Opinion
C091679
04-07-2022
THE PEOPLE, Plaintiff and Respondent, v. ADRIAN LAI, Defendant and Appellant.
NOT TO BE PUBLISHED
Super. Ct. No. STK-CR-FE-2019-0016316
OPINION ON TRANSFER
RAYE, P. J.
A jury found defendant Adrian Lai guilty of three counts of stalking (Pen. Code § 646.9, subd. (a)). The trial court sentenced him to four years four months in state prison, and required defendant to register as a sex offender for his lifetime pursuant to section 290. Defendant appeals his conviction on the basis that there was not substantial evidence to support the jury's findings that he was guilty of stalking. Defendant also appeals the requirement that he register as a sex offender for life on the basis that the trial court erred by not considering the nature of the offenses, and that it misapplied the law and evidence concerning his current risk of sexual or violent re-offense.
Undesignated statutory references are to the Penal Code.
On November 9, 2021, we issued an unpublished decision affirming the judgment. Defendant petitioned our Supreme Court for review, and on January 19, 2022, the Supreme Court granted defendant's petition for review and transferred the cause back to us with directions to vacate our prior decision and reconsider the matter in light of Senate Bill No. 567 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 731). We affirm the matters considered in our previous decision, and remand the case to the trial court for resentencing in compliance with the amendments to section 1170.
BACKGROUND
Defendant was convicted of stalking three different women.
A.W.
In April 2019, A.W. was at a gas station and was approximately seven months pregnant. She was pumping gas when defendant drove up to her and asked if she was single. A.W. laughed and said no, after which defendant drove away.
The next month, A.W. was at a Wal-Mart at approximately 9:00 p.m. when she turned around and saw defendant a few feet away. He again asked if she was single, to which she responded, "Didn't we already have this conversation?" Defendant indicated no, to which A.W. stated she was not single. About 15 minutes later, while checking out of the store, A.W. again noticed defendant this time staring at her with a "blank stare." As she was with her two sisters and her two-year-old son, she went to her car and got in, at which time she realized defendant was "parked in backwards, staring at me with his headlights." A.W. was very fearful as she was pregnant and could not defend her sisters or her son if she needed to. She was afraid defendant would follow her home as she lived by herself.
A.W. drove to a gas station upon leaving Wal-Mart and began pumping gas. About two minutes later defendant drove into the gas station. Defendant drove around A.W.'s car four times, and when she asked him, "[w]hy are you following me?" he responded that he was not following her. Defendant then drove into the carwash where he remained for about 30 to 45 minutes. A.W. "panic[ked]" and called her stepfather, who then drove to the gas station.
Upon leaving the carwash, defendant drove around the gas station and parked in a stall for about 20 minutes. Defendant then came up to A.W., during which time her sister began recording him. Defendant questioned why they were filming him, to which A.W. responded, "why are you following me?" Defendant asserted that he was not following her, and then returned to his car. A.W.'s stepfather stood by her car, at which point defendant left the gas station in his car, staring at A.W. and her stepfather as he drove away. A.W. was very afraid as she drove home because it was late and dark and she couldn't be sure defendant was not still following her.
On the Fourth of July, A.W. again saw defendant when she was at her father's house. She was on the front porch when she saw defendant drive by twice, make eye contact with her, and drive off. A.W. started screaming and told her father that she had just seen defendant. After this incident, A.W. did not return to her father's house because she was afraid she would see defendant again.
Y.S.
Y.S. saw defendant at her workplace in June or July 2019. She was walking, and defendant approached her in his car and asked if she was single and if she wanted to go out with him. Y.S. responded that she was not interested and asked defendant to leave her alone. Y.S. recognized defendant from a number of years prior when he approached her and several other women to tell them that they were cute.
About once a week or every two weeks Y.S. would see defendant driving around the parking lot at her workplace. Every time he would ask her the same questions, and she would ask him to leave her alone.
Subsequent to June or July 2019, Y.S. noticed that defendant was following her as she was on her way to Starbucks. She took a picture of his car, at which time he "got very upset." He followed her into Starbucks and confronted her. He asked her why she was taking pictures of him and if she knew him. Y.S. told him to leave her alone. After this incident, Y.S. did not see defendant again. She estimates he made contact with her about six times.
Y.S. felt afraid during her contacts with defendant. She worried that he was going to hurt her or hurt someone else. When defendant followed Y.S. into Starbucks she felt worried because he was bold enough to follow her into a business.
J.R.
In June or July 2019, defendant approached J.R. while she was returning to her job from lunch. Defendant was in his vehicle and stopped J.R. as she was walking and asked her if she had a husband, to which J.R. responded, "no" and walked into her building.
Shortly after the first incident, defendant again approached J.R. as she was returning to work from lunch and asked her if she was married. J.R. responded that he had already asked her this question and walked back into her building.
The third time defendant approached J.R. she was sitting in her vehicle in the parking lot outside her job. Defendant pulled into the parking space next to J.R.'s car, got out of his car, and started knocking on the passenger window of J.R.'s car. Realizing it was defendant, J.R. faced forward and did not respond. Defendant then walked around the front side of J.R.'s car to her driver's side door. Defendant pounded on J.R.'s driver's side window and said, "I'm talking to you, I'm talking to you."
J.R. rolled down her window a small amount and asked why defendant was bothering her, to which he responded, "I want to know if you're married." J.R. stated, "You've been asking me this multiple times," and "You're scaring me." Defendant repeated, "Well, are you married?" J.R. responded, "Yes, I'm married" in an effort to get defendant to leave her alone. Defendant continued to knock on the window as J.R. rolled it back up. J.R. believed defendant was not going to take no for an answer, and felt his demeanor changed to aggressive and irritated at her for rolling up her window. Eventually, defendant got into his vehicle, at which point J.R. started her car and pulled out of the parking space, after which defendant drove off.
The first time defendant approached her, J.R. "didn't think anything of it." The second time he approached her she felt "awkward." The third time, she was scared because he had continued to approach her at the same time in the same location and she did not understand why he continued to bother her.
J.R. saw defendant a fourth time, in August 2019 while driving home from work. She glanced in her rear-view mirror and noticed defendant was in the car right behind her. She noticed defendant looking directly forward, at her. At that point she made a quick exit and was able to lose defendant in traffic. This incident made J.R. nervous and fearful.
At sentencing, the trial court found, "this was an aggravated case of stalking. He was convicted of three counts. And the problem is he would not take no for an answer. I think in the 20 -- 21st century, we have to realize that as far as relationships between men and women go, if a woman says no, the woman means no. And these are all very young people." The court also found defendant went "on and on and on" and created great stress and fear in his victims. The court noted defendant had a prior stalking conviction and a prior gun case, both of which showed planning and sophistication. He also found the victims were vulnerable young women and in one instance he parked his car next to the victim's car and followed her into the store. Based on these facts, the trial court imposed the upper term on the first count. For the two other counts, the trial court imposed one-third the middle term for each. The court sentenced defendant to a total of four years four months in state prison and ordered defendant to register as a sex offender for life pursuant to section 290.
DISCUSSION
I. The Stalking Convictions
Defendant contends his right to due process was violated because there is insufficient evidence to support the jury's determination that he threatened the women. Defendant also argues the evidence does not support a finding that he intended to place the women in fear for their safety.
Section 646.9, subdivision (a) provides, "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 . . . ." Thus, the three elements of stalking are: (1) following or harassing another person; (2) making a credible threat, which includes a threat implied by a pattern of conduct or a combination of verbal and written communicated statements and conduct; and (3) intending to place the victim in reasonable fear for his or her safety. (People v. Uecker (2009) 172 Cal.App.4th 583, 594-595 (Uecker).)
In Uecker, the defendant's statements, written communication, and pattern of conduct constituted a "credible threat" by indicating "he was going to do whatever it took to get [the victim] to go out with him, reasonably causing [her] to fear for her safety." (Uecker, supra, 172 Cal.App.4th at p. 594.) The defendant followed and placed notes on the victim's car almost every workday for seven months. (Id. at pp. 594-595.) When she said she was not interested in him, he got mad. (Id. at p. 595.) He even positioned himself in front of the employee entrance so he could watch for the victim to leave. (Ibid.) This all provided substantial evidence for the jury's determination that the defendant made threats against the victim as he was persistent, he evidenced hostility toward her, and he indicated through his conduct that he was not going to take no for an answer. (Ibid.)
In People v. Lopez (2015) 240 Cal.App.4th 436 (Lopez), the defendant's conduct demonstrated he was obsessed with the victim, contacting her repeatedly over many years, despite her efforts to stop him. (Id. at p. 452.) When the victim stopped responding to him, he sent packages to her mother's house once or twice a year for five or six years. (Ibid.) The defendant sent the victim a birthday card with a fresh flower and multiple messages on Facebook. (Ibid.) After being contacted by the police, the defendant sent the victim another package and appeared as she was walking home from a friend's house. (Id. at p. 453.) She continued to tell him that he was scaring her, and yet he continued his behavior. (Id. at pp. 452-453.)
While the defendant in Lopez did not make overt threats, his course of conduct constituted a credible threat. (Lopez, supra, 240 Cal.App.4th at p. 453.) The defendant's overall conduct, including his persistence and obsession, was something a reasonable person would understand as threatening. (Ibid.) The defendant's conduct also demonstrated that he often knew where the victim was and that he remained close by. (Ibid.)
"In considering a challenge to the sufficiency of the evidence . . ., we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence-that is, evidence that is reasonable, credible, and of solid value- from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] We presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] 'A reviewing court neither reweighs evidence nor reevaluates a witness's credibility.' [Citation.]" (People v. Albillar (2010) 51 Cal.4th 47, 59-60.)
The totality of the evidence presented at trial supports the jury's conclusion that defendant made a credible threat sufficient to constitute stalking in all three counts by implying he would do whatever it took to get the victims to go out with him. While defendant never overtly threatened any of the victims, he persistently followed and harassed them, despite their repeated requests to be left alone. Defendant followed A.W. to a gas station, a Wal-Mart, a second gas station, and appeared outside her father's home. All of this, despite the fact that A.W. was a stranger to him, and repeatedly told him that she did not want to go on a date with him. Defendant followed A.W. even after she asked her stepfather to come protect her at a gas station. All of this behavior made A.W. afraid of what defendant would do to her, or her family members.
Defendant found Y.S. at her workplace, after having approached her many years prior. Defendant repeatedly appeared in the parking lot of Y.S.'s workplace, repeatedly asking her if she wanted to go out with him, and each time Y.S. would decline and ask him to leave her alone. Again, all of this behavior occurred despite Y.S. being a stranger to defendant. When defendant followed Y.S. to a Starbucks, he angrily confronted her inside the Starbucks, in front of other people. Y.S. felt afraid of defendant, who clearly knew where she worked and was not afraid to accost her in a public place.
Defendant also approached J.R. outside of her work, always asking her if she was married. Defendant's behavior then escalated to pounding on the window of J.R.'s vehicle, making it clear he would not leave until she rolled it down and spoke to him. Again, this occurred even though J.R. was a stranger to defendant. J.R. believed defendant would not take no for an answer, and felt he was behaving in an aggressive manner.
As in Lopez and Uecker, defendant did not make overt threats, however his pattern of conduct indicated he was intent on continuing to follow and question A.W., Y.S., and J.R. despite their repeated requests to be left alone. His behavior always escalated, whether following Y.S. into Starbucks and confronting her, pounding on the window of J.R.'s car, or showing up outside of the home of A.W.'s father. The women all reported that they felt afraid and worried that defendant was going to take more extreme and dangerous action. Viewing the record in the light most favorable to the judgment, substantial evidence supports the finding that defendant threatened A.W., Y.S., and J.R.
Defendant further argues he did not intend to place the women in fear for their safety and consequently could not be found guilty of stalking. However, there is a point at which behavior that evokes discomfort or anxiety can reasonably be regarded by someone of normal sensibilities as threatening behavior, intended to place the person in fear of harm. Defendant was not merely attempting to date or inquire about romantic interest; he defied the women's requests to be left alone and continued showing up in circumstances that clearly placed them in distress. Defendant's measures of repeatedly following and asking about marital statuses for these women despite such distress were not those of an eccentric paramour but of a predator intent on demonstrating his power to upset his victims. While defendant may have not intended to cause the women distress on the first instance, it is obvious that his repeated intrusions were unwelcome and unwanted. Viewing the record in the light most favorable to the judgment, substantial evidence supports the finding that defendant intended to place the victims in reasonable fear for their safety.
Because the stalking convictions are supported by substantial evidence, the convictions do not violate defendant's rights to due process and a fair trial.
II. Section 290 Registration
Defendant does not challenge the trial court's determination that he should register as a sex offender pursuant to section 290. Instead, he argues the trial court erred in determining he must register for life pursuant to the tier scheme set out in section 290.006.
The People argue that although the trial court evaluated defendant's registration status pursuant to the tiered scheme, this scheme was the result of a statutory revision that did not take effect until after his sentencing. Accordingly, the People argue the only option available to the court at sentencing was to require defendant to register as a sex offender for life. The People assert defendant is entitled to reevaluation pursuant to the new law, but that such review is to be completed by the Department of Justice.
Section 290.006, subdivision (a) provides that a court has discretion to order a person to register as a sex offender if it finds at sentencing that the person committed the offense as a result of sexual compulsion or for purposes of sexual gratification. Prior to January 1, 2021, and at the time of defendant's sentencing in March 2020, section 290.006, in conjunction with section 290, did not provide for anything less than lifetime registration. Under this scheme, the court did not have discretion to impose registration for less than lifetime. (People v. Eastman (2018) 26 Cal.App.5th 638, 647, fn. 9.) Effective January 1, 2021, the statutory scheme was amended to provide for three tiers, of ten years, twenty years, and lifetime registration. (Sen. Bill. No. 145 (2019-2020 Reg. Sess.); § 290.006.)
Here, the trial court did not have discretion at the time of sentencing to require defendant to register for any period less than his lifetime. Although the trial court erroneously referred to the three-tier scheme, we need not alter the judgment as the outcome is correct. (People v. Zapien (1993) 4 Cal.4th 929, 976 [a ruling correct in law will not be disturbed merely because given for a wrong reason].) As the People point out, section 290, subdivision (d)(5) provides that the Department of Justice shall place a person previously sentenced in the appropriate tier category. Further, as the three-tier scheme was not in effect at the time of sentencing, we do not address defendant's arguments that the trial court erred in its consideration of factors pursuant to the new scheme.
III. Sentencing
In his petition to the Supreme Court, defendant contends the case should be remanded to the trial court for resentencing in light of changes to section 1170 brought about by Senate Bill No. 567 (2021-2022 Reg. Sess.). We agree.
At the time of defendant's sentencing, section 1170, subdivision (b) provided the trial court with discretion to choose between the lower, middle, or upper term, after considering the record in the case, the probation report, other reports, statements in aggravation or mitigation, and any other evidence introduced at the sentencing hearing, based on which term, "in the court's discretion, best serves the interests of justice." (Former § 1170, subd. (b); Stats. 2018, ch. 1001, § 1.)
Here, in line with this discretion, the trial court imposed the upper term on defendant on count one. It based its sentencing decision on defendant's prior convictions, its findings this was an aggravated case of stalking of young women, defendant's conduct showed planning and sophistication, and defendant created great stress and fear in his victims.
After his sentencing, Senate Bill No. 567 altered the methodology employed when the trial court selects a triad term under section 1170. (Stats. 2021, ch. 731, § 1.3.) The new law creates a presumption in favor of the middle term. (Stats. 2021, ch. 731, § 1.3.) The effective date of this change is January 1, 2022. (People v. Camba (1996) 50 Cal.App.4th 857, 865-866 [non-urgency bills become effective on Jan. 1 of the year following the year of their enactment].)
Section 1170, subdivision (b) now provides in relevant part: "(1) When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall, in its sound discretion, order imposition of a sentence not to exceed the middle term, except as otherwise provided in paragraph (2). [¶] (2) The court may impose a sentence exceeding the middle term only when there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term, and the facts underlying those circumstances have been stipulated to by the defendant, or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial. . . . [¶] (3) Notwithstanding paragraphs (1) and (2), the court may consider the defendant's prior convictions in determining sentencing based on a certified record of conviction without submitting the prior convictions to a jury. . . ."
Defendant contends the changes brought about by Senate Bill No. 567 should be applied to his case retroactively under In re Estrada (1965) 63 Cal.2d 740, 744, because the new law is ameliorative. Defendant argues the new law is ameliorative because it makes the middle term the presumptive sentence and requires defendant to stipulate to any facts that would constitute circumstances in aggravation to impose an upper term sentence or those facts must be found true by a jury or the trial court beyond a reasonable doubt after a trial. We agree this amendment to section 1170 is potentially ameliorative and should be retroactively applied. (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 307-308.)
Here, the facts used by the trial court to impose the upper term were not stipulated to by defendant, nor were they decided by a jury or the trial court beyond a reasonable doubt during a trial. As a result, under the law as amended, these facts cannot support the imposition of upper term. We therefore remand the case for resentencing so that the court may conduct further proceedings and exercise its discretion in accordance with the new rules for selecting the appropriate triad term under section 1170. We express no opinion as to the appropriate sentence on remand.
DISPOSITION
The matter is remanded to the trial court to resentence defendant under Penal Code section 1170 as amended by Senate Bill No. 567. The judgment is otherwise affirmed.
We concur: HULL, J., RENNER, J.