code, §§ 352, 1101, subd. (b); People v. Ewoldt (1994) 7 Cal.4th 380, 404.) The admissibility of such evidence “depends upon the materiality of the fact sought to be proved or disproved, the tendency of the uncharged crime to prove or disprove the material fact, and the existence of any policy requiring exclusion of the evidence. [Citation.]” (People v. Catlin (2001) 26 Cal.4th 81, 146.)
“The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent. [Citation.] ‘[T]he recurrence of a similar result... tends (increasingly with each instance) to negative accident or inadvertence or self-defense or good faith or other innocent mental state, and tends to establish (provisionally, at least, though not certainly) the presence of the normal, i.e., criminal, intent accompanying such an act....’ [Citation.] In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant ‘“probably harbor[ed] the same intent in each instance.” [Citations.]’ [Citation.]” (People v. Ewoldt, supra, 7 Cal.4th at p. 402.)
Penal Code section 646.9 provides in part: “(a) 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.”
Defendant repeatedly made inappropriate contact with Patterson, conveying unwanted romantic entreaties to her at her office, on the phone, and by e-mail. He ignored Patterson’s requests to stop, and her warning that he was being monitored. Patterson obtained a protective order, which defendant violated. This is circumstantial evidence that defendant intended to place Patterson in fear.
Defendant’s behavior toward Gomez was similar. He persisted in conveying his romantic messages to Gomez, even after being told they were unwanted. Gomez and Julio each told defendant they would call the police in response to his unwanted attention; he nonetheless persisted to stare at Gomez, confront her, and communicate his unwanted attention through her sister-in-law. The degree of similarity between defendant’s conduct toward Gomez and his conduct toward Patterson is relevant to show that defendant knew he was placing Gomez in fear, and therefore intended to cause fear through his pattern of harassing behavior.
We agree with the trial court that this evidence presented no risk of undue prejudice. Defendant’s conduct toward Patterson was not more inflammatory than his conduct toward Gomez. Although the Patterson incidents occurred over a longer time, he only harassed her a few times a month. By contrast, defendant harassed Gomez daily for over six weeks. While defendant placed only Patterson in fear, his conduct scared Gomez, her husband, their young son, and Gomez’s sister-in-law. The trial court did not abuse its discretion in admitting the evidence.
II
Instruction With CALCRIM No. 375
The trial court instructed the jury with the standard instruction on uncharged crimes evidence, CALCRIM No. 375. In pertinent part, the instruction stated: “The People have presented evidence that the defendant committed offenses that were not charged in this case. The People presented evidence of other behavior by the defendant that was -- that was not charged in this case; namely, that the defendant stalked Kelly Patterson. You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant, in fact, committed the uncharged offenses.”
Noting he was not convicted of stalking Patterson, defendant contends it was prejudicial error for the court to instruct the jury there was evidence he had stalked her. The People argue the reference to stalking, while erroneous, was harmless error. The parties are mistaken, as the instruction was correct.
Defendant’s contention relies on People v. Enos (1973) 34 Cal.App.3d 25. In Enos, the People presented evidence of two prior uncharged incidents. In November 1970, officers found the defendant in possession of various items stolen from two houses; as a result he pled guilty to receiving stolen property. (Id. at pp. 31-32.) In September 1971, the defendant was in a parked car, parked in another person’s driveway, looking inside the house. (Id. at pp. 32-33.) The court instructed the jury on the incidents as follows: “‘Evidence has been received tending to show that the defendant committed [a crime] [crimes] other than that for which he is on trial....’” (Id. at p. 42.) The defendant in Enos argued it was error for the instruction to refer to the 1971 incident as a crime. (Ibid.) The Court of Appeal agreed, but found the error harmless. (Ibid.)
Defendant asserts the instruction’s reference to stalking was error under Enos. Enos does not require that a prior act result in a conviction in order to be referred to as a prior crime. The Court of Appeal stated: “Concerning the September 15, 1971, incident, there was no evidence that this constituted a crime nor did the prosecution make any claim or statement that it did.” (People v. Enos, supra, 34 Cal.App.3d at p. 42.) In Enos, the instruction could not refer to the September 1971 incident as a crime because it did not involve criminal conduct. Enos is readily distinguished from the instant case as Patterson’s testimony is substantial evidence that defendant’s prior misconduct amounted to the crime of stalking, even if he was never charged with that offense.
The admissibility of other crimes evidence is not predicated upon a conviction. The lack of a conviction merely increases the prejudicial effect of the other crimes evidence (People v. Ewoldt, supra, 7 Cal.4th at p. 405), and other crimes evidence is admissible even if the defendant was acquitted, so long as the jury is made aware of the acquittal (People v. Jenkins (1970) 3 Cal.App.3d 529, 534).
The court did not instruct the jury that defendant had committed the crime of stalking against Patterson. The instruction informed the jury there was evidence of this offense, but the jury had to determine whether defendant committed the uncharged offense. Since there was evidence defendant stalked Patterson, the instruction was correct.
III
Sufficiency Of The Evidence
Defendant contends there is insufficient evidence to support his conviction for stalking.
“Where there is a claim of insufficient evidence,
‘we “examine the whole record in the light most favorable to
the judgment to determine whether it discloses substantial evidence--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.] We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]’ [Citation.] ‘Unless it is clearly shown that “on no hypothesis whatever is there sufficient substantial evidence to support the verdict” the conviction will not be reversed. [Citation.]’ [Citation.] We apply the same standard to convictions based largely on circumstantial evidence. [Citation.]” (People v. Martinez (2008) 158 Cal.App.4th 1324, 1329.)
Defendant asserts his conviction should be reversed because the People failed to prove he made a credible threat of violence against Gomez.
As stated in part I of the Discussion, ante, Penal Code section 646.9 provides in pertinent part:
“(a) 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.... [¶] (g) For the purposes of this section, ‘credible threat’ means a verbal or written threat, including that performed through the use of an electronic communication device, or a threat implied by a pattern of conduct or a combination of verbal, written, or electronically communicated statements and conduct, made with the intent to place the person that is the target of the threat in reasonable fear for his or her safety or the safety of his or her family, and made with the apparent ability to carry out the threat so as to cause the person who is the target of the threat to reasonably fear for his or her safety or the safety of his or her family. It is not necessary to prove that the defendant had the intent to actually carry out the threat....”
Defendant stood in front of Gomez’s house for over a month and ond-half, staring at her when she took her children to school, staring at her house when she opened the blinds, and, at times, staring at her when she came home. Defendant confronted her at the grocery store, where he proclaimed his love and told her to divorce her husband. He confronted her at the store a second time, where she threatened to call the police. Another time, defendant confronted Gomez by stepping out in front of her car. Gomez’s threat to call the police did not stop defendant, who continued his unwanted attention.
Undeterred by Gomez’s limited English, defendant tried to press home his unwanted message through Gomez’s husband and her sister-in-law. He ignored their rebuffs, and Julio’s threat to call the police. His last attempt, the April 16 incident, led to a confrontation between defendant and Julio, where Gomez saw defendant throw a punch at her husband.
Defendant’s obsessive attention to Gomez, combined with his violence toward her husband, is substantial evidence of a credible threat to Gomez. “[I]t is a sad truth, and one commonly reported, that persons such as appellant, in the grips of an obsession, have killed or harmed the object of that obsession, even while maintaining that they have no desire to cause harm.” (People v. Falck (1997) 52 Cal.App.4th 287, 298.)
Defendant’s persistence in paying unwanted attention to Gomez, ignoring her refusals, threats to report him to the police, and refusals from her sister-in-law and husband, and the fact “that his desires took precedence over the victim’s wishes, ” is evidence of a credible threat. (People v. Falck, supra, 52 Cal.App.4th at p. 298.) By persistently positioning himself so he could see her comings and goings, defendant “signaled he was not going to take no for an answer, ” providing additional evidence of a credible threat. (People v. Uecker (2009) 172 Cal.App.4th 583, 595.)
Finally, defendant’s attempt to fight Julio showed a willingness to employ violence to attain his desires. “Here, defendant’s pattern of conduct, his written notes, and verbal statements implied he was going to do whatever it took to get M. to go out with him, reasonably causing M. to fear for her safety.” (People v. Uecker, supra, 172 Cal.App.4th at p. 594.)
Defendant does not contest the remaining elements of stalking. Substantial evidence supports his conviction.
IV
Conduct Credits
The court initially awarded defendant 189 days’ presentence credit, consisting of 127 days’ custody credit and 62 days’ conduct credit. In response to a request from defendant’s appellate counsel, the trial court modified the award of custody credits to conform to the amendments to Penal Code section 4019 effective January 25, 2010. (Pen. Code, § 4019, former subds. (b), (c); Stats. 2009, 3d Ex. Sess., ch. 28, § 50.) Under those amendments, a term of four days was deemed to have been served for every two days spent in actual custody, because a defendant would receive two days’ custody credit and two days’ conduct credit for every two days actually spent in custody. (Pen. Code, § 4019, former subd. (f).) Thus, if a defendant spent an even number of days in custody, his conduct credits would be equal to his custody credits. If a defendant spent an odd number of days in custody, however, his conduct credits would not equal his custody credits, because while he would receive one day of custody credit for the odd day served in custody, he would not receive a day of conduct credit for that day.
Applying amended Penal Code section 4019, the trial court modified the award of conduct credit to 126 days.
Recently, however, the Legislature enacted yet another amendment that affects the credit calculation. (See Pen. Code, § 2933, subd. (e)(1) [as amended by Stats. 2010, ch. 426, § 1, eff. Sept. 28, 2010].) Under this amendment, Penal Code section 2933 now provides one day of conduct credit for every day actually served in custody, and thus a defendant who serves an odd number of days in custody is not deprived of the one extra day of conduct credit for the odd day, as was previously the case.
This most recent amendment to Penal Code section 2933 applies to all appeals, including defendant’s, pending as of September 28, 2010. (See In re Estrada (1965) 63 Cal.2d 740, 745 [amendment to statute lessening punishment for crime applies “to acts committed before its passage provided the judgment convicting the defendant of the act is not final”]; People v. Doganiere (1978) 86 Cal.App.3d 237; People v. Hunter (1977) 68 Cal.App.3d 389.)
Defendant is not among the prisoners excepted from the additional accrual of credit. (Pen. Code, § 2933, subd. (e)(3).) Thus, defendant is entitled to 127 days of presentence conduct credit.
DISPOSITION
The judgment is modified to increase defendant’s conduct credits from 126 to 127. The judgment is affirmed as modified. The trial court is directed to amend the abstract of judgment accordingly and to forward a copy of the amended abstract to the Department of Corrections and Rehabilitation.
We concur: BLEASE, Acting P. J., HULL, J.